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Positive Train Control Draft Program Comment Released for Comment

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Released: January 29, 2014

PUBLIC NOTICE

Federal Communications Commission
445 12th St., S.W.

News Media Information 202 / 418-0500

Internet: http://www.fcc.gov

Washington, D.C. 20554

TTY: 1-888-835-5322

DA 14-97
WT Docket No. 13-240
January 29, 2014

COMMENT SOUGHT ON DRAFT PROGRAM COMMENT TO GOVERN REVIEW OF

POSITIVE TRAIN CONTROL FACILITIES UNDER SECTION 106 OF THE NATIONAL

HISTORIC PRESERVATION ACT

Comment Date: February 12, 2014

By this Public Notice, the Wireless Telecommunications Bureau (Bureau) seeks public comment
on the attached draft Program Comment (Attachment A) to govern review of Positive Train Control
(PTC) wayside facilities under Section 106 of the National Historic Preservation Act (NHPA).1 For the
reader’s convenience, a summary of substantive provisions of the draft Program Comment is also
appended as Attachment B. The intent of this Program Comment is to tailor and expedite the Tribal and
historic preservation review process under Section 106 of the National Historic Preservation Act (NHPA)
for the Congressionally-mandated PTC rail safety communications initiative. PTC is designed to save
lives and enhance safety and security along the nation’s railroad lines by use of wireless communications
technology.
On September 27, 2013, the Bureau first invited comment regarding the development of a PTC
Program Comment through release of a Public Notice and Scoping Document.2 The Bureau is continuing
the process of developing a Program Comment, and seeks comment regarding the attached draft, which
has been designed specifically for PTC communications structures and facilities.
Under the rules of the Advisory Council on Historic Preservation (ACHP), a Federal agency may
request that the ACHP issue a Program Comment to govern Section 106 review of a category of
undertakings in lieu of procedures specified in the ACHP’s rules.3 Prior to requesting a Program

1 16 U.S.C. § 470f.
2 See Comment Sought On Scoping Document For Development Of A Proposed Program Comment To Govern
Review Of Positive Train Control Facilities Under Section 106 Of The National Historic Preservation Act
, Public
Notice, WT Docket No. 13-240, 28 FCC Rcd 13852 (2013) (Scoping Document Public Notice). On the same date,
the Bureau and the Office of Native Affairs and Policy also released a separate Public Notice and Scoping
Document to initiate government-to-government consultation on the proposed Program Comment with Federally
recognized Tribal Nations. See CGB’s Office of Native Affairs and Policy and WTB Release Scoping Document to
Initiate Tribal Consultation on a Proposed Program Comment to Govern Review of Positive Train Control
Facilities Under Section 106 of the National Historic Preservation Act
, Public Notice, WT Docket No. 13-240, 28
FCC Rcd 13870 (2013).
3 See 36 C.F.R. § 800.14(e).

Comment, the agency shall arrange for public participation appropriate to the subject matter and the scope
of the category.4 This Public Notice is issued in partial fulfillment of this public participation
requirement, as well as to further the Commission’s ongoing consultation with State Historic Preservation
Officers, Tribal Historic Preservation Officers, and Tribal Nations.5 After considering the comments
received in response to this Public Notice and otherwise completing its consultation obligations, the
Bureau expects to submit a proposed Program Comment to the ACHP. The ACHP will then have 45 days
to issue a Program Comment, unless it requests additional documentation, declines to comment, or
obtains the Commission’s consent to extend this period of time.6
This proceeding continues to be treated as exempt under the Commission’s ex parte rules.7
Accordingly, parties do not need to submit ex parte filings for communications concerning the
development of the Program Comment.
Filing instructions: Interested parties may file comments on or before the date indicated on the
first page of this document. Comments may be filed using the Commission’s Electronic Comment Filing
System (“ECFS”).

Electronic Filers: Comments may be filed electronically using the Internet by accessing the
ECFS: http://fjallfoss.fcc.gov/ecfs2/.

Paper Filers: Parties who choose to file by paper should file an original and one copy of each
filing. If more than one docket or rulemaking number appears in the caption of this proceeding,
filers should submit two additional copies for each additional docket or rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-
class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission’s
Secretary, Office of the Secretary, Federal Communications Commission.

All hand-delivered or messenger-delivered paper filings for the Commission’s Secretary
must be delivered to FCC Headquarters at 445 12th St., SW, Room TW-A325,
Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries
must be held together with rubber bands or fasteners. Any envelopes and boxes must be
disposed of before entering the building.

Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority
Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

4 Id. § 800.14(e)(2).
5 Id. § 800.14(e)(3), (4).
6 Id. § 800.14(e)(5).
7 Scoping Document Public Notice, 28 FCC Rcd at 13853. 47 C.F.R. § 1.1204; see 47 C.F.R. § 1.1200(a) (“Where
the public interest so requires in a particular proceeding, the Commission and its staff retain the discretion to modify
the applicable ex parte rules by order, letter, or public notice.”).
2


