September 2004

INTRODUCTION

WHEREAS, Section 106 of the National Historic Preservation Act of 1966,
as amended ("NHPA") (codified at 16 U.S.C. § 470f), requires federal
agencies to take into account the effects of certain of their
Undertakings on Historic Properties (see Section II, below), included in
or eligible for inclusion in the National Register of Historic Places
("National Register"), and to afford the Advisory Council on Historic
Preservation ("Council") a reasonable opportunity to comment with regard
to such Undertakings; and

WHEREAS, under the authority granted by Congress in the Communications
Act of 1934, as amended (47 U.S.C. § 151 *et seq*.), the Federal
Communications Commission ("Commission") establishes rules and
procedures for the licensing of non‑federal government communications
services, and the registration of certain antenna structures in the
United States and its Possessions and Territories; and

WHEREAS, Congress and the Commission have deregulated or streamlined the
application process regarding the construction of individual Facilities
in many of the Commission's licensed services; and

WHEREAS, under the framework established in the Commission's
environmental rules, 47 C.F.R. §§ 1.1301-1.1319, Commission licensees
and applicants for authorizations and antenna structure registrations
are required to prepare, and the Commission is required to independently
review and approve, a pre-construction Environmental Assessment ("EA")
in cases where a proposed tower or antenna may significantly affect the
environment, including situations where a proposed tower or antenna may
affect Historic Properties that are either listed in or eligible for
listing in the National Register, including properties of religious and
cultural importance to an Indian tribe or Native Hawaiian organization
("NHO") that meet the National Register criteria; and

WHEREAS, the Council has adopted rules implementing Section 106 of the
NHPA (codified at 36 C.F.R. Part 800) and setting forth the process,
called the "Section 106 process," for complying with the NHPA; and

WHEREAS, pursuant to the Commission's rules and the terms of this
Nationwide Programmatic Agreement for Review of Effects on Historic
Properties for Certain Undertakings Approved by the Federal
Communications Commission ("Nationwide Agreement"), Applicants (*see*
Section II.A.2) have been authorized, consistent with the terms of the
memorandum from the Council to the Commission, titled "Delegation of
Authority for the Section 106 Review of Telecommunications Projects,"
dated September 21, 2000, to initiate, coordinate, and assist the
Commission with compliance with many aspects of the Section 106 review
process for their Facilities; and

WHEREAS, in August 2000, the Council established a Telecommunications
Working Group (the "Working Group") to provide a forum for the
Commission, the Council, the National Conference of State Historic
Preservation Officers ("Conference"), individual State Historic
Preservation Officers ("SHPOs"), Tribal Historic Preservation Officers
("THPOs"), other tribal representatives, communications industry
representatives, and other interested members of the public to discuss
improved Section 106 compliance and to develop methods of streamlining
the Section 106 review process; and

WHEREAS, Section 214 of the NHPA (16 U.S.C. § 470v) authorizes the
Council to promulgate regulations implementing exclusions from Section
106 review, and Section 800.14(b) of the Council's regulations (36 C.F.R
§ 800.14(b)) allows for programmatic agreements to streamline and tailor
the Section 106 review process to particular federal programs, if they
are consistent with the Council's regulations; and

WHEREAS, the Commission, the Council, and the Conference executed on
March 16, 2001, the Nationwide Programmatic Agreement for the
Collocation of Wireless Antennas (the "Collocation Agreement"), in order
to streamline review for the collocation of antennas on existing towers
and other structures and thereby reduce the need for the construction of
new towers (Attachment 1 to this Nationwide Agreement); and

WHEREAS, the Council, the Conference, and the Commission now agree it is
desirable to further streamline and tailor the Section 106 review
process for Facilities that are not excluded from Section 106 review
under the Collocation Agreement while protecting Historic Properties
that are either listed in or eligible for listing in the National
Register; and

WHEREAS, the Working Group agrees that a nationwide programmatic
agreement is a desirable and effective way to further streamline and
tailor the Section 106 review process as it applies to Facilities; and

WHEREAS, this Nationwide Agreement will, upon its execution by the
Council, the Conference, and the Commission, constitute a substitute for
the Council's rules with respect to certain Commission Undertakings; and

WHEREAS, the Commission sought public comment on a draft of this
Nationwide Agreement through a *Notice of Proposed Rulemaking* released
on June 9, 2003;

WHEREAS, the Commission has actively sought and received participation
and comment from Indian tribes and NHOs regarding this Nationwide
Agreement; and

WHEREAS, the Commission has consulted with federally recognized Indian
tribes regarding this Nationwide Agreement (*see* *Report and Order*,
FCC 04-222, at ¶ 31); and

WHEREAS, this Nationwide Agreement provides for appropriate public
notification and participation in connection with the Section 106
process; and

WHEREAS, Section 101(d)(6) of the NHPA provides that federal agencies
"shall consult with any Indian tribe or Native Hawaiian organization"
that attaches religious and cultural significance to properties of
traditional religious and cultural importance that may be determined to
be eligible for inclusion in the National Register and that might be
affected by a federal undertaking (16 U.S.C. § 470a(d)(6)); and

WHEREAS, the Commission has adopted a "Statement of Policy on
Establishing a Government-to-Government Relationship with Indian Tribes"
dated June 23, 2000, pursuant to which the Commission: recognizes the
unique legal relationship that exists between the federal government and
Indian tribal governments, as reflected in the Constitution of the
United States, treaties, federal statutes, Executive orders, and
numerous court decisions; affirms the federal trust relationship with
Indian tribes, and recognizes that this historic trust relationship
requires the federal government to adhere to certain fiduciary standards
in its dealings with Indian tribes; commits to working with Indian
tribes on a government-to-government basis consistent with the
principles of tribal self-governance; commits, in accordance with the
federal government's trust responsibility, and to the extent
practicable, to consult with tribal governments prior to implementing
any regulatory action or policy that will significantly or uniquely
affect tribal governments, their land and resources; strives to develop
working relationships with tribal governments, and will endeavor to
identify innovative mechanisms to facilitate tribal consultations in the
Commission's regulatory processes; and endeavors to streamline its
administrative process and procedures to remove undue burdens that its
decisions and actions place on Indian tribes; and

WHEREAS, the Commission does not delegate under this Programmatic
Agreement any portion of its responsibilities to Indian tribes and NHOs,
including its obligation to consult under Section 101(d)(6) of the NHPA;
and

WHEREAS, the terms of this Nationwide Agreement are consistent with and
do not attempt to abrogate the rights of Indian tribes or NHOs to
consult directly with the Commission regarding the construction of
Facilities; and

WHEREAS, the execution and implementation of this Nationwide Agreement
will not preclude Indian tribes or NHOs, SHPO/THPOs, local governments,
or members of the public from filing complaints with the Commission or
the Council regarding effects on Historic Properties from any Facility
or any activity covered under the terms of the Nationwide Agreement; and

WHEREAS, Indian tribes and NHOs may request Council involvement in
Section 106 cases that present issues of concern to Indian tribes or
NHOs (see 36 C.F.R. Part 800, Appendix A, Section (c)(4)); and

WHEREAS, the Commission, after consulting with federally recognized
Indian tribes, has developed an electronic Tower Construction
Notification System through which Indian tribes and NHOs may voluntarily
identify the geographic areas in which Historic Properties to which they
attach religious and cultural significance may be located, Applicants
may ascertain which participating Indian tribes and NHOs have identified
such an interest in the geographic area in which they propose to
construct Facilities, and Applicants may voluntarily provide electronic
notification of proposed Facilities construction for the Commission to
forward to participating Indian tribes, NHOs, and SHPOs/THPOs; and

