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VOLUNTARY BEST PRACTICES

***for***

***EXPEDITING THE PROCESS OF***

***COMMUNICATIONS TOWER AND ANTENNA SITING REVIEW***

***pursuant to***

***SECTION 106 OF THE NATIONAL HISTORIC PRESERVATION ACT***

**I. Introduction.**

> The Federal Communications Commission (Commission) and the United
> South and Eastern Tribes, Inc., (USET) have agreed to the principles,
> procedures, and voluntary Best Practices outlined in this document[^1]
> (Best Practices) to promote cooperation between USET member Tribes and
> certain entities subject to the jurisdiction of the Commission
> (Applicants).[^2] The Voluntary Best Practices described in this
> document are meant to guide Applicants in the review under Section 106
> of the National Historic Preservation Act (NHPA), 47 U.S.C. § 470f, of
> the impact of communications facilities on properties of religious and
> cultural significance to USET Tribes that are listed in or eligible
> for listing in the National Register of Historic Places (National
> Register), consistent with the provisions of the Nationwide
> Programmatic Agreement for Review of Effects on Historic Properties
> for Certain Undertakings Approved by the Federal Communications
> Commission (WT Docket 03-128, FCC 04-222, October 5, 2004) (Nationwide
> Programmatic Agreement or NPA).
>
> The Commission has certain trust responsibilities when dealing with
> federally recognized American Indian Tribes and Alaska Native villages
> that devolve from the unique government-to-government trust
> relationship it shares with Tribes and the inherent sovereign status
> of Tribes.[^3] In accordance with the federal government's trust
> responsibility and as provided in the NHPA, the involvement of
> Commission Applicants in the Section 106 process does not nullify or
> substitute for the Commission's obligations to consult with federally
> recognized Indian Tribes under Section 101(d)(6) of the NHPA, or
> abrogate the general trust relationship which the Commission has with
> Tribes.
>
> The Best Practices described in this document are recommendations.
> Failure to follow these Best Practices does not by itself establish
> lack of good faith or a failure to comply with Section 106 of the NHPA
> or the Commission's rules. These Best Practices are not intended to
> discourage Tribes and Applicants from entering into alternative
> procedures that better suit their particular relationship. Adherence
> to these Best Practices may, however, be used to demonstrate a good
> faith effort to comply with applicable requirements. In evaluating
> compliance with the Commission's rules, the Commission will examine
> the totality of the circumstances and the reasonableness of the
> methods employed.
>
> **Overarching Objectives.** Applicants are engaged in the construction
> of wireless communications infrastructure networks that are vital to
> the economic and social future of the United States. The preservation
> of properties of Tribal religious and cultural significance is also
> vital, both to the Tribes, and to the United States in terms of its
> historic preservation goals and its identity as a nation of diverse
> and vibrant peoples and cultures. These Best Practices are intended to
> achieve a simple result - assuring that Applicants have certainty in a
> timely way regarding Tribal concerns as they construct these networks
> and that Tribes have the ability to participate in the assessment and
> mitigation of any effects communications facilities construction may
> have on Tribal properties of cultural and religious significance.[^4]
> To achieve this, Applicants and Tribes must commit to providing
> adequate data to each other, facilitating communications, and meeting
> the strict deadlines set forth herein. All parties must approach these
> undertakings working in good faith, showing flexibility, and making
> every effort to build a trusting and responsive relationship.
>
> The specific goals of these Best Practices are to:

-   Facilitate the Commission's compliance with its obligations under
    the NHPA;

-   Facilitate Applicants' compliance with their obligations under the
    Nationwide Programmatic Agreement and the Commission's rules;

-   Insure that Tribal interests in the preservation of properties of
    religious and cultural significance to the Tribes listed in or
    eligible for listing in the National Register are identified and
    taken account of early in the process of siting communications
    facilities;

-   Address the needs of the Applicant in a cost-effective and efficient
    manner and encourage the expeditious development of wireless
    communications infrastructure networks that are vital to the
    economic and social future of the United States;

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-   Expedite USET Tribal review of proposed tower and antenna sitings;
    and

-   Establish a process that will facilitate Commission Applicants'
    obtaining access to the special expertise held by USET Tribes in the
    identification, evaluation, and assessment of impacts on properties
    of cultural or religious significance to Tribes that are listed in
    or eligible for listing in the National Register.

These Best Practices are intended to streamline the NHPA Section 106
process for communications facilities by establishing steps whereby
Applicants and Tribes can work together in the identification and
evaluation of properties of religious and cultural significance to
Tribes that are listed, or potentially eligible for listing, in the
National Register in areas where towers are planned. Speed of response
is significant in the tower siting review process, and all parties
should make every effort to meet the timeframes in these Best Practices.
These timeframes constitute a maximum, not a minimum, and every effort
should be made to expedite communications.

