Comment Sought on Draft Program Comment for the FCC's Review of Collocations on Certain Towers Constructed Without Documentation of Section 106 Review, 1215-1220 [2018-00292]

Download as PDF Federal Register / Vol. 83, No. 7 / Wednesday, January 10, 2018 / Proposed Rules for ammonia as a precursor to PM2.5 in PM2.5 nonattainment areas. Accordingly, as authorized by section 110(k)(4) of the Act, the EPA proposes to conditionally approve the NA–NSR component of ADEQ’s April 2017 NSR submittal solely with respect to ammonia as a PM2.5 precursor. While we cannot grant full approval of the submittal at this time with respect to this issue, ADEQ has satisfactorily committed to address this deficiency by providing the EPA with a SIP submittal by March 31, 2019, or within one year from the date on which the EPA takes final action on the April 2017 NSR submittal, whichever is earlier. As noted previously, on June 1, 2017, we proposed full approval of all other aspects of ADEQ’s April 2017 NSR submittal, including but not limited to revisions to ADEQ’s NA–NSR program and the regulation of PM2.5 precursors other than ammonia in accordance with section 189(e) of the Act. Today’s action does not modify the findings we made in that proposed action, and through this supplemental proposal, we are not reopening or otherwise seeking public comment on any other issues or findings in that June 1, 2017 proposed action. We will accept comments from the public on this supplemental proposal until February 9, 2018. jstallworth on DSKBBY8HB2PROD with PROPOSALS IV. Incorporation by Reference This action supplements our prior proposed rule where the EPA has proposed to include in a final EPA rule regulatory text that includes incorporation by reference. This action does not propose additional material for incorporation by reference. V. Statutory and Executive Order Reviews Under the CAA, the EPA Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA’s role is to approve state choices, provided that they meet the criteria of the Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action: • Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); • Is not an Executive Order 13771 (82 FR 9339, February 3, 2017) regulatory VerDate Sep<11>2014 15:20 Jan 09, 2018 Jkt 244001 action because SIP approvals are exempted under Executive Order 12866; • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4); • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and • Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). List of Subjects in 40 CFR Part 52 Environmental protection, Administrative practice and procedure, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide, Volatile organic compounds. Authority: 42 U.S.C. 7401 et seq. PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 1215 Dated: December 20, 2017. Alexis Strauss, Acting Regional Administrator, Region IX. [FR Doc. 2018–00036 Filed 1–9–18; 8:45 am] BILLING CODE 6560–50–P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 1 [WT Docket No. 17–79; FCC 17–165] Comment Sought on Draft Program Comment for the FCC’s Review of Collocations on Certain Towers Constructed Without Documentation of Section 106 Review Federal Communications Commission. ACTION: Proposed rule. AGENCY: In this document, the Federal Communications Commission (FCC or Commission) seeks comment on a draft Program Comment that would exclude from historic preservation review the collocation of wireless communications facilities on towers that either did not complete such review or cannot be documented to have completed such review. SUMMARY: Comments are due on February 9, 2018; reply comments are due on February 26, 2018. ADDRESSES: You may submit comments, identified by WT Docket No. 17–79, by any of the following methods: • Federal Communications Commission’s website: https:// apps.fcc.gov/ecfs//. Follow the instructions for submitting comments. • People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email: FCC504@fcc.gov or phone: 202–418–0530 or TTY: 888– 835–5322. For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: For further information on this proceeding, contact Daniel J. Margolis, Competition and Infrastructure Policy Division, Wireless Telecommunications Bureau, at daniel.margolis@fcc.gov or (202) 418– 1377. SUPPLEMENTARY INFORMATION: This is a summary of the Commission’s document, FCC 17–165, adopted and released on December 14, 2017. The full text of this document is available for DATES: E:\FR\FM\10JAP1.SGM 10JAP1 1216 Federal Register / Vol. 83, No. 7 / Wednesday, January 10, 2018 / Proposed Rules public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW, Room CY–A257, Washington, DC 20554. The complete text of this document will also be available via ECFS at https:// www.fcc.gov/document/fcc-seekscomment-plan-ease-collocationstwilight-towers-0. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an Email to fcc504@fcc.gov or calling the Commission’s Consumer and Governmental Affairs Bureau at (202) 418–0530 (voice), (202) 418–0432 (TTY). jstallworth on DSKBBY8HB2PROD with PROPOSALS Synopsis 1. In this document, the Commission takes another step towards promoting the deployment of wireless infrastructure. In particular, the Commission sets out a definitive solution for so-called ‘‘Twilight Towers,’’ which, if adopted, would create a new exclusion from routine historic preservation review under section 106 of the National Historic Preservation Act (NHPA), 54 U.S.C. 306108, and its implementing regulations, 36 CFR part 800. This action would open up potentially thousands of existing towers for collocations without the need for either the collocation or the underlying tower to complete an individual historic review, thus ensuring that these towers are generally treated the same as older towers that are already excluded from the historic review process. Facilitating collocations on these towers will make additional infrastructure available for wireless deployments, reduce the need for new towers, and decrease the need for new construction. After more than a decade of debate over the best approach for Twilight Towers, the Commission welcomes the chance to advance this concrete path forward. 2. Twilight Towers are towers whose construction commenced between March 16, 2001, and March 7, 2005, that either did not complete section 106 review or cannot be documented to have completed such review. Sections 1.1307(a)(4) and 1.1320(a) 1 of the 1 The Commission promulgated 47 CFR 1.1320 in an order released on November 17, 2017, and published in the Federal Register on December 14, 2017. See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Report and Order, FCC 17–153, WT Docket No. 17–79; see also 82 FR 58749, December VerDate Sep<11>2014 15:20 Jan 09, 2018 Jkt 244001 Commission’s rules, 47 CFR 1.1307(a)(4), 1.1320(a), direct licensees and applicants, when determining whether a proposed action may affect historic properties, to follow the procedures in the rules of the Advisory Council on Historic Preservation (ACHP) or an applicable program alternative, including the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas (2001 Collocation NPA), 47 CFR part 1, app. B, and the Nationwide Programmatic Agreement for Review of Effects on Historic Properties for Certain Undertakings Approved by the Federal Communications Commission (2005 Wireless Facilities NPA), 47 CFR part 1, app. C. Under section III of the 2001 Collocation NPA, collocations on towers whose construction commenced on or before March 16, 2001, are generally excluded from routine historic preservation review, regardless of whether the underlying tower has undergone section 106 review. See 47 CFR part 1, app. B, section III. By contrast, section IV of the 2001 Collocation NPA provides that collocations on towers whose construction commenced on or after March 16, 2001, are excluded from historic preservation review only if the Section 106 review process for the underlying tower and any associated environmental reviews has been completed. See 47 CFR part 1, app. B, section IV. The 2005 Wireless Facilities NPA, which became effective on March 7, 2005, establishes detailed procedures for reviewing the effects of communications towers on historic properties. 47 CFR part 1, app. C. 3. As indicated above, there are a large number of towers that were built between the adoption of the 2001 Collocation NPA and the effective date of the 2005 Wireless Facilities NPA that either did not complete section 106 review or for which documentation of section 106 review is unavailable. Although during this time the Commission’s environmental rules, 47 CFR 1.1307(a)(4), required licensees and applicants to evaluate whether proposed facilities may affect historic properties, the text of the rule did not at that time require parties to perform this evaluation by following the ACHP’s rules or any other particular process. Thus, some in the industry have argued that, prior to the 2005 Wireless Facilities NPA, it was unclear whether the Commission’s rules required consultation with the relevant State Historic Preservation Officer (SHPO) 14, 2017. The rule will take effect on January 16, 2018. PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 and/or Tribal Historic Preservation Officer (THPO), Tribal engagement, or any other procedures, and that this uncertainty was the reason why many towers built during this period did not go through the clearance process. Because the successful completion of the section 106 process is a predicate to the exclusion from review of collocations on towers completed after March 16, 2001, licensees cannot collocate on these Twilight Towers unless either each collocation completes section 106 review or the underlying tower goes through an individual postconstruction review process. 