Nationwide Programmatic Agreement for Review Under the National Historic Preservation Act, 556-588 [05-5]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 70, Number 2 (Tuesday, January 4, 2005)]
[Rules and Regulations]
[Pages 556-588]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-5]



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Part IV





Federal Communications Commission





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47 CFR Part 1



Nationwide Programmatic Agreement for Review Under the National 
Historic Preservation Act; Final Rule

Federal Register / Vol. 70, No. 2 / Tuesday, January 4, 2005 / Rules 
and Regulations

[[Page 556]]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[WT Docket No. 03-128; FCC 04-222]


Nationwide Programmatic Agreement for Review Under the National 
Historic Preservation Act

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, we adopt revisions to the Federal 
Communications Commission's (``Commission'') rules to implement a 
Nationwide Programmatic Agreement (``Nationwide Agreement'') that will 
tailor and streamline procedures for review of certain Commission 
undertakings for communications facilities under section 106 of the 
National Historic Preservation Act of 1966 (``NHPA''). The Nationwide 
Agreement will tailor the section 106 review in the communications 
context in order to improve compliance and streamline the review 
process for construction of towers and other Commission undertakings, 
while at the same time advancing and preserving the goal of the NHPA to 
protect historic properties, including historic properties to which 
federally recognized Indian tribes, including Alaska Native Villages, 
and Native Hawaiian Organizations (``NHOs'') attach religious and 
cultural significance.

DATES: Effective March 7, 2005.

FOR FURTHER INFORMATION CONTACT: Frank Stilwell, Wireless 
Telecommunications Bureau, (202) 418-1892.

SUPPLEMENTARY INFORMATION: This is a summary of the Federal 
Communications Commission's Report and Order, FCC 04-222, adopted 
September 9, 2004, and released October 5, 2004. The full text of the 
Report and Order is available for public inspection during regular 
business hours at the FCC Reference Information Center, 445 12th St., 
SW., Room CY-A257, Washington, DC 20554. The complete text may be 
purchased from the Commission's duplicating contractor: Qualex 
International, 445 12th Street, SW., Room CY-B402, Washington, DC 
20554, telephone (202) 863-2893, facsimile (202) 863-2898, or via e-
mail at qualexint@aol.com.

Paperwork Reduction Act

    The Report and Order contains modified information collection 
requirements subject to the Paperwork Reduction Act of 1995 (PRA), 
Public Law 104-13. It will be submitted to the Office of Management and 
Budget (OMB) for review under section 3507(d) of the PRA. OMB, the 
general public, and other Federal agencies are invited to comment on 
the new or modified information collection requirements contained in 
this proceeding. Public and agency comments are due March 7, 2005. 
Comments should address the following: (a) Whether the proposed 
collection of information is necessary for the proper performance of 
the functions of the Commission, including whether the information 
shall have practical utility; (b) the accuracy of the Commission's 
burden estimates; (c) ways to enhance the quality, utility, and clarity 
of the information collected; and (d) ways to minimize the burden of 
the collection of information on respondents, including the use of 
automated collection techniques or other forms of information 
technology. A copy of any comments on the information collections 
contained herein should be submitted to Judith B. Herman, Federal 
Communications Commission, 445 12th St., SW., Room 1-C804, Washington, 
DC 20554, or via the Internet to Judith-B.Herman@fcc.gov, and to Edward 
C. Springer, OMB Desk Officer, 10236 New Executive Office Building, 724 
17th St., NW., Washington, DC 20503, or via the Internet to 
Edward.Springer@omb.eop.gov.
    In addition, we note that pursuant to the Small Business Paperwork 
Relief Act of 2002, Pub. L. 107-198, see 44 U.S.C. 3506(c)(4), we 
previously sought comment on how the Commission might ``further reduce 
the information collection burden for small business concerns with 
fewer than 25 employees.'' In this Report and Order, we have assessed 
the effects of certain policy changes brought about by the Nationwide 
Agreement that might impose information collection burdens.\1\ More 
specifically, we believe that businesses with fewer than 25 employees 
will be affected by the Nationwide Agreement in a manner similar to 
other small entities. Burdens and benefits may be felt more acutely by 
small businesses due to their reduced ability to spread regulatory 
costs across a larger number of projects. The Nationwide Agreement does 
impose reporting, recordkeeping, and other compliance requirements.\2\ 
However, Part III of the Nationwide Agreement, which allows for the 
construction of certain telecommunications facilities without the need 
to submit section 106 materials to the SHPO/THPO, will probably provide 
the greatest regulatory relief for small businesses, including those 
with fewer than 25 employees. We believe that the Part III exclusions 
will be especially helpful for smaller entities including those with 
fewer than 25 employees who rely more heavily on the prompt, 
predictable completion of each project to maintain a satisfactory cash 
flow. Businesses that avail themselves of an exclusion will have some 
costs. For example, they will have to determine whether a specific 
project satisfies the criteria for that exclusion and maintain 
documentation of that determination in their files.
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    \1\ See Final Regulatory Flexibility Analysis, infra, at 
paragraphs 137-141.
    \2\ Id.
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Summary of the Report and Order

    1. In this Report and Order, we adopt revisions to the Federal 
Communications Commission's (``Commission'') rules to implement a 
Nationwide Programmatic Agreement (``Nationwide Agreement'') that will 
tailor and streamline procedures for review of certain Commission 
undertakings for communications facilities under section 106 (16 U.S.C. 
470f) of the National Historic Preservation Act of 1966 (``NHPA'') (16 
U.S.C. 470 et seq.). On June 9, 2003, we released a Notice of Proposed 
Rulemaking (``NPRM'') seeking comment on a draft Nationwide Agreement 
among the Commission, the Advisory Council on Historic Preservation 
(``Council'') and the National Conference of State Historic 
Preservation Officers (``Conference''). See 68 FR 40876 (July 9, 2003). 
As discussed below, upon consideration of the record, we have 
determined that, with certain revisions, the Nationwide Agreement will 
tailor the section 106 review in the communications context in order to 
improve compliance and streamline the review process for construction 
of towers and other Commission undertakings, while at the same time 
advancing and preserving the goal of the NHPA to protect historic 
properties, including historic properties to which federally recognized 
Indian tribes, including Alaska Native Villages, and Native Hawaiian 
Organizations (``NHOs'') attach religious and cultural significance. 
The Council and Conference have agreed with this determination, and the 
parties executed the Nationwide Agreement on October 4, 2004. 
Accordingly, upon the effective date of the rule changes adopted in 
this Report and Order, the provisions of the attached Nationwide 
Agreement will become binding on affected licensees and applicants of 
the Commission.