# Alternative Procedures. Individual Applicants and individual Tribes may find that there are alternative procedures to these Best Practices that better suit their circumstances or their particular relationship. Consistent with the goals of facilitating dialogue and establishing mutually beneficial relationships, Tribes and Applicants have the option to enter into or continue to follow alternative procedures or agreements in place of these Best Practices. To ensure accurate records, the parties should commemorate their agreements and determinations in writing. 

The principles and procedures set forth in these Best Practices are
intended to afford Applicants useful guidance in order to facilitate and
expedite historic preservation and environmental reviews. Implementation
of these Best Practices is not mandated in order to comply with
Commission rules. Decisions as to whether to abide by any or all of
these Best Practices are left with each Applicant and each Tribe so long
as all parties comply with applicable law and regulations.

# 

**II. The Tower Construction Notification System (TCNS).**

> **A. Input of Data by Tribes.** Tribes should utilize the TCNS to
> designate with specificity the geographic areas of interest for which
> they desire notification of proposed facilities construction, to input
> the name and contact information for the Tribal Official responsible
> for and authorized to handle historic preservation issues, and to
> indicate their preferred method of initial contact (eg., email or
> letter). The TCNS provides for Tribes to make their geographic area
> designations by county. The Commission will modify the TCNS so that a
> Tribe may further limit its areas of interest by indicating a more
> detailed description of non-interest areas within the designated
> counties
>
> **B. Identification of Tribes, Tribal Areas and Tribal Officers.**
> Applicants are encouraged to use the Commission's TCNS to identify
> Tribes that may attach religious and cultural significance to historic
> properties in the geographic area in which proposed construction will
> be located.[^5] Applicants should make initial contact with all Tribes
> that assert such a potential interest. Applicants should also use the
> TCNS to identify the duly authorized Tribal official (Tribal Official)
> responsible for historic preservation, with whom all contacts should
> be made.[^6] Tribes should facilitate Applicants' making effective
> initial contact by supplying the relevant information to the TCNS and
> updating it promptly upon any changes.
>
> **C. Automated Notification Feature.** Applicants are encouraged to
> use the automated notification feature of the TCNS to provide early
> notice to interested Tribes of proposed construction. For Tribes using
> the TCNS, automated notice through the TCNS shall constitute the
> Initial Contact described in Section III.B.

**III. Contacting and Working with a Tribe.**

> **A. Contact between Applicants and Tribes is a two-step process.**
> Applicants following these best practices should contact the Tribe in
> a good faith, respectful, and culturally sensitive manner befitting
> the nature of correspondence with a sovereign government. The name,
> address, and telephone number of the Applicant's official responsible
> for compliance with these Best Practices should be included.
> Applicants should require their contractors to adhere to these Best
> Practices, unless alternative procedures, as described above, have
> been adopted by the Tribe and Applicant. The Applicant, as the entity
> seeking Tribal contact, retains the responsibility for complying with
> the Commission's rules.
>
> **B. Initial Contact.** To facilitate expeditious review, Initial
> Contact with a Tribe should be made by the Applicant as early in the
> planning process as reasonably possible, but in no event later than
> when the Applicant narrows its search to a specific tower site. For
> Tribes and Applicants participating in the TCNS, Initial Contact shall
> consist of the notification received through the TCNS of an
> Applicant's interest in a proposed tower site. For Tribes and
> Applicants not participating in the TCNS, Initial Contact should be
> made by the Applicant by telephone or e-mail to facilitate an initial
> indication of interest and an immediate reply. The purpose of this
> contact is to ascertain a Tribe's interest in the area under
> consideration for a siting project not otherwise excluded from this
> process. Additional purposes for this contact should also be to
> establish a relationship with the Tribe, and discuss expectations for
> future contacts in this process.
>
> In his or her response the Tribal Official should advise the Applicant
> within no more than fourteen (14) calendar days whether the Tribe has:

1.  **No Interest.** If the Tribe determines that there is not a
    likelihood of eligible properties of interest to the Tribe in the
    area, it should advise the Applicant by letter or e-mail.[^7] This
    letter or e-mail will serve as evidence that the Tribe has issued
    its response and may be appended to any submission made to the State
    Historic Preservation Office (SHPO) or the Commission. If a Tribe
    indicates it has no interest in the area under consideration, the
    Commission's obligations under Section 106 of the NHPA with regard
    to that Tribe are satisfied without further discussions with the
    Tribe. *See also*, Section VI. Inadvertent Finds.

