[Federal Register Volume 74, Number 223 (Friday, November 20, 2009)]
[Notices]
[Pages 60280-60281]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-27798]


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ADVISORY COUNCIL ON HISTORIC PRESERVATION


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

AGENCY: Advisory Council on Historic Preservation.

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

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

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

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

FOR FURTHER INFORMATION CONTACT: Blythe Semmer, (202) 606 8552, 
[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 
800.3 through 800.7. An agency can meet its Section 106 
responsibilities with regard to the effects of particular aspects of 
those undertakings by taking into account ACHP's Program Comment and 
following the steps set forth in that comment.

I. Background

    The ACHP has issued a Program Comment to the U.S. Department of 
Agriculture Rural Utilities Service (RUS), the U.S. Department of 
Commerce National Telecommunications and Information Administration 
(NTIA), and the Federal Emergency Management Agency (FEMA) to relieve 
them from conducting duplicate reviews under Section 106 of the 
National Historic Preservation Act when these agencies assist a 
telecommunications project subject to Section 106 review by the Federal 
Communications Commission (FCC). The ACHP membership voted in favor of 
issuing the Program Comment via an unassembled vote on October 23, 
2009.
    The American Recovery and Reinvestment Act (ARRA) provides NTIA and 
RUS with $7.2 billion to expand access to broadband services in the 
United States. NTIA will implement the Broadband Technology 
Opportunities Program (BTOP), which will award grants to expand public 
computer capacity, encourage sustainable adoption of broadband of 
broadband service, and deploy broadband infrastructure to unserved and 
underserved areas. RUS, through its Broadband Initiatives Program 
(BIP), will use loan and grant combinations to support broadband 
deployment in rural areas.
    Broadband deployment can include the construction and placement of 
communication towers and antennas. Some of those towers and antennas 
are also regulated by the FCC, and therefore undergo, or are exempted 
from, Section 106 review under the Nationwide Programmatic Agreement 
for Review of Effect on Historic Properties for Certain Undertakings 
Approved by the FCC and the Nationwide Programmatic Agreement for the 
Collocation of Wireless Antennas (FCC NPAs). RUS, NTIA, or FEMA will be 
relieved by the Program Comment of the need to conduct a separate 
Section 106 review for undertakings subject to review under the FCC 
NPAs.
    The ACHP took steps to inform the public and stakeholders about the 
proposed Program Comment, including an e-mail distribution, posting on 
the agency Web site, and a notice published in the Federal Register. 
ACHP also sent a letter to the Indian tribal leaders requesting their 
comments on the Program Comment. Public comments resulting from the 
September 17, 2009 public notice in the Federal Register (74 FR 47807-
47809) were received by the ACHP by October 8, 2009.
    Various substantive comments from the public were received and 
considered by the ACHP, as noted below.
    FEMA requested inclusion in the provisions of the Program Comment 
given that its grant programs provide funding for emergency 
communications facilities that are also subject to review by FCC under 
the FCC NPAs. FEMA's request would not expand the types of undertakings 
covered by the Program Comment, so FEMA has been added to the Program 
Comment.
    Two comments objected to how tribal consultation appeared to have 
been coordinated for the Program Comment, but the characterization of 
early coordination with intertribal organizations by RUS and NTIA prior 
to the agencies' formal request to the ACHP did not constitute ACHP's 
tribal consultation on this program alternative.
    Two comments expressed concern about how State and Tribal Historic 
Preservation Officers (SHPOs and THPOs) and Indian tribes will be 
notified when the Program Comment is applied. SHPOs and THPOs and 
Indian tribes will be notified according to the regular FCC NPAs review 
processes. There is no change to the FCC NPAs procedures.
    Two comments expressed objections or concerns about the FCC NPAs 
and two comments expressed positive views on the functioning of the FCC 
NPAs. Nothing in the Program Comment will alter the FCC NPAs, but these 
comments will be referred to FCC for their consideration on the 
operation of their NPAs. One comment expressed concerns about towers 
that may have been constructed before undergoing a Section 106 review. 
The Program

[[Page 60281]]

