[Federal Register: January 4, 2005 (Volume 70, Number 2)]
[Rules and Regulations]
[Page 555-588]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04ja05-18]
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Part IV
Federal Communications Commission
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47 CFR Part 1
Nationwide Programmatic Agreement for Review Under the National
Historic Preservation Act; Final Rule
[[Page 556]]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 1
[WT Docket No. 03-128; FCC 04-222]
Nationwide Programmatic Agreement for Review Under the National
Historic Preservation Act
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, we adopt revisions to the Federal
Communications Commission's (``Commission'') rules to implement a
Nationwide Programmatic Agreement (``Nationwide Agreement'') that will
tailor and streamline procedures for review of certain Commission
undertakings for communications facilities under section 106 of the
National Historic Preservation Act of 1966 (``NHPA''). The Nationwide
Agreement will tailor the section 106 review in the communications
context in order to improve compliance and streamline the review
process for construction of towers and other Commission undertakings,
while at the same time advancing and preserving the goal of the NHPA to
protect historic properties, including historic properties to which
federally recognized Indian tribes, including Alaska Native Villages,
and Native Hawaiian Organizations (``NHOs'') attach religious and
cultural significance.
DATES: Effective March 7, 2005.
FOR FURTHER INFORMATION CONTACT: Frank Stilwell, Wireless
Telecommunications Bureau, (202) 418-1892.
SUPPLEMENTARY INFORMATION: This is a summary of the Federal
Communications Commission's Report and Order, FCC 04-222, adopted
September 9, 2004, and released October 5, 2004. The full text of the
Report and Order is available for public inspection during regular
business hours at the FCC Reference Information Center, 445 12th St.,
SW., Room CY-A257, Washington, DC 20554. The complete text may be
purchased from the Commission's duplicating contractor: Qualex
International, 445 12th Street, SW., Room CY-B402, Washington, DC
20554, telephone (202) 863-2893, facsimile (202) 863-2898, or via e-
mail at qualexint@aol.com.
Paperwork Reduction Act
The Report and Order contains modified information collection
requirements subject to the Paperwork Reduction Act of 1995 (PRA),
Public Law 104-13. It will be submitted to the Office of Management and
Budget (OMB) for review under section 3507(d) of the PRA. OMB, the
general public, and other Federal agencies are invited to comment on
the new or modified information collection requirements contained in
this proceeding. Public and agency comments are due March 7, 2005.
Comments should address the following: (a) Whether the proposed
collection of information is necessary for the proper performance of
the functions of the Commission, including whether the information
shall have practical utility; (b) the accuracy of the Commission's
burden estimates; (c) ways to enhance the quality, utility, and clarity
of the information collected; and (d) ways to minimize the burden of
the collection of information on respondents, including the use of
automated collection techniques or other forms of information
technology. A copy of any comments on the information collections
contained herein should be submitted to Judith B. Herman, Federal
Communications Commission, 445 12th St., SW., Room 1-C804, Washington,
DC 20554, or via the Internet to Judith-B.Herman@fcc.gov, and to Edward
C. Springer, OMB Desk Officer, 10236 New Executive Office Building, 724
17th St., NW., Washington, DC 20503, or via the Internet to
Edward.Springer@omb.eop.gov.
In addition, we note that pursuant to the Small Business Paperwork
Relief Act of 2002, Pub. L. 107-198, see 44 U.S.C. 3506(c)(4), we
previously sought comment on how the Commission might ``further reduce
the information collection burden for small business concerns with
fewer than 25 employees.'' In this Report and Order, we have assessed
the effects of certain policy changes brought about by the Nationwide
Agreement that might impose information collection burdens.\1\ More
specifically, we believe that businesses with fewer than 25 employees
will be affected by the Nationwide Agreement in a manner similar to
other small entities. Burdens and benefits may be felt more acutely by
small businesses due to their reduced ability to spread regulatory
costs across a larger number of projects. The Nationwide Agreement does
impose reporting, recordkeeping, and other compliance requirements.\2\
However, Part III of the Nationwide Agreement, which allows for the
construction of certain telecommunications facilities without the need
to submit section 106 materials to the SHPO/THPO, will probably provide
the greatest regulatory relief for small businesses, including those
with fewer than 25 employees. We believe that the Part III exclusions
will be especially helpful for smaller entities including those with
fewer than 25 employees who rely more heavily on the prompt,
predictable completion of each project to maintain a satisfactory cash
flow. Businesses that avail themselves of an exclusion will have some
costs. For example, they will have to determine whether a specific
project satisfies the criteria for that exclusion and maintain
documentation of that determination in their files.
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\1\ See Final Regulatory Flexibility Analysis, infra, at
paragraphs 137-141.
\2\ Id.
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Summary of the Report and Order
1. In this Report and Order, we adopt revisions to the Federal
Communications Commission's (``Commission'') rules to implement a
Nationwide Programmatic Agreement (``Nationwide Agreement'') that will
tailor and streamline procedures for review of certain Commission
undertakings for communications facilities under section 106 (16 U.S.C.
470f) of the National Historic Preservation Act of 1966 (``NHPA'') (16
U.S.C. 470 et seq.). On June 9, 2003, we released a Notice of Proposed
Rulemaking (``NPRM'') seeking comment on a draft Nationwide Agreement
among the Commission, the Advisory Council on Historic Preservation
(``Council'') and the National Conference of State Historic
Preservation Officers (``Conference''). See 68 FR 40876 (July 9, 2003).
As discussed below, upon consideration of the record, we have
determined that, with certain revisions, the Nationwide Agreement will
tailor the section 106 review in the communications context in order to
improve compliance and streamline the review process for construction
of towers and other Commission undertakings, while at the same time
advancing and preserving the goal of the NHPA to protect historic
properties, including historic properties to which federally recognized
Indian tribes, including Alaska Native Villages, and Native Hawaiian
Organizations (``NHOs'') attach religious and cultural significance.
The Council and Conference have agreed with this determination, and the
parties executed the Nationwide Agreement on October 4, 2004.
Accordingly, upon the effective date of the rule changes adopted in
this Report and Order, the provisions of the attached Nationwide
Agreement will become binding on affected licensees and applicants of
the Commission.
[[Page 557]]
2. During the late 1990s, coincident with the explosion in tower
constructions necessitated by the deployment of wireless mobile service
across the country, delays in completing traditional section 106
reviews began to occur. The Commission's licensees and applicants
(``Applicants''), State Historic Preservation Officers (``SHPOs'') and
Commission staff began experiencing ever-growing caseloads and backlogs
that, it soon became clear, were posing a threat to the timely
deployment of wireless service to customers.
3. Faced with the prospect of even larger numbers of towers to be
constructed, the Council formed a working group, consisting of
representatives of the Council and Commission, SHPOs, Indian tribes,
the communications industry, and historic preservation consultants.
Members of the Working Group began meeting on a regular basis, seeking
ways of tailoring the section 106 process to the unique situation posed
by tower constructions (and the collocation of antennas on towers and
other structures). While striving to preserve the goal of the NHPA to
protect historic properties (including historic properties of cultural
and religious importance to Indian tribes and NHOs), the group explored
alternatives for streamlining the section 106 process, when feasible.
4. In November 2001, the Working Group began discussing a
Nationwide Agreement, consistent with Sec. 800.14(b) (36 CFR
800.14(b)) of the Council's rules, to modify the historic preservation
review process for communications towers and for antenna collocations
that were not excluded from section 106 review under the Nationwide
Programmatic Agreement for the Collocation of Wireless Antennas,
executed March 16, 2001 (66 FR 17554, April 2, 2001) (``Collocation
Agreement''). The Working Group sought to tailor the NHPA review
process to the communications context in several ways that were
reflected in the draft Nationwide Agreement. Commission staff also
consulted on a government-to-government basis with representatives of
federally recognized Indian tribes regarding the potential for
provisions of the draft Agreement to significantly and uniquely affect
their historic and cultural interests.
5. Although we agree, as discussed below, that certain changes to
the document are appropriate, we conclude that signing the Nationwide
Agreement advances the public interest. Section 800.14(b) of the
Council's rules, promulgated pursuant to the Council's authority under
section 214 of the NHPA, anticipates that, after due deliberation among
affected parties, a federal agency, the Council and the Conference may
enter into a nationwide programmatic agreement that streamlines the
section 106 review process and tailors it to the particular context of
the subject matter to which it is applied. Consistent with this
provision, the Nationwide Agreement streamlines and tailors the NHPA
review process for tower constructions in a variety of ways, including:
identifying classes of undertakings that, due to the small likelihood
that they will impact historic properties, are excluded from routine
section 106 review; developing clear and concise principles governing
the initiation of contact with Indian tribes and NHOs as part of the
section 106 process; clarifying methods for involving the public in the
process; providing definitional and procedural guidance for the
identification and evaluation of historic properties, and the
assessment of effects on those properties; establishing procedures,
including timelines, for SHPO, Tribal Historic Preservation Officer
(``THPO'') and Commission review; providing procedural guidance for
situations where construction occurs prior to compliance with section
106; and prescribing uniform filing documentation.
6. We disagree with arguments that the Nationwide Agreement will
obstruct deployment and impede public safety by adding regulatory
complexity to the section 106 review process. To the contrary, we find,
on balance, that the measures described herein will relieve unnecessary
regulatory burdens, and therefore will promote public safety and
consumer interests, consistent with our deregulatory initiatives. While
the procedures prescribed in the Nationwide Agreement are not free of
complexity, on the whole they are less burdensome than the current
process under the Council's rules, and neither we nor any commenters
have identified substantially simpler solutions that would be
consistent with our responsibilities under section 106 of the NHPA.
7. At the same time, we conclude that the Nationwide Agreement will
sufficiently protect historic properties. The NHPA and the Council's
rules do not require that federal undertakings avoid all impacts on
historic properties. Rather, section 106 requires that federal agencies
``take into account'' the effect of their undertakings on historic
properties, which the Council's rules interpret to include, among other
things, a ``reasonable and good faith effort'' to identify historic
properties. Moreover, section 214 of the NHPA (16 U.S.C. 470v) directs
the Council to ``tak[e] into consideration the magnitude of the
exempted undertaking or program and the likelihood of impairment of
historic properties.'' We interpret these provisions to mean that, in
formulating exemptions and prescribing processes, the Council and the
federal agency need not ensure that every possible effect on a historic
property is individually considered in all circumstances, but that they
should take into account the likelihood and potential magnitude of
effects in categories of situations. Indeed, doing so should advance
historic preservation in the long run by enabling all parties to focus
their limited resources on the cases where significant damage to
historic properties is most likely.
8. Within this framework, we find it significant that both the
Council and the Conference, whose principal missions include
administering section 106 and protecting historic properties, have
agreed to sign the Nationwide Agreement. Like these expert agencies, we
conclude, that the procedures and standards set forth in the Nationwide
Agreement, while streamlining the process, are sufficient to minimize
the likelihood that facilities construction will have unreviewed and
unmitigated effects on historic properties, consistent with the NHPA.
9. As a preliminary matter, a number of commenters argue that
construction of a communications tower is not a federal undertaking
under section 106 of the NHPA. An ``undertaking'' under the NHPA means
``a project, activity, or program funded in whole or in part under the
direct or indirect jurisdiction of a Federal agency, including * * *
those requiring a Federal permit[,] license, or approval'' (16 U.S.C.
470w(7)(C)). The Commission's rules currently treat tower construction
as an ``undertaking'' for purposes of the NHPA. Unless and until we
revisit this public-interest question and determine that it is
appropriate to amend our rules, we believe our existing policies
reflect a permissible interpretation of the Commission's authority
under the Communications Act.
10. Some commenters argue that we should not adopt the proposed
Nationwide Agreement at this time because federally recognized Indian
tribes were not sufficiently involved in its negotiation and drafting.
Commission recognizes that as an independent agency of the federal
government, we have a trust responsibility to and a government-to-
government relationship with federally recognized Indian tribes.
Accordingly, it
[[Page 558]]
is our stated policy to consult, to the extent practicable, with Tribal
governments prior to implementing any regulatory action or policy that
will significantly or uniquely affect Tribal governments, their land
and resources. See In the Matter of Statement of Policy on Establishing
a Government-to-Government Relationship with Indian Tribes, Policy
Statement, 16 FCC Rcd 4078, 4080 (2000).