2.  **Tribal Interest.** If the Tribe indicates that the proposed
    facility may impact properties eligible for or included in the
    National Register, to which that Tribe attaches religious and
    cultural significance, the Tribe and the Applicant should engage in
    a discussion regarding whether any further review is necessary and,
    if so, the terms of that additional review, in accordance with
    Section D below. Although that discussion will address both Tribal
    and Applicant interest in the tower site, the Tribe is encouraged to
    indicate in its response the general nature of its concern.

# 

# C. Follow-up Contacts and Consultation. The Tribe should respond to the Initial Contact in no more than fourteen (14) calendar days. If the Tribe does not indicate its interest or non-interest within fourteen (14) calendar days, the Applicant should make a second effort to contact the Tribe clearly indicating that the effort represents a second attempt to solicit Tribal comment. The Applicant concurrently may advise the Commission in writing of its efforts, documenting the dates on which the contacts were made and the means used. If no response has been received after seven (7) calendar days have passed from the time of the second contact, the Applicant may ask the FCC to initiate government-to-government consultation under Section 106. The Commission will promptly initiate consultation to facilitate communications regarding the proposed facility and will use best efforts to complete government-to-government consultation with the Tribe within thirty (30) days after receipt of a request and will advise the Applicant of the status of the consultation no later than five (5) days thereafter. During consultation, the Commission will keep the Applicant informed regarding the process for consultation with the Tribe and will include the Applicant in discussions with the Tribe, to the extent appropriate in the context of the Commission's government-to-government relationship with and trust responsibility to federally recognized Tribes. In the event that the Commission deems it necessary, after the failure of reasonable and good faith efforts to initiate consultation, to authorize the Applicant to complete its assessment of the tower site without Tribal input, the Commission will copy the Tribe, for informational purposes, on any such authorization.

> **D. Tribal Interest Discussion.** The Tribe and the Applicant should
> enter into a discussion regarding the scope of any further review of
> the tower site with the purpose of determining specific steps to be
> followed to properly evaluate the tower site for its potential impact
> on properties of religious and cultural significance to the Tribe. In
> this discussion the parties should address the Tribal need for
> adequate information early enough to have input into decision-making
> and the Applicant's need to move forward in a cost-effective and
> timely way. The amount of information needed will vary depending on
> the character of the tower site. The parties should make efforts to
> streamline the collection, analysis, and sharing of determinative
> information. In many situations, it may be sufficient for a Tribe to
> receive the information required by Form 620, New Tower Submission
> Packet, or Form 621, Collocation Submission Packet, attached to the
> Nationwide Programmatic Agreement, and attached hereto as Appendices B
> and C. In other situations, less information may be required.[^8]
> Finally, in some situations it may be necessary to engage in a site
> survey such as that described in section III.E.4, below, and it may be
> necessary for a Tribe to evaluate a tower site in person. In the event
> the Tribe and the Applicant cannot reach agreement on the terms of
> further review, these guidelines provide that if an Applicant provides
> a site survey as described herein, as well as a Tribal inspection of
> the tower site, sufficient information for the Tribe to make a
> determination has been provided. The Tribal Official and Applicant are
> encouraged to memorialize these matters in writing.
>
> **E. Written Request for Review**. If a Tribe has indicated during
> Initial Contact or pursuant to Commission contact that it has an
> interest in the project area, an Applicant following these Best
> Practices should, unless otherwise negotiated, send a Request for
> Review Packet to the Tribal Official. The Request for Review Packet
> should consist of what the Tribe and Applicant have agreed to in their
> discussion pursuant to Section III.D., immediately above. The Request
> for Review Packet may be sent either by USPS First Class Mail,
> preferably certified and return receipt requested, or by overnight
> courier service.[^9] Facsimile transmissions of information to the
> Tribe will not be sufficient due to the potential for degradation of
> graphic information that may be necessary for decision-making.
>
> In addition to a Request for Review Letter, a sample of which is
> attached as Appendix A, the Request for Review Packet materials
> provided to the Tribe should include the following information, except
> as otherwise agreed to by the parties in their discussions during
> Initial Contact. The timeframe for Tribal review will not begin until
> all the materials agreed upon or listed below are received.

1.  **Name, address, and telephone number** of the Applicant's official
    responsible for the Written Request for Review.

2.  **Site Location,** including latitude and longitude coordinates;
    County, Township, Range, and Section, where applicable, of all areas
    included in the review site; and a "street address" where
    applicable.

3.  **A USGS 7.5' Series Topographic Map(s)** with the review site(s)
    identified and plotted.

