Notice of Program Comment for the Rural Utilities Service, the National Telecommunications and Information Administration, and the Federal Emergency Management Agency To Avoid Duplicative Section 106 Reviews for Wireless Communication Facilities Construction and Modification

AGENCY:

Advisory Council on Historic Preservation.

ACTION:

The Advisory Council on Historic Preservation has issued a Program Comment for the Rural Utilities Service, the National Telecommunications and Information Administration, and the Federal Emergency Management Agency to avoid duplicative Section 106 reviews for wireless communication facilities construction and modification.

SUMMARY:

The Advisory Council on Historic Preservation has issued a Program Comment for the Rural Utilities Service, the National Telecommunications and Information Administration, and the Federal Emergency Management Agency to relieve them of the need to conduct duplicate reviews under Section 106 of the National Historic Preservation Act when these agencies assist a telecommunications project that is exempt from, or subject to, Section 106 review by the Federal Communications Commission under existing nationwide programmatic Agreements.

DATES:

The Program Comment went into effect on October 23, 2009.

ADDRESSES:

Address all questions concerning the Program Comment to Blythe Semmer, Office of Federal Agency Programs, Advisory Council on Historic Preservation, 1100 Pennsylvania Avenue, NW., Suite 803, Washington, DC 20004. Fax (202) 606-8647. You may submit electronic questions to: bsemmer@achp.gov.

FOR FURTHER INFORMATION CONTACT:

Blythe Semmer, (202) 606 8552, bsemmer@achp.gov.

SUPPLEMENTARY INFORMATION:

Section 106 of the National Historic Preservation Act requires Federal agencies to consider the effects of their undertakings on historic properties and to provide the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment with regard to such undertakings. The ACHP has issued the regulations that set forth the process through which Federal agencies comply with these duties. Those regulations are codified under 36 CFR part 800 (Section 106 regulations)

Under Section 800.14(e) of those regulations, agencies can request the ACHP to provide a “Program Comment” on a particular category of undertakings in lieu of conducting individual reviews of each individual undertaking under such category, as set forth in 36 CFR 800.3 through 800.7. An agency can meet its Section 106 responsibilities with regard to the effects of particular aspects of those undertakings by taking into account ACHP's Program Comment and following the steps set forth in that comment.

I. Background

The ACHP has issued a Program Comment to the U.S. Department of Agriculture Rural Utilities Service (RUS), the U.S. Department of Commerce National Telecommunications and Information Administration (NTIA), and the Federal Emergency Management Agency (FEMA) to relieve them from conducting duplicate reviews under Section 106 of the National Historic Preservation Act when these agencies assist a telecommunications project subject to Section 106 review by the Federal Communications Commission (FCC). The ACHP membership voted in favor of issuing the Program Comment via an unassembled vote on October 23, 2009.

The American Recovery and Reinvestment Act (ARRA) provides NTIA and RUS with $7.2 billion to expand access to broadband services in the United States. NTIA will implement the Broadband Technology Opportunities Program (BTOP), which will award grants to expand public computer capacity, encourage sustainable adoption of broadband of broadband service, and deploy broadband infrastructure to unserved and underserved areas. RUS, through its Broadband Initiatives Program (BIP), will use loan and grant combinations to support broadband deployment in rural areas.

Broadband deployment can include the construction and placement of communication towers and antennas. Some of those towers and antennas are also regulated by the FCC, and therefore undergo, or are exempted from, Section 106 review under the Nationwide Programmatic Agreement for Review of Effect on Historic Properties for Certain Undertakings Approved by the FCC and the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas (FCC NPAs). RUS, NTIA, or FEMA will be relieved by the Program Comment of the need to conduct a separate Section 106 review for undertakings subject to review under the FCC NPAs.

The ACHP took steps to inform the public and stakeholders about the proposed Program Comment, including an e-mail distribution, posting on the agency Web site, and a notice published in the Federal Register. ACHP also sent a letter to the Indian tribal leaders requesting their comments on the Program Comment. Public comments resulting from the September 17, 2009 public notice in the Federal Register (74 FR 47807-47809) were received by the ACHP by October 8, 2009.

Various substantive comments from the public were received and considered by the ACHP, as noted below.

FEMA requested inclusion in the provisions of the Program Comment given that its grant programs provide funding for emergency communications facilities that are also subject to review by FCC under the FCC NPAs. FEMA's request would not expand the types of undertakings covered by the Program Comment, so FEMA has been added to the Program Comment.

Two comments objected to how tribal consultation appeared to have been coordinated for the Program Comment, but the characterization of early coordination with intertribal organizations by RUS and NTIA prior to the agencies' formal request to the ACHP did not constitute ACHP's tribal consultation on this program alternative.

Two comments expressed concern about how State and Tribal Historic Preservation Officers (SHPOs and THPOs) and Indian tribes will be notified when the Program Comment is applied. SHPOs and THPOs and Indian tribes will be notified according to the regular FCC NPAs review processes. There is no change to the FCC NPAs procedures.

Two comments expressed objections or concerns about the FCC NPAs and two comments expressed positive views on the functioning of the FCC NPAs. Nothing in the Program Comment will alter the FCC NPAs, but these comments will be referred to FCC for their consideration on the operation of their NPAs. One comment expressed concerns about towers that may have been constructed before undergoing a Section 106 review. The Program Comment deals with the construction of towers and collocation on existing towers. It does not address or affect pre-existing Section 106 issues. Those issues should be referred to the FCC.

