Special Authority To Enable Funding of Broadband and Smart Utility Facilities Across Select Rural Development Programs, 71987-71988 [2023-23070]

Agencies

• DEPARTMENT OF AGRICULTURE
• Farm Service Agency
• Rural Business-Cooperative Service
• Rural Housing Service
• Rural Utilities Service

[Federal Register Volume 88, Number 201 (Thursday, October 19, 2023)]
[Rules and Regulations]
[Pages 71987-71988]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23070]



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Rules and Regulations
                                                Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
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under 50 titles pursuant to 44 U.S.C. 1510.

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Federal Register / Vol. 88, No. 201 / Thursday, October 19, 2023 / 
Rules and Regulations

[[Page 71987]]



DEPARTMENT OF AGRICULTURE

Rural Utilities Service

7 CFR Parts 1710, 1779, 1780 and 1783

Rural Housing Service

Rural Business-Cooperative Service

Rural Utilities Service

Farm Service Agency

7 CFR Parts 1942 and 1980

Rural Housing Service

7 CFR Part 3570

Rural Business-Cooperative Service

Rural Utilities Service

7 CFR Parts 4274, 4279, and 4280

[Docket No. RUS-20-TELECOM-0022]
RIN 0572-AC50


Special Authority To Enable Funding of Broadband and Smart 
Utility Facilities Across Select Rural Development Programs

AGENCY: Rural Utilities Service, Rural Housing Service, Rural Business-
Cooperative Service, USDA.

ACTION: Final rule, confirmation and response to comments.

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SUMMARY: The Rural Utilities Service, Rural Business-Cooperative 
Service, and Rural Housing Service, agencies that comprise the Rural 
Development (RD) Mission Area within the United States Department of 
Agriculture, published a final rule with comment in the Federal 
Register on September 15, 2020, to establish the special authority 
authorized by Section 6210 of the Agriculture Improvement Act of 2018, 
which will assist rural families and small businesses in gaining access 
to broadband service by permitting recipients of loans, grants, and 
loan guarantees from RD to use up to 10 percent of the amount provided 
to construct broadband infrastructure in areas not served by the 
minimum acceptable level of broadband service. The final rule described 
the procedures by which these agencies will consider projects eligible 
for special broadband authority. Through this action, the agencies are 
confirming the final rule as it was published and providing responses 
to the public comments that were received.

DATES: Effective October 19, 2023, the effective date of the final rule 
published September 15, 2020, at 85 FR 57077 is confirmed.

FOR FURTHER INFORMATION CONTACT: Michele Brooks, Director, Regulations 
Management Division, Innovation Center, Rural Development, U.S. 
Department of Agriculture, 1400 Independence Avenue SW, Washington, DC 
20250; telephone 202-690-1078, email [email protected].

SUPPLEMENTARY INFORMATION: Rural Development (RD) is a mission area 
within the United States Department of Agriculture (USDA) comprised of 
the Rural Utilities Service (RUS), Rural Housing Service (RHS) and 
Rural Business-Cooperative Service (RBCS). RD's mission is to increase 
economic opportunity and improve the quality of life for all rural 
Americans. Rural Development meets its mission by providing loans, loan 
guarantees, grants, and technical assistance through more than 40 
programs aimed at creating and improving housing, businesses, and 
infrastructure throughout rural America. Part of rebuilding America's 
infrastructure is investing in rural broadband.
    On December 20, 2018, Congress passed The Agricultural Improvement 
Act of 2018 (2018 Farm Bill) (Pub. L. 115-334). In addition to sweeping 
changes in broadband program authorities, Congress provided for special 
use of funding from other RD programs for broadband deployment in 
Section 6210, ``Smart Utility Authority for Broadband.'' The provision 
granted the Secretary of Agriculture the discretion to allow recipients 
of grants, loans, or loan guarantees under RD programs to use not more 
than 10 percent of such funding to finance broadband infrastructure in 
areas not served by the minimum acceptable level of broadband service 
and which will not result in competitive harm to a current RD loan, 
grant, or loan guarantee.
    The final rule that published September 15, 2020 (85 FR 57077), 
included a 60-day comment period that ended on November 16, 2020. The 
agency received comments from eight respondents that included industry 
associations, individuals, and a non-profit organization. All eight 
respondents were supportive of the final rule.
    Respondent 1: The respondent, an industry association, provided 
constructive feedback related to four specific issues and areas of 
concern.
    (1) The evaluation of the 10 percent rule could complicate or delay 
overall approval of an application for a grant or loan product. 
Evaluation of the broadband portion of loans under the final rule 
should not result in a delay of loan approval or processing.
    Agency response: The respondent's concern for not delaying the 
processing or approval of grant or loan products is acknowledged. The 
Agencies will work within their available resources to timely review 
and process any and all requests.
    (2) Based on prior experience with other RD programs, the 
respondent urged the agencies to provide the applicant with access to 
the response/challenge filed in reply to their application and be given 
a chance to respond within a reasonable period and to verify incumbent 
claims of adequate service throughout the contested area.
    Agency response: Through the public notice response process 
currently in place, the Agency can conduct an on-site review of the 
proposed service area to determine if adequate broadband exists. If an 
area of the proposed funded service area is found to be ineligible, the 
Agency will work with applicants to modify the proposed service area 
accordingly.
    (3) The Agencies should clarify that it is requesting incumbents to 
provide actual speeds and results of speed test to verify the consumer 
experience and to provide pricing data for locations in question and 
urged the Agencies to avoid use of unreliable Broadband Data sets for 
verification.
    Agency response: The Agency acknowledges the respondents comment 
and will take this recommendation into