11. We conclude that the actions our staff has undertaken in
developing the Nationwide Agreement fulfill the commitment made in the
Tribal Policy Statement.
12. Our actions in this matter were not limited to inviting written
comment from Indian tribes. The Commission invited representatives of
Tribal governments to participate in deliberations of the Working
Group, and in a series of communications to all federally recognized
tribes, Commission staff scoped the issues and specifically invited
meaningful consultative discussion. Commission staff also distributed
materials and discussed the status of the Nationwide Agreement at
several tribal conferences during the period of preparation and
negotiation. These initial efforts led to direct substantive
discussions between Commission staff and representatives of Tribes.
13. As a result of these consultations, we put out for public
comment both the Navajo Nation's proposal for notifying Tribes of
otherwise excluded undertakings and the United South and Eastern
Tribes, Inc. (``USET'') proposal regarding tribal and NHO participation
in considering proposed undertakings, and we are adopting aspects of
the USET proposal in this Report and Order. Our consultation with USET
has continued since we released the NPRM, and we have also kept other
tribal organizations apprised of our work and have invited them and
their members to participate. Finally, many Indian tribes and NHOs
filed comments in this proceeding, and federally recognized tribes were
encouraged to make ex parte presentations to members of the Commission
staff regarding this rulemaking.
14. We recognize that the execution of the Nationwide Agreement
does not end our ongoing government-to-government relationship with
federally recognized Tribes. Accordingly, we fully intend to continue
regular consultation on a government-to-government basis, consistent
with resource constraints, regarding the implementation of the
Nationwide Agreement as well as other aspects of our relationship.
15. Section 214 of the NHPA permits the Council to exempt from
section 106 review classes of federal undertakings that would be
unlikely to impact historic properties. Pursuant to this authority, the
draft Nationwide Agreement lists certain types of Commission
undertakings that would be exempt from completing the section 106
process under the NHPA.
16. We conclude that categorically excluding from routine section
106 review categories of construction that are unlikely adversely to
impact historic properties is appropriate and in the public interest.
In addition to facilitating the timely deployment of service, properly
drafted exclusions can promote historic preservation both by conserving
the Commission's, SHPOs'/THPOs' and the Council's resources to review
more important cases, and by providing incentives for applicants to
locate facilities in a manner that will render effects on historic
properties less likely. As discussed above, the NHPA does not require
perfection in evaluating the potential effects of an undertaking in
every instance. To the contrary, we believe section 214 contemplates a
balancing of the likelihood of significant harm against the burden of
reviewing individual undertakings. Moreover, the provisions in the
Nationwide Agreement for ceasing construction and notifying the
Commission and other interested parties upon discovery of previously
unidentified historic properties provides a safeguard in the unusual
instances where the availability of an exclusion might otherwise cause
an adverse impact to be overlooked.
17. The proposed Nationwide Agreement excludes the ``Modification
of a tower and any associated excavation that does not involve a
collocation and does not substantially increase the size of the
existing tower, as defined in the Collocation Agreement.'' A
substantial increase in size, in turn, is defined in the Collocation
Agreement by reference to the extent of any increase in the tower's
height, the installation of new equipment cabinets or shelters, the
extent of any new protrusion from the tower, and excavation outside the
current tower site and any access or utility easements. Enhancements to
towers that involve collocations and do not result in a substantial
increase in size are excluded from review under the Collocation
Agreement.
18. We conclude that it is appropriate and necessary to include in
the Nationwide Agreement an exclusion for tower enhancements that
constitute federal undertakings, do not involve collocations, and do
not result in a substantial increase in size. Many changes to tower
sites, such as building a fence around a tower, replacing an air
conditioner or electric generator, or planting shrubs on the grounds,
are in the nature of service or maintenance and are not federal
undertakings. Thus, the Nationwide Agreement provides explicitly that
Undertakings do not include maintenance and servicing of equipment.
Other changes, however, are federal undertakings because they
materially change the nature of the project that originally required
section 106 review. Thus, a change is a federal undertaking if it
alters an essential federal characteristic of the tower or its
antennas. Any other interpretation would permit applicants to avoid
section 106 review by initially constructing a non-intrusive tower and
then modifying it substantially under the guise of a nonfederal
alteration.
19. Because certain changes to towers that do not involve
collocations are federal undertakings, we conclude that such
enhancements should be excluded from review if they do not involve a
substantial increase in size. Under the Collocation Agreement, a change
to a tower occurring in conjunction with a collocation that does not
result in a substantial increase in size is excluded from section 106
review. In some instances, a tower owner may find it beneficial to make
a similar type of enhancement that is not associated with an immediate
collocation. Such a change would have the same minimal likelihood of
affecting historic properties as if it were accompanied by a
collocation. Therefore, it should be excluded from section 106 review
under the same standard.
20. Under the Collocation Agreement, collocations on towers
constructed after March 16, 2001, are not excluded unless the tower has
previously completed the section 106 review process. In drafting the
Collocation Agreement, the parties recognized that permitting
collocations on pre-existing towers without review, absent substantial
evidence of an adverse effect from either the proposed collocation or
the underlying tower, would minimize the potential for adverse effects
from new construction by creating an incentive to collocate. For towers
constructed after the effective date of the Collocation Agreement, by
contrast, excluding collocations from review where the underlying tower
had not been reviewed might create a perverse incentive for companies
to build towers without review in the hope of later attracting
collocations. The exclusion for enhancements will similarly apply to
all towers constructed on or before March 16, 2001, and to
[[Page 559]]
towers constructed after that date that went through the section 106
process. Otherwise, a party might be able to avoid the limitation in
the Collocation Agreement by first altering a tower and then adding an
excluded collocation.
21. Similar to the exclusion for enhancements to towers, the draft
Nationwide Agreement permits the construction of new towers without
NHPA review when the new tower replaces an existing tower and does not
involve a substantial increase in size, as defined in the Collocation
Agreement. In addition, unlike the exclusion for enhancements, the
replacement tower exclusion permits construction and excavation within
30 feet in any direction of the leased or owned property previously
surrounding the tower.
22. We adopt the replacement tower exclusion. Similar to
collocations, strengthened structures may reduce the need for more
towers by housing up to two, four or more additional antennas. Given
the limitation of the exclusion to replacements that do not effectuate
a substantial increase in size, it is highly unlikely that a
replacement tower within the exclusion could have any impact other than
on archeological properties. Moreover, the limitation on construction
and excavation to within 30 feet of the existing leased or owned
property means that only a minimal amount of previously undisturbed
ground, if any, would be turned, and that would be very close to the
existing construction. Finally, for reasons similar to those discussed
with respect to tower enhancements, the replacement tower exclusion
will apply to towers constructed after March 16, 2001, only if the
original tower completed section 106 review.
23. The draft Nationwide Agreement permits the erection of
facilities without NHPA review for a temporary period not to exceed
twenty-four months. We adopt the proposed temporary facilities
exclusion with one revision. By their nature, temporary facilities
usually involve little or no excavation. So long as no excavation will
occur on previously undisturbed ground, the risk of damage to
archeological or other historic properties from a temporary facility is
small. Moreover, temporary facilities are often used in response to
exigent circumstances where it is important that they be erected
quickly. Taking these considerations together, we conclude that an
exclusion for temporary facilities is appropriate where no excavation
will occur on previously undisturbed ground. We revise the exclusion,
however, so that a temporary facility that requires excavation other
than on previously disturbed ground must complete section 106 review.
We further conclude that a period of 24 months is sufficient to
accommodate nearly all temporary facilities, and is necessary to ensure
that the exclusion cannot be used to avoid section 106 review
indefinitely.
24. The draft Nationwide Agreement permits specified construction
on certain properties in active industrial, commercial, or government-
office use without NHPA review. We adopt a revised version of this
proposed exclusion. First, we limit the exclusion to industrial parks,
commercial strip malls, or shopping centers that occupy a total land
area of 100,000 square feet or more. As noted by several commenters,
applying the exclusion to any commercial property as small as 10,000
square feet, as proposed in the NPRM, would create an unacceptable risk
of inappropriate development on small commercial properties, such as
neighborhood shops, that may be located in or near historic areas. By
confining the exclusion to construction in industrial parks, commercial
strip malls, or shopping centers that occupy a total land area of
100,000 square feet or more, we effectively ensure that construction
subject to the exclusion will occur not only on plots that
substantially exceed 10,000 square feet, but on highly developed
properties and on ground that, in all likelihood, will have been
thoroughly disturbed when the existing structures were constructed. At
the same time, these types of properties are among those where wireless
telecommunications service is most often needed. Thus, this exclusion
combines a low likelihood of significant impact on historic properties
with a high potential to satisfy service needs, thereby reducing
pressure to site other facilities in potentially more sensitive
locations.
25. Second, we limit the exclusion to facilities that are less than
200 feet in overall height. A tower of less than 200 feet is ordinarily
unlikely to have significant incremental effects on historic properties
within an area that is already highly developed. Furthermore, antenna
structures 200 feet or less in height ordinarily do not require
notification to the Federal Aviation Administration, and thus are not
subject to federal lighting requirements. Thus, to the extent that
lighting might have a visual adverse effect on historic properties, any
such effect is unlikely from towers 200 feet or less.
26. Third, we require that before applying this exclusion, the
applicant must undertake a search of relevant records, and must
complete a full section 106 review under the Nationwide Agreement if it
discovers that the property on which it proposes to construct is
located within the boundaries of or within 500 feet of a historic
property. The draft Nationwide Agreement proposed that the exclusion
would not apply if a structure 45 years or older were located within
200 feet of the proposed facility. We conclude, however, that this
proposed criterion would be burdensome to apply and is not well
tailored to prevent potential effects on nearby historic properties.
Thus, rather than turning on the age of nearby properties regardless of
their eligibility, the exclusion's applicability should depend on
whether the property or a property within 500 feet is, in fact, listed
or eligible for listing in the National Register. We conclude that, for
towers that otherwise meet the terms of the exclusion, a 500 foot
buffer zone will adequately protect historic properties from adverse
impacts.
27. Finally, for purposes of this exclusion, we require applicants
to complete the process of tribal and NHO participation as specified in
section IV of the Nationwide Agreement. We note that historic
properties of traditional religious and cultural importance often are
not listed in the National Register or other publicly available
sources. Thus, in order to provide protection for these types of
historic properties similar to that afforded to other historic
properties by a search of records, it is necessary to seek information
directly from Indian tribes and NHOs. If as a result of this process
the applicant or the Commission identifies a historic property that may
be affected, the applicant must complete the section 106 process
pursuant to the Nationwide Agreement notwithstanding the exclusion.
28. The draft Nationwide Agreement excludes from review many towers
proposed for construction in or near utility corridors, and along
railways and highways. On review of the record, we conclude that the
Nationwide Agreement should not create an exclusion for construction
along highways and railroads. As numerous commenters observe, highways
and railroads frequently follow pathways that track historic settlement
and transportation patterns and, earlier, areas frequented by Indian
tribes. We recognize that highways and passenger railways are among the
areas where customer demand for wireless service is highest, and thus
where the need for new facilities is greatest. Moreover, the existence
of these modern intrusions reduces the risk that a new communications
facility would impose
[[Page 560]]
an additional adverse effect on historic properties. Nonetheless, given
the concentration of historic properties near many highways and
railroads, we are persuaded that it is not feasible to draft an
exclusion for highways and railroads that would both significantly ease
the burdens of the section 106 process and sufficiently protect
historic properties.
29. We do, however, adopt a limited exclusion for facilities
located in or within 50 feet of a right-of-way designated for
communications towers or above-ground utility transmission or
distribution lines, where the facility would not constitute a
substantial increase in size over existing structures in the right-of-
way in the vicinity of the proposed construction. Due to the increasing
usage of wireless services and advances in technology, providers of
certain types of service are increasingly finding it feasible to
utilize antennas mounted on short structures, often 50 feet or less in
height, that resemble telephone or utility poles. Where such structures
will be located near existing similar poles, we find that the
likelihood of an incremental adverse impact on historic properties is
minimal. Moreover, it promotes historic preservation to encourage
construction of such minimally intrusive facilities rather than larger,
potentially more damaging structures.