WHEREAS, the Council, the Conference and the Commission recognize that
Applicants' use of qualified professionals experienced with the NHPA and
Section 106 can streamline the review process and minimize potential
delays; and

WHEREAS, the Commission has created a position and hired a cultural
resources professional to assist with the Section 106 process; and

WHEREAS, upon execution of this Nationwide Agreement, the Council may
still provide advisory comments to the Commission regarding the
coordination of Section 106 reviews; notify the Commission of concerns
raised by consulting parties and the public regarding an Undertaking;
and participate in the resolution of adverse effects for complex,
controversial, or other non-routine projects;

NOW THEREFORE, in consideration of the above provisions and of the
covenants and agreements contained herein, the Council, the Conference
and the Commission (the "Parties") agree as follows:

I.  APPLICABILITY AND SCOPE OF THIS NATIONWIDE AGREEMENT

    A.  This Nationwide Agreement (1) excludes from Section 106 review
        certain Undertakings involving the construction and modification
        of Facilities, and (2) streamlines and tailors the Section 106
        review process for other Undertakings involving the construction
        and modification of Facilities. An illustrative list of
        Commission activities in relation to which Undertakings covered
        by this Agreement may occur is provided as Attachment 2 to this
        Agreement.

    B.  This Nationwide Agreement applies only to federal Undertakings
        as determined by the Commission ("Undertakings"). The Commission
        has sole authority to determine what activities undertaken by
        the Commission or its Applicants constitute Undertakings within
        the meaning of the NHPA. Nothing in this Agreement shall
        preclude the Commission from revisiting or affect the existing
        ability of any person to challenge any prior determination of
        what does or does not constitute an Undertaking. Maintenance and
        servicing of Towers, Antennas, and associated equipment are not
        deemed to be Undertakings subject to Section 106 review.

    C.  This Agreement does not apply to Antenna Collocations that are
        exempt from Section 106 review under the Collocation Agreement
        (see Attachment 1). Pursuant to the terms of the Collocation
        Agreement, such Collocations shall not be subject to the Section
        106 review process and shall not be submitted to the SHPO/THPO
        for review. This Agreement does apply to collocations that are
        not exempt from Section 106 review under the Collocation
        Agreement.

    D.  This Agreement does not apply on "tribal lands" as defined under
        Section 800.16(x) of the Council's regulations, 36
        C.F.R. § 800.16(x) ("Tribal lands means all lands within the
        exterior boundaries of any Indian reservation and all dependent
        Indian communities."). This Nationwide Agreement, however, will
        apply on tribal lands should a tribe, pursuant to appropriate
        tribal procedures and upon reasonable notice to the Council,
        Commission, and appropriate SHPO/THPO, elect to adopt the
        provisions of this Nationwide Agreement. Where a tribe that has
        assumed SHPO functions pursuant to Section 101(d)(2) of the NHPA
        (16 U.S.C. § 470(d)(2)) has agreed to application of this
        Nationwide Agreement on tribal lands, the term SHPO/THPO denotes
        the Tribal Historic Preservation Officer with respect to review
        of proposed Undertakings on those tribal lands. Where a tribe
        that has not assumed SHPO functions has agreed to application of
        this Nationwide Agreement on tribal lands, the tribe may notify
        the Commission of the tribe's intention to perform the duties of
        a SHPO/THPO, as defined in this Nationwide Agreement, for
        proposed Undertakings on its tribal lands, and in such instances
        the term SHPO/THPO denotes both the State Historic Preservation
        Officer and the tribe's authorized representative. In all other
        instances, the term SHPO/THPO denotes the State Historic
        Preservation Officer.

    E.  This Nationwide Agreement governs only review of Undertakings
        under Section 106 of the NHPA. Applicants completing the Section
        106 review process under the terms of this Nationwide Agreement
        may not initiate construction without completing any
        environmental review that is otherwise required for effects
        other than historic preservation under the Commission's rules
        (S*ee* 47 C.F.R. §§ 1.1301-1.1319). Completion of the Section
        106 review process under this Nationwide Agreement satisfies an
        Applicant's obligations under the Commission's rules with
        respect to Historic Properties, except for Undertakings that
        have been determined to have an adverse effect on Historic
        Properties and that therefore require preparation and filing of
        an Environmental Assessment (S*ee* 47 C.F.R. § 1.1307(a)(4)).

    F.  This Nationwide Agreement does not govern any Section 106
        responsibilities that agencies other than the Commission may
        have with respect to those agencies' federal Undertakings.

II. DEFINITIONS

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

1\. Antenna. An apparatus designed for the purpose of emitting radio
frequency ("RF") radiation, to be operated or operating from a fixed
location pursuant to Commission authorization, for the transmission of
writing, signs, signals, data, images, pictures, and sounds of all
kinds, including the transmitting device and any on-site equipment,
switches, wiring, cabling, power sources, shelters or cabinets
associated with that antenna and added to a Tower, structure, or
building as part of the original installation of the antenna. For most
services, an Antenna will be mounted on or in, and is distinct from, a
supporting structure such as a Tower, structure or building. However, in
the case of AM broadcast stations, the entire Tower or group of Towers
constitutes the Antenna for that station. For purposes of this
Nationwide Agreement, the term Antenna does not include unintentional
radiators, mobile stations, or devices authorized under Part 15 of the
Commission\'s rules.

2\. Applicant. A Commission licensee, permittee, or registration holder,
or an applicant or prospective applicant for a wireless or broadcast
license, authorization or antenna structure registration, and the duly
authorized agents, employees, and contractors of any such person or
entity.

3\. Area of Potential Effects ("APE"). The geographic area or areas
within which an Undertaking may directly or indirectly cause alterations
in the character or use of Historic Properties, if any such properties
exist.

4\. Collocation. The mounting or installation of an Antenna on an
existing Tower, building, or structure for the purpose of transmitting
radio frequency signals for telecommunications or broadcast purposes.

5\. Effect. An alteration to the characteristics of a Historic Property
qualifying it for inclusion in or eligibility for the National Register.

6\. Experimental Authorization. An authorization issued to conduct
experimentation utilizing radio waves for gathering scientific or
technical operation data directed toward the improvement or extension of
an established service and not intended for reception and use by the
general public. "Experimental Authorization" does not include an
"Experimental Broadcast Station" authorized under Part 74 of the
Commission\'s rules.

7\. Facility. A Tower or an Antenna. The term Facility may also refer to
a Tower and its associated Antenna(s).

8.  Field Survey. A research strategy that utilizes one or more visits
    to the area where construction is proposed as a means of identifying
    Historic Properties.

9.  Historic Property. Any prehistoric or historic district, site,
    building, structure, or object included in, or eligible for
    inclusion in, the National Register maintained by the Secretary of
    the Interior. This term includes artifacts, records, and remains
    that are related to and located within such properties. The term
    includes properties of traditional religious and cultural importance
    to an Indian tribe or NHO that meet the National Register criteria.

10\. National Register. The National Register of Historic Places,
maintained by the Secretary of the Interior\'s office of the Keeper of
the National Register.

11\. SHPO/THPO Inventory. A set of records of previously gathered
information, authorized by state or tribal law, on the absence, presence
and significance of historic and archeological resources within the
state or tribal land.

12\. Special Temporary Authorization. Authorization granted to a
permittee or licensee to allow the operation of a station for a limited
period at a specified variance from the terms of the station\'s
permanent authorization or requirements of the Commission's rules
applicable to the particular class or type of station.