[[Page 557]]

    2. During the late 1990s, coincident with the explosion in tower 
constructions necessitated by the deployment of wireless mobile service 
across the country, delays in completing traditional section 106 
reviews began to occur. The Commission's licensees and applicants 
(``Applicants''), State Historic Preservation Officers (``SHPOs'') and 
Commission staff began experiencing ever-growing caseloads and backlogs 
that, it soon became clear, were posing a threat to the timely 
deployment of wireless service to customers.
    3. Faced with the prospect of even larger numbers of towers to be 
constructed, the Council formed a working group, consisting of 
representatives of the Council and Commission, SHPOs, Indian tribes, 
the communications industry, and historic preservation consultants. 
Members of the Working Group began meeting on a regular basis, seeking 
ways of tailoring the section 106 process to the unique situation posed 
by tower constructions (and the collocation of antennas on towers and 
other structures). While striving to preserve the goal of the NHPA to 
protect historic properties (including historic properties of cultural 
and religious importance to Indian tribes and NHOs), the group explored 
alternatives for streamlining the section 106 process, when feasible.
    4. In November 2001, the Working Group began discussing a 
Nationwide Agreement, consistent with Sec.  800.14(b) (36 CFR 
800.14(b)) of the Council's rules, to modify the historic preservation 
review process for communications towers and for antenna collocations 
that were not excluded from section 106 review under the Nationwide 
Programmatic Agreement for the Collocation of Wireless Antennas, 
executed March 16, 2001 (66 FR 17554, April 2, 2001) (``Collocation 
Agreement''). The Working Group sought to tailor the NHPA review 
process to the communications context in several ways that were 
reflected in the draft Nationwide Agreement. Commission staff also 
consulted on a government-to-government basis with representatives of 
federally recognized Indian tribes regarding the potential for 
provisions of the draft Agreement to significantly and uniquely affect 
their historic and cultural interests.
    5. Although we agree, as discussed below, that certain changes to 
the document are appropriate, we conclude that signing the Nationwide 
Agreement advances the public interest. Section 800.14(b) of the 
Council's rules, promulgated pursuant to the Council's authority under 
section 214 of the NHPA, anticipates that, after due deliberation among 
affected parties, a federal agency, the Council and the Conference may 
enter into a nationwide programmatic agreement that streamlines the 
section 106 review process and tailors it to the particular context of 
the subject matter to which it is applied. Consistent with this 
provision, the Nationwide Agreement streamlines and tailors the NHPA 
review process for tower constructions in a variety of ways, including: 
identifying classes of undertakings that, due to the small likelihood 
that they will impact historic properties, are excluded from routine 
section 106 review; developing clear and concise principles governing 
the initiation of contact with Indian tribes and NHOs as part of the 
section 106 process; clarifying methods for involving the public in the 
process; providing definitional and procedural guidance for the 
identification and evaluation of historic properties, and the 
assessment of effects on those properties; establishing procedures, 
including timelines, for SHPO, Tribal Historic Preservation Officer 
(``THPO'') and Commission review; providing procedural guidance for 
situations where construction occurs prior to compliance with section 
106; and prescribing uniform filing documentation.
    6. We disagree with arguments that the Nationwide Agreement will 
obstruct deployment and impede public safety by adding regulatory 
complexity to the section 106 review process. To the contrary, we find, 
on balance, that the measures described herein will relieve unnecessary 
regulatory burdens, and therefore will promote public safety and 
consumer interests, consistent with our deregulatory initiatives. While 
the procedures prescribed in the Nationwide Agreement are not free of 
complexity, on the whole they are less burdensome than the current 
process under the Council's rules, and neither we nor any commenters 
have identified substantially simpler solutions that would be 
consistent with our responsibilities under section 106 of the NHPA.
    7. At the same time, we conclude that the Nationwide Agreement will 
sufficiently protect historic properties. The NHPA and the Council's 
rules do not require that federal undertakings avoid all impacts on 
historic properties. Rather, section 106 requires that federal agencies 
``take into account'' the effect of their undertakings on historic 
properties, which the Council's rules interpret to include, among other 
things, a ``reasonable and good faith effort'' to identify historic 
properties. Moreover, section 214 of the NHPA (16 U.S.C. 470v) directs 
the Council to ``tak[e] into consideration the magnitude of the 
exempted undertaking or program and the likelihood of impairment of 
historic properties.'' We interpret these provisions to mean that, in 
formulating exemptions and prescribing processes, the Council and the 
federal agency need not ensure that every possible effect on a historic 
property is individually considered in all circumstances, but that they 
should take into account the likelihood and potential magnitude of 
effects in categories of situations. Indeed, doing so should advance 
historic preservation in the long run by enabling all parties to focus 
their limited resources on the cases where significant damage to 
historic properties is most likely.
    8. Within this framework, we find it significant that both the 
Council and the Conference, whose principal missions include 
administering section 106 and protecting historic properties, have 
agreed to sign the Nationwide Agreement. Like these expert agencies, we 
conclude, that the procedures and standards set forth in the Nationwide 
Agreement, while streamlining the process, are sufficient to minimize 
the likelihood that facilities construction will have unreviewed and 
unmitigated effects on historic properties, consistent with the NHPA.
    9. As a preliminary matter, a number of commenters argue that 
construction of a communications tower is not a federal undertaking 
under section 106 of the NHPA. An ``undertaking'' under the NHPA means 
``a project, activity, or program funded in whole or in part under the 
direct or indirect jurisdiction of a Federal agency, including * * * 
those requiring a Federal permit[,] license, or approval'' (16 U.S.C. 
470w(7)(C)). The Commission's rules currently treat tower construction 
as an ``undertaking'' for purposes of the NHPA. Unless and until we 
revisit this public-interest question and determine that it is 
appropriate to amend our rules, we believe our existing policies 
reflect a permissible interpretation of the Commission's authority 
under the Communications Act.
    10. Some commenters argue that we should not adopt the proposed 
Nationwide Agreement at this time because federally recognized Indian 
tribes were not sufficiently involved in its negotiation and drafting. 
Commission recognizes that as an independent agency of the federal 
government, we have a trust responsibility to and a government-to-
government relationship with federally recognized Indian tribes. 
Accordingly, it