4.  **Draft Site Survey Report.** The site survey report is an important
    part of the identification phase of Section 106 review. As such,
    that report should list all known potentially historic properties of
    religious and cultural significance to Tribes. A draft site survey
    report should be submitted unless the parties have agreed upon
    alternative procedures with an Applicant that do not call for a
    draft site survey report or modify the requirements of that report
    as provided for in Section III.D. Consistent with the elements
    detailed below, the draft site survey report may be submitted using
    FCC Form 620 or 621, as modified to provide all information
    reasonably necessary for the Tribe to evaluate whether historic
    properties of religious and cultural significance may be affected
    (NPA, Section IV.F.3).

> **The Draft Site Survey Report should include**:

-   A site and area history, including a detailed description of the
    land, and indicating the degree of historical and current soil
    disturbance;

-   A bibliographic or narrative review of any relevant prior
    archeological or historical surveys conducted in the area, which
    should include viewsheds (Form 620, Attachment 9c);

-   A detailed description of proposed construction describing all
    facets of the project that will entail soil disturbance, including
    drawings if helpful (Form 620, Attachment 2);

-   A list of all known potentially historic properties of religious and
    cultural significance to Indian Tribes (Form 620, Attachments 8 and
    9);

-   Research findings resulting from State-Wide Archeological Inventory
    or Master Site File searches (NPA, Section VI.D.1.a). Applicants
    should recognize, however, that a finding of "no known properties"
    in the Inventory or Master File Search is not conclusive evidence
    that properties are not present and does not automatically relieve
    the Applicant of the responsibility for conducting an archeological
    survey;

-   An archeological site survey conducted according to accepted
    professional standards by a professional archeologist who meets the
    Secretary of the Interior's Standards and has credentials that
    demonstrate regional knowledge and experience.[^10] An archeological
    site survey need not be included where either (1) the soil has been
    previously disturbed to at least 2 feet below the proposed
    construction depth (excluding footings and other anchoring
    mechanisms) or (2) geomorphological evidence indicates that cultural
    resource-bearing soils do not occur within the project area or may
    occur but at depths that exceed 2 feet below the proposed
    construction depth. In these instances, the Draft Site Survey should
    include documentation of either or both of these conditions.
    Pursuant to the Nationwide Programmatic Agreement, if an Indian
    Tribe or NHO provides evidence that supports a high probability of
    the presence of intact archeological historic properties within the
    APE for direct effects, the Applicant shall conduct an archeological
    field survey (NPA, Section VI.D.2);

-   The results of a review of records for historic properties within
    the Area of Potential Effects (APE), as provided for under the
    Nationwide Programmatic Agreement (Section VI.C), together with
    photographs of all identified potentially historic properties within
    the APE of religious and cultural significance to Tribes (Form 620,
    Attachment 11);[^11]

-   An assessment of the undertaking's effect on potentially historic
    properties of religious and cultural significance to Tribes,
    including viewsheds (NPA, Section VI.E; Form 620, Attachment 10).

    1.  **Area of Potential Effect.** If evidence supports it, an
        archeological examination should be conducted in any area(s)
        required for construction of a tower, its access road(s) and/or
        equipment pads inside or outside of the primary tower site; any
        anchor sites; and all areas of heavy equipment access. In
        addition, the Draft Site Survey report should identify an area
        that extends beyond the immediate site in which a review will be
        performed for eligible National Register sites where the effect
        may be indirect, including visual effects, subject to the
        provisions of the Nationwide Programmatic Agreement.

    2.  **Compliance with alternative agreed upon conditions.** If there
        have been other alternative conditions agreed to during the
        Initial Contact, the Applicant should address such conditions.

> **F. Tribal Response to the Request for Review.** The Tribe should
> respond to the Applicant, in writing, no later than 30 days after
> receipt of the Request for Review. The Tribal Officer may indicate:

1.  **Request for Additional Information.** The Tribe should review the
    materials package as soon after receipt as possible in an effort to
    identify any additional information needed and should make a request
    for additional information by letter or e-mail immediately
    thereafter. If the review materials package originally provided by
    the Applicant does not provide all of the required information, as
    established in Sections III.D and E, or is otherwise insufficient
    for the Tribe to make an assessment regarding the presence of
    properties of religious and cultural significance to the Tribe that
    are listed or eligible to be listed in the National Register or to
    assess the effect on such properties, the Tribe may request
    additional information. This request may be made in writing, at
    project meetings, or during teleconferences and should be conveyed
    to the Applicant at the earliest possible time. The Tribe's 30-day
    deadline for responding to the Applicant will begin anew, upon
    receipt of the response from the Applicant. *See also*, NPA Section
    VII.A.4. If after a request for additional information the Tribe
    believes the Applicant's response remains insufficient either party
    may, at its discretion, ask the Commission to provide guidance.