4. By this document, the Commission finally identifies a path forward for these Twilight Towers. In particular, the Commission seeks public comment on the attached draft Program Comment addressing the historic preservation review requirements for collocating communications equipment on Twilight Towers. If adopted by the ACHP, the draft Program Comment would establish procedures for permitting collocations on Twilight Towers. 5. The ACHP’s rules contain general procedures for considering effects on historic properties, but they also provide a means of establishing customized or streamlined alternative review procedures called ‘‘program alternatives.’’ See 36 CFR 800.14. Where the ACHP determines that a defined program or activity has minimal potential to affect or adversely affect historic properties, a program alternative may reduce the scope of or entirely eliminate the review process. One type of program alternative is the Program Comment. See 36 CFR 800.14(e). 6. The Commission states that, given the record, a Program Comment is a suitable vehicle for specifying how Twilight Towers can be appropriately made available to facilitate broadband deployment. Therefore, the Commission seeks comment on the attached draft consistent with the ACHP’s process for developing and issuing a Program Comment. After considering input from all interested parties, the Commission will revise the draft Program Comment as appropriate, summarize the comments for the ACHP pursuant to 36 CFR 800.14(e)(1) and (f)(2), and formally request that the ACHP issue the Program Comment. Section 800.14(e)(5) of the ACHP’s rules, 36 CFR 800.14(e)(5), specifies that it will then decide whether to issue the Program Comment within 45 days, and the Commission will publish notice of any Program Comment that the ACHP provides in the Federal Register. E:\FR\FM\10JAP1.SGM 10JAP1 jstallworth on DSKBBY8HB2PROD with PROPOSALS Federal Register / Vol. 83, No. 7 / Wednesday, January 10, 2018 / Proposed Rules 7. This draft Program Comment is informed by comments received in response to the Notice of Proposed Rulemaking in this proceeding, See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Deployment, 32 FCC Rcd 3330 (2017) (Wireless Infrastructure NPRM); see also Proposed rule, 82 FR 21761, May 10, 2017, as well as several years of engagement with affected parties, including Tribal Nations, Native Hawaiian Organizations (NHOs), SHPOs, and industry, by conducting government-to-government consultation with Tribal Nations, holding face-to-face meetings, sponsoring webinars and workshops, participating in conferences, and distributing written materials. In addition, since the release of the Wireless Infrastructure NPRM, the Commission has met with Tribal representatives numerous times with a focus on issues related to section 106 review, including meetings with the Chairman and commissioners, as well as conference calls and meetings between staff and SHPOs, Tribal representatives, and others. 8. Commenters on the Wireless Infrastructure NPRM generally concur that the Commission should take affirmative steps to develop a regime governing the circumstances and procedures under which collocations will be permitted on Twilight Towers. In general, industry commenters assert that the Commission should grandfather, exempt, or exclude these towers from any historic preservation review, arguing that the towers are unlikely to have adverse effects on historic properties that have not been detected, that current ambiguities in the process are preventing widespread collocations, that there was no clear process for historic preservation review of proposed towers prior to 2005, and that many of the towers are no longer in the possession of their original owners. Other commenters, including SHPOs and Tribal Nations and their associations, advocate requiring a review process and mitigation of adverse effects before collocations on these towers can be permitted, contending that failure to perform section 106 review for these towers should not be forgiven retroactively, that collocations on existing towers can increase any adverse effects of the towers, that removal should be considered for towers with particularly egregious adverse effects, and that collocations that involve any ground disturbance must be subject to section 106 review before the Commission can allow collocations. The Commission VerDate Sep<11>2014 15:20 Jan 09, 2018 Jkt 244001 seeks comment on the extent to which the draft Program Comment, as described below, effectively addresses these concerns. 9. In the Wireless Infrastructure NPRM, the Commission stated that it does not anticipate taking any enforcement action or imposing any penalties based on good faith deployment during the Twilight Tower period. The Commission states that, in light of the additional comments it has received on this issue, and its recognition that the Commission did not provide specific guidance regarding the procedures for conducting historic preservation review, the Commission now makes clear that it will not take enforcement action relating to the construction of Twilight Towers based on the failure to follow any particular method of considering historic preservation issues or otherwise based on the good faith deployment of Twilight Towers. To the extent the owner of any Twilight Tower is shown to have intentionally adversely affected a historic property with intent to avoid the requirements of section 106, section 110(k) of the NHPA would continue to apply. See 54 U.S.C. 306113. 10. As established in the Wireless Infrastructure NPRM, this is a ‘‘permitbut-disclose’’ proceeding in accordance with the Commission’s ex parte rules, but with a limited modification in light of the Commission’s trust relationship with Tribal Nations and NHOs. Ex parte presentations involving elected and appointed leaders and duly appointed representatives of federally-recognized Tribal Nations and NHOs are exempt from the disclosure requirements in permit-but-disclose proceedings, as well as the prohibitions during the Sunshine Agenda period. Nevertheless, Tribal Nations and NHOs, like other interested parties, should file comments, reply comments, and ex parte presentations in the record in order to put facts and arguments before the Commission in a manner such that they may be relied upon in the decision-making process. 11. The Commission notes that some commenters urge the Commission to hold additional meetings with Tribal Nations regarding Twilight Towers before moving forward. The Commission welcomes additional meetings with Tribal Nations, Native Hawaiian Organizations, SHPOs, and industry during this comment period. The commission notes that it received ex parte comments filed between the public release of the draft text of this document on November 22, 2017, and its adoption by the Commission on December 14, 2017. To the extent that they have not been addressed here, PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 1217 these comments will be considered along with any comments filed in response to this document. 12. The following is the text of the Draft Program Comment: Draft Program Comment for the Federal Communications Commission’s Review of Collocations on Certain Towers Constructed Without Documentation of Section 106 Review This Program Comment was issued by the Advisory Council on Historic Preservation (Advisory Council) on [date to be inserted later], pursuant to 36 CFR 800.14(e), and went into effect on that date. It provides the Federal Communications Commission (FCC or Commission) with an alternative way to comply with its responsibilities under section 106 of the National Historic Preservation Act (NHPA), 54 U.S.C. 306108, and its implementing regulations, 36 CFR part 800 (section 106), as supplemented by two nationwide programmatic agreements. In particular, this Program Comment excludes from section 106 review the collocation of wireless communications facilities on ‘‘Twilight Towers’’ (i.e., certain communications towers for which construction commenced after March 16, 2001, and before March 7, 2005), provided that these collocations satisfy the conditions specified below. I. Background To fulfill its obligations under the NHPA, the FCC imposes certain compliance requirements on its applicants and licensees, but the ultimate responsibility for compliance with the NHPA remains with the FCC. In particular, section 1.1320 of the FCC’s rules (47 CFR 1.1320) directs licensees and applicants, when determining whether a proposed action may affect historic properties, to comply with the Advisory Council’s rules, 36 CFR part 800, or an applicable program alternative, including the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas (Collocation NPA), 47 CFR part 1, app. B, and the Nationwide Programmatic Agreement for Review of Effects on Historic Properties for Certain Undertakings Approved by the Federal Communications Commission (Wireless Facilities NPA), 47 CFR part 1, app. C. These programmatic agreements, which were executed pursuant to section 800.14(b) of the Advisory Council’s rules, substitute for the procedures that Federal agencies ordinarily must follow in performing their historic preservation reviews. See 36 CFR 800.14(b)(2). Section III of the Collocation NPA, adopted and effective on March 16, E:\FR\FM\10JAP1.SGM 10JAP1 1218 Federal Register / Vol. 83, No. 7 / Wednesday, January 10, 2018 / Proposed Rules jstallworth on DSKBBY8HB2PROD with PROPOSALS 2001,2 provides that collocations on towers 3 constructed on or before the effective date of that agreement are excluded from routine historic preservation review regardless of whether the underlying tower has undergone section 106 review provided that they satisfy the specified conditions. See 47 CFR part 1, app. B, section III. By contrast, section IV of the Collocation NPA provides that collocations on towers whose construction commenced after March 16, 2001, are excluded from historic preservation review only if the proposed collocation meets specified conditions and the section 106 review process for the underlying tower and any associated environmental reviews has been completed. See 47 CFR part 1, app. B, section IV. Through the Wireless Facilities NPA, which was incorporated into the FCC’s rules effective on March 7, 2005, the FCC adopted and codified for the first time detailed procedures for reviewing the effects on historic properties of communications towers and those collocations that are subject to review. See 47 CFR part 1, app. C. Prior to the adoption of the Wireless Facilities NPA, the FCC’s rules did not require its licensees and applicants to follow the ACHP’s rules or any other specified process when evaluating whether their proposed facilities might affect historic properties as mandated under section 106. Accordingly, a large number of towers constructed during the period between the effective dates of the two NPAs—that is, those for which construction began after March 16, 2001, and before March 7, 2005—do not have documentation demonstrating compliance with the section 106 review process (an issue exacerbated by the limitations of State Historic Preservation Officers’ (SHPOs’) record-keeping as well as subsequent changes in tower ownership). These towers are referred to as ‘‘Twilight Towers.’’ And because collocation on towers whose construction began after the effective date of the Collocation NPA is excluded from section 106 review only if the tower was itself subject to review, licensees or applicants cannot currently collocate on these Twilight Towers unless each collocation completes a separate section 106 review or the 2 The Collocation NPA was amended in 2016 to establish further exclusions from review for small antennas. See Wireless Telecommunications Bureau Announces Execution of First Amendment to the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas, Public Notice, 31 FCC Rcd 4617 (WTB 2016). 3 The Collocation Agreement defines ‘‘tower’’ as ‘‘any structure built for the sole or primary purpose of supporting FCC-licensed antennas and their associated facilities.’’ Collocation NPA, section I.E. VerDate Sep<11>2014 15:20 Jan 09, 2018 Jkt 244001 underlying tower completes an individual post-construction review process. To develop a Program Comment, the rules of the Advisory Council require Federal agencies to arrange for public participation appropriate to the subject matter and the scope of the category of covered undertakings and in accordance with the standards set forth in the Advisory Council’s rules. See 36 CFR 800.14(e)(2). Over the past several years, the FCC has engaged with Tribal Nations, Native Hawaiian Organizations (NHOs), SHPOs, and industry, by holding many face-to-face meetings, sponsoring webinars and workshops, participating in conferences, and distributing written materials. In 2014, FCC staff began consultations with relevant parties to discuss possible solutions to make Twilight Towers broadly available for collocations in a manner consistent with the requirements of and policies underlying the NHPA. In October 2015, the FCC circulated a discussion document to SHPOs, Tribal Nations, NHOs and industry associations, and in January 2016, the FCC facilitated a summit in Isleta Pueblo, New Mexico, devoted to discussion of Twilight Towers. Industry, Tribal, and SHPO representatives participated in this meeting. Following the meeting, the FCC sought written comments from the summit participants. In August 2016, the FCC circulated to industry associations, SHPOs, and Tribal/NHO contacts a discussion draft term sheet developed as a result of those consultations. Follow up calls with Tribal and SHPO representatives and other interested parties, including the Advisory Council staff, were held throughout 2016. Further, in the Wireless Infrastructure NPRM, adopted in April 2017, the FCC sought public comment on how to resolve remaining section 106 issues associated with collocation on Twilight Towers, and it received numerous comments on these issues. See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Deployment, 32 FCC Rcd 3330, 3358–3361, paras. 78–86 (2017) (Wireless Infrastructure NPRM); see also Proposed Rule, 82 FR 21761, May 10, 2017. Finally, the FCC facilitated consultations with Tribal representatives on the Rosebud Sioux Reservation on June 8, 2017; at the annual meeting of the National Conference of American Indians on June 14, 2017; on the Navajo Reservation on August 22, 2017; and in Washington, DC on October 4, 2017. FCC staff have also continued to meet in person and by phone with SHPOs and Tribal PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 representatives since release of the Wireless Infrastructure NPRM. II. Need for Program Comment To Address Twilight Towers This Program Comment adopts an exclusion under section 106 for certain collocations on Twilight Towers. This exclusion is warranted due to a number of unique factors associated with towers whose construction commenced during the period from March 17, 2001 through March 6, 2005, including: (1) The limited reliability of section 106 review documentation from that time period; (2) the lack of specificity in the FCC’s rules regarding section 106 review at the time the Twilight Towers were constructed; (3) the limited likelihood that section 106 review could identify adverse effects from these towers that are not yet known after 12 years or more; and (4) the significant public interest in making these towers readily available for collocation. Although during the time between the Collocation NPA and the Wireless Facilities NPA the FCC’s environmental rules required licensees and applicants to evaluate whether proposed facilities may affect historic properties, the rules did not then state that parties must perform this evaluation by following the Advisory Council’s rules or any other specific process. Thus, prior to the effective date of the Wireless Facilities NPA, it was unclear whether the FCC’s rules required consultation with the relevant SHPO and/or Tribal Historic Preservation Officer (THPO), engagement with Tribal Nations to identify historic properties off Tribal land (including government-togovernment consultation), or any other particular procedures, and this lack of clarity may explain why many towers built during this period apparently did not obtain required clearance. Routine section 106 review of Twilight Towers is likely to provide little benefit in preserving historic properties. Twilight Towers have been in place for 12 to 16 years. In the vast majority of cases, no adverse effects from these towers have been brought to the FCC’s attention. While the lack of objections filed with the FCC does not guarantee that none of the Twilight Towers have caused, or continue to cause, adverse effects on historic properties, such cases are likely few given the passage of time and absence of objections. In addition, any effects on historic properties that may have occurred during construction may be difficult to demonstrate so many years after the fact. Further, an exclusion for collocations on Twilight Towers under the E:\FR\FM\10JAP1.SGM 10JAP1 Federal Register / Vol. 83, No. 7 / Wednesday, January 10, 2018 / Proposed Rules jstallworth on DSKBBY8HB2PROD with PROPOSALS conditions specified below is in the public interest. The exclusion will rapidly make available thousands of existing towers 4 to support wireless broadband deployment, including the FirstNet public safety broadband network,5 without causing adverse impacts. Importantly, facilitating collocations on existing towers will reduce the need for new towers, thereby avoiding the impact of new tower construction on the environment and on locations with historical and cultural significance. A Program Comment is necessary to facilitate collocation on Twilight Towers. While the Wireless Facilities NPA contemplates a process for review of proposed collocations on towers that were built without required review, review of each collocation only satisfies the section 106 requirement for that collocation; it does not clear the tower for future collocations. Given the large number of Twilight Towers and potential collocations that could be installed on those towers, the existing review process imposes burdens on all participants that, in the context of the other considerations discussed herein, are not commensurate with its historic preservation benefits. Accordingly, an approach different from the standard section 106 review process is warranted to make Twilight Towers readily available for collocations. Given the significant public benefits to be realized by making these facilities available for collocation, together with the other considerations discussed above, requiring each licensee or applicant to review each tower individually before collocating is not an effective or efficient means for the FCC to comply with its obligations under section 106. This Program Comment is responsive to the unusual set of factors surrounding the use of these Twilight Towers for the limited purpose of collocation. 4 The members of two major industry associations have collectively reported owning 4,298 towers that could be classified as Twilight Towers. Letter from Brian Josef, Assistant Vice President, Regulatory Affairs, CTIA—The Wireless Association, and D. Zachary Champ, Assistant Vice President, Regulatory Affairs, PCIA—The Wireless Infrastructure Association, to Chad Breckinridge Associate Chief, WTB, FCC (dated June 4, 2015). There may be more Twilight Towers owned by entities that are not members of these associations or that did not participate in their survey. 