U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th
Street, SW, Washington DC 20554.
.
Availability of Documents: Comments will be available for public inspection during regular
business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street,
S.W., CY-A257, Washington, D.C., 20554. These documents will also be available via ECFS.
http://fjallfoss.fcc.gov/ecfs2/ Documents will be available electronically in ASCII, Microsoft Word,
and/or Adobe Acrobat.
Accessibility information: To request information in accessible formats (computer diskettes large
print, audio recording, and Braille), send an e-mail to fcc504@fcc.gov or call the FCC’s Consumer and
Governmental Affairs Bureau at (202) 418-0530(voice), (202) 418-0432(TTY). This document can also
be downloaded in Word and Portable Document Format (PDF) at www.fcc.gov .
Wireless Telecommunications Bureau contacts: Stephen DelSordo, (202) 418-1986 or
stephen.delsordo@fcc.gov, or Anne Marie Wypijewski, (717) 338-2508 or
annemarie.wypijewski@fcc.gov.
Media contact: Cecilia Sulhoff, (202) 418-0587 or cecilia.sulhoff@fcc.gov
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Discussion Draft for Public Comment
January 29, 2014

ATTACHMENT A

Draft Program Comment to Tailor the Federal Communications Commission’s

Section 106 Review for Undertakings Involving the Construction of

Positive Train Control Wayside Facilities

I.
Introduction
The Federal Communications Commission (FCC) licenses and registers communications facilities that
require review and consultation pursuant to Section 106 of the National Historic Preservation Act
(Section 106), 16 U.S.C. 470f, to assess whether the proposed facility may have an adverse effect on
historic properties. The regulations implementing Section 106, developed by the Advisory Council on
Historic Preservation (Council) and codified at 36 CFR Pt 800, describe the procedures Federal agencies
must follow to meet this obligation. Alternate compliance procedures, provided for under the Section 106
regulations, allow agencies to meet these Section 106 obligations using a process that is tailored to their
mission and needs. Under 36 CFR § 800.14(e), an agency may request a “Program Comment” from the
Council in lieu of case-by-case review. The benefit of a Program Comment is that it allows a Federal
agency to comply with Section 106 in an efficient and targeted manner for a specific category of
undertakings.
At the FCC’s request, the Council issues the following Program Comment in accordance with 36 CFR §
800.14(e) in order to establish a tailored process for consideration, under Section 106, of the effects of
wayside poles constructed by the Nation’s freight and passenger railroads to deploy Positive Train
Control (PTC) systems.8 In lieu of the process set forth in subpart B of the Council’s regulations, the
FCC currently conducts Section 106 review of wireless tower and antenna undertakings in accordance
with the Council’s procedures, 36 C.F.R. Pt 800, as modified and supplemented by two Nationwide
Programmatic Agreements (NPAs) negotiated and executed in accordance with 36 CFR § 800.14(b).
These Nationwide Programmatic Agreements are codified in the FCC’s rules at 47 CFR Pt 1, Apps. B
(Nationwide Collocation Agreement) and C (FCC NPA).
This Program Comment provides an optional alternative process to certain procedures set forth in the
Nationwide Programmatic Agreements for the category of undertakings covered herein. Applicants
electing not to utilize the alternate procedures specified herein for undertakings covered by the Program
Comment will be subject to the applicable procedures set forth in the Nationwide Programmatic
Agreements. Applicants that elect to utilize this Program Comment must continue to follow the
Council’s procedures, as modified or supplemented by the NPAs, to the extent the Program Comment
does not establish alternative procedures.
Consistent with FCC NPA Section IV.K, nothing in this Program Comment shall be construed to prohibit
or limit railroads and Tribal Nations from entering into arrangements or agreements governing their
contacts, including review of proposed facilities, provided such arrangements or agreements are otherwise
consistent with Federal law and no modification is made in the roles of other parties to the Section 106
process without the other parties’ consent. Documentation of such alternative arrangements or agreements
should be filed with the FCC’s Federal Preservation Officer. All communications from railroads to Tribal
Nations shall be made in a manner that is respectful of Tribal sovereignty. In addition, this Program

8 In general terms, a wayside pole consists of a metal pole largely resembling a utility pole, with an
associated equipment cabinet, used for mounting antennas along the way of the railroad track.
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Discussion Draft for Public Comment
January 29, 2014
Comment shall not be construed to limit State Historic Preservation Officers’ (SHPOs’) authority to adopt
flexible procedures under Section III.F or other provisions of the FCC NPA.
This Program Comment does not waive Section 106 compliance for any category of undertakings, nor
does it waive requirements to consult with Federally recognized Tribal Nations under Section 101(d)(6)
of the National Historic Preservation Act (NHPA) or any other source of law. The obligation to consult
on a government-to-government basis with Tribal Nations pursuant to the Federal government’s trust
responsibility rests with the FCC as a Federal agency and cannot be delegated to any party.
II.
Background
PTC system implementation is a complex undertaking reaching almost every element of affected railroad
operations. PTC systems generally use radio signals between trains and a land-based network to prevent
certain railroad accidents. When installed, PTC systems will be capable of controlling or stopping a train
when a train operator is unavailable or unresponsive and action is required to avoid a derailment,
incursion into a work zone, certain train-to-train collisions, or movement through a switch left in the
wrong position.9
In response to a 2008 railroad accident in Chatsworth, California that claimed 25 lives and caused over
100 injuries, Congress enacted the Rail Safety Improvement Act of 2008 (P.L. 110-432) (RSIA) that
requires freight and passenger railroads to deploy interoperable PTC systems by December 31, 2015.
More specifically, RSIA requires PTC system implementation on all Class I railroad lines that carry
poison- or toxic-by-inhalation hazardous (PIH or TIH) materials and five million gross tons or more of
annual traffic, and on any railroad’s main line tracks over which intercity or commuter rail passenger train
service is regularly provided. In addition, RSIA provides the Federal Railroad Administration (FRA)
with the authority to require PTC system implementation on any other line.
According to FRA, railroads required to implement PTC must do so on over 60,000 of approximately
160,000 miles of track nationwide. In addition, FRA has reported that railroads must design, produce,
and install more than 20 major PTC components, such as data radios for locomotive communication,
locomotive management computers, and back office servers as part of the PTC implementation.
FRA promulgated regulations to implement the requirements of RSIA. The regulations do not require the
railroads to use a specific technology or install a specific type of infrastructure as long as the system is
designed to meet certain performance objectives.
The components necessary to implement PTC systems include more than 20,000 poles, known as
“wayside poles,” to support fixed wireless antennas within the existing railroad right-of-way alongside
existing tracks nationwide. While the precise system architecture will vary somewhat depending on
topography, the railroad’s existing communications systems, and other factors, most of the major
railroads intend generally to install wayside poles approximately one to three miles apart along their

