Learning Interactive Unit:
Nationwide Programmatic Agreement
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I. Applicability & Scope
II. Definitions
III. Exclusions
IV. Tribal Participation
V. Consulting Parties
VI. Identification of Effects
VII. Procedures
VIII. Emergency Situations
IX. Post Review Discoveries
X. Construction Prior to...
XI. Other Provisions
Forms & Resources
Related Regulations
Tribal Participation
The Commission's Responsibility
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).
Section 106 National Historic Preservation Act
The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under Title II of this Act a reasonable opportunity to comment with regard to such undertaking.
Sections 101(d)(6)(a-b) National Historic Preservation Act
(D) [if ] the Secretary determines, after consultation with the tribe, the appropriate State Historic Preservation Officer, the Council (if the tribe proposes to assume the functions of the State Historic Preservation Officer with respect to review of undertakings under section 106), and other tribes, if any, whose tribal or aboriginal lands may be affected by conduct of the tribal preservation program- (i) that the tribal preservation program is fully capable of carrying out the functions specified in the plan provided under subparagraph (C); (ii) that the plan defines the remaining responsibilities of the Secretary and the State Historic Preservation Officer; (iii) that the plan provides, with respect to properties neither owned by a member of the tribe nor held in trust by the Secretary for the benefit of the tribe, at the request of the owner thereof, the State Historic Preservation Officer, in addition to the tribal preservation official, may exercise the historic preservation responsibilities in accordance with subsections (b)(2) and (b)(3); and (E) based on satisfaction of the conditions stated in subparagraphs (A), (B), (C), and (D), the Secretary approves the plan. (3) In consultation with interested Indian tribes, other Native American organizations and affected State Historic Preservation Officers, the Secretary shall establish and implement procedures for carrying out section 103(a) with respect to tribal programs that assume responsibilities under paragraph (2). (4) At the request of a tribe whose preservation program has been approved to assume functions and responsibilities pursuant to paragraph (2), the Secretary shall enter into contracts or cooperative agreements with such tribe permitting the assumption by the tribe of any part of the responsibilities referred to in subsection (b)(6) on tribal land, if- (A) the Secretary and the tribe agree on additional financial assistance, if any, to the tribe for the costs of carrying out such authorities; (B) the Secretary finds that the tribal historic preservation program has been demonstrated to be sufficient to carry out the contract or cooperative agreement and this Act; and (C) the contract or cooperative agreement specifies the continuing responsibilities of the Secretary or of the appropriate State Historic Preservation Officers and provides for appropriate participation by- (i) the tribe's traditional cultural authorities; (ii) representatives of other tribes whose traditional lands are under the jurisdiction of the tribe assuming responsibilities; and (iii) the interested public. (5) The Council may enter into an agreement with an Indian tribe to permit undertakings on tribal land to be reviewed under tribal historic preservation regulations in place of review under regulations promulgated by the Council to govern compliance with section 106, if the Council, after consultation with the tribe and appropriate State Historic Preservation Officers, determines that the tribal preservation regulations will afford historic properties consideration equivalent to those afforded by the Council's regulations. (6) (A) Properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization may be determined to be eligible for inclusion on the National Register. (B) In carrying out its responsibilities under section 106, a Federal agency shall consult with any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to properties described in subparagraph (A). (C) In carrying out his or her responsibilities under subsection (b)(3), the State Historic Preservation Officer for the State of Hawaii shall- (i) consult with Native Hawaiian organizations in assessing the cultural significance of any property in determining whether to nominate such property to the National Register; (ii) consult with Native Hawaiian organizations in developing the cultural component of a preservation program or plan for such property; and (iii) enter into a memorandum of understanding or agreement with Native Hawaiian organizations for the assessment of the cultural significance of a property in determining whether to nominate such property to the National Register and to carry out the cultural component of such preservation program or plan.
FCC Rules 47 C.F.R. §§ 1.1301-1.1319
The Applicant's Responsibility
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.
Timing and Form of Contact with Indian tribes
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.
Preferences of Each Indian tribe and NHO for Initial Contact
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.
The Tower Construction Notification
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.
Conditions Governing Applicants' Direct Contacts with Indian tribes
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.
The Purposes of Communications Between the Applicant and Indian
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.
If an Indian tribe or NHO Indicates that a Historic Property of Religious and Cultural Significance Affected
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.
Confidentiality of Information
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.
Best Practices
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.
Pre-existing Arrangements or Agreements Between Indian tribes and Applicants
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.
Note: In the event of a conflict between the advice given in this training module and the rules and policies adopted in the NPA, the text of the NPA governs.
