An FCC draft of voluntary best practices on tower siting reviews involving tribes would call for the Commission to initiate govt.-to-govt. consultation with a tribe if it failed to respond to initial contact from a siting applicant. FCC Chmn. Powell said last month at an Arlington, Va., conference of the United South & Eastern Tribes (USET) that USET and the Commission were in the final stages of drafting voluntary best practices for siting towers that could affect religious sites on tribal land. The best practices involve identifying “practical, voluntary” methods by which the tower industry and USET tribes can work to preserve properties of religious and cultural significance to tribes. The National Historic Preservation Act requires federal agencies to take into consideration the effects of their undertaking on historic properties included in or eligible for the National Register of Historic Places, including tribal sites. One industry source noted that although the best practices were voluntary they were important because tribes may require them as part of negotiations on tower siting and because they could play a critical role in showing a good faith effort to negotiate. FCC staff recently asked for industry feedback on the summary of best practices. The source said one industry concern about the draft best practices was the extent to which a non-response from a tribe would entail FCC intergovernmental consultation with tribes, a step that would add time to the siting review process. Another concern involves compensation of tribes for professional services. A summary of the draft best practices notes that in line with the requirements of the Advisory Council on Historic Preservation, payment to a tribe is appropriate when an agency or applicant asks the tribe to take on a role as consultant in identifying historic sites of tribal significance. The summary said that in “providing their special expertise, tribes are fulfilling a consultant role.” One source said that a concern by some in industry is not that tribes be compensated for providing such consultation services, but the extent to which such payments would be made to tribal representatives acting as both consultants on a project and judges as to whether the proposed tower raised objections. The draft summary sets up a 2-step process in which applicants can contact a tribe “in a good faith, respectful and culturally sensitive manner befitting the nature of correspondence with a sovereign government.” The tribal official would have 10 business days to advise a tower applicant whether there isn’t a likelihood of eligible properties of interest to the tribe in the area. If there may be properties eligible for the National Register, the tower siting applicant and tribal official would discuss protection measures. If the tribe didn’t respond in 10 business days, the siting applicant would advise the tribe and the FCC in writing of this failure to respond, the draft summary said. “Upon receipt of information that a tribe has failed to respond to an applicant’s initial contact, the Commission will initiate government-to-government consultation under Section 106,” the draft said. USET said last month the agreement on best practices affirmed “government to government” relations between USET tribes and the U.S. The FCC also created a database last month for a voluntary system that Chmn. Powell said would provide an “early notification” of tower construction that might affect historic properties or tribal religious sites.
The head of the Advisory Council on Historic Preservation (ACHP) told the FCC the Council had “grave reservations” about the FCC’s approach to finalizing a national programmatic agreement (PA) for streamlining tower siting decisions. Last week, wireless carriers and historic preservation officials failed by an FCC target date to reach agreement on several outstanding issues connected to the tower siting pact (CD Feb 20 p3). The FCC last month gave participants until Feb. 19 to work out remaining differences, delaying a vote on the item until its March agenda meeting. The FCC’s approach to finalizing the agreement “has placed us in a most untenable position and hampered our efforts to bring all the consulting parties to consensus on an effective PA,” ACHP Executive Dir. John Fowler wrote last week to Jeffrey Steinberg, deputy chief of the FCC’s Commercial Wireless Div. Fowler’s letter accompanied proposed changes the Council made to earlier draft versions of the PA. Fowler said the Council hadn’t anticipated the FCC would “unilaterally revise” the agreement after receiving comments on a draft from a June notice of proposed rulemaking. “It was our understanding that the consultation process prescribed in the Section 106 regulations for developing the PA was suspended, not concluded, when FCC published the draft PA for public comment,” Fowler wrote. The pending PA would streamline tower siting reviews under Sec. 106 of the National Historic Preservation Act. Sec. 106 requires federal agencies to consider the effects of an “undertaking,” including tower construction, on historic properties. Last week, an industry coalition told the FCC it had concerns over recent changes to the PA presented by the ACHP. The group of carriers and tower companies said it was concerned the scope of changes proposed by the Council would change certain “foundational” terms in the PA. Fowler said in the Feb. 19 letter that the Council had expected the signatories to the PA -- including the FCC, the National Conference of State Historic Preservation Officers and the Council -- would need to consult further with representatives from industry, preservation organizations and tribes to finalize the terms of the agreement after public comments were received. “FCC’s decision to move forward with a rulemaking to embody the terms of the PA imposed severe restrictions on the access of non-signatories, in particular industry and the tribal representatives, to the revised PA, further impeding consultation on the entire document,” Fowler said. He also voiced frustration at the timetable the FCC had set for Commission consideration. While the FCC agreed to postpone action from the Feb. meeting, Fowler said participants had run up against a deadline set by the FCC to consider the item at the March open meeting. “While we are honoring FCC’s mandated deadline, I cannot emphasize too strongly how difficult and frustrating this process has been,” Fowler wrote. “The constraints placed on the consultation have prevented us from reaching a consensus, due in large part to the lack of time for industry representatives to seek input from their members.”