2.  **No Interest.** If the Tribe determines that there is not a
    likelihood of eligible properties of religious and cultural
    significance to the Tribe in the area, it should advise the
    Applicant by letter or e-mail from a duly authorized Tribal
    Official. This letter or e-mail will serve as evidence that the
    Tribe has issued its response and may be appended to any submission
    made to the State Historic Preservation Office (SHPO) or the
    Commission. If a Tribe indicates it has no interest in the area
    under consideration, the Commission's obligations under Section 106
    of the NHPA are satisfied without further discussions with the
    Tribe. *See also*, Section VI. Inadvertent Finds.

3.  **Request for Additional Time.** Both the Tribe and the Applicant
    will make good faith efforts to expedite the review process and
    abide by the time frames provided in these Best Practices. If
    extraordinary circumstances (*e.g.,* insufficient information
    provided by Applicant, staffing constraints, unusual research
    requirements, or Tribal deliberation schedules) would make it
    difficult to provide an adequate evaluation of the Applicant's
    request in a particular instance, the Tribe may request additional
    time to evaluate the Applicant's request not to exceed thirty (30)
    calendar days. If an extension is required the Tribe should notify
    the Applicant by letter or e-mail, stating the reasons for the
    extension, as early as possible in the initial 30-day review period.
    Applicants should accommodate a reasonable request for extension,
    but if unable to do so, Applicants should notify the Commission and
    the Tribe and provide the Commission with an opportunity to review
    the matter.

4.  **No Effect.** If, after reviewing the Request for Review Packet,
    the Tribal Official determines either that there are no properties
    of religious and cultural significance to the Tribe that are listed
    or eligible to be listed on the National Register within the APE or
    that the proposed project will have no effect on any such properties
    that may be present, the Tribe should in the most expeditious manner
    possible notify the Applicant. The Tribe should confirm the
    determination in writing, via letter or e-mail. A letter or e-mail
    advising the Applicant of a No Effect response will serve as
    evidence that the Tribe has reviewed the Request for Review Packet
    and provided its views on the proposed project. The confirming
    letter or e-mail may be appended to any submission made to the SHPO
    or the Commission. *See also*, Section VI. Inadvertent Finds.

5.  **No Adverse Effect.** If, after reviewing the Request for Review
    Packet, the Tribal Official identifies properties of cultural and
    religious significance that he or she believes are eligible for
    listing in the National Register within the APE, for which there
    would be no adverse effect, he or she should notify the Applicant in
    the most expeditious manner possible. The Tribe should confirm the
    determination in writing, via letter or e-mail. A letter or e-mail
    advising the Applicant of No Adverse Effect will serve as evidence
    that the Tribe has reviewed the Request for Review Packet and
    provided its views on the proposed project. The confirming letter or
    e-mail may be appended to any submission made to the SHPO or the
    Commission. *See also*, Section VI. Inadvertent Finds.

6.  **Adverse Effect.** If, after reviewing the Request for Review
    Packet, the Tribal Official identifies properties of cultural and
    religious significance eligible for listing in the National Register
    within the APE, that he or she believes would be adversely affected
    by the proposed project, he or she should notify the Applicant in
    the most expeditious manner possible, stating the basis of the
    Tribal Official\'s determinations. The Tribe should confirm the
    determination in writing or via e-mail. The Applicant should notify
    the Commission of the Tribal Official's opinion and forward to the
    Commission a copy of the Tribal response.

> **G. Addressing Adverse Effects.** If the Applicant seeks to proceed
> at a tower site where the Tribe believes there would be an Adverse
> Effect, it should attempt to resolve the Tribe's concerns.
> Negotiations should commence as soon as possible after a response of
> adverse effect is made by the Tribe and the Applicant has notified the
> Tribal Official that it seeks to develop the tower site. It should be
> the goal of the parties to reach a final plan to resolve concerns and
> avoid or mitigate the Adverse Effect no later than thirty (30) days
> after the commencement of negotiations ("Resolution Plan"). Such a
> deadline may be extended by the mutual consent of the parties. The
> Resolution Plan should be in writing and signed by the parties. Where
> the parties are unable to reach agreement on a Resolution Plan, the
> procedures set forth in Section V.B should be followed.
>
> The Resolution Plan should satisfy the Tribe's concerns regarding
> protection and preservation of the historic properties at issue. The
> Resolution Plan may include on-site monitoring by a qualified
> professional archeologist. It is noted that the Resolution Plan is a
> tool to address Tribal concerns, not the interest(s) of the general
> public or other parties who may have expressed preservation concerns
> about the tower site.
>
> Construction should occur so as to avoid any adverse effect on human
> burials. Absent Commission and Tribal consent, no construction or
> other development activities should occur at a tower site on which
> human remains are known to exist or are likely to be encountered.
>
> The Resolution Plan signed by the Tribe and Applicant will serve as
> evidence that the Applicant has made a good-faith effort to satisfy
> the Tribe's concerns regarding the tower site, and has reached
> agreement with the Tribe. The Resolution Plan may be appended to any
> submission made to the SHPO or the Commission.
>
> If the Resolution Plan will only mitigate, and will not entirely
> avoid, an adverse effect, the Commission remains obligated as the
> responsible Federal agency under the NHPA to review and proceed with a
> Memorandum of Agreement (MOA). The FCC will invite the affected Tribes
> to be consulting and signing parties for any such MOA. A Resolution
> Plan does not supersede, or in any way alter, the Applicant's
> responsibilities under Section 1.1307(a)(4) of the Commission's
> environmental rules.
>
> If the Applicant chooses to abandon the tower site in favor of an
> alternate tower site, it should discuss and identify alternative
> project sites that will be acceptable to the Tribe.

