[Federal Register Volume 74, Number 179 (Thursday, September 17, 2009)]
[Notices]
[Pages 47807-47809]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-22273]


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ADVISORY COUNCIL ON HISTORIC PRESERVATION


Draft Program Comment for the National Telecommunications and 
Information Administration and the U.S. Department of Agriculture's 
Rural Utilities Service Regarding the Effects of Communication 
Facilities Construction or Modification Subject To Review by the 
Federal Communications Commission

AGENCY: Advisory Council on Historic Preservation.

ACTION: Notice of Intent to Issue Program Comments for the National 
Telecommunications and Information Administration and the U.S. 
Department of Agriculture's Rural Utilities Service Regarding the 
Effects of Communication Facilities Construction or Modification 
Subject to Review by the Federal Communications Commission.

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SUMMARY: The Advisory Council on Historic Preservation (ACHP) is 
considering issuing a Program Comment for the National 
Telecommunications and Information Administration and the U.S. 
Department of Agriculture's Rural Utilities Service that would relieve 
them of the need to conduct a separate Section 106 review regarding the 
effects of communication facilities construction or modification that 
will be subject to such review by the Federal Communications 
Commission. The ACHP seeks public input on the proposed Program 
Comment.

DATES: Submit comments on or before October 8, 2009.

ADDRESSES: Address all comments concerning this proposed Program 
Comment to Blythe Semmer, Office of Federal Agency Programs, Advisory 
Council on Historic Preservation, 1100 Pennsylvania Avenue, NW., Suite 
803, Washington, DC 20004. Fax (202) 606-8647. You may submit 
electronic comments to: [email protected].

FOR FURTHER INFORMATION CONTACT: Blythe Semmer, (202) 606- 8552, 
[email protected]; or Laura Dean, PhD, RUS Federal Preservation Officer, 
(202) 720-9634, [email protected].

SUPPLEMENTARY INFORMATION: Section 106 of the National Historic 
Preservation Act requires federal agencies to consider the effects of 
their undertakings on historic properties and to provide the Advisory 
Council on Historic Preservation (ACHP) a reasonable opportunity to 
comment with regard to such undertakings. The ACHP has issued the 
regulations that set forth the process through which Federal agencies 
comply with these duties. Those regulations are codified under 36 CFR 
part 800 (Section 106 regulations).
    Under Section 800.14(e) of those regulations, agencies can request 
the ACHP to provide a ``Program Comment'' on a particular category of 
undertakings in lieu of conducting individual reviews of each 
individual undertaking under such category, as set forth in 36 CFR 
800.4 through 800.7.
    The ACHP is now considering issuing a Program Comment to the 
National Telecommunications and Information Administration (NTIA) and 
the U.S. Department of Agriculture's Rural Utilities Service (RUS) that 
would relieve them of the need to conduct a separate Section 106 review 
regarding the effects of communication facilities construction or 
modification that will be subject to such review by the Federal 
Communications Commission (FCC).

I. Background

    On February 17, 2009, President Obama signed the American Recovery 
and Reinvestment Act of 2009 (Recovery Act) into law. The Recovery Act 
provides the NTIA and the RUS with $7.2 billion to expand access to 
broadband services in the United States. In implementing this 
responsibility, NTIA, through its Broadband

[[Page 47808]]