5 See 47 U.S.C. 1426(c)(3) (providing that ‘‘the First Responder Network Authority shall enter into agreements to utilize, to the maximum extent economically desirable, existing (A) commercial or other communications infrastructure; and (B) Federal, state, tribal, or local infrastructure’’). VerDate Sep<11>2014 15:20 Jan 09, 2018 Jkt 244001 III. Exemption From Duplicate Review of Effects of Collocations by Other Federal Agencies Other Federal agencies are not required to comply with section 106 with regard to the effects of collocations on Twilight Towers that are excluded from review under this Program Comment. When other Federal agencies have broader undertakings that include collocations on Twilight Towers, they must, however, comply with section 106 in accordance with the process set forth at 36 CFR 800.3 through 800.7, or 800.8(c), or another applicable program alternative under 36 CFR 800.14 for aspects of the undertaking not involving the collocations. IV. Exclusion for Twilight Towers In August 2000, the Advisory Council established a Telecommunications Working Group to provide a forum for the FCC, industry representatives, SHPOs, THPOs, other Tribal representatives, and the Advisory Council to discuss improved coordination of section 106 compliance regarding wireless communications facilities affecting historic properties. The Advisory Council and the Working Group developed the Collocation NPA, which recognized that the effects on historic properties of collocations on buildings, towers, and other structures are likely to be minimal and not adverse provided that certain premises and procedures are taken into consideration, including limitations on the extent of new construction and excavation. Further, the Collocation NPA stated that its terms should be ‘‘interpreted and implemented wherever possible in ways that encourage collocation.’’ Consistent with that directive, this Program Comment serves to resolve a long standing impediment to collocation on Twilight Towers within the broader protective framework established by the Collocation NPA. We intend the exclusion here to mirror the exclusion in the Collocation NPA that applies to collocations on towers for which construction commenced on or before March 16, 2001. And so, pursuant to the exclusion adopted here, an antenna may be mounted on an existing tower for which construction commenced between March 16, 2001, and March 7, 2005, without such collocation being reviewed through the section 106 process set forth in the Wireless Facilities NPA, unless: 1. The mounting of the proposed antenna on the tower would increase the existing height of the tower by more than 10%, or by the height of one PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 1219 additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to avoid interference with existing antennas; or 2. The mounting of the proposed antenna would involve the installation of more than the standard number of new equipment cabinets for the technology involved, not to exceed four, or more than one new equipment shelter; or 3. The mounting of the proposed antenna would involve adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet or more than the width of the tower structure at the level of the appurtenance, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable; or 4. The mounting of the proposed antenna would involve excavation outside the current tower site, defined as the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site; or 5. The tower has been determined by the FCC to have an adverse effect on one or more historic properties, where such effect has not been avoided or mitigated through a conditional no adverse effect determination, a Memorandum of Agreement, a programmatic agreement, or a finding of compliance with section 106 and the Wireless Facilities NPA; or 6. The tower is the subject of a pending environmental review or related proceeding before the FCC involving compliance with section 106 of the NHPA; or 7. The collocation licensee or the owner of the tower has received written or electronic notification that the FCC is in receipt of a complaint from a member of the public, a Tribal Nation or NHO, a SHPO, or the Advisory Council that the collocation has an adverse effect on one or more historic properties. Any such complaint must be in writing and supported by substantial evidence describing how the effect from the collocation is adverse to the attributes that qualify any affected historic property for eligibility or potential eligibility for the National Register. In the event that a proposed collocation on a Twilight Tower does not meet the conditions specified above E:\FR\FM\10JAP1.SGM 10JAP1 1220 Federal Register / Vol. 83, No. 7 / Wednesday, January 10, 2018 / Proposed Rules for this exclusion, the collocation must undergo historic preservation review as required by the rules of the Advisory Council as revised or supplemented by the Wireless Facilities NPA and the Collocation NPA. As provided in the Wireless Facilities NPA, such review is limited to effects from the collocation and shall not include consideration of effects on historic properties from the underlying tower. jstallworth on DSKBBY8HB2PROD with PROPOSALS V. Additional Provisions Relating to Tribal Nations This Program Comment does not apply on Tribal lands unless the relevant Tribal Nation has provided the FCC with a written notice agreeing to its application on Tribal lands. A Tribal Nation may request direct government-to-government consultation with the FCC at any time with respect to a Twilight Tower or any collocation thereon. The FCC will respond to any such request in a manner consistent with its responsibility toward Tribal Nations. When indicated by the circumstances, and if the request is in writing and supported by substantial evidence as described in paragraph IV.7., the FCC shall treat a request for consultation as a complaint against the proposed collocation and shall notify the tower owner accordingly. A Tribal Nation may provide confidential supporting evidence or other relevant information relating to a historic property of religious or cultural significance. The FCC shall protect all confidential information consistent with section IV.I of the Wireless Facilities NPA. VI. Administrative Provisions A. Definitions. Unless otherwise defined in this Program Comment, the terms used here shall have the meanings ascribed to them under 36 CFR part 800 as modified or supplemented by the Collocation NPA or Wireless Facilities NPA. B. Duration. This Program Comment shall remain in force unless terminated or otherwise superseded by a comprehensive Programmatic Agreement or the Advisory Council provides written notice of its intention to withdraw the Program Comment pursuant to section VI.B.1, below, or the FCC provides written notice of its intention not to continue to utilize this Program Comment pursuant to section VI.B.2, below. 1. If the Advisory Council determines that the consideration of historic properties is not being carried out in a manner consistent with section 106, the Advisory Council may withdraw this Program Comment after consulting with VerDate Sep<11>2014 15:20 Jan 09, 2018 Jkt 244001 the FCC, the National Conference on State Historic Preservation Officers, and the National Association of Tribal Historic Preservation Officers, and thereafter providing them with written notice of the withdrawal. 2. In the event the FCC determines that this Program Comment is not operating as intended, or is no longer necessary, the FCC, after consultation with the parties identified in section VI.B.1 above, shall send written notice to the Advisory Council of its intent to withdraw. C. Periodic Meetings. Throughout the duration of this Program Comment, the Advisory Council and the FCC shall meet annually on or about the anniversary of the effective date of this Program Comment. The FCC and the Advisory Council will discuss the effectiveness of this Program Comment, including any issues related to improper implementation, and will discuss any potential amendments that would improve its effectiveness. Complaints Regarding Implementation of This Program Comment. Members of the public may refer any complaints regarding the implementation of this Program Comment to the FCC. The FCC will handle those complaints consistent with section XI of the Wireless Facilities NPA. 13. Pursuant to sections 1.415 and 1.419 of the Commission’s rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission’s Electronic Comment Filing System (ECFS). Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998). • Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: https://apps.fcc.gov/ ecfs/. • Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission’s Secretary, Office of the Secretary, Federal Communications Commission. • All hand-delivered or messengerdelivered paper filings for the Commission’s Secretary must be PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 delivered to FCC Headquarters at 445 12th St. SW, Room TW–A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building. • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, Annapolis, MD 20701. • U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington, DC 20554. People with Disabilities. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the FCC’s Consumer and Governmental Affairs Bureau at (202) 418–0530 (voice), (202) 418–0432 (TTY). 14. This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104– 13. In addition, therefore, it does not contain any proposed information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107–198, see 44 U.S.C. 3506(c)(4). Federal Communications Commission. Marlene H. Dortch, Secretary, Office of the Secretary. [FR Doc. 2018–00292 Filed 1–9–18; 8:45 am] BILLING CODE 6712–01–P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Part 395 [Docket No. FMCSA–2017–0372] Hours of Service of Drivers: Application for Exemption; Towing and Recovery Association of America, Inc. (TRAA) Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice of application for exemption; request for comments. AGENCY: FMCSA announces that the Towing and Recovery Association of America, Inc. (TRAA) has requested an exemption from the requirement that a motor carrier install and require each of its drivers to use an electronic logging device (ELD) to record the driver’s SUMMARY: E:\FR\FM\10JAP1.SGM 10JAP1