30. For reasons similar to those discussed above with respect to
the industrial and commercial properties exclusion, this exclusion does
not apply if the facility would be located within the boundaries of a
historic property, and we require applicants to conduct a preliminary
search of relevant records for such property. Due to the limited size
of the structures permitted under this exclusion and their close
similarity to nearby existing structures, however, we do not require
research regarding historic properties within 500 feet. Finally, for
the same reasons discussed above, application of this exclusion depends
on successful completion of the tribal and NHO participation process.
31. Finally, the draft Nationwide Agreement excludes from NHPA
review undertakings in geographic areas designated by the SHPO/THPO. We
adopt this exclusion as drafted, with only minor clarifying edits. Such
a provision, we believe, is consistent with the concept of an
exclusion--i.e., to exempt from review undertakings where an impact
upon historic properties is unlikely. SHPOs/THPOs are in an excellent
position, given their local knowledge and experience, to identify such
areas, when permissible under state or tribal law. While we encourage
SHPOs and THPOs to designate areas pursuant to this provision to the
extent warranted, we emphasize that doing so is at the SHPO/THPO's
discretion.
32. In the NPRM, we requested comment on a proposal by the
Conference to allow SHPOs/THPOs to ``opt out'' of the exclusion for
construction along utility and transportation corridors in areas where
historic properties are likely to be present. We reject the proposed
opt-out provision. As drafted, the exclusions from the section 106
process are not dependent on local conditions, but identify
circumstances under which construction is unlikely to significantly
adversely affect historic properties in any state. At the same time, an
opt-out provision would create a patchwork of varying agreements,
state-by-state. Moreover, procedural changes, adopted by use of the
opt-out provision, would likely occur over a period of time, creating
additional burdens and confusion for all parties concerned.
33. We reject arguments that, as a matter of law, the Commission
must provide notice to Indian tribes of all excluded undertakings.
Section 214 of the NHPA allows for certain undertakings to be
``exempted from any or all of the requirements of this Act'' and
expressly authorizes the Council to promulgate regulations to
effectuate such exemption. We read section 214 as authorizing
exemptions from the tribal consultation requirement of section
101(d)(6). There is nothing in the NHPA or in the Council's rules
expressly requiring any type of notice to tribes for every individual
undertaking that is excluded from review pursuant to a programmatic
agreement that is signed and executed by the agency and the Council.
Given that the Council is the agency authorized to promulgate rules to
implement section 214 of the NHPA, the absence of notice provisions
both in the Council's rules and in other programmatic agreements
supports our conclusion that such provisions are not necessary under
the NHPA, the Council's rules, or otherwise. Indeed, consistent with
its rules, it is the Council, as evidenced by its signature to this
agreement, who approves the proposed exemption ``based on the
consistency of the exemption with the purposes of the act. * * *''
34. With respect to the specific exclusions in the Nationwide
Agreement, we conclude, as discussed above, that tribal and NHO notice
and participation are necessary for construction on commercial and
industrial properties and in utility rights-of-way notwithstanding the
exclusions. This is so because, without an opportunity for tribes and
NHOs to participate, there is a substantial possibility that
undertakings within these exclusions could affect properties of
traditional cultural and religious importance. For the other
exclusions, by contrast, any such possibility is insignificant.
Therefore, a notice requirement would contravene the goals of section
214 of the NHPA and the Council's rule on exclusions by adding an
unnecessary layer of review and regulation.
35. Finally, the Commission has met its government-to-government
responsibility to consult with and its trust responsibility to
federally recognized tribes with respect to the exclusions. As
explained above, the Commission has engaged in government-to-government
consultation with tribes regarding the Nationwide Agreement. Moreover,
a proposal to require tribal notice was included in the draft
Nationwide Agreement, and received the consideration of the various
tribes and tribal organizations that participated in this proceeding.
Indeed, after considering the comments of Indian tribes, we have
included a tribal participation requirement for the industrial and
commercial properties and utility corridor exclusions. We conclude that
tribes were afforded an opportunity to consult with respect to this
issue and accordingly did so.
36. The draft Nationwide Agreement provides that applicants should
retain documentation of their determination that an exclusion applies
to an undertaking. We decline to require any regular reporting of
instances in which the exclusions are used in addition to such
recordkeeping. We find that such mass undifferentiated reporting of
constructed facilities would be excessively burdensome and, without
more, would contribute little to an understanding of how the exclusions
are being applied. We note that as records relevant to compliance with
the Commission's rules, a company must produce documentation of its
determination of an exclusion's applicability to the Commission upon
request. SHPOs/THPOs may also require production of such records to the
extent authorized under State or tribal law.
37. As a further safeguard to ensure that the exclusions are
applied appropriately, we provide that a determination of exclusion
should be made by an authorized individual within the applicant's
organization. While the exclusions are drafted so that their
application should not require historic preservation expertise, a
responsible individual who understands the exclusions and their
applicability
[[Page 561]]
needs to ensure that they are applied appropriately. Moreover, because
the applicant is responsible for compliance with our rules, this
responsible individual should be within the applicant's organization.
We advise applicants to retain a record of the authorized individual's
review as part of their record of the exclusion's applicability.
38. In the NPRM, we sought comment on two alternative sets of
provisions governing participation of Indian tribes and NHOs in
undertakings off tribal lands. Alternative A was developed by the
Working Group. This proposed alternative directs applicants to use
reasonable and good faith efforts to identify Indian tribes and NHOs
that may attach cultural and religious importance to historic
properties that may be affected by an undertaking, and provides
guidance on how to perform such identification and on the subsequent
process to be followed with Indian tribes and NHOs. Alternative B was
proposed by USET during the course of meetings after the Working Group
completed its deliberations. Alternative B requires the Commission to
consult with potentially affected Indian tribes and NHOs on each
proposed undertaking, in accordance with the Council's rules, unless
either (1) the Indian tribe or NHO has given the applicant a letter of
certification stating that such consultation is unnecessary; or (2) the
applicant and the Indian tribe have reached a written agreement, filed
with the Commission, regarding conditions under which such
certification is unnecessary and the applicant has complied with that
agreement. Alternative B encourages parties to use these alternative
processes in lieu of government-to-government consultation. This
alternative does not, however, provide guidance regarding how
applicants should contact and relate to Indian tribes and NHOs, stating
that such guidance would be provided in an appendix or by separate
publication.
39. Since issuing the NPRM, the Commission has continued to work
with Indian tribes outside the context of this proceeding to improve
the means of tribal and NHO participation in the section 106 process.
In particular, the Commission, after consultation with federally
recognized tribes, has developed and implemented an electronic Tower
Construction Notification System to facilitate identification of and
appropriate initial contact with Indian tribes and NHOs that may attach
religious and cultural significance to historic properties within the
geographic area of a proposed undertaking. This system permits each
Indian tribe and NHO voluntarily to identify in a secure electronic
fashion the geographic areas in which historic properties of religious
and cultural significance to that Indian tribe or NHO may be located.
When an applicant then voluntarily enters into the system the location
and other basic information about a proposed construction project, the
Commission automatically forwards the information electronically or by
mail to participating tribes and NHOs. Finally, Indian tribes and NHOs
have the option of responding to applicants through the Tower
Construction Notification System. By rationalizing the process of
identification and initial contact through the Commission, we believe
the Tower Construction Notification System will relieve burdens and
provide certainty for tribes and NHOs, applicants, and the Commission
alike.
40. Upon consideration of the record, and in light of the
developments described above, we adopt procedures for participation of
tribes and NHOs that incorporate aspects of both Alternatives A and B
with certain modifications. First, we recognize that pursuant to the
federal government's unique legal relationship with Indian tribal
governments, as well as specific obligations under the NHPA and the
Council's and Commission's rules, the Commission has a responsibility
to carry out consultation with any federally recognized Indian tribe or
any NHO that attaches religious and cultural significance to a historic
property that may be affected by a Commission undertaking. As the
Commission has previously recognized, the federal government has a
historic trust relationship that requires it to adhere to fiduciary
standards in dealing with federally recognized tribes. This fiduciary
responsibility and duty of consultation rest with the Commission as an
agency of the federal government, not with licensees, applicants, or
other third parties.
41. At the same time, we cannot fulfill our duty of consultation in
a vacuum. Because our applicants possess unique knowledge regarding the
facilities that they propose to construct, the Nationwide Agreement
that we adopt directs applicants to make reasonable and good faith
efforts to identify the Indian tribes and NHOs that may have interests
in a geographic area. The Nationwide Agreement further specifies that
where an Indian tribe or NHO has voluntarily provided information to
the Tower Construction Notification System, reference to that database
constitutes a reasonable and good faith effort at identification. In
addition, the Nationwide Agreement provides guidance regarding other
means of fulfilling this obligation.
42. The Nationwide Agreement specifies that, after the applicant
has identified potentially interested tribes and NHOs, contact should
be made at an early stage in the planning process with each such tribe
or NHO by either the Commission or the applicant, depending on the
expressed wishes of the particular Indian tribe or NHO. The Commission
will take steps to ascertain and publicize the contact preferences of
all federally recognized Indian tribes and NHOs, both as to who must
make the initial tribal contact and by what means, as well as any
locations or types of construction projects for which the Indian tribe
or NHO does not expect notification. To ensure that communications
among parties are in accordance with the reasonable preferences of
individual tribes and NHOs, the Commission will also use its best
efforts to arrive at agreements regarding best practices with Indian
tribes or NHOs, strive for uniformity in such best practices and
encourage applicants to follow them. Through these best practices the
Commission hopes to facilitate expeditious completion of section 106
review by minimizing misunderstandings among the parties to that
process.
43. If there is no preexisting relationship between the applicant
and an Indian tribe or NHO, and absent contrary indication from the
Indian tribe or NHO, initial contact will be made by the Commission
through its electronic Tower Construction Notification System. Where
there is such a preexisting relationship the applicant may make the
initial contact in the manner that is customary to that relationship or
in any manner acceptable to the Indian tribe or NHO. In these
circumstances, the applicant shall copy the Commission on any initial
contact to the Indian tribe or NHO unless the Indian tribe or NHO has
agreed such copying is unnecessary. The Nationwide Agreement specifies
that any direct contact with the Indian tribe or NHO shall be made in a
sensitive manner that is consistent with the reasonable wishes of the
Indian tribe or NHO, including through the Tower Construction
Notification System where such means is consistent with the tribe or
NHO's preference. Where the tribe or NHO's wishes are not known, the
Nationwide Agreement sets forth guidelines regarding respectful address
and sufficient information. The text further directs that the applicant
afford the tribe or NHO a reasonable
[[Page 562]]
opportunity to respond, ordinarily 30 days, allow additional time to
respond as reasonable upon request, and make reasonable efforts to
follow up in case the tribe or NHO does not respond to an initial
communication.
44. The purpose of the initial contact, whether made by the
Commission or the applicant, is to begin the process of ascertaining
whether historic properties of religious and cultural significance to
an Indian tribe or NHO may be affected by an undertaking, thereby
triggering the duty of consultation. Unless the tribe or NHO
affirmatively disclaims further interest or has agreed otherwise, this
initial contact does not satisfy the applicant's obligation or
constitute government-to-government consultation by the Commission. It
is our hope and intent that, where direct contacts from an applicant
are acceptable to the Indian tribe or NHO, amicable contacts will
enable these consulting parties to complete the section 106 process so
as to obviate the need for government-to-government consultation in a
vast majority of cases. At the same time, because the duty to consult
rests with the Commission as a federal government agency, the
Nationwide Agreement directs applicants to promptly refer to the
Commission any tribal request for government-to-government
consultation, and to seek Commission guidance in cases of disagreement
or failure to respond. Finally, the Nationwide Agreement substantially
adopts provisions from Alternative A regarding inviting Indian tribes
and NHOs to become consulting parties in the section 106 process,
confidentiality, and the preservation of alternative arrangements.
45. We conclude that the provisions we adopt are consistent with
the Commission's fulfillment of its tribal consultation
responsibilities under the NHPA and other sources of federal law. The
NHPA does not provide for delegation of the tribal consultation
responsibility to private entities. The provisions that we adopt,
however, do not delegate the Commission's consultation responsibilities
but provide for direct contacts with an Indian tribe or NHO by an
applicant only in accordance with the expressed wishes of the Indian
tribe or NHO. Moreover, the Nationwide Agreement further provides that,
where the applicant is unknown to the tribe or NHO, the initial contact
will generally be made by the Commission and does not in any
circumstance allow applicants and licensees to embark upon and conclude
the section 106 process without Commission participation and without
tribal or NHO consent.
