Daily Rules, Proposed Rules, and Notices of the Federal Government
Section 106 of the National Historic Preservation Act requires federal agencies to consider the effects of their undertakings on historic properties and to provide the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment with regard to such undertakings. The ACHP has issued the regulations that set forth the process through which Federal agencies comply with these duties. Those regulations are codified under 36 CFR part 800 (Section 106 regulations).
Under Section 800.14(e) of those regulations, agencies can request the ACHP to provide a “Program Comment” on a particular category of undertakings in lieu of conducting individual reviews of each individual undertaking under such category, as set forth in 36 CFR 800.4 through 800.7.
The ACHP is now considering issuing a Program Comment to the National Telecommunications and Information Administration (NTIA) and the U.S. Department of Agriculture's Rural Utilities Service (RUS) that would relieve them of the need to conduct a separate Section 106 review regarding the effects of communication facilities construction or modification that will be subject to such review by the Federal Communications Commission (FCC).
On February 17, 2009, President Obama signed the American Recovery and Reinvestment Act of 2009 (Recovery Act) into law. The Recovery Act provides the NTIA and the RUS with $7.2 billion to expand access to broadband services in the United States. In implementing this responsibility, NTIA, through its Broadband
Technological solutions available to speed the deployment of affordable broadband under those programs are diverse and include the construction and modification of communications towers and antennas. Some of those communication towers and antennas will be regulated by the FCC. For such proposals that are regulated by the FCC and assisted by RUS and/or NTIA, each agency would be individually responsible for compliance with Section 106.
The FCC, ACHP, and the National Conference of State Historic Preservation Officers (NCSHPO) have executed the Nationwide Programmatic Agreement for Review of Effects on Historic Properties For Certain Undertakings Approved by the FCC (FCC Nationwide PA) and the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas (FCC Collocation PA) to govern how FCC meets its Section 106 responsibilities for certain undertakings, including communication towers and antennas. In implementing the terms of those programmatic agreements, FCC has established a procedure that is supported by innovative approaches that expedite review and facilitate the involvement of stakeholders, most notably Indian tribes, to ensure that effects to historic properties are taken into account.
Currently, it is not possible for RUS and NTIA to benefit from the implementation of those programmatic agreement solutions in meeting their individual Section 106 responsibilities, because the FCC Nationwide PA stipulates that it does not govern the Section 106 responsibilities of any federal agency other than the FCC. This means that FCC, RUS and NTIA must each conduct separate Section 106 reviews for the same proposed undertaking. Such an approach does not seem to be efficient, particularly within the context of the compressed schedules established by the Recovery Act. Accordingly, pursuant to 36 CFR 800.14(e), NTIA and RUS have requested the ACHP to issue a program comment that removes their requirement to comply with Section 106 with regard to the effects of communications facilities construction or modification that has undergone, will undergo, or is exempt from, Section 106 review by the FCC under the cited FCC programmatic agreements.
Under the Recovery Act, all NTIA and RUS grants and loans must be awarded by September 30, 2010. Construction of proposals receiving awards must be complete within three years of the award. Recovery Act responsibilities of NTIA and RUS, therefore, will extend to 2013. In order to accommodate for currently unknown contingencies, RUS and NTIA have requested that the effective termination of the proposed program comment be extended to September 30, 2015.
RUS and NTIA have informed the ACHP that, prior to their formal request, they sought to share their intent to develop this program comment with the following historic preservation, tribal, and telecommunications industry organizations: National Trust for Historic Preservation, NCSHPO, American Cultural Resources Association, National Association of Tribal Historic Preservation Officers (NATHPO), United South and Eastern Tribes (USET), National Congress of American Indians, Affiliated Tribes of Northwest Indians, Office of Hawaiian Affairs (OHA), CTIA The Wireless Association, PCIA—The Wireless Infrastructure Association, and the Association of Public Safety Communications Officials. RUS and NTIA discussed this proposal with all of the listed parties except OHA, and reported that, in general, those organizations contacted were supportive, noting that this approach represented a common sense solution. In addition to those parties, NTIA and RUS have worked closely with the FCC throughout the development of the proposed program comment.
RUS and NTIA also reported that several parties expressed concern that the proposed program comment would alter or modify the FCC Nationwide PA. That is not the intent of the proposed program comment and a statement to that effect has been included in the proposal itself.
RUS and NTIA anticipate that BTOP/EIP applications will not consist solely of tower construction and modification. Accordingly, they have clarified the applicability of the program comment for multi-component proposals.
NCSHPO was concerned about how this program comment would affect existing agreements. If, under the program comment, RUS and NTIA are not responsible for compliance with Section 106 for FCC regulated towers, then the trigger for existing agreements has been removed.
USET explained to RUS and NTIA that it did not support expansion of the scope of the proposed program comment to all federal agencies. Accordingly, the proposal submitted to the ACHP applies to only NTIA and RUS. Finally, USET expressed concern that this process is being rushed and, as a consequence, tribes will not be allowed sufficient time to consult with agencies. However, the congressionally mandated Recovery Act schedules argue for an expedited process.
The text of the proposed Program Comment is included below:
This Program Comment is intended to streamline Section 106 review of the construction and modification of communication towers and antennas for which FCC and RUS or NTIA share Section 106 responsibility.
Nothing in this Program Comment alters or modifies the FCC Nationwide PA or the FCC Collocation PA, or imposes Section 106 responsibilities on the FCC for elements of an RUS or NTIA undertaking that are unrelated to a communications facility within the FCC's jurisdiction or are beyond the scope of the FCC Nationwide PA.
When an RUS or NTIA undertaking includes both communications facilities construction or modification covered by the FCC Nationwide PA or Collocation PA and components in addition to such communication facilities construction or modification, RUS and NTIA will comply with Section 106 in accordance with the process set forth at 36 CFR 5 800.3 through 800.7, or 36 CFR 800.8(c), or another applicable alternate procedure under 36 CFR 800.14, but will not have to consider the effects of the communication facilities construction or modification component of the undertaking on historic properties. Whenever RUS or NTIA uses this Program Comment for such undertakings, RUS or NTIA will apprise the relevant State Historic Preservation Officer (SHPO) or Tribal Historic Preservation Officer (THPO) of the use of this Program Comment for the relevant communication facilities construction or modification component.
36 CFR 800.14(e).