Four comments expressed support for the efficiencies the Program Comment will offer in Section 106 reviews.

Two comments offered views on a concept plan for a nationwide programmatic agreement circulated separately by RUS and NTIA. Those comments will be considered in the context of that program initiative.

The Colorado Historical Society requested clarification about the 6-year term of the Program Comment. This time period recognizes that ARRA-assisted communications facilities construction may be ongoing for several years. The ACHP and others will be able to reevaluate the Program Comment, and whether to extend its duration prior to the conclusion of those 6 years.

The Texas Historical Commission questioned what would happen should an FCC NPA Section 106 review yield a finding of adverse effect within a larger RUS or NTIA undertaking of multiple components. As explicitly stated in the Program Comment, RUS, NTIA, or FEMA will be conducting its own Section 106 review for the larger undertaking, but will not have to consider the effects of the FCC-regulated component of that larger undertaking. RUS, NTIA, or FEMA will make effect determinations based on the non-tower components of the undertaking. Since it is possible that the larger undertaking may not be able to proceed until the FCC review of the tower component has concluded, it is expected that RUS, NTIA, FEMA, and the FCC will coordinate their review efforts accordingly and keep consulting parties appraised.

II. Final Text of the Program Comment

The text of the issued Program Comment is included below:

Program Comment for Streamlining Section 106 Review for Wireless Communication Facilities Construction and Modification Subject to Review Under the FCC Nationwide Programmatic Agreement and/or the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas.

I. Background

The Rural Utilities Service (RUS), the National Telecommunications and Information Administration (NTIA), and the Federal Emergency Management Agency (FEMA) provide financial assistance to applicants for various undertakings, including broadband deployment, which can involve the construction and placement of communications towers and antennas. RUS, NTIA, and FEMA must therefore comply with Section 106 of the National Historic Preservation Act, 16 U.S.C. 470f, and its implementing regulations at 36 CFR part 800 (Section 106) for these undertakings. Some of those communications towers and antennas are also regulated by the Federal Communications Commission (FCC), and therefore undergo, or are exempted from, Section 106 review under the Nationwide Programmatic Agreement for Review of Effects on Historic Properties for Certain Undertakings Approved by the FCC (FCC Nationwide PA) and the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas (FCC Collocation PA). The FCC Nationwide PA was executed by the FCC, the Advisory Council on Historic Preservation (ACHP), and the National Conference of State Historic Preservation Officers (NCSHPO) on October 4, 2004. The FCC Collocation PA was executed by the FCC, ACHP, and NCSHPO on March 16, 2001. The undertakings addressed by the FCC Nationwide PA primarily include the construction and modification of communication towers. The undertakings addressed by the FCC Collocation PA include the collocation of communications equipment on existing structures and towers.

This Program Comment is intended to streamline Section 106 review of the construction and modification of communication towers and antennas for which FCC and RUS, NTIA, or FEMA share Section 106 responsibility.

Nothing in this Program Comment alters or modifies the FCC Nationwide PA or the FCC Collocation PA, or imposes Section 106 responsibilities on the FCC for elements of a RUS, NTIA, or FEMA undertaking that are unrelated to a communications facility within the FCC's jurisdiction or are beyond the scope of the FCC Nationwide PA.

II. Establishment and Authority

This Program Comment was issued by the ACHP on October 23, 2009 pursuant to 36 CFR 800.14(e).

III. Date of Effect

This Program Comment went into effect on October 23, 2009.

IV. Use of This Program Comment To Comply With Section 106 for the Effects of Facilities Construction or Modification Reviewed Under the FCC Nationwide PA and/or the FCC Collocation PA

RUS, NTIA and FEMA will not need to comply with Section 106 with regard to the effects of communication facilities construction or modification that has either undergone or will undergo Section 106 review, or is exempt from Section 106 review, by the FCC under the FCC Nationwide PA and/or the FCC Collocation PA. For purposes of this program comment, review under the FCC Nationwide PA means the historic preservation review that is necessary to complete the FCC's Section 106 responsibility for an undertaking that is subject to the FCC Nationwide PA.

When an RUS, NTIA, or FEMA undertaking includes both communications facilities construction or modification covered by the FCC Nationwide PA or Collocation PA and components in addition to such communication facilities construction or modification, RUS, NTIA, or FEMA, as applicable, will comply with Section 106 in accordance with the process set forth at 36 CFR 800.3 through 800.7, or 36 CFR 800.8(c), or another applicable alternate procedure under 36 CFR 800.14, but will not have to consider the effects of the communication facilities construction or modification component of the undertaking on historic properties. Whenever RUS, NTIA, or FEMA uses this Program Comment for such undertakings, RUS, NTIA or FEMA will apprise the relevant State Historic Preservation Officer (SHPO) or Tribal Historic Preservation Officer (THPO) of the use of this Program Comment for the relevant communication facilities construction or modification component.

V. Amendment

The ACHP may amend this Program Comment after consulting with FCC, RUS, NTIA, FEMA, and other parties as appropriate, and publishing notice in the Federal Register to that effect.

VI. Sunset Clause

This Program Comment will terminate on September 30, 2015, unless it is amended to extend the period in which it is in effect.

VII. Termination

The ACHP may terminate this Program Comment by publication of a notice in the Federal Register thirty (30) days before the termination takes effect.

Authority: 36 CFR 800.14(e).