83 FR 1215 - Comment Sought on Draft Program Comment for the FCC's Review of Collocations on Certain Towers Constructed Without Documentation of Section 106 Review
FEDERAL COMMUNICATIONS COMMISSION Federal Register Volume 83, Issue 7 (January 10, 2018)
Federal Register Volume 83, Issue 7 (January 10, 2018)
| Page Range | 1215-1220 | |
| FR Document | 2018-00292 |
[Federal Register Volume 83, Number 7 (Wednesday, January 10, 2018)] [Proposed Rules] [Pages 1215-1220] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-00292] ======================================================================= ----------------------------------------------------------------------- FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 1 [WT Docket No. 17-79; FCC 17-165] Comment Sought on Draft Program Comment for the FCC's Review of Collocations on Certain Towers Constructed Without Documentation of Section 106 Review AGENCY: Federal Communications Commission. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: In this document, the Federal Communications Commission (FCC or Commission) seeks comment on a draft Program Comment that would exclude from historic preservation review the collocation of wireless communications facilities on towers that either did not complete such review or cannot be documented to have completed such review. DATES: Comments are due on February 9, 2018; reply comments are due on February 26, 2018. ADDRESSES: You may submit comments, identified by WT Docket No. 17-79, by any of the following methods:Federal Communications Commission's website: http://apps.fcc.gov/ecfs//. Follow the instructions for submitting comments. People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email: FCC504@fcc.gov or phone: 202-418- 0530 or TTY: 888-835-5322. For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: For further information on this proceeding, contact Daniel J. Margolis, Competition and Infrastructure Policy Division, Wireless Telecommunications Bureau, at daniel.margolis@fcc.gov or (202) 418-1377. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's document, FCC 17-165, adopted and released on December 14, 2017. The full text of this document is available for [[Page 1216]] public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW, Room CY-A257, Washington, DC 20554. The complete text of this document will also be available via ECFS at https://www.fcc.gov/document/fcc-seeks-comment-plan-ease-collocations-twilight-towers-0. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an Email to fcc504@fcc.gov or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418- 0432 (TTY). Synopsis 1. In this document, the Commission takes another step towards promoting the deployment of wireless infrastructure. In particular, the Commission sets out a definitive solution for so-called ``Twilight Towers,'' which, if adopted, would create a new exclusion from routine historic preservation review under section 106 of the National Historic Preservation Act (NHPA), 54 U.S.C. 306108, and its implementing regulations, 36 CFR part 800. This action would open up potentially thousands of existing towers for collocations without the need for either the collocation or the underlying tower to complete an individual historic review, thus ensuring that these towers are generally treated the same as older towers that are already excluded from the historic review process. Facilitating collocations on these towers will make additional infrastructure available for wireless deployments, reduce the need for new towers, and decrease the need for new construction. After more than a decade of debate over the best approach for Twilight Towers, the Commission welcomes the chance to advance this concrete path forward. 2. Twilight Towers are towers whose construction commenced between March 16, 2001, and March 7, 2005, that either did not complete section 106 review or cannot be documented to have completed such review. Sections 1.1307(a)(4) and 1.1320(a) \1\ of the Commission's rules, 47 CFR 1.1307(a)(4), 1.1320(a), direct licensees and applicants, when determining whether a proposed action may affect historic properties, to follow the procedures in the rules of the Advisory Council on Historic Preservation (ACHP) or an applicable program alternative, including the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas (2001 Collocation NPA), 47 CFR part 1, app. B, and the Nationwide Programmatic Agreement for Review of Effects on Historic Properties for Certain Undertakings Approved by the Federal Communications Commission (2005 Wireless Facilities NPA), 47 CFR part 1, app. C. Under section III of the 2001 Collocation NPA, collocations on towers whose construction commenced on or before March 16, 2001, are generally excluded from routine historic preservation review, regardless of whether the underlying tower has undergone section 106 review. See 47 CFR part 1, app. B, section III. By contrast, section IV of the 2001 Collocation NPA provides that collocations on towers whose construction commenced on or after March 16, 2001, are excluded from historic preservation review only if the Section 106 review process for the underlying tower and any associated environmental reviews has been completed. See 47 CFR part 1, app. B, section IV. The 2005 Wireless Facilities NPA, which became effective on March 7, 2005, establishes detailed procedures for reviewing the effects of communications towers on historic properties. 47 CFR part 1, app. C. --------------------------------------------------------------------------- \1\ The Commission promulgated 47 CFR 1.1320 in an order released on November 17, 2017, and published in the Federal Register on December 14, 2017. See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Report and Order, FCC 17-153, WT Docket No. 17-79; see also 82 FR 58749, December 14, 2017. The rule will take effect on January 16, 2018. --------------------------------------------------------------------------- 3. As indicated above, there are a large number of towers that were built between the adoption of the 2001 Collocation NPA and the effective date of the 2005 Wireless Facilities NPA that either did not complete section 106 review or for which documentation of section 106 review is unavailable. Although during this time the Commission's environmental rules, 47 CFR 1.1307(a)(4), required licensees and applicants to evaluate whether proposed facilities may affect historic properties, the text of the rule did not at that time require parties to perform this evaluation by following the ACHP's rules or any other particular process. Thus, some in the industry have argued that, prior to the 2005 Wireless Facilities NPA, it was unclear whether the Commission's rules required consultation with the relevant State Historic Preservation Officer (SHPO) and/or Tribal Historic Preservation Officer (THPO), Tribal engagement, or any other procedures, and that this uncertainty was the reason why many towers built during this period did not go through the clearance process. Because the successful completion of the section 106 process is a predicate to the exclusion from review of collocations on towers completed after March 16, 2001, licensees cannot collocate on these Twilight Towers unless either each collocation completes section 106 review or the underlying tower goes through an individual post- construction review process. 