Wireless firms and historic preservation officials failed to reach a compromise by an FCC target date on outstanding issues connected to a tower siting pact, according to a filing Thurs. at the agency. The Commission planned to have the national program agreement (NPA) ready for its Feb. agenda meeting, but last month gave participants until Feb. 19 to work out issues in time for the March meeting. “It appears in some important ways ground has been lost since then,” said the filing by the wireless coalition.
The Departmental Advisory Committee on Commercial Operations of the Bureau of Customs and Border Protection (COAC) held its quarterly meeting on February 6, 2004 in Washington, DC.
On February 2, 2004, President Bush transmitted to Congress his fiscal year (FY) 2005 budget request. (FY 2005 is October 1, 2004 through September 30, 2005.) President Bush has requested $40.2 billion for Department of Homeland Security (DHS), a 10% increase over the comparable FY 2004 budget.
The United South and Eastern Tribes (USET) told the FCC last week it had concerns about how a national program agreement (NPA) on tower siting would handle sites that potentially were eligible for the National Register of Historic Places. House Resources Committee Chmn. Pombo (R- Cal.) and National Parks Subcommittee Chmn. Radanovich (R- Cal.) told the Advisory Council on Historic Preservation last fall they were concerned about the applicability of the Council’s siting rules to the large number of properties “potentially eligible” for National Register and the extent to which that would affect tower siting. The Council had asked the FCC to delay adoption of the NPA by 30 days to address the potential eligibility issue (CD Feb 2 p2). The NPA is designed to streamline the review process for tower sites under Sec. 106 of the National Historic Preservation Act (NHPA). That provision requires federal agencies to consider the effects of an “undertaking,” including tower construction, on historic properties. “USET believes that narrowing this definition would violate the letter and the spirit of the NHPA, both as it applies to ‘historic properties’ in general and specifically as it applies to ‘properties of religious and cultural importance’ to Indian tribes,” USET told the FCC. “Such a narrowing of the definition of ‘historic property’ could potentially exclude the vast majority of tribal historic properties from coverage under the NHPA with devastating consequences for the protection and preservation of our heritage and identity.” USET said Pombo’s staff had indicated that tribal interests weren’t specifically considered when the letter to the Council was drafted. “They have committed to further discussions to hear USET’s concerns in detail and to assure appropriate protection of tribal historic properties,” USET said. Separately, the Recent Past Preservation Network, which promotes the preservation of post-World War II buildings, told the FCC it was concerned about consideration in the NPA negotiations of excluding replacements of existing towers from Sec. 106 review. “Communications towers -- like bridges, factories, windmills and electricity transmission lines -- are an important part of America’s industrial heritage,” the group said. It suggested Sec. 106 consultation on all towers 45 years or older.
The FCC reached agreement with an intergovernmental tribal group Tues. on best practices for communications tower siting. The Commission called the pact the first of its kind. It also created a database for a voluntary system that Chmn. Powell said would provide an “early notification” of tower construction that might affect historic properties or tribal religious sites. When final, the best practices will provide guidance to the FCC, tribes and the industry, he said.
A program agreement that would streamline wireless and broadcast tower siting reviews ran into trouble last week when the Advisory Council on Historic Preservation (ACHP) raised concerns about how certain types of sites would be excluded, sources said. FCC and some industry officials said they remained bullish that differences could be worked out relatively quickly. But they said a key unresolved issue was one that had drawn recent Capitol Hill attention: Treatment of sites “potentially” eligible for listing on the National Register of Historic Places.
A program agreement that would streamline wireless and broadcast tower siting reviews ran into trouble last week when the Advisory Council on Historic Preservation (ACHP) raised concerns about how certain types of sites would be excluded, sources said. FCC and some industry officials said they remained bullish that differences could be worked out relatively quickly. But they said a key unresolved issue was one that had drawn recent Capitol Hill attention: Treatment of sites “potentially” eligible for listing on the National Register of Historic Places.
In the absence of a workable alternative on federal tower siting requirements, the United South and Eastern Tribes (USET) told the FCC they would have to seek “full consultation with the FCC on many sites to assure that our interests are protected.” A draft program agreement that still must be finalized would streamline the review process for communications facilities under Sec. 106 of the National Historic Preservation Act. USET told the FCC that it would like to reach agreement on a best practices document that would meet the Commission’s tower siting obligations, assure expedited review for industry and protect tribal sacred sites from unnecessary harm due to tower construction. “Many of the fears expressed by industry, such as that they would have to contact 550 tribes or would have to pay exorbitant costs, are unfounded,” it said. “USET has committed itself to the development of a tribal lands database that would enable industry to quickly and easily identify which, if any, tribes have an interest in a particular area.” As for reimbursement costs for tribes that provide expertise, USET said it was putting together a model schedule to cover tribal costs, “not create a tribal profit center… This reimbursement schedule will be based on what is commonly charged by other governmental organizations, such as the states, when requests are made to their state historic preservation officers.” USET told the FCC the Advisory Council on Historic Preservation had determined that tribes had “special expertise” on the Sec. 106 process and eligible properties that had religious and cultural significance. “Thus, it was deeply troubling to us that you were unwilling to make this acknowledgment,” USET told the FCC.