Notice of Issuance of Program Comment for Communications Projects on Federal Lands and Property, 23818-23829 [2017-10630]

Agencies

• Historic Preservation, Advisory Council

[Federal Register Volume 82, Number 99 (Wednesday, May 24, 2017)]
[Notices]
[Pages 23818-23829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-10630]


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ADVISORY COUNCIL ON HISTORIC PRESERVATION


Notice of Issuance of Program Comment for Communications Projects 
on Federal Lands and Property

AGENCY: Advisory Council on Historic Preservation.

ACTION: Program Comment Issued to Tailor the Section 106 Review Process 
for Communications Projects on Federal Lands and Property.

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SUMMARY: The Advisory Council on Historic Preservation (ACHP) issued a 
Program Comment for Communications Projects on Federal Lands and 
Property at the request of the U.S. Department of Homeland Security 
(DHS) to accelerate the review of these projects, particularly 
broadband deployment, under Section 106 of the National Historic 
Preservation Act. The Program Comment can be used by federal land and 
property managing agencies who must comply with the requirements of 
Section 106 when deploying communications activities on public lands 
and property. Federal agencies using the Program Comment may fulfill 
their Section 106 responsibilities for the relevant undertakings by 
implementing the terms of this comment, which include processes for the 
identification of historic properties and consideration of effects to 
these properties. The Program Comment also identifies certain 
undertakings that require no further Section 106 review under specified 
conditions.

DATES: The Program Comment was issued by the ACHP on May 8, 2017 and 
went into effect that day.

ADDRESSES: Address all questions concerning the Program Comment to 
Charlene Dwin Vaughn, AICP, Office of Federal Agency Programs, Advisory 
Council on Historic Preservation, 401 F Street NW., Suite 308, 
Washington DC 20001-2637. You may submit questions through electronic 
mail to: cvaughn@achp.gov.

FOR FURTHER INFORMATION CONTACT: Charlene Vaughn, (202) 517-0207, 
cvaughn@achp.gov.

SUPPLEMENTARY INFORMATION: Section 106 of the National Historic 
Preservation Act (NHPA), as amended, 54 U.S.C. 306108 (``Section 
106''), requires federal agencies to take into account the effects of 
undertakings they carry out, license, permit, or fund to historic 
properties and provide the Advisory Council on Historic Preservation 
(``ACHP'') a reasonable opportunity to comment with regard to such 
undertakings. The ACHP has issued the regulations that set forth the 
process through which federal agencies comply with these 
responsibilities. Those regulations are codified under 36 CFR part 800 
(``Section 106 regulations'').
    Under Section 800.14(e) of those regulations, federal agencies can 
request the ACHP to issue a ``Program Comment'' on a particular 
category of undertakings in lieu of conducting reviews for each 
individual undertaking in the category. An agency can meet its Section 
106 responsibilities with regard to the effects of those undertakings 
by implementing an applicable Program Comment that has been issued by 
the ACHP.

I. Background

    At the request of the DHS, the ACHP has issued a Program Comment 
that provides a new efficiency in the Section 106 review for the 
deployment of communications projects. A program alternative was 
initially proposed by the White House Office of Science and Technology 
and an interagency Working Group comprised of representatives from the 
U.S. Department of the Interior's Bureau of Land Management, National 
Park Service (NPS), Fish and Wildlife Service; Department of Defense; 
the U.S. Department of Agriculture's Forest Service and Rural Utilities 
Service (RUS); and the Federal Communications Commission (FCC). The 
purpose of this Working Group was to explore how best to accelerate the 
deployment of communications projects, particularly broadband 
activities, on federal lands and properties by evaluating the Section 
106 program alternatives outlined in 36 CFR 800.14. Many members of the 
Working Group had previously participated in another Interagency 
Working Group for Accelerating Broadband Infrastructure Deployment, 
established in 2012. This Interagency Working Group published a report 
with recommendations to expedite reviews and implement efficiencies for 
the deployment of broadband infrastructure on federal lands. Since this 
effort had not directly resulted in revisions based on the existing 
Section 106 regulations, in 2016 the Broadband Interagency Working 
Group, formerly known as the Broadband Opportunity Council, was 
established. This group reaffirmed the need to tailor the Section 106 
review process so it could expedite broadband deployment, especially in 
rural and underserved communities.
    The Working Group initially pursued a Standard Treatment in 
accordance with 36 CFR 800.14(d) consisting of a series of ``best 
practices'' in the deployment of broadband. If followed, these 
practices were likely to result in determinations of ``no historic 
properties affected'' or ``no adverse effect'' on historic properties. 
However, the Working Group was particularly interested in incorporating 
select provisions of the two FCC Nationwide Programmatic Agreements 
(NPAs) executed in 2001 and 2005, respectively, among FCC, the National 
Conference of State Historic Preservation Officers (NCSHPO), and the 
ACHP for tower siting and collocation activities on existing towers. 
The NPAs have been successfully used by applicants for more than a 
decade for streamlining the Section 106 review of tower siting and 
collocation activities. Use of the Standard Treatment alone would not 
have allowed federal land and property managing agencies to implement 
the efficiencies in the NPAs. Further, by their own terms, the NPAs 
state that they do not apply on federal lands and tribal lands.

II. Conversion of the Standard Treatment to a Program Comment

    After meeting several times and receiving feedback on the draft 
Standard Treatment, it was recognized that the best practices proposed 
in the Standard Treatment would not achieve the review efficiencies 
that were being sought by the federal agencies. The Working Group, 
therefore, agreed to convert the Standard Treatment into a Program 
Comment under 36 CFR 800.14(e). The Program Comment would enable 
Property Managing Agencies (PMAS) and Land Managing Agencies (LMAs) to 
alter the standard Section 106 review process to achieve the desired 
process efficiencies, such as establishing limits to areas of potential 
effects (APEs), limiting the level of effort needed to identify 
historic properties in certain areas, and utilizing FCC's NPAs' 
exemptions, as appropriate.

[[Page 23819]]

    While the Program Comment presents a change in the type of program 
alternative initially sought by the LMAs and PMAs, the structure and 
provisions are substantively similar to those included in the draft 
Standard Treatment. The Program Comment includes new administrative 
clauses such as reporting, amendment, and duration. Nonetheless, the 
overall purpose of the program alternative remains the same: assist 
LMAs and PMAs in expediting project delivery of broadband 
infrastructure to underserved communities, rural areas, and tribal 
communities. Further, the Program Comment is structured to cover the 
effects of all types of communication deployment undertakings, 
including constructing and placing antennae, towers, and associated 
equipment and facilities on federal property, and running buried and 
aerial fiber optic lines across federal lands. In order to expedite the 
review of broadband activities, the Program Comment defines the APE for 
certain undertakings to establish more consistent reviews by LMAs and 
PMAs on federal lands; specifies the process for collocation on federal 
buildings and federal lands; and clarifies review and installation 
procedures for buried and aerial fiber optic lines.
    By utilizing the Program Comment, LMAs/PMAs can allow project 
proponents to coordinate the review of broadband deployment on both 
private and federal lands without experiencing unanticipated delays in 
the Section 106 process. Assistance agencies, such as FirstNet 
(Commerce), the Appalachian Regional Commission, and RUS, can use the 
Program Comment when they fund broadband activities that may involve 
the use of federal lands and properties. Other LMAs/PMAs and federal 
agencies not specifically identified in the Program Comment who wish to 
use the Program Comment to satisfy their Section 106 responsibilities 
must first notify the ACHP in writing of their interest and clarify the 
nature of their communications program. The ACHP will be responsible 
for acknowledging these notifications and posting them on the ACHP Web 
site.
    The Program Comment is not applicable to undertakings that would 
occur on or affect the following federal lands: National Historic 
Landmarks (or the portion thereof that is located on federal land), 
National Monuments, National Memorials, National Historical Parks, 
National Historic Trails, National Historic Sites, National Military 
Parks, and National Battlefields. Should federal agencies or applicants 
propose communication deployment undertakings that may affect these 
properties, the responsible federal agency must follow the standard 
Section 106 process or another applicable program alternative. The 
LMAs/PMAS also must consult with State Historic Preservation Officer 
(SHPO)/Tribal Historic Preservation Officer (THPO), Indian tribes, 
Native Hawaiian organizations (NHOs), and other consulting parties when 
coordinating the standard Section 106 process.