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is our stated policy to consult, to the extent practicable, with Tribal 
governments prior to implementing any regulatory action or policy that 
will significantly or uniquely affect Tribal governments, their land 
and resources. See In the Matter of Statement of Policy on Establishing 
a Government-to-Government Relationship with Indian Tribes, Policy 
Statement, 16 FCC Rcd 4078, 4080 (2000).
    11. We conclude that the actions our staff has undertaken in 
developing the Nationwide Agreement fulfill the commitment made in the 
Tribal Policy Statement.
    12. Our actions in this matter were not limited to inviting written 
comment from Indian tribes. The Commission invited representatives of 
Tribal governments to participate in deliberations of the Working 
Group, and in a series of communications to all federally recognized 
tribes, Commission staff scoped the issues and specifically invited 
meaningful consultative discussion. Commission staff also distributed 
materials and discussed the status of the Nationwide Agreement at 
several tribal conferences during the period of preparation and 
negotiation. These initial efforts led to direct substantive 
discussions between Commission staff and representatives of Tribes.
    13. As a result of these consultations, we put out for public 
comment both the Navajo Nation's proposal for notifying Tribes of 
otherwise excluded undertakings and the United South and Eastern 
Tribes, Inc. (``USET'') proposal regarding tribal and NHO participation 
in considering proposed undertakings, and we are adopting aspects of 
the USET proposal in this Report and Order. Our consultation with USET 
has continued since we released the NPRM, and we have also kept other 
tribal organizations apprised of our work and have invited them and 
their members to participate. Finally, many Indian tribes and NHOs 
filed comments in this proceeding, and federally recognized tribes were 
encouraged to make ex parte presentations to members of the Commission 
staff regarding this rulemaking.
    14. We recognize that the execution of the Nationwide Agreement 
does not end our ongoing government-to-government relationship with 
federally recognized Tribes. Accordingly, we fully intend to continue 
regular consultation on a government-to-government basis, consistent 
with resource constraints, regarding the implementation of the 
Nationwide Agreement as well as other aspects of our relationship.
    15. Section 214 of the NHPA permits the Council to exempt from 
section 106 review classes of federal undertakings that would be 
unlikely to impact historic properties. Pursuant to this authority, the 
draft Nationwide Agreement lists certain types of Commission 
undertakings that would be exempt from completing the section 106 
process under the NHPA.
    16. We conclude that categorically excluding from routine section 
106 review categories of construction that are unlikely adversely to 
impact historic properties is appropriate and in the public interest. 
In addition to facilitating the timely deployment of service, properly 
drafted exclusions can promote historic preservation both by conserving 
the Commission's, SHPOs'/THPOs' and the Council's resources to review 
more important cases, and by providing incentives for applicants to 
locate facilities in a manner that will render effects on historic 
properties less likely. As discussed above, the NHPA does not require 
perfection in evaluating the potential effects of an undertaking in 
every instance. To the contrary, we believe section 214 contemplates a 
balancing of the likelihood of significant harm against the burden of 
reviewing individual undertakings. Moreover, the provisions in the 
Nationwide Agreement for ceasing construction and notifying the 
Commission and other interested parties upon discovery of previously 
unidentified historic properties provides a safeguard in the unusual 
instances where the availability of an exclusion might otherwise cause 
an adverse impact to be overlooked.
    17. The proposed Nationwide Agreement excludes the ``Modification 
of a tower and any associated excavation that does not involve a 
collocation and does not substantially increase the size of the 
existing tower, as defined in the Collocation Agreement.'' A 
substantial increase in size, in turn, is defined in the Collocation 
Agreement by reference to the extent of any increase in the tower's 
height, the installation of new equipment cabinets or shelters, the 
extent of any new protrusion from the tower, and excavation outside the 
current tower site and any access or utility easements. Enhancements to 
towers that involve collocations and do not result in a substantial 
increase in size are excluded from review under the Collocation 
Agreement.
    18. We conclude that it is appropriate and necessary to include in 
the Nationwide Agreement an exclusion for tower enhancements that 
constitute federal undertakings, do not involve collocations, and do 
not result in a substantial increase in size. Many changes to tower 
sites, such as building a fence around a tower, replacing an air 
conditioner or electric generator, or planting shrubs on the grounds, 
are in the nature of service or maintenance and are not federal 
undertakings. Thus, the Nationwide Agreement provides explicitly that 
Undertakings do not include maintenance and servicing of equipment. 
Other changes, however, are federal undertakings because they 
materially change the nature of the project that originally required 
section 106 review. Thus, a change is a federal undertaking if it 
alters an essential federal characteristic of the tower or its 
antennas. Any other interpretation would permit applicants to avoid 
section 106 review by initially constructing a non-intrusive tower and 
then modifying it substantially under the guise of a nonfederal 
alteration.
    19. Because certain changes to towers that do not involve 
collocations are federal undertakings, we conclude that such 
enhancements should be excluded from review if they do not involve a 
substantial increase in size. Under the Collocation Agreement, a change 
to a tower occurring in conjunction with a collocation that does not 
result in a substantial increase in size is excluded from section 106 
review. In some instances, a tower owner may find it beneficial to make 
a similar type of enhancement that is not associated with an immediate 
collocation. Such a change would have the same minimal likelihood of 
affecting historic properties as if it were accompanied by a 
collocation. Therefore, it should be excluded from section 106 review 
under the same standard.
    20. Under the Collocation Agreement, collocations on towers 
constructed after March 16, 2001, are not excluded unless the tower has 
previously completed the section 106 review process. In drafting the 
Collocation Agreement, the parties recognized that permitting 
collocations on pre-existing towers without review, absent substantial 
evidence of an adverse effect from either the proposed collocation or 
the underlying tower, would minimize the potential for adverse effects 
from new construction by creating an incentive to collocate. For towers 
constructed after the effective date of the Collocation Agreement, by 
contrast, excluding collocations from review where the underlying tower 
had not been reviewed might create a perverse incentive for companies 
to build towers without review in the hope of later attracting 
collocations. The exclusion for enhancements will similarly apply to 
all towers constructed on or before March 16, 2001, and to

