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FCC 1.20008
Revised as of October 1, 2010
Goto Year:2009 |
2011
§ 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 P: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 § 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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