[Federal Register Volume 70, Number 2 (Tuesday, January 4, 2005)]
[Rules and Regulations]
[Pages 556-588]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-5]



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Part IV





Federal Communications Commission





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47 CFR Part 1



Nationwide Programmatic Agreement for Review Under the National 
Historic Preservation Act; Final Rule

  Federal Register / Vol. 70, No. 2 / Tuesday, January 4, 2005 / Rules 
and Regulations  

[[Page 556]]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[WT Docket No. 03-128; FCC 04-222]


Nationwide Programmatic Agreement for Review Under the National 
Historic Preservation Act

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, we adopt revisions to the Federal 
Communications Commission's (``Commission'') rules to implement a 
Nationwide Programmatic Agreement (``Nationwide Agreement'') that will 
tailor and streamline procedures for review of certain Commission 
undertakings for communications facilities under section 106 of the 
National Historic Preservation Act of 1966 (``NHPA''). The Nationwide 
Agreement will tailor the section 106 review in the communications 
context in order to improve compliance and streamline the review 
process for construction of towers and other Commission undertakings, 
while at the same time advancing and preserving the goal of the NHPA to 
protect historic properties, including historic properties to which 
federally recognized Indian tribes, including Alaska Native Villages, 
and Native Hawaiian Organizations (``NHOs'') attach religious and 
cultural significance.

DATES: Effective March 7, 2005.

FOR FURTHER INFORMATION CONTACT: Frank Stilwell, Wireless 
Telecommunications Bureau, (202) 418-1892.

SUPPLEMENTARY INFORMATION: This is a summary of the Federal 
Communications Commission's Report and Order, FCC 04-222, adopted 
September 9, 2004, and released October 5, 2004. The full text of the 
Report and Order is available for public inspection during regular 
business hours at the FCC Reference Information Center, 445 12th St., 
SW., Room CY-A257, Washington, DC 20554. The complete text may be 
purchased from the Commission's duplicating contractor: Qualex 
International, 445 12th Street, SW., Room CY-B402, Washington, DC 
20554, telephone (202) 863-2893, facsimile (202) 863-2898, or via e-
mail at [email protected].

Paperwork Reduction Act

    The Report and Order contains modified information collection 
requirements subject to the Paperwork Reduction Act of 1995 (PRA), 
Public Law 104-13. It will be submitted to the Office of Management and 
Budget (OMB) for review under section 3507(d) of the PRA. OMB, the 
general public, and other Federal agencies are invited to comment on 
the new or modified information collection requirements contained in 
this proceeding. Public and agency comments are due March 7, 2005. 
Comments should address the following: (a) Whether the proposed 
collection of information is necessary for the proper performance of 
the functions of the Commission, including whether the information 
shall have practical utility; (b) the accuracy of the Commission's 
burden estimates; (c) ways to enhance the quality, utility, and clarity 
of the information collected; and (d) ways to minimize the burden of 
the collection of information on respondents, including the use of 
automated collection techniques or other forms of information 
technology. A copy of any comments on the information collections 
contained herein should be submitted to Judith B. Herman, Federal 
Communications Commission, 445 12th St., SW., Room 1-C804, Washington, 
DC 20554, or via the Internet to [email protected], and to Edward 
C. Springer, OMB Desk Officer, 10236 New Executive Office Building, 724 
17th St., NW., Washington, DC 20503, or via the Internet to 
[email protected].
    In addition, we note that pursuant to the Small Business Paperwork 
Relief Act of 2002, Pub. L. 107-198, see 44 U.S.C. 3506(c)(4), we 
previously sought comment on how the Commission might ``further reduce 
the information collection burden for small business concerns with 
fewer than 25 employees.'' In this Report and Order, we have assessed 
the effects of certain policy changes brought about by the Nationwide 
Agreement that might impose information collection burdens.\1\ More 
specifically, we believe that businesses with fewer than 25 employees 
will be affected by the Nationwide Agreement in a manner similar to 
other small entities. Burdens and benefits may be felt more acutely by 
small businesses due to their reduced ability to spread regulatory 
costs across a larger number of projects. The Nationwide Agreement does 
impose reporting, recordkeeping, and other compliance requirements.\2\ 
However, Part III of the Nationwide Agreement, which allows for the 
construction of certain telecommunications facilities without the need 
to submit section 106 materials to the SHPO/THPO, will probably provide 
the greatest regulatory relief for small businesses, including those 
with fewer than 25 employees. We believe that the Part III exclusions 
will be especially helpful for smaller entities including those with 
fewer than 25 employees who rely more heavily on the prompt, 
predictable completion of each project to maintain a satisfactory cash 
flow. Businesses that avail themselves of an exclusion will have some 
costs. For example, they will have to determine whether a specific 
project satisfies the criteria for that exclusion and maintain 
documentation of that determination in their files.
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    \1\ See Final Regulatory Flexibility Analysis, infra, at 
paragraphs 137-141.
    \2\ Id.
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Summary of the Report and Order

    1. In this Report and Order, we adopt revisions to the Federal 
Communications Commission's (``Commission'') rules to implement a 
Nationwide Programmatic Agreement (``Nationwide Agreement'') that will 
tailor and streamline procedures for review of certain Commission 
undertakings for communications facilities under section 106 (16 U.S.C. 
470f) of the National Historic Preservation Act of 1966 (``NHPA'') (16 
U.S.C. 470 et seq.). On June 9, 2003, we released a Notice of Proposed 
Rulemaking (``NPRM'') seeking comment on a draft Nationwide Agreement 
among the Commission, the Advisory Council on Historic Preservation 
(``Council'') and the National Conference of State Historic 
Preservation Officers (``Conference''). See 68 FR 40876 (July 9, 2003). 
As discussed below, upon consideration of the record, we have 
determined that, with certain revisions, the Nationwide Agreement will 
tailor the section 106 review in the communications context in order to 
improve compliance and streamline the review process for construction 
of towers and other Commission undertakings, while at the same time 
advancing and preserving the goal of the NHPA to protect historic 
properties, including historic properties to which federally recognized 
Indian tribes, including Alaska Native Villages, and Native Hawaiian 
Organizations (``NHOs'') attach religious and cultural significance. 
The Council and Conference have agreed with this determination, and the 
parties executed the Nationwide Agreement on October 4, 2004. 
Accordingly, upon the effective date of the rule changes adopted in 
this Report and Order, the provisions of the attached Nationwide 
Agreement will become binding on affected licensees and applicants of 
the Commission.

[[Page 557]]

    2. During the late 1990s, coincident with the explosion in tower 
constructions necessitated by the deployment of wireless mobile service 
across the country, delays in completing traditional section 106 
reviews began to occur. The Commission's licensees and applicants 
(``Applicants''), State Historic Preservation Officers (``SHPOs'') and 
Commission staff began experiencing ever-growing caseloads and backlogs 
that, it soon became clear, were posing a threat to the timely 
deployment of wireless service to customers.
    3. Faced with the prospect of even larger numbers of towers to be 
constructed, the Council formed a working group, consisting of 
representatives of the Council and Commission, SHPOs, Indian tribes, 
the communications industry, and historic preservation consultants. 
Members of the Working Group began meeting on a regular basis, seeking 
ways of tailoring the section 106 process to the unique situation posed 
by tower constructions (and the collocation of antennas on towers and 
other structures). While striving to preserve the goal of the NHPA to 
protect historic properties (including historic properties of cultural 
and religious importance to Indian tribes and NHOs), the group explored 
alternatives for streamlining the section 106 process, when feasible.
    4. In November 2001, the Working Group began discussing a 
Nationwide Agreement, consistent with Sec.  800.14(b) (36 CFR 
800.14(b)) of the Council's rules, to modify the historic preservation 
review process for communications towers and for antenna collocations 
that were not excluded from section 106 review under the Nationwide 
Programmatic Agreement for the Collocation of Wireless Antennas, 
executed March 16, 2001 (66 FR 17554, April 2, 2001) (``Collocation 
Agreement''). The Working Group sought to tailor the NHPA review 
process to the communications context in several ways that were 
reflected in the draft Nationwide Agreement. Commission staff also 
consulted on a government-to-government basis with representatives of 
federally recognized Indian tribes regarding the potential for 
provisions of the draft Agreement to significantly and uniquely affect 
their historic and cultural interests.
    5. Although we agree, as discussed below, that certain changes to 
the document are appropriate, we conclude that signing the Nationwide 
Agreement advances the public interest. Section 800.14(b) of the 
Council's rules, promulgated pursuant to the Council's authority under 
section 214 of the NHPA, anticipates that, after due deliberation among 
affected parties, a federal agency, the Council and the Conference may 
enter into a nationwide programmatic agreement that streamlines the 
section 106 review process and tailors it to the particular context of 
the subject matter to which it is applied. Consistent with this 
provision, the Nationwide Agreement streamlines and tailors the NHPA 
review process for tower constructions in a variety of ways, including: 
identifying classes of undertakings that, due to the small likelihood 
that they will impact historic properties, are excluded from routine 
section 106 review; developing clear and concise principles governing 
the initiation of contact with Indian tribes and NHOs as part of the 
section 106 process; clarifying methods for involving the public in the 
process; providing definitional and procedural guidance for the 
identification and evaluation of historic properties, and the 
assessment of effects on those properties; establishing procedures, 
including timelines, for SHPO, Tribal Historic Preservation Officer 
(``THPO'') and Commission review; providing procedural guidance for 
situations where construction occurs prior to compliance with section 
106; and prescribing uniform filing documentation.
    6. We disagree with arguments that the Nationwide Agreement will 
obstruct deployment and impede public safety by adding regulatory 
complexity to the section 106 review process. To the contrary, we find, 
on balance, that the measures described herein will relieve unnecessary 
regulatory burdens, and therefore will promote public safety and 
consumer interests, consistent with our deregulatory initiatives. While 
the procedures prescribed in the Nationwide Agreement are not free of 
complexity, on the whole they are less burdensome than the current 
process under the Council's rules, and neither we nor any commenters 
have identified substantially simpler solutions that would be 
consistent with our responsibilities under section 106 of the NHPA.
    7. At the same time, we conclude that the Nationwide Agreement will 
sufficiently protect historic properties. The NHPA and the Council's 
rules do not require that federal undertakings avoid all impacts on 
historic properties. Rather, section 106 requires that federal agencies 
``take into account'' the effect of their undertakings on historic 
properties, which the Council's rules interpret to include, among other 
things, a ``reasonable and good faith effort'' to identify historic 
properties. Moreover, section 214 of the NHPA (16 U.S.C. 470v) directs 
the Council to ``tak[e] into consideration the magnitude of the 
exempted undertaking or program and the likelihood of impairment of 
historic properties.'' We interpret these provisions to mean that, in 
formulating exemptions and prescribing processes, the Council and the 
federal agency need not ensure that every possible effect on a historic 
property is individually considered in all circumstances, but that they 
should take into account the likelihood and potential magnitude of 
effects in categories of situations. Indeed, doing so should advance 
historic preservation in the long run by enabling all parties to focus 
their limited resources on the cases where significant damage to 
historic properties is most likely.
    8. Within this framework, we find it significant that both the 
Council and the Conference, whose principal missions include 
administering section 106 and protecting historic properties, have 
agreed to sign the Nationwide Agreement. Like these expert agencies, we 
conclude, that the procedures and standards set forth in the Nationwide 
Agreement, while streamlining the process, are sufficient to minimize 
the likelihood that facilities construction will have unreviewed and 
unmitigated effects on historic properties, consistent with the NHPA.
    9. As a preliminary matter, a number of commenters argue that 
construction of a communications tower is not a federal undertaking 
under section 106 of the NHPA. An ``undertaking'' under the NHPA means 
``a project, activity, or program funded in whole or in part under the 
direct or indirect jurisdiction of a Federal agency, including * * * 
those requiring a Federal permit[,] license, or approval'' (16 U.S.C. 
470w(7)(C)). The Commission's rules currently treat tower construction 
as an ``undertaking'' for purposes of the NHPA. Unless and until we 
revisit this public-interest question and determine that it is 
appropriate to amend our rules, we believe our existing policies 
reflect a permissible interpretation of the Commission's authority 
under the Communications Act.
    10. Some commenters argue that we should not adopt the proposed 
Nationwide Agreement at this time because federally recognized Indian 
tribes were not sufficiently involved in its negotiation and drafting. 
Commission recognizes that as an independent agency of the federal 
government, we have a trust responsibility to and a government-to-
government relationship with federally recognized Indian tribes. 
Accordingly, it

[[Page 558]]

is our stated policy to consult, to the extent practicable, with Tribal 
governments prior to implementing any regulatory action or policy that 
will significantly or uniquely affect Tribal governments, their land 
and resources. See In the Matter of Statement of Policy on Establishing 
a Government-to-Government Relationship with Indian Tribes, Policy 
Statement, 16 FCC Rcd 4078, 4080 (2000).
    11. We conclude that the actions our staff has undertaken in 
developing the Nationwide Agreement fulfill the commitment made in the 
Tribal Policy Statement.
    12. Our actions in this matter were not limited to inviting written 
comment from Indian tribes. The Commission invited representatives of 
Tribal governments to participate in deliberations of the Working 
Group, and in a series of communications to all federally recognized 
tribes, Commission staff scoped the issues and specifically invited 
meaningful consultative discussion. Commission staff also distributed 
materials and discussed the status of the Nationwide Agreement at 
several tribal conferences during the period of preparation and 
negotiation. These initial efforts led to direct substantive 
discussions between Commission staff and representatives of Tribes.
    13. As a result of these consultations, we put out for public 
comment both the Navajo Nation's proposal for notifying Tribes of 
otherwise excluded undertakings and the United South and Eastern 
Tribes, Inc. (``USET'') proposal regarding tribal and NHO participation 
in considering proposed undertakings, and we are adopting aspects of 
the USET proposal in this Report and Order. Our consultation with USET 
has continued since we released the NPRM, and we have also kept other 
tribal organizations apprised of our work and have invited them and 
their members to participate. Finally, many Indian tribes and NHOs 
filed comments in this proceeding, and federally recognized tribes were 
encouraged to make ex parte presentations to members of the Commission 
staff regarding this rulemaking.
    14. We recognize that the execution of the Nationwide Agreement 
does not end our ongoing government-to-government relationship with 
federally recognized Tribes. Accordingly, we fully intend to continue 
regular consultation on a government-to-government basis, consistent 
with resource constraints, regarding the implementation of the 
Nationwide Agreement as well as other aspects of our relationship.
    15. Section 214 of the NHPA permits the Council to exempt from 
section 106 review classes of federal undertakings that would be 
unlikely to impact historic properties. Pursuant to this authority, the 
draft Nationwide Agreement lists certain types of Commission 
undertakings that would be exempt from completing the section 106 
process under the NHPA.
    16. We conclude that categorically excluding from routine section 
106 review categories of construction that are unlikely adversely to 
impact historic properties is appropriate and in the public interest. 
In addition to facilitating the timely deployment of service, properly 
drafted exclusions can promote historic preservation both by conserving 
the Commission's, SHPOs'/THPOs' and the Council's resources to review 
more important cases, and by providing incentives for applicants to 
locate facilities in a manner that will render effects on historic 
properties less likely. As discussed above, the NHPA does not require 
perfection in evaluating the potential effects of an undertaking in 
every instance. To the contrary, we believe section 214 contemplates a 
balancing of the likelihood of significant harm against the burden of 
reviewing individual undertakings. Moreover, the provisions in the 
Nationwide Agreement for ceasing construction and notifying the 
Commission and other interested parties upon discovery of previously 
unidentified historic properties provides a safeguard in the unusual 
instances where the availability of an exclusion might otherwise cause 
an adverse impact to be overlooked.
    17. The proposed Nationwide Agreement excludes the ``Modification 
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.'' A 
substantial increase in size, in turn, is defined in the Collocation 
Agreement by reference to the extent of any increase in the tower's 
height, the installation of new equipment cabinets or shelters, the 
extent of any new protrusion from the tower, and excavation outside the 
current tower site and any access or utility easements. Enhancements to 
towers that involve collocations and do not result in a substantial 
increase in size are excluded from review under the Collocation 
Agreement.
    18. We conclude that it is appropriate and necessary to include in 
the Nationwide Agreement an exclusion for tower enhancements that 
constitute federal undertakings, do not involve collocations, and do 
not result in a substantial increase in size. Many changes to tower 
sites, such as building a fence around a tower, replacing an air 
conditioner or electric generator, or planting shrubs on the grounds, 
are in the nature of service or maintenance and are not federal 
undertakings. Thus, the Nationwide Agreement provides explicitly that 
Undertakings do not include maintenance and servicing of equipment. 
Other changes, however, are federal undertakings because they 
materially change the nature of the project that originally required 
section 106 review. Thus, a change is a federal undertaking if it 
alters an essential federal characteristic of the tower or its 
antennas. Any other interpretation would permit applicants to avoid 
section 106 review by initially constructing a non-intrusive tower and 
then modifying it substantially under the guise of a nonfederal 
alteration.
    19. Because certain changes to towers that do not involve 
collocations are federal undertakings, we conclude that such 
enhancements should be excluded from review if they do not involve a 
substantial increase in size. Under the Collocation Agreement, a change 
to a tower occurring in conjunction with a collocation that does not 
result in a substantial increase in size is excluded from section 106 
review. In some instances, a tower owner may find it beneficial to make 
a similar type of enhancement that is not associated with an immediate 
collocation. Such a change would have the same minimal likelihood of 
affecting historic properties as if it were accompanied by a 
collocation. Therefore, it should be excluded from section 106 review 
under the same standard.
    20. Under the Collocation Agreement, collocations on towers 
constructed after March 16, 2001, are not excluded unless the tower has 
previously completed the section 106 review process. In drafting the 
Collocation Agreement, the parties recognized that permitting 
collocations on pre-existing towers without review, absent substantial 
evidence of an adverse effect from either the proposed collocation or 
the underlying tower, would minimize the potential for adverse effects 
from new construction by creating an incentive to collocate. For towers 
constructed after the effective date of the Collocation Agreement, by 
contrast, excluding collocations from review where the underlying tower 
had not been reviewed might create a perverse incentive for companies 
to build towers without review in the hope of later attracting 
collocations. The exclusion for enhancements will similarly apply to 
all towers constructed on or before March 16, 2001, and to