Public Participation

    In accordance with the 36 CFR 800.14(e), in developing the Program 
Comment the ACHP, in coordination with DHS and the Working Group, 
arranged for public participation appropriate to the scope of the 
category of undertakings it would cover and in accordance with the 
standards outlined in the Section 106 regulations. Due to the breadth 
and scale of the communications activities related to the Next 
Generation programs, ACHP, DHS, and the Working Group agreed that all 
stakeholders should be afforded an opportunity to review the draft 
Program Comment. It was posted on the ACHP's Web site with an 
explanation of the changes that were made to modify it from the 
proposed Standard Treatment.
    On January 13, 2017, the draft Program Comment was distributed to 
SHPOs, THPOs, Indian tribes, NHOs, federal agencies, and broadband 
industry representatives for a three-week review period. The ACHP 
received 16 comments during this initial period. Because of the limited 
response, the comment period was extended for an additional two weeks 
until February 24, 2017. The ACHP hosted a webinar specifically for 
tribes, from which an additional three comments were received.
    In response to the publication of the draft Program Comment on 
January 13, 2017, comments were received from a total of 24 
organizations and federal agencies. None of the commenters opposed the 
issuance of the Program Comment. However, all of the commenters shared 
their observations regarding changes needed to make it less ambiguous 
or offered revisions to meet their program needs. SHPOs and THPOs both 
recommended revisions to clarify the procedures for conducting records 
checks, completing the identification and evaluation of properties, 
exempting activities from Section 106 reviews, as well as the use of 
the defined terms in the Program Comment.
    Responses from nine SHPOs were received on the draft Program 
Comment, with most expressing concern about the continued applicability 
of Section 110(a) of the NHPA to federal LMAs/PMAs. SHPOs also 
questioned how the Program Comment would relate to the FCC NPAs, which 
they thought was not clear in the document. Many SHPOs were concerned 
about the identification and evaluation of historic properties under 
the Program Comment and wanted the following issues addressed: (1) The 
degree of flexibility given to federal land and property managing 
agencies to identify historic properties; (2) clarity regarding when or 
if field surveys would be needed; (3) clarity regarding how a ``records 
check would be conducted;'' (4) the level of SHPO review required for 
exemptions; and (5) clarity regarding the definition of the term ``low 
probability.'' SHPOs also could not determine the difference between 
``rights of-way'' and ``previously disturbed right-of-way'' based on 
the language in the draft.
    One SHPO recommended that the ACHP clarify whether new tower 
construction would be exempted and distinguish between a replacement 
tower and an additional tower. Further, the effect thresholds in the 
Program Comment elicited several SHPO comments. Concerns were expressed 
that the draft did not consider a situation in which the scale and 
nature of the previous undertaking could be significantly different 
from that created by a large cellular tower, that the draft erroneously 
concluded that new telecommunications towers would typically not result 
in an ``adverse effect,'' and that it did not adequately consider other 
types of adverse effects such as noise, visual, and cumulative effects. 
Finally, SHPOs believed it was important to take into account the 
passage of time when assessing effects on properties previously 
considered ineligible. SHPOS indicated that LMAs/PMAs should not only 
consult with the SHPO/THPO to confirm the APE, but should also reveal 
to the SHPO/THPO and Indian tribes the sources (records) and methods 
used to identify historic properties. Finally, a concern was raised 
that the draft narrowed the definition of ``historic properties'' and 
was inconsistent with the definition in the NHPA.
    Five THPOs and Indian tribes responded to the draft Program Comment 
during the period it was available for review. Comments regarding the 
applicability of the Program Comment on tribal lands were noted, and 
several THPOs and Indian tribes expressed concern about the Program 
Comment applying off tribal lands, preferring that LMAs/PMAs adhere to 
the standard Section 106

[[Page 23820]]

process instead. Further, one THPO indicated that it was unclear if or 
when it would be possible to develop an agreement with the LMA/PMA to 
utilize the Program Comment on tribal lands. THPOs and Indian tribes 
recommended that the list of properties to which the Program Comment 
would not apply be expanded to include National Historic Landmarks, 
National Natural Landmarks, areas of critical environmental concern, 
and other federally owned localities and lands that have earned 
official recognition for their significance. With regard to the 
definitions, THPOs and Indian tribes recommended that the list of 
defined terms include other terms they believed were vague or 
inconsistently used throughout the document. THPOs and Indian tribes 
recommended that activities exempt from Section 106 review be limited 
to those that would not affect ``undisturbed areas.'' They also 
suggested that the radius for the ``presumed APE for visual effects'' 
in cases where the undertaking may affect properties or landscapes of 
significance to tribes should be expanded. The THPOs and Indian tribes 
believed that the identification process is the most important step of 
the Section 106 process and therefore, recommended that ``. . . great 
care is taken when limiting this step in order to establish 
efficiencies.'' One THPO took exception to the use of blanket ``no 
adverse effects'' determinations for the construction of lines from the 
road or utility right-of-way to a facility if there are no known 
historic properties within the APE. The THPO said this would work only 
when there are sufficient identification efforts completed such as 
survey or testing to support any previous ``no historic properties 
affected'' findings.
    THPOs and Indian tribes also questioned the concept of ``records 
check'' as an adequate identification tool if it did not include 
consultation with the THPOs and Indian tribes as it did with the SHPOs. 
Likewise, they said that Federal LMAs/PMAs must involve the tribes in 
consultation regarding avoidance plans for historic properties. The 
THPOs and Indian tribes asserted that the Program Comment did not 
address the importance of ancestral homelands or areas through which a 
tribe has migrated or on which tribes have participated in past or 
present activities. The THPOs and Indian tribes stressed the importance 
of being clear on these issues. Regarding collocation on non-tower 
structures, the THPOs commented that the LMA/PMA must take into account 
historic properties of religious and cultural significance to tribes, 
and therefore consultation with tribes should occur prior to making a 
finding of ``no adverse effect.'' THPOs and Indian tribes also 
recommended including further consideration of the cumulative effects 
of telecommunication facilities on sites and landscapes eligible for 
listing in the National Register. In addition, the THPOs and Indian 
tribes suggested that the Program comment should acknowledge that many 
telecommunications facilities can have auditory and olfactory effects 
as well as mechanical and visual effects on historic properties.
    The THPOs and tribes commented that annual reports from LMAs/PMAs 
should be submitted directly to affected THPOs and Indian tribes. 
Further, they suggested that the ACHP and LMAs/PMAs should consult with 
THPOs and Indian tribes before amending the Program Comment. They 
reiterated that the Program Comment should clearly state that it does 
not alter the roles or responsibilities of THPOs and Indian tribes in 
the Section 106 review process. For example, they commented that the 
Program Comment does not negate the right of THPOs and Indian tribes to 
request government-to-government consultation with LMAs/PMAs and other 
federal agencies. Finally, THPOs and tribes stated that the sole 
purpose of the Program Comment was to expedite and limit the scope of 
Section 106 review and asserted that this was problematical because it 
violated both the spirit and language of the NHPA.
    The American Cultural Resources Association (ACRA) was concerned 
that the Program Comment would limit consultation on APEs to SHPOs and 
THPOs only. They recommended that it include other parties since they 
said that towers have large APEs and could impact traditional cultural 
properties, view sheds, etc. ACRA also objected to the exemption for 
previous surveyed areas, arguing it presupposes that earlier surveys 
were adequate. To that end, they noted that the term ``adequate was 
frequently used in throughout the Program Comment'' and asked the ACHP 
to clarify why.
    Federal agencies were notified that a draft Program Comment had 
been developed to assist with the review of broadband deployment. Five 
agencies submitted comments during the review period, including some 
that were members of the Working Group, such as FCC. FCC indicated that 
it would be helpful if the Program Comment absolved the agency from 
complying with Section 106 when a LMA/PMA with related authority for 
the same undertaking already utilized the Program Comment on Federal 
lands and property for its Section 106 review. If this efficiency were 
not possible, FCC asked to be removed from participation in the Program 
Comment.
    The US Postal Service (USPS) asked why agencies interested in using 
the Program Comment would be required to inform the ACHP and other 
government agencies. The agency wanted to know if notice to just the 
ACHP would be sufficient. Also, they expressed concerns about the 
definitions in the Program Comment and suggested that USPS would want 
to verify the references. USPS requested the Program Comment include a 
``more detailed'' definition of ``undisturbed soils.'' USPS also 
clarified that it has its own policy that defines terms used in the 
Program Comment which can be found at 39 U.S.C. 401, ``General Powers 
of the Postal Service.'' With regard to the reference to ``delegation 
of authority'' the Program Comment should specify that it would be to 
the ``Applicant'' to avoid confusion. On a similar note, USPS requested 
that the ``responsibilities of applicants'' section include the 
following language at the end, ``the federal LMA/PMA shall be deemed to 
be in compliance under this PC if such compliance is carried out by an 
Applicant on behalf of such Federal LMA/PMA.'' USPS recommended that 
the APEs for new communication towers be increased by 0.5 to 1 mile 
given what it perceived to be the potential to construct stealth towers 
without appropriate review.
    NPS requested that the ACHP include a definition of ``agency 
official'' to the general definitions section to explain who represents 
the agency. In addition, NPS indicated that the ACHP should clarify how 
undertakings occurring on or affecting National Parks would be handled 
under the exemptions outlined in Sections VI to XI of the Program 
Comment.
    The telecommunications industry shared its views on the potential 
effectiveness of the Program Comment in the review of deployment of 
telecommunications activities. Many of their comments had previously 
been shared with FCC and Federal LMAs/PMAs over the years. However, 
industry representatives stated that they have not seen a number of 
efficiencies for deployment of telecommunication activities, 
particularly broadband, on federal lands and properties. Industry noted 
that although the Program Comment addressed a number of the comments 
previously shared with FCC, the NPAs were not helpful as they did not 
apply on federal lands and