46. The Nationwide Agreement expressly states that the initial
contact between applicants or the Commission and Indian tribes and NHOs
is required at ``an early stage of the planning process * * * in order
to begin the process of ascertaining whether * * * Historic Properties
[of religious and cultural significance to them] may be affected.'' The
Nationwide Agreement expresses the ambition that this initial contact
will lead to voluntary direct discussions through which applicants and
tribes or NHOs will resolve any matters to the tribe or NHO's
satisfaction without Commission involvement. However, the Nationwide
Agreement makes clear that in the absence of such an agreement,
decision-making authority and the duty to consult rest with the
Commission. Thus, federally recognized Indian tribes are free, at any
point, to request government-to-government consultation with the
Commission, and the Commission is accessible and able to engage in
government-to-government consultation with any tribe on any undertaking
at any time. Moreover, if an applicant and an Indian tribe or NHO
disagree regarding whether an undertaking will have an adverse effect
on a historic property of religious and cultural significance, or if
the tribe or NHO does not respond to the applicant's inquiries, the
Nationwide Agreement directs the applicant to seek guidance from the
Commission, following which appropriate consultation will occur and
only then will the Commission make a decision regarding the proposed
undertaking. The Commission only puts the exploratory phase of the
process into the hands of those parties with the most intimate
knowledge of the proposed undertaking and, subject to the expressed
wishes of an Indian tribe or NHO, authorizes them to provide
information to, solicit information from, and engage in voluntary
discussions with the tribes and NHOs. This is consistent with Sec.
800.2(c)(4) of the Council's rules (36 CFR 800.2(c)(4)), which permits
agencies to authorize applicants to initiate section 106 discussions or
contacts with consulting parties such as tribes, and is in keeping with
applicable federal consultation responsibilities.
47. We reject the argument that the role of applicants in
initiating the section 106 process constitutes an illegal delegation.
Except where there is a preexisting relationship between a particular
tribe or NHO and the applicant or a particular tribe has advised the
Commission of its willingness to be contacted initially by applicants,
the first contact concerning a proposed undertaking will generally come
from the Commission. In any event, cases relating to Congressional
delegations of power to other branches of the federal government are
inapposite. Moreover, federal agencies may permit private sector
entities to perform delineated governmental functions when clear
standards are set forth, guidelines for policymaking are offered, and
specific findings are required. This is especially true when the
private entity's participation is subject to the government agency's
ultimate reviewing authority, which, as described above, is the case
here. Similarly, OMB Circular A-76, which addresses functions of
government that are non-delegable to the private sector, is not
applicable because the Commission is not delegating a governmental
function or any decision-making authority, but simply seeking
assistance from our licensees and applicants in beginning a process
over which the Commission ultimately retains control.
48. For these reasons, we conclude that the Nationwide Agreement,
as we adopt it today, does not unlawfully delegate or derogate the
Commission's duties of consultation. At the same time, in combination
with the other developments described above, the Nationwide Agreement
provides substantial assistance and guidance to applicants in carrying
out their assigned role. We disagree, however, with commenters who urge
us to prescribe more definitive time periods or provide greater
finality. Ultimately, the Commission has a government-to-government
relationship with and fiduciary responsibility to Indian tribes, as
manifested in the duties of consultation under general principles of
law and under the specific provisions of the NHPA. Thus, absent the
Indian tribe or NHO's agreement, only the Commission can confer
finality with respect to tribes or NHOs for an undertaking that is not
excluded from section 106 review. Moreover, while ultimately no further
consultation is required if an undertaking will not affect a historic
property of cultural and religious significance to a tribe or NHO,
applicants must work with tribes and NHOs in their efforts to determine
whether such eligible properties exist, and must refer to the
Commission for finality absent tribal or NHO agreement with their
identification efforts. It is our hope, through the guidance in the
Nationwide Agreement and through the separate negotiation of voluntary
best
[[Page 563]]
practices with Indian tribes and NHOs, to facilitate consensual
resolutions that satisfy the needs of all parties swiftly and with a
minimum expenditure of resources.
49. Section V of the draft Nationwide Agreement establishes
procedures to streamline and tailor the public participation provisions
of the Council's rules to fit the communications context. Specifically,
this section provides for notice of a proposed undertaking to the
relevant local government and the public on or before the date the
project is submitted to the SHPO/THPO, recommends means of providing
public notice, and specifies the content of these notices. The
provision also states that the SHPO/THPO may make available lists of
additional interested organizations that should be contacted, and it
requires the applicant to consider public comments and provide those
comments to the SHPO/THPO. In addition, it sets out procedures for
identifying consulting parties and the rights of consulting parties.
50. We adopt the public participation provisions substantially as
drafted. The Nationwide Agreement simplifies, by tailoring to the
communications context, the process in the Council's existing rules for
providing notice, involving the public, identifying consulting parties,
and addressing comments received. We conclude that the provisions as
drafted achieve the important public participation goals of the
Council's rules in a manner that will reduce misunderstandings and
relieve burdens on applicants, SHPOs/THPOs and the Commission alike.
51. We reject most of the changes that commenters have proposed to
this section. Specifically, we find that there should not be a firm
time limit on public comments on a proposed undertaking, but that all
comments received prior to completion of the review process should be
considered. We further conclude, consistent with common practice, that
use of the local zoning process, local newspaper publication, or an
equivalent process constitutes sufficient notice of a proposed
undertaking in the nature of a communications facility to the general
public. Moreover, it is appropriate to permit the SHPO/THPO, as the
consulting party most familiar with the local community of interest, to
provide by generally available list the names of additional parties
that should be contacted in order to further ensure a full opportunity
for public participation under the circumstances of each case. In order
to preserve applicants' flexibility to pursue the process in the most
efficient sequence under the circumstances of each case, we only
require that notice to the local government and the public occur on or
before the date materials are submitted to the SHPO/THPO. We also find
that adoption of a national confidentiality standard would be
infeasible given the SHPOs'/THPOs' need for information and the
diversity of laws on this subject in the various states.
52. We do conclude that it is appropriate for the applicant to
inform the SHPO/THPO, as part of the Submission Packet, of the identity
of designated consulting parties. Accordingly, we add this provision to
the Nationwide Agreement and we include a request for the relevant
information on the attached forms. We find, however, that it is
unnecessary and burdensome for applicants to notify the Commission of
each undertaking as part of the public participation process. Finally,
we conclude that the criterion encouraging applicants to grant
consulting party status to one who has ``a demonstrated legal or
economic interest in the undertaking, or demonstrated expertise or
standing as a representative of local or public interest in historic or
cultural resources preservation,'' is consistent with, and required by,
the Council's rules (36 CFR 800.2(c)(5)).
53. Section VI of the draft Nationwide Agreement establishes
procedures and standards for identifying historic properties,
evaluating their historic significance, and assessing any effect the
proposed undertaking may have upon those historic properties.
Commenters address five principal subjects in this area, including: (1)
The definition of area of potential effects (APE); (2) the means of
identifying and evaluating historic properties within the APE for
visual effects; (3) the need for archeological surveys; (4) the
definition of an adverse effect; and (5) the use of qualified experts.
54. The APE is the area within which an applicant must look for
historic properties that may be affected by an undertaking. The draft
Nationwide Agreement provides that each undertaking has one APE for
direct (physical) effects, consisting of the area of potential ground
disturbance and the portion of any historic property that will be
destroyed or physically altered by the undertaking, and a second APE
for indirect visual effects. The draft further establishes a rebuttable
presumption that the latter APE is the area from which the tower will
be visible within \1/2\ mile of the proposed tower for a tower that is
200 feet or less in height, \3/4\ mile for a tower more than 200 feet
but no more than 400 feet in height, and 1.5 miles for a taller tower.
The applicant and the SHPO/THPO may mutually agree on an alternative to
the presumed distance in any case, and disputes regarding whether to
use an alternative APE may be submitted to the Commission for
resolution.
55. We adopt the APE provisions substantially as drafted, with only
technical and clarifying revisions. In doing so, we emphasize that the
scaled distances for visual APEs in the Nationwide Agreement are not
inflexible mandates but presumptions, subject to variation in specific
instances either by mutual agreement or, in cases of dispute, by
Commission decision. Thus, while providing a structure to facilitate
the determination of the APE in most cases, the Nationwide Agreement
ultimately affords case-by-case flexibility. Although some commenters
argue that the presumed distances are too small or too large, we are
not persuaded that the presumed distances are inappropriate for the
typical case, subject to departure where conditions require. We do add
a general definition of the APE for visual effects in order to clarify,
consistent with the definition of adverse effect, that it refers only
to the geographic area in which the undertaking has the potential to
introduce visual elements that diminish the setting, including the
landscape, of a historic property where setting is a character-defining
feature of eligibility.
56. With respect to identification and evaluation of Historic
Properties, the Council's rules define a Historic Property, in relevant
part, as ``any prehistoric or historic district, site, building,
structure, or object included in, or eligible for inclusion in, the
National Register. * * *'' (36 CFR 800.16 (l)(1)). The Council's rules
further provide that properties eligible for inclusion in the National
Register include ``both properties formally determined as such in
accordance with regulations of the Secretary of the Interior and all
other properties that meet the National Register criteria'' (36 CFR
800.16(l)(2)). This definition implements section 106 of the NHPA,
which provides that a federal agency shall take into account the effect
of any federal undertaking on any property ``included or eligible for
inclusion in the National Register.''
57. We have in the record a letter from the Chairmen of the U.S.
House of Representatives Committee on Resources and Subcommittee on
National Parks, Recreation and Public Lands to the Chairman of the
Council, noting that the Council originally defined properties eligible
for inclusion in the National Register under section
[[Page 564]]
106 to include only properties that the Keeper had previously
determined to be eligible, and suggesting that the Council consider
addressing this definitional issue either in the Nationwide Agreement
or in a then-pending Council rulemaking. We determine not to alter the
definition of Historic Property used in the draft Nationwide Agreement
and the Council's rules. In this regard, we defer to the Council's
clearly stated interpretation of its own governing statute, which was
recently upheld by the federal court reviewing amendments to the
Council's rules. See National Mining Association v. Slater, 167
F.Supp.2d 265, 290-292 (D.D.C. 2001), rev'd in part, 324 F.3d 752
(2003). We also note that Sec. 800.14 (36 CFR 800.14) of the Council's
rules, which authorizes programmatic agreements, discusses alternative
procedures to Subpart B of the Council's rules, but the definition of
Historic Property is in Subpart C. For all these reasons, we conclude
that questions regarding the definition of historic properties are
outside the scope of this proceeding and should be addressed, if at
all, by the Council.
58. At the same time, we conclude, based on our review of the
record, that it is appropriate to narrow and define applicants'
obligations with respect to the identification and evaluation of
historic properties within the APE for visual effects. Section 106 is
silent on the methodology necessary to identify properties ``included
in or eligible for inclusion in the National Register.'' Indeed, a
federal court has held that the Council's requirement that federal
agencies conduct surveys to identify historic properties is not
mandated by the plain meaning of section 106. Under the Council's
regulations, the agency must make ``a reasonable and good faith
effort'' that takes into account the burdens of evaluation, the nature
and extent of potential effects, the magnitude of the undertaking and
the degree of federal involvement in the proposed undertaking. Council
regulations provide further that this obligation may be met through
procedures specified in subpart B of the rules or as modified in a
Programmatic Agreement tailored to the agency's specific needs. Here,
the record demonstrates that requiring applicants to undertake field
surveys for thousands of new communications facilities annually causes
considerable delay in the deployment of communications services and
imposes a hefty burden on the resources of applicants and SHPO/THPOs
alike. Moreover, only those historic properties within the APE for
which visual setting or visual elements are character-defining features
of eligibility are potentially subject to visual adverse effects. Of
these properties, many will not incur adverse effects from a
communications facility, depending on the extent to which the facility
is visible from the property and other factors. Taking these
considerations together, we conclude that the burdens of conducting
field surveys and taking other active measures beyond reviewing defined
sets of records to identify historic properties in the APE for visual
effects, in the context of the facilities covered by this Nationwide
Agreement, are not merited by the small potential benefit to historic
preservation.