Agencies

FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 83, Number 7 (Wednesday, January 10, 2018)]
[Proposed Rules]
[Pages 1215-1220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-00292]


=======================================================================
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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[WT Docket No. 17-79; FCC 17-165]


Comment Sought on Draft Program Comment for the FCC's Review of 
Collocations on Certain Towers Constructed Without Documentation of 
Section 106 Review

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Federal Communications Commission (FCC 
or Commission) seeks comment on a draft Program Comment that would 
exclude from historic preservation review the collocation of wireless 
communications facilities on towers that either did not complete such 
review or cannot be documented to have completed such review.

DATES: Comments are due on February 9, 2018; reply comments are due on 
February 26, 2018.

ADDRESSES: You may submit comments, identified by WT Docket No. 17-79, 
by any of the following methods:
     Federal Communications Commission's website: https://apps.fcc.gov/ecfs//. Follow the instructions for submitting comments.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by email: [email protected] or phone: 202-418-
0530 or TTY: 888-835-5322.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: For further information on this 
proceeding, contact Daniel J. Margolis, Competition and Infrastructure 
Policy Division, Wireless Telecommunications Bureau, at 
[email protected] or (202) 418-1377.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
document, FCC 17-165, adopted and released on December 14, 2017. The 
full text of this document is available for

[[Page 1216]]

public inspection and copying during regular business hours in the FCC 
Reference Center, Federal Communications Commission, 445 12th Street 
SW, Room CY-A257, Washington, DC 20554. The complete text of this 
document will also be available via ECFS at https://www.fcc.gov/document/fcc-seeks-comment-plan-ease-collocations-twilight-towers-0. 
Documents will be available electronically in ASCII, Microsoft Word, 
and/or Adobe Acrobat. Alternative formats are available for people with 
disabilities (Braille, large print, electronic files, audio format), by 
sending an Email to [email protected] or calling the Commission's Consumer 
and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-
0432 (TTY).

Synopsis

    1. In this document, the Commission takes another step towards 
promoting the deployment of wireless infrastructure. In particular, the 
Commission sets out a definitive solution for so-called ``Twilight 
Towers,'' which, if adopted, would create a new exclusion from routine 
historic preservation review under section 106 of the National Historic 
Preservation Act (NHPA), 54 U.S.C. 306108, and its implementing 
regulations, 36 CFR part 800. This action would open up potentially 
thousands of existing towers for collocations without the need for 
either the collocation or the underlying tower to complete an 
individual historic review, thus ensuring that these towers are 
generally treated the same as older towers that are already excluded 
from the historic review process. Facilitating collocations on these 
towers will make additional infrastructure available for wireless 
deployments, reduce the need for new towers, and decrease the need for 
new construction. After more than a decade of debate over the best 
approach for Twilight Towers, the Commission welcomes the chance to 
advance this concrete path forward.
    2. Twilight Towers are towers whose construction commenced between 
March 16, 2001, and March 7, 2005, that either did not complete section 
106 review or cannot be documented to have completed such review. 
Sections 1.1307(a)(4) and 1.1320(a) \1\ of the Commission's rules, 47 
CFR 1.1307(a)(4), 1.1320(a), direct licensees and applicants, when 
determining whether a proposed action may affect historic properties, 
to follow the procedures in the rules of the Advisory Council on 
Historic Preservation (ACHP) or an applicable program alternative, 
including the Nationwide Programmatic Agreement for the Collocation of 
Wireless Antennas (2001 Collocation NPA), 47 CFR part 1, app. B, and 
the Nationwide Programmatic Agreement for Review of Effects on Historic 
Properties for Certain Undertakings Approved by the Federal 
Communications Commission (2005 Wireless Facilities NPA), 47 CFR part 
1, app. C. Under section III of the 2001 Collocation NPA, collocations 
on towers whose construction commenced on or before March 16, 2001, are 
generally excluded from routine historic preservation review, 
regardless of whether the underlying tower has undergone section 106 
review. See 47 CFR part 1, app. B, section III. By contrast, section IV 
of the 2001 Collocation NPA provides that collocations on towers whose 
construction commenced on or after March 16, 2001, are excluded from 
historic preservation review only if the Section 106 review process for 
the underlying tower and any associated environmental reviews has been 
completed. See 47 CFR part 1, app. B, section IV. The 2005 Wireless 
Facilities NPA, which became effective on March 7, 2005, establishes 
detailed procedures for reviewing the effects of communications towers 
on historic properties. 47 CFR part 1, app. C.
---------------------------------------------------------------------------

    \1\ The Commission promulgated 47 CFR 1.1320 in an order 
released on November 17, 2017, and published in the Federal Register 
on December 14, 2017. See Accelerating Wireless Broadband Deployment 
by Removing Barriers to Infrastructure Investment, Report and Order, 
FCC 17-153, WT Docket No. 17-79; see also 82 FR 58749, December 14, 
2017. The rule will take effect on January 16, 2018.
---------------------------------------------------------------------------

    3. As indicated above, there are a large number of towers that were 
built between the adoption of the 2001 Collocation NPA and the 
effective date of the 2005 Wireless Facilities NPA that either did not 
complete section 106 review or for which documentation of section 106 
review is unavailable. Although during this time the Commission's 
environmental rules, 47 CFR 1.1307(a)(4), required licensees and 
applicants to evaluate whether proposed facilities may affect historic 
properties, the text of the rule did not at that time require parties 
to perform this evaluation by following the ACHP's rules or any other 
particular process. Thus, some in the industry have argued that, prior 
to the 2005 Wireless Facilities NPA, it was unclear whether the 
Commission's rules required consultation with the relevant State 
Historic Preservation Officer (SHPO) and/or Tribal Historic 
Preservation Officer (THPO), Tribal engagement, or any other 
procedures, and that this uncertainty was the reason why many towers 
built during this period did not go through the clearance process. 
Because the successful completion of the section 106 process is a 
predicate to the exclusion from review of collocations on towers 
completed after March 16, 2001, licensees cannot collocate on these 
Twilight Towers unless either each collocation completes section 106 
review or the underlying tower goes through an individual post-
construction review process.
    4. By this document, the Commission finally identifies a path 
forward for these Twilight Towers. In particular, the Commission seeks 
public comment on the attached draft Program Comment addressing the 
historic preservation review requirements for collocating 
communications equipment on Twilight Towers. If adopted by the ACHP, 
the draft Program Comment would establish procedures for permitting 
collocations on Twilight Towers.
    5. The ACHP's rules contain general procedures for considering 
effects on historic properties, but they also provide a means of 
establishing customized or streamlined alternative review procedures 
called ``program alternatives.'' See 36 CFR 800.14. Where the ACHP 
determines that a defined program or activity has minimal potential to 
affect or adversely affect historic properties, a program alternative 
may reduce the scope of or entirely eliminate the review process. One 
type of program alternative is the Program Comment. See 36 CFR 
800.14(e).
    6. The Commission states that, given the record, a Program Comment 
is a suitable vehicle for specifying how Twilight Towers can be 
appropriately made available to facilitate broadband deployment. 
Therefore, the Commission seeks comment on the attached draft 
consistent with the ACHP's process for developing and issuing a Program 
Comment. After considering input from all interested parties, the 
Commission will revise the draft Program Comment as appropriate, 
summarize the comments for the ACHP pursuant to 36 CFR 800.14(e)(1) and 
(f)(2), and formally request that the ACHP issue the Program Comment. 
Section 800.14(e)(5) of the ACHP's rules, 36 CFR 800.14(e)(5), 
specifies that it will then decide whether to issue the Program Comment 
within 45 days, and the Commission will publish notice of any Program 
Comment that the ACHP provides in the Federal Register.