13\. Submission Packet. The document to be submitted initially to the
SHPO/THPO to facilitate review of the Applicant\'s findings and any
determinations with regard to the potential impact of the proposed
Undertaking on Historic Properties in the APE. There are two Submission
Packets: (a) The New Tower Submission Packet (FCC Form 620) (See
Attachment 3) and (b) The Collocation Submission Packet (FCC Form 621)
(See Attachment 4). Any documents required to be submitted along with a
Form are part of the Submission Packet.

14\. Tower. Any structure built for the sole or primary purpose of
supporting Commission‑licensed or authorized Antennas, including the
on-site fencing, equipment, switches, wiring, cabling, power sources,
shelters, or cabinets associated with that Tower but not installed as
part of an Antenna as defined herein.

B. All other terms not defined above or elsewhere in this Nationwide
Agreement shall have the same meaning as set forth in the Council's
rules section on Definitions (36 C.F.R. § 800.16) or the Commission's
rules (47 C.F.R. Chapter I).

C. For the calculation of time periods under this Agreement, "days" mean
"calendar days." Any time period specified in the Agreement that ends on
a weekend or a Federal or State holiday is extended until the close of
the following business day.

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

III. UNDERTAKINGS EXCLUDED FROM SECTION 106 REVIEW

Undertakings that fall within the provisions listed in the following
sections III.A. through III.F. are excluded from Section 106 review by
the SHPO/THPO, the Commission, and the Council, and, accordingly, shall
not be submitted to the SHPO/THPO for review. The determination that an
exclusion applies to an Undertaking should be made by an authorized
individual within the Applicant's organization, and Applicants should
retain documentation of their determination that an exclusion applies.
Concerns regarding the application of these exclusions from Section 106
review may be presented to and considered by the Commission pursuant to
Section XI.

A. Enhancement of a tower and any associated excavation that does not
involve a collocation and does not substantially increase the size of
the existing tower, as defined in the Collocation Agreement. For towers
constructed after March 16, 2001, this exclusion applies only if the
tower has completed the Section 106 review process and any associated
environmental reviews required by the Commission.

B. Construction of a replacement for an existing communications tower
and any associated excavation that does not substantially increase the
size of the existing tower under elements 1-3 of the definition as
defined in the Collocation Agreement (see Attachment 1 to this
Agreement, Stipulation 1.c.1-3) and that does not expand the boundaries
of the leased or owned property surrounding the tower by more than 30
feet in any direction or involve excavation outside these expanded
boundaries or outside any existing access or utility easement related to
the site. For towers constructed after March 16, 2001, this exclusion
applies only if the tower has completed the Section 106 review process
and any associated environmental reviews required by the Commission's
rules.

C. Construction of any temporary communications Tower, Antenna
structure, or related Facility that involves no excavation or where all
areas to be excavated will be located in areas described in Section
VI.D.2.c.i below, including but not limited to the following:

1\. A Tower or Antenna authorized by the Commission for a temporary
period, such as any Facility authorized by a Commission grant of Special
Temporary Authority ("STA") or emergency authorization;

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

3\. A broadcast auxiliary services truck, TV pickup station, remote
pickup broadcast station (e.g., electronic newsgathering vehicle)
authorized under Part 74 or temporary fixed or transportable earth
station in the fixed satellite service (e.g., satellite newsgathering
vehicle) authorized under Part 25;

4\. A temporary ballast mount Tower;

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

For purposes of this Section III.C, the term "temporary" means "for no
more than twenty-four months duration except in the case of those
Facilities associated with national security."

> D. Construction of a Facility less than 200 feet in overall height
> above ground level in an existing industrial park,[^1] commercial
> strip mall,[^2] or shopping center[^3] that occupies a total land area
> of 100,000 square feet or more, provided that the industrial park,
> strip mall, or shopping center is not located within the boundaries of
> or within 500 feet of a Historic Property, as identified by the
> Applicant after a preliminary search of relevant records. Proposed
> Facilities within this exclusion must complete the process of
> participation of Indian tribes and NHOs pursuant to Section IV of this
> Agreement. If as a result of this process the Applicant or the
> Commission identifies a Historic Property that may be affected, the
> Applicant must complete the Section 106 review process pursuant to
> this Agreement notwithstanding the exclusion.
>
> E. Construction of a Facility in or within 50 feet of the outer
> boundary of a right-of-way designated by a Federal, State, local, or
> Tribal government for the location of communications Towers or
> above-ground utility transmission or distribution lines and associated
> structures and equipment and in active use for such purposes,
> provided:
>
> 1\. The proposed Facility would not constitute a substantial increase
> in size, under elements 1-3 of the definition in the Collocation
> Agreement, over existing structures located in the right-of-way within
> the vicinity of the proposed Facility, and;
>
> 2\. The proposed Facility would not be located within the boundaries
> of a Historic Property, as identified by the Applicant after a
> preliminary search of relevant records.
>
> Proposed Facilities within this exclusion must complete the process of
> participation of Indian tribes and NHOs pursuant to Section IV of this
> Agreement. If as a result of this process the Applicant or the
> Commission identifies a Historic Property that may be affected, the
> Applicant must complete the Section 106 review process pursuant to
> this Agreement notwithstanding the exclusion.

F. Construction of a Facility in any area previously designated by the
SHPO/THPO at its discretion, following consultation with appropriate
Indian tribes and NHOs, as having limited potential to affect Historic
Properties. Such designation shall be documented by the SHPO/THPO and
made available for public review.

IV\. PARTICIPATION OF INDIAN TRIBES AND NATIVE HAWAIIAN ORGANIZATIONS IN
UNDERTAKINGS OFF TRIBAL LANDS

A. The Commission recognizes its responsibility to carry out
consultation with any Indian tribe or NHO that attaches religious and
cultural significance to a Historic Property if the property may be
affected by a Commission undertaking. This responsibility is founded in
Sections 101(d)(6)(a-b) and 106 of the NHPA (16 U.S.C. §§
470a(d)(6)(a-b) and 470f), the regulations of the Council (36 C.F.R.
Part 800), the Commission's environmental regulations (47 C.F.R. §§
1.1301-1.1319), and the unique legal relationship that exists between
the federal government and Indian Tribal governments, as reflected in
the Constitution of the United States, treaties, federal statutes,
Executive orders, and numerous court decisions. This historic trust
relationship requires the federal government to adhere to certain
fiduciary standards in its dealings with Indian Tribes. (*Commission
Statement of Policy on Establishing a Government-to-Government
Relationship with Indian Tribes*).

B. As an initial step to enable the Commission to fulfill its duty of
consultation, Applicants shall use reasonable and good faith efforts to
identify any Indian tribe or NHO that may attach religious and cultural
significance to Historic Properties that may be affected by an
Undertaking. Applicants should be aware that frequently, Historic
Properties of religious and cultural significance to Indian tribes and
NHOs are located on ancestral, aboriginal, or ceded lands of such tribes
and organizations and Applicants should take this into account when
complying with their responsibilities. Where an Indian tribe or NHO has
voluntarily provided information to the Commission's Tower Construction
Notification System regarding the geographic areas in which Historic
Properties of religious and cultural significance to that Indian tribe
or NHO may be located, reference to the Tower Construction Notification
System shall constitute a reasonable and good faith effort at
identification with respect to that Indian tribe or NHO. In addition,
such reasonable and good faith efforts may include, but are not limited
to, seeking relevant information from the relevant SHPO/THPO, Indian
tribes, state agencies, the U.S. Bureau of Indian Affairs ("BIA"), or,
where applicable, any federal agency with land holdings within the state
(e.g., the U.S. Bureau of Land Management). Although these agencies can
provide useful information in identifying potentially affected Indian
tribes, contacting BIA, the SHPO or other federal and state agencies is
not a substitute for seeking information directly from Indian tribes
that may attach religious and cultural significance to a potentially
affected Historic Property, as described below.