9 Deborah Hersman, Chairman of the National Transportation Safety Board (NTSB), has stated that while
railroad crashes occur for a variety of reasons, the “biggest safety challenge” is human error, and
“although human error cannot be eradicated, PTC technology is capable of supplementing the human
operation of trains.” (Source: Testimony of the Honorable Deborah Hersman, NTSB Chairman, before
the Senate Commerce Committee, June 19, 2013). In fact, the NTSB estimates that each of the 16
railroad crashes it has investigated since 2005 could have been “prevented or mitigated” with PTC
systems.
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Discussion Draft for Public Comment
January 29, 2014
tracks and at certain switch points and other operational sites. Nearly all of the wayside poles are
expected to be between 25 and 65 feet in height, including the antenna, although in some instances the
antenna may bring the total height to slightly more than 65 feet. The poles’ foundations will generally
vary from 5 to 10 feet or in some instances up to 15 feet in depth, depending on site conditions, and from
12 to 15 inches in diameter. The railroads have planned generally to install the foundations either by
screwing the shaft directly into the ground or by auger drilling a hole the size of the shaft. However,
some railroads have stated that they can use hand excavation methods where necessary in order to assist
in ascertaining the presence of archeological resources.
In addition to wayside poles, the railroads will need to install an estimated 3,000 to 4,000 additional
antennas to serve as base stations. These base stations will in most instances be located farther away from
the track and at greater heights above ground level, often 100 to 150 feet. While some of the base station
antennas will require new tower construction, the railroads have predicted that the majority will be
collocated on existing structures. Except in the limited instances where they fall within the criteria set
forth in Section III of this Program Comment, the Program Comment does not apply to Section 106
review of base station construction.
The FCC has determined that the construction of PTC transmission facilities and their supporting
structures is a Federal undertaking under Section 106. These facilities transmit signals using radio
spectrum that has been licensed (or in limited instances will be licensed) to the railroads or their affiliates
by the FCC. Pursuant to sections 1.1307 and 1.1312 of the FCC’s rules, 47 CFR §§ 1.1307, 1.1312, the
railroads are required to ascertain prior to construction the environmental impacts of facilities constructed
to transmit signals under these licenses, including Section 106 review under the relevant procedures set
forth by the Council and the FCC.
According to the FRA, “PTC implementation, on the scale required by the RSIA, has never been
attempted anywhere in the world.”10 The NTSB included PTC systems on its “Most Wanted list” every
year from the list’s inception in 1990 until the enactment of RSIA in 2008, and has added it again in
2014.11 The NTSB remains concerned that more fatalities, injuries, and community evacuations due to
hazardous materials releases are likely until PTC systems are implemented.12 An August 2013 report
issued by the Government Accountability Office (GAO) concluded that there are significant obstacles to
PTC deployment and there is significant risk that PTC will not be installed by the statutory deadline.13
In light of the public safety objectives of RSIA, and in recognition of the unique challenges posed by the
rapid deployment of PTC technology on a national scale, the FCC has requested that the Council endorse
special procedures that are tailored to PTC wayside poles. Accordingly, this Program Comment is
intended to create an efficient, practical, and timely review process that ensures full consideration of the
effects of PTC wayside poles on historic properties, including sites of religious and cultural significance