# H. Written Request for Review Follow-up Contacts and Consultation. The Tribe should respond to an Applicant's Written Request for Review within thirty (30) calendar days after receipt of the Request for Review Packet. If the Tribe does not respond within thirty (30) calendar days, the Applicant should contact the Tribe to inquire as to the reason(s) for the delay, and request a Tribal response. 

# 

If, following affirmative follow up contact, an Applicant does not
receive a response to a Written Request for Review within seven (7)
calendar days thereafter, the procedures set forth in Section III.C
shall apply.

In instances where the proposed tower site is not on Tribal lands or
where a Tribe has not, pursuant to Section 101(d)(2) of the NHPA,
assumed the functions of the SHPO with respect to Tribal lands, the
Applicant may submit a copy of the Commission's authorization to the
SHPO to serve as evidence of the Applicant's attempts to contact the
Tribe.

# I. Early Identification of Tribal Concerns. At any point during this recommended Best Practices process, should a Tribe have concerns that cannot reasonably be resolved with the Applicant, it should contact the Chief of the Commission's Consumer & Governmental Affairs Bureau in writing as early in the process as possible so that the concerns are addressed in the context of the special government-to-government relationship which the Commission shares with federally recognized Tribes. 

**IV. Materially Inaccurate or Incomplete Information, and
Discoveries.**

A Tribal position, based upon a Request for Review, may be relied upon
by the Applicant and the Commission as evidence that the Tribe has
reviewed the Request for Review Packet and provided its views on the
proposed project. The Tribe may subsequently revise such views in
writing, for good cause. Good cause may include a discovery that the
information on which the Tribe based its decisions was materially
inaccurate or incomplete or that during the construction process
artifacts or human remains were discovered. The Tribe should notify the
Commission and the Applicant simultaneously of its revised position as
soon as possible after learning of an inadvertent find or its discovery
of significant deficiencies in the materials supplied by the Applicant.
Such notification shall set forth the basis of the Tribe's action to
revise its position.

**V. Non-Agreement.**

> **A. Eligibility of Historic Properties for Inclusion in the National
> Register.** If the Tribe and the Applicant fail to agree on whether a
> property of religious and cultural significance to the Tribe is
> included or eligible for inclusion in the National Register, a request
> may be presented to the Commission for resolution. The Commission will
> handle such requests in accordance with Section 800.4(c) of the ACHP's
> rules. As provided in Section 800.4(c)(2), the Tribe retains the right
> to ask the ACHP to request that the Commission submit such issues to
> the Keeper of the National Register.
>
> **B. Adverse Effects.** If the Tribe and the Applicant fail to agree
> on the effects of proposed construction on a historic property of
> cultural and religious significance to the Tribe, or cannot agree upon
> a Resolution Plan, they may present their separate findings to the
> Commission for resolution. The Commission will then commence
> consultation, as required by Federal law, directly with the Tribe
> concerning the proposed project. Once the Commission and the Tribe
> enter into consultation, the requirements and remedies of the NHPA
> will apply, including the development of a Memorandum of Agreement.