[[Page 71988]]

consideration for future modifications to the public notice response 
process.
    (4) The respondent also urged the RUS to regularly update the 
minimum acceptable level of broadband service.
    Agency response: The minimum acceptable level of broadband service 
is designed to change with the ever-increasing bandwidth requirements 
that the public requires. The Agency has implemented procedures in 7 
CFR 1738.2 that allow the definition of broadband service to be updated 
any time an application window is opened through a notice in the 
Federal Register or required by statute.
    Respondent 2: The respondent, an industry association, provided 
three specific comments as part of their response.
    (1) The respondent reminded the Agency it must comply with 
requirements applicable to all broadband funding to include notice and 
challenge, reporting and Agency coordination.
    Agency response: The Agency acknowledges this comment and will 
continue to follow the regulations and processes it has in place for 
its existing broadband lending programs.
    (2) The respondent requested that RUS clarify than an area is only 
eligible for funding if there is no broadband service available, 
whether fixed or mobile, that reaches the designated speeds.
    Agency response: Section 1980.1207(b) states that if RUS determines 
that the minimum acceptable level of broadband service is available in 
the proposed retail service area after review of information submitted 
from service providers, if any, and all available data on broadband 
availability, the Awarding Agency shall not approve the use of funds 
for such purpose. The Agency feels this section addresses the 
respondents comment and no changes are needed.
    (3) The respondent encouraged RUS to adopt new rules for all of its 
broadband funding programs through notice and comment rulemaking 
procedures.
    Agency response: The Agency will continue to follow all rulemaking 
procedures as applicable.
    Respondent 3: The respondent, an industry association, encouraged 
careful precision when multiplying the number of programs supporting 
broadband. The respondent encourages USDA and the FCC programs to work 
in concert stating that Section 6210 funds should be used in concert 
with USF to deploy the fastest, most reliable networks possible. The 
respondent noted ``as more RD programs support broadband network 
deployment under Sec 6210, it will remain essential to use the 
additional funds to supplement the work of existing programs instead of 
supporting an additional ISP in a rural area that will not even support 
one provider on its own.'' The respondent suggests that the rule 
``include a provision indicating that, for an area where FCC data 
indicate that a provider is receiving High-Cost USF support and is 
subject to the corresponding obligation to deploy a network that will 
deliver 25/3 Mbps or greater service, no other provider will be 
eligible to obtain funds pursuant to Section 6210 in that specific 
area.''
    Agency response: The Agency is committed to continuing to work with 
the FCC and other federal partners to ensure that their programs and 
RUS' programs are complementary of each other, not duplicative.
    Respondent 4: The respondent, an industry association, provided a 
resolution that outlines the challenges that rural organizations and 
businesses have in identifying and accessing federal broadband 
resources. The resolution also provided generalized recommendations to 
Congress and federal agencies concerning adopting higher broadband 
speeds as the standard, strengthening local partnerships and 
coordination, addressing application barriers for businesses, local 
governments, cooperatives and Tribes; allocating designated portions of 
available funding to support projects on tribal lands and to leverage 
community anchor institutions to spur connectivity.
    Agency response: Respondent four comments were more general and not 
specifically related to suggested changes for this final rule. The 
Agency appreciates the respondent's commitment to Rural America and to 
maintaining positive local and federal relationships.
    Respondent 5, a university student, suggested the Agency increase 
the funding amount from 10 percent to 15 percent.
    Agency response: Section 6210 of the 2018 Farm Bill specifically 
states 10 percent. An increase of this percentage would require a 
statutory change.
    Respondent 6, an individual, petitioned USDA to consider three 
changes:
    (1) To define the minimum acceptable level of broadband service 
from 25MB down and 3MB up to 50MB down and 10MP up speeds.
    Agency response: As stated in an earlier response, the minimum 
acceptable level of broadband service is designed to change with the 
ever-increasing bandwidth requirements that the public requires and to 
comply with statutory requirements. The Agency has implemented 
procedures in 7 CFR 1738.2 that allow the definition of broadband 
speeds to be updated any time an application window is opened through a 
notice in the Federal Register.
    (2) Consider a temporary interest rate reduction on loans for 
organizations that provide broadband services to families engaged in 
distance education at a reduced cost.
    Agency response: Section 6210 of the 2018 Farm Bill does not 
include a provision for an interest rate reduction when implementing 
this special broadband authority.
    (3) Increase the percentage organizations can spend on broadband 
and smart utility facilities from 10 percent to 15 percent.
    Agency response: As stated in a previous response, Section 6210 of 
the 2018 Farm Bill specifically limits such assistance to 10 percent. 
An increase of this percentage would require a statutory change.
    Respondent 7, an individual, offered his support of USDA 
establishing the authority authorized by section 6210 of the 
Agricultural Improvement Act of 2018.
    Agency response: The Agency appreciates the respondent's comments 
and support of this final rule.
    Respondent 8, a non-profit organization, did not offer comments 
specific to the rule. Instead, they outlined the importance of accurate 
broadband mapping data and their proposed solution to help with this 
undertaking.
    Agency response: The Agency appreciates the respondent's efforts to 
improve broadband mapping data and their commitment to Rural America.
    The Agency evaluated the responsive comments and based on analysis, 
confirms the final rule without change.

Farah Ahmad,
Deputy Under Secretary for Rural Development.
[FR Doc. 2023-23070 Filed 10-18-23; 8:45 am]
BILLING CODE 3410-15-P