10 “Positive Train Control Implementation Status, Issues, and Impacts,” Federal Railroad Administration
Report to Congress, at 2 (Aug. 2012), www.fra.dot.gov/Elib/Document/2318.
11 Letter from Deborah A. P. Hersman, Chairman, National Transportation Safety Board, to Tom
Wheeler, Chairman, Federal Communications Commission, WT Docket No. 13-240, at 2 (Nov. 19,
2013). See http://www.ntsb.gov/safety/mwl.html.
12 Id.
13 See “Positive Train Control: Additional Authorities Could Benefit Implementation.” GAO-13-720
(Aug. 16, 2013), http://www.gao.gov/products/GAO-13-720.
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Discussion Draft for Public Comment
January 29, 2014
to Tribal Nations, in a manner that allows the railroads to complete construction by the Congressional
deadline.
In developing the Program Comment, the FCC consulted with the Council, SHPOs, Tribal Historic
Preservation Officers (THPOs) and other Tribal cultural preservation officials, and representatives of
Federally recognized Tribal Nations. This consultation included government-to-government consultation
with Tribal Nations in accordance with 36 CFR §§ 800.14(a)(1) and 800.14(f). The FCC also solicited
public participation in accordance with 36 CFR §§ 800.14(a)(1) and 800.14(e)(2).14 Because PTC is not
required to be deployed in Hawaii, no consultation with Native Hawaiian organizations was necessary.
The FCC’s efforts included, among other things, solicitation of comments on a Section 106 scoping
document that was published in the Federal Register15 as well as sent specifically to leaders and cultural
preservation officials of Tribal Nations, SHPOs, and other stakeholders; face-to-face meetings and
teleconferences with THPOs and other Tribal preservation officials in various parts of the Nation,
including both consultation meetings and demonstrations by the railroads; teleconferences with the
SHPOs; and solicitation of Tribal, Federal agency, and other stakeholder views on a draft Program
Comment. The FCC has documented in detail for the Council its consultation and public participation
efforts as well as its consideration and disposition of views that it received during these processes [to be
provided with formal submission to ACHP]
. In addition, written comments are available for viewing
through the FCC’s Electronic Comment Filing System in Docket No. 13-240.16
III.
Applicability
This Program Comment applies to wayside infrastructure that will be constructed within existing railroad
rights-of-way for use in the implementation and operation of PTC systems. Infrastructure eligible for the
procedures of the Program Comment may support either wayside antennas or base stations, but must not
be taller than 75 feet (including antenna), create a foundation hole in excess of 15 inches in diameter
(unless agreed to in the context of manual excavation), require a foundation deeper than 15 feet, or be
situated outside the railroad right-of-way. In all other cases, including collocations, Section 106 review
will be conducted under the existing FCC regulations and procedures.
This Program Comment may be adopted by any Federal agency, with notice to the Council and the FCC,
to satisfy its obligations under Section 106 with respect to PTC installations within the scope of this
Program Comment.
This Program Comment does not apply on “tribal lands,” as defined under 36 CFR § 800.16(x), unless a
Tribal Nation elects to adopt its provisions and in so doing follows the process set forth in Section I.D of
the FCC NPA.