[[Page 559]]

towers constructed after that date that went through the section 106 
process. Otherwise, a party might be able to avoid the limitation in 
the Collocation Agreement by first altering a tower and then adding an 
excluded collocation.
    21. Similar to the exclusion for enhancements to towers, the draft 
Nationwide Agreement permits the construction of new towers without 
NHPA review when the new tower replaces an existing tower and does not 
involve a substantial increase in size, as defined in the Collocation 
Agreement. In addition, unlike the exclusion for enhancements, the 
replacement tower exclusion permits construction and excavation within 
30 feet in any direction of the leased or owned property previously 
surrounding the tower.
    22. We adopt the replacement tower exclusion. Similar to 
collocations, strengthened structures may reduce the need for more 
towers by housing up to two, four or more additional antennas. Given 
the limitation of the exclusion to replacements that do not effectuate 
a substantial increase in size, it is highly unlikely that a 
replacement tower within the exclusion could have any impact other than 
on archeological properties. Moreover, the limitation on construction 
and excavation to within 30 feet of the existing leased or owned 
property means that only a minimal amount of previously undisturbed 
ground, if any, would be turned, and that would be very close to the 
existing construction. Finally, for reasons similar to those discussed 
with respect to tower enhancements, the replacement tower exclusion 
will apply to towers constructed after March 16, 2001, only if the 
original tower completed section 106 review.
    23. The draft Nationwide Agreement permits the erection of 
facilities without NHPA review for a temporary period not to exceed 
twenty-four months. We adopt the proposed temporary facilities 
exclusion with one revision. By their nature, temporary facilities 
usually involve little or no excavation. So long as no excavation will 
occur on previously undisturbed ground, the risk of damage to 
archeological or other historic properties from a temporary facility is 
small. Moreover, temporary facilities are often used in response to 
exigent circumstances where it is important that they be erected 
quickly. Taking these considerations together, we conclude that an 
exclusion for temporary facilities is appropriate where no excavation 
will occur on previously undisturbed ground. We revise the exclusion, 
however, so that a temporary facility that requires excavation other 
than on previously disturbed ground must complete section 106 review. 
We further conclude that a period of 24 months is sufficient to 
accommodate nearly all temporary facilities, and is necessary to ensure 
that the exclusion cannot be used to avoid section 106 review 
indefinitely.
    24. The draft Nationwide Agreement permits specified construction 
on certain properties in active industrial, commercial, or government-
office use without NHPA review. We adopt a revised version of this 
proposed exclusion. First, we limit the exclusion to industrial parks, 
commercial strip malls, or shopping centers that occupy a total land 
area of 100,000 square feet or more. As noted by several commenters, 
applying the exclusion to any commercial property as small as 10,000 
square feet, as proposed in the NPRM, would create an unacceptable risk 
of inappropriate development on small commercial properties, such as 
neighborhood shops, that may be located in or near historic areas. By 
confining the exclusion to construction in industrial parks, commercial 
strip malls, or shopping centers that occupy a total land area of 
100,000 square feet or more, we effectively ensure that construction 
subject to the exclusion will occur not only on plots that 
substantially exceed 10,000 square feet, but on highly developed 
properties and on ground that, in all likelihood, will have been 
thoroughly disturbed when the existing structures were constructed. At 
the same time, these types of properties are among those where wireless 
telecommunications service is most often needed. Thus, this exclusion 
combines a low likelihood of significant impact on historic properties 
with a high potential to satisfy service needs, thereby reducing 
pressure to site other facilities in potentially more sensitive 
locations.
    25. Second, we limit the exclusion to facilities that are less than 
200 feet in overall height. A tower of less than 200 feet is ordinarily 
unlikely to have significant incremental effects on historic properties 
within an area that is already highly developed. Furthermore, antenna 
structures 200 feet or less in height ordinarily do not require 
notification to the Federal Aviation Administration, and thus are not 
subject to federal lighting requirements. Thus, to the extent that 
lighting might have a visual adverse effect on historic properties, any 
such effect is unlikely from towers 200 feet or less.
    26. Third, we require that before applying this exclusion, the 
applicant must undertake a search of relevant records, and must 
complete a full section 106 review under the Nationwide Agreement if it 
discovers that the property on which it proposes to construct is 
located within the boundaries of or within 500 feet of a historic 
property. The draft Nationwide Agreement proposed that the exclusion 
would not apply if a structure 45 years or older were located within 
200 feet of the proposed facility. We conclude, however, that this 
proposed criterion would be burdensome to apply and is not well 
tailored to prevent potential effects on nearby historic properties. 
Thus, rather than turning on the age of nearby properties regardless of 
their eligibility, the exclusion's applicability should depend on 
whether the property or a property within 500 feet is, in fact, listed 
or eligible for listing in the National Register. We conclude that, for 
towers that otherwise meet the terms of the exclusion, a 500 foot 
buffer zone will adequately protect historic properties from adverse 
impacts.
    27. Finally, for purposes of this exclusion, we require applicants 
to complete the process of tribal and NHO participation as specified in 
section IV of the Nationwide Agreement. We note that historic 
properties of traditional religious and cultural importance often are 
not listed in the National Register or other publicly available 
sources. Thus, in order to provide protection for these types of 
historic properties similar to that afforded to other historic 
properties by a search of records, it is necessary to seek information 
directly from Indian tribes and NHOs. 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 process 
pursuant to the Nationwide Agreement notwithstanding the exclusion.
    28. The draft Nationwide Agreement excludes from review many towers 
proposed for construction in or near utility corridors, and along 
railways and highways. On review of the record, we conclude that the 
Nationwide Agreement should not create an exclusion for construction 
along highways and railroads. As numerous commenters observe, highways 
and railroads frequently follow pathways that track historic settlement 
and transportation patterns and, earlier, areas frequented by Indian 
tribes. We recognize that highways and passenger railways are among the 
areas where customer demand for wireless service is highest, and thus 
where the need for new facilities is greatest. Moreover, the existence 
of these modern intrusions reduces the risk that a new communications 
facility would impose

[[Page 560]]

an additional adverse effect on historic properties. Nonetheless, given 
the concentration of historic properties near many highways and 
railroads, we are persuaded that it is not feasible to draft an 
exclusion for highways and railroads that would both significantly ease 
the burdens of the section 106 process and sufficiently protect 
historic properties.
    29. We do, however, adopt a limited exclusion for facilities 
located in or within 50 feet of a right-of-way designated for 
communications towers or above-ground utility transmission or 
distribution lines, where the facility would not constitute a 
substantial increase in size over existing structures in the right-of-
way in the vicinity of the proposed construction. Due to the increasing 
usage of wireless services and advances in technology, providers of 
certain types of service are increasingly finding it feasible to 
utilize antennas mounted on short structures, often 50 feet or less in 
height, that resemble telephone or utility poles. Where such structures 
will be located near existing similar poles, we find that the 
likelihood of an incremental adverse impact on historic properties is 
minimal. Moreover, it promotes historic preservation to encourage 
construction of such minimally intrusive facilities rather than larger, 
potentially more damaging structures.
    30. For reasons similar to those discussed above with respect to 
the industrial and commercial properties exclusion, this exclusion does 
not apply if the facility would be located within the boundaries of a 
historic property, and we require applicants to conduct a preliminary 
search of relevant records for such property. Due to the limited size 
of the structures permitted under this exclusion and their close 
similarity to nearby existing structures, however, we do not require 
research regarding historic properties within 500 feet. Finally, for 
the same reasons discussed above, application of this exclusion depends 
on successful completion of the tribal and NHO participation process.
    31. Finally, the draft Nationwide Agreement excludes from NHPA 
review undertakings in geographic areas designated by the SHPO/THPO. We 
adopt this exclusion as drafted, with only minor clarifying edits. Such 
a provision, we believe, is consistent with the concept of an 
exclusion--i.e., to exempt from review undertakings where an impact 
upon historic properties is unlikely. SHPOs/THPOs are in an excellent 
position, given their local knowledge and experience, to identify such 
areas, when permissible under state or tribal law. While we encourage 
SHPOs and THPOs to designate areas pursuant to this provision to the 
extent warranted, we emphasize that doing so is at the SHPO/THPO's 
discretion.
    32. In the NPRM, we requested comment on a proposal by the 
Conference to allow SHPOs/THPOs to ``opt out'' of the exclusion for 
construction along utility and transportation corridors in areas where 
historic properties are likely to be present. We reject the proposed 
opt-out provision. As drafted, the exclusions from the section 106 
process are not dependent on local conditions, but identify 
circumstances under which construction is unlikely to significantly 
adversely affect historic properties in any state. At the same time, an 
opt-out provision would create a patchwork of varying agreements, 
state-by-state. Moreover, procedural changes, adopted by use of the 
opt-out provision, would likely occur over a period of time, creating 
additional burdens and confusion for all parties concerned.
    33. We reject arguments that, as a matter of law, the Commission 
must provide notice to Indian tribes of all excluded undertakings. 
Section 214 of the NHPA allows for certain undertakings to be 
``exempted from any or all of the requirements of this Act'' and 
expressly authorizes the Council to promulgate regulations to 
effectuate such exemption. We read section 214 as authorizing 
exemptions from the tribal consultation requirement of section 
101(d)(6). There is nothing in the NHPA or in the Council's rules 
expressly requiring any type of notice to tribes for every individual 
undertaking that is excluded from review pursuant to a programmatic 
agreement that is signed and executed by the agency and the Council. 
Given that the Council is the agency authorized to promulgate rules to 
implement section 214 of the NHPA, the absence of notice provisions 
both in the Council's rules and in other programmatic agreements 
supports our conclusion that such provisions are not necessary under 
the NHPA, the Council's rules, or otherwise. Indeed, consistent with 
its rules, it is the Council, as evidenced by its signature to this 
agreement, who approves the proposed exemption ``based on the 
consistency of the exemption with the purposes of the act. * * *''
    34. With respect to the specific exclusions in the Nationwide 
Agreement, we conclude, as discussed above, that tribal and NHO notice 
and participation are necessary for construction on commercial and 
industrial properties and in utility rights-of-way notwithstanding the 
exclusions. This is so because, without an opportunity for tribes and 
NHOs to participate, there is a substantial possibility that 
undertakings within these exclusions could affect properties of 
traditional cultural and religious importance. For the other 
exclusions, by contrast, any such possibility is insignificant. 
Therefore, a notice requirement would contravene the goals of section 
214 of the NHPA and the Council's rule on exclusions by adding an 
unnecessary layer of review and regulation.
    35. Finally, the Commission has met its government-to-government 
responsibility to consult with and its trust responsibility to 
federally recognized tribes with respect to the exclusions. As 
explained above, the Commission has engaged in government-to-government 
consultation with tribes regarding the Nationwide Agreement. Moreover, 
a proposal to require tribal notice was included in the draft 
Nationwide Agreement, and received the consideration of the various 
tribes and tribal organizations that participated in this proceeding. 
Indeed, after considering the comments of Indian tribes, we have 
included a tribal participation requirement for the industrial and 
commercial properties and utility corridor exclusions. We conclude that 
tribes were afforded an opportunity to consult with respect to this 
issue and accordingly did so.
    36. The draft Nationwide Agreement provides that applicants should 
retain documentation of their determination that an exclusion applies 
to an undertaking. We decline to require any regular reporting of 
instances in which the exclusions are used in addition to such 
recordkeeping. We find that such mass undifferentiated reporting of 
constructed facilities would be excessively burdensome and, without 
more, would contribute little to an understanding of how the exclusions 
are being applied. We note that as records relevant to compliance with 
the Commission's rules, a company must produce documentation of its 
determination of an exclusion's applicability to the Commission upon 
request. SHPOs/THPOs may also require production of such records to the 
extent authorized under State or tribal law.
    37. As a further safeguard to ensure that the exclusions are 
applied appropriately, we provide that a determination of exclusion 
should be made by an authorized individual within the applicant's 
organization. While the exclusions are drafted so that their 
application should not require historic preservation expertise, a 
responsible individual who understands the exclusions and their 
applicability

[[Page 561]]

needs to ensure that they are applied appropriately. Moreover, because 
the applicant is responsible for compliance with our rules, this 
responsible individual should be within the applicant's organization. 
We advise applicants to retain a record of the authorized individual's 
review as part of their record of the exclusion's applicability.
    38. In the NPRM, we sought comment on two alternative sets of 
provisions governing participation of Indian tribes and NHOs in 
undertakings off tribal lands. Alternative A was developed by the 
Working Group. This proposed alternative directs applicants to use 
reasonable and good faith efforts to identify Indian tribes and NHOs 
that may attach cultural and religious importance to historic 
properties that may be affected by an undertaking, and provides 
guidance on how to perform such identification and on the subsequent 
process to be followed with Indian tribes and NHOs. Alternative B was 
proposed by USET during the course of meetings after the Working Group 
completed its deliberations. Alternative B requires the Commission to 
consult with potentially affected Indian tribes and NHOs on each 
proposed undertaking, in accordance with the Council's rules, unless 
either (1) the Indian tribe or NHO has given the applicant a letter of 
certification stating that such consultation is unnecessary; or (2) the 
applicant and the Indian tribe have reached a written agreement, filed 
with the Commission, regarding conditions under which such 
certification is unnecessary and the applicant has complied with that 
agreement. Alternative B encourages parties to use these alternative 
processes in lieu of government-to-government consultation. This 
alternative does not, however, provide guidance regarding how 
applicants should contact and relate to Indian tribes and NHOs, stating 
that such guidance would be provided in an appendix or by separate 
publication.
    39. Since issuing the NPRM, the Commission has continued to work 
with Indian tribes outside the context of this proceeding to improve 
the means of tribal and NHO participation in the section 106 process. 
In particular, the Commission, after consultation with federally 
recognized tribes, has developed and implemented an electronic Tower 
Construction Notification System to facilitate identification of and 
appropriate initial contact with Indian tribes and NHOs that may attach 
religious and cultural significance to historic properties within the 
geographic area of a proposed undertaking. This system permits each 
Indian tribe and NHO voluntarily to identify in a secure electronic 
fashion the geographic areas in which historic properties of religious 
and cultural significance to that Indian tribe or NHO may be located. 
When an applicant then voluntarily enters into the system the location 
and other basic information about a proposed construction project, the 
Commission automatically forwards the information electronically or by 
mail to participating tribes and NHOs. Finally, Indian tribes and NHOs 
have the option of responding to applicants through the Tower 
Construction Notification System. By rationalizing the process of 
identification and initial contact through the Commission, we believe 
the Tower Construction Notification System will relieve burdens and 
provide certainty for tribes and NHOs, applicants, and the Commission 
alike.
    40. Upon consideration of the record, and in light of the 
developments described above, we adopt procedures for participation of 
tribes and NHOs that incorporate aspects of both Alternatives A and B 
with certain modifications. First, we recognize that pursuant to the 
federal government's unique legal relationship with Indian tribal 
governments, as well as specific obligations under the NHPA and the 
Council's and Commission's rules, the Commission has a responsibility 
to carry out consultation with any federally recognized Indian tribe or 
any NHO that attaches religious and cultural significance to a historic 
property that may be affected by a Commission undertaking. As the 
Commission has previously recognized, the federal government has a 
historic trust relationship that requires it to adhere to fiduciary 
standards in dealing with federally recognized tribes. This fiduciary 
responsibility and duty of consultation rest with the Commission as an 
agency of the federal government, not with licensees, applicants, or 
other third parties.
    41. At the same time, we cannot fulfill our duty of consultation in 
a vacuum. Because our applicants possess unique knowledge regarding the 
facilities that they propose to construct, the Nationwide Agreement 
that we adopt directs applicants to make reasonable and good faith 
efforts to identify the Indian tribes and NHOs that may have interests 
in a geographic area. The Nationwide Agreement further specifies that 
where an Indian tribe or NHO has voluntarily provided information to 
the Tower Construction Notification System, reference to that database 
constitutes a reasonable and good faith effort at identification. In 
addition, the Nationwide Agreement provides guidance regarding other 
means of fulfilling this obligation.
    42. The Nationwide Agreement specifies that, after the applicant 
has identified potentially interested tribes and NHOs, contact should 
be made at an early stage in the planning process with each such tribe 
or NHO by either the Commission or the applicant, depending on the 
expressed wishes of the particular Indian tribe or NHO. The Commission 
will take steps to ascertain and publicize the contact preferences of 
all federally recognized Indian tribes and NHOs, both as to who must 
make the initial tribal contact and by what means, as well as any 
locations or types of construction projects for which the Indian tribe 
or NHO does not expect notification. To ensure that communications 
among parties are in accordance with the reasonable preferences of 
individual tribes and NHOs, the Commission will also use its best 
efforts to arrive at agreements regarding best practices with Indian 
tribes or NHOs, strive for uniformity in such best practices and 
encourage applicants to follow them. Through these best practices the 
Commission hopes to facilitate expeditious completion of section 106 
review by minimizing misunderstandings among the parties to that 
process.
    43. If there is no preexisting relationship between the applicant 
and an Indian tribe or NHO, and absent contrary indication from the 
Indian tribe or NHO, initial contact will be made by the Commission 
through its electronic Tower Construction Notification System. Where 
there is such a preexisting relationship the applicant may make the 
initial contact in the manner that is customary to that relationship or 
in any manner acceptable to the Indian tribe or NHO. In these 
circumstances, the applicant shall copy the Commission on any initial 
contact to the Indian tribe or NHO unless the Indian tribe or NHO has 
agreed such copying is unnecessary. The Nationwide Agreement specifies 
that any direct contact with 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, including through the Tower Construction 
Notification System where such means is consistent with the tribe or 
NHO's preference. Where the tribe or NHO's wishes are not known, the 
Nationwide Agreement sets forth guidelines regarding respectful address 
and sufficient information. The text further directs that the applicant 
afford the tribe or NHO a reasonable

[[Page 562]]

opportunity to respond, ordinarily 30 days, allow additional time to 
respond as reasonable upon request, and make reasonable efforts to 
follow up in case the tribe or NHO does not respond to an initial 
communication.
    44. The purpose of the initial contact, whether made by the 
Commission or the applicant, is to begin the process of ascertaining 
whether historic properties of religious and cultural significance to 
an Indian tribe or NHO may be affected by an undertaking, thereby 
triggering the duty of consultation. Unless the tribe or NHO 
affirmatively disclaims further interest or has agreed otherwise, this 
initial contact does not satisfy the applicant's obligation or 
constitute government-to-government consultation by the Commission. It 
is our hope and intent that, where direct contacts from an applicant 
are acceptable to the Indian tribe or NHO, amicable contacts will 
enable these consulting parties to complete the section 106 process so 
as to obviate the need for government-to-government consultation in a 
vast majority of cases. At the same time, because the duty to consult 
rests with the Commission as a federal government agency, the 
Nationwide Agreement directs applicants to promptly refer to the 
Commission any tribal request for government-to-government 
consultation, and to seek Commission guidance in cases of disagreement 
or failure to respond. Finally, the Nationwide Agreement substantially 
adopts provisions from Alternative A regarding inviting Indian tribes 
and NHOs to become consulting parties in the section 106 process, 
confidentiality, and the preservation of alternative arrangements.
    45. We conclude that the provisions we adopt are consistent with 
the Commission's fulfillment of its tribal consultation 
responsibilities under the NHPA and other sources of federal law. The 
NHPA does not provide for delegation of the tribal consultation 
responsibility to private entities. The provisions that we adopt, 
however, do not delegate the Commission's consultation responsibilities 
but provide for direct contacts with an Indian tribe or NHO by an 
applicant only in accordance with the expressed wishes of the Indian 
tribe or NHO. Moreover, the Nationwide Agreement further provides that, 
where the applicant is unknown to the tribe or NHO, the initial contact 
will generally be made by the Commission and does not in any 
circumstance allow applicants and licensees to embark upon and conclude 
the section 106 process without Commission participation and without 
tribal or NHO consent.
    46. The Nationwide Agreement expressly states that the initial 
contact between applicants or the Commission and Indian tribes and NHOs 
is required at ``an early stage of the planning process * * * in order 
to begin the process of ascertaining whether * * * Historic Properties 
[of religious and cultural significance to them] may be affected.'' The 
Nationwide Agreement expresses the ambition that this initial contact 
will lead to voluntary direct discussions through which applicants and 
tribes or NHOs will resolve any matters to the tribe or NHO's 
satisfaction without Commission involvement. However, the Nationwide 
Agreement makes clear that in the absence of such an agreement, 
decision-making authority and the duty to consult rest with the 
Commission. Thus, federally recognized Indian tribes are free, at any 
point, to request government-to-government consultation with the 
Commission, and the Commission is accessible and able to engage in 
government-to-government consultation with any tribe on any undertaking 
at any time. Moreover, if an applicant and an Indian tribe or NHO 
disagree regarding whether an undertaking will have an adverse effect 
on a historic property of religious and cultural significance, or if 
the tribe or NHO does not respond to the applicant's inquiries, the 
Nationwide Agreement directs the applicant to seek guidance from the 
Commission, following which appropriate consultation will occur and 
only then will the Commission make a decision regarding the proposed 
undertaking. The Commission only puts the exploratory phase of the 
process into the hands of those parties with the most intimate 
knowledge of the proposed undertaking and, subject to the expressed 
wishes of an Indian tribe or NHO, authorizes them to provide 
information to, solicit information from, and engage in voluntary 
discussions with the tribes and NHOs. This is consistent with Sec.  
800.2(c)(4) of the Council's rules (36 CFR 800.2(c)(4)), which permits 
agencies to authorize applicants to initiate section 106 discussions or 
contacts with consulting parties such as tribes, and is in keeping with 
applicable federal consultation responsibilities.
    47. We reject the argument that the role of applicants in 
initiating the section 106 process constitutes an illegal delegation. 
Except where there is a preexisting relationship between a particular 
tribe or NHO and the applicant or a particular tribe has advised the 
Commission of its willingness to be contacted initially by applicants, 
the first contact concerning a proposed undertaking will generally come 
from the Commission. In any event, cases relating to Congressional 
delegations of power to other branches of the federal government are 
inapposite. Moreover, federal agencies may permit private sector 
entities to perform delineated governmental functions when clear 
standards are set forth, guidelines for policymaking are offered, and 
specific findings are required. This is especially true when the 
private entity's participation is subject to the government agency's 
ultimate reviewing authority, which, as described above, is the case 
here. Similarly, OMB Circular A-76, which addresses functions of 
government that are non-delegable to the private sector, is not 
applicable because the Commission is not delegating a governmental 
function or any decision-making authority, but simply seeking 
assistance from our licensees and applicants in beginning a process 
over which the Commission ultimately retains control.
    48. For these reasons, we conclude that the Nationwide Agreement, 
as we adopt it today, does not unlawfully delegate or derogate the 
Commission's duties of consultation. At the same time, in combination 
with the other developments described above, the Nationwide Agreement 
provides substantial assistance and guidance to applicants in carrying 
out their assigned role. We disagree, however, with commenters who urge 
us to prescribe more definitive time periods or provide greater 
finality. Ultimately, the Commission has a government-to-government 
relationship with and fiduciary responsibility to Indian tribes, as 
manifested in the duties of consultation under general principles of 
law and under the specific provisions of the NHPA. Thus, absent the 
Indian tribe or NHO's agreement, only the Commission can confer 
finality with respect to tribes or NHOs for an undertaking that is not 
excluded from section 106 review. Moreover, while ultimately no further 
consultation is required if an undertaking will not affect a historic 
property of cultural and religious significance to a tribe or NHO, 
applicants must work with tribes and NHOs in their efforts to determine 
whether such eligible properties exist, and must refer to the 
Commission for finality absent tribal or NHO agreement with their 
identification efforts. It is our hope, through the guidance in the 
Nationwide Agreement and through the separate negotiation of voluntary 
best

