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APPENDIX B

NATIONWIDE PROGRAMMATIC AGREEMENT FOR REVIEW OF

EFFECTS ON HISTORIC PROPERTIES FOR

CERTAIN UNDERTAKINGS APPROVED BY THE FEDERAL

COMMUNICATIONS COMMISSION

September 2004

INTRODUCTION

WHEREAS, Section 106 of the National Historic Preservation Act of 1966, as

amended (“NHPA”) (codified at 16 U.S.C. § 470f), requires federal agencies to take into

account the effects of certain of their Undertakings on Historic Properties (see Section II,

below), included in or eligible for inclusion in the National Register of Historic Places

(“National Register”), and to afford the Advisory Council on Historic Preservation

(“Council”) a reasonable opportunity to comment with regard to such Undertakings; and

WHEREAS, under the authority granted by Congress in the Communications Act of

1934, as amended (47 U.S.C. § 151 et seq.), the Federal Communications Commission

(“Commission”) establishes rules and procedures for the licensing of non-federal government

communications services, and the registration of certain antenna structures in the United

States and its Possessions and Territories; and

WHEREAS, Congress and the Commission have deregulated or streamlined the

application process regarding the construction of individual Facilities in many of the

Commission’s licensed services; and

WHEREAS, under the framework established in the Commission’s environmental

rules, 47 C.F.R. §§ 1.1301-1.1319, Commission licensees and applicants for authorizations

and antenna structure registrations are required to prepare, and the Commission is required to

independently review and approve, a pre-construction Environmental Assessment (“EA”) in

cases where a proposed tower or antenna may significantly affect the environment, including

situations where a proposed tower or antenna may affect Historic Properties that are either

listed in or eligible for listing in the National Register, including properties of religious and

cultural importance to an Indian tribe or Native Hawaiian organization (“NHO”) that meet

the National Register criteria; and

WHEREAS, the Council has adopted rules implementing Section 106 of the NHPA

(codified at 36 C.F.R. Part 800) and setting forth the process, called the “Section 106

process,” for complying with the NHPA; and

WHEREAS, pursuant to the Commission’s rules and the terms of this Nationwide

Programmatic Agreement for Review of Effects on Historic Properties for Certain

Undertakings Approved by the Federal Communications Commission (“Nationwide

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Agreement”), Applicants (see Section II.A.2) have been authorized, consistent with the terms

of the memorandum from the Council to the Commission, titled “Delegation of Authority for

the Section 106 Review of Telecommunications Projects,” dated September 21, 2000, to

initiate, coordinate, and assist the Commission with compliance with many aspects of the

Section 106 review process for their Facilities; and

WHEREAS, in August 2000, the Council established a Telecommunications Working

Group (the “Working Group”) to provide a forum for the Commission, the Council, the

National Conference of State Historic Preservation Officers (“Conference”), individual State

Historic Preservation Officers (“SHPOs”), Tribal Historic Preservation Officers (“THPOs”),

other tribal representatives, communications industry representatives, and other interested

members of the public to discuss improved Section 106 compliance and to develop methods

of streamlining the Section 106 review process; and

WHEREAS, Section 214 of the NHPA (16 U.S.C. § 470v) authorizes the Council to

promulgate regulations implementing exclusions from Section 106 review, and Section

800.14(b) of the Council’s regulations (36 C.F.R § 800.14(b)) allows for programmatic

agreements to streamline and tailor the Section 106 review process to particular federal

programs, if they are consistent with the Council’s regulations; and

WHEREAS, the Commission, the Council, and the Conference executed on

March 16, 2001, the Nationwide Programmatic Agreement for the Collocation of Wireless

Antennas (the “Collocation Agreement”), in order to streamline review for the collocation of

antennas on existing towers and other structures and thereby reduce the need for the

construction of new towers (Attachment 1 to this Nationwide Agreement); and

WHEREAS, the Council, the Conference, and the Commission now agree it is

desirable to further streamline and tailor the Section 106 review process for Facilities that are

not excluded from Section 106 review under the Collocation Agreement while protecting

Historic Properties that are either listed in or eligible for listing in the National Register; and

WHEREAS, the Working Group agrees that a nationwide programmatic agreement is

a desirable and effective way to further streamline and tailor the Section 106 review process

as it applies to Facilities; and

WHEREAS, this Nationwide Agreement will, upon its execution by the Council, the

Conference, and the Commission, constitute a substitute for the Council’s rules with respect

to certain Commission Undertakings; and

WHEREAS, the Commission sought public comment on a draft of this Nationwide

Agreement through a Notice of Proposed Rulemaking released on June 9, 2003;

WHEREAS, the Commission has actively sought and received participation and

comment from Indian tribes and NHOs regarding this Nationwide Agreement; and

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WHEREAS, the Commission has consulted with federally recognized Indian tribes

regarding this Nationwide Agreement (see Report and Order, FCC 04-222, at ¶ 31); and

WHEREAS, this Nationwide Agreement provides for appropriate public notification

and participation in connection with the Section 106 process; and

WHEREAS, Section 101(d)(6) of the NHPA provides that federal agencies “shall

consult with any Indian tribe or Native Hawaiian organization” that attaches religious and

cultural significance to properties of traditional religious and cultural importance that may be

determined to be eligible for inclusion in the National Register and that might be affected by

a federal undertaking (16 U.S.C. § 470a(d)(6)); and

WHEREAS, the Commission has adopted a “Statement of Policy on Establishing a

Government-to-Government Relationship with Indian Tribes” dated June 23, 2000, pursuant

to which the Commission: recognizes the unique legal relationship that exists between the

federal government and Indian tribal governments, as reflected in the Constitution of the

United States, treaties, federal statutes, Executive orders, and numerous court decisions;

affirms the federal trust relationship with Indian tribes, and recognizes that this historic trust

relationship requires the federal government to adhere to certain fiduciary standards in its

dealings with Indian tribes; commits to working with Indian tribes on a government-to-

government basis consistent with the principles of tribal self-governance; commits, in

accordance with the federal government’s trust responsibility, and to the extent practicable,

to consult with tribal governments prior to implementing any regulatory action or policy that

will significantly or uniquely affect tribal governments, their land and resources; strives to

develop working relationships with tribal governments, and will endeavor to identify

innovative mechanisms to facilitate tribal consultations in the Commission’s regulatory

processes; and endeavors to streamline its administrative process and procedures to remove

undue burdens that its decisions and actions place on Indian tribes; and

WHEREAS, the Commission does not delegate under this Programmatic Agreement

any portion of its responsibilities to Indian tribes and NHOs, including its obligation to

consult under Section 101(d)(6) of the NHPA; and

WHEREAS, the terms of this Nationwide Agreement are consistent with and do not

attempt to abrogate the rights of Indian tribes or NHOs to consult directly with the

Commission regarding the construction of Facilities; and

WHEREAS, the execution and implementation of this Nationwide Agreement will

not preclude Indian tribes or NHOs, SHPO/THPOs, local governments, or members of the

public from filing complaints with the Commission or the Council regarding effects on

Historic Properties from any Facility or any activity covered under the terms of the

