Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF TRANSPORTATION

OF THE STATE OF MONTANA

In the matter of the adoption of New Rules I and II; the amendment of ARM 18.7.203, 18.7.204 and 18.7.207; and the repeal of 18.7.205 and 18.7.221 pertaining to Utility and Eligible Project Right-of-Way Occupancy

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION, AMENDMENT, AND REPEAL

TO: All Concerned Persons

1. On August 4, 2023, at 10:00 a.m., the Department of Transportation will hold a public hearing via remote conferencing to consider the proposed adoption, amendment, and repeal of the above-stated rules. Interested parties may access the remote conferencing platform in the following way:

Registration with Zoom may be made at the following link:

(a)

https://mt-gov.zoom.us/meeting/register/

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2. The Department of Transportation will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require accommodation, contact the Department of Transportation no later than 5:00 p.m. on July 28, 2023, to advise us of the nature of the accommodation that you need. Please contact Chad Newman, Broadband Coordinator, Department of Transportation, P.O. Box 201001, Helena, Montana, 59620-1001; telephone (406) 444-6350; fax (406) 444-7254; TTY Service (800) 335-7592 or through the Montana Relay Service at 711; or e-mail [email protected].

3. The rules as proposed to be adopted provide as follows:

NEW RULE I ELIGIBLE PROJECTS FOR LONGITUDINAL INTERSTATE USE (1) A right-of-way use agreement is a lease as per 23 CFR 710.105.

(2) An applicant must apply for a right-of-way use agreement from the department's Utility Permitting Administration System (UPAS) through the department's website at www.mdt.mt.gov or www.mdtupas.com. The procedures and conditions for all eligible project facility installations and maintenance are set forth in the right-of-way use agreement terms and conditions, ARM Title 18, chapter 7, subchapter 2, and the department's right-of-way utilities manual.

(3) An electronic use convenience fee is due upon submission of each UPAS application. Applications shall be reviewed in the order they are received. The department shall consider all relevant factors, including but not limited to:

(a) the maximum occupancy of facilities and remaining availability of interstate right-of-way at the proposed project location;

(b) the feasibility of the proposed project location and the impact to the traveling public's safety and convenience;

(d) the maintenance area necessary for the proposed project location; and

(e) the requirements set forth in 60-4-601, MCA.

(4) All appropriate underground or above-ground requirements in state and federal statute, regulations, and rules must be met including, but not limited to:

(a) the department shall enter right-of-way use agreements in a manner so as to reserve, where possible, sufficient underground right-of-way for eligible projects as defined in 60-4-601, MCA;

(b) above-ground facilities or infrastructure must be located outside the clear recovery area without reduction in safety for the traveling public and without any impacts to standard maintenance operations unless otherwise approved by the department;

(d) each facility's dedicated power source must obtain a separate UPAS permit.

(5) Right-of-way use agreement terms shall include an application fee of $100, due upon department notification to applicant.

(6) The department shall deposit the revenues derived from the right-of-way use agreement and related fees in the state special revenue highway restricted account established in 15-70-126, MCA.

(7) The applicant shall not commence construction work within the interstate right-of-way until the right-of-way use agreement and the UPAS permit have been approved by the department.

(8) Facilities installed under a right-of-way use agreement must comply with ARM Title 18, chapter 7, subchapter 2 for general utility installation and maintenance requirements.

(9) Assignment of a right-of-way use agreement is not binding until approved by the department. An assignment may only be denied for good cause, which reasons may include, but are not limited to:

(a) all payments due have not been received; or

(b) the terms of the right-of-way use agreement have been violated.

(10) If a facility owner disagrees with the department's decision to deny an application or refuse to renew a right-of-way use agreement, the facility owner must submit a written request for a formal hearing that must be received by the department within 30 days of the date on the department's notice. A formal hearing consists of a contested case proceeding under the Montana Administrative Procedure Act.

AUTH: 60-2-201, 60-3-101, 60-4-601, MCA

IMP: 60-2-201, 60-4-601, 60-5-101, 60-5-104, MCA

REASON: The 2023 Legislature enacted Chapter 694, Laws of 2023 (Senate Bill 521), amending 60-4-501 and 60-4-601, MCA, generally revising laws related to broadband deployment on state highways or interstate rights-of-way. The bill became effective May 19, 2023. Proposed New Rule I is necessary to begin accommodation of eligible project pipeline, fiber optic, or other communications-type cables, wireless, and associated infrastructure and dedicated power sources within full access control (interstate) highway right-of-way.