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towers constructed after that date that went through the section 106 
process. Otherwise, a party might be able to avoid the limitation in 
the Collocation Agreement by first altering a tower and then adding an 
excluded collocation.
    21. Similar to the exclusion for enhancements to towers, the draft 
Nationwide Agreement permits the construction of new towers without 
NHPA review when the new tower replaces an existing tower and does not 
involve a substantial increase in size, as defined in the Collocation 
Agreement. In addition, unlike the exclusion for enhancements, the 
replacement tower exclusion permits construction and excavation within 
30 feet in any direction of the leased or owned property previously 
surrounding the tower.
    22. We adopt the replacement tower exclusion. Similar to 
collocations, strengthened structures may reduce the need for more 
towers by housing up to two, four or more additional antennas. Given 
the limitation of the exclusion to replacements that do not effectuate 
a substantial increase in size, it is highly unlikely that a 
replacement tower within the exclusion could have any impact other than 
on archeological properties. Moreover, the limitation on construction 
and excavation to within 30 feet of the existing leased or owned 
property means that only a minimal amount of previously undisturbed 
ground, if any, would be turned, and that would be very close to the 
existing construction. Finally, for reasons similar to those discussed 
with respect to tower enhancements, the replacement tower exclusion 
will apply to towers constructed after March 16, 2001, only if the 
original tower completed section 106 review.
    23. The draft Nationwide Agreement permits the erection of 
facilities without NHPA review for a temporary period not to exceed 
twenty-four months. We adopt the proposed temporary facilities 
exclusion with one revision. By their nature, temporary facilities 
usually involve little or no excavation. So long as no excavation will 
occur on previously undisturbed ground, the risk of damage to 
archeological or other historic properties from a temporary facility is 
small. Moreover, temporary facilities are often used in response to 
exigent circumstances where it is important that they be erected 
quickly. Taking these considerations together, we conclude that an 
exclusion for temporary facilities is appropriate where no excavation 
will occur on previously undisturbed ground. We revise the exclusion, 
however, so that a temporary facility that requires excavation other 
than on previously disturbed ground must complete section 106 review. 
We further conclude that a period of 24 months is sufficient to 
accommodate nearly all temporary facilities, and is necessary to ensure 
that the exclusion cannot be used to avoid section 106 review 
indefinitely.
    24. The draft Nationwide Agreement permits specified construction 
on certain properties in active industrial, commercial, or government-
office use without NHPA review. We adopt a revised version of this 
proposed exclusion. First, we limit the exclusion to industrial parks, 
commercial strip malls, or shopping centers that occupy a total land 
area of 100,000 square feet or more. As noted by several commenters, 
applying the exclusion to any commercial property as small as 10,000 
square feet, as proposed in the NPRM, would create an unacceptable risk 
of inappropriate development on small commercial properties, such as 
neighborhood shops, that may be located in or near historic areas. By 
confining the exclusion to construction in industrial parks, commercial 
strip malls, or shopping centers that occupy a total land area of 
100,000 square feet or more, we effectively ensure that construction 
subject to the exclusion will occur not only on plots that 
substantially exceed 10,000 square feet, but on highly developed 
properties and on ground that, in all likelihood, will have been 
thoroughly disturbed when the existing structures were constructed. At 
the same time, these types of properties are among those where wireless 
telecommunications service is most often needed. Thus, this exclusion 
combines a low likelihood of significant impact on historic properties 
with a high potential to satisfy service needs, thereby reducing 
pressure to site other facilities in potentially more sensitive 
locations.
    25. Second, we limit the exclusion to facilities that are less than 
200 feet in overall height. A tower of less than 200 feet is ordinarily 
unlikely to have significant incremental effects on historic properties 
within an area that is already highly developed. Furthermore, antenna 
structures 200 feet or less in height ordinarily do not require 
notification to the Federal Aviation Administration, and thus are not 
subject to federal lighting requirements. Thus, to the extent that 
lighting might have a visual adverse effect on historic properties, any 
such effect is unlikely from towers 200 feet or less.
    26. Third, we require that before applying this exclusion, the 
applicant must undertake a search of relevant records, and must 
complete a full section 106 review under the Nationwide Agreement if it 
discovers that the property on which it proposes to construct is 
located within the boundaries of or within 500 feet of a historic 
property. The draft Nationwide Agreement proposed that the exclusion 
would not apply if a structure 45 years or older were located within 
200 feet of the proposed facility. We conclude, however, that this 
proposed criterion would be burdensome to apply and is not well 
tailored to prevent potential effects on nearby historic properties. 
Thus, rather than turning on the age of nearby properties regardless of 
their eligibility, the exclusion's applicability should depend on 
whether the property or a property within 500 feet is, in fact, listed 
or eligible for listing in the National Register. We conclude that, for 
towers that otherwise meet the terms of the exclusion, a 500 foot 
buffer zone will adequately protect historic properties from adverse 
impacts.
    27. Finally, for purposes of this exclusion, we require applicants 
to complete the process of tribal and NHO participation as specified in 
section IV of the Nationwide Agreement. We note that historic 
properties of traditional religious and cultural importance often are 
not listed in the National Register or other publicly available 
sources. Thus, in order to provide protection for these types of 
historic properties similar to that afforded to other historic 
properties by a search of records, it is necessary to seek information 
directly from Indian tribes and NHOs. If as a result of this process 
the applicant or the Commission identifies a historic property that may 
be affected, the applicant must complete the section 106 process 
pursuant to the Nationwide Agreement notwithstanding the exclusion.
    28. The draft Nationwide Agreement excludes from review many towers 
proposed for construction in or near utility corridors, and along 
railways and highways. On review of the record, we conclude that the 
Nationwide Agreement should not create an exclusion for construction 
along highways and railroads. As numerous commenters observe, highways 
and railroads frequently follow pathways that track historic settlement 
and transportation patterns and, earlier, areas frequented by Indian 
tribes. We recognize that highways and passenger railways are among the 
areas where customer demand for wireless service is highest, and thus 
where the need for new facilities is greatest. Moreover, the existence 
of these modern intrusions reduces the risk that a new communications 
facility would impose

[[Page 560]]