Nationwide Agreement; and

WHEREAS, Indian tribes and NHOs may request Council involvement in Section

106 cases that present issues of concern to Indian tribes or NHOs (see 36 C.F.R. Part 800,

Appendix A, Section (c)(4)); and

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WHEREAS, the Commission, after consulting with federally recognized Indian

tribes, has developed an electronic Tower Construction Notification System through which

Indian tribes and NHOs may voluntarily identify the geographic areas in which Historic

Properties to which they attach religious and cultural significance may be located, Applicants

may ascertain which participating Indian tribes and NHOs have identified such an interest in

the geographic area in which they propose to construct Facilities, and Applicants may

voluntarily provide electronic notification of proposed Facilities construction for the

Commission to forward to participating Indian tribes, NHOs, and SHPOs/THPOs; and

WHEREAS, the Council, the Conference and the Commission recognize that

Applicants’ use of qualified professionals experienced with the NHPA and Section 106 can

streamline the review process and minimize potential delays; and

WHEREAS, the Commission has created a position and hired a cultural resources

professional to assist with the Section 106 process; and

WHEREAS, upon execution of this Nationwide Agreement, the Council may still

provide advisory comments to the Commission regarding the coordination of Section 106

reviews; notify the Commission of concerns raised by consulting parties and the public

regarding an Undertaking; and participate in the resolution of adverse effects for complex,

controversial, or other non-routine projects;

NOW THEREFORE, in consideration of the above provisions and of the covenants

and agreements contained herein, the Council, the Conference and the Commission (the

“Parties”) agree as follows:

I. APPLICABILITY AND SCOPE OF THIS NATIONWIDE AGREEMENT

A. This Nationwide Agreement (1) excludes from Section 106 review certain

Undertakings involving the construction and modification of Facilities, and

(2) streamlines and tailors the Section 106 review process for other

Undertakings involving the construction and modification of Facilities. An

illustrative list of Commission activities in relation to which Undertakings

covered by this Agreement may occur is provided as Attachment 2 to this

Agreement.

B. This Nationwide Agreement applies only to federal Undertakings as

determined by the Commission (“Undertakings”). The Commission has sole

authority to determine what activities undertaken by the Commission or its

Applicants constitute Undertakings within the meaning of the NHPA.

Nothing in this Agreement shall preclude the Commission from revisiting or

affect the existing ability of any person to challenge any prior determination

of what does or does not constitute an Undertaking. Maintenance and

servicing of Towers, Antennas, and associated equipment are not deemed to

be Undertakings subject to Section 106 review.

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C. This Agreement does not apply to Antenna Collocations that are exempt from

Section 106 review under the Collocation Agreement (see Attachment 1).

Pursuant to the terms of the Collocation Agreement, such Collocations shall

not be subject to the Section 106 review process and shall not be submitted to

the SHPO/THPO for review. This Agreement does apply to collocations that

are not exempt from Section 106 review under the Collocation Agreement.

D. This Agreement does not apply on “tribal lands” as defined under Section

800.16(x) of the Council’s regulations, 36 C.F.R. § 800.16(x) (“Tribal lands

means all lands within the exterior boundaries of any Indian reservation and

all dependent Indian communities.”). This Nationwide Agreement, however,

will apply on tribal lands should a tribe, pursuant to appropriate tribal

procedures and upon reasonable notice to the Council, Commission, and

appropriate SHPO/THPO, elect to adopt the provisions of this Nationwide

Agreement. Where a tribe that has assumed SHPO functions pursuant to

Section 101(d)(2) of the NHPA (16 U.S.C. § 470(d)(2)) has agreed to

application of this Nationwide Agreement on tribal lands, the term

SHPO/THPO denotes the Tribal Historic Preservation Officer with respect to

review of proposed Undertakings on those tribal lands. Where a tribe that has

not assumed SHPO functions has agreed to application of this Nationwide

Agreement on tribal lands, the tribe may notify the Commission of the tribe’s

intention to perform the duties of a SHPO/THPO, as defined in this

Nationwide Agreement, for proposed Undertakings on its tribal lands, and in

such instances the term SHPO/THPO denotes both the State Historic

Preservation Officer and the tribe’s authorized representative. In all other

instances, the term SHPO/THPO denotes the State Historic Preservation

Officer.

E. This Nationwide Agreement governs only review of Undertakings under

Section 106 of the NHPA. Applicants completing the Section 106 review

process under the terms of this Nationwide Agreement may not initiate

construction without completing any environmental review that is otherwise

required for effects other than historic preservation under the Commission’s

rules (See 47 C.F.R. §§ 1.1301-1.1319). Completion of the Section 106

review process under this Nationwide Agreement satisfies an Applicant’s

obligations under the Commission’s rules with respect to Historic Properties,

except for Undertakings that have been determined to have an adverse effect

on Historic Properties and that therefore require preparation and filing of an

Environmental Assessment (See 47 C.F.R. § 1.1307(a)(4)).

F. This Nationwide Agreement does not govern any Section 106 responsibilities

that agencies other than the Commission may have with respect to those

agencies’ federal Undertakings.

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II. DEFINITIONS

A. The following terms are used in this Nationwide Agreement as defined below:

1. Antenna. An apparatus designed for the purpose of emitting radio

frequency (“RF”) radiation, to be operated or operating from a fixed

location pursuant to Commission authorization, 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. For most services, an Antenna will

be mounted on or in, and is distinct from, a supporting structure such

as a Tower, structure or building. However, in the case of AM

broadcast stations, the entire Tower or group of Towers constitutes the

Antenna for that station. For purposes of this Nationwide Agreement,

the term Antenna does not include unintentional radiators, mobile

stations, or devices authorized under Part 15 of the Commission's

rules.

2. Applicant. A Commission licensee, permittee, or registration holder,

or an applicant or prospective applicant for a wireless or broadcast

license, authorization or antenna structure registration, and the duly

authorized agents, employees, and contractors of any such person or

entity.

3. 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.

4. Collocation. The mounting or installation of an Antenna on an

existing Tower, building, or structure for the purpose of transmitting

radio frequency signals for telecommunications or broadcast purposes.

5. Effect. An alteration to the characteristics of a Historic Property

qualifying it for inclusion in or eligibility for the National Register.

6. Experimental Authorization. An authorization issued to conduct

experimentation utilizing radio waves for gathering scientific or

technical operation data directed toward the improvement or extension

of an established service and not intended for reception and use by the

general public. “Experimental Authorization” does not include an

“Experimental Broadcast Station” authorized under Part 74 of the

Commission's rules.

7. Facility. A Tower or an Antenna. The term Facility may also refer to

a Tower and its associated Antenna(s).

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8. Field Survey. A research strategy that utilizes one or more visits to the

area where construction is proposed as a means of identifying Historic

Properties.

9. 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 properties of

traditional religious and cultural importance to an Indian tribe or NHO

that meet the National Register criteria.

10. National Register. The National Register of Historic Places,

maintained by the Secretary of the Interior's office of the Keeper of the

National Register.

11. SHPO/THPO Inventory. A set of records of previously gathered

information, authorized by state or tribal law, on the absence, presence

and significance of historic and archeological resources within the

state or tribal land.