**VI. Inadvertent Finds.**

> **A. Applicant Responsibility.** In the event of an inadvertent find
> of cultural features, human remains, and/or artifacts, including grave
> goods, the Applicant must comply with the requirements of Section IX
> of the Nationwide Programmatic Agreement. The Applicant should take
> reasonable and immediate steps to protect the site from environmental
> destruction, vandalism, and/or theft, and should ensure the
> confidentiality of the site. In addition to notifying any potentially
> affected Tribes immediately by telephone, Applicants following these
> Best Practices should follow up within three days with written
> notification by first class U.S. mail or overnight courier.
>
> Treatment of human remains and associated grave goods is of particular
> interest to Tribes. To the extent permitted by federal, state and
> Tribal law, Tribal wishes regarding the disposition of the human
> remains and associated grave goods should be honored in decisions.
>
> When the land on which the communications facility is being
> constructed is owned by an entity or individual other than the
> Applicant, the Applicant should, subject to Tribal wishes, make a good
> faith effort to represent Tribal interests relating to the disposition
> and preservation of discovered artifacts to the land owner.
>
> **B. Tribal Responsibility.** In the event of an inadvertent discovery
> during the construction process, the Tribe should respond with a
> determination of its desires concerning the inadvertent find as
> quickly as practicable. In no case should a response to the Applicant
> occur later than seven days after written notice of an inadvertent
> find has been received by the Tribal Officer. The affected Tribes are
> encouraged to confer among themselves on the appropriate disposition
> of remains and/or artifacts.
>
> **C. Compliance with the Law.** In the event of an inadvertent find,
> nothing in this Best Practices is intended to supersede any pertinent
> Federal and state laws and regulations including, but not limited to,
> the Native American Graves Protection and Repatriations Act,
> Archaeological Resources Protection Act, American Indian Religious
> Freedom Act, National Environmental Policy Act, and Executive Order
> 13007---Indian Sacred Sites to which the Applicant would be subject.

**VII. Multiple Tribal Interests.**

In those cases where the proposed project is located on or near
properties of significance to more than one USET member Tribe, there is
a responsibility to contact each appropriate Tribe individually. The
Tribes should respond individually, per Section III.

VIII\. Confidentiality.

> **A. Applicant Concerns.** USET and the Commission acknowledge that
> both the Applicant and the Tribe have substantial confidentiality
> concerns. When the Applicant considers tower site locations, project
> design, or other data to be confidential, and advises the Tribe that
> it is presenting proprietary business information, the Tribe shall
> agree to treat the material received from the Applicant as
> confidential, except where disclosure is authorized in writing by the
> Applicant or otherwise required by law.

B.  **Tribal Concerns.** USET and the Commission acknowledge that Tribes
    consider the location of many properties of cultural and religious
    significance to be proprietary cultural information, and seek
    confidentiality in order to protect those properties. The Applicant
    shall not disclose information it has acquired, whether from the
    Tribe or from another source, that relates to properties of cultural
    and religious significance to the Tribe, except where disclosure is
    authorized in writing by the Tribe or otherwise required by law. The
    Commission and USET acknowledge that there may be some circumstances
    in which the Tribe cannot divulge to the Applicant the exact nature
    or location of a Tribal cultural or religious property. In such
    circumstances, the Tribe should endeavor, in good faith and to the
    extent consistent with its need for confidentiality and Tribal
    custom or law, to provide as much relevant information as possible
    to the Applicant.

C.  **Authorized Disclosure.** Notwithstanding Section VIII.B. of these
    Best Practices, the Applicant may disclose such Confidential
    Information only to those employees, contractors, representatives
    and agents, including subtenants and entities collocated on the
    Applicant's tower (Receiving Party), who have a need to know such
    Confidential Information for compliance with laws and regulations
    governing the preservation of historic properties. The Applicant and
    the Receiving Party shall hold such Confidential Information in
    strict confidence, and use at least the same degree of care as they
    use to safeguard their own most confidential and proprietary
    information so as to insure that no unauthorized person has access
    to it. The Applicant shall ensure that the Receiving Party is aware
    of and abides by the Tribal restrictions regarding the use of such
    Confidential Information, and should bind the Receiving Party
    legally from improperly disclosing Confidential Information.

**IX. Compensation for Professional Services.**

The Advisory Council regulations state that the "agency official shall
acknowledge that Indian Tribes and Native Hawaiian organizations possess
special expertise in assessing the eligibility of historic properties
that may possess religious and cultural significance to them." (§
800.4(c)(1)). Consistent with the ACHP Memorandum on *Fees in the
Section 106 Review Process*, payment to a Tribe is appropriate when an
Agency or Applicant "essentially asks the Tribe to fulfill the role of a
consultant or contractor" when it "seeks to identify historic properties
that may be significant to an Indian Tribe, \[and\] ask\[s\] for
specific information and documentation regarding the location, nature
and condition of individual sites, or actually request\[s\] that a
survey be conducted by the Tribe."[^12] In providing their "special
expertise," Tribes are fulfilling a consultant role. To the extent
compensation should be paid, it should be negotiated between the
Applicant and the Tribe. USET has adopted a model cost recovery schedule
for such consultant or contractor services, which it states is intended
solely to cover Tribal costs.