59. Specifically, the Nationwide Agreement requires that, for most
types of historic properties within the APE for visual effects,
identification and evaluation efforts are limited to the applicant's
review of five sets of records available within the SHPO/THPO's office
or in a publicly available source identified by the SHPO/THPO. First,
the applicant must identify properties that are actually listed in the
National Register. Second, it must identify properties that the Keeper
of the National Register has formally determined to be eligible. Third,
identification efforts must include properties that the SHPO/THPO is in
the process of nominating for the National Register, as certified by
the SHPO/THPO. Fourth, identification includes properties that the
SHPO/THPO's records identify as having previously been determined
eligible by a consensus of the SHPO/THPO and another federal agency or
local government representing the Department of Housing and Urban
Development. Fifth, identification efforts shall include properties
shown in the SHPO/THPO's inventory as having previously been evaluated
by the SHPO/THPO and found by it to meet the National Register
criteria. Except as described below, an applicant need not identify
historic properties within the APE for visual effects that are not in
one of these categories, nor need it evaluate the historic significance
of such properties.
60. We find, however, that review of records maintained by the
SHPO/THPO is insufficient for identification of historic properties of
traditional religious and cultural significance to Indian tribes and
NHOs. As the Council's rules recognize, Indian tribes and NHOs possess
special expertise in assessing the eligibility of historic properties
that may possess religious and cultural significance to them. Moreover,
Indian tribes and NHOs frequently have confidentiality and privacy
concerns about including sites of religious and cultural significance
to them in publicly available records. Therefore, we conclude that
identification and evaluation of historic properties without the
involvement of potentially affected Indian tribes and NHOs would create
an unacceptable risk that historic properties of traditional cultural
and religious significance to them may be overlooked. Accordingly, as
part of the process of Indian tribe and NHO participation pursuant to
section IV of the Nationwide Agreement, an applicant or the Commission
shall gather information from Indian tribes or NHOs to assist in
identifying and evaluating historic properties of traditional cultural
and religious significance to them.
61. As part of the Submission Packet to be provided to the SHPO/
THPO and consulting parties, the Nationwide Agreement requires the
applicant to list the historic properties that it has identified
pursuant to the Nationwide Agreement. Upon reviewing this list, the
SHPO/THPO may identify other properties already included in its
inventory within the APE that it considers eligible for inclusion in
the National Register. In this event, the SHPO/THPO may notify the
applicant of these additional properties pursuant to section VII.A.4 of
the Nationwide Agreement in order for the applicant to assess the
potential effects on such properties. We conclude that this process,
without imposing additional burdens of identification and evaluation on
applicants, provides a safeguard for the SHPO/THPO to identify specific
historic properties that may be affected in rare instances where the
process provided in the Nationwide Agreement might otherwise cause
significantly affected properties to be overlooked.
62. Finally, these limitations on the identification and evaluation
process do not apply within the APE for direct effects. The APE for
direct effects, because it is limited to the area where the tower will
cause ground or physical disturbances, is much smaller than for visual
effects. As a result, searches of those areas do not present the
potential for delay likely to arise in assessing visual effects. At the
same time, the potential magnitude of effects to properties within the
APE for direct effects is much greater, in some instances including
destruction of the property, and these effects are not readily
discoverable other than through careful examination of the site.
Therefore, additional identification efforts, potentially including an
archeological field survey, may be
[[Page 565]]
required within the APE for direct effects.
63. Upon review of the record, we conclude that an archeological
field survey should not be required where archeological resources are
unlikely to be affected. Many facilities are placed in locations where
the likelihood of affecting archeological resources is remote; for
example, on paved ground in a highly developed downtown area. Requiring
onsite archeological work in these instances would add substantial
delay and cost to facilities deployment to no appreciable benefit.
64. At the same time, we conclude, that the Nationwide Agreement
must define with specificity the circumstances under which a field
survey is not required. First, no archeological field survey is
necessary when the ground on which construction will occur has been
previously disturbed. Where the ground has been previously disturbed in
the locations and at the depths that are proposed to be excavated in
connection with future construction, the likelihood of direct effects
to archeological resources ordinarily is remote, whether or not
archeological resources may be located at greater depths or in other
portions of the project area. Due to differences in the compaction
characteristics of soils in different parts of the Nation, however, we
require a previous disturbance to at least two feet below the proposed
construction depth (excluding footings and other anchoring mechanisms).
We find that a two-foot margin is necessary to provide reasonable
assurance that archeological resources are unlikely to be affected
under any soil conditions. The second circumstance under which no
archeological field survey is required is when geomorphological
evidence indicates that cultural-resource bearing soils do not occur
within the project area, or may occur but at more than two feet below
the proposed construction depth. Where a qualified expert has found
that such conditions exist, direct effects on archeological resources
are inherently unlikely, and accordingly it is ordinarily not
reasonable to require further identification efforts.
65. With respect to both of these criteria, the depth of proposed
construction to be considered excludes footings and other anchoring
mechanisms that may require excavation substantially deeper than the
general level at a site. These footings cover very small areas within a
project site, usually no more than two to three feet (and often less)
in diameter, and may extend 20 to 30 feet deep or more. Under the
circumstances, we find that a field survey in such narrow deep areas is
infeasible, and indeed may typically cause more harm than the minimal
amount of damage to archeological resources that could occur during
construction. Therefore, performing a field survey at the depths
reached by footings and other anchoring mechanisms is ordinarily not
part of a reasonable and good faith effort to identify historic
properties.
66. Finally, similar to the procedure for identifying historic
properties that may incur visual effects, we include provisions to
ensure the ability of Indian tribes and NHOs to provide information
regarding the potential presence of archeological historic properties
of religious and cultural significance to them, and we provide a
safeguard opportunity for the SHPO/THPO to identify the need for a
field survey. Specifically, as part of the tribal and NHO participation
process pursuant to section IV of the Nationwide Agreement, the
applicant or the Commission must gather information from identified
Indian tribes and NHOs to assist in identifying archeological historic
properties, including the need for a field survey. In addition, the
applicant must substantiate its determination that no archeological
field survey is necessary as part of its Submission Packet, and the
SHPO/THPO may identify a need for a field survey, notwithstanding the
applicability of either of the criteria discussed above, during its
review pursuant to section VII.A. We emphasize that an Indian tribe or
NHO, or a SHPO/THPO, must provide evidence supporting a high
probability of the presence of intact archeological historic properties
within the APE for direct effects in order for a field survey to be
necessary under these circumstances.
67. Once historic properties have been identified and their
historic significance evaluated, the next step in the section 106
process is assessment of whether the proposed undertaking would have an
adverse effect on those historic properties. The draft Nationwide
Agreement provides that effects shall be evaluated using the Criteria
of Adverse Effect set forth in the Council's rules. The draft further
provides guidance, consistent with the Council's rules, that a facility
will have a visual adverse effect if its visual effect will noticeably
diminish the integrity of one or more characteristics qualifying a
property for the National Register, and that a facility will not cause
a visual adverse effect unless visual setting or elements are
character-defining features of eligibility. The provision then provides
examples of historic properties on which visual adverse effects might
occur.
68. We adopt with some revisions the provision of the Nationwide
Agreement describing visual adverse effects. Although the Council's
rule is not entirely clear, it is plain that setting is among the
characteristics of a historic property that, when altered and
diminished in integrity, may produce an adverse effect. It seems
reasonable to us that, under some circumstances, the introduction of a
large visual intrusion outside the boundaries of a historic property
within the APE may diminish the integrity of setting, including the
landscape, on that property in such a way as to alter a characteristic
of visual setting or visual elements that qualifies the property for
inclusion in the National Register. By contrast, where the features
that qualify a property for listing on the National Register are
unrelated to its visual setting (for example, its interior design),
then a visual intrusion outside the property boundaries will not
constitute an adverse effect. Indeed, any other view arguably would be
inconsistent with section 106, which directs federal agencies, without
limitation, to consider the ``effect'' of their undertakings on
historic properties. More important, the Council has consistently
interpreted section 106 and its rules in this manner. We therefore
disagree with commenters who suggest that a facility must be located
within the boundary of a historic property in order to have a visual
adverse effect on that property.
69. We do revise the draft Nationwide Agreement to clarify that a
facility may have a visual adverse effect on a historic property only
if the historic property is within the APE. In addition, the presence
within the APE of a historic property for which visual setting or
visual elements are character-defining features of eligibility does not
in itself mean that the undertaking will necessarily have an adverse
effect on that property, but rather the undertaking must noticeably
diminish the integrity of a qualifying characteristic of eligibility.
Finally, we delete the examples of types of properties to which visual
adverse effects may occur. We conclude that in the context of the
clarified definition of visual adverse effect, the addition of examples
of representative types of situations where there may be but is not
necessarily a visual adverse effect would create an unnecessary risk of
confusion.
70. We revise the Nationwide Agreement to require that aspects of
identification, evaluation, and assessment be performed by experts who
meet the Secretary of the Interior's
[[Page 566]]
qualifications. The NHPA (16 U.S.C. 470h-4(a)) expressly recognizes the
importance of using qualified experts in historic preservation reviews.
It states that ``[a]gency personnel or contractors responsible for
historic resources shall meet qualification standards established by
the Office of Personnel Management in consultation with the Secretary
and appropriate professional societies of the disciplines involved.''
We find it consistent with the objectives embodied in the NHPA that
where a licensee or applicant, like a contractor, performs portions of
the section 106 process that implicate professional expertise in the
agency's stead, it also should use Secretary-qualified experts.
71. The Secretary's standards generally establish minimum levels of
education and/or experience for qualified experts in history,
architectural history, archeology, and related fields. The record
before us details the errors in the section 106 process, leading to
delays, that often occur where qualified experts are not used. This
persuades us that the mandatory use of Secretary-qualified experts for
identification and evaluation of properties within the APE for direct
effects, and for assessment of effects on all historic properties, is
critical to provide the level of reliability and trust necessary to
support the streamlined procedures and standards established in the
Nationwide Agreement. The standards in the Nationwide Agreement for
these aspects of historic preservation review are not and by their
nature cannot be so objective as to render the use of qualified experts
unnecessary. Thus, requiring the use of Secretary-qualified experts for
these purposes advances the objectives of section 214 of the NHPA.
72. With respect to the identification of properties within the APE
for visual effects, by contrast, the Nationwide Agreement largely
reduces the applicant's obligations to reviewing defined sets of
records in the SHPO's/THPO's files. We find that specialized training
is not necessary to glean from these records whether the properties
contained therein have been previously determined or considered
eligible for inclusion in the National Register as specified in the
Nationwide Agreement. Therefore, while we encourage applicants to use
Secretary-qualified experts to identify historic properties within the
APE for visual effects, we do not require the use of Secretary-
qualified experts for this purpose.
73. Although we encourage and expect that applicants will use
experts with relevant experience in the section 106 process and the
specific geographic area, we do not include such a requirement in the
Nationwide Agreement. Unlike the Secretary's standards for general
professional qualifications, there are no widely accepted or legally
mandated standards for section 106 experience or geographic expertise.
Therefore, any requirement along these lines would be either
potentially arbitrary or too general to enforce.
74. Section VII of the Nationwide Agreement establishes procedures
for SHPO/THPO review of applicants' determinations and for submission
of certain matters to the Commission. Generally, the draft Nationwide
Agreement provides that applicants shall submit their determinations to
the SHPO/THPO using the prescribed Submission Packet, and that the
SHPO/THPO has 30 days to review the submission. If the SHPO/THPO agrees
with the applicant's determination that no historic properties would be
affected or does not respond to such a determination within 30 days,
the section 106 process is complete and no Commission processing is
necessary. If the SHPO/THPO does not respond within 30 days to an
applicant's determination of no adverse effect, the draft establishes a
presumption that the SHPO/THPO concurs with the applicant's
determination, requires the applicant to forward the Submission Packet
to the Commission, and permits the Commission to establish a time
period within which the process will be considered complete unless the
Commission notifies the applicant otherwise. Section VII also specifies
procedures for resolution in cases of adverse effect, similar to those
set forth in the Council's rules. In addition, the section provides
that instances in which the applicant and SHPO/THPO do not agree on an
assessment may be submitted to the Commission.
