80 FR 58744 - Notice of Amendment to Program Comment to Avoid Duplicative Reviews for Wireless Communications Facilities Construction and Modification

ADVISORY COUNCIL ON HISTORIC PRESERVATION

Federal Register Volume 80, Issue 189 (September 30, 2015)

The Advisory Council on Historic Preservation has amended the referenced Program Comment which avoids duplicate reviews under Section 106 of the National Historic Preservation Act regarding telecommunications projects that undergo Section 106 review by the Federal Communications Commission under existing Nationwide Programmatic Agreements. The amendments extend the duration of the Program Comment, add agencies that can use the Program Comment, and provide for a monitoring system.

[Federal Register Volume 80, Number 189 (Wednesday, September 30, 2015)]
[Notices]
[Pages 58744-58747]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-24713]


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ADVISORY COUNCIL ON HISTORIC PRESERVATION


Notice of Amendment to Program Comment to Avoid Duplicative 
Reviews for Wireless Communications Facilities Construction and 
Modification

AGENCY: Advisory Council on Historic Preservation.

ACTION: Notice of Program Comment amendment.

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SUMMARY: The Advisory Council on Historic Preservation has amended the 
referenced Program Comment which avoids duplicate reviews under Section 
106 of the National Historic Preservation Act regarding 
telecommunications projects that undergo Section 106 review by the 
Federal Communications Commission under existing Nationwide 
Programmatic Agreements. The amendments extend the duration of the 
Program Comment, add agencies that can use the Program Comment, and 
provide for a monitoring system.

DATES: The amendments were adopted by the ACHP on September 24, 2015.

ADDRESSES: Address all questions concerning the Program Comment 
amendments to Charlene Vaughn, Office of Federal Agency Programs, 
Advisory Council on Historic Preservation, 401 F Street NW., 
Washington, DC 20001-2637. You may submit electronic questions to: 
[email protected].

FOR FURTHER INFORMATION CONTACT: Charlene Vaughn, (202) 517-0207, 
[email protected].

SUPPLEMENTARY INFORMATION: Section 106 of the National Historic 
Preservation Act, 54 U.S.C. 306108 (Section 106), 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

    On October 23, 2009, the ACHP issued the referenced 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 when those agencies assist a telecommunications project 
subject to Section 106 review by the Federal Communications Commission 
(FCC). The FCC complies with its Section 106 responsibilities through 
its Programmatic Agreement for Review of Effects on Historic Properties 
for Certain Undertakings Approved by the FCC and the Nationwide 
Programmatic Agreement for the Collocation of Wireless Antennas (FCC 
NPAs).
    For background on that original Program Comment, and its text 
before these amendments, please refer to 74 FR 60280-60281 (November 
20, 2009).
    On August 21, 2015, the ACHP received a request from RUS, NTIA, and 
the Federal Emergency Management Agency (FEMA) to amend the referenced 
Program Comment.
    The issuance of the original Program Comment was intended to assist 
agencies to expeditiously allocate American Recovery and Reinvestment

[[Page 58745]]