[[Page 563]]

practices with Indian tribes and NHOs, to facilitate consensual 
resolutions that satisfy the needs of all parties swiftly and with a 
minimum expenditure of resources.
    49. Section V of the draft Nationwide Agreement establishes 
procedures to streamline and tailor the public participation provisions 
of the Council's rules to fit the communications context. Specifically, 
this section provides for notice of a proposed undertaking to the 
relevant local government and the public on or before the date the 
project is submitted to the SHPO/THPO, recommends means of providing 
public notice, and specifies the content of these notices. The 
provision also states that the SHPO/THPO may make available lists of 
additional interested organizations that should be contacted, and it 
requires the applicant to consider public comments and provide those 
comments to the SHPO/THPO. In addition, it sets out procedures for 
identifying consulting parties and the rights of consulting parties.
    50. We adopt the public participation provisions substantially as 
drafted. The Nationwide Agreement simplifies, by tailoring to the 
communications context, the process in the Council's existing rules for 
providing notice, involving the public, identifying consulting parties, 
and addressing comments received. We conclude that the provisions as 
drafted achieve the important public participation goals of the 
Council's rules in a manner that will reduce misunderstandings and 
relieve burdens on applicants, SHPOs/THPOs and the Commission alike.
    51. We reject most of the changes that commenters have proposed to 
this section. Specifically, we find that there should not be a firm 
time limit on public comments on a proposed undertaking, but that all 
comments received prior to completion of the review process should be 
considered. We further conclude, consistent with common practice, that 
use of the local zoning process, local newspaper publication, or an 
equivalent process constitutes sufficient notice of a proposed 
undertaking in the nature of a communications facility to the general 
public. Moreover, it is appropriate to permit the SHPO/THPO, as the 
consulting party most familiar with the local community of interest, to 
provide by generally available list the names of additional parties 
that should be contacted in order to further ensure a full opportunity 
for public participation under the circumstances of each case. In order 
to preserve applicants' flexibility to pursue the process in the most 
efficient sequence under the circumstances of each case, we only 
require that notice to the local government and the public occur on or 
before the date materials are submitted to the SHPO/THPO. We also find 
that adoption of a national confidentiality standard would be 
infeasible given the SHPOs'/THPOs' need for information and the 
diversity of laws on this subject in the various states.
    52. We do conclude that it is appropriate for the applicant to 
inform the SHPO/THPO, as part of the Submission Packet, of the identity 
of designated consulting parties. Accordingly, we add this provision to 
the Nationwide Agreement and we include a request for the relevant 
information on the attached forms. We find, however, that it is 
unnecessary and burdensome for applicants to notify the Commission of 
each undertaking as part of the public participation process. Finally, 
we conclude that the criterion encouraging applicants to grant 
consulting party status to one who has ``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,'' is consistent with, and required by, 
the Council's rules (36 CFR 800.2(c)(5)).
    53. Section VI of the draft Nationwide Agreement establishes 
procedures and standards for identifying historic properties, 
evaluating their historic significance, and assessing any effect the 
proposed undertaking may have upon those historic properties. 
Commenters address five principal subjects in this area, including: (1) 
The definition of area of potential effects (APE); (2) the means of 
identifying and evaluating historic properties within the APE for 
visual effects; (3) the need for archeological surveys; (4) the 
definition of an adverse effect; and (5) the use of qualified experts.
    54. The APE is the area within which an applicant must look for 
historic properties that may be affected by an undertaking. The draft 
Nationwide Agreement provides that each undertaking has one APE for 
direct (physical) effects, consisting of the area of potential ground 
disturbance and the portion of any historic property that will be 
destroyed or physically altered by the undertaking, and a second APE 
for indirect visual effects. The draft further establishes a rebuttable 
presumption that the latter APE is the area from which the tower will 
be visible within \1/2\ mile of the proposed tower for a tower that is 
200 feet or less in height, \3/4\ mile for a tower more than 200 feet 
but no more than 400 feet in height, and 1.5 miles for a taller tower. 
The applicant and the SHPO/THPO may mutually agree on an alternative to 
the presumed distance in any case, and disputes regarding whether to 
use an alternative APE may be submitted to the Commission for 
resolution.
    55. We adopt the APE provisions substantially as drafted, with only 
technical and clarifying revisions. In doing so, we emphasize that the 
scaled distances for visual APEs in the Nationwide Agreement are not 
inflexible mandates but presumptions, subject to variation in specific 
instances either by mutual agreement or, in cases of dispute, by 
Commission decision. Thus, while providing a structure to facilitate 
the determination of the APE in most cases, the Nationwide Agreement 
ultimately affords case-by-case flexibility. Although some commenters 
argue that the presumed distances are too small or too large, we are 
not persuaded that the presumed distances are inappropriate for the 
typical case, subject to departure where conditions require. We do add 
a general definition of the APE for visual effects in order to clarify, 
consistent with the definition of adverse effect, that it refers only 
to the geographic area in which the undertaking has the potential to 
introduce visual elements that diminish the setting, including the 
landscape, of a historic property where setting is a character-defining 
feature of eligibility.
    56. With respect to identification and evaluation of Historic 
Properties, the Council's rules define a Historic Property, in relevant 
part, as ``any prehistoric or historic district, site, building, 
structure, or object included in, or eligible for inclusion in, the 
National Register. * * *'' (36 CFR 800.16 (l)(1)). The Council's rules 
further provide that properties eligible for inclusion in the National 
Register include ``both properties formally determined as such in 
accordance with regulations of the Secretary of the Interior and all 
other properties that meet the National Register criteria'' (36 CFR 
800.16(l)(2)). This definition implements section 106 of the NHPA, 
which provides that a federal agency shall take into account the effect 
of any federal undertaking on any property ``included or eligible for 
inclusion in the National Register.''
    57. We have in the record a letter from the Chairmen of the U.S. 
House of Representatives Committee on Resources and Subcommittee on 
National Parks, Recreation and Public Lands to the Chairman of the 
Council, noting that the Council originally defined properties eligible 
for inclusion in the National Register under section

[[Page 564]]

106 to include only properties that the Keeper had previously 
determined to be eligible, and suggesting that the Council consider 
addressing this definitional issue either in the Nationwide Agreement 
or in a then-pending Council rulemaking. We determine not to alter the 
definition of Historic Property used in the draft Nationwide Agreement 
and the Council's rules. In this regard, we defer to the Council's 
clearly stated interpretation of its own governing statute, which was 
recently upheld by the federal court reviewing amendments to the 
Council's rules. See National Mining Association v. Slater, 167 
F.Supp.2d 265, 290-292 (D.D.C. 2001), rev'd in part, 324 F.3d 752 
(2003). We also note that Sec.  800.14 (36 CFR 800.14) of the Council's 
rules, which authorizes programmatic agreements, discusses alternative 
procedures to Subpart B of the Council's rules, but the definition of 
Historic Property is in Subpart C. For all these reasons, we conclude 
that questions regarding the definition of historic properties are 
outside the scope of this proceeding and should be addressed, if at 
all, by the Council.
    58. At the same time, we conclude, based on our review of the 
record, that it is appropriate to narrow and define applicants' 
obligations with respect to the identification and evaluation of 
historic properties within the APE for visual effects. Section 106 is 
silent on the methodology necessary to identify properties ``included 
in or eligible for inclusion in the National Register.'' Indeed, a 
federal court has held that the Council's requirement that federal 
agencies conduct surveys to identify historic properties is not 
mandated by the plain meaning of section 106. Under the Council's 
regulations, the agency must make ``a reasonable and good faith 
effort'' that takes into account the burdens of evaluation, the nature 
and extent of potential effects, the magnitude of the undertaking and 
the degree of federal involvement in the proposed undertaking. Council 
regulations provide further that this obligation may be met through 
procedures specified in subpart B of the rules or as modified in a 
Programmatic Agreement tailored to the agency's specific needs. Here, 
the record demonstrates that requiring applicants to undertake field 
surveys for thousands of new communications facilities annually causes 
considerable delay in the deployment of communications services and 
imposes a hefty burden on the resources of applicants and SHPO/THPOs 
alike. Moreover, only those historic properties within the APE for 
which visual setting or visual elements are character-defining features 
of eligibility are potentially subject to visual adverse effects. Of 
these properties, many will not incur adverse effects from a 
communications facility, depending on the extent to which the facility 
is visible from the property and other factors. Taking these 
considerations together, we conclude that the burdens of conducting 
field surveys and taking other active measures beyond reviewing defined 
sets of records to identify historic properties in the APE for visual 
effects, in the context of the facilities covered by this Nationwide 
Agreement, are not merited by the small potential benefit to historic 
preservation.
    59. Specifically, the Nationwide Agreement requires that, for most 
types of historic properties within the APE for visual effects, 
identification and evaluation efforts are limited to the applicant's 
review of five sets of records available within the SHPO/THPO's office 
or in a publicly available source identified by the SHPO/THPO. First, 
the applicant must identify properties that are actually listed in the 
National Register. Second, it must identify properties that the Keeper 
of the National Register has formally determined to be eligible. Third, 
identification efforts must include properties that the SHPO/THPO is in 
the process of nominating for the National Register, as certified by 
the SHPO/THPO. Fourth, identification includes properties that the 
SHPO/THPO's records identify as having previously been determined 
eligible by a consensus of the SHPO/THPO and another federal agency or 
local government representing the Department of Housing and Urban 
Development. Fifth, identification efforts shall include properties 
shown in the SHPO/THPO's inventory as having previously been evaluated 
by the SHPO/THPO and found by it to meet the National Register 
criteria. Except as described below, an applicant need not identify 
historic properties within the APE for visual effects that are not in 
one of these categories, nor need it evaluate the historic significance 
of such properties.
    60. We find, however, that review of records maintained by the 
SHPO/THPO is insufficient for identification of historic properties of 
traditional religious and cultural significance to Indian tribes and 
NHOs. As the Council's rules recognize, Indian tribes and NHOs possess 
special expertise in assessing the eligibility of historic properties 
that may possess religious and cultural significance to them. Moreover, 
Indian tribes and NHOs frequently have confidentiality and privacy 
concerns about including sites of religious and cultural significance 
to them in publicly available records. Therefore, we conclude that 
identification and evaluation of historic properties without the 
involvement of potentially affected Indian tribes and NHOs would create 
an unacceptable risk that historic properties of traditional cultural 
and religious significance to them may be overlooked. Accordingly, as 
part of the process of Indian tribe and NHO participation pursuant to 
section IV of the Nationwide Agreement, an applicant or the Commission 
shall gather information from Indian tribes or NHOs to assist in 
identifying and evaluating historic properties of traditional cultural 
and religious significance to them.
    61. As part of the Submission Packet to be provided to the SHPO/
THPO and consulting parties, the Nationwide Agreement requires the 
applicant to list the historic properties that it has identified 
pursuant to the Nationwide Agreement. Upon reviewing this list, the 
SHPO/THPO may identify other properties already included in its 
inventory within the APE that it considers eligible for inclusion in 
the National Register. In this event, the SHPO/THPO may notify the 
applicant of these additional properties pursuant to section VII.A.4 of 
the Nationwide Agreement in order for the applicant to assess the 
potential effects on such properties. We conclude that this process, 
without imposing additional burdens of identification and evaluation on 
applicants, provides a safeguard for the SHPO/THPO to identify specific 
historic properties that may be affected in rare instances where the 
process provided in the Nationwide Agreement might otherwise cause 
significantly affected properties to be overlooked.
    62. Finally, these limitations on the identification and evaluation 
process do not apply within the APE for direct effects. The APE for 
direct effects, because it is limited to the area where the tower will 
cause ground or physical disturbances, is much smaller than for visual 
effects. As a result, searches of those areas do not present the 
potential for delay likely to arise in assessing visual effects. At the 
same time, the potential magnitude of effects to properties within the 
APE for direct effects is much greater, in some instances including 
destruction of the property, and these effects are not readily 
discoverable other than through careful examination of the site. 
Therefore, additional identification efforts, potentially including an 
archeological field survey, may be

[[Page 565]]

required within the APE for direct effects.
    63. Upon review of the record, we conclude that an archeological 
field survey should not be required where archeological resources are 
unlikely to be affected. Many facilities are placed in locations where 
the likelihood of affecting archeological resources is remote; for 
example, on paved ground in a highly developed downtown area. Requiring 
onsite archeological work in these instances would add substantial 
delay and cost to facilities deployment to no appreciable benefit.
    64. At the same time, we conclude, that the Nationwide Agreement 
must define with specificity the circumstances under which a field 
survey is not required. First, no archeological field survey is 
necessary when the ground on which construction will occur has been 
previously disturbed. Where the ground has been previously disturbed in 
the locations and at the depths that are proposed to be excavated in 
connection with future construction, the likelihood of direct effects 
to archeological resources ordinarily is remote, whether or not 
archeological resources may be located at greater depths or in other 
portions of the project area. Due to differences in the compaction 
characteristics of soils in different parts of the Nation, however, we 
require a previous disturbance to at least two feet below the proposed 
construction depth (excluding footings and other anchoring mechanisms). 
We find that a two-foot margin is necessary to provide reasonable 
assurance that archeological resources are unlikely to be affected 
under any soil conditions. The second circumstance under which no 
archeological field survey is required is when geomorphological 
evidence indicates that cultural-resource bearing soils do not occur 
within the project area, or may occur but at more than two feet below 
the proposed construction depth. Where a qualified expert has found 
that such conditions exist, direct effects on archeological resources 
are inherently unlikely, and accordingly it is ordinarily not 
reasonable to require further identification efforts.
    65. With respect to both of these criteria, the depth of proposed 
construction to be considered excludes footings and other anchoring 
mechanisms that may require excavation substantially deeper than the 
general level at a site. These footings cover very small areas within a 
project site, usually no more than two to three feet (and often less) 
in diameter, and may extend 20 to 30 feet deep or more. Under the 
circumstances, we find that a field survey in such narrow deep areas is 
infeasible, and indeed may typically cause more harm than the minimal 
amount of damage to archeological resources that could occur during 
construction. Therefore, performing a field survey at the depths 
reached by footings and other anchoring mechanisms is ordinarily not 
part of a reasonable and good faith effort to identify historic 
properties.
    66. Finally, similar to the procedure for identifying historic 
properties that may incur visual effects, we include provisions to 
ensure the ability of Indian tribes and NHOs to provide information 
regarding the potential presence of archeological historic properties 
of religious and cultural significance to them, and we provide a 
safeguard opportunity for the SHPO/THPO to identify the need for a 
field survey. Specifically, as part of the tribal and NHO participation 
process pursuant to section IV of the Nationwide Agreement, the 
applicant or the Commission must gather information from identified 
Indian tribes and NHOs to assist in identifying archeological historic 
properties, including the need for a field survey. In addition, the 
applicant must substantiate its determination that no archeological 
field survey is necessary as part of its Submission Packet, and the 
SHPO/THPO may identify a need for a field survey, notwithstanding the 
applicability of either of the criteria discussed above, during its 
review pursuant to section VII.A. We emphasize that an Indian tribe or 
NHO, or a SHPO/THPO, must provide evidence supporting a high 
probability of the presence of intact archeological historic properties 
within the APE for direct effects in order for a field survey to be 
necessary under these circumstances.
    67. Once historic properties have been identified and their 
historic significance evaluated, the next step in the section 106 
process is assessment of whether the proposed undertaking would have an 
adverse effect on those historic properties. The draft Nationwide 
Agreement provides that effects shall be evaluated using the Criteria 
of Adverse Effect set forth in the Council's rules. The draft further 
provides guidance, consistent with the Council's rules, that a facility 
will have a visual adverse effect if its visual effect will noticeably 
diminish the integrity of one or more characteristics qualifying a 
property for the National Register, and that a facility will not cause 
a visual adverse effect unless visual setting or elements are 
character-defining features of eligibility. The provision then provides 
examples of historic properties on which visual adverse effects might 
occur.
    68. We adopt with some revisions the provision of the Nationwide 
Agreement describing visual adverse effects. Although the Council's 
rule is not entirely clear, it is plain that setting is among the 
characteristics of a historic property that, when altered and 
diminished in integrity, may produce an adverse effect. It seems 
reasonable to us that, under some circumstances, the introduction of a 
large visual intrusion outside the boundaries of a historic property 
within the APE may diminish the integrity of setting, including the 
landscape, on that property in such a way as to alter a characteristic 
of visual setting or visual elements that qualifies the property for 
inclusion in the National Register. By contrast, where the features 
that qualify a property for listing on the National Register are 
unrelated to its visual setting (for example, its interior design), 
then a visual intrusion outside the property boundaries will not 
constitute an adverse effect. Indeed, any other view arguably would be 
inconsistent with section 106, which directs federal agencies, without 
limitation, to consider the ``effect'' of their undertakings on 
historic properties. More important, the Council has consistently 
interpreted section 106 and its rules in this manner. We therefore 
disagree with commenters who suggest that a facility must be located 
within the boundary of a historic property in order to have a visual 
adverse effect on that property.
    69. We do revise the draft Nationwide Agreement to clarify that a 
facility may have a visual adverse effect on a historic property only 
if the historic property is within the APE. In addition, the presence 
within the APE of a historic property for which visual setting or 
visual elements are character-defining features of eligibility does not 
in itself mean that the undertaking will necessarily have an adverse 
effect on that property, but rather the undertaking must noticeably 
diminish the integrity of a qualifying characteristic of eligibility. 
Finally, we delete the examples of types of properties to which visual 
adverse effects may occur. We conclude that in the context of the 
clarified definition of visual adverse effect, the addition of examples 
of representative types of situations where there may be but is not 
necessarily a visual adverse effect would create an unnecessary risk of 
confusion.
    70. We revise the Nationwide Agreement to require that aspects of 
identification, evaluation, and assessment be performed by experts who 
meet the Secretary of the Interior's