4. By this document, the Commission finally identifies a path forward for these Twilight Towers. In particular, the Commission seeks public comment on the attached draft Program Comment addressing the historic preservation review requirements for collocating communications equipment on Twilight Towers. If adopted by the ACHP, the draft Program Comment would establish procedures for permitting collocations on Twilight Towers. 5. The ACHP's rules contain general procedures for considering effects on historic properties, but they also provide a means of establishing customized or streamlined alternative review procedures called ``program alternatives.'' See 36 CFR 800.14. Where the ACHP determines that a defined program or activity has minimal potential to affect or adversely affect historic properties, a program alternative may reduce the scope of or entirely eliminate the review process. One type of program alternative is the Program Comment. See 36 CFR 800.14(e). 6. The Commission states that, given the record, a Program Comment is a suitable vehicle for specifying how Twilight Towers can be appropriately made available to facilitate broadband deployment. Therefore, the Commission seeks comment on the attached draft consistent with the ACHP's process for developing and issuing a Program Comment. After considering input from all interested parties, the Commission will revise the draft Program Comment as appropriate, summarize the comments for the ACHP pursuant to 36 CFR 800.14(e)(1) and (f)(2), and formally request that the ACHP issue the Program Comment. Section 800.14(e)(5) of the ACHP's rules, 36 CFR 800.14(e)(5), specifies that it will then decide whether to issue the Program Comment within 45 days, and the Commission will publish notice of any Program Comment that the ACHP provides in the Federal Register. [[Page 1217]] 7. This draft Program Comment is informed by comments received in response to the Notice of Proposed Rulemaking in this proceeding, See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Deployment, 32 FCC Rcd 3330 (2017) (Wireless Infrastructure NPRM); see also Proposed rule, 82 FR 21761, May 10, 2017, as well as several years of engagement with affected parties, including Tribal Nations, Native Hawaiian Organizations (NHOs), SHPOs, and industry, by conducting government-to-government consultation with Tribal Nations, holding face-to-face meetings, sponsoring webinars and workshops, participating in conferences, and distributing written materials. In addition, since the release of the Wireless Infrastructure NPRM, the Commission has met with Tribal representatives numerous times with a focus on issues related to section 106 review, including meetings with the Chairman and commissioners, as well as conference calls and meetings between staff and SHPOs, Tribal representatives, and others. 8. Commenters on the Wireless Infrastructure NPRM generally concur that the Commission should take affirmative steps to develop a regime governing the circumstances and procedures under which collocations will be permitted on Twilight Towers. In general, industry commenters assert that the Commission should grandfather, exempt, or exclude these towers from any historic preservation review, arguing that the towers are unlikely to have adverse effects on historic properties that have not been detected, that current ambiguities in the process are preventing widespread collocations, that there was no clear process for historic preservation review of proposed towers prior to 2005, and that many of the towers are no longer in the possession of their original owners. Other commenters, including SHPOs and Tribal Nations and their associations, advocate requiring a review process and mitigation of adverse effects before collocations on these towers can be permitted, contending that failure to perform section 106 review for these towers should not be forgiven retroactively, that collocations on existing towers can increase any adverse effects of the towers, that removal should be considered for towers with particularly egregious adverse effects, and that collocations that involve any ground disturbance must be subject to section 106 review before the Commission can allow collocations. The Commission seeks comment on the extent to which the draft Program Comment, as described below, effectively addresses these concerns. 9. In the Wireless Infrastructure NPRM, the Commission stated that it does not anticipate taking any enforcement action or imposing any penalties based on good faith deployment during the Twilight Tower period. The Commission states that, in light of the additional comments it has received on this issue, and its recognition that the Commission did not provide specific guidance regarding the procedures for conducting historic preservation review, the Commission now makes clear that it will not take enforcement action relating to the construction of Twilight Towers based on the failure to follow any particular method of considering historic preservation issues or otherwise based on the good faith deployment of Twilight Towers. To the extent the owner of any Twilight Tower is shown to have intentionally adversely affected a historic property with intent to avoid the requirements of section 106, section 110(k) of the NHPA would continue to apply. See 54 U.S.C. 306113. 10. As established in the Wireless Infrastructure NPRM, this is a ``permit-but-disclose'' proceeding in accordance with the Commission's ex parte rules, but with a limited modification in light of the Commission's trust relationship with Tribal Nations and NHOs. Ex parte presentations involving elected and appointed leaders and duly appointed representatives of federally-recognized Tribal Nations and NHOs are exempt from the disclosure requirements in permit-but-disclose proceedings, as well as the prohibitions during the Sunshine Agenda period. Nevertheless, Tribal Nations and NHOs, like other interested parties, should file comments, reply comments, and ex parte presentations in the record in order to put facts and arguments before the Commission in a manner such that they may be relied upon in the decision-making process. 11. The Commission notes that some commenters urge the Commission to hold additional meetings with Tribal Nations regarding Twilight Towers before moving forward. The Commission welcomes additional meetings with Tribal Nations, Native Hawaiian Organizations, SHPOs, and industry during this comment period. The commission notes that it received ex parte comments filed between the public release of the draft text of this document on November 22, 2017, and its adoption by the Commission on December 14, 2017. To the extent that they have not been addressed here, these comments will be considered along with any comments filed in response to this document. 