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| Montana Administrative Register Notice 18-192 | No. 17 09/08/2023 | |
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BEFORE THE DEPARTMENT OF TRANSPORTATION OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On July 7, 2023, the Department of Transportation published MAR Notice No. 18-102 pertaining to the public hearing on the proposed adoption, amendment, and repeal of the above-stated rules at page 613 of the 2023 Montana Administrative Register, Issue Number 13.
2. The department has amended the above-stated rules as proposed.
3. The department has repealed the above-stated rules as proposed.
4. The department has adopted the above-stated rules as proposed: New Rule I (18.7.219) and New Rule II (18.7.220).
5. The department has thoroughly considered the comments and testimony received. A summary of the comments received, and the department's responses are as follows:
Comment No. 1: A commenter stated that its association members, which are community-based, locally owned broadband providers serving rural Montana and other communities, are also "utilities" as defined in 69-3-101, MCA, and that they qualify for highway right-of-way occupancy permits, unlike non-utilities who may apply for encroachment permits.
Response No. 1: In general, "community-based, locally owned broadband providers serving rural Montana and other communities" may be considered public utilities if they meet the definition of public utility found in ARM 18.7.202 and 69-3-101, MCA. A dedicated broadband cable which does not meet the definition would be considered a non-public utility. The commenter did not suggest any change to proposed rule wording, and the new rules will be adopted as proposed.
Comment No. 2: A commenter renewed its earlier request for expedited treatment of broadband utility applications under Federal Highway Administration (FHWA) accommodation rules.
Response No. 2: The department will process all applications on a first-come, first-serve basis and will process completed application requests judiciously and punctually based on available resources and the complexity and size of each project. The commenter did not suggest any change to proposed rule wording, and the new rules will be adopted as proposed.
Comment No. 3: A commenter stated federal regulations exempt utility infrastructure from fair market value assessment in highway rights-of-way and that Chapter 694, Laws of 2023 (SB 521), requires the department to "seek an exception to paying the fair market value" if requested by an applicant. Although there is no "shot clock" or timeline for either the department or FHWA to review and accept a request, the commenter stated it assumes the FHWA and the department will approve, submit, and accept a request from a utility, since the FHWA itself has already determined utility accommodations are in the public interest.
Response No. 3: As per 60-4-601, MCA, the department will facilitate FHWA approval of a fair market waiver request when submitted by applicants. Facilities must demonstrate that they are an eligible project facility and that they qualify as a clean energy and connectivity facility. The department waiver requests will be reviewed and approved as part of the department's Utilities Permitting Administration System (UPAS) application process which has been developed into a streamlined electronic workflow and approval process. The commenter did not suggest any change to proposed rule wording, and the new rules will be adopted as proposed.
Comment No. 4: A commenter stated a concern that time is of the essence when it comes to broadband utility applications because nearly $1 billion of federal broadband stimulus funding is budgeted for Montana, over $300 million has already been awarded for broadband infrastructure projects, and funding is set to expire at the end of 2028. This commenter pointed out that there is no time restriction for either the department or FHWA to review and accept applications but said projects need to be engineered this year and initiated next year to meet the 2028 deadline.
Response No. 4: See response to Comment No. 2.
Comment No. 5: A commenter stated the department should insert into proposed New Rule I(3)(e), a requirement that the department consider whether an applicant is a utility that qualifies for expedited application approval under FHWA utility accommodation rules.
Response No. 5: All applicants will be given equal opportunity and attention without preference based on facility type. Please also see the response to Comment No. 3. New Rule I is being adopted as proposed.
Comment No. 6: A commenter asked the department to add a section (5) to proposed New Rule I that would require the department to seek expedited review of utility applications for FHWA utility accommodation.
Response No. 6: See responses to Comment Nos. 2 and 3. New Rule I is being adopted as proposed.
Comment No. 7: A commenter requested a change to proposed New Rule II, substituting "non-utility" encroachment permits for "non-regulated telecommunications," as the distinction between occupancy permits [sic] and encroachment permits hinges on utility classification, not whether an entity is regulated or not.
Response No. 7: "Public utility" is defined in 69-3-101, MCA, and specifically states the term includes "regulated telecommunications service." Use of the term "non-regulated telecommunications" in New Rule II to describe a non-public utility is therefore consistent with the statute. New Rule II is being adopted as proposed.
Comment No. 8: A commenter requested that the department more specifically define the meaning of the term "eligible projects."
Response No. 8: "Eligible projects" is defined in 60-4-601(7)(a), MCA.
Comment No. 9: A commenter stated the department's Right-of-Way Operations Manual, at chapter 43, "Utility Occupancy on Highway Right-of-Way (Manual) should be conformed to reflect the pending changes to the department's rules. This commenter stated that, although the Manual is subordinate to the rules, several of the Manual's guidelines are inconsistent with the proposed rules and could lead to confusion if not amended to better reflect changes to the rules.
Response No. 9: The department is currently updating the Manual to accommodate the implementation of Chapter 694, Laws of 2023 (SB 521), and interstate right-of-way occupancy by eligible projects. The updated Manual will be published at the time New Rules I and II are effective.
Comment No. 10: One commenter stated the change to Montana's laws in 2023 added wireless technology to the definition of "eligible project," stating this particular action advances both Montana and federal policies to promote the deployment of broadband using a mix of wireless and other technologies.