[[Page 566]]

qualifications. The NHPA (16 U.S.C. 470h-4(a)) expressly recognizes the 
importance of using qualified experts in historic preservation reviews. 
It states that ``[a]gency personnel or contractors responsible for 
historic resources shall meet qualification standards established by 
the Office of Personnel Management in consultation with the Secretary 
and appropriate professional societies of the disciplines involved.'' 
We find it consistent with the objectives embodied in the NHPA that 
where a licensee or applicant, like a contractor, performs portions of 
the section 106 process that implicate professional expertise in the 
agency's stead, it also should use Secretary-qualified experts.
    71. The Secretary's standards generally establish minimum levels of 
education and/or experience for qualified experts in history, 
architectural history, archeology, and related fields. The record 
before us details the errors in the section 106 process, leading to 
delays, that often occur where qualified experts are not used. This 
persuades us that the mandatory use of Secretary-qualified experts for 
identification and evaluation of properties within the APE for direct 
effects, and for assessment of effects on all historic properties, is 
critical to provide the level of reliability and trust necessary to 
support the streamlined procedures and standards established in the 
Nationwide Agreement. The standards in the Nationwide Agreement for 
these aspects of historic preservation review are not and by their 
nature cannot be so objective as to render the use of qualified experts 
unnecessary. Thus, requiring the use of Secretary-qualified experts for 
these purposes advances the objectives of section 214 of the NHPA.
    72. With respect to the identification of properties within the APE 
for visual effects, by contrast, the Nationwide Agreement largely 
reduces the applicant's obligations to reviewing defined sets of 
records in the SHPO's/THPO's files. We find that specialized training 
is not necessary to glean from these records whether the properties 
contained therein have been previously determined or considered 
eligible for inclusion in the National Register as specified in the 
Nationwide Agreement. Therefore, while we encourage applicants to use 
Secretary-qualified experts to identify historic properties within the 
APE for visual effects, we do not require the use of Secretary-
qualified experts for this purpose.
    73. Although we encourage and expect that applicants will use 
experts with relevant experience in the section 106 process and the 
specific geographic area, we do not include such a requirement in the 
Nationwide Agreement. Unlike the Secretary's standards for general 
professional qualifications, there are no widely accepted or legally 
mandated standards for section 106 experience or geographic expertise. 
Therefore, any requirement along these lines would be either 
potentially arbitrary or too general to enforce.
    74. Section VII of the Nationwide Agreement establishes procedures 
for SHPO/THPO review of applicants' determinations and for submission 
of certain matters to the Commission. Generally, the draft Nationwide 
Agreement provides that applicants shall submit their determinations to 
the SHPO/THPO using the prescribed Submission Packet, and that the 
SHPO/THPO has 30 days to review the submission. If the SHPO/THPO agrees 
with the applicant's determination that no historic properties would be 
affected or does not respond to such a determination within 30 days, 
the section 106 process is complete and no Commission processing is 
necessary. If the SHPO/THPO does not respond within 30 days to an 
applicant's determination of no adverse effect, the draft establishes a 
presumption that the SHPO/THPO concurs with the applicant's 
determination, requires the applicant to forward the Submission Packet 
to the Commission, and permits the Commission to establish a time 
period within which the process will be considered complete unless the 
Commission notifies the applicant otherwise. Section VII also specifies 
procedures for resolution in cases of adverse effect, similar to those 
set forth in the Council's rules. In addition, the section provides 
that instances in which the applicant and SHPO/THPO do not agree on an 
assessment may be submitted to the Commission.
    75. We adopt section VII of the Nationwide Agreement substantially 
as written. With respect to Applicant determinations of no adverse 
effect, while we expect that SHPOs/THPOs will endeavor in good faith to 
review such determinations within the time frame specified in the 
Nationwide Agreement, we conclude that it is appropriate to require a 
submission to the Commission where the SHPO/THPO fails to do so. By 
their nature, determinations of no adverse effect ordinarily involve 
closer and more subjective judgments of whether an adverse effect may 
occur than do cases where no historic properties are affected. Indeed, 
this difference is reflected in the generally applicable procedures set 
forth in the Council's rules. Therefore, consistent with the positions 
taken by the Council and the Conference in negotiating the Nationwide 
Agreement, it is sound historic preservation policy that where a SHPO/
THPO has not reviewed an applicant's determination of no adverse 
effect, the federal agency should have the opportunity to do so. In 
order to avoid undue delay, we conclude that an applicant's 
determination of no adverse effect will be final 15 days after 
electronic submission to the Commission, or 25 days after submission to 
the Commission by other means, unless the relevant Bureau notifies the 
applicant otherwise. We find that an additional 10 days is appropriate 
for hard copy submissions both because non-electronic submissions may 
take longer to reach the relevant personnel and in order to encourage 
electronic filing, which saves resources and reduces uncertainty for 
all parties.
    76. We decline to adopt other time limits. While we will endeavor 
to resolve disputes between SHPOs/THPOs and applicants as quickly as 
possible, and to facilitate the timely resolution of adverse effects, 
we conclude that the variety of factual circumstances under which these 
situations may arise makes it inadvisable to adopt binding time frames. 
We also find that up to five additional days for SHPOs/THPOs to review 
comments that are filed toward the end of their review period is 
reasonable, given that such filings will necessitate additional review 
only of the new material. In addition, given the variety of factual 
situations that may arise, we find it appropriate to leave the parties 
flexibility to determine in each matter whether and when to consider 
means to achieve conditional findings of no adverse effect. We find no 
legal support or rationale for the suggestion that the Council must be 
given an opportunity to review determinations of no historic properties 
affected and no adverse effect under a programmatic agreement.
    77. We do, however, revise and clarify the draft provision for the 
return and amendment of inadequate submissions. The intent of the 
requirement that resubmissions occur within 60 days is to permit SHPOs/
THPOs to manage their dockets effectively by dismissing stale 
proceedings. We did not intend to suggest any limitation on the 
resubmission of a project as a new matter, and we amend the Nationwide 
Agreement to clarify this point. Additionally, we specify that the 
resubmission commences a new 30-day review period. While we are aware 
of

[[Page 567]]

the potential for SHPOs/THPOs to evade the time limit in the Nationwide 
Agreement through unnecessary returns, we believe the requirement to 
describe deficiencies will limit this potential, and we conclude that 
it is unreasonable to permit applicants to benefit from a potentially 
shorter ultimate review period due to their own initial shortcomings. 
We intend to monitor any complaints about the application of this 
provision, and we will not hesitate to request an amendment or other 
appropriate measures from the other signatories if experience proves it 
necessary.
    78. The draft Nationwide Agreement proposes forms (or templates) 
that Applicants would be required to use when submitting materials to 
SHPOs/THPOs. The forms are designed to simplify the submission of 
section 106 material, clarify for applicants and SHPOs/THPOs what is 
required, and provide uniformity in submissions nationwide. The draft 
Nationwide Agreement includes two forms: Form NT for proposed new 
towers, and Form CO for proposed collocations that are not excluded 
from section 106 review by either the Collocation Agreement or the 
Nationwide Agreement.
    79. We revise and adopt Form NT and Form CO for submissions to 
SHPOs and THPOs. In an effort to simplify the forms and make them more 
user-friendly, we make a number of formal changes in response to the 
comments. Finally, in order to achieve the benefits of uniformity and 
simplicity for SHPOs/THPOs as well as applicants, we make use of the 
forms mandatory for all undertakings that are not excluded from section 
106 review. We conclude that the negotiating process as well as the 
notice and comment in this rulemaking proceeding have provided 
interested parties with ample opportunities to influence their content 
and form.
    80. We agree with most commenters that the Nationwide Agreement 
should apply prospectively. The Nationwide Agreement includes not only 
timelines and procedures, but also standards and forms that help ensure 
that the timelines and procedures will be reasonable for SHPOs/THPOs 
and will not compromise historic preservation. Because pending 
applications may not meet the Nationwide Agreement's standards, and in 
all likelihood will not use the prescribed forms, to apply it 
automatically to all pending cases would cause confusion and 
potentially impose unreasonable burdens on SHPOs/THPOs. We note, 
however, that should a party wish to take advantage of the provisions 
in the Nationwide Agreement, it may withdraw its filing and resubmit 
under the Nationwide Agreement.
    81. In the NPRM, we proposed amending Sec.  1.1307(a)(4) of the 
Commission's rules, which directs that proposed undertakings be 
evaluated for their effects on historic properties, expressly to 
require that applicants follow the procedures set forth in the 
Council's rules, as modified and supplemented by the Nationwide 
Agreement and the Collocation Agreement. We adopt the change to Sec.  
1.1307(a)(4) as proposed. The rule will bring administrative certainty 
by making it clear that the provisions of the Nationwide Agreement are 
mandatory and binding upon applicants, and that non-compliance with its 
procedures will subject a party to potential enforcement action.

Final Regulatory Flexibility Analysis

    82. As required by the Regulatory Flexibility Act of 1980, as 
amended (``RFA'') \3\ an Initial Regulatory Flexibility Analysis 
(``IRFA'') was incorporated in the Notice of Proposed Rulemaking 
(``NPRM'') for the Nationwide Programmatic Agreement Regarding the 
section 106 National Historic Preservation Act Review Process 
(``Nationwide Agreement'').\4\ The Federal Communications Commission 
(``Commission'' or ``FCC'') sought written public comment on the 
proposals in the NPRM, including comment on the IRFA. This present 
Final Regulatory Flexibility Analysis (``FRFA'') conforms to the 
RFA.\5\
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    \3\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996).
    \4\ See Nationwide Programmatic Agreement Regarding the Section 
106 National Historic Preservation Act Review Process, WT Docket No. 
03-128, Notice of Proposed Rulemaking, 18 FCC Rcd 11,664 (2003) 
(``Notice''); Errata, 18 FCC Rcd 12,854 (2003).
    \5\ See 5 U.S.C. 604.
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A. Need for, and Objectives of, Adopted Rules

    83. Under Commission rules implementing the National Environmental 
Policy Act of 1969, as amended (``NEPA''),\6\ licensees and other 
entities that build towers and other communications facilities 
(``Applicants'') are required to assess such proposed facilities to 
determine whether they may significantly affect the environment under 
Sec.  1.1307 of the Commission's rules.\7\ For example, under Sec.  
1.1307(a)(4) of the Commission's rules, those Applicants currently are 
obliged to use the detailed procedures specified in the rules of the 
Advisory Council on Historic Preservation (``Council'') (36 CFR 800.1 
et seq.) to determine whether their proposed facilities may affect 
districts, sites, buildings, structures, or objects significant in 
American history, architecture, archeology, engineering or culture that 
are listed or eligible for listing in the National Register of Historic 
Places (``historic properties'').
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    \6\ 42 U.S.C. 4321-4335.
    \7\ 47 CFR 1.1307.
---------------------------------------------------------------------------

    84. These Council procedures, when combined with the procedures 
employed by the various State Historic Preservation Officers 
(``SHPOs'') and Tribal Historic Preservation Officers (``THPOs''), and 
when multiplied by the number of facilities being constructed, created 
an unnecessarily inefficient review process for Applicants. For 
example, in the late 1990's, coincident with the vast increase in tower 
constructions necessitated by the expanded deployment of wireless 
mobile services, unacceptable delays in completing traditional section 
106 reviews under the Council's rules began to occur and continue to be 
experienced. The Commission therefore, began to explore alleviating 
such procedural inefficiencies by using the provision in the rules of 
the Council that allows for the creation of programmatic agreements 
between the Council and other agencies.\8\ Generally speaking, such 
programmatic agreements are intended to craft specific procedures that 
more closely reflect the needs and practices of specific federal 
agencies and the industries they regulate.
---------------------------------------------------------------------------

    \8\ 36 CFR 800.14(b).
---------------------------------------------------------------------------

    85. Under Sec.  800.14(b) of its rules, the Council, Federal 
agencies, such as the Commission, and the appropriate SHPO or National 
Conference of State Historic Preservation Officers (``NCSHPO'') may 
negotiate a programmatic agreement to govern the implementation of a 
particular program when, for example, the effects on historic 
properties are multi-state or when nonfederal parties are delegated 
major responsibilities. Accordingly, to streamline and tailor the pre-
construction review of towers and other communications facilities under 
section 106 of the National Historic Preservation Act (``NHPA'')\9\ and 
the related Commission and Council rules, the Council, the Commission, 
and NCSHPO negotiated a programmatic agreement under Sec.  800.14(b) of 
the Council's rules. Some objectives of the Nationwide Agreement and 
the related rule revisions are to increase Applicants' awareness of 
applicable

[[Page 568]]

laws and rules; to tailor and streamline the current procedures under 
the rules of the Council and the Commission; and to ensure compliance 
by Applicants with the Nationwide Agreement and related Commission and 
Council rules.
---------------------------------------------------------------------------

    \9\ 16 U.S.C. 470f.
---------------------------------------------------------------------------

    86. In this Report and Order, the Commission incorporates into its 
rules the recently agreed upon Nationwide Agreement, which, as 
discussed below, will streamline and tailor existing procedures under 
the Commission and Council rules for the review of certain Undertakings 
for communications facilities under section 106 of the National 
Historic Preservation Act of 1966 (``NHPA'').\10\
---------------------------------------------------------------------------

    \10\ See 16 U.S.C. 470 et seq.
---------------------------------------------------------------------------

    87. The Nationwide Agreement clarifies and tailors the obligations 
\11\ of the Applicants to assist the Commission in meeting its 
responsibilities under NEPA and the NHPA. First, to reduce regulatory 
burdens (e.g., identifying historic properties, preparing submission 
packets) on both large and small Applicants, the Nationwide Agreement, 
in Part III, excludes from routine review under section 106 of the NHPA 
certain Undertakings that are unlikely to affect historic properties.
---------------------------------------------------------------------------

    \11\ See 47 CFR 1.1307(a)(4) (directing that proposed 
undertakings be evaluated for their effects on historic properties).
---------------------------------------------------------------------------

    88. Second, for those Undertakings that are not addressed by the 
Part III exclusions and that, therefore, remain subject to review, the 
draft Agreement specifies standards and procedures that Applicants must 
follow when completing the section 106 review. For example, for 
undertakings that remain subject to review, the Agreement sets forth 
guidelines for tribal participation; \12\ procedures for ensuring 
compliance with the NHPA's public participation requirements;\13\ 
methods for establishing the area of potential effects, identifying and 
evaluating historic sites, and assessing effects;\14\ and procedures 
for submitting projects to, and for review by, the SHPO or THPO and the 
Commission.\15\ The Nationwide Agreement also includes procedures to be 
followed when historic properties (e.g., archeological artifacts) are 
discovered during construction; \16\ processes to be followed when 
facilities are constructed prior to completion of the section 106 
process; \17\ and provisions for the submission of public comments and 
objections.\18\
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    \12\ Nationwide Agreement, Part IV.
    \13\ Nationwide Agreement, Part V.
    \14\ Nationwide Agreement, Part VI.
    \15\ Nationwide Agreement, Part VII.
    \16\ Nationwide Agreement, Part IX.
    \17\ Nationwide Agreement, Part X.
    \18\ Nationwide Agreement, Part XI.
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    89. In addition, the Nationwide Agreement includes forms which 
Applicants must use for section 106 submissions to SHPOs, as well as to 
THPOs that have agreed to accept such forms for projects on tribal 
lands that are not subject to review by a SHPO.
    90. The Commission also amends its rules in order to make clear 
that the procedures in the Nationwide Agreement will be binding on 
regulatees, who are subject to its terms, and that non-compliance with 
these procedures would subject a party to potential Commission 
enforcement action such as admonishment, forfeiture, or revocation of a 
license to operate, where appropriate. Specifically, the Commission 
amends Sec.  1.1307(a)(4) to specify that, in order to ascertain 
whether a proposed action may affect properties that are listed or 
eligible for listing in the National Register,\19\ an Applicant must 
follow the procedures set forth in the rules of the Council, as 
modified and supplemented by the Nationwide Programmatic Agreement for 
the Collocation of Wireless Antennas and the Nationwide Agreement. Both 
agreements will be included as appendices in the Code of Federal 
Regulations.
---------------------------------------------------------------------------

    \19\ ``Listed'' properties are those properties for which an 
application for inclusion in the National Register of Historic 
Places (``National Register'') has been approved. Under Section 
800.16(l)(2) of the regulations of the Advisory Council on Historic 
Preservation, 36 CFR 800.16(l)(2), the term ``eligible for inclusion 
in the National Register'' includes both properties formally 
determined as such by the Keeper of the National Register in 
accordance with applicable regulations of the Secretary of the 
Interior and all other properties that meet the National Register 
criteria. Information on the characteristics of properties that meet 
these criteria is available at the National Register Web site: 
http://www.cr.nps.gov/nr.
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B. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA

    91. The Commission considered the potential impact of its actions 
on smaller entities throughout the process of negotiating and drafting 
the Nationwide Agreement. One of its goals has been to make the 
environmental review process more efficient and standardized so that 
smaller entities can learn and complete the process more quickly.
    92. We received one comment in response to the IRFA. The Eastern 
Band of Cherokee Indians (``EBCI'') opposes any streamlining efforts, 
whether for large or small businesses, that could have the effect of 
reducing or eliminating government-to-government consultation between 
federal agencies and tribes. EBCI also believes that some language in 
the IRFA should have been stronger to make clear that an Applicant's 
obligations under the Nationwide Agreement (e.g., notice, timely 
submission of necessary documents, and consultation) are mandatory.
    93. With respect to the impact of the Nationwide Agreement on 
government-to-government consultation, we address the concerns of EBCI 
most specifically in section IV of the Nationwide Agreement. In 
particular, as explained in section III.C.2. of the Report and Order 
\20\ we have taken considerable care in the Nationwide Agreement to 
fulfill the Commission's duty of government-to-government consultation 
in all cases that cannot be consensually resolved without such 
consultation. With regard to the obligations of Applicants to comply 
with the terms of the Nationwide Agreement, we have revised Sec.  
1.1307(a)(4) of our rules to ensure that regulatees understand that 
compliance with the Nationwide Agreement is mandated. However, the 
Commission notes that, wherever appropriate, any differential burdens 
favoring small entities have been preserved by the Nationwide 
Agreement. Furthermore, the Commission has made a concerted effort to 
reduce burdens on small entities. That being said, the Commission 
believes that all entities--large and small--will benefit from 
compliance with the Nationwide Agreement.
---------------------------------------------------------------------------

    \20\ Nationwide Agreement Report and Order at section III.C.2.
---------------------------------------------------------------------------

