FCC 1.20008 Revised as of October 1, 2007
Goto Year:2006 |
2008
Sec. 1.20008 Penalties.
In the event of a telecommunications carrier's violation of this subchapter,
the Commission shall enforce the penalties articulated in 47 U.S.C. 503(b)
of the Communications Act of 1934 and 47 CFR 1.80.
Appendix A to Part 1—A Plan of Cooperative Procedure in Matters and Cases Under
the Provisions of Section 410 of the Communications Act of 1934
(Approved by the Federal Communications Commission October 25, 1938, and
approved by the National Association of Railroad and Utilities Commissioners
on November 17, 1938.)
preliminary statement concerning the purpose and effect of the plan
Section 410 of the Communications Act of 1934 authorizes cooperation between
the Federal Communications Commission, hereinafter called the Federal
Commission, and the State commissions of the several States, in the
administration of said Act. Subsection (a) authorizes the reference of any
matter arising in the administration of said Act to a board to be composed
of a member or members from each of the States in which the wire, or radio
communication affected by or involved in the proceeding takes place, or is
proposed. Subsection (b) authorizes conferences by the Federal Commission
with State commissions regarding the relationship between rate structures,
accounts, charges, practices, classifications, and regulations of carriers
subject to the jurisdiction of such State commissions and of said Federal
Commission and joint hearings with State commissions in connection with any
matter with respect to which the Federal Commission is authorized to act.
Obviously, it is impossible to determine in advance what matters should be
the subject of a conference, what matters should be referred to a board, and
what matters should be heard at a joint hearing of State commissions and the
Federal Commission. It is understood, therefore, that the Federal Commission
or any State commission will freely suggest cooperation with respect to any
proceedings or matter affecting any carrier subject to the jurisdiction of
said Federal Commission and of a State commission, and concerning which it
is believed that cooperation will be in the public interest.
To enable this to be done, whenever a proceeding shall be instituted before
any commission, Federal or State, in which another commission is believed to
be interested, notice should be promptly given each such interested
commission by the commission before which the proceeding has been
instituted. Inasmuch, however, as failure to give notice as contemplated by
the provisions of this plan will sometimes occur purely through
inadvertence, any such failure should not operate to deter any commission
from suggesting that any such proceeding be made the subject matter of
cooperative action, if cooperation therein is deemed desirable.
It is understood that each commission whether or not represented in the
National Association of Railroad and Utilities Commissioners, must determine
its own course of action with respect to any proceeding in the light of the
law under which, at any given time, it is called upon to act, and must be
guided by its own views of public policy; and that no action taken by such
Association can in any respect prejudice such freedom of action. The
approval by the Association of this plan of cooperative procedure, which was
jointly prepared by the Association's standing Committee on Cooperation
between Federal and State commissions and said Federal Commission, is
accordingly recommendatory only; but such plan is designed to be, and it is
believed that it will be, a helpful step in the promotion of cooperative
relations between the State commissions and said Federal Commission.
notice of institution of proceeding
Whenever there shall be instituted before the Federal Commission any
proceeding involving the rates of any telephone or telegraph carrier, the
State commissions of the States affected thereby will be notified
immediately thereof by the Federal Commission, and each notice given a State
commission will advise such commission that, if it deems the proceeding one
which should be considered under the cooperative provisions of the Act, it
should either directly or through the National Association of Railroad and
Utilities Commissioners, notify the Federal Commission as to the nature of
its interest in said matter and request a conference, the creation of a
joint board, or a joint hearing as may be desired, indicating its preference
and the reasons therefor. Upon receipt of such request the Federal
Commission will consider the same and may confer with the commission making
the request and with other interested commission, or with representatives of
the National Association of Railroad and Utilities Commissioners, in such
manner as may be most suitable; and if cooperation shall appear to be
practicable and desirable, shall so advise each interested State commission,
directly, when such cooperation will be by joint conference or by reference
to a joint board appointed under said sec. 410 (a), and, as hereinafter
provided, when such cooperation will be by a joint hearing under said sec.
410(b).
Each State commission should in like manner notify the Federal Commission of
any proceeding instituted before it involving the toll telephone rates or
the telegraph rates of any carrier subject to the jurisdiction of the
Federal Commission.
procedure governing joint conferences
The Federal Commission, in accordance with the indicated procedure, will
confer with any State commission regarding any matter relating to the
regulation of public utilities subject to the jurisdiction of either
commission. The commission desiring a conference upon any such matter should
notify the other without delay, and thereupon the Federal Commission will
promptly arrange for a conference in which all interested State commissions
will be invited to be present.
procedure governing matters referred to a board
Whenever the Federal Commission, either upon its own motion or upon the
suggestion of a State commission, or at the request of any interested party,
shall determine that it is desirable to refer a matter arising in the
administration of the Communications Act of 1934 to a board to be composed
of a member or members from the State or States affected or to be affected
by such matter, the procedure shall be as follows:
The Federal Commission will send a request to each interested State
commission to nominate a specified number of members to serve on such board.
The representation of each State concerned shall be equal, unless one or
more of the States affected chooses to waive such right of equal
representation. When the member or members of any board have been nominated
and appointed, in accordance with the provisions of the Communications Act
of 1934, the Federal Commission will make an order referring the particular
matter to such board, and such order shall fix the time and place of
hearing, define the force and effect the action of the board shall have, and
the manner in which its proceedings shall be conducted. The rules of
practice and procedure, as from time to time adopted or prescribed by the
Federal Commission, shall govern such board, as far as applicable.
procedure governing joint hearings
Whenever the Federal Commission, either upon its own motion or upon
suggestions made by or on behalf of any interested State commission or
commissions, shall determine that a joint hearing under said sec. 410(b) is
desirable in connection with any matter pending before said Federal
Commission, the procedure shall be as follows:
(a) The Federal Commission will notify the general solicitor of the National
Association of Railroad and Utilities Commissioners that said Association,
or, if not more than eight States are within the territory affected by the
proceeding, the State commissions interested, are invited to name
Cooperating Commissioners to sit with the Federal Commission for the hearing
and consideration of said proceeding.
(b) Upon receipt of any notice from said Federal Commission inviting
cooperation, if not more than eight States are involved, the general
solicitor shall at once advise the State commissions of said States, they
being represented in the membership of the association, of the receipt of
such notice, and shall request each such commission to give advice to him in
writing, before a date to be indicated by him in his communication
requesting such advice (1) whether such commission will cooperate in said
proceeding, (2) if it will, by what commissioner it will be represented
therein.
(c) Upon the basis of replies received, the general solicitor shall advise
the Federal Commission what States, if any, are desirous of making the
proceeding cooperative and by what commissioners they will be represented,
and he shall give like advice to each State commission interested therein.
(d) If more than eight States are interested in the proceeding, because
within territory for which rates will be under consideration therein, the
general solicitor shall advise the president of the association that the
association is invited to name a cooperating committee of State
commissioners representing the States interested in said proceeding.
The president of the association shall thereupon advise the general
solicitor in writing (1) whether the invitation is accepted on behalf of the
association, and (2) the names of commissioners selected to sit as a
cooperating committee. The president of the association shall have the
authority to accept or to decline said invitation for the association, and
to determine the number of commissioners who shall be named on the
cooperating committee, provided that his action shall be concurred in by the
chairman of the association's executive committee. In the event of any
failure of the president of the association and chairman of its executive
committee to agree, the second vice president of the association (or the
chairman of its committee on cooperation between State and Federal
commissions, if there shall be no second vice president) shall be consulted,
and the majority opinion of the three shall prevail. Consultations and
expressions of opinion may be by mail or telegraph.
(e) If any proceeding, involving more than eight States, is pending before
the Federal Commission, in which cooperation has not been invited by that
Commission, which the association's president and the first and second vice
presidents, or any two of them, consider should be made a cooperating
proceeding, they may instruct the general solicitor to suggest to the
Federal Commission that the proceeding be made a cooperative proceeding; and
any State commission considering that said proceeding should be made
cooperative may request the president of the association or the chairman of
its executive committee to make such suggestion after consideration with the
executive officers above named. If said Federal Commission shall assent to
the suggestion, made as aforesaid, the president of the association shall
have the same authority to proceed, and shall proceed in the appointment of
a cooperating committee, as is provided in other cases involving more than
eight States, wherein the Federal Commission has invited cooperation, and
the invitation has been accepted.
(f) Whenever any case is pending before the Federal Commission involving
eight States or less, which a commission of any of said States considers
should be made cooperative, such commission, either directly or through the
general solicitor of the association, may suggest to the Federal Commission
that the proceeding be made cooperative. If said Federal Commission accedes
to such suggestion, it will notify the general solicitor of the association
to that effect and thereupon the general solicitor shall proceed as is
provided in such case when the invitation has been made by the Federal
Commission without State commission suggestion.
appointment of cooperating commissioners by the president
In the appointment of any cooperating committee, the president of the
association shall make appointments only from commissions of the States
interested in the particular proceeding in which the committee is to serve.
He shall exercise his best judgment to select cooperating commissioners who
are especially qualified to serve upon cooperating committees by reason of
their ability and fitness; and in no case shall he appoint a commissioner
upon a cooperating committee until he shall have been advised by such
commissioner that it will be practicable for him to attend the hearings in
the proceeding in which the committee is to serve, including the arguments
therein, and the cooperative conferences, which may be held following the
submission of the proceeding, to an extent that will reasonably enable him
to be informed upon the issues in the proceeding and to form a reasonable
judgment in the matters to be determined.
tenure of cooperators
(a) No State commissioner shall sit in a cooperative proceeding under this
plan except a commissioner who has been selected by his commission to
represent it in a proceeding involving eight States or less, or has been
selected by the president of the association to sit in a case involving more
than eight States, in the manner hereinbefore provided.
(b) A commissioner who has been selected, as hereinbefore provided, to serve
as a member of a cooperating committee in any proceeding, shall without
further appointment, and without regard to the duration of time involved,
continue to serve in said proceeding until the final disposition thereof,
including hearings and conferences after any order or reopening, provided
that he shall continue to be a State commissioner.
(c) No member of a cooperating committee shall have any right or authority
to designate another commissioner to serve in his place at any hearing or
conference in any proceeding in which he has been appointed to serve.
(d) Should a vacancy occur upon any cooperating committee, in a proceeding
involving more than eight States, by reason of the death of any cooperating
commissioner, or of his ceasing to be a State commissioner, or of other
inability to serve, it shall be the duty of the president of the association
to fill the vacancy by appointment, if, after communication with the
chairman of the cooperating committee, it be deemed necessary to fill such
vacancy.