Question
Does the Nationwide Programmatic Agreement apply on Indian reservations and dependent Indian communities? No. However, if an Indian tribe wishes to adopt the provisions of the Nationwide Programmatic Agreement for its tribal lands, it may do so. Question
Why is an applicant obligated to identify and contact Indian tribes that currently do not live in the area of the undertaking? In accordance with ACHP's rules, applicants must make a good faith effort to identify Indian tribes and Native Hawaiian Organizations who may attach religious and cultural importance to listed properties that may be affected and must assure that those entities are contacted. Historically many tribes were forced to move from areas they once inhabited. While no longer physically present in the area, Indian tribes may continue to attach significance to listed properties within their former habitations. Seeking information from Indian tribes that have been removed is essential to fulfilling the legal mandate to identify potentially affected historic properties and to consult with Indian tribes and NHOs regarding properties of significance to them. Question
Do I have to identify and contact state-recognized Indian tribes? How do I find out which Indian tribes are federally recognized? Consistent with the National Historic Preservation Act, Applicants are required to identify and contact only Federally Recognized Tribes. State recognized tribes may, however, comment and request consulting party status as a member of the public. A listing of the Federally Recognized Tribes can be found at http://www.indians.org/Resource/FedTribes99/fedtribes99.html or by contacting the Bureau of Indian Affairs. Question
What do I do if an Indian tribe requests government to government consultation? If an Indian tribe requests government to government consultation an applicant must contact the FCC Wireless Telecommunications Bureau and advise the agency of the request. Question
What should I do if a Indian tribe requests confidentiality for its information? The Applicant shall honor the request. See section IV (I)of the NPA. Question
I understand that some Indian tribes have agreed with the FCC on best practices. What does this mean? Which tribes have agreed on best practices? The FCC and United South and Eastern Tribes (USET) have agreed on voluntary Best Practices that provide guidance to both Tribes and Applicants in meeting responsibilities that arise from Section 106 of the National Historic Preservation Act. USET has recommended that its members follow these Best Practices. The FCC is hopeful that other Tribes will also agree to the same or Similar Best Practices. Question
What is the Tower Construction Notification System? The Tower Construction Notification System (TCN) is an electronic notification system developed by the FCC that permits Tribes and Native Hawaiian Organizations (NHOs) to identify geographic areas in which historic properties of cultural and religious significance to them may be located, and permits Applicants to identify and make initial contact with Tribes and NHOs. When an Applicant voluntarily enters information about a proposed tower, that information is automatically forwarded to participating Tribes and NHOs, who may respond through the TCNS as to whether they wish to participate further in the Section 106 Process for the proposed undertaking. Question
Can I use the TCNS to contact tribes? How do I know whether a tribe should be contacted using the TCNS? Yes, however, all tribes may not choose to participate in the TCNS. The Applicant remains obligated to use reasonable efforts and good faith (see section IV (c)of the NPA) to identify and make contact with non-participating Tribe through other means. Tribes that have agreed to participate will be listed on the TCNS web site. Question
When should I contact tribes? What information should I provide to tribes? What should I do if a tribe does not respond? What should I do if a tribe indicates that a property of significance to it may be affected? Tribes should be contacted as early in the process as possible. Initial contact should include the location type and height of the tower, lighting requirements, and a description of associated facilities (equipment sheds access roads, etc). If a tribe indicates the tower may have an effect on a historic property of cultural or religious significance, the tribe should be given consulting party status and provided with information described in Section VI A. Note that the Best Practices document provides more detailed recommendations regarding the type of information that should be shared and the means of sharing it. Question
What must I do if a Tribe that has indicated an interest in a geographic area does not respond within a reasonable time to notification via TCNS? If a Tribe does not respond to a TCNS notification within a reasonable time, your obligations will vary depending upon whether the Tribe has specified in TCNS that it is interested in the geographic area where you propose to construct or whether it has not specified a geographic area of interest. As of April 7, 2005, these two categories are separately identified in the notification that TCNS sends to the applicant. In addition, you can determine which Tribes have specified geographic areas of interest in TCNS by accessing http://wireless.fcc.gov/outreach/notification and clicking on "View Tribe List."
If a Tribe that has specified an interest in a proposed construction's geographic area does not respond to a TCNS notification within a reasonable time, you should make a reasonable effort to follow up, and you must seek guidance from the Commission if the Tribe continues not to respond or if a disagreement arises (unless the project falls within an exclusion specified by the Tribe). This is spelled out in Sections IV.F.5 and IV.G of the NPA. Question
What must I do if a Tribe that has not limited its geographic area of interest does not respond within a reasonable time to notification via TCNS? If a Tribe that has not specified a geographic area of interest does not respond to a TCNS notification within a reasonable time, you must use reasonable and good faith efforts to determine if the Tribe may attach religious and cultural significance to historic properties in the area of your proposed undertaking. Section IV.B of the NPA states this requirement and suggests possible means of exercising this due diligence. If your efforts at identification indicate a potential interest in the area, you should attempt to follow up and must seek Commission guidance in case of continued non-response or disagreement. If your efforts do not indicate a potential interest, no follow-up is necessary. Question
Must all aspects of tribal participation for a particular site be completed before an Applicant may submit the Submission Packet for that site to the SHPO/THPO? No. Under the NPA, Applicants are required to ensure that contact is made at an early stage in the planning process with Indian tribes and NHOs that may attach religious and cultural significance to potentially affected Historic Properties. Forms 620 and 621 require the Applicant to describe the measures taken to identify these Indian tribes and NHOs, summarize contacts with them, and provide copies of relevant documents. However, there is no requirement to complete the tribal participation process before submiting the Form to the SHPO/THPO. The NPA affords applicants flexibility to pursue these required processes in the most efficient sequence in each case, subject to the requirement for early and meaningful tribal participation.