[Federal Register Volume 85, Number 169 (Monday, August 31, 2020)]
[Notices]
[Pages 53830-53832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19165]


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ADVISORY COUNCIL ON HISTORIC PRESERVATION


Notice of Amendments to the Program Comment To Avoid Duplicative 
Reviews for the Wireless Communications Facilities Construction and 
Modification

AGENCY: Advisory Council on Historic Preservation

ACTION: Notice of Issuance of Amendments to the Program Comment to 
Avoid Duplicative Reviews for the Wireless Communications Facilities 
Construction and Modification.

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SUMMARY: The Advisory Council on Historic Preservation (ACHP) has 
approved amendments to the Program Comment that sets forth the way in 
which various agencies comply with Section 106 of the National Historic 
Preservation Act for telecommunications project already subject to 
Section 106 review by the Federal Communications Commission. The 
amendments add the Office of Surface Mining Reclamation and Enforcement 
to the Program Comment and authorize the Chairman of the ACHP to amend 
the Program Comment to add new agencies to it or extend its duration.

DATES: The amendments went into effect on July 31, 2020.

ADDRESSES: Address any questions concerning the amendments to Jaime 
Loichinger, Office of Federal Agency Programs, Advisory Council on 
Historic Preservation, 401 F Street NW, Suite 308, Washington, DC 
20001.

FOR FURTHER INFORMATION CONTACT: Jaime Loichinger, (202) 517-0219, 
[email protected].

SUPPLEMENTARY INFORMATION: Section 106 of the National Historic 
Preservation Act, 54 U.S.C. 306108, requires federal agencies to 
consider the effects of projects they carry out, license, or assist 
(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 at 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. An agency can meet its Section 106 
responsibilities regarding the effects of particular aspects of those 
undertakings by taking into account an applicable Program Comment and 
following the steps set forth in that comment.

I. Background on Amendments

    On October 23, 2009, the ACHP issued the ``Program Comment for 
Streamlining Section 106 Review for Wireless Communications 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'' (Broadband PC). 
The Broadband PC relieves various agencies from conducting duplicate 
reviews under Section 106 when those agencies assist a 
telecommunications project subject to Section 106 review by the Federal 
Communications Commission (FCC). For background on the original 
Broadband PC, please refer to 74 FR 60280-60281 (November 20, 2009).
    Earlier this year, the Office of Surface Mining Reclamation and 
Enforcement (OSMRE) asked the ACHP to include them in the Broadband PC. 
OSMRE has made funding available for projects in the Abandoned Mine 
Land Reclamation Economic Development Pilot Program (AMLPP) as 
authorized by the Consolidated Appropriations Acts (Pub. L. 114-113 
(2016); Pub. L. 115-31 (2017); Pub. L. 115-141 (2018), and Pub. L. 116-
6 (2019)), and which may continue under annual appropriation cycles. 
OSMRE is providing financial assistance under the AMLPP to the West 
Virginia Department of Environmental Protection (DEP), issued to the 
Upshur County Development Authority (UCDA) as a sub-recipient, for the 
purposes of: (1) Increasing the availability of broadband to unserved 
and under-served communities in West Virginia by construction of an 
open-access transport network across West Virginia on Abandoned Mine 
Land sites; and (2) constructing a series of towers consisting of fiber 
connected towers as the network backbone with wireless transport to 
aggregation and last mile towers using a ``hub and spoke'' 
architecture.
    During consultation for ways to handle Section 106 reviews for 
these projects, it became apparent that some of the proposed actions 
would be subject to FCC's existing Section 106 Nationwide Programmatic 
Agreement and collocation Programmatic Agreement, and that OSMRE would 
benefit from being added to the Broadband PC to avoid duplicative 
reviews. This would allow OSMRE to use the exemptions contained in 
those FCC agreements, and streamline review in the future. OSMRE would 
still need to have ways to comply with Section 106 to address the other 
components of their undertakings that do not include the construction 
of the cell towers, but adding them to the Broadband PC would move 
along a good portion of the projects consistent with how FCC handles 
tower construction.
    ACHP staff also took the opportunity to propose authorizing the 
ACHP

[[Page 53831]]

Chairman to amend the Broadband PC without the need for a full ACHP 
membership vote, to add new agencies to the Broadband PC or extend its 
duration. The ACHP Chairman could do that after notifying the ACHP 
membership about such amendments and providing them an opportunity to 
object and thereby move the matter to full membership consideration.
    The ACHP membership voted in favor of issuing the mentioned 
amendments on July 31, 2020.