[[Page 23821]]

properties. As such, FCC was unable to establish procedures for 
applicants.
    Industry recommended that the ACHP require all LMAs/PMAs to use the 
Program Comment to satisfy their Section 106 responsibilities, and 
avoid leaving it to the discretion of agencies. While many applicants 
have had success in working with the Federal LMAs/PMAs, they expressed 
concern that the agencies did not operate in a consistent and 
predictable manner when conducting Section 106 reviews. They also 
wanted a lead federal agency for Section 106 purposes whenever multiple 
federal agencies are involved in reviewing deployment activities.
    In addition, industry took exception to the Program Comment not 
being applicable to activities on all federal lands. They did not 
support the Program Comment excluding the review of undertakings 
occurring on or affecting National Parks, National Monuments, Trails, 
Battlefields, etc. It was recommended that the Program Comment consider 
effects to all historic properties.
    Industry also asked for clarification regarding how the Program 
Comment would apply to the FCC's Collocation NPA. As drafted, industry 
believed that the Program Comment was ambiguous and used undefined 
terms about the actions agencies and applicants would take. Industry 
concluded that the term ``records check'' as a strategy for applicants 
to identify potentially affected historic properties was unnecessarily 
broad and ambiguous. They recommended that a ``records check'' be 
limited to: Searching available records for information about: 
properties listed on or formally determined eligible for the National 
Register; properties the SHPO/THPO certifies are in the process of 
being nominated to the National Register; and properties previously 
determined eligible as part of a consensus determination of 
eligibility. Since the Program Comment did not say how a site is 
determined eligible, industry suggested that the language should be 
revised to cross reference the definition of ``records check'' when 
determinations of eligibility are made. Another comment about existing 
records stated that if carriers (applicants) had access to these 
records, they could avoid historic properties all together and 
streamline the review even further.
    Industry indicated that the Program Comment applied to a far 
broader range of collocations than those referenced in the definition 
for ``collocation of antennas on existing wireless towers.'' As such, 
they asserted that the title of Section I should be revised to align 
with the actual scope of the Program Comment. It also was recommended 
that two types of projects be deleted from the review process section 
of the Program Comment: The removal of towers or other structures 
housing wireless facilities and tower construction that occurs in 
conjunction with road maintenance projects that do not extend the area 
of previous ground disturbance. Industry stated that these projects 
would typically be considered to have ``no adverse effect'' to historic 
properties and thus should be categorically exempted. Likewise, it was 
recommended that tower replacement and new towers will not adversely 
affect historic properties and should be categorically exempted as 
well.
    Industry recommended that if project applications were not approved 
or rejected in 180 days, or 90 days for collocations, they should be 
deemed approved. Industry also recommended that the Program Comment 
include rules governing application denials. Concerns about timing were 
expressed with a recommendation that the Program Comment needed strict 
time limits for consulting parties' review. Further, industry suggested 
that federal LMAs/PMAs should be required to provide review status 
updates to applicants. Additionally, they recommend that any fees 
charged for implementing the Program Comment should be public 
information and standardized.
    Industry stated that the Program Comment did not explain why 
facilities under streamlined review are limited to those located in 
rights-of-way. They asserted that there was no basis to limit this 
efficiency, particularly in remote areas where coverage and rights-of-
way may be farther apart and where providing broadband service may 
require deployment of facilities outside of the rights-of-way.

III. Response to Public Comments From Stakeholders

    The comments and recommendations submitted by commenters were 
comprehensive. In order to adjudicate the comments, the ACHP reviewed 
and organized them into the following categories: Applicability of the 
Program Comment; relationship to the FCC NPAs; Federal LMA/PMA Section 
110 responsibilities; definitions; roles and responsibilities; 
identification and eligibility of historic properties; effect findings; 
and time limits and transparency.
    Concerns were expressed by representatives from each of the 
stakeholders that the applicability of the Program Comment was not 
clear and that its scope did not go far enough. In response, the 
Program Comment now clarifies that it can apply to communications 
undertakings located on federal lands and properties, or funded through 
loans and grants to private parties whose undertakings will involve 
public lands or properties. The Program Comment also clarifies that 
other federal agencies can use the Program Comment if they notify the 
ACHP of their intent to do so and upon receipt of ACHP's acknowledgment 
in response. Section XVIII was revised to clarify that the ACHP will 
acknowledge such notifications within 30-days and post them on its Web 
site. Other federal agencies do not need to be notified. The Program 
Comment was revised to exclude National Historic Landmarks or the 
portion thereof that is located on federal land. Because of the 
national significance of these historic properties, they would benefit 
from undertakings going through the standard Section 106 review process 
in consultation with diverse consulting parties. Furthermore, the 
exemptions outlined in Sections VI to XI would not apply to 
undertakings affecting these federally owned historic properties. 
Expansion of this list of excluded properties would require further 
identification and evaluation of other types of nationally significant 
properties by the Federal LMAs/PMAs.
    Some commenters were unclear about how the Program Comment will use 
the efficiencies set forth in the FCC's NPAs. This is now clarified in 
the Introduction Section of the Program Comment. The NPAs have 
expedited tower siting and collocations on private properties due in 
large measure to the exemptions they include and other review 
efficiencies. Should FCC pursue future amendments to the NPAs similar 
to the 2016 amendment to the collocation NPA, which addresses small 
telecommunications towers and the distributed antennae system, the 
Program Comment may need to be amended. Any potential amendment to the 
Program Comment would be discussed with the Federal LMAs/PMAs and other 
consulting parties under the Section XVII, Reporting, and Section 
XVIII, Amendment.
    Some commenters noted that the Program Comment deviated from the 
process set forth in the Section 106 regulations. This is true, because 
the purpose of a Program Comment is to provide an alternative method 
for complying with Section 106 in lieu of the standard process. It does 
not alter the statutory requirements of Section 106 (to ``take into 
account'' and ``afford the ACHP a reasonable opportunity to comment''), 
nor does it modify federal agency stewardship responsibilities as

[[Page 23822]]