(e) In the event of any such vacancy occurring upon a cooperating committee
involving not more than eight States, the vacancy shall be filled by the
commission from which the vacancy occurs.
cooperating committee to determine respecting any report of statement of its
attitude
(a) Whenever a cooperating committee shall have concluded its work, or shall
deem such course advisable, the committee shall consider whether it is
necessary and desirable to make a report to the interested State
commissions, and, if it shall determine to make a report, it shall cause the
same to be distributed through the secretary of the association, or through
the general solicitor to all interested commissions.
(b) If a report of the Federal Commission will accompany any order to be
made in said proceeding, the Federal Commission will state therein the
concurrence or nonconcurrence of said cooperating committee in the decision
or order of said Federal Commission.
construction hereof in certain respects expressly provided
It is understood and provided that no State or States shall be deprived of
the right of participation and cooperation as hereinbefore provided because
of nonmembership in the association. With respect to any such State or
States, all negotiations herein specified to be carried on between the
Federal Commission and any officer of such association shall be conducted by
the Federal Commission directly with the chairman of the commission of such
State or States.
[ 28 FR 12462 , Nov. 22, 1963, as amended at 29 FR 4801 , Apr. 4, 1964]
Appendix B to Part 1—Nationwide Programmatic Agreement for the Collocation of
Wireless Antennas
Nationwide Programmatic Agreement for the Collocation of Wireless Antennas
Executed by the Federal Communications Commission, the National Conference
of State Historic Preservation Officers and the Advisory Council on Historic
Preservation
Whereas, the Federal Communications Commission (FCC) establishes rules and
procedures for the licensing of wireless communications facilities in the
United States and its Possessions and Territories; and,
Whereas, the FCC has largely deregulated the review of applications for the
construction of individual wireless communications facilities and, under
this framework, applicants are required to prepare an Environmental
Assessment (EA) in cases where the applicant determines that the proposed
facility falls within one of certain environmental categories described in
the FCC's rules (47 CFR 1.1307), including situations which may affect
historical sites listed or eligible for listing in the National Register of
Historic Places (“National Register”); and,
Whereas, Section 106 of the National Historic Preservation Act (16 U.S.C.
470 et seq. ) (“the Act”) requires federal agencies to take into account the
effects of their undertakings on historic properties and to afford the
Advisory Council on Historic Preservation (Council) a reasonable opportunity
to comment; and,
Whereas, Section 800.14(b) of the Council's regulations, “Protection of
Historic Properties” (36 CFR 800.14(b)), allows for programmatic agreements
to streamline and tailor the Section 106 review process to particular
federal programs; and,
Whereas, in August 2000, the Council established a Telecommunications
Working Group to provide a forum for the FCC, Industry representatives,
State Historic Preservation Officers (SHPOs) and Tribal Historic
Preservation Officers (THPOs), and the Council to discuss improved
coordination of Section 106 compliance regarding wireless communications
projects affecting historic properties; and,
Whereas, the FCC, the Council and the Working Group have developed this
Collocation Programmatic Agreement in accordance with 36 CFR 800.14(b) to
address the Section 106 review process as it applies to the collocation of
antennas (collocation being defined in Stipulation I.A below); and,
Whereas, the FCC encourages collocation of antennas where technically and
economically feasible, in order to reduce the need for new tower
construction; and,
Whereas, the parties hereto agree that the effects on historic properties of
collocations of antennas on towers, buildings and structures are likely to
be minimal and not adverse, and that in the cases where an adverse effect
might occur, the procedures provided and referred to herein are proper and
sufficient, consistent with Section 106, to assure that the FCC will take
such effects into account; and
Whereas, the execution of this Nationwide Collocation Programmatic Agreement
will streamline the Section 106 review of collocation proposals and thereby
reduce the need for the construction of new towers, thereby reducing
potential effects on historic properties that would otherwise result from
the construction of those unnecessary new towers; and,
Whereas, the FCC and the Council have agreed that these measures should be
incorporated into a Nationwide Programmatic Agreement to better manage the
Section 106 consultation process and streamline reviews for collocation of
antennas; and,
Whereas, since collocations reduce both the need for new tower construction
and the potential for adverse effects on historic properties, the parties
hereto agree that the terms of this Agreement should be interpreted and
implemented wherever possible in ways that encourage collocation; and
Whereas, the parties hereto agree that the procedures described in this
Agreement are, with regard to collocations as defined herein, a proper
substitute for the FCC's compliance with the Council's rules, in accordance
and consistent with Section 106 of the National Historic Preservation Act
and its implementing regulations found at 36 CFR part 800; and
Whereas, the FCC has consulted with the National Conference of State
Historic Preservation Officers (NCSHPO) and requested the President of
NCSHPO to sign this Nationwide Collocation Programmatic Agreement in
accordance with 36 CFR Section 800.14(b)(2)(iii); and,
Whereas, the FCC sought comment from Indian tribes and Native Hawaiian
Organizations regarding the terms of this Nationwide Programmatic Agreement
by letters of January 11, 2001 and February 8, 2001; and,
Whereas, the terms of this Programmatic Agreement do not apply on “tribal
lands” as defined under Section 800.16(x) of the Council's regulations, 36
CFR 800.16(x) (“Tribal lands means all lands within the exterior boundaries
of any Indian reservation and all dependent Indian communities.”); and,
Whereas, the terms of this Programmatic Agreement do not preclude Indian
tribes or Native Hawaiian Organizations from consulting directly with the
FCC or its licensees, tower companies and applicants for antenna licenses
when collocation activities off tribal lands may affect historic properties
of religious and cultural significance to Indian tribes or Native Hawaiian
organizations; and,
Whereas, the execution and implementation of this Nationwide Collocation
Programmatic Agreement will not preclude members of the public from filing
complaints with the FCC or the Council regarding adverse effects on historic
properties from any existing tower or any activity covered under the terms
of this Programmatic Agreement.
Now therefore, the FCC, the Council, and NCSHPO agree that the FCC will meet
its Section 106 compliance responsibilities for the collocation of antennas
as follows.
Stipulations
The FCC, in coordination with licensees, tower companies and applicants for
antenna licenses, will ensure that the following measures are carried out.
I. Definitions
For purposes of this Nationwide Programmatic Agreement, the following
definitions apply.
A. ”Collocation” means the mounting or installation of an antenna on an
existing tower, building or structure for the purpose of transmitting and/or
receiving radio frequency signals for communications purposes.
B. ”Tower” is any structure built for the sole or primary purpose of
supporting FCC-licensed antennas and their associated facilities.
C.”Substantial increase in the size of the tower” means:
(1) The mounting of the proposed antenna on the tower would increase the
existing height of the tower by more than 10%, or by the height of one
additional antenna array with separation from the nearest existing antenna
not to exceed twenty feet, whichever is greater, except that the mounting of
the proposed antenna may exceed the size limits set forth in this paragraph
if necessary to avoid interference with existing antennas; or
(2) The mounting of the proposed antenna would involve the installation of
more than the standard number of new equipment cabinets for the technology
involved, not to exceed four, or more than one new equipment shelter; or
(3) The mounting of the proposed antenna would involve adding an
appurtenance to the body of the tower that would protrude from the edge of
the tower more than twenty feet, or more than the width of the tower
structure at the level of the appurtenance, whichever is greater, except
that the mounting of the proposed antenna may exceed the size limits set
forth in this paragraph if necessary to shelter the antenna from inclement
weather or to connect the antenna to the tower via cable; or
(4) The mounting of the proposed antenna would involve excavation outside
the current tower site, defined as the current boundaries of the leased or
owned property surrounding the tower and any access or utility easements
currently related to the site.
II. Applicability
A. This Nationwide Collocation Programmatic Agreement applies only to the
collocation of antennas as defined in Stipulation I.A, above.
B. This Nationwide Collocation Programmatic Agreement does not cover any
Section 106 responsibilities that federal agencies other than the FCC may
have with regard to the collocation of antennas.
III. Collocation of Antennas on Towers Constructed on or Before March 16,
2001
A. An antenna may be mounted on an existing tower constructed on or before
March 16, 2001 without such collocation being reviewed under the
consultation process set forth under Subpart B of 36 CFR Part 800, unless:
1. The mounting of the antenna will result in a substantial increase in the
size of the tower as defined in Stipulation I.C, above; or
2. The tower has been determined by the FCC to have an effect on one or more
historic properties, unless such effect has been found to be not adverse
through a no adverse effect finding, or if found to be adverse or
potentially adverse, has been resolved, such as through a conditional no
adverse effect determination, a Memorandum of Agreement, a programmatic
agreement, or otherwise in compliance with Section 106 and Subpart B of 36
CFR Part 800; or
3. The tower is the subject of a pending environmental review or related
proceeding before the FCC involving compliance with Section 106 of the
National Historic Preservation Act; or
4. The collocation licensee or the owner of the tower has received written
or electronic notification that the FCC is in receipt of a complaint from a
member of the public, a SHPO or the Council, that the collocation has an
adverse effect on one or more historic properties. Any such complaint must
be in writing and supported by substantial evidence describing how the
effect from the collocation is adverse to the attributes that qualify any
affected historic property for eligibility or potential eligibility for the
National Register.
IV. Collocation of Antennas on Towers Constructed After March 16, 2001
A. An antenna may be mounted on an existing tower constructed after March
16, 2001 without such collocation being reviewed under the consultation
process set forth under Subpart B of 36 CFR Part 800, unless:
1. The Section 106 review process for the tower set forth in 36 CFR Part 800
and any associated environmental reviews required by the FCC have not been
completed; or
2. The mounting of the new antenna will result in a substantial increase in
the size of the tower as defined in Stipulation I.C, above; or
3. The tower as built or proposed has been determined by the FCC to have an
effect on one or more historic properties, unless such effect has been found
to be not adverse through a no adverse effect finding, or if found to be
adverse or potentially adverse, has been resolved, such as through a
conditional no adverse effect determination, a Memorandum of Agreement, a
programmatic agreement, or otherwise in compliance with Section 106 and
Subpart B of 36 CFR Part 800; or
4. The collocation licensee or the owner of the tower has received written
or electronic notification that the FCC is in receipt of a complaint from a
member of the public, a SHPO or the Council, that the collocation has an
adverse effect on one or more historic properties. Any such complaint must
be in writing and supported by substantial evidence describing how the
effect from the collocation is adverse to the attributes that qualify any
affected historic property for eligibility or potential eligibility for the
National Register.