12. The following is the text of the Draft Program Comment: Draft Program Comment for the Federal Communications Commission's Review of Collocations on Certain Towers Constructed Without Documentation of Section 106 Review This Program Comment was issued by the Advisory Council on Historic Preservation (Advisory Council) on [date to be inserted later], pursuant to 36 CFR 800.14(e), and went into effect on that date. It provides the Federal Communications Commission (FCC or Commission) with an alternative way to comply with its responsibilities under section 106 of the National Historic Preservation Act (NHPA), 54 U.S.C. 306108, and its implementing regulations, 36 CFR part 800 (section 106), as supplemented by two nationwide programmatic agreements. In particular, this Program Comment excludes from section 106 review the collocation of wireless communications facilities on ``Twilight Towers'' (i.e., certain communications towers for which construction commenced after March 16, 2001, and before March 7, 2005), provided that these collocations satisfy the conditions specified below. I. Background To fulfill its obligations under the NHPA, the FCC imposes certain compliance requirements on its applicants and licensees, but the ultimate responsibility for compliance with the NHPA remains with the FCC. In particular, section 1.1320 of the FCC's rules (47 CFR 1.1320) directs licensees and applicants, when determining whether a proposed action may affect historic properties, to comply with the Advisory Council's rules, 36 CFR part 800, or an applicable program alternative, including the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas (Collocation NPA), 47 CFR part 1, app. B, and the Nationwide Programmatic Agreement for Review of Effects on Historic Properties for Certain Undertakings Approved by the Federal Communications Commission (Wireless Facilities NPA), 47 CFR part 1, app. C. These programmatic agreements, which were executed pursuant to section 800.14(b) of the Advisory Council's rules, substitute for the procedures that Federal agencies ordinarily must follow in performing their historic preservation reviews. See 36 CFR 800.14(b)(2). Section III of the Collocation NPA, adopted and effective on March 16, [[Page 1218]] 2001,\2\ provides that collocations on towers \3\ constructed on or before the effective date of that agreement are excluded from routine historic preservation review regardless of whether the underlying tower has undergone section 106 review provided that they satisfy the specified conditions. See 47 CFR part 1, app. B, section III. By contrast, section IV of the Collocation NPA provides that collocations on towers whose construction commenced after March 16, 2001, are excluded from historic preservation review only if the proposed collocation meets specified conditions and the section 106 review process for the underlying tower and any associated environmental reviews has been completed. See 47 CFR part 1, app. B, section IV. Through the Wireless Facilities NPA, which was incorporated into the FCC's rules effective on March 7, 2005, the FCC adopted and codified for the first time detailed procedures for reviewing the effects on historic properties of communications towers and those collocations that are subject to review. See 47 CFR part 1, app. C. --------------------------------------------------------------------------- \2\ The Collocation NPA was amended in 2016 to establish further exclusions from review for small antennas. See Wireless Telecommunications Bureau Announces Execution of First Amendment to the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas, Public Notice, 31 FCC Rcd 4617 (WTB 2016). \3\ The Collocation Agreement defines ``tower'' as ``any structure built for the sole or primary purpose of supporting FCC- licensed antennas and their associated facilities.'' Collocation NPA, section I.E. --------------------------------------------------------------------------- Prior to the adoption of the Wireless Facilities NPA, the FCC's rules did not require its licensees and applicants to follow the ACHP's rules or any other specified process when evaluating whether their proposed facilities might affect historic properties as mandated under section 106. Accordingly, a large number of towers constructed during the period between the effective dates of the two NPAs--that is, those for which construction began after March 16, 2001, and before March 7, 2005--do not have documentation demonstrating compliance with the section 106 review process (an issue exacerbated by the limitations of State Historic Preservation Officers' (SHPOs') record-keeping as well as subsequent changes in tower ownership). These towers are referred to as ``Twilight Towers.'' And because collocation on towers whose construction began after the effective date of the Collocation NPA is excluded from section 106 review only if the tower was itself subject to review, licensees or applicants cannot currently collocate on these Twilight Towers unless each collocation completes a separate section 106 review or the underlying tower completes an individual post- construction review process. To develop a Program Comment, the rules of the Advisory Council require Federal agencies to arrange for public participation appropriate to the subject matter and the scope of the category of covered undertakings and in accordance with the standards set forth in the Advisory Council's rules. See 36 CFR 800.14(e)(2). Over the past several years, the FCC has engaged with Tribal Nations, Native Hawaiian Organizations (NHOs), SHPOs, and industry, by holding many face-to-face meetings, sponsoring webinars and workshops, participating in conferences, and distributing written materials. In 2014, FCC staff began consultations with relevant parties to discuss possible solutions to make Twilight Towers broadly available for collocations in a manner consistent with the requirements of and policies underlying the NHPA. In October 2015, the FCC circulated a discussion document to SHPOs, Tribal Nations, NHOs and industry associations, and in January 2016, the FCC facilitated a summit in Isleta Pueblo, New Mexico, devoted to discussion of Twilight Towers. Industry, Tribal, and SHPO representatives participated in this meeting. Following the meeting, the FCC sought written comments from the summit participants. In August 2016, the FCC circulated to industry associations, SHPOs, and Tribal/ NHO contacts a discussion draft term sheet developed as a result of those consultations. Follow up calls with Tribal and SHPO representatives and other interested parties, including the Advisory Council staff, were held throughout 2016. Further, in the Wireless Infrastructure NPRM, adopted in April 2017, the FCC sought public comment on how to resolve remaining section 106 issues associated with collocation on Twilight Towers, and it received numerous comments on these issues. See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Deployment, 32 FCC Rcd 3330, 3358-3361, paras. 