set out in Section 110(a) of the NHPA. It does not relieve the Federal 
LMAs/PMAs and other agencies of the responsibility to complete Section 
110(a) surveys, as appropriate. Likewise, the records check requirement 
in Section IV of the Program Comment does not alter any Section 110 
responsibilities as they relate to identification and evaluation of 
historic properties. As to the comment that this Program Comment 
violates the letter and spirit of the NHPA, the ACHP disagrees. The 
purpose of a Program Comment is to provide an alternate method for 
complying with Section 106, in lieu of the standard process.
    The definitions in Section III prompted widespread concerns among 
the commenters and numerous recommendations for revisions. Many of the 
stakeholders found the definitions to be vague and ambiguous, and too 
narrowly focused. All of the definitions have been fact checked again. 
Since many reference or are found in the ACHP's regulations, they 
cannot be modified. Minor revisions to the language have been made to 
other definitions as appropriate for clarity. For example, the term 
``undisturbed soils'' is now defined to make it clear how this concept 
should be applied, and the definition of ``right-of-way'' has been 
clarified to include the types of rights-of-way that are specifically 
addressed in the Program Comment.
    The majority of comments regarding the identification and 
evaluation of historic properties were submitted by SHPOs, THPOs, and 
Indian tribes. Serious concerns were expressed about the use of the 
term ``records check.'' The concept was revised to clarify what should 
be searched and how to determine if historic properties were known to 
exist within the APE. In those instances where the records check 
reveals no information on the presence of properties within the APE, 
the Federal LMA/PMA shall have a qualified professional consult further 
with the SHPO, THPO, Indian tribes, or NHO to determine if there are 
areas within the APE with a high probability of containing National 
Register eligible properties. If so, the area will be avoided. If it 
cannot be avoided, the Federal LMA/PMA will determine whether a survey 
or monitoring program is appropriate. Thus, the process has now been 
further detailed to address the concerns received. The Program Comment 
includes other criteria that can be applied by the Federal LMA/PMA to 
proposed undertakings to exempt them from further Section 106 review 
when clearly articulated circumstances exist. Applicants would follow 
these procedures and document for the Federal LMA/PMA the proposed 
determination of effect for their approval. Section II was added to 
require the Federal LMA/PMA to consider using the standard Section 106 
process for an undertaking should a dispute arise over the use of the 
Program Comment for that undertaking, and notify all consulting parties 
of its decision.
    Comments submitted about the roles and responsibilities described 
in Section IV suggested that the activities carried out by Federal 
LMAs/PMAs should also involve consultation with THPOs and Indian 
tribes, as appropriate. This Program Comment does not modify the 
federal trust responsibilities of any agency in regard to Indian 
tribes. The ACHP believes the Program Comment finds the right balance 
of consultation and streamlining for review of this category of 
undertakings. This section was also revised to clarify that when FCC 
and a Federal LMA/PMA have Section 106 responsibility for a 
communications undertaking involving private lands and federal lands 
and property, the Federal LMA/PMA shall be responsible for compliance 
with Section 106 and FCC shall have no further Section 106 
responsibility for that undertaking.
    Several SHPOs questioned the appropriateness of relying on previous 
determinations of eligibility without considering the passage of time. 
The Program Comment was revised to clarify a time limit for previous 
determinations of non-eligibility in order to utilize the stated 
efficiency. Several commenters expressed concerns that the Program 
Comment focused exclusively on visual effects. Section XIV, 
Unanticipated Discoveries, was revised to include language clarifying 
that unanticipated effects include cumulative, atmospheric, and audible 
effects. This allows consulting parties to notify the Federal LMAs/PMAs 
of activities that should not be exempted or conditionally exempted 
under Sections VI to XI.
    Concerns were expressed that the Program Comment did not specify 
timelines or the rules governing denial of applications for 
communications deployment. It was also suggested that time limits be 
attached to approving or rejecting applications. Section IV was revised 
to clarify that Federal LMAs/PMAs, SHPOs, THPOs, Indian tribes, and 
NHOs should carry out their Section 106 responsibilities consistent 
with the Section 106 regulations and the FCC NPAs. Section II explains 
that Federal LMAs/PMAs will review disputes and consider the 
feasibility of adhering to the standard Section 106 process in lieu of 
applying the Program Comment for a particular undertaking. The issue of 
fees is not addressed in the Program Comment as this is a question that 
will be decided by Federal LMAs/PMAs and FCC, as appropriate.
    The Program Comment will be monitored by consulting parties on a 
regular basis, and the ACHP will evaluate the effectiveness of the 
Program Comment in consultation with the Federal LMAs/PMAs and other 
consulting parties as part of the annual reporting process. Likewise, 
the ACHP will convene a follow up meeting in December 2018 to reexamine 
the Program Comment's use and implementation to determine whether any 
amendments are necessary to continue deploying communications projects 
without procedural delays.

IV. Final Text of the Program Comment

    The following is the text of the Program Comment as issued by the 
ACHP:

Program Comment for Communications Projects on Federal Lands and 
Property

    Section 106 of the National Historic Preservation Act (NHPA), 54 
U.S.C. 306108 (Section 106), requires federal agencies to ``take into 
account'' the effects of their undertakings on historic properties and 
to provide the Advisory Council on Historic Preservation (ACHP) a 
reasonable opportunity to comment with regard to such undertakings. The 
ACHP has issued regulations that set forth the process through which 
federal agencies comply with these duties. Those regulations are 
codified under 36 CFR part 800 (Section 106 regulations).
    Under section 800.14(e) of those regulations, agencies can request 
the ACHP to provide a ``Program Comment'' on a particular category of 
undertakings in lieu of conducting separate reviews of each individual 
undertaking under such category, as set forth in 36 CFR 800.3 through 
800.7. Federal Land Managing Agencies (LMAs) and Federal Property 
Managing Agencies (PMAs) can meet their Section 106 responsibilities 
with regard to the effects of particular undertakings by taking into 
account this Program Comment and following the steps set forth therein.

I. Introduction

    The purpose of issuing this Program Comment is to assist Federal 
LMAs/PMAs in permitting and approving the deployment of next generation 
technologies of communications infrastructure, e.g. 5G, more 
efficiently. This Program Comment establishes uniform procedures for 
addressing

[[Page 23823]]

Section 106 compliance for the collocation of antennae on existing 
communications towers, including the mounting or installation of an 
antenna on an existing tower, building, or structure; installation of 
aerial communications cable; burying communications cable in existing 
road, railroad, and utility rights-of-way (ROW); construction of new 
communication towers (facilities), and removal of obsolete 
communications equipment and towers (hereinafter, communication 
deployment undertakings). These undertakings would typically not result 
in adverse effects to historic properties. Federal LMAs/PMAs may elect 
to follow the efficiencies set forth in this Program Comment in lieu of 
the procedures in 36 CFR 800.3 through 800.7 for individual 
undertakings falling within its scope. Public involvement remains a 
critical aspect of the Section 106 process; therefore, it is the 
responsibility of the Federal LMAs/PMAs to determine their method for 
public engagement based on the agency's established protocols for their 
communications programs. In addition, for the purpose of this Program 
Comment, Federal LMAs/PMAs are encouraged to identify a single point of 
contact and a Lead Federal Agency for the purpose of carrying out 
Section 106 reviews when communications projects involve multiple 
federal agencies.
    This Program Comment builds upon the precedent of two Nationwide 
Programmatic Agreements (NPAs) for wireless communications projects 
executed in 2001 and 2004, respectively, among the Federal 
Communications Commission (FCC), the ACHP, and the National Conference 
of State Historic Preservation Officers (NCSHPO). These NPAs have been 
successful in establishing efficiencies in the Section 106 review of 
tower construction and collocations, approaches which the Federal LMAs/
PMAs are interested in following for their communications activities, 
including broadband deployment. The FCC NPAs apply on private lands 
where an applicant must obtain licenses or registrations. However, when 
an applicant deploys communications projects that involve private and 
federal lands, FCC and the applicant or licensee may coordinate with 
the Federal LMAs/PMAs to apply the terms of the NPAs as well as the 
provisions in this Program Comment.
    Many State Historic Preservation Officers (SHPOs), Tribal Historic 
Preservation Officers (THPOs), Indian tribes, and Native Hawaiian 
organizations (NHOs) have been accustomed to reviewing applications for 
wireless communications facilities under the terms of the NPAs. As 
such, the NPAs were expanded to cover communications activities funded 
under the American Recovery and Reinvestment Act of 2009, through the 
ACHP's issuance of a Program Comment for the Broadband Initiatives 
Program and the Broadband Technology Opportunities Program. The 2009 
Program Comment allows the U.S. Department of Agriculture, Rural 
Utilities Service; the U.S. Department of Commerce, National 
Telecommunications and Information Administration; and the U.S. 
Department of Homeland Security, Federal Emergency Management Agency, 
to rely on the FCC's review of tower and collocation undertakings under 
the NPAs, thereby eliminating duplicative reviews for undertakings 
subject to FCC licensing or registration. In 2015, the ACHP extended 
the Broadband Program Comment for an additional 20 years and expanded 
it to allow additional agencies that fund communication facilities, 
including the Department of Homeland Security (DHS) and it components, 
Federal Railroad Administration (FRA), Federal Transit Administration 
(FTA), and FirstNet, to utilize its terms to comply with Section 106 
for those undertakings.
    Since the FCC NPAs do not apply on federal lands, Federal LMAs/PMAs 
can benefit from the use of this Program Comment for the deployment of 
communications infrastructure and facilities. The recommendation for 
developing such a program alternative on federal lands derived from the 
implementation of Executive Order 13616, Accelerating Broadband 
Infrastructure Deployment (77 FR 36903, June 20, 2012). Once Executive 
Order 13616 was issued, a Federal Property Working Group (Working 
Group) was established to expedite reviews and implement efficiencies 
for the deployment of broadband infrastructure on federal property. 
Subsequently the Broadband Opportunity Council (BOC) was established to 
produce specific recommendations to increase broadband deployment, 
competition, and adoption through actions within the scope of existing 
agency programs, missions, and budgets. The efforts of the BOC aligned 
with those of the Working Group, reaffirming the commitment to 
implement activities and policies that support increased broadband 
deployment, particularly in rural and underserved communities. Finally, 
the importance of broadband infrastructure deployment was reaffirmed 
with the issuance of Executive Order 13766, Expediting Environmental 
Reviews and Approvals for High Priority Infrastructure Projects (82 FR 
8657, January 30, 2017). This Executive Order requires infrastructure 
decisions to be accomplished with maximum efficiency and effectiveness, 
while also respecting property rights and protecting public safety. 
Further, all infrastructure projects, especially projects that are high 
priority for the nation, such as improving U.S. electric grids and 
telecommunications systems and repairing and upgrading critical port 
facilities, airports, pipelines, bridges, and highways are the focus of 
this executive order.
    This Program Comment provides an alternate method for the Federal 
LMAs/PMAs to meet their Section 106 responsibilities in a flexible 
manner for communications undertakings. It does not modify the 
responsibilities of Federal LMAs/PMAs to comply with Section 110(a) of 
the NHPA. Nor does it relieve Federal LMAs/PMAs and other federal 
agencies who utilize the Program Comment from completing Section 110(a) 
surveys when they are appropriate on federal lands.