[[Page 1217]]

    7. This draft Program Comment is informed by comments received in 
response to the Notice of Proposed Rulemaking in this proceeding, See 
Accelerating Wireless Broadband Deployment by Removing Barriers to 
Infrastructure Deployment, 32 FCC Rcd 3330 (2017) (Wireless 
Infrastructure NPRM); see also Proposed rule, 82 FR 21761, May 10, 
2017, as well as several years of engagement with affected parties, 
including Tribal Nations, Native Hawaiian Organizations (NHOs), SHPOs, 
and industry, by conducting government-to-government consultation with 
Tribal Nations, holding face-to-face meetings, sponsoring webinars and 
workshops, participating in conferences, and distributing written 
materials. In addition, since the release of the Wireless 
Infrastructure NPRM, the Commission has met with Tribal representatives 
numerous times with a focus on issues related to section 106 review, 
including meetings with the Chairman and commissioners, as well as 
conference calls and meetings between staff and SHPOs, Tribal 
representatives, and others.
    8. Commenters on the Wireless Infrastructure NPRM generally concur 
that the Commission should take affirmative steps to develop a regime 
governing the circumstances and procedures under which collocations 
will be permitted on Twilight Towers. In general, industry commenters 
assert that the Commission should grandfather, exempt, or exclude these 
towers from any historic preservation review, arguing that the towers 
are unlikely to have adverse effects on historic properties that have 
not been detected, that current ambiguities in the process are 
preventing widespread collocations, that there was no clear process for 
historic preservation review of proposed towers prior to 2005, and that 
many of the towers are no longer in the possession of their original 
owners. Other commenters, including SHPOs and Tribal Nations and their 
associations, advocate requiring a review process and mitigation of 
adverse effects before collocations on these towers can be permitted, 
contending that failure to perform section 106 review for these towers 
should not be forgiven retroactively, that collocations on existing 
towers can increase any adverse effects of the towers, that removal 
should be considered for towers with particularly egregious adverse 
effects, and that collocations that involve any ground disturbance must 
be subject to section 106 review before the Commission can allow 
collocations. The Commission seeks comment on the extent to which the 
draft Program Comment, as described below, effectively addresses these 
concerns.
    9. In the Wireless Infrastructure NPRM, the Commission stated that 
it does not anticipate taking any enforcement action or imposing any 
penalties based on good faith deployment during the Twilight Tower 
period. The Commission states that, in light of the additional comments 
it has received on this issue, and its recognition that the Commission 
did not provide specific guidance regarding the procedures for 
conducting historic preservation review, the Commission now makes clear 
that it will not take enforcement action relating to the construction 
of Twilight Towers based on the failure to follow any particular method 
of considering historic preservation issues or otherwise based on the 
good faith deployment of Twilight Towers. To the extent the owner of 
any Twilight Tower is shown to have intentionally adversely affected a 
historic property with intent to avoid the requirements of section 106, 
section 110(k) of the NHPA would continue to apply. See 54 U.S.C. 
306113.
    10. As established in the Wireless Infrastructure NPRM, this is a 
``permit-but-disclose'' proceeding in accordance with the Commission's 
ex parte rules, but with a limited modification in light of the 
Commission's trust relationship with Tribal Nations and NHOs. Ex parte 
presentations involving elected and appointed leaders and duly 
appointed representatives of federally-recognized Tribal Nations and 
NHOs are exempt from the disclosure requirements in permit-but-disclose 
proceedings, as well as the prohibitions during the Sunshine Agenda 
period. Nevertheless, Tribal Nations and NHOs, like other interested 
parties, should file comments, reply comments, and ex parte 
presentations in the record in order to put facts and arguments before 
the Commission in a manner such that they may be relied upon in the 
decision-making process.
    11. The Commission notes that some commenters urge the Commission 
to hold additional meetings with Tribal Nations regarding Twilight 
Towers before moving forward. The Commission welcomes additional 
meetings with Tribal Nations, Native Hawaiian Organizations, SHPOs, and 
industry during this comment period. The commission notes that it 
received ex parte comments filed between the public release of the 
draft text of this document on November 22, 2017, and its adoption by 
the Commission on December 14, 2017. To the extent that they have not 
been addressed here, these comments will be considered along with any 
comments filed in response to this document.
    12. The following is the text of the Draft Program Comment:

Draft Program Comment for the Federal Communications Commission's 
Review of Collocations on Certain Towers Constructed Without 
Documentation of Section 106 Review

    This Program Comment was issued by the Advisory Council on Historic 
Preservation (Advisory Council) on [date to be inserted later], 
pursuant to 36 CFR 800.14(e), and went into effect on that date. It 
provides the Federal Communications Commission (FCC or Commission) with 
an alternative way to comply with its responsibilities under section 
106 of the National Historic Preservation Act (NHPA), 54 U.S.C. 306108, 
and its implementing regulations, 36 CFR part 800 (section 106), as 
supplemented by two nationwide programmatic agreements. In particular, 
this Program Comment excludes from section 106 review the collocation 
of wireless communications facilities on ``Twilight Towers'' (i.e., 
certain communications towers for which construction commenced after 
March 16, 2001, and before March 7, 2005), provided that these 
collocations satisfy the conditions specified below.

I. Background

    To fulfill its obligations under the NHPA, the FCC imposes certain 
compliance requirements on its applicants and licensees, but the 
ultimate responsibility for compliance with the NHPA remains with the 
FCC. In particular, section 1.1320 of the FCC's rules (47 CFR 1.1320) 
directs licensees and applicants, when determining whether a proposed 
action may affect historic properties, to comply with the Advisory 
Council's rules, 36 CFR part 800, or an applicable program alternative, 
including the Nationwide Programmatic Agreement for the Collocation of 
Wireless Antennas (Collocation NPA), 47 CFR part 1, app. B, and the 
Nationwide Programmatic Agreement for Review of Effects on Historic 
Properties for Certain Undertakings Approved by the Federal 
Communications Commission (Wireless Facilities NPA), 47 CFR part 1, 
app. C. These programmatic agreements, which were executed pursuant to 
section 800.14(b) of the Advisory Council's rules, substitute for the 
procedures that Federal agencies ordinarily must follow in performing 
their historic preservation reviews. See 36 CFR 800.14(b)(2).
    Section III of the Collocation NPA, adopted and effective on March 
16,

[[Page 1218]]

2001,\2\ provides that collocations on towers \3\ constructed on or 
before the effective date of that agreement are excluded from routine 
historic preservation review regardless of whether the underlying tower 
has undergone section 106 review provided that they satisfy the 
specified conditions. See 47 CFR part 1, app. B, section III. By 
contrast, section IV of the Collocation NPA provides that collocations 
on towers whose construction commenced after March 16, 2001, are 
excluded from historic preservation review only if the proposed 
collocation meets specified conditions and the section 106 review 
process for the underlying tower and any associated environmental 
reviews has been completed. See 47 CFR part 1, app. B, section IV. 
Through the Wireless Facilities NPA, which was incorporated into the 
FCC's rules effective on March 7, 2005, the FCC adopted and codified 
for the first time detailed procedures for reviewing the effects on 
historic properties of communications towers and those collocations 
that are subject to review. See 47 CFR part 1, app. C.
---------------------------------------------------------------------------

    \2\ The Collocation NPA was amended in 2016 to establish further 
exclusions from review for small antennas. See Wireless 
Telecommunications Bureau Announces Execution of First Amendment to 
the Nationwide Programmatic Agreement for the Collocation of 
Wireless Antennas, Public Notice, 31 FCC Rcd 4617 (WTB 2016).
    \3\ The Collocation Agreement defines ``tower'' as ``any 
structure built for the sole or primary purpose of supporting FCC-
licensed antennas and their associated facilities.'' Collocation 
NPA, section I.E.
---------------------------------------------------------------------------