75. We adopt section VII of the Nationwide Agreement substantially
as written. With respect to Applicant determinations of no adverse
effect, while we expect that SHPOs/THPOs will endeavor in good faith to
review such determinations within the time frame specified in the
Nationwide Agreement, we conclude that it is appropriate to require a
submission to the Commission where the SHPO/THPO fails to do so. By
their nature, determinations of no adverse effect ordinarily involve
closer and more subjective judgments of whether an adverse effect may
occur than do cases where no historic properties are affected. Indeed,
this difference is reflected in the generally applicable procedures set
forth in the Council's rules. Therefore, consistent with the positions
taken by the Council and the Conference in negotiating the Nationwide
Agreement, it is sound historic preservation policy that where a SHPO/
THPO has not reviewed an applicant's determination of no adverse
effect, the federal agency should have the opportunity to do so. In
order to avoid undue delay, we conclude that an applicant's
determination of no adverse effect will be final 15 days after
electronic submission to the Commission, or 25 days after submission to
the Commission by other means, unless the relevant Bureau notifies the
applicant otherwise. We find that an additional 10 days is appropriate
for hard copy submissions both because non-electronic submissions may
take longer to reach the relevant personnel and in order to encourage
electronic filing, which saves resources and reduces uncertainty for
all parties.
76. We decline to adopt other time limits. While we will endeavor
to resolve disputes between SHPOs/THPOs and applicants as quickly as
possible, and to facilitate the timely resolution of adverse effects,
we conclude that the variety of factual circumstances under which these
situations may arise makes it inadvisable to adopt binding time frames.
We also find that up to five additional days for SHPOs/THPOs to review
comments that are filed toward the end of their review period is
reasonable, given that such filings will necessitate additional review
only of the new material. In addition, given the variety of factual
situations that may arise, we find it appropriate to leave the parties
flexibility to determine in each matter whether and when to consider
means to achieve conditional findings of no adverse effect. We find no
legal support or rationale for the suggestion that the Council must be
given an opportunity to review determinations of no historic properties
affected and no adverse effect under a programmatic agreement.
77. We do, however, revise and clarify the draft provision for the
return and amendment of inadequate submissions. The intent of the
requirement that resubmissions occur within 60 days is to permit SHPOs/
THPOs to manage their dockets effectively by dismissing stale
proceedings. We did not intend to suggest any limitation on the
resubmission of a project as a new matter, and we amend the Nationwide
Agreement to clarify this point. Additionally, we specify that the
resubmission commences a new 30-day review period. While we are aware
of
[[Page 567]]
the potential for SHPOs/THPOs to evade the time limit in the Nationwide
Agreement through unnecessary returns, we believe the requirement to
describe deficiencies will limit this potential, and we conclude that
it is unreasonable to permit applicants to benefit from a potentially
shorter ultimate review period due to their own initial shortcomings.
We intend to monitor any complaints about the application of this
provision, and we will not hesitate to request an amendment or other
appropriate measures from the other signatories if experience proves it
necessary.
78. The draft Nationwide Agreement proposes forms (or templates)
that Applicants would be required to use when submitting materials to
SHPOs/THPOs. The forms are designed to simplify the submission of
section 106 material, clarify for applicants and SHPOs/THPOs what is
required, and provide uniformity in submissions nationwide. The draft
Nationwide Agreement includes two forms: Form NT for proposed new
towers, and Form CO for proposed collocations that are not excluded
from section 106 review by either the Collocation Agreement or the
Nationwide Agreement.
79. We revise and adopt Form NT and Form CO for submissions to
SHPOs and THPOs. In an effort to simplify the forms and make them more
user-friendly, we make a number of formal changes in response to the
comments. Finally, in order to achieve the benefits of uniformity and
simplicity for SHPOs/THPOs as well as applicants, we make use of the
forms mandatory for all undertakings that are not excluded from section
106 review. We conclude that the negotiating process as well as the
notice and comment in this rulemaking proceeding have provided
interested parties with ample opportunities to influence their content
and form.
80. We agree with most commenters that the Nationwide Agreement
should apply prospectively. The Nationwide Agreement includes not only
timelines and procedures, but also standards and forms that help ensure
that the timelines and procedures will be reasonable for SHPOs/THPOs
and will not compromise historic preservation. Because pending
applications may not meet the Nationwide Agreement's standards, and in
all likelihood will not use the prescribed forms, to apply it
automatically to all pending cases would cause confusion and
potentially impose unreasonable burdens on SHPOs/THPOs. We note,
however, that should a party wish to take advantage of the provisions
in the Nationwide Agreement, it may withdraw its filing and resubmit
under the Nationwide Agreement.
81. In the NPRM, we proposed amending Sec. 1.1307(a)(4) of the
Commission's rules, which directs that proposed undertakings be
evaluated for their effects on historic properties, expressly to
require that applicants follow the procedures set forth in the
Council's rules, as modified and supplemented by the Nationwide
Agreement and the Collocation Agreement. We adopt the change to Sec.
1.1307(a)(4) as proposed. The rule will bring administrative certainty
by making it clear that the provisions of the Nationwide Agreement are
mandatory and binding upon applicants, and that non-compliance with its
procedures will subject a party to potential enforcement action.
Final Regulatory Flexibility Analysis
82. As required by the Regulatory Flexibility Act of 1980, as
amended (``RFA'') \3\ an Initial Regulatory Flexibility Analysis
(``IRFA'') was incorporated in the Notice of Proposed Rulemaking
(``NPRM'') for the Nationwide Programmatic Agreement Regarding the
section 106 National Historic Preservation Act Review Process
(``Nationwide Agreement'').\4\ The Federal Communications Commission
(``Commission'' or ``FCC'') sought written public comment on the
proposals in the NPRM, including comment on the IRFA. This present
Final Regulatory Flexibility Analysis (``FRFA'') conforms to the
RFA.\5\
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\3\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996).
\4\ See Nationwide Programmatic Agreement Regarding the Section
106 National Historic Preservation Act Review Process, WT Docket No.
03-128, Notice of Proposed Rulemaking, 18 FCC Rcd 11,664 (2003)
(``Notice''); Errata, 18 FCC Rcd 12,854 (2003).
\5\ See 5 U.S.C. 604.
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A. Need for, and Objectives of, Adopted Rules
83. Under Commission rules implementing the National Environmental
Policy Act of 1969, as amended (``NEPA''),\6\ licensees and other
entities that build towers and other communications facilities
(``Applicants'') are required to assess such proposed facilities to
determine whether they may significantly affect the environment under
Sec. 1.1307 of the Commission's rules.\7\ For example, under Sec.
1.1307(a)(4) of the Commission's rules, those Applicants currently are
obliged to use the detailed procedures specified in the rules of the
Advisory Council on Historic Preservation (``Council'') (36 CFR 800.1
et seq.) to determine whether their proposed facilities may affect
districts, sites, buildings, structures, or objects significant in
American history, architecture, archeology, engineering or culture that
are listed or eligible for listing in the National Register of Historic
Places (``historic properties'').
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\6\ 42 U.S.C. 4321-4335.
\7\ 47 CFR 1.1307.
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84. These Council procedures, when combined with the procedures
employed by the various State Historic Preservation Officers
(``SHPOs'') and Tribal Historic Preservation Officers (``THPOs''), and
when multiplied by the number of facilities being constructed, created
an unnecessarily inefficient review process for Applicants. For
example, in the late 1990's, coincident with the vast increase in tower
constructions necessitated by the expanded deployment of wireless
mobile services, unacceptable delays in completing traditional section
106 reviews under the Council's rules began to occur and continue to be
experienced. The Commission therefore, began to explore alleviating
such procedural inefficiencies by using the provision in the rules of
the Council that allows for the creation of programmatic agreements
between the Council and other agencies.\8\ Generally speaking, such
programmatic agreements are intended to craft specific procedures that
more closely reflect the needs and practices of specific federal
agencies and the industries they regulate.
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\8\ 36 CFR 800.14(b).
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85. Under Sec. 800.14(b) of its rules, the Council, Federal
agencies, such as the Commission, and the appropriate SHPO or National
Conference of State Historic Preservation Officers (``NCSHPO'') may
negotiate a programmatic agreement to govern the implementation of a
particular program when, for example, the effects on historic
properties are multi-state or when nonfederal parties are delegated
major responsibilities. Accordingly, to streamline and tailor the pre-
construction review of towers and other communications facilities under
section 106 of the National Historic Preservation Act (``NHPA'')\9\ and
the related Commission and Council rules, the Council, the Commission,
and NCSHPO negotiated a programmatic agreement under Sec. 800.14(b) of
the Council's rules. Some objectives of the Nationwide Agreement and
the related rule revisions are to increase Applicants' awareness of
applicable
[[Page 568]]
laws and rules; to tailor and streamline the current procedures under
the rules of the Council and the Commission; and to ensure compliance
by Applicants with the Nationwide Agreement and related Commission and
Council rules.
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\9\ 16 U.S.C. 470f.
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86. In this Report and Order, the Commission incorporates into its
rules the recently agreed upon Nationwide Agreement, which, as
discussed below, will streamline and tailor existing procedures under
the Commission and Council rules for the review of certain Undertakings
for communications facilities under section 106 of the National
Historic Preservation Act of 1966 (``NHPA'').\10\
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\10\ See 16 U.S.C. 470 et seq.
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87. The Nationwide Agreement clarifies and tailors the obligations
\11\ of the Applicants to assist the Commission in meeting its
responsibilities under NEPA and the NHPA. First, to reduce regulatory
burdens (e.g., identifying historic properties, preparing submission
packets) on both large and small Applicants, the Nationwide Agreement,
in Part III, excludes from routine review under section 106 of the NHPA
certain Undertakings that are unlikely to affect historic properties.
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\11\ See 47 CFR 1.1307(a)(4) (directing that proposed
undertakings be evaluated for their effects on historic properties).
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88. Second, for those Undertakings that are not addressed by the
Part III exclusions and that, therefore, remain subject to review, the
draft Agreement specifies standards and procedures that Applicants must
follow when completing the section 106 review. For example, for
undertakings that remain subject to review, the Agreement sets forth
guidelines for tribal participation; \12\ procedures for ensuring
compliance with the NHPA's public participation requirements;\13\
methods for establishing the area of potential effects, identifying and
evaluating historic sites, and assessing effects;\14\ and procedures
for submitting projects to, and for review by, the SHPO or THPO and the
Commission.\15\ The Nationwide Agreement also includes procedures to be
followed when historic properties (e.g., archeological artifacts) are
discovered during construction; \16\ processes to be followed when
facilities are constructed prior to completion of the section 106
process; \17\ and provisions for the submission of public comments and
objections.\18\
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\12\ Nationwide Agreement, Part IV.
\13\ Nationwide Agreement, Part V.
\14\ Nationwide Agreement, Part VI.
\15\ Nationwide Agreement, Part VII.
\16\ Nationwide Agreement, Part IX.
\17\ Nationwide Agreement, Part X.
\18\ Nationwide Agreement, Part XI.
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89. In addition, the Nationwide Agreement includes forms which
Applicants must use for section 106 submissions to SHPOs, as well as to
THPOs that have agreed to accept such forms for projects on tribal
lands that are not subject to review by a SHPO.
90. The Commission also amends its rules in order to make clear
that the procedures in the Nationwide Agreement will be binding on
regulatees, who are subject to its terms, and that non-compliance with
these procedures would subject a party to potential Commission
enforcement action such as admonishment, forfeiture, or revocation of a
license to operate, where appropriate. Specifically, the Commission
amends Sec. 1.1307(a)(4) to specify that, in order to ascertain
whether a proposed action may affect properties that are listed or
eligible for listing in the National Register,\19\ an Applicant must
follow the procedures set forth in the rules of the Council, as
modified and supplemented by the Nationwide Programmatic Agreement for
the Collocation of Wireless Antennas and the Nationwide Agreement. Both
agreements will be included as appendices in the Code of Federal
Regulations.
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\19\ ``Listed'' properties are those properties for which an
application for inclusion in the National Register of Historic
Places (``National Register'') has been approved. Under Section
800.16(l)(2) of the regulations of the Advisory Council on Historic
Preservation, 36 CFR 800.16(l)(2), the term ``eligible for inclusion
in the National Register'' includes both properties formally
determined as such by the Keeper of the National Register in
accordance with applicable regulations of the Secretary of the
Interior and all other properties that meet the National Register
criteria. Information on the characteristics of properties that meet
these criteria is available at the National Register Web site:
http://www.cr.nps.gov/nr.