14 See, e.g., https://www.fcc.gov/document/input-sought-program-comment-positive-train-control-
infrastructure, http://www.fcc.gov/document/erratum-input-sought-program-comment-positive-train-
control, and https://www.fcc.gov/document/ptc-program-comments.
15 78 FR 65308 (Oct. 31, 2013) available at http://www.gpo.gov/fdsys/pkg/FR-2013-10-31/pdf/2013-
26000.pdf.
16 http://apps.fcc.gov/ecfs/.
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Discussion Draft for Public Comment
January 29, 2014
IV.
Exclusions
The exclusions in the NPAs continue to apply to PTC infrastructure that falls within the terms of those
exclusions, including any geographic areas that a SHPO may designate as excluded from review under
Section III.F or VI.B of the FCC NPA. In addition, the following exclusions are appropriate for PTC
wayside poles beyond those specified in the NPAs.
1. Exclusion for Certain Structures Within Existing Railroad Right-of-Way. Section III.E of the
FCC NPA excludes from Section 106 review, subject to certain conditions, facilities to be
constructed in or within 50 feet of a right-of-way designated for the location of communications
towers or above-ground utility transmission or distribution lines and in active use for such
purposes. Although not typically designated as communications or utility rights-of-way, railroad
rights-of-way are functionally equivalent to communications or utility rights-of-way, and
sometimes contain existing structures similar to utility or communications poles. Accordingly,
PTC wayside structures that are installed within existing railroad rights-of-way and are similar to
structures that already exist in the same vicinity within the right-of-way can be conditionally
excluded from Section 106 review. The PTC wayside structures subject to this exclusion are
those that would not constitute a substantial increase in size (as defined under elements 1-3 of the
definition in the Nationwide Collocation Agreement, including no more than the standard number
of one new equipment cabinet per wayside pole) over existing poles or similar structures (used
for whatever purpose) located in the railroad right-of-way within the vicinity, provided they will
not be located within the boundaries of a historic property as identified by the applicant in
preparing the submission packet for Tribal Nations described in the Appendix. Thus, a SHPO
will review structures that are otherwise eligible for this exclusion only when the applicant
identifies a known historic property that encompasses the proposed location. Similar to the
existing exclusion for communications and utility rights-of-way, covered facilities remain subject
to the process for participation of Tribal Nations described herein, which is based on Section IV
of the FCC NPA.
2. Exclusion from Review for Effects on Railroad Track and Track Beds. In addition, the FCC and
its applicants may exclude from Section 106 review the effects of PTC facilities covered by this
Program Comment on the rails or the track bed themselves. Wayside poles covered by this
Program Comment are unlikely to have significant or adverse effects upon such nearby track and
track beds. The FCC and its applicants must consider the effects of proposed PTC wayside
facilities upon any railroad-related property types other than the rails and the track bed within the
APE that are individually listed or have been determined eligible for listing on the National
Register of Historic Places (National Register) under Section IV.D.1.a of the FCC NPA or that
have been identified as contributing elements to a historic district, as well as any other historic
properties, including properties of traditional cultural and religious significance to Tribal Nations
and archeological resources underneath the track bed, within the APE.
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Discussion Draft for Public Comment
January 29, 2014
V.
Enhanced Submission Process
Because of the large number of wayside poles that must be installed before the December 31, 2015,
statutory deadline, the following efficiencies will assist the SHPOs, Tribal Nations, and other
stakeholders as they work with the FCC to complete quickly the Section 106 process.
1. TCNS and E106. The FCC uses two electronic systems to communicate with Tribal Nations and
with SHPOs. The Tower Construction Notification System (TCNS) and the E106 System were
developed as single-project data systems. TCNS is used to notify Tribal Nations of proposed
projects and E106 is used to transmit documentation to the SHPOs and other consulting parties
that register with the E106 system.
TCNS uses geographic areas of interest provided by each Tribal Nation, typically by county, to
notify the appropriate Tribal Nations of proposed tower projects. After an applicant submits the
location and other characteristics of a proposed antenna structure into TCNS, TCNS generates a
letter to Tribal Nations that have indicated an interest in the location where the antenna structure
would be located. TCNS also informs the applicant as to which Tribal Nations have received this
letter. The Tribal Nations may then use TCNS to respond regarding their interest in a site. TCNS
is a secure system that protects the confidentiality of both applicants’ and Tribal Nations’
information from third parties.
Unless another method of communication and information sharing is agreed to by a Tribal Nation
or Nations, with notice to the FCC as described in Section I of this Program Comment, railroads
shall use TCNS for their proposed wayside poles in order to utilize the alternative Section 106
procedures specified in this Program Comment. If a Tribal Nation and a railroad have agreed to
an alternative communication and information sharing process, the railroad shall inform the FCC
of such agreement and keep FCC staff apprised of ongoing communications with all Tribal
Nations through such an alternative arrangement. To achieve efficiencies in SHPO review and to
facilitate FCC participation in the review process where necessary, the railroads shall also use
E106 for all facilities subject to this Program Comment, except for proposed facilities that are
exempt from SHPO review under either the FCC NPA or Section IV of this Program Comment.
In the event a SHPO does not accept submissions through E106, the railroad shall submit FCC
Form 620 or 621 by the means the SHPO prefers in addition to entering the information into
E106. Use of E106 does not relieve an applicant of its obligation to provide notices and other
documentation to consulting parties that are not registered with the E106 system under Section
V.G of the FCC NPA, nor of its obligation to provide notice to local governments, the public, and
any other groups the SHPO may designate under Sections V.A, V.B, and V.D of the FCC NPA.
2. Batching of Submissions. To reduce repetitive submissions and paperwork for all parties, the
FCC has determined that it may be efficient for applicants using this Program Comment to batch
information on PTC wayside infrastructure into single TCNS and E106 submissions for multiple
installations within the same county. These efficiencies should be balanced against any
difficulties in tracking and responding separately for multiple installations within a single
submission. The FCC has discretion to permit or require batching as it may determine to be
appropriate in the light of experience, and it shall provide all parties to the Section 106 process
with guidance as to what batching is required or permitted. Any batching of submissions is for
administrative convenience and is not intended to affect the level of review.
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Discussion Draft for Public Comment
January 29, 2014
In the event Section 106 review is completed for some but not all wayside poles within a batched
submission, the wayside poles for which review has been completed may be constructed without
awaiting completion of the review process for the remaining wayside poles, provided the
applicant has satisfied all other FCC regulatory requirements.