12. Special Temporary Authorization. Authorization granted to a

permittee or licensee to allow the operation of a station for a limited

period at a specified variance from the terms of the station's permanent

authorization or requirements of the Commission’s rules applicable to

the particular class or type of station.

13. Submission Packet. The document to be submitted initially to the

SHPO/THPO to facilitate review of the Applicant's findings and any

determinations with regard to the potential impact of the proposed

Undertaking on Historic Properties in the APE. There are two

Submission Packets: (a) The New Tower Submission Packet (FCC

Form 620) (See Attachment 3) and (b) The Collocation Submission

Packet (FCC Form 621) (See Attachment 4). Any documents required

to be submitted along with a Form are part of the Submission Packet.

14. Tower. Any structure built for the sole or primary purpose of

supporting Commission-licensed or authorized Antennas, 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.

B. All other terms not defined above or elsewhere in this Nationwide Agreement

shall have the same meaning as set forth in the Council’s rules section on

Definitions (36 C.F.R. § 800.16) or the Commission’s rules (47

C.F.R. Chapter I).

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C. For the calculation of time periods under this Agreement, “days” mean

“calendar days.” Any time period specified in the Agreement that ends on a

weekend or a Federal or State holiday is extended until the close of the

following business day.

D. Written communications include communications by e-mail or facsimile.

III. UNDERTAKINGS EXCLUDED FROM SECTION 106 REVIEW

Undertakings that fall within the provisions listed in the following sections III.A.

through III.F. are excluded from Section 106 review by the SHPO/THPO, the

Commission, and the Council, and, accordingly, shall not be submitted to the

SHPO/THPO for review. The determination that an exclusion applies to an

Undertaking should be made by an authorized individual within the Applicant’s

organization, and Applicants should retain documentation of their determination that

an exclusion applies. Concerns regarding the application of these exclusions from

Section 106 review may be presented to and considered by the Commission pursuant

to Section XI.

A. Enhancement of a tower and any associated excavation that does not involve a

collocation and does not substantially increase the size of the existing tower,

as defined in the Collocation Agreement. For towers constructed after March

16, 2001, this exclusion applies only if the tower has completed the Section

106 review process and any associated environmental reviews required by the

Commission.

B. Construction of a replacement for an existing communications tower and any

associated excavation that does not substantially increase the size of the

existing tower under elements 1-3 of the definition as defined in the

Collocation Agreement (see Attachment 1 to this Agreement, Stipulation

1.c.1-3) and that does not expand the boundaries of the leased or owned

property surrounding the tower by more than 30 feet in any direction or

involve excavation outside these expanded boundaries or outside any existing

access or utility easement related to the site. For towers constructed after

March 16, 2001, this exclusion applies only if the tower has completed the

Section 106 review process and any associated environmental reviews

required by the Commission’s rules.

C. Construction of any temporary communications Tower, Antenna structure, or

related Facility that involves no excavation or where all areas to be excavated

will be located in areas described in Section VI.D.2.c.i below, including but

not limited to the following:

1. A Tower or Antenna authorized by the Commission for a temporary

period, such as any Facility authorized by a Commission grant of

Special Temporary Authority (“STA”) or emergency authorization;

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2. A cell on wheels (COW) transmission Facility;

3. A broadcast auxiliary services truck, TV pickup station, remote pickup

broadcast station (e.g., electronic newsgathering vehicle) authorized

under Part 74 or temporary fixed or transportable earth station in the

fixed satellite service (e.g., satellite newsgathering vehicle) authorized

under Part 25;

4. A temporary ballast mount Tower;

5. Any Facility authorized by a Commission grant of an experimental

authorization.

For purposes of this Section III.C, the term “temporary” means “for no more

than twenty-four months duration except in the case of those Facilities

associated with national security.”

D. Construction of a Facility less than 200 feet in overall height above ground

level in an existing industrial park,

commercial strip mall,

or shopping

center

that occupies a total land area of 100,000 square feet or more,

provided that the industrial park, strip mall, or shopping center is not located

within the boundaries of or within 500 feet of a Historic Property, as identified

by the Applicant after a preliminary search of relevant records. Proposed

Facilities within this exclusion must complete the process of participation of

Indian tribes and NHOs pursuant to Section IV of this Agreement. If as a

result of this process the Applicant or the Commission identifies a Historic

Property that may be affected, the Applicant must complete the Section 106

review process pursuant to this Agreement notwithstanding the exclusion.

E. Construction of a Facility in or within 50 feet of the outer boundary of a right-

of-way designated by a Federal, State, local, or Tribal government for the

location of communications Towers or above-ground utility transmission or

A tract of land that is planned, developed, and operated as an integrated facility for a number of

individual industrial uses, with consideration to transportation facilities, circulation, parking, utility

needs, aesthetics and compatibility.

A structure or grouping of structures, housing retail business, set back far enough from the street to

permit parking spaces to be placed between the building entrances and the public right of way.

A group of commercial establishments planned, constructed, and managed as a total entity, with

customer and employee parking provided on-site, provision for goods delivery separated from

customer access, aesthetic considerations and protection from the elements, and landscaping and

signage in accordance with an approved plan.

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distribution lines and associated structures and equipment and in active use for

such purposes, provided:

1. The proposed Facility would not constitute a substantial increase in

size, under elements 1-3 of the definition in the Collocation

Agreement, over existing structures located in the right-of-way within

the vicinity of the proposed Facility, and;

2. The proposed Facility would not be located within the boundaries of a

Historic Property, as identified by the Applicant after a preliminary

search of relevant records.

Proposed Facilities within this exclusion must complete the process of

participation of Indian tribes and NHOs pursuant to Section IV of this

Agreement. If as a result of this process the Applicant or the Commission

identifies a Historic Property that may be affected, the Applicant must

complete the Section 106 review process pursuant to this Agreement

notwithstanding the exclusion.

F. Construction of a Facility in any area previously designated by the

SHPO/THPO at its discretion, following consultation with appropriate Indian

tribes and NHOs, as having limited potential to affect Historic Properties.

Such designation shall be documented by the SHPO/THPO and made

available for public review.

IV. PARTICIPATION OF INDIAN TRIBES AND NATIVE HAWAIIAN

ORGANIZATIONS IN UNDERTAKINGS OFF TRIBAL LANDS

A. The Commission recognizes its responsibility to carry out consultation with

any Indian tribe or NHO that attaches religious and cultural significance to a

Historic Property if the property may be affected by a Commission

undertaking. This responsibility is founded in Sections 101(d)(6)(a-b) and

106 of the NHPA (16 U.S.C. §§ 470a(d)(6)(a-b) and 470f), the regulations of

the Council (36 C.F.R. Part 800), the Commission’s environmental

regulations (47 C.F.R. §§ 1.1301-1.1319), and the unique legal relationship

that exists between the federal government and Indian Tribal governments, as

reflected in the Constitution of the United States, treaties, federal statutes,

Executive orders, and numerous court decisions. This historic trust

relationship requires the federal government to adhere to certain fiduciary

standards in its dealings with Indian Tribes. (Commission Statement of Policy

on Establishing a Government-to-Government Relationship with Indian

Tribes).