V. Collocation of Antennas on Buildings and Non-Tower Structures Outside of
Historic Districts
A. An antenna may be mounted on a building or non-tower structure without
such collocation being reviewed under the consultation process set forth
under Subpart B of 36 CFR Part 800, unless:
1. The building or structure is over 45 years old;^1 or
^1 Suitable methods for determining the age of a building include, but are
not limited to: (1) obtaining the opinon of a consultant who meets the
Secretary of Interior's Professional Qualifications Standards (36 CFR Part
61) or (2) consulting public records.
2. The building or structure is inside the boundary of a historic district,
or if the antenna is visible from the ground level of the historic district,
the building or structure is within 250 feet of the boundary of the historic
district; or
3. The building or non-tower structure is a designated National Historic
Landmark, or listed in or eligible for listing in the National Register of
Historic Places based upon the review of the licensee, tower company or
applicant for an antenna license; or
4. The collocation licensee or the owner of the tower has received written
or electronic notification that the FCC is in receipt of a complaint from a
member of the public, a SHPO or the Council, that the collocation has an
adverse effect on one or more historic properties. Any such complaint must
be in writing and supported by substantial evidence describing how the
effect from the collocation is adverse to the attributes that qualify any
affected historic property for eligibility or potential eligibility for the
National Register.
B. Subsequent to the collocation of an antenna, should the SHPO/THPO or
Council determine that the collocation of the antenna or its associated
equipment installed under the terms of Stipulation V has resulted in an
adverse effect on historic properties, the SHPO/THPO or Council may notify
the FCC accordingly. The FCC shall comply with the requirements of Section
106 and 36 CFR Part 800 for this particular collocation.
VI. Reservation of Rights
Neither execution of this Agreement, nor implementation of or compliance
with any term herein shall operate in any way as a waiver by any party
hereto, or by any person or entity complying herewith or affected hereby, of
a right to assert in any court of law any claim, argument or defense
regarding the validity or interpretation of any provision of the National
Historic Preservation Act (16 U.S.C. 470 et seq. ) or its implementing
regulations contained in 36 CFR Part 800.
VII. Monitoring
A. FCC licensees shall retain records of the placement of all licensed
antennas, including collocations subject to this Nationwide Programmatic
Agreement, consistent with FCC rules and procedures.
B. The Council will forward to the FCC and the relevant SHPO any written
objections it receives from members of the public regarding a collocation
activity or general compliance with the provisions of this Nationwide
Programmatic Agreement within thirty (30) days following receipt of the
written objection. The FCC will forward a copy of the written objection to
the appropriate licensee or tower owner.
VIII. Amendments
If any signatory to this Nationwide Collocation Programmatic Agreement
believes that this Agreement should be amended, that signatory may at any
time propose amendments, whereupon the signatories will consult to consider
the amendments. This agreement may be amended only upon the written
concurrence of the signatories.
IX. Termination
A. If the FCC determines that it cannot implement the terms of this
Nationwide Collocation Programmatic Agreement, or if the FCC, NCSHPO or the
Council determines that the Programmatic Agreement is not being properly
implemented by the parties to this Programmatic Agreement, the FCC, NCSHPO
or the Council may propose to the other signatories that the Programmatic
Agreement be terminated.
B. The party proposing to terminate the Programmatic Agreement shall notify
the other signatories in writing, explaining the reasons for the proposed
termination and the particulars of the asserted improper implementation.
Such party also shall afford the other signatories a reasonable period of
time of no less than thirty (30) days to consult and remedy the problems
resulting in improper implementation. Upon receipt of such notice, the
parties shall consult with each other and notify and consult with other
entities that are either involved in such implementation or that would be
substantially affected by termination of this Agreement, and seek
alternatives to termination. Should the consultation fail to produce within
the original remedy period or any extension, a reasonable alternative to
termination, a resolution of the stated problems, or convincing evidence of
substantial implementation of this Agreement in accordance with its terms ,
this Programmatic Agreement shall be terminated thirty days after notice of
termination is served on all parties and published in theFederal Register.
C. In the event that the Programmatic Agreement is terminated, the FCC shall
advise its licensees and tower construction companies of the termination and
of the need to comply with any applicable Section 106 requirements on a
case-by-case basis for collocation activities.
X. Annual Meeting of the Signatories
The signatories to this Nationwide Collocation Programmatic Agreement will
meet on or about September 10, 2001, and on or about September 10 in each
subsequent year, to discuss the effectiveness of this Agreement, including
any issues related to improper implementation, and to discuss any potential
amendments that would improve the effectiveness of this Agreement.
XI. Duration of the Programmatic Agreement
This Programmatic Agreement for collocation shall remain in force unless the
Programmatic Agreement is terminated or superseded by a comprehensive
Programmatic Agreement for wireless communications antennas.
Execution of this Nationwide Programmatic Agreement by the FCC, NCSHPO and
the Council, and implementation of its terms, evidence that the FCC has
afforded the Council an opportunity to comment on the collocation as
described herein of antennas covered under the FCC's rules, and that the FCC
has taken into account the effects of these collocations on historic
properties in accordance with Section 106 of the National Historic
Preservation Act and its implementing regulations, 36 CFR Part 800.
Federal Communications Commission
____________________
Date:____________________
Advisory Council on Historic Preservation
____________________
Date:____________________
National Conference of State Historic Preservation Officers
____________________
Date:____________________
[ 70 FR 578 , Jan. 4, 2005]
Appendix C to Part 1—Nationwide Programmatic Agreement Regarding the Section
106 National Historic Preservation Act Review Process
Nationwide Programmatic Agreement for Review of Effects on Historic
Properties for Certain Undertakings Approved by the Federal Communications
Commission
Executed by the Federal Communications Commission, the National Conference
of State Historic Preservation Officers and the Advisory Council on Historic
Preservation
September 2004
Introduction
Whereas, Section 106 of the National Historic Preservation Act of 1966, as
amended (“NHPA”) (codified at 16 U.S.C. 470f), requires federal agencies to
take into account the effects of certain of their Undertakings on Historic
Properties (see Section II, below), included in or eligible for inclusion in
the National Register of Historic Places (“National Register”), and to
afford the Advisory Council on Historic Preservation (“Council”) a
reasonable opportunity to comment with regard to such Undertakings; and
Whereas, under the authority granted by Congress in the Communications Act
of 1934, as amended (47 U.S.C. 151 et seq. ), the Federal Communications
Commission (“Commission”) establishes rules and procedures for the licensing
of non-federal government communications services, and the registration of
certain antenna structures in the United States and its Possessions and
Territories; and
Whereas, Congress and the Commission have deregulated or streamlined the
application process regarding the construction of individual Facilities in
many of the Commission's licensed services; and
Whereas, under the framework established in the Commission's environmental
rules, 47 CFR 1.1301–1.1319, Commission licensees and applicants for
authorizations and antenna structure registrations are required to prepare,
and the Commission is required to independently review and approve, a
pre-construction Environmental Assessment (“EA”) in cases where a proposed
tower or antenna may significantly affect the environment, including
situations where a proposed tower or antenna may affect Historic Properties
that are either listed in or eligible for listing in the National Register,
including properties of religious and cultural importance to an Indian tribe
or Native Hawaiian organization (“NHO”) that meet the National Register
criteria; and
Whereas, the Council has adopted rules implementing Section 106 of the NHPA
(codified at 36 CFR Part 800) and setting forth the process, called the
“Section 106 process,” for complying with the NHPA; and
Whereas, pursuant to the Commission's rules and the terms of this Nationwide
Programmatic Agreement for Review of Effects on Historic Properties for
Certain Undertakings Approved by the Federal Communications Commission
(“Nationwide Agreement”), Applicants ( see Section II.A.2) have been
authorized, consistent with the terms of the memorandum from the Council to
the Commission, titled “Delegation of Authority for the Section 106 Review
of Telecommunications Projects,” dated September 21, 2000, to initiate,
coordinate, and assist the Commission with compliance with many aspects of
the Section 106 review process for their Facilities; and
Whereas, in August 2000, the Council established a Telecommunications
Working Group (the “Working Group”) to provide a forum for the Commission,
the Council, the National Conference of State Historic Preservation Officers
(“Conference”), individual State Historic Preservation Officers (“SHPOs”),
Tribal Historic Preservation Officers (“THPOs”), other tribal
representatives, communications industry representatives, and other
interested members of the public to discuss improved Section 106 compliance
and to develop methods of streamlining the Section 106 review process; and
Whereas, Section 214 of the NHPA (16 U.S.C. 470v) authorizes the Council to
promulgate regulations implementing exclusions from Section 106 review, and
Section 800.14(b) of the Council's regulations (36 CFR 800.14(b)) allows for
programmatic agreements to streamline and tailor the Section 106 review
process to particular federal programs, if they are consistent with the
Council's regulations; and
Whereas, the Commission, the Council, and the Conference executed on March
16, 2001, the Nationwide Programmatic Agreement for the Collocation of
Wireless Antennas (the “Collocation Agreement”), in order to streamline
review for the collocation of antennas on existing towers and other
structures and thereby reduce the need for the construction of new towers
(Attachment 1 to this Nationwide Agreement); and
Whereas, the Council, the Conference, and the Commission now agree it is
desirable to further streamline and tailor the Section 106 review process
for Facilities that are not excluded from Section 106 review under the
Collocation Agreement while protecting Historic Properties that are either
listed in or eligible for listing in the National Register; and
Whereas, the Working Group agrees that a nationwide programmatic agreement
is a desirable and effective way to further streamline and tailor the
Section 106 review process as it applies to Facilities; and
Whereas, this Nationwide Agreement will, upon its execution by the Council,
the Conference, and the Commission, constitute a substitute for the
Council's rules with respect to certain Commission Undertakings; and
Whereas, the Commission sought public comment on a draft of this Nationwide
Agreement through a Notice of Proposed Rulemaking released on June 9, 2003;
Whereas, the Commission has actively sought and received participation and
comment from Indian tribes and NHOs regarding this Nationwide Agreement; and
Whereas, the Commission has consulted with federally recognized Indian
tribes regarding this Nationwide Agreement ( see Report and Order, FCC
04–222, at 31); and
Whereas, this Nationwide Agreement provides for appropriate public
notification and participation in connection with the Section 106 process;
and