Response No. 10: The department acknowledges receipt of the comment regarding the subject of the rulemaking. The commenter did not suggest any change to proposed rule wording, and the new rules will be adopted as proposed.
Comment No. 11: A commenter stated the department had previously determined wireless facilities could occupy non-interstate highways. This commenter stated the primary effect of Chapter 694, Laws of 2023 (SB 521), was to ensure that wireless facilities can be installed along all interstate highways in Montana, as well, thus advancing both Montana and federal policies to promote the availability of broadband services using a mix of wireless and other technologies.
Response No. 11: The department acknowledges receipt of the comment regarding the subject of the rulemaking. The commenter did not suggest any change to proposed rule wording, and the new rules will be adopted as proposed.
Comment No. 12: A commenter stated wireless is a cost-effective way to provide broadband service, is faster to deploy, does not cause the disruption that underground trenching for fiber installation often requires, and will promote safety on roads and benefit communities where wireless service will extend beyond the right-of-way in which it is placed. This commenter stated the MOBILE NOW Act (2018) provides for broadband deployment, including wireless technology, while prohibiting state agencies from discriminating among different types of broadband providers.
Response No. 12: The department does not discriminate against wireless deployment in its right-of-way. All broadband applications including wireless will be approved based on available right-of-way and compliance with applicable laws and regulations. The department acknowledges wireless facilities fall within the definition of "eligible projects," found in 60-4-601(7)(a), MCA. The commenter did not suggest any change to proposed rule wording, and the new rules will be adopted as proposed.
Comment No. 13: A commenter stated the Montana Legislature, by passing Chapter 694, Laws of Montana (SB 521), had advanced both Montana and federal policies to promote the availability of broadband services to the public using a mix of wireless and other technologies.
Response No. 13: See response to Comment No. 12.
Comment No. 14: A commenter stated it supports the concepts contained in proposed New Rules I and II that advance the Legislature's objective to expand broadband across Montana, including wireless facilities.
Response No. 14: See response to Comment No. 12.
Comment No. 15: A commenter stated the department should include another reference to 60-4-601, MCA, in New Rule I(2), as well as a cross-reference to the UPAS and other department rules.
Response No. 15: Proposed New Rule I(2) cross-references the UPAS and administrative rules for all eligible facility installations. Reference to 60-4-601, MCA, is made in New Rule I(3)(e) and (4)(a). No further revision is necessary, and New Rule I will be adopted as proposed.
Comment No. 16: A commenter stated the language in New Rule I(4)(a) addressing right-of-way use agreements should be amended so that it either mirrors the definition of "eligible project" in Chapter 694, Laws of 2023 (SB 521), or replaces the words "both pipeline and fiber optic or other communications type cables and associated above-ground infrastructure facilities" with "eligible project as defined in MCA Section 60-4-601."
Response No. 16: Proposed New Rule I(4)(a) states: "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." No further revision is necessary, and New Rule I will be adopted as proposed.
Comment No. 17: A commenter stated New Rule I(3) requires applicants to pay an electronic use convenience fee, but the amount of that fee is not specified, and that New Rule I(5)(a) also requires applicants to pay an application fee of $100. The commenter then asks whether these fees may be duplicative.
Response No. 17: The electronic use convenience fee and the application fee are two different fees. The electronic use convenience fee described in New Rule I(3) is charged upon the initial UPAS submission (which covers the cost of the UPAS software system). New Rule I(5) distinguishes the application fee of $100 which is due upon department notification to applicant. No further revision is necessary, and New Rule I will be adopted as proposed.
Comment No. 18: A commenter stated New Rule I(4)(b) should be revised to provide the department with discretion to permit facilities within the clear recovery area if the department finds that the facilities will not adversely affect safety or maintenance.
Response No. 18: New Rule I(4)(b) states "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." No further revision is necessary, and New Rule I will be adopted as proposed.
Comment No. 19: A commenter stated New Rule I(9) should exempt from department approval those assignments of a right-of-way use agreement that do not change the entity that is in ultimate control of the facility owner. For example, entities holding right-of-way use agreements may desire to assign or transfer those agreements among subsidiaries or affiliated entities to streamline their organization or achieve other business purposes. The commenter stated there is no need for the department's review and approval in such instances because the entity that is ultimately in control of the facility owner remains the same.
Response No. 19: An assignment of a right-of-way use agreement, even among related entities, could be designed to transfer control of the facility and relieve the assignor of any and all duties, obligations, or liability associated with that agreement. Assignments, therefore, must be considered by the department on a case-by-case basis. New Rule I(9) will be adopted as proposed.
Comment No. 20: A commenter stated proposed New Rule I should be amended to incorporate or reference certain federal statutes and regulations delineating time constraints as well as the calculation of fees in relation to the permitting of wireless facilities.
Response No. 20: The department will comply with all applicable state and federal laws and regulations, to the best of its ability. In addition, 60-4-601, MCA, provides a timeline for applications and a method for calculating the right-of-way use agreement fees.
/s/ Valerie A. Balukas /s/ Dwane Kailey for Valerie A. Balukas Malcolm D. Long Rule Reviewer Director Department of Transportation
Certified to the Secretary of State August 29, 2023.
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