II. Text of Broadband PC as Amended

    What follows is the current text of the Broadband PC, incorporating 
the amendments adopted on August 31, 2020 and previously adopted 
amendments:
    Program Comment for Streamlining Section 106 Review for Wireless 
Communications 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 (as amended on September 24, 2015 and July 31, 2020).

I. Background

    Due to their role in providing financial assistance and/or carrying 
out other responsibilities for undertakings that involve the 
construction of communications towers and collocation of communications 
equipment on existing facilities, the Rural Utilities Service (RUS), 
the National Telecommunications and Information Administration (NTIA), 
the Department of Homeland Security (DHS), the Federal Railroad 
Administration (FRA), the Federal Transit Administration (FTA), the 
First Responder Network Authority (FirstNet), and the Office of Surface 
Mining Reclamation and Enforcement in the U.S. Department of the 
Interior (OSMRE) are required to comply with Section 106 of the 
National Historic Preservation Act, 54 U.S.C. 306108, and its 
implementing regulations at 36 CFR part 800 (Section 106 review) for 
such undertakings. Some of those communications towers and antennas are 
also federal undertakings of 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, as amended (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, and was amended on August 29, 2016 and July 10, 2020. The 
undertakings addressed by the FCC Nationwide PA primarily include the 
construction and modification of communications 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 communications towers and 
antennas for which FCC and RUS, NTIA, DHS, FRA, FTA, FirstNet, or OSMRE 
share Section 106 responsibility. Such streamlining is consistent with 
the broad purpose of the Presidential Memorandum: Unleashing the 
Wireless Broadband Revolution dated June 28, 2010, Executive Order 
13616: Accelerating Broadband Infrastructure Deployment, dated June 14, 
2012, and the Presidential Memorandum: Expanding Broadband Deployment 
and Adoption by Addressing Regulatory Barriers and Encouraging 
Investment and Training, dated March 23, 2015.
    The term ``DHS,'' as used in this Program Comment, refers to all of 
that agency's operational and support components. For a list of such 
components, you may refer to: http://www.dhs.gov/components-directorates-and-offices.
    Nothing in this Program Comment alters or modifies the FCC 
Nationwide PA or the FCC Collocation PA (collectively, the FCC NPAs), 
or imposes Section 106 responsibilities on the FCC for elements of a 
RUS, NTIA, DHS, FRA, FTA, FirstNet, or OSMRE undertaking that are 
unrelated to a communications facility within the FCC's jurisdiction or 
are beyond the scope of the FCC NPAs.
    The Program Comment, as originally issued in October 23, 2009, only 
covered RUS, NTIA, and the Federal Emergency Management Agency (FEMA). 
Because of the successful implementation of this Program Comment, as 
originally issued, the DHS sought to expand its participation beyond 
FEMA to all of its components which provide federal assistance for the 
construction and modification of communications towers, and the 
collocation of communications equipment on existing structures and 
towers. Four additional agencies, the FRA, which supports railroading 
with funding that may be used to improve safety and rail 
infrastructure, the FTA, which provides financial assistance to 
eligible applicants to support public transportation, FirstNet, an 
independent authority within the NTIA that was created by Congress in 
2012, and OSMRE, which supports reclamation and economic growth for 
abandoned mine lands, also wished to become part of Program Comment in 
order to benefit from the efficiencies in the timely delivery of their 
respective programs.
    DHS, FRA, FTA, and OSMRE provide financial assistance to applicants 
for various undertakings, including the construction of communications 
towers and collocation of communications equipment on existing 
facilities. Conversely, FirstNet is the entity responsible for ensuring 
the building, deployment, and operation of the nationwide public safety 
broadband network, which will likely include the construction of 
communications towers and the collocation of equipment on existing 
facilities. DHS, FRA, FTA, FirstNet, and OSMRE must therefore comply 
with Section 106 for these undertakings. Some of the communications 
towers and collocated communications equipment assisted by DHS 
components, FRA, FTA, FirstNet, and OSMRE are also the FCC's 
undertakings, and therefore undergo Section 106 review governed by the 
FCC NPAs.
    Accordingly, the ACHP amended this Program Comment on September 24, 
2015, to add all DHS components, FRA, FTA and FirstNet to the list of 
agencies subject to the terms of the Program Comment along with RUS, 
NTIA, and FEMA, and to extend its period of applicability, which 
originally would have ended on September 30, 2015. The ACHP 
subsequently amended this Program Comment on July 31, 2020, to add 
OSMRE to the list of agencies subject to the terms of the Program 
Comment.