C. Description and Estimate of the Number of Small Entities to Which 
the Adopted Rules Will Apply

    94. The RFA directs agencies to provide a description of, and where 
feasible, an estimate of the number of small entities that may be 
affected by proposed rules.\21\ The RFA generally defines the term 
``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.''\22\ In addition, the term ``small business'' has the 
same meaning as the term ``small business concern'' under the Small 
Business Act.\23\ A ``small business concern'' is one which:

[[Page 569]]

(1) Is independently owned and operated; (2) is not dominant in its 
field of operation; and (3) satisfies any additional criteria 
established by the Small Business Administration (``SBA'').\24\
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    \21\ 5 U.S.C. 604(a)(3).
    \22\ 5 U.S.C. 604(6).
    \23\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small business concern'' in the Small Business Act, 15 U.S.C. 
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a 
small business applies ``unless an agency, after consultation with 
the Office of Advocacy of the Small Business Administration and 
after opportunity for public comment, establishes one or more 
definitions of such term which are appropriate to the activities of 
the agency and publishes such definition(s) in the Federal 
Register.''
    \24\ 15 U.S.C. 632.
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    95. The Report and Order and, accordingly, the Nationwide 
Agreement, will produce a rule change that will impose requirements on 
a large number of entities in determining whether facilities that they 
propose to construct may affect historic properties listed or eligible 
for listing on the National Register of Historic Places.\25\ Due to the 
number and diversity of Applicants, including small entities that are 
Commission licensees as well as non-licensee tower companies, we now 
classify and quantify them in the remainder of this section.
---------------------------------------------------------------------------

    \25\ 47 CFR 1.1307(a)(4).
---------------------------------------------------------------------------

Wireless Telecommunications
    96. Cellular Licensees. The SBA has developed a small business size 
standard for small businesses in the category ``Cellular and Other 
Wireless Telecommunications.''\26\ Under that SBA category, a business 
is small if it has 1,500 or fewer employees.\27\ According to the 
Bureau of the Census, only twelve firms from a total of 1238 cellular 
and other wireless telecommunications firms operating during 1997 had 
1,000 or more employees.\28\ Therefore, even if all twelve of these 
firms were cellular telephone companies with more than 1,500 employees, 
nearly all cellular carriers were small businesses under the SBA's 
definition.
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    \26\ 13 CFR 121.201, North American Industry Classification 
System (NAICS code 517212 (Changed from 513322 in October 2002).
    \27\ Id.
    \28\ U.S. Department of Commerce, U.S. Census Bureau, 1997 
Economic Census, Information--Subject Series, Establishment and Firm 
Size, Table 5--Employment Size of Firms Subject to Federal Income 
Tax at 64, NAICS code 517212 (October 2000).
---------------------------------------------------------------------------

    97. 220 MHz Radio Service--Phase I Licensees. The 220 MHz service 
has both Phase I and Phase II licenses. Phase I licensing was conducted 
by lotteries in 1992 and 1993. There are approximately 1,515 such non-
nationwide licensees and four nationwide licensees currently authorized 
to operate in the 220 MHz band. The Commission has not developed a 
definition of small entities specifically applicable to such incumbent 
220 MHz Phase I licensees. To estimate the number of such licensees 
that are small businesses, we apply the definition under the SBA rules 
applicable to ``Cellular and Other Wireless Telecommunication'' 
companies. This category provides that a small business is a wireless 
company employing no more than 1,500 persons.\29\ According to Census 
Bureau data for 1997, there were 977 firms in this category, total, 
that operated for the entire year.\30\ Of this total, 965 firms had 999 
or fewer employees, and an additional 12 firms had 1,000 employees or 
more.\31\ If this general ratio continues in 2004 in the context of 
Phase I 220 MHz licensees, the Commission estimates that nearly all 
such licensees are small businesses under the SBA's small business size 
standard.
---------------------------------------------------------------------------

    \29\ 13 CFR 121.201.
    \30\ U.S. Census Bureau, 1997 Economic Census, Subject Series: 
Information, ``Employment Size of Firms Subject to Federal Income 
Tax: 1997,'' Table 5, NAICS code 513322 (issued Oct. 2000).
    \31\ Id. The census data do not provide a more precise estimate 
of the number of firms that have 1,500 or fewer employees; the 
largest category provided is ``Firms with 1,000 employees or more.''
---------------------------------------------------------------------------

    98. 220 MHz Radio Service--Phase II Licensees. The Phase II 220 MHz 
service is subject to spectrum auctions. In the 220 MHz Third Report 
and Order, we adopted a small business size standard for defining 
``small'' and ``very small'' businesses for purposes of determining 
their eligibility for special provisions such as bidding credits and 
installment payments.\32\ This small business standard indicates that a 
``small business'' is an entity that, together with its affiliates and 
controlling principals, has average gross revenues not exceeding $15 
million for the preceding three years.\33\ A ``very small business'' is 
defined as an entity that, together with its affiliates and controlling 
principals, has average gross revenues that do not exceed $3 million 
for the preceding three years.\34\ The SBA has approved these small 
size standards.\35\ Auctions of Phase II licenses commenced on 
September 15, 1998, and closed on October 22, 1998.\36\ In the first 
auction, 908 licenses were auctioned in three different-sized 
geographic areas: three nationwide licenses, 30 Regional Economic Area 
Group (``EAG'') Licenses, and 875 Economic Area (``EA'') Licenses. Of 
the 908 licenses auctioned, 683 were sold.\37\ Thirty-nine small 
businesses won licenses in the first 220 MHz auction. The second 
auction included 225 licenses: 216 EA licenses and 9 EAG licenses. 
Fourteen companies claiming small business status won 158 licenses.\38\
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    \32\ Amendment of Part 90 of the Commission's Rules to Provide 
for the Use of the 220-222 MHz Band by the Private Land Mobile Radio 
Service, PR Docket No. 89-552, Third Report and Order, 12 FCC Red 
10943, 11068-70, paragraphs 291-295 (1997) (220 MHz Third Report and 
Order).
    \33\ Id. at paragraph 291.
    \34\ Id.
    \35\ See Letter to Daniel Phythyon, Chief, Wireless 
Telecommunications Bureau, Federal Communications Commission, from 
Aida Alvarez, Administrator, Small Business Administration, dated 
January 6, 1998.
    \36\ See generally ``220 MHz Service Auction Closes,'' Public 
Notice, 14 FCC Red 605 (WTB 1998).
    \37\ ``FCC Announces It is Prepared to Grant 654 Phase II 220 
MHz Licenses after Final Payment is Made,'' Public Notice, 14 FCC 
Red 1085 (WTB 1999).
    \38\ ``Phase II 220 MHz Service Spectrum Auction Closes,'' 
Public Notice, 14 FCC Red 11218 (WTB 1999).
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    99. 700 MHz Guard Band Licenses. In the 700 MHz Guard Band Order, 
we adopted size standards for ``small businesses'' and ``very small 
businesses'' for purposes of determining their eligibility for special 
provisions such as bidding credits and installment payments.\39\ A 
small business is an entity that, together with its affiliates and 
controlling principals, has average gross revenues not exceeding $40 
million for the preceding three years.\40\ Additionally, a ``very small 
business'' is an entity that, together with its affiliates and 
controlling principals, has average gross revenues that are not more 
than $15 million for the preceding three years.\41\ An auction of 52 
Major Economic Area (``MEA'') licenses commenced on September 6, 2000, 
and closed on September 21, 2000.\42\ Of the 104 licenses auctioned, 96 
licenses were sold to 9 bidders. Five of these bidders were small 
businesses that won a total of 26 licenses. A second auction of 700 MHz 
Guard Band licenses commenced on February 13, 2001 and closed on 
February 21, 2001. All eight of the licenses auctioned were sold to 
three bidders. One of these bidders was a small business that won a 
total of two licenses.\43\
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    \39\ See Service Rules for the 746-764 MHz Bands, and Revisions 
to Part 27 of the Commission's Rules, WT Docket No. 99-168, Second 
Report and Order, 15 FCC Red 5299-5344, paragraph 108 (2000).
    \40\ Id. at paragraphs 106-108.
    \41\ Id. at paragraphs 106-108.
    \42\ See generally, ``220 MHz Service Auction Closes: Winning 
Bidders in the Auction of 908 Phase II 220 MHz Service Licenses,'' 
Public Notice, DA 98-2143 (rel. October 23, 1998).
    \43\ ``700 MHz Guard Bands Auction Closes: Winning Bidders 
Announced,'' Public Notice, 16 FCC 4590 (WTB 2001).
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    100. Lower 700 MHz Band Licenses. We adopted criteria for defining 
three groups of small businesses for purposes of determining their 
eligibility for special provisions such as bidding credits.\44\ We have 
defined a small business as an entity that, together with its 
affiliates and controlling principals, has average gross revenues not

[[Page 570]]

exceeding $40 million for the preceding three years.\45\ A very small 
business is defined as an entity that, together with its affiliates and 
controlling principals, has average gross revenues that are not more 
than $15 million for the preceding three years.\46\ Additionally, the 
lower 700 MHz Service has a third category of small business status 
that may be claimed for Metropolitan/Rural Service Area (``MSA/RSA'') 
licenses. The third category is entrepreneur, which is defined as an 
entity that, together with its affiliates and controlling principals, 
has average gross revenues that are not more than $3 million for the 
preceding three years. An auction of 740 licenses (one license in each 
of the 734 MSAs/RSAs and one license in each of the six Economic Area 
Groupings) commenced on August 27, 2002, and closed on September 18, 
2002.\47\ Of the 740 licenses available for auction, 484 licenses were 
sold to 102 winning bidders. Seventy-two of the winning bidders claimed 
small business, very small business or entrepreneur status and won a 
total of 329 licenses.
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    \44\ See Reallocation and Service Rules for the 698-746 MHz 
Spectrum Band (Television Channels 52-59), GN Docket No. 01-74, 
Report and Order, 17 FCC Red 1022 (2002).
    \45\ Id. at paragraph 172.
    \46\ Id. at paragraph 172.
    \47\ See ``Lower 700 MHz Band Auction Closes,'' 17 FCC Red 17272 
(2002).
---------------------------------------------------------------------------

    101. Upper 700 MHz Band Licenses. The Commission released a Report 
and Order, authorizing service in the upper 700 MHz band.\48\ No 
auction has been held yet.
---------------------------------------------------------------------------

    \48\ Service Rules for the 746-764 and 776-794 MHz Bands, and 
Revisions to Part 27 of the Commission's Rules, WT Docket No. 99-
168, Second Memorandum Opinion and Order, 16 FCC Red 1239 (2001).
---------------------------------------------------------------------------

    102. Private and Common Carrier Paging. In the Paging Third Report 
and Order, we developed a small business size standard for ``small 
businesses'' and ``very small businesses'' for purposes of determining 
their eligibility for special provisions such as bidding credits and 
installment payments.\49\ A ``small business'' is an entity that, 
together with its affiliates and controlling principals, has average 
gross revenues not exceeding $15 million for the preceding three years. 
Additionally, a ``very small business'' is an entity that, together 
with its affiliates and controlling principals, has average gross 
revenues that are not more than $3 million for the preceding three 
years. The SBA has approved these size standards.\50\ An auction of MEA 
licenses commenced on February 24, 2000, and closed on March 2, 
2000.\51\ Of the 985 licenses auctioned, 440 were sold. Fifty-seven 
companies claiming small business status won licenses. At present, 
there are approximately 24,000 Private Paging site-specific licenses 
and 74,000 Common Carrier Paging site-specific licenses. According to 
the most recent Trends in Telephone Service, 471 carriers reported that 
they were engaged in the provision of either paging and messaging 
services or other mobile services.\52\ Of those, the Commission 
estimates that 450 are small, under the SBA business size standard 
specifying that firms are small if they have 1,500 or fewer 
employees.\53\
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    \49\ 220 MHz Third Report and Order, 12 FCC Red at 11068-70, 
paragraphs 291-295, 62 FR 16004 at paragraphs 291-295 (1997).
    \50\ See Letter from Aida Alvarez, Administrator, Small Business 
Administration to Thomas Sugrue, Chief, Auctions and Industry 
Analysis Division, Wireless Telecommunications Bureau, Federal 
Communications Commission (June 4, 1999).
    \51\ Revision of Part 22 and Part 90 of the Commission's Rules 
to Facilitate Future Development of Paging Systems, WT Docket No. 
96-18, PR Docket No. 93-253, Memorandum Opinion and Order on 
Reconsideration and Third Report and Order, 14 FCC Red 10030, 10085, 
paragraph 98 (1999).
    \52\Trends in Telephone Service at Table 5.3 (rel. Aug. 2001).
    \53\ Id. The SBA size standard is that of Paging, 13 CFR 
121.201, NAICS code 517211.
---------------------------------------------------------------------------

    103. Broadband Personal Communications Service. The Broadband 
Personal Communications Service (``PCS'') spectrum is divided into six 
frequency blocks designated A through F, and the Commission has held 
auctions for each block. The Commission has created a small business 
size standard for Blocks C and F as an entity that has average gross 
revenues of less than $40 million in the three previous calendar 
years.\54\ For Block F, an additional small business size standard for 
``very small business'' was added and is defined as an entity that, 
together with its affiliates, has average gross revenues of not more 
than $15 million for the preceding three calendar years.\55\ These 
small business size standards, in the context of broadband PCS 
auctions, have been approved by the SBA.\56\ No small businesses within 
the SBA-approved small business size standards bid successfully for 
licenses in Blocks A and B. There were 90 winning bidders that 
qualified as small entities in the Block C auctions. A total of 93 
``small'' and ``very small'' business bidders won approximately 40% of 
the 1,479 licenses for Blocks D, E, and F.\57\ On March 23, 1999, the 
Commission reauctioned 155 C, D, E, and F Block licenses; there were 
113 small business winning bidders. Based on this information, we 
conclude that the number of small broadband PCS licensees includes the 
90 winning C Block bidders and the 93 qualifying bidders in the D, E, 
and F blocks plus the 113 winning bidders in the re-auction, for a 
total of 296 small entity broadband PCS providers as defined by the SBA 
small business standards and the Commission's auction rules.
---------------------------------------------------------------------------

    \54\ See Amendment of parts 20 and 24 of the Commission's 
Rules--Broadband PCS Competitive Bidding and the Commercial Mobile 
Radio Service Spectrum Cap, WT Docket No. 96-59, Report and Order, 
11 FCC Red 7824, paragraph 57-60 (1996); see also 47 CFR 24.720(b).
    \55\ See Amendment of parts 20 and 24 of the Commission's 
Rules--Broadband PCS Competitive Bidding and the Commercial Mobile 
Radio Service Spectrum Cap, Report and Order, 11 FCC Red 7824, 
paragraph 60 (1996).
    \56\ See Letter to Amy Zoslov, Chief, Auctions and Industry 
Analysis Division, Wireless Telecommunications Bureau, Federal 
Communications Commission, from A. Alvarez, Small Business 
Administration, dated December 2, 1998.
    \57\ FCC News, Broadband PCS, D, E and F Block Auction Closes, 
No. 71744 (rel. January 14, 1997).
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    104. Narrowband PCS. To date, two auctions of narrowband personal 
communications services licenses have been conducted. For purposes of 
the two auctions that have already been held, ``small businesses'' were 
entities with average gross revenues for the prior three calendar years 
of $40 million or less.\58\ Through these auctions, the Commission has 
awarded a total of 41 licenses, out of which 11 were obtained by small 
businesses. To ensure meaningful participation of small business 
entities in future auctions, the Commission has adopted a two-tiered 
small business size standard in the Narrowband PCS Second Report and 
Order. A ``small business'' is an entity that, together with affiliates 
and controlling interests, has average gross revenues for the three 
preceding years of not more than $40 million.\59\ A ``very small 
business'' is an entity that, together with affiliates and controlling 
interests, has average gross revenues for the three preceding years of 
not more than $15 million.\60\ The SBA has approved these small 
business size standards.\61\ There is also one megahertz of narrowband 
PCS spectrum that has been held in reserve and that the Commission has 
not yet decided to release for licensing. The Commission cannot predict 
accurately the number of licenses that will be awarded to small 
entities in future actions. However, four of the 16 winning bidders in 
the two

[[Page 571]]

previous narrowband PCS auctions were small businesses, as that term 
was defined under the Commission's Rules. The Commission assumes, for 
purposes of this analysis, that a large portion of the remaining 
narrowband PCS licenses will be awarded to small entities. The 
Commission also assumes that at least some small businesses will 
acquire narrowband PCS licenses by means of the Commission's 
partitioning and disaggregation rules.
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    \58\ See Amendment of the Commission's Rules to Establish New 
Personal Communications Services, Narrowband PCS, Second Report and 
Order and Second Further Notice of Proposed Rulemaking, 15 FCC Red 
10456, 10476, paragraph 40 (May 18, 2000).
    \59\ Id. at 15 FCC Red 10476, paragraph 40.
    \60\ Id. at 15 FCC Red 10476, paragraph 40.
    \61\ See Letter to Amy Zoslov, Chief, Auctions and Industry 
Analysis Division, Wireless Telecommunications Bureau, Federal 
Communications Commission, from A. Alvarez, Administrator, Small 
Business Administration (Dec. 2, 1998).
---------------------------------------------------------------------------

    105. 900 MHz Specialized Mobile Radio (``SMR''). In September of 
1995, in a rulemaking adopting competitive bidding rules specifically 
for the 900 MHz SMR service, the Commission established a two-tiered 
bidding credit scheme for the 900 MHz SMR auction in which we defined 
two categories of small businesses: (1) An entity that, together with 
affiliates, has average gross revenues for the three preceding years of 
$3 million or less; and (2) an entity that, together with affiliates, 
has average gross revenues for the three preceding years of $15 million 
or less.\62\ The SBA has approved these size standards.\63\ In Auction 
Seven, which closed on April 15, 1996, sixty winning bidders for 
geographic area licenses in the 900 MHz SMR band qualified as small 
businesses under the $15 million size standard.
---------------------------------------------------------------------------

    \62\ Amendment of parts 2 and 90 of the Commission's Rules to 
Provide for the Use of 200 Channels Outside the Designated Filing 
Areas in the 896-901 MHz and the 935-940 MHz Bands Allotted to the 
Specialized Mobile Radio Pool, PR Docket No. 89-553, Second Order on 
Reconsideration and Seventh Report and Order, 11 FCC Rcd 2639, 2645-
46 (1995) (900 MHz SMR Rulemaking); see also 47 CFR 90.814(b).
    \63\ See Letter to Michele C. Farquhar, Acting Chief, Wireless 
Telecommunications Bureau, Federal Communications Commission, from 
Philip Lader, Administrator, Small Business Administration (July 24, 
1996).
---------------------------------------------------------------------------

    106. 800 MHz SMR. In the 800 MHz Second Report and Order, we 
adopted a small business size standard for defining ``small'' and 
``very small'' businesses for purposes of determining their eligibility 
for special provisions such as bidding credits and installment 
payments.\64\ This small business standard indicates that a ``small 
business'' is an entity that, together with its affiliates and 
controlling principals, has average gross revenues not exceeding $15 
million for the preceding three years.\65\ A ``very small business'' is 
defined as an entity that, together with its affiliates and controlling 
principals, has average gross revenues that do not exceed $3 million 
for the preceding three years.\66\ The SBA has approved these small 
size standards.\67\
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    \64\ See Amendment of part 90 of the Commission's Rules to 
Facilitate Future Development of SMR Systems in the 800 MHz 
Frequency Band, Second Report and Order, FCC 97-223, PR Docket No. 
93-144, 12 FCC Rcd 19079, paragraph 141 (1997) (800 MHz Second 
Report and Order); see also 47 CFR 90.912(b).
    \65\ Id.
    \66\ Id.
    \67\ See Letter from Aida Alvarez, Administration, Small 
Business Administration to Daniel B. Phythyon, Chief, Wireless 
Telecommunications Bureau, Federal Communications Commission (Oct. 
27, 1997) (Upper 200 channels). See Letter from Aida Alvarez, 
Administrator, Small Business Administration to Thomas Sugrue, 
Chief, Auctions and Industry Analysis Division, Wireless 
Telecommunications Bureau, Federal Communications Commission (Aug. 
10, 1999) (applying the size standards approved in SBA's Oct. 27, 
1997 letter to the 800 MHz MSR, Lower 80 and 150 General channels).
---------------------------------------------------------------------------