Act (ARRA) funds, which was done successfully. While the ARRA funds 
have been expended, new funding has been provided to agencies to 
expedite the deployment of broadband. Also, unless amended, the Program 
Comment would have expired on September 30, 2015.
    The extension of the duration of the Program Comment is therefore 
necessary to continue streamlining the Section 106 review. In addition, 
several new agencies are now involved in these undertakings and need to 
be accommodated by the Program Comment to avoid delays in project 
approval. One of those agencies, FirstNet may or may not provide 
financial assistance for such towers and collocations in the future, 
but 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.
    Accordingly, the ACHP membership voted in favor of amending the 
Program Comment via an unassembled vote on September 24, 2015. The 
Program Comment has been amended to:
    1. Allow all components of the Department of Homeland Security 
(DHS), the Federal Railroad Administration (FRA), the Federal Transit 
Authority (FTA), and the First Responder Network Authority (FirstNet) 
to use the Program Comment, and specify how to add new agencies to the 
Program Comment in the future;
    2. Insert three new paragraphs explaining the purpose and need of 
the amendments listed above;
    3. Extend the duration of the Program Comment to September 30, 
2025;
    4. Add a system to monitor the use of the Program Comment;
    5. Cite Presidential Memoranda consistent with the streamlining 
intent of the Program Comment; and
    6. Add technical edits to reflect the effective date of these 
amendments and changes to the statutory citation to Section 106 of the 
National Historic Preservation Act.
    RUS sought input from stakeholders on the proposed amendments to 
the Program Comment. Thereafter, the ACHP became more directly involved 
in the consultation by holding meetings, requesting and considering 
comments by stakeholders, holding conference calls with them, and 
making changes to the draft amendments accordingly. Overall, the 
majority of State Historic Preservation Officers (SHPOs), Tribal 
Historic Preservation Officers (THPOs), and Indian tribes that 
commented endorsed the amendment of the Program Comment.
    Comments from several stakeholders raised issues beyond the 
amendments outlined above. Since addressing those issues in the text of 
the Program Comment itself would unnecessarily clutter it, those issues 
are addressed in this Federal Register preamble instead. These issues 
are:
    1. How the scope of the Federal Communications Commission (FCC) 
Nationwide Programmatic Agreements does not include federal or tribal 
lands, and therefore the scope of the Program Comment is similarly 
limited. The FCC NPAs, by their own terms, do not apply on tribal 
lands. Since this Program Comment relies on compliance carried out by 
the FCC through the FCC NPAs, the Program Comment would similarly not 
cover these undertakings on tribal lands.
    Regarding the applicability of the Program Comment on federal 
lands, it must be noted that of the roughly 635-640 million acres of 
federal lands, 628 million acres are managed by the Forest Service, the 
National Park Service, the Bureau of Land Management, the Fish and 
Wildlife Service, and the Department of Defense. ``Federal Land 
Ownership: Overview and Data,'' Congressional Research Service, 
February 8, 2012. The Program Comment does not apply to any of these 
agencies or other agencies typically known as land managing agencies. 
When these land managing agencies issue special use permits, or other 
approvals, for the construction or location of telecommunications 
facilities on the lands they manage, they have to comply with Section 
106 through means other than the FCC NPAs or this Program Comment.
    2. How the Program Comment relies on FCC compliance with Section 
106 for the same projects through their Nationwide Programmatic 
Agreements, and their e-106 and Tower Construction Notification 
Systems. The Program Comment exempts the named agencies from having to 
separately comply with Section 106 regarding certain telecommunications 
facilities and collocations when the FCC has or will comply with 
Section 106 for those same facilities and collocations through its 
NPAs. The FCC conducts such Section 106 compliance following the 
processes and exemptions of those NPAs, and using its related e-106 
system and Tower Construction Notification System (TCNS) which are 
known to most practitioners. Some SHPO stakeholders wanted us to note 
that some of them do not use the FCC's e-106 system.
    3. How the Program Comment, as originally issued and as amended, 
has always required subject agencies to inform the SHPOs and THPOs or 
Indian Tribes when their undertakings are covered by this Program 
Comment. As stated in Section IV of the original Program Comment: 
``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 
communications facilities construction or modification component.'' The 
amended Program Comment retains this language, with changes to simply 
note the new agencies that are now being added to the Program Comment.
    On a somewhat related note, some SHPOs raised concerns about the 
need to address the effects of the non-tower components of 
undertakings. As specified in the second paragraph of Section IV of the 
Program Comment, the RUS, NTIA, DHS, FRA, FTA, FirstNet are responsible 
for the Section 106 review of those non-tower components of their 
undertakings.
    4. The purpose, and success, of the original Program Comment in the 
context of the American Recovery and Reinvestment Act (ARRA). In 2009, 
the American Recovery and Reinvestment Act (ARRA) provided NTIA and RUS 
with $7.2 billion to expand access to broadband services in the United 
States. The purpose of the original Program Comment was to expedite 
broadband expansion by relieving these agencies from conducting 
duplicate Section 106 reviews when those agencies have Section 106 
responsibilities for a telecommunications project subject to Section 
106 review by the FCC.
    Since it went into effect, the Program Comment has met this 
purpose. The Program Comment helped RUS, NTIA, and FEMA to spend their 
ARRA funding for broadband deployment without unnecessary delays. The 
success of the Program Comment is also reflected in the agencies' 
request to expand its duration and add new agencies to it.
    Finally, the ACHP has not received complaints about the 
implementation of the Program Comment. The amendments nevertheless, 
provide for a monitoring system to better ensure the Program Comment is 
working as intended.
    5. How the FCC handles discovery situations under its Nationwide 
Programmatic Agreement. Since the Program Comment relies on FCC 
compliance with its NPAs, the discovery provisions of those NPAs are

[[Page 58746]]

the ones that will be followed for the relevant projects. The discovery 
provision of the FCC Nationwide Programmatic Agreement is found on its 
Section IX. A copy of that agreement can be found at: http://www.achp.gov/docs/PA_FCC_0804.pdf.

II. Final Text of the amended Program Comment

    The text of the amended Program Comment is included below:
    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).

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), and the 
First Responder Network Authority (FirstNet) 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 (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 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, or FirstNet 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, or FirstNet 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. Three 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, and FirstNet, an 
independent authority within the NTIA that was created by Congress in 
2012, 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 and FTA 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 and FirstNet must therefore comply with 
Section 106 for these undertakings. Some of the communications towers 
and collocated communications equipment assisted by DHS components, 
FRA, FTA and FirstNet 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.

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 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, effective on that date.

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, and FirstNet 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, or FirstNet undertaking includes

[[Page 58747]]

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, or FirstNet, 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, or FirstNet 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, or FirstNet uses this Program 
Comment for such undertakings, RUS, NTIA, DHS, FRA, FTA, or FirstNet 
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 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 ACHP may amend this Program Comment after consulting with FCC, 
RUS, NTIA, DHS, FRA, FTA, FirstNet, and other parties, as appropriate 
and publishing notice in the Federal Register to that effect.
    If any other Federal agency wishes to take advantage of this 
Program Comment, it 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.

    Authority: 36 CFR 800.14(e).

    Dated: September 24, 2015.
Javier E. Marques,
Associate General Counsel.
[FR Doc. 2015-24713 Filed 9-29-15; 8:45 am]
 BILLING CODE 4310-K6-P