78-86 (2017) (Wireless Infrastructure NPRM); see also Proposed Rule, 82 FR 21761, May 10, 2017. Finally, the FCC facilitated consultations with Tribal representatives on the Rosebud Sioux Reservation on June 8, 2017; at the annual meeting of the National Conference of American Indians on June 14, 2017; on the Navajo Reservation on August 22, 2017; and in Washington, DC on October 4, 2017. FCC staff have also continued to meet in person and by phone with SHPOs and Tribal representatives since release of the Wireless Infrastructure NPRM. II. Need for Program Comment To Address Twilight Towers This Program Comment adopts an exclusion under section 106 for certain collocations on Twilight Towers. This exclusion is warranted due to a number of unique factors associated with towers whose construction commenced during the period from March 17, 2001 through March 6, 2005, including: (1) The limited reliability of section 106 review documentation from that time period; (2) the lack of specificity in the FCC's rules regarding section 106 review at the time the Twilight Towers were constructed; (3) the limited likelihood that section 106 review could identify adverse effects from these towers that are not yet known after 12 years or more; and (4) the significant public interest in making these towers readily available for collocation. Although during the time between the Collocation NPA and the Wireless Facilities NPA the FCC's environmental rules required licensees and applicants to evaluate whether proposed facilities may affect historic properties, the rules did not then state that parties must perform this evaluation by following the Advisory Council's rules or any other specific process. Thus, prior to the effective date of the Wireless Facilities NPA, it was unclear whether the FCC's rules required consultation with the relevant SHPO and/or Tribal Historic Preservation Officer (THPO), engagement with Tribal Nations to identify historic properties off Tribal land (including government-to-government consultation), or any other particular procedures, and this lack of clarity may explain why many towers built during this period apparently did not obtain required clearance. Routine section 106 review of Twilight Towers is likely to provide little benefit in preserving historic properties. Twilight Towers have been in place for 12 to 16 years. In the vast majority of cases, no adverse effects from these towers have been brought to the FCC's attention. While the lack of objections filed with the FCC does not guarantee that none of the Twilight Towers have caused, or continue to cause, adverse effects on historic properties, such cases are likely few given the passage of time and absence of objections. In addition, any effects on historic properties that may have occurred during construction may be difficult to demonstrate so many years after the fact. Further, an exclusion for collocations on Twilight Towers under the [[Page 1219]] conditions specified below is in the public interest. The exclusion will rapidly make available thousands of existing towers \4\ to support wireless broadband deployment, including the FirstNet public safety broadband network,\5\ without causing adverse impacts. Importantly, facilitating collocations on existing towers will reduce the need for new towers, thereby avoiding the impact of new tower construction on the environment and on locations with historical and cultural significance. --------------------------------------------------------------------------- \4\ The members of two major industry associations have collectively reported owning 4,298 towers that could be classified as Twilight Towers. Letter from Brian Josef, Assistant Vice President, Regulatory Affairs, CTIA--The Wireless Association, and D. Zachary Champ, Assistant Vice President, Regulatory Affairs, PCIA--The Wireless Infrastructure Association, to Chad Breckinridge Associate Chief, WTB, FCC (dated June 4, 2015). There may be more Twilight Towers owned by entities that are not members of these associations or that did not participate in their survey. \5\ See 47 U.S.C. 1426(c)(3) (providing that ``the First Responder Network Authority shall enter into agreements to utilize, to the maximum extent economically desirable, existing (A) commercial or other communications infrastructure; and (B) Federal, state, tribal, or local infrastructure''). --------------------------------------------------------------------------- A Program Comment is necessary to facilitate collocation on Twilight Towers. While the Wireless Facilities NPA contemplates a process for review of proposed collocations on towers that were built without required review, review of each collocation only satisfies the section 106 requirement for that collocation; it does not clear the tower for future collocations. Given the large number of Twilight Towers and potential collocations that could be installed on those towers, the existing review process imposes burdens on all participants that, in the context of the other considerations discussed herein, are not commensurate with its historic preservation benefits. Accordingly, an approach different from the standard section 106 review process is warranted to make Twilight Towers readily available for collocations. Given the significant public benefits to be realized by making these facilities available for collocation, together with the other considerations discussed above, requiring each licensee or applicant to review each tower individually before collocating is not an effective or efficient means for the FCC to comply with its obligations under section 106. This Program Comment is responsive to the unusual set of factors surrounding the use of these Twilight Towers for the limited purpose of collocation. III. Exemption From Duplicate Review of Effects of Collocations by Other Federal Agencies Other Federal agencies are not required to comply with section 106 with regard to the effects of collocations on Twilight Towers that are excluded from review under this Program Comment. When other Federal agencies have broader undertakings that include collocations on Twilight Towers, they must, however, comply with section 106 in accordance with the process set forth at 36 CFR 800.3 through 800.7, or 800.8(c), or another applicable program alternative under 36 CFR 800.14 for aspects of the undertaking not involving the collocations. IV. Exclusion for Twilight Towers In August 2000, the Advisory Council established a Telecommunications Working Group to provide a forum for the FCC, industry representatives, SHPOs, THPOs, other Tribal representatives, and the Advisory Council to discuss improved coordination of section 106 compliance regarding wireless communications facilities affecting historic properties. The Advisory Council and the Working Group developed the Collocation NPA, which recognized that the effects on historic properties of collocations on buildings, towers, and other structures are likely to be minimal and not adverse provided that certain premises and procedures are taken into consideration, including limitations on the extent of new construction and excavation. Further, the Collocation NPA stated that its terms should be ``interpreted and implemented wherever possible in ways that encourage collocation.'' Consistent with that directive, this Program Comment serves to resolve a long standing impediment to collocation on Twilight Towers within the broader protective framework established by the Collocation NPA. We intend the exclusion here to mirror the exclusion in the Collocation NPA that applies to collocations on towers for which construction commenced on or before March 16, 2001. And so, pursuant to the exclusion adopted here, an antenna may be mounted on an existing tower for which construction commenced between March 16, 2001, and March 7, 2005, without such collocation being reviewed through the section 106 process set forth in the Wireless Facilities NPA, unless: 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; or 5. The tower has been determined by the FCC to have an adverse effect on one or more historic properties, where such effect has not been avoided or mitigated through a conditional no adverse effect determination, a Memorandum of Agreement, a programmatic agreement, or a finding of compliance with section 106 and the Wireless Facilities NPA; or 6. The tower is the subject of a pending environmental review or related proceeding before the FCC involving compliance with section 106 of the NHPA; or 7. 