B. As an initial step to enable the Commission to fulfill its duty of consultation,

Applicants shall use reasonable and good faith efforts to identify any Indian

tribe or NHO that may attach religious and cultural significance to Historic

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Properties that may be affected by an Undertaking. Applicants should be

aware that frequently, Historic Properties of religious and cultural significance

to Indian tribes and NHOs are located on ancestral, aboriginal, or ceded lands

of such tribes and organizations and Applicants should take this into account

when complying with their responsibilities. Where an Indian tribe or NHO

has voluntarily provided information to the Commission’s Tower

Construction Notification System regarding the geographic areas in which

Historic Properties of religious and cultural significance to that Indian tribe or

NHO may be located, reference to the Tower Construction Notification

System shall constitute a reasonable and good faith effort at identification

with respect to that Indian tribe or NHO. In addition, such reasonable and

good faith efforts may include, but are not limited to, seeking relevant

information from the relevant SHPO/THPO, Indian tribes, state agencies, the

U.S. Bureau of Indian Affairs (“BIA”), or, where applicable, any federal

agency with land holdings within the state (e.g., the U.S. Bureau of Land

Management). Although these agencies can provide useful information in

identifying potentially affected Indian tribes, contacting BIA, the SHPO or

other federal and state agencies is not a substitute for seeking information

directly from Indian tribes that may attach religious and cultural significance

to a potentially affected Historic Property, as described below.

C. After the Applicant has identified Indian tribes and NHOs that may attach

religious and cultural significance to potentially affected Historic Properties,

the Commission has the responsibility, and the Commission imposes on the

Applicant the obligation, to ensure that contact is made at an early stage in the

planning process with such Indian tribes and NHOs in order to begin the

process of ascertaining whether such Historic Properties may be affected.

This initial contact shall be made by the Commission or the Applicant, in

accordance with the wishes of the Indian tribe or NHO. This contact shall

constitute only an initial effort to contact the Indian tribe or NHO, and does

not in itself fully satisfy the Applicant’s obligations or substitute for

government-to-government consultation unless the Indian tribe or NHO

affirmatively disclaims further interest or the Indian tribe or NHO has

otherwise agreed that such contact is sufficient. Depending on the preference

of the Indian tribe or NHO, the means of initial contact may include, without

limitation:

1. Electronic notification through the Commission’s Tower Construction

Notification System;

2. Written communication from the Commission at the request of the

Applicant;

3. Written, e-mail, or telephonic notification directly from the Applicant

to the Indian tribe or NHO;

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4. Any other means that the Indian Tribe or NHO has informed the

Commission are acceptable, including through the adoption of best

practices pursuant to Section IV.J, below; or

5. Any other means to which an Indian tribe or NHO and an Applicant

have agreed pursuant to Section IV.K, below.

D. The Commission will use its best efforts to ascertain the preferences of each

Indian tribe and NHO for initial contact, and to make these preferences

available to Applicants in a readily accessible format. In addition, the

Commission will use its best efforts to ascertain, and to make available to

Applicants, any locations or types of construction projects, within the broad

geographic areas in which Historic Properties of religious and cultural

significance to an Indian tribe or NHO may be located, for which the Indian

tribe or NHO does not expect notification. To the extent they are comfortable

doing so, the Commission encourages Indian tribes and NHOs to accept the

Tower Construction Notification System as an efficient and thorough means

of making initial contact.

E. In the absence of any contrary indication of an Indian tribe’s or NHO’s

preference, where an Applicant does not have a pre-existing relationship with

an Indian tribe or NHO, initial contact with the Indian tribe or NHO shall be

made through the Commission. Unless the Indian tribe or NHO has indicated

otherwise, the Commission may make this initial contact through the Tower

Construction Notification System. An Applicant that has a pre-existing

relationship with an Indian tribe or NHO shall make initial contact in the

manner that is customary to that relationship or in such other manner as may

be accepted by the Indian tribe or NHO. An Applicant shall copy the

Commission on any initial written or electronic direct contact with an Indian

tribe or NHO, unless the Indian tribe or NHO has agreed through a best

practices agreement or otherwise that such copying is not necessary.

F. Applicants’ direct contacts with Indian tribes and NHOs, where accepted by

the Indian tribe or NHO, shall be made in a sensitive manner that is consistent

with the reasonable wishes of the Indian tribe or NHO, where such wishes are

known or can be reasonably ascertained. In general, unless an Indian tribe or

NHO has provided guidance to the contrary, Applicants shall follow the

following guidelines:

1. All communications with Indian tribes shall be respectful of tribal

sovereignty;

2. Communications shall be directed to the appropriate representative

designated or identified by the tribal government or other governing

body;

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3. Applicants shall provide all information reasonably necessary for the

Indian tribe or NHO to evaluate whether Historic Properties of

religious and cultural significance may be affected. The parties

recognize that it may be neither feasible nor desirable to provide

complete information about the project at the time of initial contact,

particularly when initial contact is made early in the process. Unless

the Indian tribe or NHO affirmatively disclaims interest, however, it

shall be provided with complete information within the earliest

reasonable time frame;

4. The Applicant must ensure that Indian tribes and NHOs have a

reasonable opportunity to respond to all communications. Ordinarily,

30 days from the time the relevant tribal or NHO representative may

reasonably be expected to have received an inquiry shall be considered

a reasonable time. Should a tribe or NHO request additional time to

respond, the Applicant shall afford additional time as reasonable under

the circumstances. However, where initial contact is made

automatically through the Tower Construction Notification System,

and where an Indian tribe or NHO has stated that it is not interested in

reviewing proposed construction of certain types or in certain

locations, the Applicant need not await a response to contact regarding

proposed construction meeting that description;

5. Applicants should not assume that failure to respond to a single

communication establishes that an Indian tribe or NHO is not

interested in participating, but should make a reasonable effort to

follow up.

G. The purposes of communications between the Applicant and Indian tribes or

NHOs are: (1) to ascertain whether Historic Properties of religious and

cultural significance to the Indian tribe or NHO may be affected by the

undertaking and consultation is therefore necessary, and (2) where possible,

with the concurrence of the Indian tribe or NHO, to reach an agreement on the

presence or absence of effects that may obviate the need for consultation.

Accordingly, the Applicant shall promptly refer to the Commission any

request from a federally recognized Indian tribe for government-to-

government consultation. The Commission will then carry out government-

to-government consultation with the Indian tribe. Applicants shall also seek

guidance from the Commission in the event of any substantive or procedural

disagreement with an Indian tribe or NHO, or if the Indian tribe or NHO does

not respond to the Applicant’s inquiries. Applicants are strongly advised to

seek guidance from the Commission in cases of doubt.

H. If an Indian tribe or NHO indicates that a Historic Property of religious and

cultural significance to it may be affected, the Applicant shall invite the

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commenting tribe or organization to become a consulting party. If the Indian

tribe or NHO agrees to become a consulting party, it shall be afforded that

status and shall be provided with all of the information, copies of submissions,

and other prerogatives of a consulting party as provided for in 36

C.F.R. § 800.2.