II. Applicability

    This Program Comment applies to communication deployment 
undertakings that are carried out, permitted, licensed, funded, or 
assisted by the following LMAs: The U.S. Department of Agriculture's 
(USDA) U.S. Forest Service (USFS); the Department of the Interior's 
(DOI) National Park Service (NPS), Bureau of Land Management (BLM), 
Fish and Wildlife Service (FWS), and Bureau of Indian Affairs (BIA); 
and the following PMAs: The Department of Homeland Security and its 
components, Department of Commerce; Department of Veterans Affairs; and 
the General Services Administration. Other federal agencies responsible 
for carrying out, permitting, licensing, funding, or assisting in the 
deployment of communications activities, such as FCC and the USDA Rural 
Utilities Service (RUS), may utilize this Program Comment to satisfy 
their Section 106 responsibilities on federal lands after completing 
the process set forth in Section XVIII.B. below.
    Federal LMAs/PMAs may have existing procedures in place, such as a 
Memorandum of Understanding with a SHPO, THPO, Indian tribe, or NHO to 
coordinate consultation or to expedite Section 106 reviews, or a 
program alternative developed pursuant to 36 CFR 800.14 that addresses 
agency

[[Page 23824]]

compliance with Section 106 for certain types of undertakings. If such 
procedures exist, the Federal LMAs/PMAs may coordinate with the 
signatories of those agreements or program alternatives to determine 
whether applying the terms of this Program Comment can substitute for 
those procedures.
    This Program Comment is not applicable to undertakings proposed to 
be carried out, permitted, licensed, funded, or assisted by any federal 
agency that would occur on or affect the following federally owned 
lands: National Historic Landmarks (or the portion thereof that is 
located on federal land), National Monuments, National Memorials, 
National Historical Parks, National Historic Trails, National Historic 
Sites, National Military Parks, and National Battlefields. Should 
federal agencies or applicants want to deploy communications facilities 
that will affect these properties, the responsible federal agency must 
follow the standard Section 106 process under 36 CFR 800.3 through 
800.7 (or another applicable Program Alternative under 36 CFR 800.14) 
for the review of such undertakings in consultation with the applicant, 
SHPO/THPO, Indian tribes, NHOs, and other consulting parties.
    This Program Comment is not applicable to undertakings proposed to 
be carried out, licensed, permitted, or assisted by any federal agency 
that would occur on or affect historic properties located on tribal 
lands without the prior, written agreement between that Indian tribe 
and the federal agency, and notification by the relevant Federal LMA/
PMA to the ACHP, NCSHPO, and NATHPO.
    Should a dispute arise over applicability of this Program Comment, 
or its use for any particular undertaking, the Federal LMA/PMA will 
resolve the dispute and should consider following the standard Section 
106 process under 36 CFR 800.3-800.7. The Federal LMA/PMA shall notify 
all consulting parties regarding its preferred approach to complying 
with Section 106 for a communications undertaking that is the subject 
of a dispute.

III. Definition of terms

    A. Agency Official--It is the statutory obligation of the federal 
agency to fulfill the requirements of Section 106 and to ensure that an 
agency official with jurisdiction over an undertaking takes legal and 
financial responsibility for Section 106 compliance in accordance with 
36 CFR part 800. The agency official has approval authority for the 
undertaking and can commit the federal agency to take appropriate 
action for a specific undertaking as a result of Section 106 
compliance. The agency official may be a state, local, or tribal 
government official who has been delegated legal responsibility for 
compliance with Section 106 in accordance with federal law.
    B. Antenna--An apparatus designed for the purpose of emitting radio 
frequency radiation, to be operated or operating from a fixed location, 
for the transmission of writing, signs, signals, data, images, 
pictures, and sounds of all kinds, including the transmitting device 
and any on-site equipment, switches, wiring, cabling, power sources, 
shelters or cabinets associated with that antenna and added to a tower, 
structure, or building as part of the original installation of the 
antenna.
    C. Applicant--The party submitting an application for 
communications permitting, licensing, or lease on federally managed 
lands or federally managed property.
    D. Area of Potential Effects (APE)--The geographic area or areas 
within which an undertaking may directly or indirectly cause 
alterations in the character or use of historic properties, if any such 
properties exist. The APE is influenced by the scale and nature of an 
undertaking and may be different for different kinds of effects caused 
by the undertaking (source: 36 CFR 800.16(d)). For purposes of this 
Program Comment the APE includes the ROW, access routes, and staging 
areas as defined below.
    E. Collocation--The communications industry's term for the 
construction of a new antenna or tower, or the mounting or installation 
of an antenna on an existing tower, building, or structure, for the 
purpose of transmitting and/or receiving radio frequency signals for 
communications purposes. It includes any fencing, equipment, switches, 
wiring, cabling, power sources, shelters, or cabinets associated with 
that antenna or tower.
    F. Consulting Parties--The parties with whom federal agencies 
consult in the Section 106 process. Consulting parties ``by right'' are 
those parties a federal agency must invite to consult and include the 
ACHP, and the relevant SHPO; THPO; Indian tribes, including Alaskan 
Native villages, Regional Corporations, or Village Corporations; and 
NHOs; representatives of local governments; and applicants for federal 
assistance, permits, license and other approvals. ``Certain individuals 
and organizations with a demonstrated interest in the undertaking'' 
may, at the discretion of the relevant agency, also participate as 
consulting parties ``due to their legal or economic relation to the 
undertaking or affected properties, or their concern with the 
undertaking's effects on historic properties'' (source: 36 CFR 
800.2(c)).
    G. Effect and Adverse Effect--``Effect means alteration to the 
characteristics of a historic property qualifying it for inclusion in 
or eligibility for the National Register of Historic Places'' (source: 
36 CFR 800.16(i)). ``An adverse effect is found when an undertaking may 
alter, directly or indirectly, any of the characteristics of a historic 
property that qualify the property for inclusion in the National 
Register in a manner that would diminish the integrity of the 
property's location, design, setting, materials, workmanship, feeling, 
or association'' (source: 36 CFR 800.5(a)(1)).
    H. Facility--Means the secured area including the building, tower, 
and related incidental structures or improvements, located on federal 
land.
    I. Ground Disturbance--Any activity that moves, compacts, alters, 
displaces, or penetrates the ground surface of previously undisturbed 
soils. ``Undisturbed soils'' refers to soils that possess significant 
intact and distinct natural soil horizons. Previously undisturbed soils 
may occur below the depth of disturbed soils.
    J. Historic Property--Any prehistoric or historic district, site, 
building, structure, or object included in, or eligible for inclusion 
in, the National Register maintained by the Secretary of the Interior. 
This term includes artifacts, records, and remains that are related to 
and located within such properties. The term includes traditional 
cultural properties (TCPs) and properties of traditional religious and 
cultural significance to an Indian tribe, Alaskan Native village, 
Regional Corporation or Village Corporation, or NHO that meet the 
National Register criteria (source: 36 CFR 800.16(l)(1)).
    K. Indian Tribe--An Indian tribe, band, nation, or other organized 
group or community, which is recognized as eligible for the special 
programs and services provided by the United States to Indians because 
of their status as Indians. It includes a Native village, Regional 
Corporation, or Village Corporation, as those terms are defined in 
section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602).
    L. Property Managing Agency--Executive branch agencies and 
independent agencies that have authority to hold smaller swaths of land 
to support facilities that are necessary to the agency's mission and 
vision.
    M. Land Managing Agency--Executive branch agencies that have the 
authority to hold broad swaths of land