Proposed New Rule I is necessary to provide information on the application process to be used for eligible project facilities, including requirement of right-of-way use agreements, and other relevant factors. The department projects the proposed application fees for SFY 2024 will impact approximately 100 applicants, resulting in a projected revenue increase of approximately $10,000.

NEW RULE II NON-REGULATED TELECOMMUNICATIONS – FIBER OPTIC – BROADBAND – WIRELESS FACILITIES IN NON-INTERSTATE HIGHWAYS (1) The department may issue utility encroachment permits with applicable terms for use of non-interstate federal-aid highway system rights-of-way to non-regulated telecommunications, fiber optic, broadband, and wireless facility owners for the purpose of installation of appropriate equipment and associated infrastructure within state highway rights-of-way.

(2) Any facilities placed on the non-interstate federal-aid system highway right-of-way must be placed in accordance with existing statutes, rules, and standards of the department. A facility's power source not owned by the applicant must obtain a separate UPAS utility permit.

(3) Any relocation of facilities occupying the right of way is subject to 60-4-403, MCA.

(4) The department shall review applications to ensure the proposed facilities, their operation, and maintenance do not conflict with the operation or maintenance of facilities owned by other entities previously issued a utility encroachment permit or occupancy agreement and are not dangerous to persons or property using or occupying the right-of-way. The applicant must determine the existence and location of all facilities within the non-interstate highway right-of-way prior to project construction.

(5) If a facility owner disagrees with the department's decision to deny an application or revoke or refuse to renew a utility encroachment permit, the owner must submit a written request for a formal hearing that must be received by the department within 30 days of the date on the department's notice. A formal hearing consists of a contested case proceeding under the Montana Administrative Procedure Act.

AUTH: 60-2-201, 60-3-101, MCA

IMP: 60-2-201, 60-5-101, 60-5-104, MCA

REASON: Proposed New Rule II is necessary to allow installation of non-regulated communications, fiber optic, broadband, or wireless facilities in non-interstate state highway right-of-way. New Rule II is necessary to establish application processes and requirements for issuance of utility encroachment permits for these facilities or utilities.

New Rule II is also necessary to establish the utility encroachment permit holder's compliance with relocation statutes, requirements for installation standards, and responsibility for maintenance of the facilities.

4. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

18.7.203 SCOPE AND APPLICATION (1) These regulations apply to all portions of federal-aid highway systems in Montana~~. They~~ and establish requirements for occupancy of highway rights-of-way by:

(a) and (b) remain the same.

(2) Except as noted in ~~subsection~~ (3) ~~of this rule~~, these regulations shall apply to:

(a) New utility facilities as herein defined. Specific regulations governing these facilities are covered in ARM ~~18.7.221 through 18.7.232~~ Title 18, chapter 7, subchapter 2.

(b) through (e) remain the same.

(f) ~~Occupancy by utility-type facilities that do not have a statutory right to occupy highway right-of-way, but are allowed under established use and~~ Occupancy by facilities which are not public utilities but may be allowed under utility encroachment permits granted and administered by the department. Longitudinal occupancy of highway right‑of‑way by a non‑utility is contrary to department policy. Where such longitudinal occupancy is approved by the district administrator, it will only be by a revocable encroachment permit.

(g) Occupancy of non-interstate right-of-way is subject to [New Rule II].

(h) Longitudinal occupancy of interstate right-of-way is subject to ARM 18.7.204 and [New Rule I].

(3) remains the same.

(4) ~~Lands administered by the department in excess of highway right‑of‑way are not subject to occupancy under these regulations. Easements or permits for use of such lands are~~ obtained Other uses of real property administered by the department must be requested through the department's right‑of‑way bureau~~, land section supervisor, Helena, Montana~~.

AUTH: 60-2-201, 60-3-101,60-4-402, 60-4-601, MCA

IMP: 60-2-201, 60-3-101, 60-4-402, 60-4-601, 60-5-101, 60-5-104, MCA

REASON: The proposed amendments to ARM 18.7.203 are necessary to make the rule consistent with 60-4-601, MCA, and SB 521, allowing longitudinal use of interstate rights-of-way for eligible projects. The proposed amendments are also necessary to set forth the method by which the department will review applications for longitudinal use of non-interstate state highways. The proposed amendments are necessary to revise outdated language to be consistent with the rule definitions of public and non-public utilities.