I. Information regarding Historic Properties to which Indian tribes or NHOs

attach religious and cultural significance may be highly confidential, private,

and sensitive. If an Indian tribe or NHO requests confidentiality from the

Applicant, the Applicant shall honor this request and shall, in turn, request

confidential treatment of such materials or information in accordance with the

Commission’s rules and Section 304 of the NHPA (16 U.S.C. § 470w-3(a)) in

the event they are submitted to the Commission. The Commission shall

provide such confidential treatment consistent with its rules and applicable

federal laws. Although the Commission will strive to protect the privacy

interests of all parties, the Commission cannot guarantee its own ability or the

ability of Applicants to protect confidential, private, and sensitive information

from disclosure under all circumstances.

J. In order to promote efficiency, minimize misunderstandings, and ensure that

communications among the parties are made in accordance with each Indian

tribe or NHO’s reasonable preferences, the Commission will use its best

efforts to arrive at agreements regarding best practices with Indian tribes and

NHOs and their representatives. Such best practices may include means of

making initial contacts with Indian tribes and NHOs as well as guidelines for

subsequent discussions between Applicants and Indian tribes or NHOs in

fulfillment of the requirements of the Section 106 process. To the extent

possible, the Commission will strive to achieve consistency among best

practice agreements with Indian tribes and NHOs. Where best practices exist,

the Commission encourages Applicants to follow those best practices.

K. Nothing in this Section shall be construed to prohibit or limit Applicants and

Indian tribes or NHOs from entering into or continuing pre-existing

arrangements or agreements governing their contacts, provided such

arrangements or agreements are otherwise consistent with federal law and no

modification is made in the roles of other parties to the process under this

Nationwide Agreement without their consent. Documentation of such

alternative arrangements or agreements should be filed with the Commission.

V. PUBLIC PARTICIPATION AND CONSULTING PARTIES

A. On or before the date an Applicant submits the appropriate Submission Packet

to the SHPO/THPO, as prescribed by Section VII, below, the Applicant shall

provide the local government that has primary land use jurisdiction over the

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site of the planned Undertaking with written notification of the planned

Undertaking.

B. On or before the date an Applicant submits the appropriate Submission Packet

to the SHPO/THPO, as prescribed by Section VII, below, the Applicant shall

provide written notice to the public of the planned Undertaking. Such notice

may be accomplished (1) through the public notification provisions of the

relevant local zoning or local historic preservation process for the proposed

Facility; or (2) by publication in a local newspaper of general circulation. In

the alternative, an Applicant may use other appropriate means of providing

public notice, including seeking the assistance of the local government.

C. The written notice to the local government and to the public shall include:

(1) the location of the proposed Facility including its street address; (2) a

description of the proposed Facility including its height and type of structure;

(3) instruction on how to submit comments regarding potential effects on

Historic Properties; and (4) the name, address, and telephone number of a

contact person.

D. A SHPO/THPO may make available lists of other groups, including Indian

tribes, NHOs and organizations of Indian tribes or NHOs, which should be

provided notice for Undertakings to be located in particular areas.

E. If the Applicant receives a comment regarding potentially affected Historic

Properties, the Applicant shall consider the comment and either include it in

the initial submission to the SHPO/THPO, or, if the initial submission has

already been made, immediately forward the comment to the SHPO/THPO for

review. An Applicant need not submit to the SHPO/THPO any comment that

does not substantially relate to potentially affected Historic Properties.

F. The relevant SHPO/THPO, Indian tribes and NHOs that attach religious and

cultural significance to Historic Properties that may be affected, and the local

government are entitled to be consulting parties in the Section 106 review of

an Undertaking. The Council may enter the Section 106 process for a given

Undertaking, on Commission invitation or on its own decision, in accordance

with 36 C.F.R. Part 800, Appendix A. An Applicant shall consider all written

requests of other individuals and organizations to participate as consulting

parties and determine which should be consulting parties. An Applicant is

encouraged to grant such status to individuals or organizations with a

demonstrated legal or economic interest in the Undertaking, or demonstrated

expertise or standing as a representative of local or public interest in historic

or cultural resources preservation. Any such individual or organization denied

consulting party status may petition the Commission for review of such

denial. Applicants may seek assistance from the Commission in identifying

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and involving consulting parties. All entities granted consulting party status

shall be identified to the SHPO/THPO as part of the Submission Packet.

G. Consulting parties are entitled to: (1) receive notices, copies of submission

packets, correspondence and other documents provided to the SHPO/THPO in

a Section 106 review; and (2) be provided an opportunity to have their views

expressed and taken into account by the Applicant, the SHPO/THPO and,

where appropriate, by the Commission.

VI. IDENTIFICATION, EVALUATION, AND ASSESSMENT OF EFFECTS

A. In preparing the Submission Packet for the SHPO/THPO and consulting

parties pursuant to Section VII of this Nationwide Agreement and

Attachments 3 and 4, the Applicant shall: (1) define the area of potential

effects (APE); (2) identify Historic Properties within the APE; (3) evaluate the

historic significance of identified properties as appropriate; and (4) assess the

effects of the Undertaking on Historic Properties. The standards and

procedures described below shall be applied by the Applicant in preparing the

Submission Packet, by the SHPO/THPO in reviewing the Submission Packet,

and where appropriate, by the Commission in making findings.

B. Exclusion of Specific Geographic Areas from Review.

The SHPO/THPO, consistent with relevant State or tribal procedures, may

specify geographic areas in which no review is required for direct effects on

archeological resources or no review is required for visual effects.

C. Area of Potential Effects.

1. The term “Area of Potential Effects” is defined in Section II.A.3 of

this Nationwide Agreement. For purposes of this Nationwide

Agreement, the APE for direct effects and the APE for visual effects

are further defined and are to be established as described below.

2. The APE for direct effects is limited to the area of potential ground

disturbance and any property, or any portion thereof, that will be

physically altered or destroyed by the Undertaking.

3. The APE for visual effects is the geographic area in which the

Undertaking has the potential to introduce visual elements that

diminish or alter the setting, including the landscape, where the setting

is a character-defining feature of a Historic Property that makes it

eligible for listing on the National Register.

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4. Unless otherwise established through consultation with the

SHPO/THPO, the presumed APE for visual effects for construction of

new Facilities is the area from which the Tower will be visible:

a. Within a half mile from the tower site if the proposed Tower is

200 feet or less in overall height;

b. Within ¾ of a mile from the tower site if the proposed Tower is

more than 200 but no more than 400 feet in overall height; or

c. Wthin 1 ½ miles from the proposed tower site if the proposed

Tower is more than 400 feet in overall height.

5. In the event the Applicant determines, or the SHPO/THPO

recommends, that an alternative APE for visual effects is necessary,

the Applicant and the SHPO/THPO may mutually agree to an

alternative APE.

6. If the Applicant and the SHPO/THPO, after using good faith efforts,

cannot reach an agreement on the use of an alternative APE, either the

Applicant or the SHPO/THPO may submit the issue to the

Commission for resolution. The Commission shall make its

determination concerning an alternative APE within a reasonable time.