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 Tribal Nation or NHO, a SHPO, or the Advisory 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. In the event that a proposed collocation on a Twilight Tower does not meet the conditions specified above [[Page 1220]] for this exclusion, the collocation must undergo historic preservation review as required by the rules of the Advisory Council as revised or supplemented by the Wireless Facilities NPA and the Collocation NPA. As provided in the Wireless Facilities NPA, such review is limited to effects from the collocation and shall not include consideration of effects on historic properties from the underlying tower. V. Additional Provisions Relating to Tribal Nations This Program Comment does not apply on Tribal lands unless the relevant Tribal Nation has provided the FCC with a written notice agreeing to its application on Tribal lands. A Tribal Nation may request direct government-to-government consultation with the FCC at any time with respect to a Twilight Tower or any collocation thereon. The FCC will respond to any such request in a manner consistent with its responsibility toward Tribal Nations. When indicated by the circumstances, and if the request is in writing and supported by substantial evidence as described in paragraph IV.7., the FCC shall treat a request for consultation as a complaint against the proposed collocation and shall notify the tower owner accordingly. A Tribal Nation may provide confidential supporting evidence or other relevant information relating to a historic property of religious or cultural significance. The FCC shall protect all confidential information consistent with section IV.I of the Wireless Facilities NPA. VI. Administrative Provisions A. Definitions. Unless otherwise defined in this Program Comment, the terms used here shall have the meanings ascribed to them under 36 CFR part 800 as modified or supplemented by the Collocation NPA or Wireless Facilities NPA. B. Duration. This Program Comment shall remain in force unless terminated or otherwise superseded by a comprehensive Programmatic Agreement or the Advisory Council provides written notice of its intention to withdraw the Program Comment pursuant to section VI.B.1, below, or the FCC provides written notice of its intention not to continue to utilize this Program Comment pursuant to section VI.B.2, below. 1. If the Advisory Council determines that the consideration of historic properties is not being carried out in a manner consistent with section 106, the Advisory Council may withdraw this Program Comment after consulting with the FCC, the National Conference on State Historic Preservation Officers, and the National Association of Tribal Historic Preservation Officers, and thereafter providing them with written notice of the withdrawal. 2. In the event the FCC determines that this Program Comment is not operating as intended, or is no longer necessary, the FCC, after consultation with the parties identified in section VI.B.1 above, shall send written notice to the Advisory Council of its intent to withdraw. C. Periodic Meetings. Throughout the duration of this Program Comment, the Advisory Council and the FCC shall meet annually on or about the anniversary of the effective date of this Program Comment. The FCC and the Advisory Council will discuss the effectiveness of this Program Comment, including any issues related to improper implementation, and will discuss any potential amendments that would improve its effectiveness. Complaints Regarding Implementation of This Program Comment. Members of the public may refer any complaints regarding the implementation of this Program Comment to the FCC. The FCC will handle those complaints consistent with section XI of the Wireless Facilities NPA. 13. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998). Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/. Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW, Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, Annapolis, MD 20701. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington, DC 20554. People with Disabilities. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). 14. This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Federal Communications Commission. Marlene H. Dortch, Secretary, Office of the Secretary. [FR Doc. 2018-00292 Filed 1-9-18; 8:45 am] BILLING CODE 6712-01-P
![Federal Register / Vol. 83, No. 7 / Wednesday, January 10, 2018 / Proposed Rules 1215
for ammonia as a precursor to PM2.5 in action because SIP approvals are Dated: December 20, 2017.
PM2.5 nonattainment areas. Accordingly, exempted under Executive Order 12866; Alexis Strauss,
as authorized by section 110(k)(4) of the • Does not impose an information Acting Regional Administrator, Region IX.
Act, the EPA proposes to conditionally collection burden under the provisions [FR Doc. 2018–00036 Filed 1–9–18; 8:45 am]
approve the NA–NSR component of of the Paperwork Reduction Act (44 BILLING CODE 6560–50–P
ADEQ’s April 2017 NSR submittal U.S.C. 3501 et seq.);
solely with respect to ammonia as a
PM2.5 precursor. While we cannot grant • Is certified as not having a
full approval of the submittal at this significant economic impact on a FEDERAL COMMUNICATIONS
time with respect to this issue, ADEQ substantial number of small entities COMMISSION
has satisfactorily committed to address under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.); 47 CFR Part 1
this deficiency by providing the EPA
with a SIP submittal by March 31, 2019, • Does not contain any unfunded [WT Docket No. 17–79; FCC 17–165]
or within one year from the date on mandate or significantly or uniquely
which the EPA takes final action on the affect small governments, as described Comment Sought on Draft Program
April 2017 NSR submittal, whichever is in the Unfunded Mandates Reform Act Comment for the FCC’s Review of
earlier. of 1995 (Pub. L. 104–4); Collocations on Certain Towers
As noted previously, on June 1, 2017, Constructed Without Documentation of
we proposed full approval of all other • Does not have Federalism Section 106 Review
aspects of ADEQ’s April 2017 NSR implications as specified in Executive
Order 13132 (64 FR 43255, August 10, AGENCY: Federal Communications
submittal, including but not limited to Commission.