Whereas, Section 101(d)(6) of the NHPA provides that federal agencies “shall
consult with any Indian tribe or Native Hawaiian organization” that attaches
religious and cultural significance to properties of traditional religious
and cultural importance that may be determined to be eligible for inclusion
in the National Register and that might be affected by a federal undertaking
(16 U.S.C. 470a(d)(6)); and
Whereas, the Commission has adopted a “Statement of Policy on Establishing a
Government-to-Government Relationship with Indian Tribes” dated June 23,
2000, pursuant to which the Commission: recognizes the unique legal
relationship that exists between the federal government and Indian tribal
governments, as reflected in the Constitution of the United States,
treaties, federal statutes, Executive orders, and numerous court decisions;
affirms the federal trust relationship with Indian tribes, and recognizes
that this historic trust relationship requires the federal government to
adhere to certain fiduciary standards in its dealings with Indian tribes;
commits to working with Indian tribes on a government-to-government basis
consistent with the principles of tribal self-governance; commits, in
accordance with the federal government's trust responsibility, and to the
extent practicable, to consult with tribal governments prior to implementing
any regulatory action or policy that will significantly or uniquely affect
tribal governments, their land and resources; strives to develop working
relationships with tribal governments, and will endeavor to identify
innovative mechanisms to facilitate tribal consultations in the Commission's
regulatory processes; and endeavors to streamline its administrative process
and procedures to remove undue burdens that its decisions and actions place
on Indian tribes; and
Whereas, the Commission does not delegate under this Programmatic Agreement
any portion of its responsibilities to Indian tribes and NHOs, including its
obligation to consult under Section 101(d)(6) of the NHPA; and
Whereas, the terms of this Nationwide Agreement are consistent with and do
not attempt to abrogate the rights of Indian tribes or NHOs to consult
directly with the Commission regarding the construction of Facilities; and
Whereas, the execution and implementation of this Nationwide Agreement will
not preclude Indian tribes or NHOs, SHPO/THPOs, local governments, or
members of the public from filing complaints with the Commission or the
Council regarding effects on Historic Properties from any Facility or any
activity covered under the terms of the Nationwide Agreement; and
Whereas, Indian tribes and NHOs may request Council involvement in Section
106 cases that present issues of concern to Indian tribes or NHOs ( see 36
CFR Part 800, Appendix A, Section (c)(4)); and
Whereas, the Commission, after consulting with federally recognized Indian
tribes, has developed an electronic Tower Construction Notification System
through which Indian tribes and NHOs may voluntarily identify the geographic
areas in which Historic Properties to which they attach religious and
cultural significance may be located, Applicants may ascertain which
participating Indian tribes and NHOs have identified such an interest in the
geographic area in which they propose to construct Facilities, and
Applicants may voluntarily provide electronic notification of proposed
Facilities construction for the Commission to forward to participating
Indian tribes, NHOs, and SHPOs/THPOs; and
Whereas, the Council, the Conference and the Commission recognize that
Applicants' use of qualified professionals experienced with the NHPA and
Section 106 can streamline the review process and minimize potential delays;
and
Whereas, the Commission has created a position and hired a cultural
resources professional to assist with the Section 106 process; and
Whereas, upon execution of this Nationwide Agreement, the Council may still
provide advisory comments to the Commission regarding the coordination of
Section 106 reviews; notify the Commission of concerns raised by consulting
parties and the public regarding an Undertaking; and participate in the
resolution of adverse effects for complex, controversial, or other
non-routine projects;
Now Therefore, in consideration of the above provisions and of the covenants
and agreements contained herein, the Council, the Conference and the
Commission (the “Parties”) agree as follows:
I. Applicability and Scope of This Nationwide Agreement
A. This Nationwide Agreement (1) Excludes from Section 106 review certain
Undertakings involving the construction and modification of Facilities, and
(2) streamlines and tailors the Section 106 review process for other
Undertakings involving the construction and modification of Facilities. An
illustrative list of Commission activities in relation to which Undertakings
covered by this Agreement may occur is provided as Attachment 2 to this
Agreement.
B. This Nationwide Agreement applies only to federal Undertakings as
determined by the Commission (“Undertakings”). The Commission has sole
authority to determine what activities undertaken by the Commission or its
Applicants constitute Undertakings within the meaning of the NHPA. Nothing
in this Agreement shall preclude the Commission from revisiting or affect
the existing ability of any person to challenge any prior determination of
what does or does not constitute an Undertaking. Maintenance and servicing
of Towers, Antennas, and associated equipment are not deemed to be
Undertakings subject to Section 106 review.
C. This Agreement does not apply to Antenna Collocations that are exempt
from Section 106 review under the Collocation Agreement ( see Attachment 1).
Pursuant to the terms of the Collocation Agreement, such Collocations shall
not be subject to the Section 106 review process and shall not be submitted
to the SHPO/THPO for review. This Agreement does apply to collocations that
are not exempt from Section 106 review under the Collocation Agreement.
D. This Agreement does not apply on “tribal lands” as defined under Section
800.16(x) of the Council's regulations, 36 CFR Sec. 800.16(x) (“Tribal lands
means all lands within the exterior boundaries of any Indian reservation and
all dependent Indian communities.”). This Nationwide Agreement, however,
will apply on tribal lands should a tribe, pursuant to appropriate tribal
procedures and upon reasonable notice to the Council, Commission, and
appropriate SHPO/THPO, elect to adopt the provisions of this Nationwide
Agreement. Where a tribe that has assumed SHPO functions pursuant to Section
101(d)(2) of the NHPA (16 U.S.C. 470(d)(2)) has agreed to application of
this Nationwide Agreement on tribal lands, the term SHPO/THPO denotes the
Tribal Historic Preservation Officer with respect to review of proposed
Undertakings on those tribal lands. Where a tribe that has not assumed SHPO
functions has agreed to application of this Nationwide Agreement on tribal
lands, the tribe may notify the Commission of the tribe's intention to
perform the duties of a SHPO/THPO, as defined in this Nationwide Agreement,
for proposed Undertakings on its tribal lands, and in such instances the
term SHPO/THPO denotes both the State Historic Preservation Officer and the
tribe's authorized representative. In all other instances, the term
SHPO/THPO denotes the State Historic Preservation Officer.
E. This Nationwide Agreement governs only review of Undertakings under
Section 106 of the NHPA. Applicants completing the Section 106 review
process under the terms of this Nationwide Agreement may not initiate
construction without completing any environmental review that is otherwise
required for effects other than historic preservation under the Commission's
rules ( See 47 CFR 1.1301–1.1319). Completion of the Section 106 review
process under this Nationwide Agreement satisfies an Applicant's obligations
under the Commission's rules with respect to Historic Properties, except for
Undertakings that have been determined to have an adverse effect on Historic
Properties and that therefore require preparation and filing of an
Environmental Assessment ( See 47 CFR 1.1307(a)(4)).
F. This Nationwide Agreement does not govern any Section 106
responsibilities that agencies other than the Commission may have with
respect to those agencies' federal Undertakings.
II. Definitions
A. The following terms are used in this Nationwide Agreement as defined
below:
1. Antenna. An apparatus designed for the purpose of emitting radio
frequency (“RF”) radiation, to be operated or operating from a fixed
location pursuant to Commission authorization, for the transmission of
writing, signs, signals, data, images, pictures, and sounds of all kinds,
including the transmitting device and any on-site equipment, switches,
wiring, cabling, power sources, shelters or cabinets associated with that
antenna and added to a Tower, structure, or building as part of the original
installation of the antenna. For most services, an Antenna will be mounted
on or in, and is distinct from, a supporting structure such as a Tower,
structure or building. However, in the case of AM broadcast stations, the
entire Tower or group of Towers constitutes the Antenna for that station.
For purposes of this Nationwide Agreement, the term Antenna does not include
unintentional radiators, mobile stations, or devices authorized under Part
15 of the Commission's rules.
2. Applicant. A Commission licensee, permittee, or registration holder, or
an applicant or prospective applicant for a wireless or broadcast license,
authorization or antenna structure registration, and the duly authorized
agents, employees, and contractors of any such person or entity.
3. Area of Potential Effects (“APE”). The geographic area or areas within
which an Undertaking may directly or indirectly cause alterations in the
character or use of Historic Properties, if any such properties exist.
4. Collocation. The mounting or installation of an Antenna on an existing
Tower, building, or structure for the purpose of transmitting radio
frequency signals for telecommunications or broadcast purposes.
5. Effect. An alteration to the characteristics of a Historic Property
qualifying it for inclusion in or eligibility for the National Register.
6. Experimental Authorization. An authorization issued to conduct
experimentation utilizing radio waves for gathering scientific or technical
operation data directed toward the improvement or extension of an
established service and not intended for reception and use by the general
public. “Experimental Authorization” does not include an “Experimental
Broadcast Station” authorized under Part 74 of the Commission's rules.
7. Facility. A Tower or an Antenna. The term Facility may also refer to a
Tower and its associated Antenna(s).
8. Field Survey. A research strategy that utilizes one or more visits to the
area where construction is proposed as a means of identifying Historic
Properties.
9. Historic Property. Any prehistoric or historic district, site, building,
structure, or object included in, or eligible for inclusion in, the National
Register maintained by the Secretary of the Interior. This term includes
artifacts, records, and remains that are related to and located within such
properties. The term includes properties of traditional religious and
cultural importance to an Indian tribe or NHO that meet the National
Register criteria.
10. National Register. The National Register of Historic Places, maintained
by the Secretary of the Interior's office of the Keeper of the National
Register.
11. SHPO/THPO Inventory. A set of records of previously gathered
information, authorized by state or tribal law, on the absence, presence and
significance of historic and archaeological resources within the state or
tribal land.
12. Special Temporary Authorization. Authorization granted to a permittee or
licensee to allow the operation of a station for a limited period at a
specified variance from the terms of the station's permanent authorization
or requirements of the Commission's rules applicable to the particular class
or type of station.
13. Submission Packet. The document to be submitted initially to the
SHPO/THPO to facilitate review of the Applicant's findings and any
determinations with regard to the potential impact of the proposed
Undertaking on Historic Properties in the APE. There are two Submission
Packets: (a) The New Tower Submission Packet (FCC Form 620) ( See Attachment
3) and (b) The Collocation Submission Packet (FCC Form 621) ( See Attachment
4). Any documents required to be submitted along with a Form are part of the
Submission Packet.