    107. The auction of the 525 800 MHz SMR geographic area licenses 
for the upper 200 channels began on October 28, 1997, and was completed 
on December 8, 1997. Three (3) winning bidders for geographic area 
licenses for the upper 200 channels in the 800 MHz SMR band qualified 
as small businesses under the $15 million size standard, and seven (7) 
qualified as very small businesses. Next, the auction of the 1,050 800 
MHz SMR geographic area licenses for the General Category channels 
began on August 16, 2000, and was completed on September 1, 2000. 
Eleven (11) out of a total of 14 winning bidders for geographic area 
licenses for the General Category channels in the 800 MHz SMR band 
qualified as small businesses under the $15 million size standard. 
Finally, a total of 2,800 Economic Area licenses in the lower 80 
channels of the 800 MHz SMR service were sold in an auction completed 
on December 5, 2000. Of the 22 winning bidders, 19 claimed ``small 
business'' status. Thus, 40 winning bidders for geographic licenses in 
the 800 MHz SMR band qualified as small businesses.
    108. In addition, there are numerous incumbent site-by-site SMR 
licensees and licensees with extended implementation authorizations on 
the 800 MHz bands. We do not know how many firms provide 800 MHz 
geographic area SMR service pursuant to extended implementation 
authorizations, nor how many of these providers have annual revenues of 
no more than $15 million. One firm has over $15 million in revenues. We 
assume, for purposes of this analysis, that all of the remaining 
existing extended implementation authorizations are held by small 
entities as defined for the 800 MHz SMR service.
    109. Private Land Mobile Radio. Private Land Mobile Radio 
(``PLMR'') systems serve an essential role in a range of industrial, 
business, land transportation, and public safety activities. These 
radios are used by companies of all sizes operating in all U.S. 
business categories. The SBA has not developed a definition of small 
entity specifically applicable to PLMR licensees due to the vast array 
of PLMR users. For purposes of this FRFA, we will use the SBA's 
definition applicable to Cellular and Other Wireless 
Telecommunications--that is, an entity with no more than 1,500 
persons.\68\
---------------------------------------------------------------------------

    \68\ 13 CFR 121.201, North American Industry Classification 
System (NAICS) code 517212 (changed from 513322 in October 2002).
---------------------------------------------------------------------------

    110. The Commission is unable at this time to estimate the number 
of small businesses which could be impacted by the rules. The 
Commission's 1994 Annual Report on PLMRs \69\ indicates that at the end 
of fiscal year 1994 there were 1,087,267 licensees operating 12,481,989 
transmitters in the PLMR bands below 512 MHz. Because any entity 
engaged in a commercial activity is eligible to hold a PLMR license, 
the revised rules in this context could potentially impact every small 
business in the United States.
---------------------------------------------------------------------------

    \69\ Federal Communications Commission, 60th Annual Report, 
Fiscal Year 1994, at paragraph 116.
---------------------------------------------------------------------------

    111. Fixed Microwave Services. Microwave services include common 
carrier,\70\ private-operational fixed,\71\ and broadcast auxiliary 
radio services.\72\ At present, there are approximately 22,015 common 
carrier fixed licensees and 61,670 private operational-fixed licensees 
and broadcast auxiliary radio licensees in the microwave services. For 
purposes of this FRFA, we will use the SBA's definition applicable to 
Cellular and Other Wireless Telecommunications--that is, an entity with 
no more than 1,500 persons.\73\ We estimate that all of the Fixed 
Microwave licensees (excluding broadcast auxiliary licensees) would 
qualify as small

[[Page 572]]

entities under the SBA definition for radiotelephone (wireless) 
companies.
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    \70\ 47 CFR part 101 (formerly, Part 21 of the Commission's 
Rules).
    \71\ Persons eligible under parts 80 and 90 of the Commission's 
rules can use Private Operational-Fixed Microwave services. See 47 
CFR parts 80 and 90. Stations in this service are called 
operational-fixed to distinguish them from common carrier and public 
fixed stations. Only the licensee may use the operational-fixed 
station, and only for communications related to the licensee's 
commercial, industrial, or safety operations.
    \72\ Auxiliary Microwave Service is governed by part 74 of Title 
47 of the Commission's Rules. See 47 CFR part 74. Available to 
licensees of broadcast stations and to broadcast and cable network 
entities, broadcast auxiliary microwave stations are used for 
relaying broadcast television signals from the studio to the 
transmitter, or between two points such as a main studio and an 
auxiliary studio. The service also includes mobile TV pickups, which 
relay signals from a remote location back to the studio.
    \73\ 13 CDR 121.201, North American Industry Classification 
System (NAICS) code 517212 (changed from 513322 in October 2002).
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    112. Public Safety Radio Services. Public Safety radio services 
include police, fire, local government, forestry conservation, highway 
maintenance, and emergency medical services.\74\ There are a total of 
approximately 127,540 licensees within these services. Governmental 
entities \75\ as well as private businesses comprise the licensees for 
these services. All governmental entities with populations of less than 
50,000 fall within the definition of a small entity.\76\
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    \74\ With the exception of the special emergency service, these 
services are governed by subpart B of part 90 of the Commission's 
Rules, 47 CFR 90.15 through 90.27. The police service includes 
approximately 27,000 licensees that serve state, county, and 
municipal enforcement through telephony (voice), telegraphy (code) 
and teletype and facsimile (printed material). The fire radio 
service includes approximately 23,000 licensees comprised of private 
volunteer or professional fire companies as well as units under 
governmental control. The local government service is presently 
comprised of approximately 41,000 licensees that are state, county, 
or municipal entities that use the radio for official purposes not 
covered by other public safety services. There are approximately 
7,000 licensees within the forestry service which is comprised of 
licensees from state departments of conservation and private forest 
organizations who set up communications networks among fire lookout 
towers and ground crews. The approximately 9,000 state and local 
governments that are licensed to highway maintenance service provide 
emergency and routine communications to aid other public safety 
services to keep main roads safe for vehicular traffic. The 
approximately 1,0000 licensees in the Emergency Medical Radio 
Service (EMRS) use the 39 channels allocated to this service for 
emergency medical service communications related to the delivery of 
emergency medical treatment. 47 CFR 90.15 through 90.27. The 
approximately 20,000 licensees in the special emergency service 
include medical services, rescue organizations, veterinarians, 
handicapped persons, disaster relief organizations, school buses, 
beach patrols, establishments in isolated areas, communications 
standby facilities, and emergency repair of public communications 
facilities. 47 CFR 90.33 through 90.55.
    \75\ 47 CFR 1.1162.
    \76\ 5 U.S.C. 601(5).
---------------------------------------------------------------------------

    113. Offshore Radiotelephone Service. This service operates on 
several UHF TV broadcast channels that are not used for TV broadcasting 
in the coastal areas of states bordering the Gulf of Mexico.\77\ There 
are presently approximately 55 licensees in this service. We are unable 
to estimate at this time the number of licensees that would qualify as 
small under the SBA's small business size standard for ``Cellular and 
Other Wireless Telecommunications'' services.\78\ Under that SBA small 
business size standard, a business is small if it has 1,500 or fewer 
employees.\79\
---------------------------------------------------------------------------

    \77\ This service is governed by subpart I of part 22 of the 
Commission's Rules. See 47 CFR 22.1001 through 22.1037.
    \78\ 13 CFR 121.201, NAICS code 513322 (changed to 517212 in 
October 2002).
    \79\ Id.
---------------------------------------------------------------------------

    114. Wireless Communications Services. This service can be used for 
fixed, mobile, radiolocation and digital audio broadcasting satellite 
uses. The Commission defined ``small business'' for the wireless 
communications services (``WCS'') auction as an entity with average 
gross revenues of $40 million for each of the three preceding years, 
and a ``very small business'' as an entity with average gross revenues 
of $15 million for each of the three preceding years. The SBA has 
approved these definitions.\80\ The FCC auctioned geographic area 
licenses in the WCS service. In the auction, there were seven winning 
bidders that qualified as very small business entities, and one that 
qualified as a small business entity. We conclude that the number of 
geographic area WCS licensees affected includes these eight entities.
---------------------------------------------------------------------------

    \80\ See Letter to Amy Zoslov, Chief, Auctions and Industry 
Analysis Division from A. Alvarez, Administrator, SBA (December 2, 
1998).
---------------------------------------------------------------------------

    115. 39 GHz Service. The Commission defined ``small entity'' for 39 
GHz licenses as an entity that has average gross revenues of less than 
$40 million in the three previous calendar years.\81\ An additional 
classification for ``very small business'' was added and is defined as 
an entity that, together with its affiliates, has average gross 
revenues of not more than $15 million for the preceding three calendar 
years. These regulations defining ``small entity'' in the context of 39 
GHz auctions have been approved by the SBA.\82\ The auction of the 
2,173 39 GHz licenses began on April 12, 2000 and closed on May 8, 
2000. The 18 bidders who claimed small business status won 849 
licenses. Consequently, the Commission estimates that 18 or fewer 39 
GHz licensees are small entities that may be affected by the rules and 
polices adopted herein.
---------------------------------------------------------------------------

    \81\ See Amendment of the Commission's Rules Regarding the 37.0-
38.6 GHz and 38.6-40.0 GHz Band, Report and Order, 12 FCC Rcd 18600 
(1997).
    \82\ See Letter to Kathleen O'Brien Ham, Chief, Auctions and 
Industry Analysis Division, Wireless Telecommunications Bureau, FCC, 
from Aida Alvarez, Administrator, SBA (Feb. 4, 1998).
---------------------------------------------------------------------------

    116. Multipoint Distribution Service, Multichannel Multipoint 
Distribution Service, and Instructional Television Fixed Service. 
Multichannel Multipoint Distribution Service (``MMDS'') systems, often 
referred to as ``wireless cable,'' transmit video programming to 
subscribers using the microwave frequencies of the Multipoint 
Distribution Service (``MDS'') and Instructional Television Fixed 
Service (``ITFS'').\83\ In connection with the 1996 MDS auction, the 
Commission established a small business size standard as an entity that 
had annual average gross revenues of less than $40 million in the 
previous three calendar years.\84\ The MDS auctions resulted in 67 
successful bidders obtaining licensing opportunities for 493 Basic 
Trading Areas (``BTA''). Of the 67 auction winners, 61 met the 
definition of a small business. MDS also includes licensees of stations 
authorized prior to the auction. In addition, the SBA has developed a 
small business size standard for Cable and Other Program Distribution, 
which includes all such companies generating $12.5 million or less in 
annual receipts.\85\ According to Census Bureau data for 1997, there 
were a total of 1,311 firms in this category total that had operated 
for the entire year.\86\ Of this total, 1,180 firms had annual receipts 
of under $10 million and an additional 52 firms had receipts of $10 
million or more but less than $25 million. Consequently, we estimate 
that the majority of providers in this service category are small 
businesses that may be affected by the rules and policies adopted 
herein. This SBA small business size standard also appears applicable 
to ITFS. There are presently 2,032 ITFS licensees. All but 100 of these 
licenses are held by educational institutions. Educational institutions 
are included in this analysis as small entities.\87\ Thus, we 
tentatively conclude that at least 1,932 licensees are small 
businesses.
---------------------------------------------------------------------------

    \83\ Amendment of Parts 21 and 74 of the Commission's Rules with 
Regard to Filing Procedures in the Multipoint Distribution Service 
and in the Instructional Television Fixed Service and Implementation 
of Section 309(j) of the Communications Act--Competitive Bidding, MM 
Docket No. 94-131 and PP Docket No. 93-253, Report and Order, 10 FCC 
Rcd 9589, 9593, paragraph 7 (1995).
    \84\ 47 CFR 21.961(b)(1).
    \85\ 13 CFR 121.201, NAICS code 517510 (changed from 513220 in 
October 2002).
    \86\ U.S. Census Bureau, 1997 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size (Including Legal Form of 
Organization),'' Table 4, NAICS code 513220 (issued October 2000).
    \87\ In addition, the term ``small entity'' within the SBREFA 
applies to small organizations (nonprofits) and to small 
governmental jurisdictions (cities, counties, towns, townships, 
villages, school districts, and special districts with populations 
of less than 50,000). 5 U.S.C. 601(4)-(6). We do not collect annual 
revenue data on ITFS licensees.
---------------------------------------------------------------------------

    117. Local Multipoint Distribution Service. Local Multipoint 
Distribution Service (``LMDS'') is a fixed broadband point-to-
multipoint microwave service that provides for two-way video 
telecommunications.\88\ The auction of

[[Page 573]]

the 1,030 Local Multipoint Distribution Service licenses began on 
February 18, 1998, and closed on March 25, 1998. The Commission defined 
``small entity'' for LMDS licenses as an entity that has average gross 
revenues of less than $40 million in the three previous calendar 
years.\89\ An additional classification for ``very small business'' was 
added and is defined as an entity that, together with its affiliates, 
has average gross revenues of not more than $15 million for the 
preceding three calendar years.\90\ These regulations defining ``small 
entity'' in the context of LMDS auctions have been approved by the 
SBA.\91\ There were 93 winning bidders that qualified as small entities 
in the LMDS auctions. A total of 93 small and very small business 
bidders won approximately 277 A Block licenses and 387 B Block 
licenses. On March 27, 1999, the Commission re-auctioned 161 licenses; 
there were 40 small business winning bidders. Based on this 
information, we conclude that the number of small LMDS licenses 
includes the 93 winning bidders in the first auction and the 40 winning 
bidders in the re-auction, for a total of 133 small entity LMDS 
providers as defined by the SBA and the Commission's auction rules.
---------------------------------------------------------------------------

    \88\ See Rulemaking to Amend Parts 1, 2, 21, and 25 of the 
Commission's Rules to Redesignate the 27.5-29.5 GHz Frequency Band, 
to Reallocate the 29.5-30.0 GHz Frequency Band, and to Establish 
Rules and Policies for Local Multipoint Distribution Service and for 
Fixed Satellite Services, CC Docket No. 92-297, Second Report and 
Order, 12 FCC Rcd 12545 (1997).
    \89\ See Local Multipoint Distribution Service, Second Report 
and Order, 62 Fed. Reg. 23148 (April 29, 1997).
    \90\ Id.
    \91\ See Letter to Daniel Phythyon, Chief, Wireless 
Telecommunications Bureau (FCC) from A. Alvarez, Administrator, SBA 
(January 6, 1998).
---------------------------------------------------------------------------

    118. 218-219 MHz Service. The first auction of 218-219 MHz spectrum 
resulted in 170 entities winning licenses for 594 Metropolitan 
Statistical Areas (``MSA''). Of the 594 licenses, 557 were won by 170 
entities qualifying as a small business. For that auction, we defined a 
small business as an entity that, together with its affiliates, has no 
more than a $6 million net worth and, after federal income taxes 
(excluding any carry over losses), has no more than $2 million in 
annual profits each year for the previous two years.\92\ In the 218-219 
MHz Report and Order and Memorandum Opinion and Order, we defined a 
small business as an entity that, together with its affiliates and 
persons or entities that hold interests in such an entity and their 
affiliates, has average annual gross revenues not to exceed $15 million 
for the preceding three years.\93\ A very small business is defined as 
an entity that, together with its affiliates and persons or entities 
that hold interests in such an entity and its affiliates, has average 
annual gross revenues not to exceed $3 million for the preceding three 
years.\94\ We cannot estimate, however, the number of licenses that 
will be won by entities qualifying as small or very small businesses 
under our rules in future auctions of 218-219 MHz spectrum. Given the 
success of small businesses in the previous auction, and the prevalence 
of small businesses in the subscription television services and message 
communications industries, we assume for purposes of this FRFA that in 
future auctions, all of the licenses may be awarded to small 
businesses.
---------------------------------------------------------------------------

    \92\ Implementation of Section 309(j) of the Communications 
Act--Competitive Bidding, PP WT Docket No. 93-253, Fourth Report and 
Order, 59 Fed. Reg. 24947 (May 13, 1994); Amendment of part 95 of 
the Commission's Rules to Provide Regulatory Flexibility in the 218-
219 MHz Service, Report and Order and Memorandum Opinion and Order, 
15 FCC Rcd. 1497, 1583 (Sept. 10, 1999).
    \93\ Amendment of Part 95 of the Commission's Rules to Provide 
Regulatory Flexibility in the 218-219 MHz Service, WT Docket No. 98-
169, Report and Order and Memorandum Opinion and Order, 64 Fed. Reg. 
59656 (November 3, 1999).
    \94\ Id.
---------------------------------------------------------------------------

    119. 24 GHz--Incumbent Licensees. This rule change may affect 
incumbent licensees who were relocated to the 24 GHz band from the 18 
GHz band, and applicants who wish to provide services in the 24 GHz 
band. The applicable SBA small business size standard is that of 
``Cellular and Other Wireless Telecommunications'' companies. This 
category provides that such a company is small if it employs no more 
than 1,500 persons.\95\ According to Census Bureau data for 1997, there 
were 977 firms in this category that operated for the entire year.\96\ 
Of this total, 965 firms had 999 or fewer employees, and an additional 
12 firms had 1,000 employees or more.\97\ Thus, under this size 
standard, the great majority of firms can be considered small. These 
broader census data notwithstanding, we believe that there are only two 
licensees in the 24 GHz band that were relocated from the 18 GHz band, 
Teligent \98\ and TRW, Inc. It is our understanding that Teligent and 
its related companies have fewer than 1,500 employees, though this may 
change in the future. TRW is not a small entity. Thus, only one 
incumbent licensee in the 24 GHz band is a small business entity.
---------------------------------------------------------------------------

    \95\ 13 CFR 121.201, NAICS code 517212 (changed from 513322 in 
October 2002).
    \96\ U.S. Census Bureau, 1997 Economic Census, Subject Series: 
Information, ``Employment Size of Firms Subject to Federal Income 
Tax: 1997,'' Table 5, NAICS code 513322 (issued Oct. 2000).
    \97\ Id. The census data do not provide a more precise estimate 
of the number of firms that have 1,500 or fewer employees; the 
largest category provided is ``Firms with 1,000 employees or more.''
    \98\ Teligent acquired the DEMS licenses of FirstMark, the only 
licensee other than TRW in the 18 GHz band whose license has been 
modified to require relocation to the 24 GHz band.
---------------------------------------------------------------------------

    120. 24 GHz--Future Licensees. With respect to new applicants in 
the 24 GHz band, the small business size standard for ``small 
business'' is an entity that, together with controlling interests and 
affiliates, has average annual gross revenues for the three preceding 
years not in excess of $15 million.\99\ ``Very small business'' in the 
24 GHz band is an entity that, together with controlling interests and 
affiliates, has average gross revenues not exceeding $3 million for the 
preceding three years.\100\ The SBA has approved these small business 
size standards.\101\ These size standards will apply to the future 
auction, if held.
---------------------------------------------------------------------------