D. Identification and Evaluation of Historic Properties.

1. Identification and Evaluation of Historic Properties Within the APE

for Visual Effects.

a. Except to identify Historic Properties of religious and cultural

significance to Indian tribes and NHOs, Applicants shall

identify Historic Properties within the APE for visual effects

by reviewing the following records. Applicants are required to

review such records only to the extent they are available at the

offices of the SHPO/THPO or can be found in publicly

available sources identified by the SHPO/THPO. With respect

to these properties, Applicants are not required to undertake a

Field Survey or other measures other than reviewing these

records in order to identify Historic Properties:

i. Properties listed in the National Register;

ii. Properties formally determined eligible for listing by

the Keeper of the National Register;

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iii. Properties that the SHPO/THPO certifies are in the

process of being nominated to the National Register;

iv. 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 (HUD); and

v. Properties listed in the SHPO/THPO Inventory that the

SHPO/THPO has previously evaluated and found to

meet the National Register criteria, and that are

identified accordingly in the SHPO/THPO Inventory.

b. At an early stage in the planning process and in accordance

with Section IV of this Nationwide Agreement, the

Commission or the Applicant, as appropriate, shall gather

information from Indian tribes or NHOs identified pursuant to

Section IV.B to assist in identifying Historic Properties of

religious and cultural significance to them within the APE for

visual effects. Such information gathering may include a Field

Survey where appropriate.

c. Based on the sources listed above and public comment

received pursuant to Section V of this Nationwide Agreement,

the Applicant shall include in its Submission Packet a list of

properties it has identified as apparent Historic Properties

within the APE for visual effects.

i. During the review period described in Section VII.A,

the SHPO/THPO may identify additional properties

included in the SHPO/THPO Inventory and located

within the APE that the SHPO/THPO considers eligible

for listing on the National Register, and notify the

Applicant pursuant to Section VII.A.4.

ii. The SHPO/THPO may also advise the Applicant that

previously identified properties on the list no longer

qualify for inclusion in the National Register.

d. Applicants are encouraged at their discretion to use the services

of professionals who meet the Secretary of the Interior’s

Professional Qualification Standards when identifying Historic

Properties within the APE for visual effects.

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e. Applicants are not required to evaluate the historic significance

of properties identified pursuant to Section VI.D.1.a., but may

rely on the previous evaluation of these properties. Applicants

may, at their discretion, evaluate whether such properties are

no longer eligible for inclusion in the National Register and

recommend to the SHPO/THPO their removal from

consideration. Any such evaluation shall be performed by a

professional who meets the Secretary of the Interior’s

Professional Qualification Standards.

2. Identification and Evaluation of Historic Properties Within the APE

for Direct Effects.

a. In addition to the properties identified pursuant to Section

VI.D.1, Applicants shall make a reasonable good faith effort to

identify other above ground and archeological Historic

Properties, including buildings, structures, and historic

districts, that lie within the APE for direct effects. Such

reasonable and good faith efforts may include a Field Survey

where appropriate.

b. Identification and evaluation of Historic Properties within the

APE for direct effects, including any finding that an

archeological Field Survey is not required, shall be undertaken

by a professional who meets the Secretary of the Interior’s

Professional Qualification Standards. Identification and

evaluation relating to archeological resources shall be

performed by a professional who meets the Secretary of the

Interior’s Professional Qualification Standards in archeology.

c. Except as provided below, the Applicant need not undertake a

Field Survey for archeological resources where:

i. the depth of previous disturbance exceeds the proposed

construction depth (excluding footings and other

anchoring mechanisms) by at least 2 feet as

documented in the Applicant’s siting analysis; or

ii. geomorphological evidence indicates that cultural

resource-bearing soils do not occur within the project

area or may occur but at depths that exceed 2 feet

below the proposed construction depth.

d. At an early stage in the planning process and in accordance

with Section IV of this Nationwide Agreement, the

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Commission or the Applicant, as appropriate, shall gather

information from Indian tribes or NHOs identified pursuant to

Section IV.B to assist in identifying archeological Historic

Properties of religious and cultural significance to them within

the APE for direct effects. If an Indian tribe or NHO provides

evidence that supports a high probability of the presence of

intact archeological Historic Properties within the APE for

direct effects, the Applicant shall conduct an archeological

Field Survey notwithstanding Section VI.D.2.c.

e. Where the Applicant pursuant to Sections VI.D.2.c and

VI.D.2.d finds that no archeological Field Survey is necessary,

it shall include in its Submission Packet a report substantiating

this finding. During the review period described in Section

VII.A, the SHPO/THPO may, based on evidence that supports

a high probability of the presence of intact archeological

Historic Properties within the APE for direct effects, notify the

Applicant that the Submission Packet is inadequate without an

archeological Field Survey pursuant to Section VII.A.4.

f. The Applicant shall conduct an archeological Field Survey

within the APE for direct effects if neither of the conditions in

Section VI.D.2.c applies, or if required pursuant to Section

VI.D.2.d or e. The Field Survey shall be conducted in consul-

tation with the SHPO/THPO and consulting Indian tribes or

NHOs.

g. The Applicant, in consultation with the SHPO/THPO and

appropriate Indian tribes or NHOs, shall apply the National

within the APE for direct effects that have not previously been

evaluated for National Register eligibility, with the exception

of those identified pursuant to Section VI.D.1.a.

3. Dispute Resolution

Where there is a disagreement regarding the identification or eligibility

of a property, and after attempting in good faith to resolve the issue the

Applicant and the SHPO/THPO continue to disagree, the Applicant or

the SHPO/THPO may submit the issue to the Commission. The

Commission shall handle such submissions in accordance with 36

C.F.R. § 800.4(c)(2).

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E. Assessment of Effects

1. Applicants shall assess effects of the Undertaking on Historic

Properties using the Criteria of Adverse Effect (36 C.F.R.

§ 800.5(a)(1)).

2. In determining whether Historic Properties in the APE may be

adversely affected by the Undertaking, the Applicant should consider

factors such as the topography, vegetation, known presence of Historic

Properties, and existing land use.

3. An Undertaking will have a visual adverse effect on a Historic

Property if the visual effect from the Facility will noticeably diminish

the integrity of one or more of the characteristics qualifying the

property for inclusion in or eligibility for the National Register.

Construction of a Facility will not cause a visual adverse effect except

where visual setting or visual elements are character-defining features

of eligibility of a Historic Property located within the APE.

4. For collocations not excluded from review by the Collocation

Agreement or this Agreement, the assessment of effects will consider

only effects from the newly added or modified Facilities and not

effects from the existing Tower or Antenna.

5. Assessment pursuant to this Agreement shall be performed by

professionals who meet the Secretary of the Interior’s Professional

Qualification Standards.

VII. PROCEDURES

A. Use of the Submission Packet.

1. For each Undertaking within the scope of this Nationwide Agreement,

the Applicant shall initially determine whether there are no Historic

Properties affected, no adverse effect on Historic Properties, or an

adverse effect on Historic Properties. The Applicant shall prepare a

Submission Packet and submit it to the SHPO/THPO and to all

consulting parties, including any Indian tribe or NHO that is

participating as a consulting party.

2. The SHPO/THPO shall have 30 days from receipt of the requisite

documentation to review the Submission Packet.

3. If the SHPO/THPO receives a comment or objection, in accordance

with Section V.E, more than 25 but less than 31 days following its

receipt of the initial submission, the SHPO/THPO shall have five

calendar days to consider such comment or objection before the

Section 106 process is complete or the matter may be submitted to the

Commission.