an additional adverse effect on historic properties. Nonetheless, given 
the concentration of historic properties near many highways and 
railroads, we are persuaded that it is not feasible to draft an 
exclusion for highways and railroads that would both significantly ease 
the burdens of the section 106 process and sufficiently protect 
historic properties.
    29. We do, however, adopt a limited exclusion for facilities 
located in or within 50 feet of a right-of-way designated for 
communications towers or above-ground utility transmission or 
distribution lines, where the facility would not constitute a 
substantial increase in size over existing structures in the right-of-
way in the vicinity of the proposed construction. Due to the increasing 
usage of wireless services and advances in technology, providers of 
certain types of service are increasingly finding it feasible to 
utilize antennas mounted on short structures, often 50 feet or less in 
height, that resemble telephone or utility poles. Where such structures 
will be located near existing similar poles, we find that the 
likelihood of an incremental adverse impact on historic properties is 
minimal. Moreover, it promotes historic preservation to encourage 
construction of such minimally intrusive facilities rather than larger, 
potentially more damaging structures.
    30. For reasons similar to those discussed above with respect to 
the industrial and commercial properties exclusion, this exclusion does 
not apply if the facility would be located within the boundaries of a 
historic property, and we require applicants to conduct a preliminary 
search of relevant records for such property. Due to the limited size 
of the structures permitted under this exclusion and their close 
similarity to nearby existing structures, however, we do not require 
research regarding historic properties within 500 feet. Finally, for 
the same reasons discussed above, application of this exclusion depends 
on successful completion of the tribal and NHO participation process.
    31. Finally, the draft Nationwide Agreement excludes from NHPA 
review undertakings in geographic areas designated by the SHPO/THPO. We 
adopt this exclusion as drafted, with only minor clarifying edits. Such 
a provision, we believe, is consistent with the concept of an 
exclusion--i.e., to exempt from review undertakings where an impact 
upon historic properties is unlikely. SHPOs/THPOs are in an excellent 
position, given their local knowledge and experience, to identify such 
areas, when permissible under state or tribal law. While we encourage 
SHPOs and THPOs to designate areas pursuant to this provision to the 
extent warranted, we emphasize that doing so is at the SHPO/THPO's 
discretion.
    32. In the NPRM, we requested comment on a proposal by the 
Conference to allow SHPOs/THPOs to ``opt out'' of the exclusion for 
construction along utility and transportation corridors in areas where 
historic properties are likely to be present. We reject the proposed 
opt-out provision. As drafted, the exclusions from the section 106 
process are not dependent on local conditions, but identify 
circumstances under which construction is unlikely to significantly 
adversely affect historic properties in any state. At the same time, an 
opt-out provision would create a patchwork of varying agreements, 
state-by-state. Moreover, procedural changes, adopted by use of the 
opt-out provision, would likely occur over a period of time, creating 
additional burdens and confusion for all parties concerned.
    33. We reject arguments that, as a matter of law, the Commission 
must provide notice to Indian tribes of all excluded undertakings. 
Section 214 of the NHPA allows for certain undertakings to be 
``exempted from any or all of the requirements of this Act'' and 
expressly authorizes the Council to promulgate regulations to 
effectuate such exemption. We read section 214 as authorizing 
exemptions from the tribal consultation requirement of section 
101(d)(6). There is nothing in the NHPA or in the Council's rules 
expressly requiring any type of notice to tribes for every individual 
undertaking that is excluded from review pursuant to a programmatic 
agreement that is signed and executed by the agency and the Council. 
Given that the Council is the agency authorized to promulgate rules to 
implement section 214 of the NHPA, the absence of notice provisions 
both in the Council's rules and in other programmatic agreements 
supports our conclusion that such provisions are not necessary under 
the NHPA, the Council's rules, or otherwise. Indeed, consistent with 
its rules, it is the Council, as evidenced by its signature to this 
agreement, who approves the proposed exemption ``based on the 
consistency of the exemption with the purposes of the act. * * *''
    34. With respect to the specific exclusions in the Nationwide 
Agreement, we conclude, as discussed above, that tribal and NHO notice 
and participation are necessary for construction on commercial and 
industrial properties and in utility rights-of-way notwithstanding the 
exclusions. This is so because, without an opportunity for tribes and 
NHOs to participate, there is a substantial possibility that 
undertakings within these exclusions could affect properties of 
traditional cultural and religious importance. For the other 
exclusions, by contrast, any such possibility is insignificant. 
Therefore, a notice requirement would contravene the goals of section 
214 of the NHPA and the Council's rule on exclusions by adding an 
unnecessary layer of review and regulation.
    35. Finally, the Commission has met its government-to-government 
responsibility to consult with and its trust responsibility to 
federally recognized tribes with respect to the exclusions. As 
explained above, the Commission has engaged in government-to-government 
consultation with tribes regarding the Nationwide Agreement. Moreover, 
a proposal to require tribal notice was included in the draft 
Nationwide Agreement, and received the consideration of the various 
tribes and tribal organizations that participated in this proceeding. 
Indeed, after considering the comments of Indian tribes, we have 
included a tribal participation requirement for the industrial and 
commercial properties and utility corridor exclusions. We conclude that 
tribes were afforded an opportunity to consult with respect to this 
issue and accordingly did so.
    36. The draft Nationwide Agreement provides that applicants should 
retain documentation of their determination that an exclusion applies 
to an undertaking. We decline to require any regular reporting of 
instances in which the exclusions are used in addition to such 
recordkeeping. We find that such mass undifferentiated reporting of 
constructed facilities would be excessively burdensome and, without 
more, would contribute little to an understanding of how the exclusions 
are being applied. We note that as records relevant to compliance with 
the Commission's rules, a company must produce documentation of its 
determination of an exclusion's applicability to the Commission upon 
request. SHPOs/THPOs may also require production of such records to the 
extent authorized under State or tribal law.
    37. As a further safeguard to ensure that the exclusions are 
applied appropriately, we provide that a determination of exclusion 
should be made by an authorized individual within the applicant's 
organization. While the exclusions are drafted so that their 
application should not require historic preservation expertise, a 
responsible individual who understands the exclusions and their 
applicability

[[Page 561]]