revisions to ADEQ’s NA–NSR program 1999);
and the regulation of PM2.5 precursors • Is not an economically significant ACTION: Proposed rule.
other than ammonia in accordance with regulatory action based on health or SUMMARY: In this document, the Federal
section 189(e) of the Act. Today’s action safety risks subject to Executive Order Communications Commission (FCC or
does not modify the findings we made 13045 (62 FR 19885, April 23, 1997); Commission) seeks comment on a draft
in that proposed action, and through • Is not a significant regulatory action Program Comment that would exclude
this supplemental proposal, we are not subject to Executive Order 13211 (66 FR from historic preservation review the
reopening or otherwise seeking public 28355, May 22, 2001); collocation of wireless communications
comment on any other issues or findings
in that June 1, 2017 proposed action. • Is not subject to requirements of facilities on towers that either did not
Section 12(d) of the National complete such review or cannot be
We will accept comments from the documented to have completed such
public on this supplemental proposal Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because review.
until February 9, 2018.
application of those requirements would DATES: Comments are due on February
IV. Incorporation by Reference be inconsistent with the Clean Air Act; 9, 2018; reply comments are due on
This action supplements our prior and February 26, 2018.
proposed rule where the EPA has • Does not provide the EPA with the ADDRESSES: You may submit comments,
proposed to include in a final EPA rule discretionary authority to address, as identified by WT Docket No. 17–79, by
regulatory text that includes appropriate, disproportionate human any of the following methods:
incorporation by reference. This action health or environmental effects, using • Federal Communications
does not propose additional material for practicable and legally permissible Commission’s website: http://
incorporation by reference. methods, under Executive Order 12898 apps.fcc.gov/ecfs//. Follow the
V. Statutory and Executive Order (59 FR 7629, February 16, 1994). instructions for submitting comments.
Reviews • People with Disabilities: Contact the
In addition, the SIP is not approved to FCC to request reasonable
Under the CAA, the EPA apply on any Indian reservation land or accommodations (accessible format
Administrator is required to approve a in any other area where the EPA or an documents, sign language interpreters,
SIP submission that complies with the Indian tribe has demonstrated that a CART, etc.) by email: FCC504@fcc.gov
provisions of the Act and applicable tribe has jurisdiction. In those areas of or phone: 202–418–0530 or TTY: 888–
Federal regulations. 42 U.S.C. 7410(k); Indian country, the rule does not have 835–5322.
40 CFR 52.02(a). Thus, in reviewing SIP tribal implications and will not impose For detailed instructions for
submissions, the EPA’s role is to substantial direct costs on tribal submitting comments and additional
approve state choices, provided that governments or preempt tribal law as information on the rulemaking process,
they meet the criteria of the Act. specified by Executive Order 13175 (65 see the SUPPLEMENTARY INFORMATION
Accordingly, this action merely FR 67249, November 9, 2000). section of this document.
approves state law as meeting Federal
requirements and does not impose List of Subjects in 40 CFR Part 52 FOR FURTHER INFORMATION CONTACT: For
additional requirements beyond those further information on this proceeding,
Environmental protection, contact Daniel J. Margolis, Competition
imposed by state law. For that reason, Administrative practice and procedure, and Infrastructure Policy Division,
jstallworth on DSKBBY8HB2PROD with PROPOSALS
this action:
Air pollution control, Carbon monoxide, Wireless Telecommunications Bureau,
• Is not a significant regulatory action
Incorporation by reference, at daniel.margolis@fcc.gov or (202) 418–
subject to review by the Office of
Intergovernmental relations, Lead, 1377.
Management and Budget under
Nitrogen dioxide, Ozone, Particulate SUPPLEMENTARY INFORMATION: This is a
Executive Orders 12866 (58 FR 51735,
matter, Reporting and recordkeeping summary of the Commission’s
October 4, 1993) and 13563 (76 FR 3821,
requirements, Sulfur dioxide, Volatile document, FCC 17–165, adopted and
January 21, 2011);
• Is not an Executive Order 13771 (82 organic compounds. released on December 14, 2017. The full
FR 9339, February 3, 2017) regulatory Authority: 42 U.S.C. 7401 et seq. text of this document is available for
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![Federal Register / Vol. 83, No. 7 / Wednesday, January 10, 2018 / Proposed Rules 1217
7. This draft Program Comment is seeks comment on the extent to which these comments will be considered
informed by comments received in the draft Program Comment, as along with any comments filed in
response to the Notice of Proposed described below, effectively addresses response to this document.
Rulemaking in this proceeding, See these concerns. 12. The following is the text of the
Accelerating Wireless Broadband 9. In the Wireless Infrastructure Draft Program Comment:
Deployment by Removing Barriers to NPRM, the Commission stated that it
Draft Program Comment for the Federal
Infrastructure Deployment, 32 FCC Rcd does not anticipate taking any
Communications Commission’s Review
3330 (2017) (Wireless Infrastructure enforcement action or imposing any
of Collocations on Certain Towers
NPRM); see also Proposed rule, 82 FR penalties based on good faith
Constructed Without Documentation of
21761, May 10, 2017, as well as several deployment during the Twilight Tower
Section 106 Review
years of engagement with affected period. The Commission states that, in
parties, including Tribal Nations, Native light of the additional comments it has This Program Comment was issued by
Hawaiian Organizations (NHOs), received on this issue, and its the Advisory Council on Historic
SHPOs, and industry, by conducting recognition that the Commission did not Preservation (Advisory Council) on
government-to-government consultation provide specific guidance regarding the [date to be inserted later], pursuant to 36
with Tribal Nations, holding face-to-face procedures for conducting historic CFR 800.14(e), and went into effect on
meetings, sponsoring webinars and preservation review, the Commission that date. It provides the Federal
workshops, participating in conferences, now makes clear that it will not take Communications Commission (FCC or
and distributing written materials. In enforcement action relating to the Commission) with an alternative way to
addition, since the release of the construction of Twilight Towers based comply with its responsibilities under
Wireless Infrastructure NPRM, the on the failure to follow any particular section 106 of the National Historic
method of considering historic Preservation Act (NHPA), 54 U.S.C.