> C. After the Applicant has identified Indian tribes and NHOs that may
> attach religious and cultural significance to potentially affected
> Historic Properties, the Commission has the responsibility, and the
> Commission imposes on the Applicant the obligation, to ensure that
> contact is made at an early stage in the planning process with such
> Indian tribes and NHOs in order to begin the process of ascertaining
> whether such Historic Properties may be affected. This initial contact
> shall be made by the Commission or the Applicant, in accordance with
> the wishes of the Indian tribe or NHO. This contact shall constitute
> only an initial effort to contact the Indian tribe or NHO, and does
> not in itself fully satisfy the Applicant's obligations or substitute
> for government-to-government consultation unless the Indian tribe or
> NHO affirmatively disclaims further interest or the Indian tribe or
> NHO has otherwise agreed that such contact is sufficient. Depending on
> the preference of the Indian tribe or NHO, the means of initial
> contact may include, without limitation:
>
> 1\. Electronic notification through the Commission's Tower
> Construction Notification System;
>
> 2\. Written communication from the Commission at the request of the
> Applicant;
>
> 3\. Written, e-mail, or telephonic notification directly from the
> Applicant to the Indian tribe or NHO;
>
> 4\. Any other means that the Indian Tribe or NHO has informed the
> Commission are acceptable, including through the adoption of best
> practices pursuant to Section IV.J, below; or
>
> 5\. Any other means to which an Indian tribe or NHO and an Applicant
> have agreed pursuant to Section IV.K, below.
>
> D. The Commission will use its best efforts to ascertain the
> preferences of each Indian tribe and NHO for initial contact, and to
> make these preferences available to Applicants in a readily accessible
> format. In addition, the Commission will use its best efforts to
> ascertain, and to make available to Applicants, any locations or types
> of construction projects, within the broad geographic areas in which
> Historic Properties of religious and cultural significance to an
> Indian tribe or NHO may be located, for which the Indian tribe or NHO
> does not expect notification. To the extent they are comfortable doing
> so, the Commission encourages Indian tribes and NHOs to accept the
> Tower Construction Notification System as an efficient and thorough
> means of making initial contact.
>
> E. In the absence of any contrary indication of an Indian tribe's or
> NHO's preference, where an Applicant does not have a pre-existing
> relationship with an Indian tribe or NHO, initial contact with the
> Indian tribe or NHO shall be made through the Commission. Unless the
> Indian tribe or NHO has indicated otherwise, the Commission may make
> this initial contact through the Tower Construction Notification
> System. An Applicant that has a pre-existing relationship with an
> Indian tribe or NHO shall make initial contact in the manner that is
> customary to that relationship or in such other manner as may be
> accepted by the Indian tribe or NHO. An Applicant shall copy the
> Commission on any initial written or electronic direct contact with an
> Indian tribe or NHO, unless the Indian tribe or NHO has agreed through
> a best practices agreement or otherwise that such copying is not
> necessary.
>
> F. Applicants' direct contacts with Indian tribes and NHOs, where
> accepted by the Indian tribe or NHO, shall be made in a sensitive
> manner that is consistent with the reasonable wishes of the Indian
> tribe or NHO, where such wishes are known or can be reasonably
> ascertained. In general, unless an Indian tribe or NHO has provided
> guidance to the contrary, Applicants shall follow the following
> guidelines:
>
> 1\. All communications with Indian tribes shall be respectful of
> tribal sovereignty;
>
> 2\. Communications shall be directed to the appropriate representative
> designated or identified by the tribal government or other governing
> body;
>
> 3\. Applicants shall provide all information reasonably necessary for
> the Indian tribe or NHO to evaluate whether Historic Properties of
> religious and cultural significance may be affected. The parties
> recognize that it may be neither feasible nor desirable to provide
> complete information about the project at the time of initial contact,
> particularly when initial contact is made early in the process. Unless
> the Indian tribe or NHO affirmatively disclaims interest, however, it
> shall be provided with complete information within the earliest
> reasonable time frame;
>
> 4\. The Applicant must ensure that Indian tribes and NHOs have a
> reasonable opportunity to respond to all communications. Ordinarily,
> 30 days from the time the relevant tribal or NHO representative may
> reasonably be expected to have received an inquiry shall be considered
> a reasonable time. Should a tribe or NHO request additional time to
> respond, the Applicant shall afford additional time as reasonable
> under the circumstances. However, where initial contact is made
> automatically through the Tower Construction Notification System, and
> where an Indian tribe or NHO has stated that it is not interested in
> reviewing proposed construction of certain types or in certain
> locations, the Applicant need not await a response to contact
> regarding proposed construction meeting that description;
>
> 5\. Applicants should not assume that failure to respond to a single
> communication establishes that an Indian tribe or NHO is not
> interested in participating, but should make a reasonable effort to
> follow up.
>
> G. The purposes of communications between the Applicant and Indian
> tribes or NHOs are: (1) to ascertain whether Historic Properties of
> religious and cultural significance to the Indian tribe or NHO may be
> affected by the undertaking and consultation is therefore necessary,
> and (2) where possible, with the concurrence of the Indian tribe or
> NHO, to reach an agreement on the presence or absence of effects that
> may obviate the need for consultation. Accordingly, the Applicant
> shall promptly refer to the Commission any request from a federally
> recognized Indian tribe for government-to-government consultation. The
> Commission will then carry out government-to-government consultation
> with the Indian tribe. Applicants shall also seek guidance from the
> Commission in the event of any substantive or procedural disagreement
> with an Indian tribe or NHO, or if the Indian tribe or NHO does not
> respond to the Applicant's inquiries. Applicants are strongly advised
> to seek guidance from the Commission in cases of doubt.
>
> H. If an Indian tribe or NHO indicates that a Historic Property of
> religious and cultural significance to it may be affected, the
> Applicant shall invite the commenting tribe or organization to become
> a consulting party. If the Indian tribe or NHO agrees to become a
> consulting party, it shall be afforded that status and shall be
> provided with all of the information, copies of submissions, and other
> prerogatives of a consulting party as provided for in 36
> C.F.R. § 800.2.
>
> I. Information regarding Historic Properties to which Indian tribes or
> NHOs attach religious and cultural significance may be highly
> confidential, private, and sensitive. If an Indian tribe or NHO
> requests confidentiality from the Applicant, the Applicant shall honor
> this request and shall, in turn, request confidential treatment of
> such materials or information in accordance with the Commission's
> rules and Section 304 of the NHPA (16 U.S.C. § 470w-3(a)) in the event
> they are submitted to the Commission. The Commission shall provide
> such confidential treatment consistent with its rules and applicable
> federal laws. Although the Commission will strive to protect the
> privacy interests of all parties, the Commission cannot guarantee its
> own ability or the ability of Applicants to protect confidential,
> private, and sensitive information from disclosure under all
> circumstances.
>
> J. In order to promote efficiency, minimize misunderstandings, and
> ensure that communications among the parties are made in accordance
> with each Indian tribe or NHO's reasonable preferences, the Commission
> will use its best efforts to arrive at agreements regarding best
> practices with Indian tribes and NHOs and their representatives. Such
> best practices may include means of making initial contacts with
> Indian tribes and NHOs as well as guidelines for subsequent
> discussions between Applicants and Indian tribes or NHOs in
> fulfillment of the requirements of the Section 106 process. To the
> extent possible, the Commission will strive to achieve consistency
> among best practice agreements with Indian tribes and NHOs. Where best
> practices exist, the Commission encourages Applicants to follow those
> best practices.
>
> K. Nothing in this Section shall be construed to prohibit or limit
> Applicants and Indian tribes or NHOs from entering into or continuing
> pre-existing arrangements or agreements governing their contacts,
> provided such arrangements or agreements are otherwise consistent with
> federal law and no modification is made in the roles of other parties
> to the process under this Nationwide Agreement without their consent.
> Documentation of such alternative arrangements or agreements should be
> filed with the Commission.