3. Reports and Maps. Ordinarily, applicants are not required to provide reports or maps as part of
their TCNS submissions. Nevertheless, Tribal Nations often request a cultural resource report
upon receipt of an application via TCNS. To avoid delay in achieving the statutorily mandated
public safety benefits of PTC, and in recognition that the large number of PTC wayside poles will
impose unusual strains on Tribal Nations in reviewing proposed constructions, applicants using
this Program Comment must submit a cultural resources report, prepared by a professional who
meets the relevant standards in The Secretary of the Interior’s Professional Qualifications
Standards
. The contents of this report are identified in the Appendix to this Program Comment.
Except where all poles in an application are exempt from SHPO review, applicants shall also
provide this report to the SHPO as part of their E106 submissions.
Further, maps are an important part of the Section 106 process as they enable the reviewer to
locate the proposed undertaking in the context of its landscape. Although U.S. Geological Survey
maps are sufficient for many individual tower projects, in the context of a batched submission,
effective, expeditious review will typically require a more interactive view of the overall railroad
right-of-way covered as well as the individual installations. Accordingly, batched submissions
under this Program Comment shall include a Google Earth overlay map as specified in the
Appendix.
Batched submissions in E106 shall include the information required on FCC Form 620 or 621 for
each pole that is included in the batch. This information may be presented in a summary manner
if it is the same for multiple poles. A batched E106 submission shall also include a Google Earth
overlay map as specified in the Appendix.
In addition to the materials listed in the Appendix, applicants may also want to include a field
survey and/or an ethnographic survey undertaken by an individual with the appropriate
professional qualifications as detailed in The Secretary of the Interior’s Professional
Qualifications Standards
. Although, consistent with Section VI.D.2 of the FCC NPA, a field
survey is not routinely required, applicants are encouraged to address anticipated needs of SHPOs
or Tribal Nations for field survey information in the early stages of the Section 106 process,
consistent with Council rules requiring that Tribal consultation commence early in the planning
process (36 CFR § 800.2(c)(2)(ii)(A)). This may include where appropriate arranging for the
presence of one or more qualified representatives of Tribal Nations to be present during field
work in a manner consistent with rail safety.
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Discussion Draft for Public Comment
January 29, 2014
Some Tribal Nations also commonly request ethnographic surveys. An ethnographic survey is a
literature search that provides, for instance, information on the migration or other movement
patterns of Tribal Nations and their use of their ancestral territory. Applicants are encouraged to
consider including ethnographic surveys with their TCNS submissions where they anticipate such
surveys may be requested. To promote efficiency, applicants are further encouraged to engage
the Tribal Nations regarding preparation of ethnographic surveys on a regional or multi-Tribal
basis. In the event an applicant does not include an ethnographic survey in its TCNS submission
and a Tribal Nation later requests an ethnographic survey, the matter shall be resolved in
accordance with the procedures specified in Section V.6 of this Program Comment.
4. Area of Potential Effects (APE). Given that all structures subject to this Program Comment will
be 75 feet or less in height and narrow in profile, the ½-mile presumed APE for visual effects
specified in the FCC NPA for towers less than 200 feet is reduced to ¼ mile for installations
covered by this Program Comment. While we recommend that the APE be measured in a linear
manner along the entire segment of track in order to avoid delay should relocation need to be
explored, railroads may elect to measure the APE using a radius from each point. If a linear APE
is used, it should extend ¼ mile from each edge of the right-of-way to ensure that it encompasses
a ¼-mile radius from every pole site.
An alternative APE may be established where appropriate in accordance with the procedures
specified in Section VI.C.5-6 of the FCC NPA. For example, a SHPO may propose a larger APE
in rural or pristine settings.
5. Compensation for Professional Services. The Council has stated that a Tribal cultural resource
office is justified in requesting payment for its services when an agency or applicant “essentially
asks the tribe to fulfill the role of a consultant or contractor” by providing “specific information
and documentation regarding the location, nature, and condition of individual sites” or by
conducting a survey, in order “to identify historic properties that may be significant to an Indian
tribe.” Memorandum from John M. Fowler, Executive Director, ACHP (July 6, 2001).
Consistent with this directive, Tribal Nations may seek recovery of expenses necessary to
complete their review of PTC facility locations. Given the extraordinary burden that reviewing
PTC facilities in an expedited fashion in addition to their other ongoing work may impose on
Tribal cultural resource staff, such expenses may include those necessary to retain additional
human resources in order to process the railroads’ submissions. Activities necessary to identify
historic properties significant to a Tribal Nation may also include monitoring of construction by a
Tribal representative. Accordingly, where a Tribal cultural resource office requests to monitor
construction at a proposed site, the applicant is expected to accommodate such request in a
manner consistent with rail safety and to meet any reasonable request for associated
compensation and reimbursement of expenses.
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Discussion Draft for Public Comment
January 29, 2014
The FCC encourages Tribal cultural resource offices to set their compensation according to a
uniform schedule available to the railroads at levels commensurate with their expenses and efforts
incurred in connection with the projects subject to this Program Comment. Tribal cultural
resource offices and applicants may also enter into arrangements to establish the appropriate fees.
6. Timeframes. Given the unique public safety considerations and statutory deadline for PTC
system implementation, this Program Comment modifies and adds definition to the FCC’s usual
timeframes for project review by Tribal Nations.
Specifically, after an applicant submits the required enhanced documentation through TCNS as
described above, Tribal Nations will have a total of approximately 40 days, subject to the
procedures specified below, in which to identify any wayside poles within a batched submission
that may merit further review or closer examination. A Tribal Nation may also notify the
applicant and the FCC within this time period that it requires further information or materials to
process the submission, again subject to the procedures specified below. This expedited review is
made possible by the enhanced TCNS submission package, which should reduce the need for
Tribal Nations to request additional information, as well as by the expectation that applicants will
compensate Tribal Nations for the cost of retaining qualified personnel to perform the reviews. In
addition, the railroads’ support for Tribal monitoring of construction may reduce the need for
detailed pre-construction review.
If a Tribal Nation does not respond to a TCNS submission covered by this Program Comment
within 20 days, and if the applicant has attempted at least one follow-up contact in a manner
respectful of Tribal sovereignty during this 20-day period (including an inquiry as to whether the
Tribal Nation requires additional information), the applicant may ask the FCC to send a letter
and/or e-mail to the Tribal Nation’s designated cultural resources representative seeking a