Technology Opportunities Program (BTOP), will award grants to expand 
public computer capacity, encourage sustainable adoption of broadband 
service and deploy broadband infrastructure to unserved and underserved 
areas. RUS, through its Broadband Initiatives Program (BIP), will use 
loan and grant combinations to support broadband deployment in rural 
communities.
    Technological solutions available to speed the deployment of 
affordable broadband under those programs are diverse and include the 
construction and modification of communications towers and antennas. 
Some of those communication towers and antennas will be regulated by 
the FCC. For such proposals that are regulated by the FCC and assisted 
by RUS and/or NTIA, each agency would be individually responsible for 
compliance with Section 106.
    The FCC, ACHP, and the National Conference of State Historic 
Preservation Officers (NCSHPO) have executed the Nationwide 
Programmatic Agreement for Review of Effects on Historic Properties For 
Certain Undertakings Approved by the FCC (FCC Nationwide PA) and the 
Nationwide Programmatic Agreement for the Collocation of Wireless 
Antennas (FCC Collocation PA) to govern how FCC meets its Section 106 
responsibilities for certain undertakings, including communication 
towers and antennas. In implementing the terms of those programmatic 
agreements, FCC has established a procedure that is supported by 
innovative approaches that expedite review and facilitate the 
involvement of stakeholders, most notably Indian tribes, to ensure that 
effects to historic properties are taken into account.
    Currently, it is not possible for RUS and NTIA to benefit from the 
implementation of those programmatic agreement solutions in meeting 
their individual Section 106 responsibilities, because the FCC 
Nationwide PA stipulates that it does not govern the Section 106 
responsibilities of any federal agency other than the FCC. This means 
that FCC, RUS and NTIA must each conduct separate Section 106 reviews 
for the same proposed undertaking. Such an approach does not seem to be 
efficient, particularly within the context of the compressed schedules 
established by the Recovery Act. Accordingly, pursuant to 36 CFR 
800.14(e), NTIA and RUS have requested the ACHP to issue a program 
comment that removes their requirement to comply with Section 106 with 
regard to the effects of communications facilities construction or 
modification that has undergone, will undergo, or is exempt from, 
Section 106 review by the FCC under the cited FCC programmatic 
agreements.
    Under the Recovery Act, all NTIA and RUS grants and loans must be 
awarded by September 30, 2010. Construction of proposals receiving 
awards must be complete within three years of the award. Recovery Act 
responsibilities of NTIA and RUS, therefore, will extend to 2013. In 
order to accommodate for currently unknown contingencies, RUS and NTIA 
have requested that the effective termination of the proposed program 
comment be extended to September 30, 2015.
    RUS and NTIA have informed the ACHP that, prior to their formal 
request, they sought to share their intent to develop this program 
comment with the following historic preservation, tribal, and 
telecommunications industry organizations: National Trust for Historic 
Preservation, NCSHPO, American Cultural Resources Association, National 
Association of Tribal Historic Preservation Officers (NATHPO), United 
South and Eastern Tribes (USET), National Congress of American Indians, 
Affiliated Tribes of Northwest Indians, Office of Hawaiian Affairs 
(OHA), CTIA The Wireless Association, PCIA--The Wireless Infrastructure 
Association, and the Association of Public Safety Communications 
Officials. RUS and NTIA discussed this proposal with all of the listed 
parties except OHA, and reported that, in general, those organizations 
contacted were supportive, noting that this approach represented a 
common sense solution. In addition to those parties, NTIA and RUS have 
worked closely with the FCC throughout the development of the proposed 
program comment.
    RUS and NTIA also reported that several parties expressed concern 
that the proposed program comment would alter or modify the FCC 
Nationwide PA. That is not the intent of the proposed program comment 
and a statement to that effect has been included in the proposal 
itself.
    RUS and NTIA anticipate that BTOP/EIP applications will not consist 
solely of tower construction and modification. Accordingly, they have 
clarified the applicability of the program comment for multi-component 
proposals.
    NCSHPO was concerned about how this program comment would affect 
existing agreements. If, under the program comment, RUS and NTIA are 
not responsible for compliance with Section 106 for FCC regulated 
towers, then the trigger for existing agreements has been removed.
    USET explained to RUS and NTIA that it did not support expansion of 
the scope of the proposed program comment to all federal agencies. 
Accordingly, the proposal submitted to the ACHP applies to only NTIA 
and RUS. Finally, USET expressed concern that this process is being 
rushed and, as a consequence, tribes will not be allowed sufficient 
time to consult with agencies. However, the congressionally mandated 
Recovery Act schedules argue for an expedited process.

III. Text of the proposed Program Comment

    The text of the proposed Program Comment is included below:

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

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

[[Page 47809]]

Collocation PA include the collocation of communications equipment on 
existing structures and towers.
    This Program Comment is intended to streamline Section 106 review 
of the construction and modification of communication towers and 
antennas for which FCC and RUS or NTIA share Section 106 
responsibility.
    Nothing in this Program Comment alters or modifies the FCC 
Nationwide PA or the FCC Collocation PA, or imposes Section 106 
responsibilities on the FCC for elements of an RUS or NTIA undertaking 
that are unrelated to a communications facility within the FCC's 
jurisdiction or are beyond the scope of the FCC Nationwide PA.
    II. Establishment and Authority: This Program Comment was issued by 
the ACHP on (date to be determined) pursuant to 36 CFR 800.14(e).
    III. Date of Effect: This Program Comment went into effect on (date 
to be determined).
    IV. Use of this Program Comment to Comply with Section 106 for the 
Effects of Facilities Construction or Modification Reviewed under the 
FCC Nationwide PA and/or the FCC Collocation PA: RUS and NTIA will not 
need to comply with Section 106 with regard to the effects of 
communication facilities construction or modification that has either 
undergone or will undergo Section 106 review, or is exempt from Section 
106 review, by the FCC under the FCC Nationwide PA and/or the FCC 
Collocation PA. For purposes of this program comment, review under the 
FCC Nationwide PA means the historic preservation review that is 
necessary to complete the FCC's Section 106 responsibility for an 
undertaking that is subject to the FCC Nationwide PA.
    When an RUS or NTIA undertaking includes both communications 
facilities construction or modification covered by the FCC Nationwide 
PA or Collocation PA and components in addition to such communication 
facilities construction or modification, RUS and NTIA will comply with 
Section 106 in accordance with the process set forth at 36 CFR 5 800.3 
through 800.7, or 36 CFR 800.8(c), or another applicable alternate 
procedure under 36 CFR 800.14, but will not have to consider the 
effects of the communication facilities construction or modification 
component of the undertaking on historic properties. Whenever RUS or 
NTIA uses this Program Comment for such undertakings, RUS or NTIA will 
apprise the relevant State Historic Preservation Officer (SHPO) or 
Tribal Historic Preservation Officer (THPO) of the use of this Program 
Comment for the relevant communication facilities construction or 
modification component.
    V. Amendment--The ACHP may amend this Program Comment after 
consulting with FCC, RUS, NTIA and other parties as appropriate, and 
publishing notice in the Federal Register to that effect.
    VI. Sunset Clause--This Program Comment will terminate on September 
30, 2015, unless it is amended to extend the period in which it is in 
effect.
    VII. Termination--The ACHP may terminate this Program Comment by 
publication of a notice in the Federal Register thirty (30) days before 
the termination takes effect.

    Authority:  36 CFR 800.14(e).

    Dated: September 10, 2009.
John M. Fowler,
Executive Director.
[FR Doc. E9-22273 Filed 9-16-09; 8:45 am]
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