18.7.204 OCCUPANCY OF FULL CONTROLLED-ACCESS FACILITY RIGHT-OF-WAY (1) Occupancy of full controlled-access facility right-of-way ~~is contrary to department policy, however, occupancy~~ under right-of-way use agreements (UPAS interstate permit) may be permitted ~~in special cases~~ where the ~~utility~~ facility owner shows that:

(a) all requirements of 60-4-601, MCA, and [NEW RULE I] are met;

~~(a)~~ (b) the accommodation will not adversely affect the safety, design, construction, operation, maintenance, or stability of the full controlled‑access facility; and

~~(b)~~ (c) the accommodation will not be constructed or serviced by direct access from through traffic roadways or connecting ramps;.

~~(c) the accommodation will not interfere with or impair the present use or future expansion of the full controlled-access facility;~~

(d) any alternative location would be contrary to the public interest. This determination includes an evaluation of the direct and indirect environmental and economic effects which would result from disapproval of the use of such right-of-way for the accommodation of such utility.

(2) remains the same.

(3) Utilities ~~can~~ may be installed within the right-of-way of a crossroad over or under the full controlled-access facility, provided such installation is in compliance with all applicable rules, and provided the installation and servicing ~~can~~ may be accomplished without access from the through traffic facilities of the full controlled-access facility roadway or ramps.

AUTH: 60-3-101, 60-4-402, MCA

IMP: 60-3-101, 60-4-402, 60-4-601, MCA

REASON: The proposed amendments to ARM 18.7.204 are necessary to make the rule consistent with 60-4-601, MCA (SB 521), allowing longitudinal use of interstate right-of-way for eligible projects.

18.7.207 ELECTRONIC UTILITY PERMIT APPLICATION PROCESS

(1) through (2)(d) remain the same.

(e) be accompanied by a ~~$100~~ non-refundable electronic convenience fee.

(3) through (6) remain the same.

AUTH:60-4-402, MCA

IMP: 60-4-402, 60-4-403, MCA

REASON: The proposed amendment to ARM 18.7.207 is necessary to allow changes to the electronic convenience fee which is charged by and remitted to the UPAS software vendor to allow for increased costs for UPAS software hosting and professional services.

5. The following rules are proposed to be repealed:

18.7.205 SUPERSEDED REGULATIONS AND PERMITS

AUTH: 60-3-101, 60-4-402, MCA

IMP: 60-3-101, 60-4-402, MCA

REASON: The repeal of ARM 18.7.205 is necessary because the superseded regulations and permits cited in the rule no longer exist, and the rule is therefore archaic.

18.7.221 STANDARDS AND PROCEDURES

AUTH: 60-3-101, 60-4-402, MCA

IMP: 60-3-101, 60-4-402, MCA

REASON: The repeal of ARM 18.7.221 is necessary because the rule is archaic and refers to procedures which were superseded in 1972.

6. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to Chad Newman, Broadband Coordinator, Department of Transportation, P.O. Box 201001, Helena, Montana, 59620-1001; fax (406) 444-7254 or e-mail [email protected], and must be received no later than 5:00 p.m., August 4, 2023.

7. A Department of Transportation designee will preside over and conduct this hearing.

8. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in paragraph 6 or may be made by completing a request form at any rules hearing held by the department.

9. An electronic copy of this proposal notice is available on the Department of Transportation website at www.mdt.mt.gov.

10. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsor of SB 521 was contacted by email and U.S. Mail on April 3, 2023.

11. With regard to the requirements of 2-4-111, MCA, the department has determined that the adoption, amendment, and repeal of the above-referenced rules will not significantly and directly impact small businesses.

12. With regard to the requirements of 2-15-142, MCA, the department has determined that the adoption, amendment, and repeal of the above-referenced rules will not have direct tribal implications.

/s/ Valerie A. Balukas /s/ Malcolm D. Long

Valerie A. Balukas Malcolm D. Long

Rule Reviewer Director

Department of Transportation

Certified to the Secretary of State June 27, 2023.