14. Tower. Any structure built for the sole or primary purpose of supporting
Commission-licensed or authorized Antennas, including the on-site fencing,
equipment, switches, wiring, cabling, power sources, shelters, or cabinets
associated with that Tower but not installed as part of an Antenna as
defined herein.
B. All other terms not defined above or elsewhere in this Nationwide
Agreement shall have the same meaning as set forth in the Council's rules
section on Definitions (36 CFR 800.16) or the Commission's rules (47 CFR
Chapter I).
C. For the calculation of time periods under this Agreement, “days” mean
“calendar days.” Any time period specified in the Agreement that ends on a
weekend or a Federal or State holiday is extended until the close of the
following business day.
D. Written communications include communications by e-mail or facsimile.
III. Undertakings Excluded From Section 106 Review
Undertakings that fall within the provisions listed in the following
sections III.A. through III.F. are excluded from Section 106 review by the
SHPO/THPO, the Commission, and the Council, and, accordingly, shall not be
submitted to the SHPO/THPO for review. The determination that an exclusion
applies to an Undertaking should be made by an authorized individual within
the Applicant's organization, and Applicants should retain documentation of
their determination that an exclusion applies. Concerns regarding the
application of these exclusions from Section 106 review may be presented to
and considered by the Commission pursuant to Section XI.
A. Enhancement of a tower and any associated excavation that does not
involve a collocation and does not substantially increase the size of the
existing tower, as defined in the Collocation Agreement. For towers
constructed after March 16, 2001, this exclusion applies only if the tower
has completed the Section 106 review process and any associated
environmental reviews required by the Commission.
B. Construction of a replacement for an existing communications tower and
any associated excavation that does not substantially increase the size of
the existing tower under elements 1–3 of the definition as defined in the
Collocation Agreement ( see Attachment 1 to this Agreement, Stipulation
1.c.1–3) and that does not expand the boundaries of the leased or owned
property surrounding the tower by more than 30 feet in any direction or
involve excavation outside these expanded boundaries or outside any existing
access or utility easement related to the site. For towers constructed after
March 16, 2001, this exclusion applies only if the tower has completed the
Section 106 review process and any associated environmental reviews required
by the Commission's rules.
C. Construction of any temporary communications Tower, Antenna structure, or
related Facility that involves no excavation or where all areas to be
excavated will be located in areas described in Section VI.D.2.c.i below,
including but not limited to the following:
1. A Tower or Antenna authorized by the Commission for a temporary period,
such as any Facility authorized by a Commission grant of Special Temporary
Authority (“STA”) or emergency authorization;
2. A cell on wheels (COW) transmission Facility;
3. A broadcast auxiliary services truck, TV pickup station, remote pickup
broadcast station ( e.g. , electronic newsgathering vehicle) authorized
under Part 74 or temporary fixed or transportable earth station in the fixed
satellite service ( e.g. , satellite newsgathering vehicle) authorized under
Part 25;
4. A temporary ballast mount Tower;
5. Any Facility authorized by a Commission grant of an experimental
authorization.
For purposes of this Section III.C, the term “temporary” means “for no more
than twenty-four months duration except in the case of those Facilities
associated with national security.”
D. Construction of a Facility less than 200 feet in overall height above
ground level in an existing industrial park,^1 commercial strip mall,^2 or
shopping center^3 that occupies a total land area of 100,000 square feet or
more, provided that the industrial park, strip mall, or shopping center is
not located within the boundaries of or within 500 feet of a Historic
Property, as identified by the Applicant after a preliminary search of
relevant records. Proposed Facilities within this exclusion must complete
the process of participation of Indian tribes and NHOs pursuant to Section
IV of this Agreement. If as a result of this process the Applicant or the
Commission identifies a Historic Property that may be affected, the
Applicant must complete the Section 106 review process pursuant to this
Agreement notwithstanding the exclusion.
^1 A tract of land that is planned, developed, and operated as an integrated
facility for a number of individual industrial uses, with consideration to
transportation facilities, circulation, parking, utility needs, aesthetics
and compatibility.
^2 A structure or grouping of structures, housing retail business, set back
far enough from the street to permit parking spaces to be placed between the
building entrances and the public right of way.
^3 A group of commercial establishments planned, constructed, and managed as
a total entity, with customer and employee parking provided on-site,
provision for goods delivery separated from customer access, aesthetic
considerations and protection from the elements, and landscaping and signage
in accordance with an approved plan.
E. Construction of a Facility in or within 50 feet of the outer boundary of
a right-of-way designated by a Federal, State, local, or Tribal government
for the location of communications Towers or above-ground utility
transmission or distribution lines and associated structures and equipment
and in active use for such purposes, provided:
1. The proposed Facility would not constitute a substantial increase in
size, under elements 1–3 of the definition in the Collocation Agreement,
over existing structures located in the right-of-way within the vicinity of
the proposed Facility, and;
2. The proposed Facility would not be located within the boundaries of a
Historic Property, as identified by the Applicant after a preliminary search
of relevant records.
Proposed Facilities within this exclusion must complete the process of
participation of Indian tribes and NHOs pursuant to Section IV of this
Agreement. If as a result of this process the Applicant or the Commission
identifies a Historic Property that may be affected, the Applicant must
complete the Section 106 review process pursuant to this Agreement
notwithstanding the exclusion.
F. Construction of a Facility in any area previously designated by the
SHPO/THPO at its discretion, following consultation with appropriate Indian
tribes and NHOs, as having limited potential to affect Historic Properties.
Such designation shall be documented by the SHPO/THPO and made available for
public review.
IV. Participation of Indian Tribes and Native Hawaiian Organizations in
Undertakings Off Tribal Lands
A. The Commission recognizes its responsibility to carry out consultation
with any Indian tribe or NHO that attaches religious and cultural
significance to a Historic Property if the property may be affected by a
Commission undertaking. This responsibility is founded in Sections
101(d)(6)(a–b) and 106 of the NHPA (16 U.S.C. 470a(d)(6)(a–b) and 470f), the
regulations of the Council (36 CFR Part 800), the Commission's environmental
regulations (47 CFR 1.1301–1.1319), and the unique legal relationship that
exists between the federal government and Indian Tribal governments, as
reflected in the Constitution of the United States, treaties, federal
statutes, Executive orders, and numerous court decisions. This historic
trust relationship requires the federal government to adhere to certain
fiduciary standards in its dealings with Indian Tribes. (Commission
Statement of Policy on Establishing a Government-to-Government Relationship
with Indian Tribes).
B. As an initial step to enable the Commission to fulfill its duty of
consultation, Applicants shall use reasonable and good faith efforts to
identify any Indian tribe or NHO that may attach religious and cultural
significance to Historic Properties that may be affected by an Undertaking.
Applicants should be aware that frequently, Historic Properties of religious
and cultural significance to Indian tribes and NHOs are located on
ancestral, aboriginal, or ceded lands of such tribes and organizations and
Applicants should take this into account when complying with their
responsibilities. Where an Indian tribe or NHO has voluntarily provided
information to the Commission's Tower Construction Notification System
regarding the geographic areas in which Historic Properties of religious and
cultural significance to that Indian tribe or NHO may be located, reference
to the Tower Construction Notification System shall constitute a reasonable
and good faith effort at identification with respect to that Indian tribe or
NHO. In addition, such reasonable and good faith efforts may include, but
are not limited to, seeking relevant information from the relevant
SHPO/THPO, Indian tribes, state agencies, the U.S. Bureau of Indian Affairs
(“BIA”), or, where applicable, any federal agency with land holdings within
the state ( e.g. , the U.S. Bureau of Land Management). Although these
agencies can provide useful information in identifying potentially affected
Indian tribes, contacting BIA, the SHPO or other federal and state agencies
is not a substitute for seeking information directly from Indian tribes that
may attach religious and cultural significance to a potentially affected
Historic Property, as described below.
C. After the Applicant has identified Indian tribes and NHOs that may attach
religious and cultural significance to potentially affected Historic
Properties, the Commission has the responsibility, and the Commission
imposes on the Applicant the obligation, to ensure that contact is made at
an early stage in the planning process with such Indian tribes and NHOs in
order to begin the process of ascertaining whether such Historic Properties
may be affected. This initial contact shall be made by the Commission or the
Applicant, in accordance with the wishes of the Indian tribe or NHO. This
contact shall constitute only an initial effort to contact the Indian tribe
or NHO, and does not in itself fully satisfy the Applicant's obligations or
substitute for government-to-government consultation unless the Indian tribe
or NHO affirmatively disclaims further interest or the Indian tribe or NHO
has otherwise agreed that such contact is sufficient. Depending on the
preference of the Indian tribe or NHO, the means of initial contact may
include, without limitation:
1. Electronic notification through the Commission's Tower Construction
Notification System;
2. Written communication from the Commission at the request of the
Applicant;
3. Written, e-mail, or telephonic notification directly from the Applicant
to the Indian tribe or NHO;
4. Any other means that the Indian Tribe or NHO has informed the Commission
are acceptable, including through the adoption of best practices pursuant to
Section IV.J, below; or
5. Any other means to which an Indian tribe or NHO and an Applicant have
agreed pursuant to Section IV.K, below.
D. The Commission will use its best efforts to ascertain the preferences of
each Indian tribe and NHO for initial contact, and to make these preferences
available to Applicants in a readily accessible format. In addition, the
Commission will use its best efforts to ascertain, and to make available to
Applicants, any locations or types of construction projects, within the
broad geographic areas in which Historic Properties of religious and
cultural significance to an Indian tribe or NHO may be located, for which
the Indian tribe or NHO does not expect notification. To the extent they are
comfortable doing so, the Commission encourages Indian tribes and NHOs to
accept the Tower Construction Notification System as an efficient and
thorough means of making initial contact.
E. In the absence of any contrary indication of an Indian tribe's or NHO's
preference, where an Applicant does not have a pre-existing relationship
with an Indian tribe or NHO, initial contact with the Indian tribe or NHO
shall be made through the Commission. Unless the Indian tribe or NHO has
indicated otherwise, the Commission may make this initial contact through
the Tower Construction Notification System. An Applicant that has a
pre-existing relationship with an Indian tribe or NHO shall make initial
contact in the manner that is customary to that relationship or in such
other manner as may be accepted by the Indian tribe or NHO. An Applicant
shall copy the Commission on any initial written or electronic direct
contact with an Indian tribe or NHO, unless the Indian tribe or NHO has
agreed through a best practices agreement or otherwise that such copying is
not necessary.