Commission has met with Tribal
preservation issues or otherwise based 306108, and its implementing
representatives numerous times with a
on the good faith deployment of regulations, 36 CFR part 800 (section
focus on issues related to section 106
Twilight Towers. To the extent the 106), as supplemented by two
review, including meetings with the
owner of any Twilight Tower is shown nationwide programmatic agreements.
Chairman and commissioners, as well as
to have intentionally adversely affected In particular, this Program Comment
conference calls and meetings between
a historic property with intent to avoid excludes from section 106 review the
staff and SHPOs, Tribal representatives,
the requirements of section 106, section collocation of wireless communications
and others.
110(k) of the NHPA would continue to facilities on ‘‘Twilight Towers’’ (i.e.,
8. Commenters on the Wireless apply. See 54 U.S.C. 306113. certain communications towers for
Infrastructure NPRM generally concur 10. As established in the Wireless which construction commenced after
that the Commission should take Infrastructure NPRM, this is a ‘‘permit- March 16, 2001, and before March 7,
affirmative steps to develop a regime but-disclose’’ proceeding in accordance 2005), provided that these collocations
governing the circumstances and with the Commission’s ex parte rules, satisfy the conditions specified below.
procedures under which collocations but with a limited modification in light
will be permitted on Twilight Towers. I. Background
of the Commission’s trust relationship
In general, industry commenters assert with Tribal Nations and NHOs. Ex parte To fulfill its obligations under the
that the Commission should presentations involving elected and NHPA, the FCC imposes certain
grandfather, exempt, or exclude these appointed leaders and duly appointed compliance requirements on its
towers from any historic preservation representatives of federally-recognized applicants and licensees, but the
review, arguing that the towers are Tribal Nations and NHOs are exempt ultimate responsibility for compliance
unlikely to have adverse effects on from the disclosure requirements in with the NHPA remains with the FCC.
historic properties that have not been permit-but-disclose proceedings, as well In particular, section 1.1320 of the
detected, that current ambiguities in the as the prohibitions during the Sunshine FCC’s rules (47 CFR 1.1320) directs
process are preventing widespread Agenda period. Nevertheless, Tribal licensees and applicants, when
collocations, that there was no clear Nations and NHOs, like other interested determining whether a proposed action
process for historic preservation review parties, should file comments, reply may affect historic properties, to comply
of proposed towers prior to 2005, and comments, and ex parte presentations in with the Advisory Council’s rules, 36
that many of the towers are no longer in the record in order to put facts and CFR part 800, or an applicable program
the possession of their original owners. arguments before the Commission in a alternative, including the Nationwide
Other commenters, including SHPOs manner such that they may be relied Programmatic Agreement for the
and Tribal Nations and their upon in the decision-making process. Collocation of Wireless Antennas
associations, advocate requiring a 11. The Commission notes that some (Collocation NPA), 47 CFR part 1, app.
review process and mitigation of commenters urge the Commission to B, and the Nationwide Programmatic
adverse effects before collocations on hold additional meetings with Tribal Agreement for Review of Effects on
these towers can be permitted, Nations regarding Twilight Towers Historic Properties for Certain
contending that failure to perform before moving forward. The Undertakings Approved by the Federal
section 106 review for these towers Commission welcomes additional Communications Commission (Wireless
should not be forgiven retroactively, meetings with Tribal Nations, Native Facilities NPA), 47 CFR part 1, app. C.
that collocations on existing towers can Hawaiian Organizations, SHPOs, and These programmatic agreements, which
jstallworth on DSKBBY8HB2PROD with PROPOSALS
increase any adverse effects of the industry during this comment period. were executed pursuant to section
towers, that removal should be The commission notes that it received 800.14(b) of the Advisory Council’s
considered for towers with particularly ex parte comments filed between the rules, substitute for the procedures that
egregious adverse effects, and that public release of the draft text of this Federal agencies ordinarily must follow
collocations that involve any ground document on November 22, 2017, and in performing their historic preservation
disturbance must be subject to section its adoption by the Commission on reviews. See 36 CFR 800.14(b)(2).
106 review before the Commission can December 14, 2017. To the extent that Section III of the Collocation NPA,
allow collocations. The Commission they have not been addressed here, adopted and effective on March 16,
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![1220 Federal Register / Vol. 83, No. 7 / Wednesday, January 10, 2018 / Proposed Rules
for this exclusion, the collocation must the FCC, the National Conference on delivered to FCC Headquarters at 445
undergo historic preservation review as State Historic Preservation Officers, and 12th St. SW, Room TW–A325,
required by the rules of the Advisory the National Association of Tribal Washington, DC 20554. The filing hours
Council as revised or supplemented by Historic Preservation Officers, and are 8:00 a.m. to 7:00 p.m. All hand
the Wireless Facilities NPA and the thereafter providing them with written deliveries must be held together with
Collocation NPA. As provided in the notice of the withdrawal. rubber bands or fasteners. Any
Wireless Facilities NPA, such review is 2. In the event the FCC determines envelopes and boxes must be disposed
limited to effects from the collocation that this Program Comment is not of before entering the building.
and shall not include consideration of operating as intended, or is no longer • Commercial overnight mail (other
effects on historic properties from the necessary, the FCC, after consultation than U.S. Postal Service Express Mail
underlying tower. with the parties identified in section and Priority Mail) must be sent to 9050
VI.B.1 above, shall send written notice Junction Drive, Annapolis Junction,
V. Additional Provisions Relating to to the Advisory Council of its intent to
Tribal Nations Annapolis, MD 20701.
withdraw. • U.S. Postal Service first-class,
This Program Comment does not C. Periodic Meetings. Throughout the Express, and Priority mail must be
apply on Tribal lands unless the duration of this Program Comment, the addressed to 445 12th Street SW,
relevant Tribal Nation has provided the Advisory Council and the FCC shall Washington, DC 20554.