[[Page 23825]]

for the agency's mission and other particular purposes such as 
management and administration of activities undertaken to support the 
agency.
    N. Tribal Lands--Defined in 36 CFR 800.16(x) as including ``all 
lands within the exterior boundaries of any Indian reservation and all 
dependent Indian communities.''
    O. Pole--A pole is a non-tower structure that can hold utility, 
communications, and related transmission lines.
    P. Right of Way--An easement, lease, permit, or license to occupy, 
use, or traverse public lands (source: Federal Land Policy and 
Management Act of 1976, As Amended 2001, Title V). For the purposes of 
this Program Comment, ROW includes a construction, maintenance, road, 
railroad, or utility ROW.
    Q. Records Check--For the purpose of this Program Comment, a 
``Records Check'' means searching SHPO/THPO, tribal, and relevant 
federal agency files, records, inventories and databases, or other 
sources identified by the SHPO/THPO, for any information about whether 
the following kinds of properties are known to exist within the APE: 
Properties listed on or formally determined eligible for the National 
Register; Properties that the SHPO/THPO certifies are in the process of 
being nominated to the National Register; Properties previously 
determined eligible as part of a consensus determination of eligibility 
between the SHPO/THPO and a federal agency or local government 
representing the Department of Housing and Urban Development; 
Properties listed and identified in the SHPO/THPO Inventory that the 
SHPO/THPO has previously evaluated and found to meet the National 
Register criteria; and Properties in their files that the SHPO/THPO 
considers eligible.
    R. Staging Area--For the purpose of this Program Comment, a staging 
area is an area designated for short term use, not to exceed the 
duration of the project, and is often used for storing and assembling 
building materials equipment, and machinery, and for parking vehicles, 
temporary mobile offices, and staging area entrance/exit.
    S. Substantial Increase in Size--This occurs when there is an 
existing antenna on a tower and:
    1. Mounting of the proposed additional or replacement antenna would 
result in an increase of the existing height of the tower by more than 
10 percent, or by the height of one additional antenna array with 
separation from the nearest existing antenna not to exceed 20 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 antennae; or
    2. Mounting of the proposed additional or replacement 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. Mounting of the proposed additional or replacement antenna would 
involve adding an appurtenance to the body of the tower that would 
protrude from the edge of the tower more than 20 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.
    T. Native Hawaiian Organizations--Defined as ``any organization 
which serves or represents the interests of Native Hawaiians; has as a 
primary and stated purpose the provision of services to Native 
Hawaiians; and has demonstrated expertise in aspects of historic 
preservation that are significant to Native Hawaiians'' (source: 36 CFR 
800.16(s)(1)). ``Native Hawaiian'' means any ``individual who is a 
descendant of the aboriginal people who, prior to 1778, occupied and 
exercised sovereignty in the area that now constitutes the state of 
Hawaii'' (source: 36 CFR 800.16(s)(2)).
    U. State Historic Preservation Officer--The state official 
appointed or designated pursuant to Section 101(b)(1) of the NHPA to 
administer the state historic preservation program or a designated 
representative.
    V. Tribal Historic Preservation Officer--The tribal official 
appointed by the tribe's chief governing authority or designated by a 
tribal ordinance who has assumed the responsibilities of the SHPO for 
purposes of Section 106 compliance on tribal lands in accordance with 
Section 101(d)(2) of the NHPA.
    W. Tower--Any structure built for the sole or primary purpose of 
supporting antennae, including the on-site fencing, equipment, 
switches, wiring, cabling, power sources, shelters, or cabinets 
associated with that tower, but not installed as part of an antenna as 
defined herein (source: Nationwide Programmatic Agreement for Review of 
Effects on Historic Properties for Certain Undertakings Approved by the 
Federal Communications Commission, September 2004).

IV. Roles and Responsibilities for Section 106 Review of Communication 
Deployment Undertakings

    A. For each proposed undertaking subject to this Program Comment, 
the Federal LMAs/PMAs shall:
    1. Consult with the SHPO/THPO, Indian tribes, or NHO to confirm the 
APE for each individual undertaking and provide notification to the 
appropriate SHPO/THPO, Indian tribes, or NHO of intent to follow this 
Program Comment. See Sections IX, X, and XI of this Program Comment 
regarding the determination of APEs for installation of buried 
communications cable, communications tower replacement, and new 
communications tower construction.
    2. Identify known eligible or listed historic properties within the 
relevant APE that may be affected by the proposed communications 
undertaking by completing a Records Check. If a Records Check reveals 
no information on the presence of historic properties within the APE, 
the qualified professional (see Section XIII below) will consult with 
the SHPO/THPO, Indian tribes, or NHO to determine whether, based on 
professional expertise, familiarity with the area, and similar 
geomorphology elsewhere, the APE includes areas that have a high 
probability of containing National Register-eligible properties. If so, 
those areas within the APE will be avoided and the Federal LMA/PMA 
shall have no further Section 106 responsibility for the undertaking. 
If they cannot be avoided, the Federal LMA/PMA and applicant will 
consult with the SHPO/THPO, Indian tribes, or NHO to determine whether 
a survey or monitoring program should be carried out to identify 
historic properties, and to determine if any of the conditional 
exemptions listed in Sections VI-XI apply.
    3. Consider whether any of the below criteria apply to a proposed 
undertaking and if so, notify consulting parties that no further 
Section 106 review will be required for any undertaking subject to this 
Program Comment that is proposed to occur within an APE:
    a. That has been previously field surveyed (acceptable to current 
state standards or within the past 10 years) and there are no known 
historic properties located within the APE whose National Register 
qualifying characteristics would be adversely affected; or
    b. that has been previously disturbed to the extent and depth where 
the

[[Page 23826]]

probability of finding intact historic properties is low; or
    c. that is not considered to have a high probability for historic 
properties by qualified professionals and based on professional 
expertise, familiarity with the area, and similar geomorphology 
elsewhere.
    If none of these criteria apply to the undertaking, proceed to 
consider whether the conditional exemptions listed in Sections VI-XI 
are applicable.
    4. Use existing agency procedures for implementation of this 
Program Comment which may include procedures for delegation of 
authority to the applicant, as appropriate.
    5. Use qualified professionals for the disciplines under review in 
accordance with Section 110 of the NHPA and Section XIII of this 
Program Comment.
    6. Document use of this Program Comment in the Section 106 review, 
and how it reached its decisions about the scope and level of effort 
for any historic property identification, for the undertaking's 
administrative record.
    7. Where a Lead Federal Agency has been designated, and the Lead 
Federal Agency is in compliance with its responsibilities under this 
Program Comment, the other non-lead Federal LMAs/PMAs responsible for 
the subject undertaking shall also be deemed to be in compliance with 
Section 106 under this Program Comment.
    B. The Applicant, on behalf of the Federal LMA/PMA, shall:
    1. Notify the Federal LMA/PMA of its proposed application or 
request for assistance at the earliest possible opportunity in project 
planning.
    2. Carry out and comply with the procedures for any delegation of 
authority to the applicant if established by the Federal LMA/PMA.
    3. Assist the Federal LMA/PMA to determine the APE in consultation 
with the SHPO/THPO, Indian tribes, and NHO.
    4. Conduct a Records Check to identify known historic properties 
within the APE, when requested by the Federal LMA/PMA.
    5. Notify the Federal LMA/PMA if the undertaking is not proposed to 
be located within or immediately adjacent to a known historic property.
    6. Document the recommended determination of effect to historic 
properties for and subject to the Federal LMA/PMA's approval when 
requested by the Federal LMA/PMA.
    7. Where appropriate to avoid adverse effects to historic 
properties, ensure the site avoidance plan has been approved by the 
Federal LMA/PMA and SHPO/THPO, Indian tribes, and NHO. In addition 
avoidance areas should be clearly marked during staging and 
construction activities, so construction crews are properly notified.
    C. The Federal LMAs/PMAs, SHPOs, THPOs, Indian tribes, and NHOs 
shall carry out their Section 106 responsibilities in a timely manner 
and adhere to the timeframes outlined in the FCC NPAs or 36 CFR 800.3 
to 800.7. This will avoid delays in the deployment of communications 
undertakings on federal lands and property.
    D. Where FCC has Section 106 responsibility over a proposed 
communication deployment undertaking that also requires a license, 
permit, approval, or assistance from a Federal LMA/PMA, the Federal 
LMA/PMA shall be responsible for the Section 106 compliance for that 
undertaking and may utilize the terms of this Program Comment, 
including any applicable exemptions. FCC shall have no further Section 
106 responsibilities for that undertaking.