needs to ensure that they are applied appropriately. Moreover, because 
the applicant is responsible for compliance with our rules, this 
responsible individual should be within the applicant's organization. 
We advise applicants to retain a record of the authorized individual's 
review as part of their record of the exclusion's applicability.
    38. In the NPRM, we sought comment on two alternative sets of 
provisions governing participation of Indian tribes and NHOs in 
undertakings off tribal lands. Alternative A was developed by the 
Working Group. This proposed alternative directs applicants to use 
reasonable and good faith efforts to identify Indian tribes and NHOs 
that may attach cultural and religious importance to historic 
properties that may be affected by an undertaking, and provides 
guidance on how to perform such identification and on the subsequent 
process to be followed with Indian tribes and NHOs. Alternative B was 
proposed by USET during the course of meetings after the Working Group 
completed its deliberations. Alternative B requires the Commission to 
consult with potentially affected Indian tribes and NHOs on each 
proposed undertaking, in accordance with the Council's rules, unless 
either (1) the Indian tribe or NHO has given the applicant a letter of 
certification stating that such consultation is unnecessary; or (2) the 
applicant and the Indian tribe have reached a written agreement, filed 
with the Commission, regarding conditions under which such 
certification is unnecessary and the applicant has complied with that 
agreement. Alternative B encourages parties to use these alternative 
processes in lieu of government-to-government consultation. This 
alternative does not, however, provide guidance regarding how 
applicants should contact and relate to Indian tribes and NHOs, stating 
that such guidance would be provided in an appendix or by separate 
publication.
    39. Since issuing the NPRM, the Commission has continued to work 
with Indian tribes outside the context of this proceeding to improve 
the means of tribal and NHO participation in the section 106 process. 
In particular, the Commission, after consultation with federally 
recognized tribes, has developed and implemented an electronic Tower 
Construction Notification System to facilitate identification of and 
appropriate initial contact with Indian tribes and NHOs that may attach 
religious and cultural significance to historic properties within the 
geographic area of a proposed undertaking. This system permits each 
Indian tribe and NHO voluntarily to identify in a secure electronic 
fashion the geographic areas in which historic properties of religious 
and cultural significance to that Indian tribe or NHO may be located. 
When an applicant then voluntarily enters into the system the location 
and other basic information about a proposed construction project, the 
Commission automatically forwards the information electronically or by 
mail to participating tribes and NHOs. Finally, Indian tribes and NHOs 
have the option of responding to applicants through the Tower 
Construction Notification System. By rationalizing the process of 
identification and initial contact through the Commission, we believe 
the Tower Construction Notification System will relieve burdens and 
provide certainty for tribes and NHOs, applicants, and the Commission 
alike.
    40. Upon consideration of the record, and in light of the 
developments described above, we adopt procedures for participation of 
tribes and NHOs that incorporate aspects of both Alternatives A and B 
with certain modifications. First, we recognize that pursuant to the 
federal government's unique legal relationship with Indian tribal 
governments, as well as specific obligations under the NHPA and the 
Council's and Commission's rules, the Commission has a responsibility 
to carry out consultation with any federally recognized Indian tribe or 
any NHO that attaches religious and cultural significance to a historic 
property that may be affected by a Commission undertaking. As the 
Commission has previously recognized, the federal government has a 
historic trust relationship that requires it to adhere to fiduciary 
standards in dealing with federally recognized tribes. This fiduciary 
responsibility and duty of consultation rest with the Commission as an 
agency of the federal government, not with licensees, applicants, or 
other third parties.
    41. At the same time, we cannot fulfill our duty of consultation in 
a vacuum. Because our applicants possess unique knowledge regarding the 
facilities that they propose to construct, the Nationwide Agreement 
that we adopt directs applicants to make reasonable and good faith 
efforts to identify the Indian tribes and NHOs that may have interests 
in a geographic area. The Nationwide Agreement further specifies that 
where an Indian tribe or NHO has voluntarily provided information to 
the Tower Construction Notification System, reference to that database 
constitutes a reasonable and good faith effort at identification. In 
addition, the Nationwide Agreement provides guidance regarding other 
means of fulfilling this obligation.
    42. The Nationwide Agreement specifies that, after the applicant 
has identified potentially interested tribes and NHOs, contact should 
be made at an early stage in the planning process with each such tribe 
or NHO by either the Commission or the applicant, depending on the 
expressed wishes of the particular Indian tribe or NHO. The Commission 
will take steps to ascertain and publicize the contact preferences of 
all federally recognized Indian tribes and NHOs, both as to who must 
make the initial tribal contact and by what means, as well as any 
locations or types of construction projects for which the Indian tribe 
or NHO does not expect notification. To ensure that communications 
among parties are in accordance with the reasonable preferences of 
individual tribes and NHOs, the Commission will also use its best 
efforts to arrive at agreements regarding best practices with Indian 
tribes or NHOs, strive for uniformity in such best practices and 
encourage applicants to follow them. Through these best practices the 
Commission hopes to facilitate expeditious completion of section 106 
review by minimizing misunderstandings among the parties to that 
process.
    43. If there is no preexisting relationship between the applicant 
and an Indian tribe or NHO, and absent contrary indication from the 
Indian tribe or NHO, initial contact will be made by the Commission 
through its electronic Tower Construction Notification System. Where 
there is such a preexisting relationship the applicant may make the 
initial contact in the manner that is customary to that relationship or 
in any manner acceptable to the Indian tribe or NHO. In these 
circumstances, the applicant shall copy the Commission on any initial 
contact to the Indian tribe or NHO unless the Indian tribe or NHO has 
agreed such copying is unnecessary. The Nationwide Agreement specifies 
that any direct contact with the Indian tribe or NHO shall be made in a 
sensitive manner that is consistent with the reasonable wishes of the 
Indian tribe or NHO, including through the Tower Construction 
Notification System where such means is consistent with the tribe or 
NHO's preference. Where the tribe or NHO's wishes are not known, the 
Nationwide Agreement sets forth guidelines regarding respectful address 
and sufficient information. The text further directs that the applicant 
afford the tribe or NHO a reasonable

[[Page 562]]