V. PUBLIC PARTICIPATION AND CONSULTING PARTIES

A.  On or before the date an Applicant submits the appropriate
    Submission Packet to the SHPO/THPO, as prescribed by Section VII,
    below, the Applicant shall provide the local government that has
    primary land use jurisdiction over the site of the planned
    Undertaking with written notification of the planned Undertaking.

B.  On or before the date an Applicant submits the appropriate
    Submission Packet to the SHPO/THPO, as prescribed by Section VII,
    below, the Applicant shall provide written notice to the public of
    the planned Undertaking. Such notice may be accomplished (1) through
    the public notification provisions of the relevant local zoning or
    local historic preservation process for the proposed Facility; or
    (2) by publication in a local newspaper of general circulation. In
    the alternative, an Applicant may use other appropriate means of
    providing public notice, including seeking the assistance of the
    local government.

C.  The written notice to the local government and to the public shall
    include: (1) the location of the proposed Facility including its
    street address; (2) a description of the proposed Facility including
    its height and type of structure; (3) instruction on how to submit
    comments regarding potential effects on Historic Properties; and
    (4) the name, address, and telephone number of a contact person.

D.  A SHPO/THPO may make available lists of other groups, including
    Indian tribes, NHOs and organizations of Indian tribes or NHOs,
    which should be provided notice for Undertakings to be located in
    particular areas.

E.  If the Applicant receives a comment regarding potentially affected
    Historic Properties, the Applicant shall consider the comment and
    either include it in the initial submission to the SHPO/THPO, or, if
    the initial submission has already been made, immediately forward
    the comment to the SHPO/THPO for review. An Applicant need not
    submit to the SHPO/THPO any comment that does not substantially
    relate to potentially affected Historic Properties.

F.  The relevant SHPO/THPO, Indian tribes and NHOs that attach religious
    and cultural significance to Historic Properties that may be
    affected, and the local government are entitled to be consulting
    parties in the Section 106 review of an Undertaking. The Council may
    enter the Section 106 process for a given Undertaking, on Commission
    invitation or on its own decision, in accordance with 36 C.F.R. Part
    800, Appendix A. An Applicant shall consider all written requests of
    other individuals and organizations to participate as consulting
    parties and determine which should be consulting parties. An
    Applicant is encouraged to grant such status to individuals or
    organizations with a demonstrated legal or economic interest in the
    Undertaking, or demonstrated expertise or standing as a
    representative of local or public interest in historic or cultural
    resources preservation. Any such individual or organization denied
    consulting party status may petition the Commission for review of
    such denial. Applicants may seek assistance from the Commission in
    identifying and involving consulting parties. All entities granted
    consulting party status shall be identified to the SHPO/THPO as part
    of the Submission Packet.

G.  Consulting parties are entitled to: (1) receive notices, copies of
    submission packets, correspondence and other documents provided to
    the SHPO/THPO in a Section 106 review; and (2) be provided an
    opportunity to have their views expressed and taken into account by
    the Applicant, the SHPO/THPO and, where appropriate, by the
    Commission.

    VI\. IDENTIFICATION, EVALUATION, AND ASSESSMENT OF EFFECTS

```{=html}
<!-- -->
```
A.  In preparing the Submission Packet for the SHPO/THPO and consulting
    parties pursuant to Section VII of this Nationwide Agreement and
    Attachments 3 and 4, the Applicant shall: (1) define the area of
    potential effects (APE); (2) identify Historic Properties within the
    APE; (3) evaluate the historic significance of identified properties
    as appropriate; and (4) assess the effects of the Undertaking on
    Historic Properties. The standards and procedures described below
    shall be applied by the Applicant in preparing the Submission
    Packet, by the SHPO/THPO in reviewing the Submission Packet, and
    where appropriate, by the Commission in making findings.

B.  Exclusion of Specific Geographic Areas from Review.

    The SHPO/THPO, consistent with relevant State or tribal procedures,
    may specify geographic areas in which no review is required for
    direct effects on archeological resources or no review is required
    for visual effects.

    C. Area of Potential Effects.

    1\. The term "Area of Potential Effects" is defined in Section
    II.A.3 of this Nationwide Agreement. For purposes of this Nationwide
    Agreement, the APE for direct effects and the APE for visual effects
    are further defined and are to be established as described below.

> 2\. The APE for direct effects is limited to the area of potential
> ground disturbance and any property, or any portion thereof, that will
> be physically altered or destroyed by the Undertaking.
>
> 3\. The APE for visual effects is the geographic area in which the
> Undertaking has the potential to introduce visual elements that
> diminish or alter the setting, including the landscape, where the
> setting is a character-defining feature of a Historic Property that
> makes it eligible for listing on the National Register.
>
> 4\. Unless otherwise established through consultation with the
> SHPO/THPO, the presumed APE for visual effects for construction of new
> Facilities is the area from which the Tower will be visible:
>
> a\. Within a half mile from the tower site if the proposed Tower is
> 200 feet or less in overall height;
>
> b\. Within ¾ of a mile from the tower site if the proposed Tower is
> more than 200 but no more than 400 feet in overall height; or
>
> c\. Wthin 1 ½ miles from the proposed tower site if the proposed Tower
> is more than 400 feet in overall height.
>
> 5\. In the event the Applicant determines, or the SHPO/THPO
> recommends, that an alternative APE for visual effects is necessary,
> the Applicant and the SHPO/THPO may mutually agree to an alternative
> APE.
>
> 6\. If the Applicant and the SHPO/THPO, after using good faith
> efforts, cannot reach an agreement on the use of an alternative APE,
> either the Applicant or the SHPO/THPO may submit the issue to the
> Commission for resolution. The Commission shall make its determination
> concerning an alternative APE within a reasonable time.

D. Identification and Evaluation of Historic Properties.

> 1\. Identification and Evaluation of Historic Properties Within the
> APE for Visual Effects.

a.  Except to identify Historic Properties of religious and cultural
    significance to Indian tribes and NHOs, Applicants shall identify
    Historic Properties within the APE for visual effects by reviewing
    the following records. Applicants are required to review such
    records only to the extent they are available at the offices of the
    SHPO/THPO or can be found in publicly available sources identified
    by the SHPO/THPO. With respect to these properties, Applicants are
    not required to undertake a Field Survey or other measures other
    than reviewing these records in order to identify Historic
    Properties:

    i.  Properties listed in the National Register;

    ii. Properties formally determined eligible for listing by the
        Keeper of the National Register;

    iii. Properties that the SHPO/THPO certifies are in the process of
         being nominated to the National Register;

    iv. Properties previously determined eligible as part of a consensus
        determination of eligibility between the SHPO/THPO and a Federal
        Agency or local government representing the Department of
        Housing and Urban Development (HUD); and

    v.  Properties listed in the SHPO/THPO Inventory that the SHPO/THPO
        has previously evaluated and found to meet the National Register
        criteria, and that are identified accordingly in the SHPO/THPO
        Inventory.

b.  At an early stage in the planning process and in accordance with
    Section IV of this Nationwide Agreement, the Commission or the
    Applicant, as appropriate, shall gather information from Indian
    tribes or NHOs identified pursuant to Section IV.B to assist in
    identifying Historic Properties of religious and cultural
    significance to them within the APE for visual effects. Such
    information gathering may include a Field Survey where appropriate.

c.  Based on the sources listed above and public comment received
    pursuant to Section V of this Nationwide Agreement, the Applicant
    shall include in its Submission Packet a list of properties it has
    identified as apparent Historic Properties within the APE for visual
    effects.