    \99\ Amendments to parts 1, 2, 87 and 101 of the Commission's 
Rules to License Fixed Services at 24 GHz, WT Docket No. 99-327, 
Report and Order, 15 FCC Rcd 16934, 16967 (2000); see also 47 CFR 
101.538(a)(2).
    \100\ Amendments to parts 1, 2, 87 and 101 of the Commission's 
Rules to License Fixed Services at 24 GHz, WT Docket No. 99-327, 
Report and Order, 15 FCC Rcd at 16967; see also 47 CFR 
101.538(a)(1).
    \101\ See Letter to Margaret W. Wiener, Deputy Chief, Auctions 
and Industry Analysis Division, Wireless Telecommunications Bureau, 
FCC, from Gary M. Jackson, Assistant Administrator, SBA (July 28, 
2000).
---------------------------------------------------------------------------

    121. Location and Monitoring Service (``LMS''). Multilateration LMS 
systems use non-voice radio techniques to determine the location and 
status of mobile radio units. For purposes of auctioning LMS licenses, 
the Commission has defined ``small business'' as an entity that, 
together with controlling interests and affiliates, has average annual 
gross revenues for the preceding three years not to exceed $15 
million.\102\ A ``very small business'' is defined as an entity that, 
together with controlling interests and affiliates, has average annual 
gross revenues for the preceding three years not to exceed $3 
million.\103\ These definitions have been approved by the SBA.\104\ An 
auction for LMS licenses commenced on February 23, 1999 and closed on 
March 5, 1999. Of the 528 licenses auctioned, 289 licenses were sold to 
four small businesses. We conclude that the number of LMS licensees 
affected by this Report and Order includes these four entities. We 
cannot accurately predict the number of remaining licenses that could 
be awarded to small

[[Page 574]]

entities in future LMS auctions. Media Services (Broadcast & Cable)
---------------------------------------------------------------------------

    \102\ Amendment of part 90 of the Commission's Rules to Adopt 
Regulations for Automatic Vehicle Monitoring Systems, Second Report 
and Order, 13 FCC Rcd 15182 ] 20 (1998); see also 47 CFR 90.1103.
    \103\ Id.
    \104\ See Letter to Thomas J. Sugrue, Chief, Wireless 
Telecommunications Bureau, Federal Communications Commission, from 
Aida Alvarez, Administrator, Small Business Administration (Feb. 22, 
1999).
---------------------------------------------------------------------------

    122. Commercial Television Services. The SBA defines a television 
broadcasting station that has no more than $12.0 million in annual 
receipts as a small business.\105\ Television broadcasting stations 
consist of establishments primarily engaged in broadcasting visual 
programs by television to the public, except cable and other pay 
television services.\106\ Included in this industry are commercial, 
religious, educational, and other television stations.\107\ Also 
included are establishments primarily engaged in television 
broadcasting and which produce taped television program materials.\108\
---------------------------------------------------------------------------

    \105\ 13 CFR 121.201, North American Industry Classification 
System (NAICS) code 515120.
    \106\ Economics and Statistics Administration, Bureau of Census, 
U.S. Department of Commerce, 1992 Census of Transportation, 
Communications and Utilities, Establishment and Firm Size, Series 
UC92-S-1, Appendix A-9 (1995).
    \107\ Id., see Executive Office of the President, Office of 
Management and Budget, Standard Industrial Classification Manual, at 
13 CFR 121.201, North American Industry Classification System 
(NAICS) code 515120.
    \108\ 1992 Census Series UC92-S-1, at Appendix A-9.
---------------------------------------------------------------------------

    123. There were 1,695 full-service television stations operating in 
the United States as of December 2001.\109\ According to Census Bureau 
data for 1997, there were 906 Television Broadcasting firms, total, 
that operated for the entire year.\110\ Of this total, 734 firms had 
annual receipts of $9,999,999.00 or less and an additional 71 had 
receipts of $10 million to $24,999,999.00.\111\ Thus, under this 
standard, the majority of firms can be considered small.
---------------------------------------------------------------------------

    \109\ FCC News Release, Broadcast Station Totals as of December 
31, 2001 (released May 21, 2002).
    \110\ 13 CFR 121.201, North American Industry Classification 
System (NAICS) code 515120.
    \111\ Id. The census data do not provide a more precise 
estimate.
---------------------------------------------------------------------------

    124. Commercial Radio Services. The SBA defines a radio 
broadcasting station that has no more than $6 million in annual 
receipts as a small business.\112\ A radio broadcasting station is an 
establishment primarily engaged in broadcasting aural programs by radio 
to the public.\113\ Included in this industry are commercial, 
religious, educational, and other radio stations.\114\ Radio 
broadcasting stations which primarily are engaged in radio broadcasting 
and which produce radio program materials are similarly included.\115\ 
According to Census Bureau data for 1997, there were 4,476 Radio 
Stations (firms), total, that operated for the entire year.\116\ Of 
this total 4,265 had annual receipts of $4,999,999.00 or less, and an 
additional 103 firms had receipts of $5 million to $9,999,999.00.\117\ 
Thus, under this standard, the great majority of firms can be 
considered small.
---------------------------------------------------------------------------

    \112\ 13 CFR 121.201, North American Industry Classification 
System (NAICS) code 515112.
    \113\ 1992 Census, Series UC92-S-1, at Appendix A-9.
    \114\ Id.
    \115\ Id.
    \116\ 13 CFR 121.201, North American Industry Classification 
System (NAICS) code 515112.
    \117\ Id. The census data do not provide a more precise 
estimate.
---------------------------------------------------------------------------

    125. Cable Systems. The Commission has developed, with SBA's 
approval, its own definition of small cable system operators. Under the 
Commission's rules, a ``small cable company'' is one serving fewer than 
400,000 subscribers nationwide.\118\ Based on our most recent 
information, we estimate that there were 1,439 cable operators that 
qualified as small cable companies at the end of 1995.\119\ Since then, 
some of those companies may have grown to serve more than 400,000 
subscribers, and others may have been involved in transactions that 
caused them to be combined with other cable operators. Consequently, we 
estimate that there are fewer than 1,439 small entity cable system 
operators that may be affected by the rules adopted herein.
---------------------------------------------------------------------------

    \118\ 47 CFR 67.901(3). The Commission developed this definition 
based on its determination that a small cable system operator is one 
with annual revenues of $100 million or less. Implementation of 
Sections of the 1992 Cable Act: Rate Regulation, Sixth Report and 
Order and Eleventh Order on Reconsideration, 10 FCC Rcd 6393 (1995). 
13 CFR 121.201, North American Industry Classification System 
(NAICS) code 515210.
    \119\ Paul Kagan Associates, Inc., Cable TV Investor, Feb. 29, 
1996 (based on figures for Dec. 30, 1995).
---------------------------------------------------------------------------

    126. The Communications Act also contains a definition of a small 
cable system operator, which is ``a cable operator that, directly or 
through an affiliate, serves in the aggregate less than 1% of all 
subscribers in the United States and is not affiliated with any entity 
or entities whose gross annual revenue in the aggregate exceeds 
$250,000,000.''\120\ The Commission has determined that there are 
67,700,000 subscribers in the United States.\121\ Therefore, we found 
that an operator serving fewer than 677,000 subscribers shall be deemed 
a small operator, if its annual revenues, when combined with the total 
annual revenues of all of its affiliates, do not exceed $250 million in 
the aggregate.\122\ Based on available data, we find that the number of 
cable operators serving 677,000 subscribers or less totals 
approximately 1,450.\123\ Since we do not request nor collect 
information on whether cable system operators are affiliated with 
entities whose gross annual revenues exceed $250,000,000, we are unable 
at this time to estimate with greater precision the number of cable 
system operators that would qualify as small cable operators under the 
definition in the Communications Act.
---------------------------------------------------------------------------

    \120\ 47 U.S.C. 543(m)(2).
    \121\ FCC Announces New Subscriber Count for the Definition of 
Small Cable Operator, Public Notice, DA 01-158 (January 24, 2001).
    \122\ 47 CFR 76.1403(b).
    \123\ Paul Kagan Associates, Inc., Cable TV Investor, Feb. 29, 
1996 (based on figures for Dec. 30, 1995).
---------------------------------------------------------------------------

    127. Auxiliary, Special Broadcast and Other Program Distribution 
Services. This service involves a variety of transmitters, generally 
used to relay broadcast programming to the public (through translator 
and booster stations) or within the program distribution chain (from a 
remote news gathering unit back to the station). The Commission has not 
developed a definition of small entities applicable to broadcast 
auxiliary licensees. The applicable definitions of small entities are 
those, noted previously, under the SBA rules applicable to radio 
broadcasting stations and television broadcasting stations. The SBA 
defines a television broadcasting station that has no more than $12.0 
million in annual receipts as a small business,\124\ and it defines a 
radio broadcasting station that has no more than $6 million in annual 
receipts as a small business.\125\
---------------------------------------------------------------------------

    \124\ 13 CFR 121.201, North American Industry Classification 
System (NAICS) code 515120.
    \125\ 13 CFR 121.201, North American Industry Classification 
System (NAICS) code 515112.
---------------------------------------------------------------------------

    128. The Commission estimates that there are approximately 3,600 
translators and boosters. The Commission does not collect financial 
information on any broadcast facility, and the Department of Commerce 
does not collect financial information on these auxiliary broadcast 
facilities. We believe that most, if not all, of these auxiliary 
facilities could be classified as small businesses by themselves. We 
also recognize that most commercial translators and boosters are owned 
by a parent station which, in some cases, would be covered by the 
revenue definition of small business entity discussed above. These 
stations would likely have annual revenues that exceed the SBA maximum 
to be designated as a small business (either $6 million for a radio 
station or $12 million for a TV station). Furthermore, they do not meet 
the Small Business Act's definition of a ``small business concern'' 
because they are not independently owned and operated.
    129. Satellite Services. The Commission has not developed a small

[[Page 575]]

business size standard applicable to licensees in the international 
services. However, the SBA has developed a small business size standard 
for Satellite Telecommunications, which consists of all such firms 
having $12.5 million or less in annual receipts.\126\ According to 
Census Bureau data for 1997, in this category there was a total of 324 
firms that operated for the entire year.\127\ Of this total, 273 firms 
had annual receipts of under $10 million, and an additional twenty-four 
firms had receipts of $10 million to $24,999,999.\128\ Thus, under this 
size standard, the majority of firms can be considered small.
---------------------------------------------------------------------------

    \126\ 13 CFR 121.201, NAICS code 517410 (changed from 513340 in 
October 2002).
    \127\ U.S. Census Bureau, 1997 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size (Including Legal Form of 
Organization),'' Table 4, NAICS code 513340 (issued October 2000).
    \128\ Id.
---------------------------------------------------------------------------

    130. International Broadcast Stations. Commission records show that 
there are approximately 19 international high frequency broadcast 
station authorizations. We do not request nor collect annual revenue 
information, and are unable to estimate the number of international 
high frequency broadcast stations that would constitute small 
businesses under the SBA definition.
    131. Fixed Satellite Transmit/Receive Earth Stations. There are 
approximately 4,303 earth station authorizations, a portion of which 
are Fixed Satellite Transmit/Receive Earth Stations. We do not request 
nor collect annual revenue information, and are unable to estimate the 
number of the earth stations that would constitute small businesses 
under the SBA definition.
    132. Fixed Satellite Very Small Aperture Terminal (``VSAT'') 
Systems. These stations operate on a primary basis, and frequency 
coordination with terrestrial microwave systems is not required. Thus, 
a single ``blanket'' application may be filed for a specified number of 
small antennas and one or more hub stations. There are 485 current VSAT 
System authorizations. We do not request nor collect annual revenue 
information, and are unable to estimate the number of VSAT systems that 
would constitute small businesses under the SBA definition.
    133. Mobile Satellite Stations. There are 21 licensees. On February 
10, 2003, the Commission released a Report and Order and Notice of 
Proposed Rulemaking allowing licensees in the Mobile Satellite Services 
to use their spectrum for Ancillary Terrestrial Communications 
(``ATC'').\129\ Licensees may construct towers to provide ATC service. 
We do not request nor collect annual revenue information, and are 
unable to estimate the number of mobile satellite earth stations that 
would constitute small businesses under the SBA definition.
---------------------------------------------------------------------------

    \129\ In the Matter of Flexibility for Delivery of 
Communications by Mobile Satellite Service Providers in the 2 GHz 
Band, the L-Band, and the 1.6/2.4 GHz Bands, Report and Order and 
Notice of Proposed Rulemaking, 18 FCC Rcd. 11,030 (2003).
---------------------------------------------------------------------------

    134. Radio Determination Satellite Earth Stations. There are four 
licensees. We do not request nor collect annual revenue information, 
and are unable to estimate the number of radio determination satellite 
earth stations that would constitute small businesses under the SBA 
definition.
    135. Digital Audio Radio Services (``DARS''). Commission records 
show that there are 2 Digital Audio Radio Services authorizations. We 
do not request nor collect annual revenue information, and, therefore, 
we cannot estimate the number of small businesses under the SBA 
definition.
    136. Non-Licensee Tower Owners. The Commission's rules require that 
any entity proposing to construct an antenna structure over 200 feet or 
within the glide slope of an airport must register the antenna 
structure with the Commission on FCC Form 854.\130\ For this and other 
reasons, non-licensee tower owners may be subject to the requirements 
adopted in the Report and Order and the Nationwide Agreement. As of 
August 2004, approximately 96,778 towers were included in the Antenna 
Structure Registration database. This includes both towers registered 
to licensees and towers registered to non-licensee tower owners. The 
Commission does not keep information from which we can easily determine 
how many of these towers are registered to non-licensees or how many 
non-licensees have registered towers.\131\ Moreover, the SBA has not 
developed a size standard for small businesses in the category ``Tower 
Owners.'' Therefore, we are unable to estimate the number of non-
licensee tower owners that are small entities. We assume, however, that 
nearly all non-licensee tower companies are small businesses under the 
SBA's definition for cellular and other wireless telecommunications 
services.\132\
---------------------------------------------------------------------------

    \130\ 47 CFR 17.4(a), 17.7(a).
    \131\ We note, however, that approximately 13,000 towers are 
registered to 10 cellular carriers with 1,000 or more employees.
    \132\ 13 CFR 121.201, North American Industry Classification 
System (NAICS) code 517212. Under this category, a business is small 
if it has 1,500 or fewer employees.
---------------------------------------------------------------------------

D. Description of Reporting, Recordkeeping, and Other Compliance 
Requirements

    137. The Nationwide Agreement includes several compliance 
requirements, including recordkeeping and reporting requirements, 
applicable to regulatees. Under the Commission's rules, as they existed 
before the adoption of the Report and Order, applicants were required 
to determine whether their construction of ``facilities may affect 
districts, buildings, structures or objects, significant in American 
history, architecture, archeology, engineering or culture, that are 
listed, or eligible for listing, in the National Register of Historic 
Places,'' consistent with the rules of the Council.\133\ The Nationwide 
Agreement modifies and more clearly specifies the means by which 
applicants should make that determination.
---------------------------------------------------------------------------

    \133\ See 47 CFR 1.1307(a)(4) and Note.
---------------------------------------------------------------------------

    138. Specific requirements that the Nationwide Agreement imposes on 
Applicants include making them determine whether an exclusion applies 
to their proposed construction project, thereby obviating the need to 
submit section 106 materials to the SHPO/THPO.\134\ Accordingly, 
applicants should maintain records to verify the applicability of any 
exclusion should questions arise about the project after construction 
has started or has been completed.\135\
---------------------------------------------------------------------------

    \134\ Nationwide Agreement, Part III. As will be discussed 
below, the addition of exclusions, on balance, greatly reduces the 
overall burdens on the Applicant.
    \135\ Id.
---------------------------------------------------------------------------

    139. The Nationwide Agreement also requires that applicants follow 
specific steps to identify and initiate contact with Indian tribes and 
Native Hawaiian Organizations that may attach religious and cultural 
significance to potentially affected historic properties. These steps 
ensure that tribes and NHOs will be contacted in a respectful manner 
that conforms to their reasonable preferences and that offers them a 
full opportunity to participate in the process. These steps also ensure 
that Indian tribes' requests for government-to-government consultation, 
as well as cases of tribal or NHO disagreement or non-response, will be 
referred to the Commission. They also provide for confidentiality of 
private or sensitive information.\136\
---------------------------------------------------------------------------

    \136\ Id., Part IV.
---------------------------------------------------------------------------

    140. The Nationwide Agreement establishes required procedures for 
seeking local government and public participation; for considering 
public comments before forwarding them to the SHPO/THPO; and for 
identifying

[[Page 576]]

consulting parties.\137\ In addition, the Nationwide Agreement 
establishes standards for applicants to apply in defining the area of 
potential effects (``APE'') for both direct and visual effects; in 
identifying and evaluating the significance of Historic Properties 
within the APE; and in assessing the effects of the Undertaking on 
Historic Properties.\138\ Once identification, evaluation, and 
assessment are complete, the Nationwide Agreement requires Applicants 
to provide the SHPO/THPO and consulting parties with a Submission 
Packet that conforms to a standardized set of instructions, which 
require specific information about the Applicant, the project, and its 
review.\139\
---------------------------------------------------------------------------

    \137\ Id., Part V.
    \138\ Id., Part VI.
    \139\ Id., Part VII.A.1.
---------------------------------------------------------------------------

    141. The Nationwide Agreement also establishes procedures for 
Applicants to follow after receiving certain responses from the SHPO/
THPO. For example, if the SHPO/THPO disagrees with the Applicant's 
finding of ``no Historic Properties affected,'' the Applicant is to 
engage in further discussions with the SHPO/THPO to resolve any 
disagreement, and, if that effort fails, the Applicant may submit the 
matter to the Commission for its effect determination. Additionally, 
the Nationwide Agreement provides procedures for developing Memoranda 
of Agreement to mitigate adverse effects (e.g., painting a facility a 
specific color to reduce its visibility).\140\ Finally, the Nationwide 
Agreement prescribes procedures for Applicants to follow in the event 
of inadvertent or post-review discoveries (e.g., buried properties of 
archeological significance),\141\ and delineates potential measures 
that the Commission may require Applicants to take in response to a 
complaint alleging construction prior to compliance with section 106 
(e.g., providing the Applicant with a copy of the complaint and 
requesting a written response within a reasonable time).\142\
---------------------------------------------------------------------------

    \140\ Id., sections VII.B.3, VII.C.2, VII.C.3, VII.C.6, and 
VII.D.
    \141\ Id., Part IX.
    \142\ Id., section X.C.
---------------------------------------------------------------------------

E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    142. The RFA requires an agency to describe any significant, 
specifically small business, alternatives that it has considered in 
developing its approach, which may include the following four 
alternatives (among others): (1) The establishment of differing 
compliance or reporting requirements or timetables that take into 
account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance or 
reporting requirements under the rule for small entities; (3) the use 
of performance, rather than design, standards; and (4) an exemption 
from coverage of the rule, or any part thereof, for small 
entities.\143\
---------------------------------------------------------------------------

    \143\ 5 U.S.C. 603(c)(1)-(4).
---------------------------------------------------------------------------

    143. As noted in section D, supra, under the Commission's rules, as 
they existed before the adoption of the Report and Order, applicants 
were required to perform historic preservation review in accordance 
with the rules of the Commission and the Council.\144\ The Commission 
considered the potential impact of its rules on smaller entities 
throughout the process of negotiating and drafting the Nationwide 
Agreement. One of the Commission's goals has been to make its 
environmental review process more efficient and standardized so that 
entities with smaller staffs can learn and complete the process more 
quickly. The NPRM sought comment on the draft Nationwide Agreement, 
generally, including issues related to its potential economic impact on 
small entities, but we received no comments on this topic. Despite 
having received no comments with reference to issues that might affect 
small entities, the Commission continues to assess various options to 
relieve potential burdens on small entities.
---------------------------------------------------------------------------