response. The FCC will send this letter or e-mail within five business days. If the Tribal Nation
does not respond within 15 days of the FCC’s letter and/or e-mail, which the FCC will
supplement with an attempted telephone contact unless the Tribal Nation has requested not to be
contacted by telephone, it will be deemed to have no interest in review of the proposed facility.
This is substantially the same process that the FCC follows for other submissions in TCNS,
except that the time periods are shortened. For those Tribal Nations that have notified the FCC
that they may generally be considered uninterested in TCNS submissions if they do not respond
within a specific time period of 30 days or less, without any need for follow-up contact, the usual
process applicable to those Tribal Nations shall apply.
Where a Tribal Nation requests additional information or materials, including compensation for
professional services, at any time during the response period, the applicant and the Tribal Nation
will attempt to resolve any disputes regarding the request within 15 days. If the matter is not
resolved within 15 days, the parties may bring their disagreement before the FCC. Unless
expressly authorized by the FCC, the applicant shall not proceed without satisfying the Tribal
Nation’s request. If the Tribal Nation does not respond as to its interest within 20 days after
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Discussion Draft for Public Comment
January 29, 2014
receiving requested additional information or materials, the applicant may request that the FCC
give the Tribal Nation a final opportunity to express its interest. The applicant shall provide the
FCC with a brief narrative of events and a copy of the materials it provided to the Tribal Nation.
Except as described above, in no instance shall an applicant consider a Tribal Nation to have no
interest in a proposed construction without either the Tribal Nation’s agreement or express
authorization from the FCC.
The FCC shall consider any request by a Tribal Nation for additional time to review an
application in the context of the circumstances surrounding such a request.
As part of its response to a submission through TCNS, a Tribal Nation may request to monitor
construction at any or all sites within a batched submission. Where necessary to ascertain the
presence of archeological resources, a Tribal Nation may also request use of an excavation
method other than screwing in of the pole or auger drilling. The applicant shall honor such
requests as discussed above.
Where a Tribal Nation has identified sites within a batched submission as needing further review
or a closer examination for effects on a historic property or cultural resource, or any other issue
arises that cannot be resolved swiftly by the parties, the Tribal Nation and the railroad are
encouraged promptly to bring the matter to the attention of the FCC. The FCC on a priority basis
will initiate dialogue among the parties, and consultation with the Tribal Nation as appropriate, in
order to resolve the concern. The FCC will resolve all such matters within 60 days of their being
brought to its attention, unless the FCC determines that additional time is necessary. The FCC
has full discretion to intervene in Section 106 review at any point in the process.
SHPO review periods and procedures continue to be governed by Section VII of the FCC NPA.
7. Other Federal Agency Involvement. Contemporaneously with or before submitting FCC Form
620 or 621 to the SHPO, applicants shall invite comment from any Federal agency with
jurisdiction over land or historic properties within the APE of any proposed PTC wayside
structure within a submission. Federal agencies shall respond to such requests within 30 days or
will be deemed to have no interest. Applicants are not required to invite Federal agency comment
on a proposed structure that is exempt from SHPO review.
Consistent with Section VII.D.3 of the FCC NPA, where a proposed structure would have an
adverse effect on a National Historic Landmark, the FCC shall request the Council to participate
in consultation and shall invite participation by the Secretary of the Interior.
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Discussion Draft for Public Comment
January 29, 2014
VI.
Addressing Adverse Effects to Historic Properties
The Section 106 process requires that effects to historic properties be considered before construction. The
Section 106 process does not prevent projects from being completed simply because there will be adverse
effects to historic properties. If an adverse effect to a historic property cannot be avoided, then measures
must be taken to minimize or mitigate the adverse effect.
In general, the process for addressing adverse effects of construction covered under this Program
Comment shall be governed by Section VII.D of the FCC NPA. The following paragraphs offer
additional guidance specific to PTC wayside structures.
1. Avoidance. Whenever possible, the preferred method to avoid adverse effects is to move or
alter the project. Given the functional requirements of PTC, wayside poles cannot be moved
outside the railroad right-of-way. In some instances, it may be possible to move a pole
location along the track a sufficient distance to avoid adverse effects. However, depending
on a number of factors, including topography, distance from other wayside poles, and relation
to switches or other railroad equipment, the flexibility for such relocation may be very
limited.
2. Minimization. Minimization is the preferred method to address adverse effects when
relocation or other avoidance measures are not possible. Although applicants rarely will be
able to reduce the height of PTC structures, they may find it possible to minimize the effects
of ground disturbance in certain circumstances, for example by hand excavation of the site.
3. Mitigation. Mitigation measures are steps or actions that are taken to mitigate or lessen the
adverse effects of an undertaking on historic properties. The mitigation measure must be
related to the historic property that is affected. To the extent an adverse effect extends across
multiple PTC sites, a single mitigation plan covering all of these sites may often be efficient.
Among mitigation measures adopted in the past for other FCC undertakings have been
cultural resource reports, nominations to the National Register of Historic Places, brochures,
signage, and training programs and public presentations. For historic properties with an
archeological component, mitigation typically involves data recovery measures.
VII.
Previously Constructed Facilities
The railroads have acknowledged that prior to contacting the FCC about their PTC infrastructure
buildout, they constructed many PTC facilities without completing Section 106 review. Section 106
review clearly should have been completed prior to construction, and it is important to the integrity of the
Section 106 process that the effects of this construction be considered and addressed. Accordingly, the
FCC will expeditiously establish a process for addressing PTC facilities that were constructed without
Section 106 review, which will take into account Section 110(k) of the National Historic Preservation
Act. Such process shall be consistent with Section X of the FCC NPA. In order to benefit from the
efficiencies in this Program Comment, each railroad must provide complete responses to all information
requests from the FCC regarding constructed PTC facilities within the timeframes established by the
FCC. The process for addressing constructed PTC facilities will include appropriate mitigation by the
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Discussion Draft for Public Comment
January 29, 2014
railroads for the effects of premature construction, supported by all necessary financial commitments, and
may include programmatic mitigation. In developing and implementing a mitigation process, the FCC
shall involve the SHPOs and Tribal Nations.
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Discussion Draft for Public Comment
January 29, 2014