FCC with a written notice agreeing to its meet annually on or about the People with Disabilities. To request
application on Tribal lands. anniversary of the effective date of this materials in accessible formats for
A Tribal Nation may request direct Program Comment. The FCC and the people with disabilities (Braille, large
government-to-government consultation Advisory Council will discuss the print, electronic files, audio format),
with the FCC at any time with respect effectiveness of this Program Comment, send an email to fcc504@fcc.gov or call
to a Twilight Tower or any collocation including any issues related to improper the FCC’s Consumer and Governmental
thereon. The FCC will respond to any implementation, and will discuss any Affairs Bureau at (202) 418–0530
such request in a manner consistent potential amendments that would (voice), (202) 418–0432 (TTY).
with its responsibility toward Tribal improve its effectiveness. 14. This document does not contain
Nations. When indicated by the Complaints Regarding proposed information collection
circumstances, and if the request is in Implementation of This Program requirements subject to the Paperwork
writing and supported by substantial Comment. Members of the public may Reduction Act of 1995, Public Law 104–
evidence as described in paragraph refer any complaints regarding the 13. In addition, therefore, it does not
IV.7., the FCC shall treat a request for implementation of this Program contain any proposed information
consultation as a complaint against the Comment to the FCC. The FCC will collection burden for small business
proposed collocation and shall notify handle those complaints consistent with concerns with fewer than 25 employees,
the tower owner accordingly. section XI of the Wireless Facilities pursuant to the Small Business
A Tribal Nation may provide NPA. Paperwork Relief Act of 2002, Public
confidential supporting evidence or 13. Pursuant to sections 1.415 and Law 107–198, see 44 U.S.C. 3506(c)(4).
other relevant information relating to a 1.419 of the Commission’s rules, 47 CFR
historic property of religious or cultural 1.415, 1.419, interested parties may file Federal Communications Commission.
significance. The FCC shall protect all comments and reply comments on or Marlene H. Dortch,
confidential information consistent with before the dates indicated on the first Secretary, Office of the Secretary.
section IV.I of the Wireless Facilities page of this document. Comments may [FR Doc. 2018–00292 Filed 1–9–18; 8:45 am]
NPA. be filed using the Commission’s BILLING CODE 6712–01–P
Electronic Comment Filing System
VI. Administrative Provisions
(ECFS). Electronic Filing of Documents
A. Definitions. Unless otherwise in Rulemaking Proceedings, 63 FR DEPARTMENT OF TRANSPORTATION
defined in this Program Comment, the 24121 (1998).
terms used here shall have the meanings • Electronic Filers: Comments may be Federal Motor Carrier Safety
ascribed to them under 36 CFR part 800 filed electronically using the internet by Administration
as modified or supplemented by the accessing the ECFS: http://apps.fcc.gov/
Collocation NPA or Wireless Facilities ecfs/. 49 CFR Part 395
NPA. • Paper Filers: Parties who choose to
B. Duration. This Program Comment [Docket No. FMCSA–2017–0372]
file by paper must file an original and
shall remain in force unless terminated one copy of each filing. If more than one Hours of Service of Drivers:
or otherwise superseded by a docket or rulemaking number appears in Application for Exemption; Towing and
comprehensive Programmatic the caption of this proceeding, filers Recovery Association of America, Inc.
Agreement or the Advisory Council must submit two additional copies for (TRAA)
provides written notice of its intention each additional docket or rulemaking
to withdraw the Program Comment number. AGENCY: Federal Motor Carrier Safety
pursuant to section VI.B.1, below, or the Filings can be sent by hand or Administration (FMCSA), DOT.
FCC provides written notice of its messenger delivery, by commercial ACTION: Notice of application for
intention not to continue to utilize this overnight courier, or by first-class or
jstallworth on DSKBBY8HB2PROD with PROPOSALS
exemption; request for comments.
Program Comment pursuant to section overnight U.S. Postal Service mail. All
VI.B.2, below. filings must be addressed to the SUMMARY: FMCSA announces that the
1. If the Advisory Council determines Commission’s Secretary, Office of the Towing and Recovery Association of
that the consideration of historic Secretary, Federal Communications America, Inc. (TRAA) has requested an
properties is not being carried out in a Commission. exemption from the requirement that a
manner consistent with section 106, the • All hand-delivered or messenger- motor carrier install and require each of
Advisory Council may withdraw this delivered paper filings for the its drivers to use an electronic logging
Program Comment after consulting with Commission’s Secretary must be device (ELD) to record the driver’s
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Document Created: 2018-10-26 09:33:15
Document Modified: 2018-10-26 09:33:15
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Comments are due on February 9, 2018; reply comments are due on February 26, 2018. | |
| Contact | For further information on this proceeding, contact Daniel J. Margolis, Competition and Infrastructure Policy Division, Wireless Telecommunications Bureau, at [email protected] or (202) 418-1377. | |
| FR Citation | 83 FR 1215 |
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