F. Applicants' direct contacts with Indian tribes and NHOs, where accepted
by the Indian tribe or NHO, shall be made in a sensitive manner that is
consistent with the reasonable wishes of the Indian tribe or NHO, where such
wishes are known or can be reasonably ascertained. In general, unless an
Indian tribe or NHO has provided guidance to the contrary, Applicants shall
follow the following guidelines:
1. All communications with Indian tribes shall be respectful of tribal
sovereignty;
2. Communications shall be directed to the appropriate representative
designated or identified by the tribal government or other governing body;
3. Applicants shall provide all information reasonably necessary for the
Indian tribe or NHO to evaluate whether Historic Properties of religious and
cultural significance may be affected. The parties recognize that it may be
neither feasible nor desirable to provide complete information about the
project at the time of initial contact, particularly when initial contact is
made early in the process. Unless the Indian tribe or NHO affirmatively
disclaims interest, however, it shall be provided with complete information
within the earliest reasonable time frame;
4. The Applicant must ensure that Indian tribes and NHOs have a reasonable
opportunity to respond to all communications. Ordinarily, 30 days from the
time the relevant tribal or NHO representative may reasonably be expected to
have received an inquiry shall be considered a reasonable time. Should a
tribe or NHO request additional time to respond, the Applicant shall afford
additional time as reasonable under the circumstances. However, where
initial contact is made automatically through the Tower Construction
Notification System, and where an Indian tribe or NHO has stated that it is
not interested in reviewing proposed construction of certain types or in
certain locations, the Applicant need not await a response to contact
regarding proposed construction meeting that description;
5. Applicants should not assume that failure to respond to a single
communication establishes that an Indian tribe or NHO is not interested in
participating, but should make a reasonable effort to follow up.
G. The purposes of communications between the Applicant and Indian tribes or
NHOs are: (1) To ascertain whether Historic Properties of religious and
cultural significance to the Indian tribe or NHO may be affected by the
undertaking and consultation is therefore necessary, and (2) where possible,
with the concurrence of the Indian tribe or NHO, to reach an agreement on
the presence or absence of effects that may obviate the need for
consultation. Accordingly, the Applicant shall promptly refer to the
Commission any request from a federally recognized Indian tribe for
government-to-government consultation. The Commission will then carry out
government-to-government consultation with the Indian tribe. Applicants
shall also seek guidance from the Commission in the event of any substantive
or procedural disagreement with an Indian tribe or NHO, or if the Indian
tribe or NHO does not respond to the Applicant's inquiries. Applicants are
strongly advised to seek guidance from the Commission in cases of doubt.
H. If an Indian tribe or NHO indicates that a Historic Property of religious
and cultural significance to it may be affected, the Applicant shall invite
the commenting tribe or organization to become a consulting party. If the
Indian tribe or NHO agrees to become a consulting party, it shall be
afforded that status and shall be provided with all of the information,
copies of submissions, and other prerogatives of a consulting party as
provided for in 36 CFR 800.2.
I. Information regarding Historic Properties to which Indian tribes or NHOs
attach religious and cultural significance may be highly confidential,
private, and sensitive. If an Indian tribe or NHO requests confidentiality
from the Applicant, the Applicant shall honor this request and shall, in
turn, request confidential treatment of such materials or information in
accordance with the Commission's rules and Section 304 of the NHPA (16
U.S.C. 470w–3(a)) in the event they are submitted to the Commission. The
Commission shall provide such confidential treatment consistent with its
rules and applicable federal laws. Although the Commission will strive to
protect the privacy interests of all parties, the Commission cannot
guarantee its own ability or the ability of Applicants to protect
confidential, private, and sensitive information from disclosure under all
circumstances.
J. In order to promote efficiency, minimize misunderstandings, and ensure
that communications among the parties are made in accordance with each
Indian tribe or NHO's reasonable preferences, the Commission will use its
best efforts to arrive at agreements regarding best practices with Indian
tribes and NHOs and their representatives. Such best practices may include
means of making initial contacts with Indian tribes and NHOs as well as
guidelines for subsequent discussions between Applicants and Indian tribes
or NHOs in fulfillment of the requirements of the Section 106 process. To
the extent possible, the Commission will strive to achieve consistency among
best practice agreements with Indian tribes and NHOs. Where best practices
exist, the Commission encourages Applicants to follow those best practices.
K. Nothing in this Section shall be construed to prohibit or limit
Applicants and Indian tribes or NHOs from entering into or continuing
pre-existing arrangements or agreements governing their contacts, provided
such arrangements or agreements are otherwise consistent with federal law
and no modification is made in the roles of other parties to the process
under this Nationwide Agreement without their consent. Documentation of such
alternative arrangements or agreements should be filed with the Commission.
V. Public Participation and Consulting Parties
A. On or before the date an Applicant submits the appropriate Submission
Packet to the SHPO/THPO, as prescribed by Section VII, below, the Applicant
shall provide the local government that has primary land use jurisdiction
over the site of the planned Undertaking with written notification of the
planned Undertaking.
B. On or before the date an Applicant submits the appropriate Submission
Packet to the SHPO/THPO, as prescribed by Section VII, below, the Applicant
shall provide written notice to the public of the planned Undertaking. Such
notice may be accomplished (1) through the public notification provisions of
the relevant local zoning or local historic preservation process for the
proposed Facility; or (2) by publication in a local newspaper of general
circulation. In the alternative, an Applicant may use other appropriate
means of providing public notice, including seeking the assistance of the
local government.
C. The written notice to the local government and to the public shall
include: (1) The location of the proposed Facility including its street
address; (2) a description of the proposed Facility including its height and
type of structure; (3) instruction on how to submit comments regarding
potential effects on Historic Properties; and (4) the name, address, and
telephone number of a contact person.
D. A SHPO/THPO may make available lists of other groups, including Indian
tribes, NHOs and organizations of Indian tribes or NHOs, which should be
provided notice for Undertakings to be located in particular areas.
E. If the Applicant receives a comment regarding potentially affected
Historic Properties, the Applicant shall consider the comment and either
include it in the initial submission to the SHPO/THPO, or, if the initial
submission has already been made, immediately forward the comment to the
SHPO/THPO for review. An Applicant need not submit to the SHPO/THPO any
comment that does not substantially relate to potentially affected Historic
Properties.
F. The relevant SHPO/THPO, Indian tribes and NHOs that attach religious and
cultural significance to Historic Properties that may be affected, and the
local government are entitled to be consulting parties in the Section 106
review of an Undertaking. The Council may enter the Section 106 process for
a given Undertaking, on Commission invitation or on its own decision, in
accordance with 36 CFR Part 800, Appendix A. An Applicant shall consider all
written requests of other individuals and organizations to participate as
consulting parties and determine which should be consulting parties. An
Applicant is encouraged to grant such status to individuals or organizations
with a demonstrated legal or economic interest in the Undertaking, or
demonstrated expertise or standing as a representative of local or public
interest in historic or cultural resources preservation. Any such individual
or organization denied consulting party status may petition the Commission
for review of such denial. Applicants may seek assistance from the
Commission in identifying and involving consulting parties. All entities
granted consulting party status shall be identified to the SHPO/THPO as part
of the Submission Packet.
G. Consulting parties are entitled to: (1) Receive notices, copies of
submission packets, correspondence and other documents provided to the
SHPO/THPO in a Section 106 review; and (2) be provided an opportunity to
have their views expressed and taken into account by the Applicant, the
SHPO/THPO and, where appropriate, by the Commission.
VI. Identification, Evaluation, and Assessment of Effects
A. In preparing the Submission Packet for the SHPO/THPO and consulting
parties pursuant to Section VII of this Nationwide Agreement and Attachments
3 and 4, the Applicant shall: (1) Define the area of potential effects
(APE); (2) identify Historic Properties within the APE; (3) evaluate the
historic significance of identified properties as appropriate; and (4)
assess the effects of the Undertaking on Historic Properties. The standards
and procedures described below shall be applied by the Applicant in
preparing the Submission Packet, by the SHPO/THPO in reviewing the
Submission Packet, and where appropriate, by the Commission in making
findings.
B. Exclusion of Specific Geographic Areas from Review.
The SHPO/THPO, consistent with relevant State or tribal procedures, may
specify geographic areas in which no review is required for direct effects
on archeological resources or no review is required for visual effects.
C. Area of Potential Effects.
1. The term “Area of Potential Effects” is defined in Section II.A.3 of this
Nationwide Agreement. For purposes of this Nationwide Agreement, the APE for
direct effects and the APE for visual effects are further defined and are to
be established as described below.
2. The APE for direct effects is limited to the area of potential ground
disturbance and any property, or any portion thereof, that will be
physically altered or destroyed by the Undertaking.
3. The APE for visual effects is the geographic area in which the
Undertaking has the potential to introduce visual elements that diminish or
alter the setting, including the landscape, where the setting is a
character-defining feature of a Historic Property that makes it eligible for
listing on the National Register.
4. Unless otherwise established through consultation with the SHPO/THPO, the
presumed APE for visual effects for construction of new Facilities is the
area from which the Tower will be visible:
a. Within a half mile from the tower site if the proposed Tower is 200 feet
or less in overall height;
b. Within3/4of a mile from the tower site if the proposed Tower is more than
200 but no more than 400 feet in overall height; or
c. Wthin 11/2miles from the proposed tower site if the proposed Tower is
more than 400 feet in overall height.
5. In the event the Applicant determines, or the SHPO/THPO recommends, that
an alternative APE for visual effects is necessary, the Applicant and the
SHPO/THPO may mutually agree to an alternative APE.
6. If the Applicant and the SHPO/THPO, after using good faith efforts,
cannot reach an agreement on the use of an alternative APE, either the
Applicant or the SHPO/THPO may submit the issue to the Commission for
resolution. The Commission shall make its determination concerning an
alternative APE within a reasonable time.
