Arkansas Administrative Code › Agency 003 - DEPARTMENT OF COMMERCE › Division 25 - Arkansas Broadband Office › Rule 003.25.21-001 - Emergency Addendum to Arkansas Rural Connect Coronavirus Rule

Current through Register Vol. 49, No. 6, June, 2024
SECTION 1.
BACKGROUND
The Director of the Arkansas Economic Development Commission
				("Director") issues this emergency Rule to respond to urgent, telecommunication
				needs in this State for communities impacted by the COVID-19 pandemic. On or
				about February 21, 2020, the Director issued the Arkansas Rural Connect
				Broadband Rule (hereafter, the "Broadband Rule") to implement the Arkansas
				Rural Connect Program (hereafter, "Arkansas Rural Connect," or "Arkansas Rural
				Connect Program," or "ARC"). This Broadband Rule was promulgated prior to the
				issuance of State and Federal public health guidelines responding to the
				COVID-19 pandemic.
The COVID-19 pandemic has severely impacted the citizens of
				this State. COVID-19 has brought about an urgent and immediate need for
				broadband internet access. Broadband enables workers to telework, patients to
				use telemedicine services, K-12 and college students and unemployed workers in
				need of reskilling to participate in distance education, religious people to
				participate in online worship services, and all citizens to shop online,
				interact with friends through Skype and other video chat tools, and keep up
				with the latest news and public health guidelines.
The federal government has instituted a major relief effort
				under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The
				State benefited from the CARES Act but still was in need. The federal
				government then passed the American Rescue Plan Act (ARPA). These funds allowed
				states to broaden and strengthen its broadband infrastructure in unserved or
				underserved areas. All ARPA Fiscal Recovery Funds ("ARPA Funds") must be
				obligated by December 31, 2024. The period of performance will run until
				December 31, 2026.
The Arkansas Rural Connect program promotes broadband
				deployment in rural areas of Arkansas that lack meaningful and efficient
				broadband services. The ARC program and its purposes align with allowable uses
				of ARPA Funds.
Due to the urgent need for broadband for distance learning,
				telemedicine and the need for telework, necessitated by the COVID-19 pandemic,
				this addendum to the ARC Coronavirus Rule is being issued so that funds may be
				disbursed immediately and to accelerate the continued deployment of broadband
				network infrastructure in rural Arkansas, to the extent possible.
SECTION 2.
AUTHORITY
This Rule is authorized to be issued by the Director of the
				Arkansas Economic Development Commission ("AEDC") under Ark. Code Ann. §
									15-4-209(b)
				(5) which provides that AEDC may promulgate
				rules necessary to implement the programs and services offered by AEDC. On or
				about August 9, 2019, Governor Asa Hutchinson authorized a transfer of funding
				for the implementation and administration of the ARC Program to AEDC. Pursuant
				to Ark. Code Ann. §
									15-4-209(a)(1),
				AEDC is authorized to administer grants to assist with economic development in
				the state. The ARC Program is therefore authorized to administer ARC grants and
				to issue administrative rules under Ark. Code Ann. §
									15-4-209(b)
				(5) as a service offered by AEDC. This
				emergency rule is also authorized to be issued under Ark. Code Ann §
									25-15-204(c)
				of the Administrative Procedures Act. The Director finds that imminent peril to
				the public health, safety, or welfare or compliance with a federal law or
				regulation requires adoption of a rule upon less than thirty (30) days'
				notice.
SECTION 3.
PURPOSE AND QUALIFICATION FOR RECEIVING ARPA FUNDS
This purpose of this addendum is to conform the ARC Program
				with the Interim Final Rule for Coronavirus State and Local Fiscal Recovery
				Funds1 and any subsequently promulgated rules and
				guidance issued by the United States Department of Treasury (the "Federal
				Rules") whenever ARPA Funds are the source of funding for ARC grants. The ARC
				Broadband Rule and the ARC Coronavirus Rule will govern the terms of any grants
				issued using ARPA Funds except when the terms of the ARC Coronavirus Rule and
				ARC Broadband Rule conflict with the applicable Federal Rules, in which case
				the Federal Rules will control and be incorporated into the ARC program grant
				agreement with the ISP.
Under the Federal Rules, projects funded in whole or in part
				with ARPA Funds must be able to provide synchronous bandwidths of 100mbps
				download and 100mbps upload. Where impractical due to geographical,
				topographical or financial constraints the upload speed can be between 20mbps
				and a 100mbps in such instances. The internet service provider ("ISP") must
				submit a letter detailing why the upload speeds cannot be obtained at 100mbps
				and the Department of Commerce AEDC Broadband Office ("Commerce Broadband
				Office") will determine if the ISP letter is approved for the requested
				bandwidth modification. Those projects with an approved request for bandwidth
				modification must be scalable to 100mbps upload speed.
Guidance issued by the U.S. Treasury in connection with the
				promulgation of its interim final rule indicates that a fiber optic or wireline
				infrastructure may be used to build out broadband networks using ARPA Funds.
				The Commerce Broadband Office has requested clarification from the U.S.
				Treasury as to whether fixed wireless infrastructure may be used when funded
				with ARPA Funds. In the absence of confirmation from U.S. Treasury that ARPA
				Funds may be used to deploy fixed wireless infrastructure, the Commerce
				Broadband Office will not approve any ARC Program applications which rely on
				fixed wireless infrastructure.
131 C.F.R. § 35.6
				(2021).
SECTION 4.
DEADLINES, UNSERVED AND UNDERSERVED AREAS
Broadband infrastructure builds, using ARPA funds, must be
				completed no later than December 31, 2022. The Commerce Broadband Office will
				determine the dates by which awarded projects shall be completed within these
				allowed deadlines. Priority attention will be given to projects that 1) contain
				detailed and aggressive timelines for completing the project and 2) provide
				confirmation that the Mayor or County Judge, as co-applicant for the project,
				have been provided proposed pricing for the broadband services covered by the
				project. ARPA funds must be used in unserved and underserved areas in Arkansas.
				For purposes of ARPA funds, unserved and underserved areas are rural
				incorporated and unincorporated cities or communities where residents lack
				access to a wireline connection capable of reliably delivering at least minimum
				speeds of 25mbps download and 3mbps upload.
SECTION 5.
MAPS
The Commerce Broadband Office, at its discretion, may request
				from the applicants maps and other information necessary to make informed
				decisions as to the proper unserved or underserved locations in Arkansas to
				expend funds. Applicants that accept funding under this Rule shall follow all
				the requirements under the ARC rules.
Again, each project deployment shall be completed by the date
				specified by the Broadband Office, but in any event, each project funded with
				ARPA funds shall be completed no later than December 31, 2022.
SECTION 6.
EFFECTIVE
			 DATE
This emergency Rule is effective upon filing of the approved
				final rule with the Arkansas Secretary of State. This emergency rule will be
				effective for one hundred twenty (120) days.