    Prior to the adoption of the Wireless Facilities NPA, the FCC's 
rules did not require its licensees and applicants to follow the ACHP's 
rules or any other specified process when evaluating whether their 
proposed facilities might affect historic properties as mandated under 
section 106. Accordingly, a large number of towers constructed during 
the period between the effective dates of the two NPAs--that is, those 
for which construction began after March 16, 2001, and before March 7, 
2005--do not have documentation demonstrating compliance with the 
section 106 review process (an issue exacerbated by the limitations of 
State Historic Preservation Officers' (SHPOs') record-keeping as well 
as subsequent changes in tower ownership). These towers are referred to 
as ``Twilight Towers.'' And because collocation on towers whose 
construction began after the effective date of the Collocation NPA is 
excluded from section 106 review only if the tower was itself subject 
to review, licensees or applicants cannot currently collocate on these 
Twilight Towers unless each collocation completes a separate section 
106 review or the underlying tower completes an individual post-
construction review process.
    To develop a Program Comment, the rules of the Advisory Council 
require Federal agencies to arrange for public participation 
appropriate to the subject matter and the scope of the category of 
covered undertakings and in accordance with the standards set forth in 
the Advisory Council's rules. See 36 CFR 800.14(e)(2). Over the past 
several years, the FCC has engaged with Tribal Nations, Native Hawaiian 
Organizations (NHOs), SHPOs, and industry, by holding many face-to-face 
meetings, sponsoring webinars and workshops, participating in 
conferences, and distributing written materials. In 2014, FCC staff 
began consultations with relevant parties to discuss possible solutions 
to make Twilight Towers broadly available for collocations in a manner 
consistent with the requirements of and policies underlying the NHPA. 
In October 2015, the FCC circulated a discussion document to SHPOs, 
Tribal Nations, NHOs and industry associations, and in January 2016, 
the FCC facilitated a summit in Isleta Pueblo, New Mexico, devoted to 
discussion of Twilight Towers. Industry, Tribal, and SHPO 
representatives participated in this meeting. Following the meeting, 
the FCC sought written comments from the summit participants. In August 
2016, the FCC circulated to industry associations, SHPOs, and Tribal/
NHO contacts a discussion draft term sheet developed as a result of 
those consultations. Follow up calls with Tribal and SHPO 
representatives and other interested parties, including the Advisory 
Council staff, were held throughout 2016.
    Further, in the Wireless Infrastructure NPRM, adopted in April 
2017, the FCC sought public comment on how to resolve remaining section 
106 issues associated with collocation on Twilight Towers, and it 
received numerous comments on these issues. See Accelerating Wireless 
Broadband Deployment by Removing Barriers to Infrastructure Deployment, 
32 FCC Rcd 3330, 3358-3361, paras. 78-86 (2017) (Wireless 
Infrastructure NPRM); see also Proposed Rule, 82 FR 21761, May 10, 
2017. Finally, the FCC facilitated consultations with Tribal 
representatives on the Rosebud Sioux Reservation on June 8, 2017; at 
the annual meeting of the National Conference of American Indians on 
June 14, 2017; on the Navajo Reservation on August 22, 2017; and in 
Washington, DC on October 4, 2017. FCC staff have also continued to 
meet in person and by phone with SHPOs and Tribal representatives since 
release of the Wireless Infrastructure NPRM.

II. Need for Program Comment To Address Twilight Towers

    This Program Comment adopts an exclusion under section 106 for 
certain collocations on Twilight Towers. This exclusion is warranted 
due to a number of unique factors associated with towers whose 
construction commenced during the period from March 17, 2001 through 
March 6, 2005, including: (1) The limited reliability of section 106 
review documentation from that time period; (2) the lack of specificity 
in the FCC's rules regarding section 106 review at the time the 
Twilight Towers were constructed; (3) the limited likelihood that 
section 106 review could identify adverse effects from these towers 
that are not yet known after 12 years or more; and (4) the significant 
public interest in making these towers readily available for 
collocation.
    Although during the time between the Collocation NPA and the 
Wireless Facilities NPA the FCC's environmental rules required 
licensees and applicants to evaluate whether proposed facilities may 
affect historic properties, the rules did not then state that parties 
must perform this evaluation by following the Advisory Council's rules 
or any other specific process. Thus, prior to the effective date of the 
Wireless Facilities NPA, it was unclear whether the FCC's rules 
required consultation with the relevant SHPO and/or Tribal Historic 
Preservation Officer (THPO), engagement with Tribal Nations to identify 
historic properties off Tribal land (including government-to-government 
consultation), or any other particular procedures, and this lack of 
clarity may explain why many towers built during this period apparently 
did not obtain required clearance.
    Routine section 106 review of Twilight Towers is likely to provide 
little benefit in preserving historic properties. Twilight Towers have 
been in place for 12 to 16 years. In the vast majority of cases, no 
adverse effects from these towers have been brought to the FCC's 
attention. While the lack of objections filed with the FCC does not 
guarantee that none of the Twilight Towers have caused, or continue to 
cause, adverse effects on historic properties, such cases are likely 
few given the passage of time and absence of objections. In addition, 
any effects on historic properties that may have occurred during 
construction may be difficult to demonstrate so many years after the 
fact.
    Further, an exclusion for collocations on Twilight Towers under the

[[Page 1219]]

conditions specified below is in the public interest. The exclusion 
will rapidly make available thousands of existing towers \4\ to support 
wireless broadband deployment, including the FirstNet public safety 
broadband network,\5\ without causing adverse impacts. Importantly, 
facilitating collocations on existing towers will reduce the need for 
new towers, thereby avoiding the impact of new tower construction on 
the environment and on locations with historical and cultural 
significance.
---------------------------------------------------------------------------

    \4\ The members of two major industry associations have 
collectively reported owning 4,298 towers that could be classified 
as Twilight Towers. Letter from Brian Josef, Assistant Vice 
President, Regulatory Affairs, CTIA--The Wireless Association, and 
D. Zachary Champ, Assistant Vice President, Regulatory Affairs, 
PCIA--The Wireless Infrastructure Association, to Chad Breckinridge 
Associate Chief, WTB, FCC (dated June 4, 2015). There may be more 
Twilight Towers owned by entities that are not members of these 
associations or that did not participate in their survey.
    \5\ See 47 U.S.C. 1426(c)(3) (providing that ``the First 
Responder Network Authority shall enter into agreements to utilize, 
to the maximum extent economically desirable, existing (A) 
commercial or other communications infrastructure; and (B) Federal, 
state, tribal, or local infrastructure'').
---------------------------------------------------------------------------

    A Program Comment is necessary to facilitate collocation on 
Twilight Towers. While the Wireless Facilities NPA contemplates a 
process for review of proposed collocations on towers that were built 
without required review, review of each collocation only satisfies the 
section 106 requirement for that collocation; it does not clear the 
tower for future collocations. Given the large number of Twilight 
Towers and potential collocations that could be installed on those 
towers, the existing review process imposes burdens on all participants 
that, in the context of the other considerations discussed herein, are 
not commensurate with its historic preservation benefits.
    Accordingly, an approach different from the standard section 106 
review process is warranted to make Twilight Towers readily available 
for collocations. Given the significant public benefits to be realized 
by making these facilities available for collocation, together with the 
other considerations discussed above, requiring each licensee or 
applicant to review each tower individually before collocating is not 
an effective or efficient means for the FCC to comply with its 
obligations under section 106. This Program Comment is responsive to 
the unusual set of factors surrounding the use of these Twilight Towers 
for the limited purpose of collocation.

III. Exemption From Duplicate Review of Effects of Collocations by 
Other Federal Agencies

    Other Federal agencies are not required to comply with section 106 
with regard to the effects of collocations on Twilight Towers that are 
excluded from review under this Program Comment. When other Federal 
agencies have broader undertakings that include collocations on 
Twilight Towers, they must, however, comply with section 106 in 
accordance with the process set forth at 36 CFR 800.3 through 800.7, or 
800.8(c), or another applicable program alternative under 36 CFR 800.14 
for aspects of the undertaking not involving the collocations.