> i\. During the review period described in Section VII.A, the SHPO/THPO
> may identify additional properties included in the SHPO/THPO Inventory
> and located within the APE that the SHPO/THPO considers eligible for
> listing on the National Register, and notify the Applicant pursuant to
> Section VII.A.4.
>
> ii\. The SHPO/THPO may also advise the Applicant that previously
> identified properties on the list no longer qualify for inclusion in
> the National Register.

d.  Applicants are encouraged at their discretion to use the services of
    professionals who meet the Secretary of the Interior's Professional
    Qualification Standards when identifying Historic Properties within
    the APE for visual effects.

e.  Applicants are not required to evaluate the historic significance of
    properties identified pursuant to Section VI.D.1.a., but may rely on
    the previous evaluation of these properties. Applicants may, at
    their discretion, evaluate whether such properties are no longer
    eligible for inclusion in the National Register and recommend to the
    SHPO/THPO their removal from consideration. Any such evaluation
    shall be performed by a professional who meets the Secretary of the
    Interior's Professional Qualification Standards.

```{=html}
<!-- -->
```
1.  Identification and Evaluation of Historic Properties Within the APE
    for Direct Effects.

    a.  In addition to the properties identified pursuant to Section
        VI.D.1, Applicants shall make a reasonable good faith effort to
        identify other above ground and archeological Historic
        Properties, including buildings, structures, and historic
        districts, that lie within the APE for direct effects. Such
        reasonable and good faith efforts may include a Field Survey
        where appropriate.

    b.  Identification and evaluation of Historic Properties within the
        APE for direct effects, including any finding that an
        archeological Field Survey is not required, shall be undertaken
        by a professional who meets the Secretary of the Interior's
        Professional Qualification Standards. Identification and
        evaluation relating to archeological resources shall be
        performed by a professional who meets the Secretary of the
        Interior's Professional Qualification Standards in archeology.

        c\. Except as provided below, the Applicant need not undertake a
        Field Survey for archeological resources where:

        i.  the depth of previous disturbance exceeds the proposed
            construction depth (excluding footings and other anchoring
            mechanisms) by at least 2 feet as documented in the
            Applicant's siting analysis; or

        ii. geomorphological evidence indicates that cultural
            resource-bearing soils do not occur within the project area
            or may occur but at depths that exceed 2 feet below the
            proposed construction depth.

            d\. At an early stage in the planning process and in
            accordance with Section IV of this Nationwide Agreement, the
            Commission or the Applicant, as appropriate, shall gather
            information from Indian tribes or NHOs identified pursuant
            to Section IV.B to assist in identifying archeological
            Historic Properties of religious and cultural significance
            to them within the APE for direct effects. If an Indian
            tribe or NHO provides evidence that supports a high
            probability of the presence of intact archeological Historic
            Properties within the APE for direct effects, the Applicant
            shall conduct an archeological Field Survey notwithstanding
            Section VI.D.2.c.

            e\. Where the Applicant pursuant to Sections VI.D.2.c and
            VI.D.2.d finds that no archeological Field Survey is
            necessary, it shall include in its Submission Packet a
            report substantiating this finding. During the review period
            described in Section VII.A, the SHPO/THPO may, based on
            evidence that supports a high probability of the presence of
            intact archeological Historic Properties within the APE for
            direct effects, notify the Applicant that the Submission
            Packet is inadequate without an archeological Field Survey
            pursuant to Section VII.A.4.

            f\. The Applicant shall conduct an archeological Field
            Survey within the APE for direct effects if neither of the
            conditions in Section VI.D.2.c applies, or if required
            pursuant to Section VI.D.2.d or e. The Field Survey shall be
            conducted in consul-tation with the SHPO/THPO and consulting
            Indian tribes or NHOs.

> g\. The Applicant, in consultation with the SHPO/THPO and appropriate
> Indian tribes or NHOs, shall apply the National Register criteria (36
> C.F.R. Part 63) to properties identified within the APE for direct
> effects that have not previously been evaluated for National Register
> eligibility, with the exception of those identified pursuant to
> Section VI.D.1.a.

3\. Dispute Resolution

> Where there is a disagreement regarding the identification or
> eligibility of a property, and after attempting in good faith to
> resolve the issue the Applicant and the SHPO/THPO continue to
> disagree, the Applicant or the SHPO/THPO may submit the issue to the
> Commission. The Commission shall handle such submissions in accordance
> with 36 C.F.R. § 800.4(c)(2).

E.  Assessment of Effects

    1.  Applicants shall assess effects of the Undertaking on Historic
        Properties using the Criteria of Adverse Effect (36 C.F.R. §
        800.5(a)(1)).

2\. In determining whether Historic Properties in the APE may be
adversely affected by the Undertaking, the Applicant should consider
factors such as the topography, vegetation, known presence of Historic
Properties, and existing land use.

3\. An Undertaking will have a visual adverse effect on a Historic
Property if the visual effect from the Facility will noticeably diminish
the integrity of one or more of the characteristics qualifying the
property for inclusion in or eligibility for the National Register.
Construction of a Facility will not cause a visual adverse effect except
where visual setting or visual elements are character-defining features
of eligibility of a Historic Property located within the APE.

4\. For collocations not excluded from review by the Collocation
Agreement or this Agreement, the assessment of effects will consider
only effects from the newly added or modified Facilities and not effects
from the existing Tower or Antenna.

5\. Assessment pursuant to this Agreement shall be performed by
professionals who meet the Secretary of the Interior's Professional
Qualification Standards.

VII\. PROCEDURES

A.  Use of the Submission Packet.

```{=html}
<!-- -->
```
1.  For each Undertaking within the scope of this Nationwide Agreement,
    the Applicant shall initially determine whether there are no
    Historic Properties affected, no adverse effect on Historic
    Properties, or an adverse effect on Historic Properties. The
    Applicant shall prepare a Submission Packet and submit it to the
    SHPO/THPO and to all consulting parties, including any Indian tribe
    or NHO that is participating as a consulting party.

2.  The SHPO/THPO shall have 30 days from receipt of the requisite
    documentation to review the Submission Packet.

3.  If the SHPO/THPO receives a comment or objection, in accordance with
    Section V.E, more than 25 but less than 31 days following its
    receipt of the initial submission, the SHPO/THPO shall have five
    calendar days to consider such comment or objection before the
    Section 106 process is complete or the matter may be submitted to
    the Commission.

4.  If the SHPO/THPO determines the Applicant's Submission Packet is
    inadequate, or if the SHPO/THPO identifies additional Historic
    Properties within the APE, the SHPO/THPO will immediately notify the
    Applicant and describe any deficiencies. The SHPO/THPO may close its
    file without prejudice if the Applicant does not resubmit an amended
    Submission Packet within 60 days following the Applicant's receipt
    of the returned Submission Packet. Resubmission of the Submission
    Packet to the SHPO/THPO commences a new 30 day period for review.