    \144\ See 47 CFR 1.1307(a)(4) and Note.
---------------------------------------------------------------------------

    144. The alternative of exempting small entities from the 
requirements proposed in the NPRM and draft Nationwide Agreement was 
not possible. The NHPA requires that all Federal Undertakings be 
evaluated for their potential effects on districts, sites, buildings, 
structures or objects, which are significant in American history, 
architecture, archeology, engineering or culture, and which are listed, 
or are eligible for listing, in the National Register of Historic 
Places. Neither the NHPA nor the Council's rules contemplates any 
exemption from review depending on the size or resources of the non-
federal entity which initiates the undertaking. The direct impact of 
the requirements proposed in the draft Nationwide Agreement will be the 
same on all entities. Therefore, no special or extra burden will be 
placed on small entities.
    145. Under the Nationwide Agreement burdens on small entities will 
be reduced in significant ways. First, the exclusions listed in Part 
III provide regulatory relief for those who intend to construct 
facilities that fall within the criteria listed therein (e.g., certain 
types of facilities to be located within 50 feet of the outer boundary 
of certain types of rights-of-way).\145\ The availability of exclusions 
for certain categories of projects, whereby those that qualify are 
exempted from section 106 review, offers a great reduction in burdens 
for some Applicants including many smaller entities. While a 
determination must be made as to whether the exclusion applies, in 
those instances in which the project is excluded from section 106 
review, only record-keeping is required, thereby relieving the 
Applicant of any responsibility for identifying and assessing possible 
adverse effects on listed or eligible properties.
---------------------------------------------------------------------------

    \145\ Nationwide Agreement, Part III.
---------------------------------------------------------------------------

    146. Additionally, the Commission recognizes that smaller entities 
do not have the economies of scale needed to sustain large 
environmental compliance staffs. Consequently, smaller entities will be 
unlikely to maintain in-house expertise on all facets of the review 
process needed for compliance with the rules of the Commission and the 
Council. Therefore, such firms will benefit more, relative to large 
entities, from the Part III exclusions. The exclusions allow smaller 
entities to forgo the costs associated with conducting the section 106 
analysis of properties within the relevant Area of Potential Effects. 
Even though many entities contract out much section 106 work to 
historic preservation specialists, there are per project costs 
associated with the process of hiring a contractor, overseeing its 
work, and submitting the materials produced by the contractor to the 
SHPO that decrease as an entity is able to do this routinely and move 
up its learning curve by building more facilities. Similarly, the per 
unit cost for large entities declines as the cost of an in-house 
environmental compliance staff is spread over a greater number of units 
constructed. Furthermore, the cost charged by a historic preservation 
specialist to prepare a section 106 report will be determined by the 
complexity of the project, not by the size of the entity contracting 
for the historic preservation analysis. Consequently, in some 
instances, smaller entities will pay more for such work as a proportion 
of revenues than will the large firms. Smaller entities may also be 
injured proportionally more by delays in the section 106 process since 
more of their cash flow is tied up in each telecommunications facility 
being built. Thus, in assessing the general impact of section 106 
exclusions the Commission

[[Page 577]]

believes that the Nationwide Agreement's Part III exclusions will 
reduce costs for small entities to a proportionally greater extent than 
they will for large entities.
    147. Furthermore, the availability of the Part III exclusions will 
likely encourage the wireless infrastructure industry to direct its 
projects so that the projects fall within the scope of the Part III 
exclusions. Consequently, smaller entities may reap a competitive 
advantage precisely because they may be able to avoid having large in-
house compliance staffs and will be able to price their services more 
cheaply.
    148. Burdens on small entities will also be reduced because the 
Commission and Council have clarified the steps that need to be taken 
to perform the requisite section 106 review. For example, in those 
instances in which a Part III exclusion does not apply, Applicants will 
now submit a standardized submission packet to the SHPO/THPO that 
initiates the section 106 review. Previously, the absence of a 
standardized submission packet made it difficult for small entities 
that were unfamiliar with the process to quickly learn what was 
required for a proper submission. However, the submission packet's 
standardized instructions, either for new towers or collocations, will 
facilitate preparation of high-quality submissions on the first effort 
by firms that may not be large enough to employ an environmental or 
historic preservation staff. The standards set forth in Part VI will 
add predictability to the process,\146\ and the procedures and the time 
frames for review in Part VII will reduce the likelihood of either 
uncertainty or suspension of projects.\147\ Thus, the new submission 
packets will prevent the need for costly and time-consuming delays and 
resubmissions which may be especially burdensome for small entities 
who, with fewer ongoing projects generating revenue, cannot afford long 
delays in the review process.
---------------------------------------------------------------------------

    \146\ Nationwide Agreement, Part VI.
    \147\ Nationwide Agreement, Part VII.
---------------------------------------------------------------------------

    149. We note that Applicants, whether large or small entities, 
routinely retain consultants to perform many of the steps associated 
with section 106 reviews. Consistent with the objectives of the NHPA, 
the Nationwide Agreement requires the use of professionals who meet the 
Secretary of the Interior's standards for tasks that implicate 
professional expertise.\148\ We anticipate that the use of consultants 
to provide this expertise will continue to be prevalent under the 
Nationwide Agreement. Applicants will typically comply with the 
professional qualification requirements in the Nationwide Agreement by 
using consultants to perform specialized tasks due to their relative 
cost effectiveness and efficiency in completing section 106 reviews. We 
believe that the rules adopted herein will not impose any requirements 
on small entities that would make the use of consultants more 
burdensome than is currently the case. Indeed, by clarifying that 
certain tasks in the section 106 process do not require professional 
expertise, the Nationwide Agreement may, as described above, relieve 
burdens in this area to a relatively greater extent for small entities 
than for large.
---------------------------------------------------------------------------

    \148\ Nationwide Agreement, sections VI.D.1.e, VI.D.2.b, VI.E.5; 
compare id., Part III (no professional expertise required to invoke 
exclusions), section VI.D.1.d (no professional expertise required to 
identify historic properties within the APE for visual effects).
---------------------------------------------------------------------------

    150. In some instances, the Nationwide Agreement may impose 
specific burdens on all Applicants, including small entities. For 
example, standardized submission packets will now be submitted to the 
SHPO or THPO. However, we believe these burdens are the minimum 
necessary to accomplish the Nationwide Agreement's purpose. Thus, the 
Commission, after discussion with the members of the Telecommunications 
Working Group and after reviewing the record, believes that the forms 
include the minimum information necessary for appropriate review by a 
SHPO, THPO, or the Commission. Similarly, the provisions for tribal and 
public participation (Parts IV and V) are intended to embody the least 
burdensome procedures that will afford these parties a complete and 
legally sufficient opportunity to participate in the process.\149\
---------------------------------------------------------------------------

    \149\ Nationwide Agreement, Part IV; Nationwide Agreement, Part 
V.
---------------------------------------------------------------------------

    151. The new document submission and historic preservation review 
processes which constitute a core feature in the Nationwide Agreement 
are set forth in Part VII. These procedures have also been developed 
with the goal of reducing the burden of procedural uncertainty by 
delineating straightforward, repeatable processes for assessing the 
potential effects of proposed facilities on historic properties.
    152. Any burdens imposed by the Nationwide Agreement will be more 
than outweighed by the benefits that will accrue to small entities from 
its provisions. The Commission has drafted the Nationwide Agreement 
with a commitment to reducing burdens on small entities. In closing, 
the Commission believes that the Nationwide Agreement conscientiously 
alleviates burdens on small entities in the ways discussed above.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    153. None. The Nationwide Agreement will modify and supplement the 
procedures set forth in the rules of the Council,\150\ as expressly 
contemplated in those rules.\151\
---------------------------------------------------------------------------

    \150\ 36 CFR Part 800.
    \151\ 36 CFR 800.14(b).
---------------------------------------------------------------------------

G. Congressional Review Act

    154. The Commission will send a copy of the Report and Order, 
including this FRFA, in a report to be sent to Congress and the 
Government Accountability Office pursuant to the Congressional Review 
Act.\152\ In addition, the Commission will send a copy of the Order, 
including the FRFA, to the Chief Counsel for Advocacy of the Small 
Business Administration. A copy of the Order and FRFA (or summaries 
thereof) will also be published in the Federal Register. See 5 U.S.C. 
604(b).
---------------------------------------------------------------------------

    \152\ See 5 U.S.C. 801(a)(1)(A).
---------------------------------------------------------------------------

    155. The Commission finds that the rule change contained in this 
Report and Order will not present a significant economic burden to 
small entities.

Ordering Clauses

    156. Pursuant to sections 1, 4(i), 303(r), and 309(j) of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 303(r), 
309(j), it is ordered that this Report and Order and the policies set 
forth herein are adopted and that part 1 of the Commission's rules, 47 
CFR part 1 is amended, effective March 7, 2005. FCC Forms 620 and 621 
contain information collections that have not been approved by the 
Office of Management and Budget. The Commission will publish a document 
in the Federal Register announcing the approval of these forms.
    157. It is ordered that the Commission's Consumer Information 
Bureau, Reference Information Center, shall send a copy of the Report 
and Order, including the Final Regulatory Flexibility Analysis, to the 
Chief Counsel for Advocacy of the Small Business Administration.
    158. It is further ordered that the Commission shall send a copy of 
this Report and Order to Congress and the General Accounting Office 
pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

[[Page 578]]

List of Subjects in 47 CFR Part 1

    Practice and procedure.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR Part 1 as follows:

PART 1--PRACTICE AND PROCEDURE

0
1. The authority citation for part 1 continues to read as follows:

    Authority: 47 U.S.C. 151, 154(i), 154(j), 155, 225, 303(r), 309, 
and 325(e).


0
2. Section 1.1307 is amended by revising paragraph (a)(4) and removing 
the note to paragraph (a)(4) to read as follows:


Sec.  1.1307  Actions that may have a significant environmental effect, 
for which Environmental Assessments (EAs) must be prepared.

    (a)* * *
    (4) Facilities that may affect districts, sites, buildings, 
structures or objects, significant in American history, architecture, 
archeology, engineering or culture, that are listed, or are eligible 
for listing, in the National Register of Historic Places. (See 16 
U.S.C. 470w(5); 36 CFR part 60 and 800.) To ascertain whether a 
proposed action may affect properties that are listed or eligible for 
listing in the National Register of Historic Places, an applicant shall 
follow the procedures set forth in the rules of the Advisory Council on 
Historic Preservation, 36 CFR part 800, as modified and supplemented by 
the Nationwide Programmatic Agreement for the Collocation of Wireless 
Antennas, Appendix B to Part 1 of this Chapter, and the Nationwide 
Programmatic Agreement Regarding the Section 106 National Historic 
Preservation Act Review Process, Appendix C to Part 1 of this Chapter.
* * * * *

0
3. Appendix B to Part 1 is added to read as follows:

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

[[Page 579]]

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

[[Page 580]]

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 the Federal 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

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Date:------------------------------------------------------------------

Advisory Council on Historic Preservation
-----------------------------------------------------------------------

Date:------------------------------------------------------------------

National Conference of State Historic Preservation Officers

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Date:------------------------------------------------------------------



0
4. Appendix C to Part 1 is added to read as follows:

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

[[Page 581]]

    Whereas, this Nationwide Agreement will, upon its execution by 
the Council, the Conference, and the Commission, constitute a 
substitute for the Council's rules with respect to certain 
Commission Undertakings; and
    Whereas, the Commission sought public comment on a draft of this 
Nationwide Agreement through a Notice of Proposed Rulemaking 
released on June 9, 2003;
    Whereas, the Commission has actively sought and received 
participation and comment from Indian tribes and NHOs regarding this 
Nationwide Agreement; and
    Whereas, the Commission has consulted with federally recognized 
Indian tribes regarding this Nationwide Agreement (see Report and 
Order, FCC 04-222, at ] 31); and
    Whereas, this Nationwide Agreement provides for appropriate 
public notification and participation in connection with the Section 
106 process; and
    Whereas, Section 101(d)(6) of the NHPA provides that federal 
agencies ``shall consult with any Indian tribe or Native Hawaiian 
organization'' that attaches religious and cultural significance to 
properties of traditional religious and cultural importance that may 
be determined to be eligible for inclusion in the National Register 
and that might be affected by a federal undertaking (16 U.S.C. 
470a(d)(6)); and
    Whereas, the Commission has adopted a ``Statement of Policy on 
Establishing a Government-to-Government Relationship with Indian 
Tribes'' dated June 23, 2000, pursuant to which the Commission: 
recognizes the unique legal relationship that exists between the 
federal government and Indian tribal governments, as reflected in 
the Constitution of the United States, treaties, federal statutes, 
Executive orders, and numerous court decisions; affirms the federal 
trust relationship with Indian tribes, and recognizes that this 
historic trust relationship requires the federal government to 
adhere to certain fiduciary standards in its dealings with Indian 
tribes; commits to working with Indian tribes on a government-to-
government basis consistent with the principles of tribal self-
governance; commits, in accordance with the federal government's 
trust responsibility, and to the extent practicable, to consult with 
tribal governments prior to implementing any regulatory action or 
policy that will significantly or uniquely affect tribal 
governments, their land and resources; strives to develop working 
relationships with tribal governments, and will endeavor to identify 
innovative mechanisms to facilitate tribal consultations in the 
Commission's regulatory processes; and endeavors to streamline its 
administrative process and procedures to remove undue burdens that 
its decisions and actions place on Indian tribes; and
    Whereas, the Commission does not delegate under this 
Programmatic Agreement any portion of its responsibilities to Indian 
tribes and NHOs, including its obligation to consult under Section 
101(d)(6) of the NHPA; and
    Whereas, the terms of this Nationwide Agreement are consistent 
with and do not attempt to abrogate the rights of Indian tribes or 
NHOs to consult directly with the Commission regarding the 
construction of Facilities; and
    Whereas, the execution and implementation of this Nationwide 
Agreement will not preclude Indian tribes or NHOs, SHPO/THPOs, local 
governments, or members of the public from filing complaints with 
the Commission or the Council regarding effects on Historic 
Properties from any Facility or any activity covered under the terms 
of the Nationwide Agreement; and
    Whereas, Indian tribes and NHOs may request Council involvement 
in Section 106 cases that present issues of concern to Indian tribes 
or NHOs (see 36 CFR Part 800, Appendix A, Section (c)(4)); and
    Whereas, the Commission, after consulting with federally 
recognized Indian tribes, has developed an electronic Tower 
Construction Notification System through which Indian tribes and 
NHOs may voluntarily identify the geographic areas in which Historic 
Properties to which they attach religious and cultural significance 
may be located, Applicants may ascertain which participating Indian 
tribes and NHOs have identified such an interest in the geographic 
area in which they propose to construct Facilities, and Applicants 
may voluntarily provide electronic notification of proposed 
Facilities construction for the Commission to forward to 
participating Indian tribes, NHOs, and SHPOs/THPOs; and
    Whereas, the Council, the Conference and the Commission 
recognize that Applicants' use of qualified professionals 
experienced with the NHPA and Section 106 can streamline the review 
process and minimize potential delays; and
    Whereas, the Commission has created a position and hired a 
cultural resources professional to assist with the Section 106 
process; and
    Whereas, upon execution of this Nationwide Agreement, the 
Council may still provide advisory comments to the Commission 
regarding the coordination of Section 106 reviews; notify the 
Commission of concerns raised by consulting parties and the public 
regarding an Undertaking; and participate in the resolution of 
adverse effects for complex, controversial, or other non-routine 
projects;
    Now Therefore, in consideration of the above provisions and of 
the covenants and agreements contained herein, the Council, the 
Conference and the Commission (the ``Parties'') agree as follows:

I. Applicability and Scope of This Nationwide Agreement

    A. This Nationwide Agreement (1) Excludes from Section 106 
review certain Undertakings involving the construction and 
modification of Facilities, and (2) streamlines and tailors the 
Section 106 review process for other Undertakings involving the 
construction and modification of Facilities. An illustrative list of 
Commission activities in relation to which Undertakings covered by 
this Agreement may occur is provided as Attachment 2 to this 
Agreement.
    B. This Nationwide Agreement applies only to federal 
Undertakings as determined by the Commission (``Undertakings''). The 
Commission has sole authority to determine what activities 
undertaken by the Commission or its Applicants constitute 
Undertakings within the meaning of the NHPA. Nothing in this 
Agreement shall preclude the Commission from revisiting or affect 
the existing ability of any person to challenge any prior 
determination of what does or does not constitute an Undertaking. 
Maintenance and servicing of Towers, Antennas, and associated 
equipment are not deemed to be Undertakings subject to Section 106 
review.
    C. This Agreement does not apply to Antenna Collocations that 
are exempt from Section 106 review under the Collocation Agreement 
(see Attachment 1). Pursuant to the terms of the Collocation 
Agreement, such Collocations shall not be subject to the Section 106 
review process and shall not be submitted to the SHPO/THPO for 
review. This Agreement does apply to collocations that are not 
exempt from Section 106 review under the Collocation Agreement.
    D. This Agreement does not apply on ``tribal lands'' as defined 
under Section 800.16(x) of the Council's regulations, 36 CFR Sec.  
800.16(x) (``Tribal lands means all lands within the exterior 
boundaries of any Indian reservation and all dependent Indian 
communities.''). This Nationwide Agreement, however, will apply on 
tribal lands should a tribe, pursuant to appropriate tribal 
procedures and upon reasonable notice to the Council, Commission, 
and appropriate SHPO/THPO, elect to adopt the provisions of this 
Nationwide Agreement. Where a tribe that has assumed SHPO functions 
pursuant to Section 101(d)(2) of the NHPA (16 U.S.C. 470(d)(2)) has 
agreed to application of this Nationwide Agreement on tribal lands, 
the term SHPO/THPO denotes the Tribal Historic Preservation Officer 
with respect to review of proposed Undertakings on those tribal 
lands. Where a tribe that has not assumed SHPO functions has agreed 
to application of this Nationwide Agreement on tribal lands, the 
tribe may notify the Commission of the tribe's intention to perform 
the duties of a SHPO/THPO, as defined in this Nationwide Agreement, 
for proposed Undertakings on its tribal lands, and in such instances 
the term SHPO/THPO denotes both the State Historic Preservation 
Officer and the tribe's authorized representative. In all other 
instances, the term SHPO/THPO denotes the State Historic 
Preservation Officer.
    E. This Nationwide Agreement governs only review of Undertakings 
under Section 106 of the NHPA. Applicants completing the Section 106 
review process under the terms of this Nationwide Agreement may not 
initiate construction without completing any environmental review 
that is otherwise required for effects other than historic 
preservation under the Commission's rules (See 47 CFR 1.1301-
1.1319). Completion of the Section 106 review process under this 
Nationwide Agreement satisfies an Applicant's obligations under the 
Commission's rules with respect to Historic Properties, except for 
Undertakings that have been determined to have an adverse effect on 
Historic Properties and that therefore require preparation and 
filing of an Environmental Assessment (See 47 CFR 1.1307(a)(4)).
    F. This Nationwide Agreement does not govern any Section 106 
responsibilities that

[[Page 582]]

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

[[Page 583]]

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

[[Page 584]]

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

[[Page 585]]

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. Within \3/4\ of 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 1 \1/2\ miles 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.

[[Page 586]]

    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

[[Page 587]]

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

[[Page 588]]

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

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Chairman

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Advisory Council on Historic Preservation

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Chairman

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National Conference of State Historic Preservation Officers

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[FR Doc. 05-5 Filed 1-3-05; 8:45 am]
BILLING CODE 6712-01-P