II. Establishment and Authority

    This Program Comment was originally issued by the ACHP on October 
23, 2009 pursuant to 36 CFR 800.14(e), and was subsequently amended, 
effective on September 24, 2015 and July 31, 2020, pursuant to its 
Stipulation VI.

III. Date of Effect

    This Program Comment, as originally issued, went into effect on 
October 23, 2009. It was subsequently amended to its current version on 
September 24, 2015 and July 31, 2020, effective on those dates 
respectively.

[[Page 53832]]

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, DHS, FRA, FTA, FirstNet, and OSMRE will not need to 
comply with Section 106 with regard to the effects of communications 
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, DHS, FRA, FTA, FirstNet, or OSMRE undertaking 
includes both communications facilities construction or modification 
components that are covered by the FCC Nationwide PA or Collocation PA 
and components other than such communications facilities construction 
or modification, RUS, NTIA, DHS, FRA, FTA, FirstNet, or OSMRE, 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, for the components 
other than communications facilities construction or modification. 
However, RUS, NTIA, DHS, FRA, FTA, FirstNet, or OSMRE will not have to 
consider the effects of the communications facilities construction or 
modification component of the undertaking on historic properties.
    Whenever RUS, NTIA, DHS, FRA, FTA, FirstNet, or OSMRE uses this 
Program Comment for such undertakings, RUS, NTIA, DHS, FRA, FTA, 
FirstNet, or OSMRE 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 
communications facilities construction or modification component.

V. Reporting

    No later than March 1, 2016, the FCC, RUS, NTIA, DHS, FRA, FTA, and 
FirstNet, and in the case of OSMRE no later than February 1, 2021, will 
inform the ACHP as to the reporting system that they will utilize to 
collectively provide annual reports to the ACHP. The intent of the 
annual reports will be to enable the monitoring of the use of the 
Program Comment.

VI. Amendment

    The terms of this Program Comment may be amended by the ACHP 
membership after the ACHP consults with FCC, RUS, NTIA, DHS, FRA, FTA, 
FirstNet, OSMRE, and other parties, as appropriate. Such amendments 
will then be published in the Federal Register.
    However, terms of this Program Comment that solely affect its 
duration or add a Federal agency to it may be amended by the Chairman 
of the ACHP after notifying the rest of the ACHP membership in writing 
and not receiving a written objection therefrom within 10 calendar 
days, and consulting the FCC, RUS, NTIA, DHS, FRA, FTA, FirstNet, OSMRE 
and other parties as appropriate. Such amendments will then be 
published in the Federal Register. If the ACHP Chairman receives an 
ACHP member written objection within the 10-day period, the amendment 
shall not be issued by the ACHP Chairman alone but may be issued by the 
ACHP membership.
    Any Federal agency that wishes to take advantage of this Program 
Comment may notify the ACHP to that effect. An amendment, as set forth 
above, is needed in order to add such an agency to this Program 
Comment.

VII. Sunset Clause

    This Program Comment will terminate on September 30, 2025, unless 
it is amended to extend the period in which it is in effect.
    The ACHP may extend the Program Comment for an additional five 
years beyond 2025 through an amendment per Stipulation VI of this 
Program Comment.

VIII. Termination

    The ACHP may terminate this Program Comment, pursuant to 36 CFR 
800.14(e)(6), by publication of a notice in the Federal Register thirty 
(30) days before the termination takes effect.

    (END OF DOCUMENT)

    Authority: 36 CFR 800.14(e).

    Dated: August 6, 2020.
Javier Marqu[eacute]s,
General Counsel.
[FR Doc. 2020-19165 Filed 8-28-20; 8:45 am]
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