IV. Exclusion for Twilight Towers

    In August 2000, the Advisory Council established a 
Telecommunications Working Group to provide a forum for the FCC, 
industry representatives, SHPOs, THPOs, other Tribal representatives, 
and the Advisory Council to discuss improved coordination of section 
106 compliance regarding wireless communications facilities affecting 
historic properties. The Advisory Council and the Working Group 
developed the Collocation NPA, which recognized that the effects on 
historic properties of collocations on buildings, towers, and other 
structures are likely to be minimal and not adverse provided that 
certain premises and procedures are taken into consideration, including 
limitations on the extent of new construction and excavation. Further, 
the Collocation NPA stated that its terms should be ``interpreted and 
implemented wherever possible in ways that encourage collocation.'' 
Consistent with that directive, this Program Comment serves to resolve 
a long standing impediment to collocation on Twilight Towers within the 
broader protective framework established by the Collocation NPA.
    We intend the exclusion here to mirror the exclusion in the 
Collocation NPA that applies to collocations on towers for which 
construction commenced on or before March 16, 2001. And so, pursuant to 
the exclusion adopted here, an antenna may be mounted on an existing 
tower for which construction commenced between March 16, 2001, and 
March 7, 2005, without such collocation being reviewed through the 
section 106 process set forth in the Wireless Facilities NPA, unless:
    1. The mounting of the proposed antenna on the tower would increase 
the existing height of the tower by more than 10%, or by the height of 
one additional antenna array with separation from the nearest existing 
antenna not to exceed twenty feet, whichever is greater, except that 
the mounting of the proposed antenna may exceed the size limits set 
forth in this paragraph if necessary to avoid interference with 
existing antennas; or
    2. The mounting of the proposed antenna would involve the 
installation of more than the standard number of new equipment cabinets 
for the technology involved, not to exceed four, or more than one new 
equipment shelter; or
    3. The mounting of the proposed antenna would involve adding an 
appurtenance to the body of the tower that would protrude from the edge 
of the tower more than twenty feet or more than the width of the tower 
structure at the level of the appurtenance, whichever is greater, 
except that the mounting of the proposed antenna may exceed the size 
limits set forth in this paragraph if necessary to shelter the antenna 
from inclement weather or to connect the antenna to the tower via 
cable; or
    4. The mounting of the proposed antenna would involve excavation 
outside the current tower site, defined as the current boundaries of 
the leased or owned property surrounding the tower and any access or 
utility easements currently related to the site; or
    5. The tower has been determined by the FCC to have an adverse 
effect on one or more historic properties, where such effect has not 
been avoided or mitigated through a conditional no adverse effect 
determination, a Memorandum of Agreement, a programmatic agreement, or 
a finding of compliance with section 106 and the Wireless Facilities 
NPA; or
    6. The tower is the subject of a pending environmental review or 
related proceeding before the FCC involving compliance with section 106 
of the NHPA; or
    7. The collocation licensee or the owner of the tower has received 
written or electronic notification that the FCC is in receipt of a 
complaint from a member of the public, a Tribal Nation or NHO, a SHPO, 
or the Advisory Council that the collocation has an adverse effect on 
one or more historic properties. Any such complaint must be in writing 
and supported by substantial evidence describing how the effect from 
the collocation is adverse to the attributes that qualify any affected 
historic property for eligibility or potential eligibility for the 
National Register.
    In the event that a proposed collocation on a Twilight Tower does 
not meet the conditions specified above

[[Page 1220]]

for this exclusion, the collocation must undergo historic preservation 
review as required by the rules of the Advisory Council as revised or 
supplemented by the Wireless Facilities NPA and the Collocation NPA. As 
provided in the Wireless Facilities NPA, such review is limited to 
effects from the collocation and shall not include consideration of 
effects on historic properties from the underlying tower.

V. Additional Provisions Relating to Tribal Nations

    This Program Comment does not apply on Tribal lands unless the 
relevant Tribal Nation has provided the FCC with a written notice 
agreeing to its application on Tribal lands.
    A Tribal Nation may request direct government-to-government 
consultation with the FCC at any time with respect to a Twilight Tower 
or any collocation thereon. The FCC will respond to any such request in 
a manner consistent with its responsibility toward Tribal Nations. When 
indicated by the circumstances, and if the request is in writing and 
supported by substantial evidence as described in paragraph IV.7., the 
FCC shall treat a request for consultation as a complaint against the 
proposed collocation and shall notify the tower owner accordingly.
    A Tribal Nation may provide confidential supporting evidence or 
other relevant information relating to a historic property of religious 
or cultural significance. The FCC shall protect all confidential 
information consistent with section IV.I of the Wireless Facilities 
NPA.

VI. Administrative Provisions

    A. Definitions. Unless otherwise defined in this Program Comment, 
the terms used here shall have the meanings ascribed to them under 36 
CFR part 800 as modified or supplemented by the Collocation NPA or 
Wireless Facilities NPA.
    B. Duration. This Program Comment shall remain in force unless 
terminated or otherwise superseded by a comprehensive Programmatic 
Agreement or the Advisory Council provides written notice of its 
intention to withdraw the Program Comment pursuant to section VI.B.1, 
below, or the FCC provides written notice of its intention not to 
continue to utilize this Program Comment pursuant to section VI.B.2, 
below.
    1. If the Advisory Council determines that the consideration of 
historic properties is not being carried out in a manner consistent 
with section 106, the Advisory Council may withdraw this Program 
Comment after consulting with the FCC, the National Conference on State 
Historic Preservation Officers, and the National Association of Tribal 
Historic Preservation Officers, and thereafter providing them with 
written notice of the withdrawal.
    2. In the event the FCC determines that this Program Comment is not 
operating as intended, or is no longer necessary, the FCC, after 
consultation with the parties identified in section VI.B.1 above, shall 
send written notice to the Advisory Council of its intent to withdraw.
    C. Periodic Meetings. Throughout the duration of this Program 
Comment, the Advisory Council and the FCC shall meet annually on or 
about the anniversary of the effective date of this Program Comment. 
The FCC and the Advisory Council will discuss the effectiveness of this 
Program Comment, including any issues related to improper 
implementation, and will discuss any potential amendments that would 
improve its effectiveness.
    Complaints Regarding Implementation of This Program Comment. 
Members of the public may refer any complaints regarding the 
implementation of this Program Comment to the FCC. The FCC will handle 
those complaints consistent with section XI of the Wireless Facilities 
NPA.
    13. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 
47 CFR 1.415, 1.419, interested parties may file comments and reply 
comments on or before the dates indicated on the first page of this 
document. Comments may be filed using the Commission's Electronic 
Comment Filing System (ECFS). Electronic Filing of Documents in 
Rulemaking Proceedings, 63 FR 24121 (1998).
     Electronic Filers: Comments may be filed electronically 
using the internet by accessing the ECFS: https://apps.fcc.gov/ecfs/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing. If more than one docket 
or rulemaking number appears in the caption of this proceeding, filers 
must submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail. All filings must be addressed to the Commission's Secretary, 
Office of the Secretary, Federal Communications Commission.
     All hand-delivered or messenger-delivered paper filings 
for the Commission's Secretary must be delivered to FCC Headquarters at 
445 12th St. SW, Room TW-A325, Washington, DC 20554. The filing hours 
are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together 
with rubber bands or fasteners. Any envelopes and boxes must be 
disposed of before entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9050 Junction Drive, 
Annapolis Junction, Annapolis, MD 20701.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street SW, Washington, DC 20554.
    People with Disabilities. To request materials in accessible 
formats for people with disabilities (Braille, large print, electronic 
files, audio format), send an email to [email protected] or call the FCC's 
Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), 
(202) 418-0432 (TTY).
    14. This document does not contain proposed information collection 
requirements subject to the Paperwork Reduction Act of 1995, Public Law 
104-13. In addition, therefore, it does not contain any proposed 
information collection burden for small business concerns with fewer 
than 25 employees, pursuant to the Small Business Paperwork Relief Act 
of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

Federal Communications Commission.
Marlene H. Dortch,
Secretary, Office of the Secretary.
[FR Doc. 2018-00292 Filed 1-9-18; 8:45 am]
BILLING CODE 6712-01-P

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