    A.  Determinations of No Historic Properties Affected.

```{=html}
<!-- -->
```
1.  If the SHPO/THPO concurs in writing with the Applicant's
    determination of no Historic Properties affected, it is deemed that
    no Historic Properties exist within the APE or the Undertaking will
    have no effect on any Historic Properties located within the APE.
    The Section 106 process is then complete, and the Applicant may
    proceed with the project, unless further processing for reasons
    other than Section 106 is required.

2.  If the SHPO/THPO does not provide written notice to the Applicant
    that it agrees or disagrees with the Applicant's determination of no
    Historic Properties affected within 30 days following receipt of a
    complete Submission Packet, it is deemed that no Historic Properties
    exist within the APE or the Undertaking will have no effect on
    Historic Properties. The Section 106 process is then complete and
    the Applicant may proceed with the project, unless further
    processing for reasons other than Section 106 is required.

3.  If the SHPO/THPO provides written notice within 30 days following
    receipt of the Submission Packet that it disagrees with the
    Applicant's determination of no Historic Properties affected, it
    should provide a short and concise explanation of exactly how the
    criteria of eligibility and/or criteria of Adverse Effect would
    apply. The Applicant and the SHPO/THPO should engage in further
    discussions and make a reasonable and good faith effort to resolve
    their disagreement.

4.  If the SHPO/THPO and Applicant do not resolve their disagreement,
    the Applicant may at any time choose to submit the matter, together
    with all relevant documents, to the Commission, advising the
    SHPO/THPO accordingly.

    A.  Determinations of No Adverse Effect.

```{=html}
<!-- -->
```
1.  If the SHPO/THPO concurs in writing with the Applicant's
    determination of no adverse effect, the Facility is deemed to have
    no adverse effect on Historic Properties. The Section 106 process is
    then complete and the Applicant may proceed with the project, unless
    further processing for reasons other than Section 106 is required.

2.  If the SHPO/THPO does not provide written notice to the Applicant
    that it agrees or disagrees with the Applicant's determination of no
    adverse effect within thirty days following its receipt of a
    complete Submission Packet, the SHPO/THPO is presumed to have
    concurred with the Applicant's determination. The Applicant shall,
    pursuant to procedures to be promulgated by the Commission, forward
    a copy of its Submission Packet to the Commission, together with all
    correspondence with the SHPO/THPO and any comments or objections
    received from the public, and advise the SHPO/THPO accordingly. The
    Section 106 process shall then be complete unless the Commission
    notifies the Applicant otherwise within 15 days after the Commission
    receives the Submission Packet and accompanying material
    electronically or 25 days after the Commission receives this
    material by other means.

3.  If the SHPO/THPO provides written notice within 30 days following
    receipt of the Submission Packet that it disagrees with the
    Applicant's determination of no adverse effect, it should provide a
    short and concise explanation of the Historic Properties it believes
    to be affected and exactly how the criteria of Adverse Effect would
    apply. The Applicant and the SHPO/THPO should engage in further
    discussions and make a reasonable and good faith effort to resolve
    their disagreement.

4.  If the SHPO/THPO and Applicant do not resolve their dispute, the
    Applicant may at any time choose to submit the matter, together with
    all relevant documents, to the Commission, advising the SHPO/THPO
    accordingly.

5.  Whenever the Applicant or the Commission concludes, or a SHPO/THPO
    advises, that a proposed project will have an adverse effect on a
    Historic Property, after applying the criteria of Adverse Effect,
    the Applicant and the SHPO/THPO are encouraged to investigate
    measures that would avoid the adverse effect and permit a
    conditional "No Adverse Effect" determination.

6.  If the Applicant and SHPO/THPO mutually agree upon conditions that
    will result in no adverse effect, the Applicant shall advise the
    SHPO/THPO in writing that it will comply with the conditions. The
    Applicant can then make a determination of no adverse effect subject
    to its implementation of the conditions. The Undertaking is then
    deemed conditionally to have no adverse effect on Historic
    Properties, and the Applicant may proceed with the project subject
    to compliance with those conditions. Where the Commission has
    previously been involved in the matter, the Applicant shall notify
    the Commission of this resolution.

    A.  Determinations of Adverse Effect.

```{=html}
<!-- -->
```
1.  If the Applicant determines at any stage in the process that an
    Undertaking would have an adverse effect on Historic Properties
    within the APE(s), or if the Commission so finds, the Applicant
    shall submit to the SHPO/THPO a plan designed to avoid, minimize, or
    mitigate the adverse effect.

2.  The Applicant shall forward a copy of its submission with its
    mitigation plan and the entire record to the Council and the
    Commission. Within fifteen days following receipt of the Applicant's
    submission, the Council shall indicate whether it intends to
    participate in the negotiation of a Memorandum of Agreement by
    notifying both the Applicant and the Commission.

3.  Where the Undertaking would have an adverse effect on a National
    Historic Landmark, the Commission shall request the Council to
    participate in consultation and shall invite participation by the
    Secretary of the Interior.

4.  The Applicant, SHPO/THPO, and consulting parties shall negotiate a
    Memorandum of Agreement that shall be sent to the Commission for
    review and execution.

5.  If the parties are unable to agree upon mitigation measures, they
    shall submit the matter to the Commission, which shall coordinate
    additional actions in accordance with the Council's rules, including
    36 C.F.R. §§ 800.6(b)(1)(v) and 800.7.

E. Retention of Information.

The SHPO/THPO shall, subject to applicable state or tribal laws and
regulations, and in accordance with its rules and procedures governing
historic property records, retain the information in the Submission
Packet pertaining to the location and National Register eligibility of
Historic Properties and make such information available to Federal
agencies and Applicants in other Section 106 reviews, where disclosure
is not prevented by the confidentiality standards in 36 C.F.R.
§ 800.11(c).

F. Removal of Obsolete Towers.

Applicants that construct new Towers under the terms of this Nationwide
Agreement adjacent to or within the boundaries of a Historic Property
are encouraged to disassemble such Towers should they become obsolete or
remain vacant for a year or more.

VIII\. EMERGENCY SITUATIONS

> Unless the Commission deems it necessary to issue an emergency
> authorization in accordance with its rules, or the Undertaking is
> otherwise excluded from Section 106 review pursuant to the Collocation
> Agreement or Section III of this Agreement, the procedures in this
> Agreement shall apply.

IX\. INADVERTENT OR POST‑REVIEW DISCOVERIES

A.  In the event that an Applicant discovers a previously unidentified
    site within the APE that may be a Historic Property that would be
    affected by an Undertaking, the Applicant shall promptly notify the
    Commission, the SHPO/THPO and any potentially affected Indian tribe
    or NHO, and within a reasonable time shall submit to the Commission,
    the SHPO/THPO and any potentially affected Indian tribe or NHO, a
    written report evaluating the property's eligibility for inclusion
    in the National Register. The Applicant shall seek the input of any
    potentially affected Indian tribe or NHO in preparing this report.
    If found during construction, construction must cease until
    evaluation has been completed.

B.  If the Applicant and SHPO/THPO concur that the discovered resource
    is eligible for listing in the National Register, the Applicant will
    consult with the SHPO/THPO, and Indian tribes or NHOs as
    appropriate, to evaluate measures that will avoid, minimize, or
    mitigate adverse effects. Upon agreement regarding such measures,
    the Applicant shall implement them and notify the Commission of its
    action.

C.  If the Applicant and SHPO/THPO cannot reach agreement regarding the
    eligibility of a property, the matter will be referred to the
    Commission for review in accordance with Section VI.D.3. If the
    Applicant and the SHPO/THPO cannot reach agreement on measures to
    avoid, minimize, or mitigate adverse effects, the matter shall be
    referred to the Commission for appropriate action.