D. Identification and Evaluation of Historic Properties.
1. Identification and Evaluation of Historic Properties Within the APE for
Visual Effects.
a. Except to identify Historic Properties of religious and cultural
significance to Indian tribes and NHOs, Applicants shall identify Historic
Properties within the APE for visual effects by reviewing the following
records. Applicants are required to review such records only to the extent
they are available at the offices of the SHPO/THPO or can be found in
publicly available sources identified by the SHPO/THPO. With respect to
these properties, Applicants are not required to undertake a Field Survey or
other measures other than reviewing these records in order to identify
Historic Properties:
i. Properties listed in the National Register;
ii. Properties formally determined eligible for listing by the Keeper of the
National Register;
iii. Properties that the SHPO/THPO certifies are in the process of being
nominated to the National Register;
iv. Properties previously determined eligible as part of a consensus
determination of eligibility between the SHPO/THPO and a Federal Agency or
local government representing the Department of Housing and Urban
Development (HUD); and
v. Properties listed in the SHPO/THPO Inventory that the SHPO/THPO has
previously evaluated and found to meet the National Register criteria, and
that are identified accordingly in the SHPO/THPO Inventory.
b. At an early stage in the planning process and in accordance with Section
IV of this Nationwide Agreement, the Commission or the Applicant, as
appropriate, shall gather information from Indian tribes or NHOs identified
pursuant to Section IV.B to assist in identifying Historic Properties of
religious and cultural significance to them within the APE for visual
effects. Such information gathering may include a Field Survey where
appropriate.
c. Based on the sources listed above and public comment received pursuant to
Section V of this Nationwide Agreement, the Applicant shall include in its
Submission Packet a list of properties it has identified as apparent
Historic Properties within the APE for visual effects.
i. During the review period described in Section VII.A, the SHPO/THPO may
identify additional properties included in the SHPO/THPO Inventory and
located within the APE that the SHPO/THPO considers eligible for listing on
the National Register, and notify the Applicant pursuant to Section VII.A.4.
ii. The SHPO/THPO may also advise the Applicant that previously identified
properties on the list no longer qualify for inclusion in the National
Register.
d. Applicants are encouraged at their discretion to use the services of
professionals who meet the Secretary of the Interior's Professional
Qualification Standards when identifying Historic Properties within the APE
for visual effects.
e. Applicants are not required to evaluate the historic significance of
properties identified pursuant to Section VI.D.1.a., but may rely on the
previous evaluation of these properties. Applicants may, at their
discretion, evaluate whether such properties are no longer eligible for
inclusion in the National Register and recommend to the SHPO/THPO their
removal from consideration. Any such evaluation shall be performed by a
professional who meets the Secretary of the Interior's Professional
Qualification Standards.
2. Identification and Evaluation of Historic Properties Within the APE for
Direct Effects.
a. In addition to the properties identified pursuant to Section VI.D.1,
Applicants shall make a reasonable good faith effort to identify other above
ground and archeological Historic Properties, including buildings,
structures, and historic districts, that lie within the APE for direct
effects. Such reasonable and good faith efforts may include a Field Survey
where appropriate.
b. Identification and evaluation of Historic Properties within the APE for
direct effects, including any finding that an archeological Field Survey is
not required, shall be undertaken by a professional who meets the Secretary
of the Interior's Professional Qualification Standards. Identification and
evaluation relating to archeological resources shall be performed by a
professional who meets the Secretary of the Interior's Professional
Qualification Standards in archeology.
c. Except as provided below, the Applicant need not undertake a Field Survey
for archeological resources where:
i. the depth of previous disturbance exceeds the proposed construction depth
(excluding footings and other anchoring mechanisms) by at least 2 feet as
documented in the Applicant's siting analysis; or
ii. geomorphological evidence indicates that cultural resource-bearing soils
do not occur within the project area or may occur but at depths that exceed
2 feet below the proposed construction depth.
d. At an early stage in the planning process and in accordance with Section
IV of this Nationwide Agreement, the Commission or the Applicant, as
appropriate, shall gather information from Indian tribes or NHOs identified
pursuant to Section IV.B to assist in identifying archeological Historic
Properties of religious and cultural significance to them within the APE for
direct effects. If an Indian tribe or NHO provides evidence that supports a
high probability of the presence of intact archeological Historic Properties
within the APE for direct effects, the Applicant shall conduct an
archeological Field Survey notwithstanding Section VI.D.2.c.
e. Where the Applicant pursuant to Sections VI.D.2.c and VI.D.2.d finds that
no archeological Field Survey is necessary, it shall include in its
Submission Packet a report substantiating this finding. During the review
period described in Section VII.A, the SHPO/THPO may, based on evidence that
supports a high probability of the presence of intact archeological Historic
Properties within the APE for direct effects, notify the Applicant that the
Submission Packet is inadequate without an archeological Field Survey
pursuant to Section VII.A.4.
f. The Applicant shall conduct an archeological Field Survey within the APE
for direct effects if neither of the conditions in Section VI.D.2.c applies,
or if required pursuant to Section VI.D.2.d or e. The Field Survey shall be
conducted in consul-tation with the SHPO/THPO and consulting Indian tribes
or NHOs.
g. The Applicant, in consultation with the SHPO/THPO and appropriate Indian
tribes or NHOs, shall apply the National Register criteria (36 CFR Part 63)
to properties identified within the APE for direct effects that have not
previously been evaluated for National Register eligibility, with the
exception of those identified pursuant to Section VI.D.1.a.
3. Dispute Resolution. Where there is a disagreement regarding the
identification or eligibility of a property, and after attempting in good
faith to resolve the issue the Applicant and the SHPO/THPO continue to
disagree, the Applicant or the SHPO/THPO may submit the issue to the
Commission. The Commission shall handle such submissions in accordance with
36 CFR 800.4(c)(2).
E. Assessment of Effects
1. Applicants shall assess effects of the Undertaking on Historic Properties
using the Criteria of Adverse Effect (36 CFR 800.5(a)(1)).
2. In determining whether Historic Properties in the APE may be adversely
affected by the Undertaking, the Applicant should consider factors such as
the topography, vegetation, known presence of Historic Properties, and
existing land use.
3. An Undertaking will have a visual adverse effect on a Historic Property
if the visual effect from the Facility will noticeably diminish the
integrity of one or more of the characteristics qualifying the property for
inclusion in or eligibility for the National Register. Construction of a
Facility will not cause a visual adverse effect except where visual setting
or visual elements are character-defining features of eligibility of a
Historic Property located within the APE.
4. For collocations not excluded from review by the Collocation Agreement or
this Agreement, the assessment of effects will consider only effects from
the newly added or modified Facilities and not effects from the existing
Tower or Antenna.
5. Assessment pursuant to this Agreement shall be performed by professionals
who meet the Secretary of the Interior's Professional Qualification
Standards.
VII. Procedures
A. Use of the Submission Packet
1. For each Undertaking within the scope of this Nationwide Agreement, the
Applicant shall initially determine whether there are no Historic Properties
affected, no adverse effect on Historic Properties, or an adverse effect on
Historic Properties. The Applicant shall prepare a Submission Packet and
submit it to the SHPO/THPO and to all consulting parties, including any
Indian tribe or NHO that is participating as a consulting party.
2. The SHPO/THPO shall have 30 days from receipt of the requisite
documentation to review the Submission Packet.
3. If the SHPO/THPO receives a comment or objection, in accordance with
Section V.E, more than 25 but less than 31 days following its receipt of the
initial submission, the SHPO/THPO shall have five calendar days to consider
such comment or objection before the Section 106 process is complete or the
matter may be submitted to the Commission.
4. If the SHPO/THPO determines the Applicant's Submission Packet is
inadequate, or if the SHPO/THPO identifies additional Historic Properties
within the APE, the SHPO/THPO will immediately notify the Applicant and
describe any deficiencies. The SHPO/THPO may close its file without
prejudice if the Applicant does not resubmit an amended Submission Packet
within 60 days following the Applicant's receipt of the returned Submission
Packet. Resubmission of the Submission Packet to the SHPO/THPO commences a
new 30 day period for review.
B. Determinations of No Historic Properties Affected
1. If the SHPO/THPO concurs in writing with the Applicant's determination of
no Historic Properties affected, it is deemed that no Historic Properties
exist within the APE or the Undertaking will have no effect on any Historic
Properties located within the APE. The Section 106 process is then complete,
and the Applicant may proceed with the project, unless further processing
for reasons other than Section 106 is required.
2. If the SHPO/THPO does not provide written notice to the Applicant that it
agrees or disagrees with the Applicant's determination of no Historic
Properties affected within 30 days following receipt of a complete
Submission Packet, it is deemed that no Historic Properties exist within the
APE or the Undertaking will have no effect on Historic Properties. The
Section 106 process is then complete and the Applicant may proceed with the
project, unless further processing for reasons other than Section 106 is
required.
3. If the SHPO/THPO provides written notice within 30 days following receipt
of the Submission Packet that it disagrees with the Applicant's
determination of no Historic Properties affected, it should provide a short
and concise explanation of exactly how the criteria of eligibility and/or
criteria of Adverse Effect would apply. The Applicant and the SHPO/THPO
should engage in further discussions and make a reasonable and good faith
effort to resolve their disagreement.
4. If the SHPO/THPO and Applicant do not resolve their disagreement, the
Applicant may at any time choose to submit the matter, together with all
relevant documents, to the Commission, advising the SHPO/THPO accordingly.
C. Determinations of No Adverse Effect
1. If the SHPO/THPO concurs in writing with the Applicant's determination of
no adverse effect, the Facility is deemed to have no adverse effect on
Historic Properties. The Section 106 process is then complete and the
Applicant may proceed with the project, unless further processing for
reasons other than Section 106 is required.
2. If the SHPO/THPO does not provide written notice to the Applicant that it
agrees or disagrees with the Applicant's determination of no adverse effect
within thirty days following its receipt of a complete Submission Packet,
the SHPO/THPO is presumed to have concurred with the Applicant's
determination. The Applicant shall, pursuant to procedures to be promulgated
by the Commission, forward a copy of its Submission Packet to the
Commission, together with all correspondence with the SHPO/THPO and any
comments or objections received from the public, and advise the SHPO/THPO
accordingly. The Section 106 process shall then be complete unless the
Commission notifies the Applicant otherwise within 15 days after the
Commission receives the Submission Packet and accompanying material
electronically or 25 days after the Commission receives this material by
other means.
3. If the SHPO/THPO provides written notice within 30 days following receipt
of the Submission Packet that it disagrees with the Applicant's
determination of no adverse effect, it should provide a short and concise
explanation of the Historic Properties it believes to be affected and
exactly how the criteria of Adverse Effect would apply. The Applicant and
the SHPO/THPO should engage in further discussions and make a reasonable and
good faith effort to resolve their disagreement.