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4. If the SHPO/THPO determines the Applicant’s Submission Packet is

inadequate, or if the SHPO/THPO identifies additional Historic

Properties within the APE, the SHPO/THPO will immediately notify

the Applicant and describe any deficiencies. The SHPO/THPO may

close its file without prejudice if the Applicant does not resubmit an

amended Submission Packet within 60 days following the Applicant’s

receipt of the returned Submission Packet. Resubmission of the

Submission Packet to the SHPO/THPO commences a new 30 day

period for review.

B. Determinations of No Historic Properties Affected.

1. If the SHPO/THPO concurs in writing with the Applicant’s

determination of no Historic Properties affected, it is deemed that no

Historic Properties exist within the APE or the Undertaking will have

no effect on any Historic Properties located within the APE. The

Section 106 process is then complete, and the Applicant may proceed

with the project, unless further processing for reasons other than

Section 106 is required.

2. If the SHPO/THPO does not provide written notice to the Applicant

that it agrees or disagrees with the Applicant’s determination of no

Historic Properties affected within 30 days following receipt of a

complete Submission Packet, it is deemed that no Historic Properties

exist within the APE or the Undertaking will have no effect on

Historic Properties. The Section 106 process is then complete and the

Applicant may proceed with the project, unless further processing for

reasons other than Section 106 is required.

3. If the SHPO/THPO provides written notice within 30 days following

receipt of the Submission Packet that it disagrees with the Applicant’s

determination of no Historic Properties affected, it should provide a

short and concise explanation of exactly how the criteria of eligibility

and/or criteria of Adverse Effect would apply. The Applicant and the

SHPO/THPO should engage in further discussions and make a

reasonable and good faith effort to resolve their disagreement.

4. If the SHPO/THPO and Applicant do not resolve their disagreement,

the Applicant may at any time choose to submit the matter, together

with all relevant documents, to the Commission, advising the

SHPO/THPO accordingly.

C. Determinations of No Adverse Effect.

1. If the SHPO/THPO concurs in writing with the Applicant’s

determination of no adverse effect, the Facility is deemed to have no

adverse effect on Historic Properties. The Section 106 process is then

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complete and the Applicant may proceed with the project, unless

further processing for reasons other than Section 106 is required.

2. If the SHPO/THPO does not provide written notice to the Applicant

that it agrees or disagrees with the Applicant’s determination of no

adverse effect within thirty days following its receipt of a complete

Submission Packet, the SHPO/THPO is presumed to have concurred

with the Applicant’s determination. The Applicant shall, pursuant to

procedures to be promulgated by the Commission, forward a copy of

its Submission Packet to the Commission, together with all

correspondence with the SHPO/THPO and any comments or

objections received from the public, and advise the SHPO/THPO

accordingly. The Section 106 process shall then be complete unless

the Commission notifies the Applicant otherwise within 15 days after

the Commission receives the Submission Packet and accompanying

material electronically or 25 days after the Commission receives this

material by other means.

3. If the SHPO/THPO provides written notice within 30 days following

receipt of the Submission Packet that it disagrees with the Applicant’s

determination of no adverse effect, it should provide a short and

concise explanation of the Historic Properties it believes to be affected

and exactly how the criteria of Adverse Effect would apply. The

Applicant and the SHPO/THPO should engage in further discussions

and make a reasonable and good faith effort to resolve their

disagreement.

4. If the SHPO/THPO and Applicant do not resolve their dispute, the

Applicant may at any time choose to submit the matter, together with

all relevant documents, to the Commission, advising the SHPO/THPO

accordingly.

5. Whenever the Applicant or the Commission concludes, or a

SHPO/THPO advises, that a proposed project will have an adverse

effect on a Historic Property, after applying the criteria of Adverse

Effect, the Applicant and the SHPO/THPO are encouraged to

investigate measures that would avoid the adverse effect and permit a

conditional “No Adverse Effect” determination.

6. If the Applicant and SHPO/THPO mutually agree upon conditions that

will result in no adverse effect, the Applicant shall advise the

SHPO/THPO in writing that it will comply with the conditions. The

Applicant can then make a determination of no adverse effect subject

to its implementation of the conditions. The Undertaking is then

deemed conditionally to have no adverse effect on Historic Properties,

and the Applicant may proceed with the project subject to compliance

with those conditions. Where the Commission has previously been

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involved in the matter, the Applicant shall notify the Commission of

this resolution.

D. Determinations of Adverse Effect.

1. If the Applicant determines at any stage in the process that an

Undertaking would have an adverse effect on Historic Properties

within the APE(s), or if the Commission so finds, the Applicant shall

submit to the SHPO/THPO a plan designed to avoid, minimize, or

mitigate the adverse effect.

2. The Applicant shall forward a copy of its submission with its

mitigation plan and the entire record to the Council and the

Commission. Within fifteen days following receipt of the Applicant’s

submission, the Council shall indicate whether it intends to participate

in the negotiation of a Memorandum of Agreement by notifying both

the Applicant and the Commission.

3. Where the Undertaking would have an adverse effect on a National

Historic Landmark, the Commission shall request the Council to

participate in consultation and shall invite participation by the

Secretary of the Interior.

4. The Applicant, SHPO/THPO, and consulting parties shall negotiate a

Memorandum of Agreement that shall be sent to the Commission for

review and execution.

5. If the parties are unable to agree upon mitigation measures, they shall

submit the matter to the Commission, which shall coordinate

additional actions in accordance with the Council’s rules, including

36 C.F.R. §§ 800.6(b)(1)(v) and 800.7.

E. Retention of Information.

The SHPO/THPO shall, subject to applicable state or tribal laws and

regulations, and in accordance with its rules and procedures governing historic

property records, retain the information in the Submission Packet pertaining to

the location and National Register eligibility of Historic Properties and make

such information available to Federal agencies and Applicants in other Section

106 reviews, where disclosure is not prevented by the confidentiality

standards in 36 C.F.R. § 800.11(c).

F. Removal of Obsolete Towers.

Applicants that construct new Towers under the terms of this Nationwide

Agreement adjacent to or within the boundaries of a Historic Property are

encouraged to disassemble such Towers should they become obsolete or

remain vacant for a year or more.

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VIII. EMERGENCY SITUATIONS

Unless the Commission deems it necessary to issue an emergency authorization in

accordance with its rules, or the Undertaking is otherwise excluded from Section 106

review pursuant to the Collocation Agreement or Section III of this Agreement, the

procedures in this Agreement shall apply.

IX. INADVERTENT OR POST-REVIEW DISCOVERIES

A. In the event that an Applicant discovers a previously unidentified site within

the APE that may be a Historic Property that would be affected by an

Undertaking, the Applicant shall promptly notify the Commission, the

SHPO/THPO and any potentially affected Indian tribe or NHO, and within a

reasonable time shall submit to the Commission, the SHPO/THPO and any

potentially affected Indian tribe or NHO, a written report evaluating the

property’s eligibility for inclusion in the National Register. The Applicant

shall seek the input of any potentially affected Indian tribe or NHO in

preparing this report. If found during construction, construction must cease

until evaluation has been completed.