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B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
91. The Commission considered the potential impact of its actions
on smaller entities throughout the process of negotiating and drafting
the Nationwide Agreement. One of its goals has been to make the
environmental review process more efficient and standardized so that
smaller entities can learn and complete the process more quickly.
92. We received one comment in response to the IRFA. The Eastern
Band of Cherokee Indians (``EBCI'') opposes any streamlining efforts,
whether for large or small businesses, that could have the effect of
reducing or eliminating government-to-government consultation between
federal agencies and tribes. EBCI also believes that some language in
the IRFA should have been stronger to make clear that an Applicant's
obligations under the Nationwide Agreement (e.g., notice, timely
submission of necessary documents, and consultation) are mandatory.
93. With respect to the impact of the Nationwide Agreement on
government-to-government consultation, we address the concerns of EBCI
most specifically in section IV of the Nationwide Agreement. In
particular, as explained in section III.C.2. of the Report and Order
\20\ we have taken considerable care in the Nationwide Agreement to
fulfill the Commission's duty of government-to-government consultation
in all cases that cannot be consensually resolved without such
consultation. With regard to the obligations of Applicants to comply
with the terms of the Nationwide Agreement, we have revised Sec.
1.1307(a)(4) of our rules to ensure that regulatees understand that
compliance with the Nationwide Agreement is mandated. However, the
Commission notes that, wherever appropriate, any differential burdens
favoring small entities have been preserved by the Nationwide
Agreement. Furthermore, the Commission has made a concerted effort to
reduce burdens on small entities. That being said, the Commission
believes that all entities--large and small--will benefit from
compliance with the Nationwide Agreement.
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\20\ Nationwide Agreement Report and Order at section III.C.2.
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C. Description and Estimate of the Number of Small Entities to Which
the Adopted Rules Will Apply
94. The RFA directs agencies to provide a description of, and where
feasible, an estimate of the number of small entities that may be
affected by proposed rules.\21\ The RFA generally defines the term
``small entity'' as having the same meaning as the terms ``small
business,'' ``small organization,'' and ``small governmental
jurisdiction.''\22\ In addition, the term ``small business'' has the
same meaning as the term ``small business concern'' under the Small
Business Act.\23\ A ``small business concern'' is one which:
[[Page 569]]
(1) Is independently owned and operated; (2) is not dominant in its
field of operation; and (3) satisfies any additional criteria
established by the Small Business Administration (``SBA'').\24\
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\21\ 5 U.S.C. 604(a)(3).
\22\ 5 U.S.C. 604(6).
\23\ 5 U.S.C. 601(3) (incorporating by reference the definition
of ``small business concern'' in the Small Business Act, 15 U.S.C.
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a
small business applies ``unless an agency, after consultation with
the Office of Advocacy of the Small Business Administration and
after opportunity for public comment, establishes one or more
definitions of such term which are appropriate to the activities of
the agency and publishes such definition(s) in the Federal
Register.''
\24\ 15 U.S.C. 632.
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95. The Report and Order and, accordingly, the Nationwide
Agreement, will produce a rule change that will impose requirements on
a large number of entities in determining whether facilities that they
propose to construct may affect historic properties listed or eligible
for listing on the National Register of Historic Places.\25\ Due to the
number and diversity of Applicants, including small entities that are
Commission licensees as well as non-licensee tower companies, we now
classify and quantify them in the remainder of this section.
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\25\ 47 CFR 1.1307(a)(4).
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Wireless Telecommunications
96. Cellular Licensees. The SBA has developed a small business size
standard for small businesses in the category ``Cellular and Other
Wireless Telecommunications.''\26\ Under that SBA category, a business
is small if it has 1,500 or fewer employees.\27\ According to the
Bureau of the Census, only twelve firms from a total of 1238 cellular
and other wireless telecommunications firms operating during 1997 had
1,000 or more employees.\28\ Therefore, even if all twelve of these
firms were cellular telephone companies with more than 1,500 employees,
nearly all cellular carriers were small businesses under the SBA's
definition.
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\26\ 13 CFR 121.201, North American Industry Classification
System (NAICS code 517212 (Changed from 513322 in October 2002).
\27\ Id.
\28\ U.S. Department of Commerce, U.S. Census Bureau, 1997
Economic Census, Information--Subject Series, Establishment and Firm
Size, Table 5--Employment Size of Firms Subject to Federal Income
Tax at 64, NAICS code 517212 (October 2000).
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97. 220 MHz Radio Service--Phase I Licensees. The 220 MHz service
has both Phase I and Phase II licenses. Phase I licensing was conducted
by lotteries in 1992 and 1993. There are approximately 1,515 such non-
nationwide licensees and four nationwide licensees currently authorized
to operate in the 220 MHz band. The Commission has not developed a
definition of small entities specifically applicable to such incumbent
220 MHz Phase I licensees. To estimate the number of such licensees
that are small businesses, we apply the definition under the SBA rules
applicable to ``Cellular and Other Wireless Telecommunication''
companies. This category provides that a small business is a wireless
company employing no more than 1,500 persons.\29\ According to Census
Bureau data for 1997, there were 977 firms in this category, total,
that operated for the entire year.\30\ Of this total, 965 firms had 999
or fewer employees, and an additional 12 firms had 1,000 employees or
more.\31\ If this general ratio continues in 2004 in the context of
Phase I 220 MHz licensees, the Commission estimates that nearly all
such licensees are small businesses under the SBA's small business size
standard.
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\29\ 13 CFR 121.201.
\30\ U.S. Census Bureau, 1997 Economic Census, Subject Series:
Information, ``Employment Size of Firms Subject to Federal Income
Tax: 1997,'' Table 5, NAICS code 513322 (issued Oct. 2000).
\31\ Id. The census data do not provide a more precise estimate
of the number of firms that have 1,500 or fewer employees; the
largest category provided is ``Firms with 1,000 employees or more.''
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98. 220 MHz Radio Service--Phase II Licensees. The Phase II 220 MHz
service is subject to spectrum auctions. In the 220 MHz Third Report
and Order, we adopted a small business size standard for defining
``small'' and ``very small'' businesses for purposes of determining
their eligibility for special provisions such as bidding credits and
installment payments.\32\ This small business standard indicates that a
``small business'' is an entity that, together with its affiliates and
controlling principals, has average gross revenues not exceeding $15
million for the preceding three years.\33\ A ``very small business'' is
defined as an entity that, together with its affiliates and controlling
principals, has average gross revenues that do not exceed $3 million
for the preceding three years.\34\ The SBA has approved these small
size standards.\35\ Auctions of Phase II licenses commenced on
September 15, 1998, and closed on October 22, 1998.\36\ In the first
auction, 908 licenses were auctioned in three different-sized
geographic areas: three nationwide licenses, 30 Regional Economic Area
Group (``EAG'') Licenses, and 875 Economic Area (``EA'') Licenses. Of
the 908 licenses auctioned, 683 were sold.\37\ Thirty-nine small
businesses won licenses in the first 220 MHz auction. The second
auction included 225 licenses: 216 EA licenses and 9 EAG licenses.
Fourteen companies claiming small business status won 158 licenses.\38\
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\32\ Amendment of Part 90 of the Commission's Rules to Provide
for the Use of the 220-222 MHz Band by the Private Land Mobile Radio
Service, PR Docket No. 89-552, Third Report and Order, 12 FCC Red
10943, 11068-70, paragraphs 291-295 (1997) (220 MHz Third Report and
Order).
\33\ Id. at paragraph 291.
\34\ Id.
\35\ See Letter to Daniel Phythyon, Chief, Wireless
Telecommunications Bureau, Federal Communications Commission, from
Aida Alvarez, Administrator, Small Business Administration, dated
January 6, 1998.
\36\ See generally ``220 MHz Service Auction Closes,'' Public
Notice, 14 FCC Red 605 (WTB 1998).
\37\ ``FCC Announces It is Prepared to Grant 654 Phase II 220
MHz Licenses after Final Payment is Made,'' Public Notice, 14 FCC
Red 1085 (WTB 1999).
\38\ ``Phase II 220 MHz Service Spectrum Auction Closes,''
Public Notice, 14 FCC Red 11218 (WTB 1999).
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99. 700 MHz Guard Band Licenses. In the 700 MHz Guard Band Order,
we adopted size standards for ``small businesses'' and ``very small
businesses'' for purposes of determining their eligibility for special
provisions such as bidding credits and installment payments.\39\ A
small business is an entity that, together with its affiliates and
controlling principals, has average gross revenues not exceeding $40
million for the preceding three years.\40\ Additionally, a ``very small
business'' is an entity that, together with its affiliates and
controlling principals, has average gross revenues that are not more
than $15 million for the preceding three years.\41\ An auction of 52
Major Economic Area (``MEA'') licenses commenced on September 6, 2000,
and closed on September 21, 2000.\42\ Of the 104 licenses auctioned, 96
licenses were sold to 9 bidders. Five of these bidders were small
businesses that won a total of 26 licenses. A second auction of 700 MHz
Guard Band licenses commenced on February 13, 2001 and closed on
February 21, 2001. All eight of the licenses auctioned were sold to
three bidders. One of these bidders was a small business that won a
total of two licenses.\43\
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\39\ See Service Rules for the 746-764 MHz Bands, and Revisions
to Part 27 of the Commission's Rules, WT Docket No. 99-168, Second
Report and Order, 15 FCC Red 5299-5344, paragraph 108 (2000).
\40\ Id. at paragraphs 106-108.
\41\ Id. at paragraphs 106-108.
\42\ See generally, ``220 MHz Service Auction Closes: Winning
Bidders in the Auction of 908 Phase II 220 MHz Service Licenses,''
Public Notice, DA 98-2143 (rel. October 23, 1998).
\43\ ``700 MHz Guard Bands Auction Closes: Winning Bidders
Announced,'' Public Notice, 16 FCC 4590 (WTB 2001).
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100. Lower 700 MHz Band Licenses. We adopted criteria for defining
three groups of small businesses for purposes of determining their
eligibility for special provisions such as bidding credits.\44\ We have
defined a small business as an entity that, together with its
affiliates and controlling principals, has average gross revenues not
[[Page 570]]
exceeding $40 million for the preceding three years.\45\ A very small
business is defined as an entity that, together with its affiliates and
controlling principals, has average gross revenues that are not more
than $15 million for the preceding three years.\46\ Additionally, the
lower 700 MHz Service has a third category of small business status
that may be claimed for Metropolitan/Rural Service Area (``MSA/RSA'')
licenses. The third category is entrepreneur, which is defined as an
entity that, together with its affiliates and controlling principals,
has average gross revenues that are not more than $3 million for the
preceding three years. An auction of 740 licenses (one license in each
of the 734 MSAs/RSAs and one license in each of the six Economic Area
Groupings) commenced on August 27, 2002, and closed on September 18,
2002.\47\ Of the 740 licenses available for auction, 484 licenses were
sold to 102 winning bidders. Seventy-two of the winning bidders claimed
small business, very small business or entrepreneur status and won a
total of 329 licenses.
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\44\ See Reallocation and Service Rules for the 698-746 MHz
Spectrum Band (Television Channels 52-59), GN Docket No. 01-74,
Report and Order, 17 FCC Red 1022 (2002).
\45\ Id. at paragraph 172.
\46\ Id. at paragraph 172.
\47\ See ``Lower 700 MHz Band Auction Closes,'' 17 FCC Red 17272
(2002).
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101. Upper 700 MHz Band Licenses. The Commission released a Report
and Order, authorizing service in the upper 700 MHz band.\48\ No
auction has been held yet.
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\48\ Service Rules for the 746-764 and 776-794 MHz Bands, and
Revisions to Part 27 of the Commission's Rules, WT Docket No. 99-
168, Second Memorandum Opinion and Order, 16 FCC Red 1239 (2001).
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102. Private and Common Carrier Paging. In the Paging Third Report
and Order, we developed a small business size standard for ``small
businesses'' and ``very small businesses'' for purposes of determining
their eligibility for special provisions such as bidding credits and
installment payments.\49\ A ``small business'' is an entity that,
together with its affiliates and controlling principals, has average
gross revenues not exceeding $15 million for the preceding three years.