**X. Government-to-Government Consultation between a Tribe and the
FCC.**

Consistent with ACHP guidance, when an agency seeks the governmental
views of an Indian Tribe regarding an agency undertaking to fulfill the
agency's legal obligation to consult, the agency is not required to pay
the Tribe for providing its views. If the agency has made a reasonable
and good faith effort to consult with an Indian Tribe and the Tribe
refuses to respond without receiving payment, the agency has met its
obligation to consult, and is free to proceed with the project review
and approval process.[^13]

# 

# XI. Dispute Resolution.

In instances where the Tribe and the Applicant are unable to reach any
agreement, the dispute should revert to the Commission as the Federal
agency responsible for complying with Section 106 of the NHPA. When the
parties cannot agree, the Commission will complete Tribal consultation,
pursuant to its government-to-government responsibilities. Consistent
with its obligation under the NHPA, the Commission, as the responsible
agency, will then render a substantive decision in writing resolving the
matter.

**XII. Amendments and Future Meetings**

These Best Practices may only be amended by agreement in writing by the
Commission and USET. The Commission and USET agree that, no later than
six (6) months after these Best Practices are adopted, the Commission
will hold a meeting with USET and communications tower industry
officials to review and evaluate the effectiveness of the provisions of
these voluntary Best Practices and discuss the need for any amendments.
Thereafter, the Commission and USET agree to meet at one-year intervals
to discuss the continued effectiveness of and the need for these Best
Practices. These discussions will include input from all affected
stakeholders.

Dated: October 25, 2004

[^1]: *See Memorandum of Understanding Between the Federal
    Communications Commission and the United South and Eastern Tribes,
    Inc., Regarding Recommended Best Practices and the Section 106
    Process* (February 3, 2004).

[^2]: The term "Applicant" for this Best Practices document means a
    Commission licensee, permittee, or registration holder, or an
    applicant or prospective applicant for a wireless or broadcast
    license, authorization or antenna structure registration, and the
    duly authorized agents, employees, and contractors of any such
    person or entity.

[^3]: *See Statement of Policy on Establishing a
    Government-to-Government Relationship with Indian Tribes* (16 FCC
    Rcd 4078 (2000)).

[^4]: "Facility" as used herein is defined as a Tower or an Antenna, and
    may also refer to a Tower and its associated Antenna(s). "Tower" as
    used herein is defined as any structure built for the sole or
    primary purpose of supporting Commission-licensed or authorized
    Antennas, including the on-site fencing, equipment, switches,
    wiring, cabling, power sources, shelters, or cabinets associated
    with that Tower but not installed as part of an Antenna.

[^5]: Although Tribes and Applicants are strongly urged to participate
    in the TCNS, there may be Tribes with an interest in an area that
    have not yet taken advantage of TCNS and that will still need to be
    identified through such other means as talking with Tribal and State
    Historic Preservation Officers, historic research, and contacting
    the Bureau of Indian Affairs.

[^6]: In many instances, such official will not be the Tribal leader,
    but another official designated to represent the Tribe on historic
    preservation matters. Letters sent to the incorrect official may
    result in delays in processing. Letters sent to individual Tribal
    citizens not listed in the Tower Construction Notification System
    are not consistent with these Best Practices and are likely to cause
    confusion and result in delay.

[^7]: A Tribe that has "No Interest" in an area is encouraged to alert
    the Applicant to any other Tribe that it believes may have an
    interest.

[^8]: Some examples may include, but are not limited to: (1) where the
    site is on a building in an urban area; (2) where the site is within
    a building (such as a barn or church steeple); (3) where the site is
    in an area that has been the subject of a survey (such as for
    federally funded highways after 1985) and where the survey indicates
    that Tribal properties would not be affected; or (4) where the site
    is in an area previously designated by a Tribal historic
    preservation officer as having limited potential to affect Historic
    Properties.

[^9]: Applicants should retain receipts as evidence in the event that
    questions arise regarding the process that an Applicant has
    followed.

[^10]: Each USET Tribe is encouraged to provide a list of archeological
    firms that it believes meet these standards and that have
    established a positive reputation with the Tribe for professionalism
    and respect of Tribal culture. Applicants are encouraged to use
    firms from this list to build trust and expedite this process. The
    designation of a firm(s) by a USET Tribe does not imply that the
    Tribe believes that such firm(s) has the "special expertise" that
    the Tribe itself possesses "in assessing the eligibility of historic
    properties that may possess religious and cultural significance to
    them" (Advisory Council Regulations, Section 800.4(c)(1)).

[^11]: Color images of the site and eligible features can be submitted
    in digital formats if they are of sufficient quality to allow
    review.

[^12]: *See* Executive Director Memorandum of John Fowler, Advisory
    Council on Historic Preservation, regarding *Fees in the Section 106
    Review Process*, at 3 (July 6, 2001).

[^13]: *Id.,* at 2-3.