D.  If the Applicant discovers any human or burial remains during
    implementation of an Undertaking, the Applicant shall cease work
    immediately, notify the SHPO/THPO and Commission, and adhere to
    applicable State and Federal laws regarding the treatment of human
    or burial remains.

    X. CONSTRUCTION PRIOR TO COMPLIANCE WITH SECTION 106

```{=html}
<!-- -->
```
A.  The terms of Section 110(k) of the National Historic Preservation
    Act (16 U.S.C. § 470h-2(k)) ("Section 110(k)") apply to Undertakings
    covered by this Agreement. Any SHPO/THPO, potentially affected
    Indian tribe or NHO, the Council, or a member of the public may
    submit a complaint to the Commission alleging that a facility has
    been constructed or partially constructed after the effective date
    of this Agreement in violation of Section 110(k). Any such complaint
    must be in writing and supported by substantial evidence
    specifically describing how Section 110(k) has been violated. Upon
    receipt of such complaint the Commission will assume responsibility
    for investigating the applicability of Section 110(k) in accordance
    with the provisions herein.

B.  If upon its initial review, the Commission concludes that a
    complaint on its face demonstrates a probable violation of Section
    110(k), the Commission will immediately notify and provide the
    relevant Applicant with copies of the Complaint and order that all
    construction of a new tower or installation of any new collocations
    immediately cease and remain suspended pending the Commission's
    resolution of the complaint.

C.  Within 15 days of receipt, the Commission will review the complaint
    and take appropriate action, which the Commission may determine, and
    which may include the following:

```{=html}
<!-- -->
```
1.  Dismiss the complaint without further action if the complaint does
    not establish a probable violation of Section 110(k) even if the
    allegations are taken as true;

2.  Provide the Applicant with a copy of the complaint and request a
    written response within a reasonable time;

3.  Request from the Applicant a background report which documents the
    history and chronology of the planning and construction of the
    Facility;

4.  Request from the Applicant a summary of the steps taken to comply
    with the requirements of Section 106 as set forth in this Nationwide
    Agreement, particularly the application of the Criteria of Adverse
    Effect;

5.  Request from the Applicant copies of any documents regarding the
    planning or construction of the Facility, including correspondence,
    memoranda, and agreements;

6.  If the Facility was constructed prior to full compliance with the
    requirements of Section 106, request from the Applicant an
    explanation for such failure, and possible measures that can be
    taken to mitigate any resulting adverse effects on Historic
    Properties.

    A.  If the Commission concludes that there is a probable violation
        of Section 110(k) (i.e., that "with intent to avoid the
        requirements of Section 106, \[an Applicant\] has intentionally
        significantly adversely affected a Historic Property"), the
        Commission shall notify the Applicant and forward a copy of the
        documentation set forth in Section X.C. to the Council and, as
        appropriate, the SHPO/THPO and other consulting parties, along
        with the Commission's opinion regarding the probable violation
        of Section 110(k). The Commission will consider the views of the
        consulting parties in determining a resolution, which may
        include negotiating a Memorandum of Agreement (MOA) that will
        resolve any adverse effects. The Commission, SHPO/THPO, Council,
        and Applicant shall sign the MOA to evidence acceptance of the
        mitigation plan and conclusion of the Section 106 review
        process.

    B.  Nothing in Section X or any other provision of this Agreement
        shall preclude the Commission from continuing or instituting
        enforcement proceedings under the Communications Act and its
        rules against an Applicant that has constructed a Facility prior
        to completing required review under this Agreement. Sanctions
        for violations of the Commission's rules may include any
        sanctions allowed under the Communications Act and the
        Commission's rules.

    C.  The Commission shall provide copies of all concluding reports or
        orders for all Section 110(k) investigations conducted by the
        Commission to the original complainant, the Applicant, the
        relevant local government, and other consulting parties.

    D.  Facilities that are excluded from Section 106 review pursuant to
        the Collocation Agreement or Section III of this Agreement are
        not subject to review under this provision. Any parties who
        allege that such Facilities have violated Section 110(k) should
        notify the Commission in accordance with the provisions of
        Section XI, Public Comments and Objections.

        XI\. PUBLIC COMMENTS AND OBJECTIONS

> Any member of the public may notify the Commission of concerns it has
> regarding the application of this Nationwide Agreement within a State
> or with regard to the review of individual Undertakings covered or
> excluded under the terms of this Agreement. Comments related to
> telecommunications activities shall be directed to the Wireless
> Telecommunications Bureau and those related to broadcast facilities to
> the Media Bureau. The Commission will consider public comments and
> following consultation with the SHPO/THPO, potentially affected Indian
> tribes and NHOs, or Council, where appropriate, take appropriate
> actions. The Commission shall notify the objector of the outcome of
> its actions.

XII\. AMENDMENTS

> The signatories may propose modifications or other amendments to this
> Nationwide Agreement. Any amendment to this Agreement shall be subject
> to appropriate public notice and comment and shall be signed by the
> Commission, the Council, and the Conference.

XIII\. TERMINATION

A.  Any signatory to this Nationwide Agreement may request termination
    by written notice to the other parties. Within sixty (60) days
    following receipt of a written request for termination from a
    signatory, all other signatories shall discuss the basis for the
    termination request and seek agreement on amendments or other
    actions that would avoid termination.

B.  In the event that this Agreement is terminated, the Commission and
    all Applicants shall comply with the requirements of 36 C.F.R. Part
    800.

    XIV\. ANNUAL REVIEW

> The signatories to this Nationwide Agreement will meet annually on or
> about the anniversary of the effective date of the Agreement to
> discuss the effectiveness of this Agreement, including any issues
> related to improper implementation, and to discuss any potential
> amendments that would improve the effectiveness of this Agreement.

XV\. RESERVATION OF RIGHTS

> Neither execution of this Agreement, nor implementation of or
> compliance with any term herein, shall operate in any way as a waiver
> by any party hereto, or by any person or entity complying herewith or
> affected hereby, of a right to assert in any court of law any claim,
> argument or defense regarding the validity or interpretation of any
> provision of the NHPA or its implementing regulations contained in 36
> C.F.R. Part 800.

XVI\. SEVERABILITY

> If any section, subsection, paragraph, sentence, clause or phrase in
> this Agreement is, for any reason, held to be unconstitutional or
> invalid or ineffective, such decision shall not affect the validity or
> effectiveness of the remaining portions of this Agreement.

IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their respective authorized officers as of the day and year
first written above.

FEDERAL COMMUNICATIONS COMMISSION\
\
\
Date\
Chairman

ADVISORY COUNCIL ON HISTORIC PRESERVATION\
\
\
Date\
Chairman

NATIONAL CONFERENCE OF STATE HISTORIC PRESERVATION OFFICERS\
\
\
Date\
President

[^1]:
    > A tract of land that is planned, developed, and operated as an
    > integrated facility for a number of individual industrial uses,
    > with consideration to transportation facilities, circulation,
    > parking, utility needs, aesthetics and compatibility.

[^2]:
    > A structure or grouping of structures, housing retail business,
    > set back far enough from the street to permit parking spaces to be
    > placed between the building entrances and the public right of way.

[^3]:
    > A group of commercial establishments planned, constructed, and
    > managed as a total entity, with customer and employee parking
    > provided on-site, provision for goods delivery separated from
    > customer access, aesthetic considerations and protection from the
    > elements, and landscaping and signage in accordance with an
    > approved plan.