opportunity to respond, ordinarily 30 days, allow additional time to 
respond as reasonable upon request, and make reasonable efforts to 
follow up in case the tribe or NHO does not respond to an initial 
communication.
    44. The purpose of the initial contact, whether made by the 
Commission or the applicant, is to begin the process of ascertaining 
whether historic properties of religious and cultural significance to 
an Indian tribe or NHO may be affected by an undertaking, thereby 
triggering the duty of consultation. Unless the tribe or NHO 
affirmatively disclaims further interest or has agreed otherwise, this 
initial contact does not satisfy the applicant's obligation or 
constitute government-to-government consultation by the Commission. It 
is our hope and intent that, where direct contacts from an applicant 
are acceptable to the Indian tribe or NHO, amicable contacts will 
enable these consulting parties to complete the section 106 process so 
as to obviate the need for government-to-government consultation in a 
vast majority of cases. At the same time, because the duty to consult 
rests with the Commission as a federal government agency, the 
Nationwide Agreement directs applicants to promptly refer to the 
Commission any tribal request for government-to-government 
consultation, and to seek Commission guidance in cases of disagreement 
or failure to respond. Finally, the Nationwide Agreement substantially 
adopts provisions from Alternative A regarding inviting Indian tribes 
and NHOs to become consulting parties in the section 106 process, 
confidentiality, and the preservation of alternative arrangements.
    45. We conclude that the provisions we adopt are consistent with 
the Commission's fulfillment of its tribal consultation 
responsibilities under the NHPA and other sources of federal law. The 
NHPA does not provide for delegation of the tribal consultation 
responsibility to private entities. The provisions that we adopt, 
however, do not delegate the Commission's consultation responsibilities 
but provide for direct contacts with an Indian tribe or NHO by an 
applicant only in accordance with the expressed wishes of the Indian 
tribe or NHO. Moreover, the Nationwide Agreement further provides that, 
where the applicant is unknown to the tribe or NHO, the initial contact 
will generally be made by the Commission and does not in any 
circumstance allow applicants and licensees to embark upon and conclude 
the section 106 process without Commission participation and without 
tribal or NHO consent.
    46. The Nationwide Agreement expressly states that the initial 
contact between applicants or the Commission and Indian tribes and NHOs 
is required at ``an early stage of the planning process * * * in order 
to begin the process of ascertaining whether * * * Historic Properties 
[of religious and cultural significance to them] may be affected.'' The 
Nationwide Agreement expresses the ambition that this initial contact 
will lead to voluntary direct discussions through which applicants and 
tribes or NHOs will resolve any matters to the tribe or NHO's 
satisfaction without Commission involvement. However, the Nationwide 
Agreement makes clear that in the absence of such an agreement, 
decision-making authority and the duty to consult rest with the 
Commission. Thus, federally recognized Indian tribes are free, at any 
point, to request government-to-government consultation with the 
Commission, and the Commission is accessible and able to engage in 
government-to-government consultation with any tribe on any undertaking 
at any time. Moreover, if an applicant and an Indian tribe or NHO 
disagree regarding whether an undertaking will have an adverse effect 
on a historic property of religious and cultural significance, or if 
the tribe or NHO does not respond to the applicant's inquiries, the 
Nationwide Agreement directs the applicant to seek guidance from the 
Commission, following which appropriate consultation will occur and 
only then will the Commission make a decision regarding the proposed 
undertaking. The Commission only puts the exploratory phase of the 
process into the hands of those parties with the most intimate 
knowledge of the proposed undertaking and, subject to the expressed 
wishes of an Indian tribe or NHO, authorizes them to provide 
information to, solicit information from, and engage in voluntary 
discussions with the tribes and NHOs. This is consistent with Sec.  
800.2(c)(4) of the Council's rules (36 CFR 800.2(c)(4)), which permits 
agencies to authorize applicants to initiate section 106 discussions or 
contacts with consulting parties such as tribes, and is in keeping with 
applicable federal consultation responsibilities.
    47. We reject the argument that the role of applicants in 
initiating the section 106 process constitutes an illegal delegation. 
Except where there is a preexisting relationship between a particular 
tribe or NHO and the applicant or a particular tribe has advised the 
Commission of its willingness to be contacted initially by applicants, 
the first contact concerning a proposed undertaking will generally come 
from the Commission. In any event, cases relating to Congressional 
delegations of power to other branches of the federal government are 
inapposite. Moreover, federal agencies may permit private sector 
entities to perform delineated governmental functions when clear 
standards are set forth, guidelines for policymaking are offered, and 
specific findings are required. This is especially true when the 
private entity's participation is subject to the government agency's 
ultimate reviewing authority, which, as described above, is the case 
here. Similarly, OMB Circular A-76, which addresses functions of 
government that are non-delegable to the private sector, is not 
applicable because the Commission is not delegating a governmental 
function or any decision-making authority, but simply seeking 
assistance from our licensees and applicants in beginning a process 
over which the Commission ultimately retains control.
    48. For these reasons, we conclude that the Nationwide Agreement, 
as we adopt it today, does not unlawfully delegate or derogate the 
Commission's duties of consultation. At the same time, in combination 
with the other developments described above, the Nationwide Agreement 
provides substantial assistance and guidance to applicants in carrying 
out their assigned role. We disagree, however, with commenters who urge 
us to prescribe more definitive time periods or provide greater 
finality. Ultimately, the Commission has a government-to-government 
relationship with and fiduciary responsibility to Indian tribes, as 
manifested in the duties of consultation under general principles of 
law and under the specific provisions of the NHPA. Thus, absent the 
Indian tribe or NHO's agreement, only the Commission can confer 
finality with respect to tribes or NHOs for an undertaking that is not 
excluded from section 106 review. Moreover, while ultimately no further 
consultation is required if an undertaking will not affect a historic 
property of cultural and religious significance to a tribe or NHO, 
applicants must work with tribes and NHOs in their efforts to determine 
whether such eligible properties exist, and must refer to the 
Commission for finality absent tribal or NHO agreement with their 
identification efforts. It is our hope, through the guidance in the 
Nationwide Agreement and through the separate negotiation of voluntary 
best

[[Page 563]]