Comment deals with the construction of towers and collocation on 
existing towers. It does not address or affect pre-existing Section 106 
issues. Those issues should be referred to the FCC.
    Four comments expressed support for the efficiencies the Program 
Comment will offer in Section 106 reviews.
    Two comments offered views on a concept plan for a nationwide 
programmatic agreement circulated separately by RUS and NTIA. Those 
comments will be considered in the context of that program initiative.
    The Colorado Historical Society requested clarification about the 
6-year term of the Program Comment. This time period recognizes that 
ARRA-assisted communications facilities construction may be ongoing for 
several years. The ACHP and others will be able to reevaluate the 
Program Comment, and whether to extend its duration prior to the 
conclusion of those 6 years.
    The Texas Historical Commission questioned what would happen should 
an FCC NPA Section 106 review yield a finding of adverse effect within 
a larger RUS or NTIA undertaking of multiple components. As explicitly 
stated in the Program Comment, RUS, NTIA, or FEMA will be conducting 
its own Section 106 review for the larger undertaking, but will not 
have to consider the effects of the FCC-regulated component of that 
larger undertaking. RUS, NTIA, or FEMA will make effect determinations 
based on the non-tower components of the undertaking. Since it is 
possible that the larger undertaking may not be able to proceed until 
the FCC review of the tower component has concluded, it is expected 
that RUS, NTIA, FEMA, and the FCC will coordinate their review efforts 
accordingly and keep consulting parties appraised.

II. Final Text of the Program Comment

    The text of the issued Program Comment is included below:

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

I. Background

    The Rural Utilities Service (RUS), the National 
Telecommunications and Information Administration (NTIA), and the 
Federal Emergency Management Agency (FEMA) provide financial 
assistance to applicants for various undertakings, including 
broadband deployment, which can involve the construction and 
placement of communications towers and antennas. RUS, NTIA, and FEMA 
must therefore comply with Section 106 of the National Historic 
Preservation Act, 16 U.S.C. 470f, and its implementing regulations 
at 36 CFR part 800 (Section 106) for these undertakings. Some of 
those communications towers and antennas are also regulated by the 
Federal Communications Commission (FCC), and therefore undergo, or 
are exempted from, Section 106 review under the Nationwide 
Programmatic Agreement for Review of Effects on Historic Properties 
for Certain Undertakings Approved by the FCC (FCC Nationwide PA) and 
the Nationwide Programmatic Agreement for the Collocation of 
Wireless Antennas (FCC Collocation PA). The FCC Nationwide PA was 
executed by the FCC, the Advisory Council on Historic Preservation 
(ACHP), and the National Conference of State Historic Preservation 
Officers (NCSHPO) on October 4, 2004. The FCC Collocation PA was 
executed by the FCC, ACHP, and NCSHPO on March 16, 2001. The 
undertakings addressed by the FCC Nationwide PA primarily include 
the construction and modification of communication towers. The 
undertakings addressed by the FCC Collocation PA include the 
collocation of communications equipment on existing structures and 
towers.
    This Program Comment is intended to streamline Section 106 
review of the construction and modification of communication towers 
and antennas for which FCC and RUS, NTIA, or FEMA share Section 106 
responsibility.
    Nothing in this Program Comment alters or modifies the FCC 
Nationwide PA or the FCC Collocation PA, or imposes Section 106 
responsibilities on the FCC for elements of a RUS, NTIA, or FEMA 
undertaking that are unrelated to a communications facility within 
the FCC's jurisdiction or are beyond the scope of the FCC Nationwide 
PA.

II. Establishment and Authority

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

III. Date of Effect

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

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

    RUS, NTIA and FEMA will not need to comply with Section 106 with 
regard to the effects of communication facilities construction or 
modification that has either undergone or will undergo Section 106 
review, or is exempt from Section 106 review, by the FCC under the 
FCC Nationwide PA and/or the FCC Collocation PA. For purposes of 
this program comment, review under the FCC Nationwide PA means the 
historic preservation review that is necessary to complete the FCC's 
Section 106 responsibility for an undertaking that is subject to the 
FCC Nationwide PA.
    When an RUS, NTIA, or FEMA undertaking includes both 
communications facilities construction or modification covered by 
the FCC Nationwide PA or Collocation PA and components in addition 
to such communication facilities construction or modification, RUS, 
NTIA, or FEMA, as applicable, will comply with Section 106 in 
accordance with the process set forth at 36 CFR 800.3 through 800.7, 
or 36 CFR 800.8(c), or another applicable alternate procedure under 
36 CFR 800.14, but will not have to consider the effects of the 
communication facilities construction or modification component of 
the undertaking on historic properties. Whenever RUS, NTIA, or FEMA 
uses this Program Comment for such undertakings, RUS, NTIA or FEMA 
will apprise the relevant State Historic Preservation Officer (SHPO) 
or Tribal Historic Preservation Officer (THPO) of the use of this 
Program Comment for the relevant communication facilities 
construction or modification component.

V. Amendment

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

VI. Sunset Clause

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

VII. Termination

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

     Authority:  36 CFR 800.14(e).

    Dated: November 10, 2009.
Reid Nelson,
Acting Executive Director.
[FR Doc. E9-27798 Filed 11-19-09; 8:45 am]
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