Additionally, a ``very small business'' is an entity that, together
with its affiliates and controlling principals, has average gross
revenues that are not more than $3 million for the preceding three
years. The SBA has approved these size standards.\50\ An auction of MEA
licenses commenced on February 24, 2000, and closed on March 2,
2000.\51\ Of the 985 licenses auctioned, 440 were sold. Fifty-seven
companies claiming small business status won licenses. At present,
there are approximately 24,000 Private Paging site-specific licenses
and 74,000 Common Carrier Paging site-specific licenses. According to
the most recent Trends in Telephone Service, 471 carriers reported that
they were engaged in the provision of either paging and messaging
services or other mobile services.\52\ Of those, the Commission
estimates that 450 are small, under the SBA business size standard
specifying that firms are small if they have 1,500 or fewer
employees.\53\
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\49\ 220 MHz Third Report and Order, 12 FCC Red at 11068-70,
paragraphs 291-295, 62 FR 16004 at paragraphs 291-295 (1997).
\50\ See Letter from Aida Alvarez, Administrator, Small Business
Administration to Thomas Sugrue, Chief, Auctions and Industry
Analysis Division, Wireless Telecommunications Bureau, Federal
Communications Commission (June 4, 1999).
\51\ Revision of Part 22 and Part 90 of the Commission's Rules
to Facilitate Future Development of Paging Systems, WT Docket No.
96-18, PR Docket No. 93-253, Memorandum Opinion and Order on
Reconsideration and Third Report and Order, 14 FCC Red 10030, 10085,
paragraph 98 (1999).
\52\Trends in Telephone Service at Table 5.3 (rel. Aug. 2001).
\53\ Id. The SBA size standard is that of Paging, 13 CFR
121.201, NAICS code 517211.
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103. Broadband Personal Communications Service. The Broadband
Personal Communications Service (``PCS'') spectrum is divided into six
frequency blocks designated A through F, and the Commission has held
auctions for each block. The Commission has created a small business
size standard for Blocks C and F as an entity that has average gross
revenues of less than $40 million in the three previous calendar
years.\54\ For Block F, an additional small business size standard for
``very small business'' was added and is defined as an entity that,
together with its affiliates, has average gross revenues of not more
than $15 million for the preceding three calendar years.\55\ These
small business size standards, in the context of broadband PCS
auctions, have been approved by the SBA.\56\ No small businesses within
the SBA-approved small business size standards bid successfully for
licenses in Blocks A and B. There were 90 winning bidders that
qualified as small entities in the Block C auctions. A total of 93
``small'' and ``very small'' business bidders won approximately 40% of
the 1,479 licenses for Blocks D, E, and F.\57\ On March 23, 1999, the
Commission reauctioned 155 C, D, E, and F Block licenses; there were
113 small business winning bidders. Based on this information, we
conclude that the number of small broadband PCS licensees includes the
90 winning C Block bidders and the 93 qualifying bidders in the D, E,
and F blocks plus the 113 winning bidders in the re-auction, for a
total of 296 small entity broadband PCS providers as defined by the SBA
small business standards and the Commission's auction rules.
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\54\ See Amendment of parts 20 and 24 of the Commission's
Rules--Broadband PCS Competitive Bidding and the Commercial Mobile
Radio Service Spectrum Cap, WT Docket No. 96-59, Report and Order,
11 FCC Red 7824, paragraph 57-60 (1996); see also 47 CFR 24.720(b).
\55\ See Amendment of parts 20 and 24 of the Commission's
Rules--Broadband PCS Competitive Bidding and the Commercial Mobile
Radio Service Spectrum Cap, Report and Order, 11 FCC Red 7824,
paragraph 60 (1996).
\56\ See Letter to Amy Zoslov, Chief, Auctions and Industry
Analysis Division, Wireless Telecommunications Bureau, Federal
Communications Commission, from A. Alvarez, Small Business
Administration, dated December 2, 1998.
\57\ FCC News, Broadband PCS, D, E and F Block Auction Closes,
No. 71744 (rel. January 14, 1997).
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104. Narrowband PCS. To date, two auctions of narrowband personal
communications services licenses have been conducted. For purposes of
the two auctions that have already been held, ``small businesses'' were
entities with average gross revenues for the prior three calendar years
of $40 million or less.\58\ Through these auctions, the Commission has
awarded a total of 41 licenses, out of which 11 were obtained by small
businesses. To ensure meaningful participation of small business
entities in future auctions, the Commission has adopted a two-tiered
small business size standard in the Narrowband PCS Second Report and
Order. A ``small business'' is an entity that, together with affiliates
and controlling interests, has average gross revenues for the three
preceding years of not more than $40 million.\59\ A ``very small
business'' is an entity that, together with affiliates and controlling
interests, has average gross revenues for the three preceding years of
not more than $15 million.\60\ The SBA has approved these small
business size standards.\61\ There is also one megahertz of narrowband
PCS spectrum that has been held in reserve and that the Commission has
not yet decided to release for licensing. The Commission cannot predict
accurately the number of licenses that will be awarded to small
entities in future actions. However, four of the 16 winning bidders in
the two
[[Page 571]]
previous narrowband PCS auctions were small businesses, as that term
was defined under the Commission's Rules. The Commission assumes, for
purposes of this analysis, that a large portion of the remaining
narrowband PCS licenses will be awarded to small entities. The
Commission also assumes that at least some small businesses will
acquire narrowband PCS licenses by means of the Commission's
partitioning and disaggregation rules.
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\58\ See Amendment of the Commission's Rules to Establish New
Personal Communications Services, Narrowband PCS, Second Report and
Order and Second Further Notice of Proposed Rulemaking, 15 FCC Red
10456, 10476, paragraph 40 (May 18, 2000).
\59\ Id. at 15 FCC Red 10476, paragraph 40.
\60\ Id. at 15 FCC Red 10476, paragraph 40.
\61\ See Letter to Amy Zoslov, Chief, Auctions and Industry
Analysis Division, Wireless Telecommunications Bureau, Federal
Communications Commission, from A. Alvarez, Administrator, Small
Business Administration (Dec. 2, 1998).
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105. 900 MHz Specialized Mobile Radio (``SMR''). In September of
1995, in a rulemaking adopting competitive bidding rules specifically
for the 900 MHz SMR service, the Commission established a two-tiered
bidding credit scheme for the 900 MHz SMR auction in which we defined
two categories of small businesses: (1) An entity that, together with
affiliates, has average gross revenues for the three preceding years of
$3 million or less; and (2) an entity that, together with affiliates,
has average gross revenues for the three preceding years of $15 million
or less.\62\ The SBA has approved these size standards.\63\ In Auction
Seven, which closed on April 15, 1996, sixty winning bidders for
geographic area licenses in the 900 MHz SMR band qualified as small
businesses under the $15 million size standard.
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\62\ Amendment of parts 2 and 90 of the Commission's Rules to
Provide for the Use of 200 Channels Outside the Designated Filing
Areas in the 896-901 MHz and the 935-940 MHz Bands Allotted to the
Specialized Mobile Radio Pool, PR Docket No. 89-553, Second Order on
Reconsideration and Seventh Report and Order, 11 FCC Rcd 2639, 2645-
46 (1995) (900 MHz SMR Rulemaking); see also 47 CFR 90.814(b).
\63\ See Letter to Michele C. Farquhar, Acting Chief, Wireless
Telecommunications Bureau, Federal Communications Commission, from
Philip Lader, Administrator, Small Business Administration (July 24,
1996).
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106. 800 MHz SMR. In the 800 MHz Second Report and Order, we
adopted a small business size standard for defining ``small'' and
``very small'' businesses for purposes of determining their eligibility
for special provisions such as bidding credits and installment
payments.\64\ This small business standard indicates that a ``small
business'' is an entity that, together with its affiliates and
controlling principals, has average gross revenues not exceeding $15
million for the preceding three years.\65\ A ``very small business'' is
defined as an entity that, together with its affiliates and controlling
principals, has average gross revenues that do not exceed $3 million
for the preceding three years.\66\ The SBA has approved these small
size standards.\67\
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\64\ See Amendment of part 90 of the Commission's Rules to
Facilitate Future Development of SMR Systems in the 800 MHz
Frequency Band, Second Report and Order, FCC 97-223, PR Docket No.
93-144, 12 FCC Rcd 19079, paragraph 141 (1997) (800 MHz Second
Report and Order); see also 47 CFR 90.912(b).
\65\ Id.
\66\ Id.
\67\ See Letter from Aida Alvarez, Administration, Small
Business Administration to Daniel B. Phythyon, Chief, Wireless
Telecommunications Bureau, Federal Communications Commission (Oct.
27, 1997) (Upper 200 channels). See Letter from Aida Alvarez,
Administrator, Small Business Administration to Thomas Sugrue,
Chief, Auctions and Industry Analysis Division, Wireless
Telecommunications Bureau, Federal Communications Commission (Aug.
10, 1999) (applying the size standards approved in SBA's Oct. 27,
1997 letter to the 800 MHz MSR, Lower 80 and 150 General channels).
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107. The auction of the 525 800 MHz SMR geographic area licenses
for the upper 200 channels began on October 28, 1997, and was completed
on December 8, 1997. Three (3) winning bidders for geographic area
licenses for the upper 200 channels in the 800 MHz SMR band qualified
as small businesses under the $15 million size standard, and seven (7)
qualified as very small businesses. Next, the auction of the 1,050 800
MHz SMR geographic area licenses for the General Category channels
began on August 16, 2000, and was completed on September 1, 2000.
Eleven (11) out of a total of 14 winning bidders for geographic area
licenses for the General Category channels in the 800 MHz SMR band
qualified as small businesses under the $15 million size standard.
Finally, a total of 2,800 Economic Area licenses in the lower 80
channels of the 800 MHz SMR service were sold in an auction completed
on December 5, 2000. Of the 22 winning bidders, 19 claimed ``small
business'' status. Thus, 40 winning bidders for geographic licenses in
the 800 MHz SMR band qualified as small businesses.
108. In addition, there are numerous incumbent site-by-site SMR
licensees and licensees with extended implementation authorizations on
the 800 MHz bands. We do not know how many firms provide 800 MHz
geographic area SMR service pursuant to extended implementation
authorizations, nor how many of these providers have annual revenues of
no more than $15 million. One firm has over $15 million in revenues. We
assume, for purposes of this analysis, that all of the remaining
existing extended implementation authorizations are held by small
entities as defined for the 800 MHz SMR service.
109. Private Land Mobile Radio. Private Land Mobile Radio
(``PLMR'') systems serve an essential role in a range of industrial,
business, land transportation, and public safety activities. These
radios are used by companies of all sizes operating in all U.S.
business categories. The SBA has not developed a definition of small
entity specifically applicable to PLMR licensees due to the vast array
of PLMR users. For purposes of this FRFA, we will use the SBA's
definition applicable to Cellular and Other Wireless
Telecommunications--that is, an entity with no more than 1,500
persons.\68\
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\68\ 13 CFR 121.201, North American Industry Classification
System (NAICS) code 517212 (changed from 513322 in October 2002).
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110. The Commission is unable at this time to estimate the number
of small businesses which could be impacted by the rules. The
Commission's 1994 Annual Report on PLMRs \69\ indicates that at the end
of fiscal year 1994 there were 1,087,267 licensees operating 12,481,989
transmitters in the PLMR bands below 512 MHz. Because any entity
engaged in a commercial activity is eligible to hold a PLMR license,
the revised rules in this context could potentially impact every small
business in the United States.
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\69\ Federal Communications Commission, 60th Annual Report,
Fiscal Year 1994, at paragraph 116.
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111. Fixed Microwave Services. Microwave services include common
carrier,\70\ private-operational fixed,\71\ and broadcast auxiliary
radio services.\72\ At present, there are approximately 22,015 common
carrier fixed licensees and 61,670 private operational-fixed licensees
and broadcast auxiliary radio licensees in the microwave services. For
purposes of this FRFA, we will use the SBA's definition applicable to
Cellular and Other Wireless Telecommunications--that is, an entity with
no more than 1,500 persons.\73\ We estimate that all of the Fixed
Microwave licensees (excluding broadcast auxiliary licensees) would
qualify as small
[[Page 572]]
entities under the SBA definition for radiotelephone (wireless)
companies.
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\70\ 47 CFR part 101 (formerly, Part 21 of the Commission's
Rules).
\71\ Persons eligible under parts 80 and 90 of the Commission's
rules can use Private Operational-Fixed Microwave services. See