practices with Indian tribes and NHOs, to facilitate consensual 
resolutions that satisfy the needs of all parties swiftly and with a 
minimum expenditure of resources.
    49. Section V of the draft Nationwide Agreement establishes 
procedures to streamline and tailor the public participation provisions 
of the Council's rules to fit the communications context. Specifically, 
this section provides for notice of a proposed undertaking to the 
relevant local government and the public on or before the date the 
project is submitted to the SHPO/THPO, recommends means of providing 
public notice, and specifies the content of these notices. The 
provision also states that the SHPO/THPO may make available lists of 
additional interested organizations that should be contacted, and it 
requires the applicant to consider public comments and provide those 
comments to the SHPO/THPO. In addition, it sets out procedures for 
identifying consulting parties and the rights of consulting parties.
    50. We adopt the public participation provisions substantially as 
drafted. The Nationwide Agreement simplifies, by tailoring to the 
communications context, the process in the Council's existing rules for 
providing notice, involving the public, identifying consulting parties, 
and addressing comments received. We conclude that the provisions as 
drafted achieve the important public participation goals of the 
Council's rules in a manner that will reduce misunderstandings and 
relieve burdens on applicants, SHPOs/THPOs and the Commission alike.
    51. We reject most of the changes that commenters have proposed to 
this section. Specifically, we find that there should not be a firm 
time limit on public comments on a proposed undertaking, but that all 
comments received prior to completion of the review process should be 
considered. We further conclude, consistent with common practice, that 
use of the local zoning process, local newspaper publication, or an 
equivalent process constitutes sufficient notice of a proposed 
undertaking in the nature of a communications facility to the general 
public. Moreover, it is appropriate to permit the SHPO/THPO, as the 
consulting party most familiar with the local community of interest, to 
provide by generally available list the names of additional parties 
that should be contacted in order to further ensure a full opportunity 
for public participation under the circumstances of each case. In order 
to preserve applicants' flexibility to pursue the process in the most 
efficient sequence under the circumstances of each case, we only 
require that notice to the local government and the public occur on or 
before the date materials are submitted to the SHPO/THPO. We also find 
that adoption of a national confidentiality standard would be 
infeasible given the SHPOs'/THPOs' need for information and the 
diversity of laws on this subject in the various states.
    52. We do conclude that it is appropriate for the applicant to 
inform the SHPO/THPO, as part of the Submission Packet, of the identity 
of designated consulting parties. Accordingly, we add this provision to 
the Nationwide Agreement and we include a request for the relevant 
information on the attached forms. We find, however, that it is 
unnecessary and burdensome for applicants to notify the Commission of 
each undertaking as part of the public participation process. Finally, 
we conclude that the criterion encouraging applicants to grant 
consulting party status to one who has ``a demonstrated legal or 
economic interest in the undertaking, or demonstrated expertise or 
standing as a representative of local or public interest in historic or 
cultural resources preservation,'' is consistent with, and required by, 
the Council's rules (36 CFR 800.2(c)(5)).
    53. Section VI of the draft Nationwide Agreement establishes 
procedures and standards for identifying historic properties, 
evaluating their historic significance, and assessing any effect the 
proposed undertaking may have upon those historic properties. 
Commenters address five principal subjects in this area, including: (1) 
The definition of area of potential effects (APE); (2) the means of 
identifying and evaluating historic properties within the APE for 
visual effects; (3) the need for archeological surveys; (4) the 
definition of an adverse effect; and (5) the use of qualified experts.
    54. The APE is the area within which an applicant must look for 
historic properties that may be affected by an undertaking. The draft 
Nationwide Agreement provides that each undertaking has one APE for 
direct (physical) effects, consisting of the area of potential ground 
disturbance and the portion of any historic property that will be 
destroyed or physically altered by the undertaking, and a second APE 
for indirect visual effects. The draft further establishes a rebuttable 
presumption that the latter APE is the area from which the tower will 
be visible within \1/2\ mile of the proposed tower for a tower that is 
200 feet or less in height, \3/4\ mile for a tower more than 200 feet 
but no more than 400 feet in height, and 1.5 miles for a taller tower. 
The applicant and the SHPO/THPO may mutually agree on an alternative to 
the presumed distance in any case, and disputes regarding whether to 
use an alternative APE may be submitted to the Commission for 
resolution.
    55. We adopt the APE provisions substantially as drafted, with only 
technical and clarifying revisions. In doing so, we emphasize that the 
scaled distances for visual APEs in the Nationwide Agreement are not 
inflexible mandates but presumptions, subject to variation in specific 
instances either by mutual agreement or, in cases of dispute, by 
Commission decision. Thus, while providing a structure to facilitate 
the determination of the APE in most cases, the Nationwide Agreement 
ultimately affords case-by-case flexibility. Although some commenters 
argue that the presumed distances are too small or too large, we are 
not persuaded that the presumed distances are inappropriate for the 
typical case, subject to departure where conditions require. We do add 
a general definition of the APE for visual effects in order to clarify, 
consistent with the definition of adverse effect, that it refers only 
to the geographic area in which the undertaking has the potential to 
introduce visual elements that diminish the setting, including the 
landscape, of a historic property where setting is a character-defining 
feature of eligibility.
    56. With respect to identification and evaluation of Historic 
Properties, the Council's rules define a Historic Property, in relevant 
part, as ``any prehistoric or historic district, site, building, 
structure, or object included in, or eligible for inclusion in, the 
National Register. * * *'' (36 CFR 800.16 (l)(1)). The Council's rules 
further provide that properties eligible for inclusion in the National 
Register include ``both properties formally determined as such in 
accordance with regulations of the Secretary of the Interior and all 
other properties that meet the National Register criteria'' (36 CFR 
800.16(l)(2)). This definition implements section 106 of the NHPA, 
which provides that a federal agency shall take into account the effect 
of any federal undertaking on any property ``included or eligible for 
inclusion in the National Register.''
    57. We have in the record a letter from the Chairmen of the U.S. 
House of Representatives Committee on Resources and Subcommittee on 
National Parks, Recreation and Public Lands to the Chairman of the 
Council, noting that the Council originally defined properties eligible 
for inclusion in the National Register under section

[[Page 564]]

106 to include only properties that the Keeper had previously 
determined to be eligible, and suggesting that the Council consider 
addressing this definitional issue either in the Nationwide Agreement 
or in a then-pending Council rulemaking. We determine not to alter the 
definition of Historic Property used in the draft Nationwide Agreement 
and the Council's rules. In this regard, we defer to the Council's 
clearly stated interpretation of its own governing statute, which was 
recently upheld by the federal court reviewing amendments to the 
Council's rules. See National Mining Association v. Slater, 167 
F.Supp.2d 265, 290-292 (D.D.C. 2001), rev'd in part, 324 F.3d 752 
(2003). We also note that Sec.  800.14 (36 CFR 800.14) of the Council's 
rules, which authorizes programmatic agreements, discusses alternative 
procedures to Subpart B of the Council's rules, but the definition of 
Historic Property is in Subpart C. For all these reasons, we conclude 
that questions regarding the definition of historic properties are 
outside the scope of this proceeding and should be addressed, if at 
all, by the Council.
    58. At the same time, we conclude, based on our review of the 
record, that it is appropriate to narrow and define applicants' 
obligations with respect to the identification and evaluation of 
historic properties within the APE for visual effects. Section 106 is 
silent on the methodology necessary to identify properties ``included 
in or eligible for inclusion in the National Register.'' Indeed, a 
federal court has held that the Council's requirement that federal 
agencies conduct surveys to identify historic properties is not 
mandated by the plain meaning of section 106. Under the Council's 
regulations, the agency must make ``a reasonable and good faith 
effort'' that takes into account the burdens of evaluation, the nature 
and extent of potential effects, the magnitude of the undertaking and 
the degree of federal involvement in the proposed undertaking. Council 
regulations provide further that this obligation may be met through 
procedures specified in subpart B of the rules or as modified in a 
Programmatic Agreement tailored to the agency's specific needs. Here, 
the record demonstrates that requiring applicants to undertake field 
surveys for thousands of new communications facilities annually causes 
considerable delay in the deployment of communications services and 
imposes a hefty burden on the resources of applicants and SHPO/THPOs 
alike. Moreover, only those historic properties within the APE for 
which visual setting or visual elements are character-defining features 
of eligibility are potentially subject to visual adverse effects. Of 
these properties, many will not incur adverse effects from a 
communications facility, depending on the extent to which the facility 
is visible from the property and other factors. Taking these 
considerations together, we conclude that the burdens of conducting 
field surveys and taking other active measures beyond reviewing defined 
sets of records to identify historic properties in the APE for visual 
effects, in the context of the facilities covered by this Nationwide 
Agreement, are not merited by the small potential benefit to historic 
preservation.
    59. Specifically, the Nationwide Agreement requires that, for most 
types of historic properties within the APE