V. Project Planning Considerations

    A. The Applicant shall coordinate early with the Federal LMA/PMA 
regarding project planning activities. In the event the Applicant 
proposes a public-private project, the carrier, tower company, or 
others who may be recognized as the Applicant shall involve the Federal 
LMA/PMA in pre-application meetings to (1) decide whether this Program 
Comment will be used; (2) consider the scope of work for the 
identification of historic properties; (3) discuss protocols for 
consulting with Indian tribes or NHOs; and (4) discuss alternatives and 
alternative routes for the undertaking.
    B. Noninvasive techniques are encouraged for identification and 
evaluation of all property types, if feasible, and for testing, 
including geotechnical testing, at archaeological sites, TCPs, and 
other sites important to Indian tribes.
    C. Siting projects in previously disturbed areas is encouraged.

VI. Collocation of Communications Antennae

    A. A Federal LMA/PMA may elect to use applicable exclusions 
established in the Nationwide Programmatic Agreement for the 
Collocation of Wireless Antennas, as amended August 2016.
    B. A tower collocation requires no further Section 106 review so 
long as:
    1. It will not result in a substantial increase \1\ in size of the 
existing tower; and
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    \1\ Refer to Definition of Terms for substantial increase in 
size for the purposes of this Program Comment.
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    2. There are no Section 106 requirements in an existing special use 
permit, easement, or communications use lease for that site.
    C. Collocations on non-tower structures on federal land require no 
further Section 106 review so long as one of the following conditions 
apply to the undertaking:
    1. The structure is less than 45 years old; or
    2. If more than 45 years old, the structure has been previously 
evaluated and determined not eligible for listing on the National 
Register; and
    a. The structure is not adjacent to or within the boundary of a 
National Register-listed or previously determined eligible historic 
district; and
    b. The structure is not designated as a National Historic Landmark 
or State Historic Landmark; and
    c. Indian tribes or NHOs have not indicated there are known 
historic properties of traditional religious and cultural significance 
within the APE and there will be no cumulative effects to such historic 
properties.

VII. Above-Ground Communications Connections to and Collocations on 
Federal Buildings and Buildings Located on Federal Land

    A. A Federal LMA/PMA may elect to use applicable exclusions 
established in the Nationwide Programmatic Agreement for the 
Collocation of Wireless Antennas, as amended August 2016, for 
collocations on federal buildings and non-federal buildings located on 
federal lands.
    B. Communications connections to buildings that have been 
determined not eligible for listing on the National Register via a 
previous Section 106 consultation completed in the past 15 years 
require no further Section 106 review.
    C. Communications connections to and collocations on buildings 
listed in or eligible for listing in the National Register require no 
further Section 106 review, so long as:
    1. All construction complies with the Secretary of the Interior's 
Standards for Rehabilitation; for example, when a new building entry is 
required because no entry points exist; and
    a. Communications connections and collocations are placed on 
buildings behind parapets or the roof's edge in such a manner so that 
the connections

[[Page 23827]]

and collocations are not visible from ground level; and existing 
communications or utility entry points and infrastructure are used to 
the greatest extent feasible, in and on the historic building; or
    b. If existing communications or utility entry points and 
infrastructure cannot be used for the subject collocation, any 
additional entry points and infrastructure required in or on the 
historic building are installed in such a way as to minimize adverse 
effects to historic materials.

VIII. Placement of Above-Ground Communications and Cable Lines on 
Existing Poles or Structures

    A. The placement of above-ground communications and cable lines on 
existing poles or structures requires no further Section 106 review, as 
long as:
    1. No new structures or poles need to be added to accommodate the 
new lines; and
    2. The structure or pole is not a historic property and does not 
contribute to the significance of a historic district.
    B. When replacement of structures or poles is planned, the 
undertaking requires no further Section 106 review, as long as:
    1. The replacement structures or poles can be located within the 
same hole as the original structure and there is no new ground 
disturbance outside of previously disturbed areas associated with 
temporary support of the lines; and
    2. The replacement structures or poles are within an existing ROW 
or easement which has been surveyed; and
    3. The replacement structures or poles are consistent with the 
quality and appearance of the originals; and
    4. Any proposed height increase of the replacement structures or 
poles is no more than 10 percent of the height of the originals; and
    5. The original pole or structure is not a historic property and 
does not contribute to a historic district.
    C. When infill structures or poles need to be added along an extant 
line, the undertaking requires no further Section 106 review, as long 
as:
    1. The addition of new structures or poles within existing ROWs or 
corridors is not proposed within the boundary of a known historic 
property as identified by the Federal LMA/PMA; and
    2. The additional structures or pole(s) are 100 feet or more beyond 
the boundary of any National Register listed or previously determined 
eligible historic districts significant for their visual setting; and
    3. The additions are of generally consistent quality and appearance 
with the originals; and
    4. The height of any added structure or pole is no greater than 10 
percent taller than the height of the originals.

IX. Installation of Buried Communications Cable on Federally Managed 
Lands

    A. The APE for installation of buried cable will be the width of 
the construction ROW plus any additional areas for staging or access.
    B. The installation and maintenance of new or replacement 
communications cable and new or replacement associated vaults for cable 
access along or solely in previously disturbed areas or in existing 
communications or utilities trenches within existing road, railroad, 
and utility ROWs requires no further Section 106 review.
    C. The installation of new or replacement vaults for cable access 
that are outside of existing road, railroad, and utility ROWs but 
located solely in previously disturbed soils requires no further 
Section 106 review so long as there are no known historic properties 
within the APE for the vaults.
    D. The installation of new or replacement buried communication 
connections from road, railroad, and utility ROWs or vaults to a 
facility requires no further Section 106 review, so long as:
    1. There are no known historic properties within the APE for the 
connection; or
    2. The new or replacement communication connections are solely 
buried in previously disturbed existing rights-of-way up to the 
existing facility or building or to an overhead line that connects to 
the facility or building.
    E. If the road, railroad, and/or utility ROW, or nearby previously 
disturbed area, or the area from the ROW to the individual user 
includes a known archaeological site(s), the undertaking requires no 
further Section 106 review so long as the depth and extent of the 
property's intact and undisturbed deposits within the APE can be 
predicted with relative certainty such that the cable can be 
directionally bored below the site(s).

X. Communications Tower Replacement

    A. For the purpose of this section, the APE for direct effects for 
a tower, compound, and associated construction is the area of potential 
ground disturbance, any areas for staging or access, and any property, 
or any portion thereof that will be physically altered or destroyed by 
the undertaking (source: 2004 NPA, as amended).
    B. For the purpose of this section, the APE for indirect visual 
effects is the geographic area in which the undertaking has the 
potential to introduce visual elements that diminish or alter the 
integrity (source: 2004 NPA, as amended).
    1. Unless otherwise established, or previously established through 
consultation and agreement between the Federal LMA/PMA and SHPO/THPO, 
Indian tribes, and NHO the APE for visual effects for construction of 
new facilities or structures is the area from which the tower will be 
visible:
    a. Within a 0.5 mile radius from the tower site if the proposed 
tower is 200 feet or less in overall height;
    b. Within a 0.75 mile radius from the tower site if the proposed 
tower is more than 200 but no more than 400 feet in overall height; or
    c. Within a 1.5 mile radius from the proposed tower site if the 
proposed tower is more than 400 feet in overall height.
    2. These distances are a guideline that can be altered based on an 
otherwise established agreement and on individual circumstances 
addressed during consultation with the SHPO/THPO, Indian tribes, and 
NHO and consulting parties.
    C. Replacement of a tower within an existing facility boundary that 
was previously reviewed pursuant to Section 106, and mitigated as 
necessary, requires no further Section 106 review so long as:
    1. The proposed replacement tower does not represent a substantial 
increase \2\ in size relative to the existing tower; and
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    \2\ Refer to Definition of Terms for substantial increase in 
size for the purposes of this Program Comment.
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    2. The installation of the proposed replacement tower does not 
involve ground disturbance outside the facility's boundary; and
    3. No new mitigation is required to address reasonably foreseeable 
cumulative effects.