B. If the Applicant and SHPO/THPO concur that the discovered resource is

eligible for listing in the National Register, the Applicant will consult with the

SHPO/THPO, and Indian tribes or NHOs as appropriate, to evaluate measures

that will avoid, minimize, or mitigate adverse effects. Upon agreement

regarding such measures, the Applicant shall implement them and notify the

Commission of its action.

C. If the Applicant and SHPO/THPO cannot reach agreement regarding the

eligibility of a property, the matter will be referred to the Commission for

review in accordance with Section VI.D.3. If the Applicant and the

SHPO/THPO cannot reach agreement on measures to avoid, minimize, or

mitigate adverse effects, the matter shall be referred to the Commission for

appropriate action.

D. If the Applicant discovers any human or burial remains during implementation

of an Undertaking, the Applicant shall cease work immediately, notify the

SHPO/THPO and Commission, and adhere to applicable State and Federal

laws regarding the treatment of human or burial remains.

X. CONSTRUCTION PRIOR TO COMPLIANCE WITH SECTION 106

A. The terms of Section 110(k) of the National Historic Preservation Act

(16 U.S.C. § 470h-2(k)) (“Section 110(k)”) apply to Undertakings covered by

this Agreement. Any SHPO/THPO, potentially affected Indian tribe or NHO,

the Council, or a member of the public may submit a complaint to the

Commission alleging that a facility has been constructed or partially

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constructed after the effective date of this Agreement in violation of Section

110(k). Any such complaint must be in writing and supported by substantial

evidence specifically describing how Section 110(k) has been violated. Upon

receipt of such complaint the Commission will assume responsibility for

investigating the applicability of Section 110(k) in accordance with the

provisions herein.

B. If upon its initial review, the Commission concludes that a complaint on its

face demonstrates a probable violation of Section 110(k), the Commission

will immediately notify and provide the relevant Applicant with copies of the

Complaint and order that all construction of a new tower or installation of any

new collocations immediately cease and remain suspended pending the

Commission’s resolution of the complaint.

C. Within 15 days of receipt, the Commission will review the complaint and take

appropriate action, which the Commission may determine, and which may

include the following:

1. Dismiss the complaint without further action if the complaint does not

establish a probable violation of Section 110(k) even if the allegations

are taken as true;

2. Provide the Applicant with a copy of the complaint and request a

written response within a reasonable time;

3. Request from the Applicant a background report which documents the

history and chronology of the planning and construction of the

Facility;

4. Request from the Applicant a summary of the steps taken to comply

with the requirements of Section 106 as set forth in this Nationwide

Agreement, particularly the application of the Criteria of Adverse

Effect;

5. Request from the Applicant copies of any documents regarding the

planning or construction of the Facility, including correspondence,

memoranda, and agreements;

6. If the Facility was constructed prior to full compliance with the

requirements of Section 106, request from the Applicant an

explanation for such failure, and possible measures that can be taken to

mitigate any resulting adverse effects on Historic Properties.

D. If the Commission concludes that there is a probable violation of Section

110(k) (i.e., that “with intent to avoid the requirements of Section 106, [an

Applicant] has intentionally significantly adversely affected a Historic

Property”), the Commission shall notify the Applicant and forward a copy of

the documentation set forth in Section X.C. to the Council and, as appropriate,

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the SHPO/THPO and other consulting parties, along with the Commission’s

opinion regarding the probable violation of Section 110(k). The Commission

will consider the views of the consulting parties in determining a resolution,

which may include negotiating a Memorandum of Agreement (MOA) that

will resolve any adverse effects. The Commission, SHPO/THPO, Council,

and Applicant shall sign the MOA to evidence acceptance of the mitigation

plan and conclusion of the Section 106 review process.

E. Nothing in Section X or any other provision of this Agreement shall preclude

the Commission from continuing or instituting enforcement proceedings under

the Communications Act and its rules against an Applicant that has

constructed a Facility prior to completing required review under this

Agreement. Sanctions for violations of the Commission’s rules may include

any sanctions allowed under the Communications Act and the Commission’s

rules.

F. The Commission shall provide copies of all concluding reports or orders for

all Section 110(k) investigations conducted by the Commission to the original

complainant, the Applicant, the relevant local government, and other

consulting parties.

G. Facilities that are excluded from Section 106 review pursuant to the

Collocation Agreement or Section III of this Agreement are not subject to

review under this provision. Any parties who allege that such Facilities have

violated Section 110(k) should notify the Commission in accordance with the

provisions of Section XI, Public Comments and Objections.

XI. PUBLIC COMMENTS AND OBJECTIONS

Any member of the public may notify the Commission of concerns it has regarding

the application of this Nationwide Agreement within a State or with regard to the

review of individual Undertakings covered or excluded under the terms of this

Agreement. Comments related to telecommunications activities shall be directed to

the Wireless Telecommunications Bureau and those related to broadcast facilities to

the Media Bureau. The Commission will consider public comments and following

consultation with the SHPO/THPO

, potentially affected Indian tribes and NHOs, or

Council, where appropriate, take appropriate actions. The Commission shall notify

the objector of the outcome of its actions.

XII. AMENDMENTS

The signatories may propose modifications or other amendments to this Nationwide

Agreement. Any amendment to this Agreement shall be subject to appropriate public

notice and comment and shall be signed by the Commission, the Council, and the

Conference.

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XIII. TERMINATION

A. Any signatory to this Nationwide Agreement may request termination by

written notice to the other parties. Within sixty (60) days following receipt of

a written request for termination from a signatory, all other signatories shall

discuss the basis for the termination request and seek agreement on

amendments or other actions that would avoid termination.

B. In the event that this Agreement is terminated, the Commission and all

Applicants shall comply with the requirements of 36 C.F.R. Part 800.

XIV. ANNUAL REVIEW

The signatories to this Nationwide Agreement will meet annually on or about the

anniversary of the effective date of the Agreement to discuss the effectiveness of this

Agreement, including any issues related to improper implementation, and to discuss

any potential amendments that would improve the effectiveness of this Agreement.

XV. RESERVATION OF RIGHTS

Neither execution of this Agreement, nor implementation of or compliance with any

term herein, shall operate in any way as a waiver by any party hereto, or by any

person or entity complying herewith or affected hereby, of a right to assert in any

court of law any claim, argument or defense regarding the validity or interpretation of

any provision of the NHPA or its implementing regulations contained in 36

C.F.R. Part 800.

XVI. SEVERABILITY

If any section, subsection, paragraph, sentence, clause or phrase in this Agreement is,

for any reason, held to be unconstitutional or invalid or ineffective, such decision

shall not affect the validity or effectiveness of the remaining portions of this

Agreement.

Federal Communications Commission FCC 04-222

B-29

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by

their respective authorized officers as of the day and year first written above.

FEDERAL COMMUNICATIONS COMMISSION

_____________________________________ Date ______________________

Chairman

ADVISORY COUNCIL ON HISTORIC PRESERVATION

_____________________________________ Date ______________________

Chairman

NATIONAL CONFERENCE OF STATE HISTORIC PRESERVATION OFFICERS

_____________________________________ Date ______________________

President