4. If the SHPO/THPO and Applicant do not resolve their dispute, the
Applicant may at any time choose to submit the matter, together with all
relevant documents, to the Commission, advising the SHPO/THPO accordingly.
5. Whenever the Applicant or the Commission concludes, or a SHPO/THPO
advises, that a proposed project will have an adverse effect on a Historic
Property, after applying the criteria of Adverse Effect, the Applicant and
the SHPO/THPO are encouraged to investigate measures that would avoid the
adverse effect and permit a conditional “No Adverse Effect” determination.
6. If the Applicant and SHPO/THPO mutually agree upon conditions that will
result in no adverse effect, the Applicant shall advise the SHPO/THPO in
writing that it will comply with the conditions. The Applicant can then make
a determination of no adverse effect subject to its implementation of the
conditions. The Undertaking is then deemed conditionally to have no adverse
effect on Historic Properties, and the Applicant may proceed with the
project subject to compliance with those conditions. Where the Commission
has previously been involved in the matter, the Applicant shall notify the
Commission of this resolution.
D. Determinations of Adverse Effect
1. If the Applicant determines at any stage in the process that an
Undertaking would have an adverse effect on Historic Properties within the
APE(s), or if the Commission so finds, the Applicant shall submit to the
SHPO/THPO a plan designed to avoid, minimize, or mitigate the adverse
effect.
2. The Applicant shall forward a copy of its submission with its mitigation
plan and the entire record to the Council and the Commission. Within fifteen
days following receipt of the Applicant's submission, the Council shall
indicate whether it intends to participate in the negotiation of a
Memorandum of Agreement by notifying both the Applicant and the Commission.
3. Where the Undertaking would have an adverse effect on a National Historic
Landmark, the Commission shall request the Council to participate in
consultation and shall invite participation by the Secretary of the
Interior.
4. The Applicant, SHPO/THPO, and consulting parties shall negotiate a
Memorandum of Agreement that shall be sent to the Commission for review and
execution.
5. If the parties are unable to agree upon mitigation measures, they shall
submit the matter to the Commission, which shall coordinate additional
actions in accordance with the Council's rules, including 36 CFR
800.6(b)(1)(v) and 800.7.
E. Retention of Information
The SHPO/THPO shall, subject to applicable state or tribal laws and
regulations, and in accordance with its rules and procedures governing
historic property records, retain the information in the Submission Packet
pertaining to the location and National Register eligibility of Historic
Properties and make such information available to Federal agencies and
Applicants in other Section 106 reviews, where disclosure is not prevented
by the confidentiality standards in 36 CFR 800.11(c).
F. Removal of Obsolete Towers
Applicants that construct new Towers under the terms of this Nationwide
Agreement adjacent to or within the boundaries of a Historic Property are
encouraged to disassemble such Towers should they become obsolete or remain
vacant for a year or more.
VIII. Emergency Situations
Unless the Commission deems it necessary to issue an emergency authorization
in accordance with its rules, or the Undertaking is otherwise excluded from
Section 106 review pursuant to the Collocation Agreement or Section III of
this Agreement, the procedures in this Agreement shall apply.
IX. Inadvertent or Post-Review Discoveries
A. In the event that an Applicant discovers a previously unidentified site
within the APE that may be a Historic Property that would be affected by an
Undertaking, the Applicant shall promptly notify the Commission, the
SHPO/THPO and any potentially affected Indian tribe or NHO, and within a
reasonable time shall submit to the Commission, the SHPO/THPO and any
potentially affected Indian tribe or NHO, a written report evaluating the
property's eligibility for inclusion in the National Register. The Applicant
shall seek the input of any potentially affected Indian tribe or NHO in
preparing this report. If found during construction, construction must cease
until evaluation has been completed.
B. If the Applicant and SHPO/THPO concur that the discovered resource is
eligible for listing in the National Register, the Applicant will consult
with the SHPO/THPO, and Indian tribes or NHOs as appropriate, to evaluate
measures that will avoid, minimize, or mitigate adverse effects. Upon
agreement regarding such measures, the Applicant shall implement them and
notify the Commission of its action.
C. If the Applicant and SHPO/THPO cannot reach agreement regarding the
eligibility of a property, the matter will be referred to the Commission for
review in accordance with Section VI.D.3. If the Applicant and the SHPO/THPO
cannot reach agreement on measures to avoid, minimize, or mitigate adverse
effects, the matter shall be referred to the Commission for appropriate
action.
D. If the Applicant discovers any human or burial remains during
implementation of an Undertaking, the Applicant shall cease work
immediately, notify the SHPO/THPO and Commission, and adhere to applicable
State and Federal laws regarding the treatment of human or burial remains.
X. Construction Prior to Compliance With Section 106
A. The terms of Section 110(k) of the National Historic Preservation Act (16
U.S.C. 470h–2(k)) (“Section 110(k)”) apply to Undertakings covered by this
Agreement. Any SHPO/THPO, potentially affected Indian tribe or NHO, the
Council, or a member of the public may submit a complaint to the Commission
alleging that a facility has been constructed or partially constructed after
the effective date of this Agreement in violation of Section 110(k). Any
such complaint must be in writing and supported by substantial evidence
specifically describing how Section 110(k) has been violated. Upon receipt
of such complaint the Commission will assume responsibility for
investigating the applicability of Section 110(k) in accordance with the
provisions herein.
B. If upon its initial review, the Commission concludes that a complaint on
its face demonstrates a probable violation of Section 110(k), the Commission
will immediately notify and provide the relevant Applicant with copies of
the Complaint and order that all construction of a new tower or installation
of any new collocations immediately cease and remain suspended pending the
Commission's resolution of the complaint.
C. Within 15 days of receipt, the Commission will review the complaint and
take appropriate action, which the Commission may determine, and which may
include the following:
1. Dismiss the complaint without further action if the complaint does not
establish a probable violation of Section 110(k) even if the allegations are
taken as true;
2. Provide the Applicant with a copy of the complaint and request a written
response within a reasonable time;
3. Request from the Applicant a background report which documents the
history and chronology of the planning and construction of the Facility;
4. Request from the Applicant a summary of the steps taken to comply with
the requirements of Section 106 as set forth in this Nationwide Agreement,
particularly the application of the Criteria of Adverse Effect;
5. Request from the Applicant copies of any documents regarding the planning
or construction of the Facility, including correspondence, memoranda, and
agreements;
6. If the Facility was constructed prior to full compliance with the
requirements of Section 106, request from the Applicant an explanation for
such failure, and possible measures that can be taken to mitigate any
resulting adverse effects on Historic Properties.
D. If the Commission concludes that there is a probable violation of Section
110(k) ( i.e. , that “with intent to avoid the requirements of Section 106,
[an Applicant] has intentionally significantly adversely affected a Historic
Property”), the Commission shall notify the Applicant and forward a copy of
the documentation set forth in Section X.C. to the Council and, as
appropriate, the SHPO/THPO and other consulting parties, along with the
Commission's opinion regarding the probable violation of Section 110(k). The
Commission will consider the views of the consulting parties in determining
a resolution, which may include negotiating a Memorandum of Agreement (MOA)
that will resolve any adverse effects. The Commission, SHPO/THPO, Council,
and Applicant shall sign the MOA to evidence acceptance of the mitigation
plan and conclusion of the Section 106 review process.
E. Nothing in Section X or any other provision of this Agreement shall
preclude the Commission from continuing or instituting enforcement
proceedings under the Communications Act and its rules against an Applicant
that has constructed a Facility prior to completing required review under
this Agreement. Sanctions for violations of the Commission's rules may
include any sanctions allowed under the Communications Act and the
Commission's rules.
F. The Commission shall provide copies of all concluding reports or orders
for all Section 110(k) investigations conducted by the Commission to the
original complainant, the Applicant, the relevant local government, and
other consulting parties.
G. Facilities that are excluded from Section 106 review pursuant to the
Collocation Agreement or Section III of this Agreement are not subject to
review under this provision. Any parties who allege that such Facilities
have violated Section 110(k) should notify the Commission in accordance with
the provisions of Section XI, Public Comments and Objections.
XI. Public Comments and Objections
Any member of the public may notify the Commission of concerns it has
regarding the application of this Nationwide Agreement within a State or
with regard to the review of individual Undertakings covered or excluded
under the terms of this Agreement. Comments related to telecommunications
activities shall be directed to the Wireless Telecommunications Bureau and
those related to broadcast facilities to the Media Bureau. The Commission
will consider public comments and following consultation with the SHPO/THPO,
potentially affected Indian tribes and NHOs, or Council, where appropriate,
take appropriate actions. The Commission shall notify the objector of the
outcome of its actions.
XII. Amendments
The signatories may propose modifications or other amendments to this
Nationwide Agreement. Any amendment to this Agreement shall be subject to
appropriate public notice and comment and shall be signed by the Commission,
the Council, and the Conference.
XIII. Termination
A. Any signatory to this Nationwide Agreement may request termination by
written notice to the other parties. Within sixty (60) days following
receipt of a written request for termination from a signatory, all other
signatories shall discuss the basis for the termination request and seek
agreement on amendments or other actions that would avoid termination.
B. In the event that this Agreement is terminated, the Commission and all
Applicants shall comply with the requirements of 36 CFR Part 800.
XIV. Annual Review
The signatories to this Nationwide Agreement will meet annually on or about
the anniversary of the effective date of the Agreement to discuss the
effectiveness of this Agreement, including any issues related to improper
implementation, and to discuss any potential amendments that would improve
the effectiveness of this Agreement.
XV. Reservation of Rights
Neither execution of this Agreement, nor implementation of or compliance
with any term herein, shall operate in any way as a waiver by any party
hereto, or by any person or entity complying herewith or affected hereby, of
a right to assert in any court of law any claim, argument or defense
regarding the validity or interpretation of any provision of the NHPA or its
implementing regulations contained in 36 CFR Part 800.
XVI. Severability
If any section, subsection, paragraph, sentence, clause or phrase in this
Agreement is, for any reason, held to be unconstitutional or invalid or
ineffective, such decision shall not affect the validity or effectiveness of
the remaining portions of this Agreement.
In witness whereof, the Parties have caused this Agreement to be executed by
their respective authorized officers as of the day and year first written
above.
Federal Communications Commission
____________________
Chairman
Date____________________
Advisory Council on Historic Preservation
____________________
Chairman
Date____________________
National Conference of State Historic Preservation Officers
____________________
Date____________________
[ 70 FR 580 , Jan. 4, 2005]
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