XI. New Communications Tower Construction

    A. For the purpose of this section, the direct APE for a tower, 
compound, and associated construction (staging area, access roads, 
utility lines, etc.) is the area of potential ground disturbance and 
any property, or any portion thereof, which would be physically altered 
or destroyed by the undertaking.
    B. For the purpose of this section, the indirect APE for visual 
effects is the

[[Page 23828]]

geographic area in which the undertaking has the potential to introduce 
visual elements that diminish or alter the integrity of a historic 
property, including the landscape.
    1. Unless otherwise established, or previously established through 
consultation and agreement between the Federal LMA/PMA and SHPO/THPO, 
Indian tribes, and NHO the APE for visual effects for the construction 
of a new tower is the area from which the tower will be visible:
    a. Within a 0.5 mile radius from the tower site if the proposed 
tower is 200 feet or less in overall height;
    b. Within a 0.75 mile radius from the tower site if the proposed 
tower is more than 200 but no more than 400 feet in overall height; or
    c. Within a 1.5 mile radius from the proposed tower site if the 
proposed tower is more than 400 feet in overall height.
    2. These distances are a guideline that can be altered based on an 
otherwise established agreement or following consultation with SHPO/
THPO, Indian tribes, and NHO and consulting parties.
    C. For the purpose of this section, new construction of up to three 
towers within an existing communications compound that has previously 
been reviewed pursuant to Section 106, and will not adversely affect 
any identified historic properties within the compound, requires no 
further Section 106 review so long as the proposed new tower is not 
substantially larger in size \3\ than the largest preexisting tower 
within the existing communications compound boundary.
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    \3\ Refer to Definition of Terms for substantial increase in 
size for the purposes of this Program Comment.
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XII. Removal of Obsolete Communications Equipment and Towers

    A. Federal LMAs/PMAs may authorize the removal of obsolete existing 
communications equipment and towers (the undertaking) and may remove 
the existing communications equipment or tower with no further Section 
106 review as long as the removal undertaking would not create an 
adverse effect to known historic properties.
    B. Should a SHPO, THPO, Indian tribe, or NHO object within 30 days 
after receiving notification that the Federal LMA/PMA proposes to 
authorize removal of obsolete communications equipment and towers, the 
Federal LMA/PMA shall comply with the requirements of 36 CFR 800.3 to 
800.7 for the proposed removal undertaking.

XIII. Professional Qualifications

    A. All tasks implemented pursuant to this Program Comment shall be 
carried out by, or under the direct supervision of, a person or 
person(s) meeting, at a minimum, the Secretary of the Interior's 
Professional Qualifications Standards (48 FR 44716, 44738-39, September 
29, 1983) in the appropriate disciplines. However, nothing in this 
section may be interpreted to preclude Federal LMAs/PMAs from using the 
properly supervised services of persons who do not meet the 
qualifications standards.
    B. These qualification requirements do not apply to individuals 
recognized by THPOs, Indian tribes and NHOs to have expertise in the 
identification, evaluation, assessment of effects, and treatment of 
effects to historic properties of religious and cultural significance 
to their tribes.

XIV. Unanticipated Discoveries

    A. If previously unidentified historic properties or unanticipated 
effects, including audible, atmospheric, and cumulative effects, to 
historic properties are discovered during project implementation, the 
contractor shall immediately halt all activity within a 50 foot radius 
of the discovery and implement interim measures to protect the 
discovery from looting and vandalism. Within 48 hours, the Federal LMA/
PMA shall notify the relevant SHPO, THPO, Indian tribe, or NHO of the 
inadvertent discovery, and determine whether a Discovery Plan is 
necessary.
    B. Native American human remains, funerary objects, sacred objects, 
or items of cultural patrimony found on federal or tribal land will be 
handled according to Section 3 of the Native American Graves Protection 
and Repatriation Act and its implementing regulations (43 CFR part 10), 
and consistent with the Discovery Plan.
    C. The Federal LMA/PMA shall ensure that in the event human 
remains, funerary objects, sacred objects, or items of cultural 
patrimony are discovered during implementation of an undertaking, all 
work within 50 feet of the discovery will cease, the area will be 
secured, and the Federal LMA/PMA's authorized official will be 
immediately contacted.
    D. The Discovery Plan for inadvertent discoveries will include the 
following provisions.
    1. Immediately halting all construction work involving subsurface 
disturbance in the area of the find and in the surrounding area where 
further subsurface finds can be reasonably expected to occur, and 
immediately notify SHPO, THPO, Indian tribes (as appropriate), and NHO 
of the find;
    2. A qualified professional will immediately inspect the site and 
determine the area and nature of the affected find. Construction work 
may then continue in the area outside the find as defined by Federal 
LMA/PMA;
    3. Within five working days of the original notification, the 
Federal LMA/PMA, in consultation with SHPO, THPO, Indian tribes, as 
appropriate, and NHO, will determine whether the find is eligible for 
the National Register;
    4. If the find is determined eligible for listing in the National 
Register, the Federal LMA/PMA will prepare a plan for its avoidance, 
protection, or recovery of information in consultation with the SHPO, 
THPO, Indian tribes, as appropriate, and NHO. Any dispute concerning 
the proposed treatment plan will be resolved by the Federal LMA/PMA.
    5. Work in the affected area will not proceed until either:
    a. The plan is implemented; or
    b. The determination is made that the unanticipated find is not 
eligible for inclusion in the National Register. Any disputes over the 
evaluation of unanticipated finds will be resolved in accordance with 
the requirements of 36 CFR 800.4(c)(2) as appropriate.

XV. Emergencies

    Should the Federal LMAs/PMAs determine that an emergency or natural 
disaster has occurred during the implementation of any communications 
deployment activities covered under this Program Comment, the Federal 
LMAs/PMAs shall notify the appropriate SHPO, THPO(s), Indian tribes, 
and NHO(s) within seven days as to how they intend to repair or replace 
the communications equipment or facilities, or undertake other relevant 
actions in response to the emergency or natural disaster. Federal LMAs/
PMAs shall ensure that any approvals, licenses, or permits issued for 
these emergency response activities refer to compliance with the terms 
of this Program Comment.

XVI. Effective Date

    This Program Comment shall go into effect on May 8, 2017.

XVII. Reporting

    A. Federal LMAs/PMAs individually will submit an annual report to 
the ACHP, NCSHPO, and NATHPO that summarizes the number of projects 
reviewed under the Program Comment within a calendar year as well as 
the number of activities that resulted in adverse effects to historic 
properties.

[[Page 23829]]

The annual report also will indicate whether any agreements regarding 
the applicability of this Program Comment on tribal lands have been 
developed in the past calendar year, and which Indian tribe(s) is a 
signatory. Annual reports will be submitted December 1 of each year, 
commencing in 2018.
    B. The ACHP shall reexamine the Program Comment's effectiveness 
based on the information provided in the annual reports submitted by 
the Federal LMAs/PMA, and by convening an annual meeting with the 
Federal LMAs/PMAs, NCSHPO, NATHPO, tribal representatives, NHOs, and 
industry representatives. In reexamining the Program Comment's 
effectiveness, the ACHP shall consider any written recommendations for 
improvement submitted by stakeholders prior to the annual meeting.

XVIII. Amendment

    A. The Chairman of the ACHP may amend this Program Comment after 
consulting with the Federal LMAs/PMAs and other relevant federal 
agencies, NCSHPO, NATHPO, tribal representatives, the National Trust 
for Historic Preservation, and industry representatives, as 
appropriate. The ACHP will publish a notice in the Federal Register 
informing the public of any amendments that are made to the Program 
Comment.
    B. Should other federal agencies that propose to carry out, permit, 
license, fund, or assist in communications activities intend to utilize 
this Program Comment to satisfy their Section 106 responsibilities on 
federal lands, they must first notify the ACHP in writing of their 
intention. The ACHP will acknowledge in writing the agency's 
notification within 30 days following receipt of a request, and will 
put an announcement on its Web site when it receives such a 
notification. Upon receipt of the ACHP's acknowledgement, and without 
requiring an amendment to this Program Comment, the federal agency may 
utilize the Program Comment.

XIX. Sunset Clause

    This Program Comment will expire December 31, 2027, unless it is 
amended prior to that date to extend the period in which it is in 
effect.

XX. Withdrawal

    The Chairman of the ACHP may withdraw this Program Comment, 
pursuant to 36 CFR 800.14(e)(6), by publication of a notice in the 
Federal Register 30 days before the withdrawal will take effect.

    Authority: 36 CFR 800.14(e).

    Dated: May 19, 2017.
Javier Marques,
General Counsel.
[FR Doc. 2017-10630 Filed 5-23-17; 8:45 am]
 BILLING CODE 4310-K6-P