Appendix

Material to Include in Submissions to Tribal Nations and SHPOs

 U.S. Geological Survey maps showing proposed wayside pole locations, as well as a Google
Earth overlay with associated information regarding the height and foundation depth of each pole.
The maps should show sufficient detail to provide the location of individual wayside poles as
well as the spatial relationship among the wayside poles.
 Method of installation. If the method of installation will not be the same for every pole within a
submission, the filing should distinguish which poles will use which method.
 A description of any other ground disturbance that may be associated with the installations, such
as for equipment staging or the provision of power.
 Contact information for a responsible official at the railroad as well as a cultural resources
professional.
 A cultural resources report that includes:
o Information on Federal lands and Federally recognized Tribal lands along or under
tracks;
o Ownership of tracks on or near Federal lands, including direct ownership or lease
arrangements;
o Location and details on all listed or determined-eligible historic properties within the
APE, as well as any historic properties and Tribal religious and cultural sites that have
been identified by Tribal Nations;
o Discussion of the known potential for below-ground cultural resources and historic
properties, including background information on any predictive model used for analysis;
o Results of any archeological or historical fieldwork undertaken;
o A qualified professional’s assessment of effects on historic properties and Tribal religious
and cultural resources;
o Photographs of historic properties within the APE and photographs looking at the
proposed pole site from each historic property, as would be included in the FCC Form
620 or Form 621, when historic properties are present within the APE; and
o Resumes of professional staff responsible for preparing the report sufficient to
demonstrate that the report’s authors and senior staff meet the relevant standards in The
Secretary of Interior’s Professional Qualifications Standards
for their respective areas of
responsibility.
 The applicant shall contact the SHPO either before or within seven days after E106 submission
and Tribal cultural resource offices during the initial 20 days after TCNS submission about any
need to supplement their filings.
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Discussion Draft for Public Comment
January 29, 2014

ATTACHMENT B

Summary of the FCC Draft Program Comment for Positive Train Control (PTC)

 General
o The Program Comment creates an optional alternative process to existing FCC
Nationwide Programmatic Agreements (NPAs)
o NPAs continue to apply to the extent Program Comment does not establish alternative
procedures.
 Applicability
o Eligible wayside structures must not:

Be taller than 75 feet (including antenna);

Create a foundation hole in excess of 15 inches in diameter (unless agreed to in
the context of manual excavation);

Require a foundation deeper than 15 feet; or

Be situated outside the railroad right-of-way.
o For all other cases, including collocations, Section 106 review will be conducted under
existing FCC regulations and procedures.
o Program Comment may be adopted by other Federal agencies to satisfy their obligations
under Section 106.
o Program Comment does not apply on Tribal lands unless a Tribal Nation elects to adopt
its provisions and in so doing follows the process set forth in Section I.D of the FCC
NPA.
 Exclusions from Section 106 Review
o PTC wayside structures that are similar to nearby existing structures within the existing
railroad right-of-way, provided the location is not within the boundaries of a known
historic property (but subject to participation of Tribal Nations); and
o Effects on the rails and the track beds themselves.
 Applicant submission package
o Must use TCNS and E106 (where applicable)
o May batch poles by county, subject to further FCC guidance

Batched submission requires map providing locations
o Includes cultural resources report (see Appendix for contents)
o Encouraged to consider including field survey and/or ethnographic survey where they are
likely to be requested
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Discussion Draft for Public Comment
January 29, 2014
 Area of Potential Effects (APE)
o Presumed ¼-mile APE for visual effects, subject to adjustment where appropriate
o Linear APE recommended

Tribal Nations Review
o Tribal Nations may request compensation for professional services consistent with ACHP
guidance, including recovery of expenses to retain additional human resources as well as
to monitor construction.
o Applicant shall ask Tribal Nations whether additional information is needed within 20
days of submission.
o If a Tribal Nation does not respond to the TCNS submission within 20 days, within which
applicant has attempted at least one follow-up contact:

The applicant may ask the FCC to send a letter and/or e-mail to the Tribal
Nation’s designated cultural resources representative seeking a response.

The FCC will send this letter or e-mail within five business days.

If the Tribal Nation does not respond within 15 days of the FCC’s contact and the
FCC has attempted follow-up with the Tribal Nation, it will be deemed to have
no interest in review of the proposed facility.
o For those Tribal Nations that have notified the FCC that they may generally be
considered uninterested in TCNS submissions if they do not respond within a specific
time period of 30 days or less, without any need for follow-up contact, the usual process
applicable to those Tribal Nations shall apply.
o If a Tribal Nation requests additional information or materials:

The applicant and the Tribal Nation will attempt to resolve any disputes
regarding the request within 15 days.

If the matter is not resolved within 15 days, the parties may bring their
disagreement before the FCC.

If the Tribal Nation does not respond as to its interest within 20 days after
receiving requested additional information or materials, the applicant may
request that the FCC give the Tribal Nation a final opportunity to express its
interest.
o A Tribal Nation may request to monitor construction at any or all sites within a batched
submission. The applicant shall honor such requests.
o If a Tribal Nation identifies any site as needing further review or a closer examination for
effects on a historic property or cultural resource, or any other issue arises that cannot be
resolved swiftly by the parties, the Tribal Nation and the railroad are encouraged
promptly to bring the matter to the attention of the FCC. The FCC on a priority basis will
initiate dialogue among the parties, and consultation with the Tribal Nation as
appropriate, in order to resolve the concern.

The FCC will resolve all such matters within 60 days of their being brought to its
attention, unless the FCC determines that additional time is necessary. The FCC
has full discretion to intervene in Section 106 review at any point in the process.
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Discussion Draft for Public Comment
January 29, 2014
 SHPO Review
o Applicant shall ask SHPO whether additional information is needed no later than seven
days after submission.
o SHPO review should be completed within 30 days of submission pursuant to the
procedures in the FCC NPA.
 Addressing Adverse Effects
o Processes in the FCC NPA for avoidance, minimization, and mitigation continue to
apply.
 Previously Constructed Facilities
o The FCC will expeditiously establish a process to address PTC facilities that were
constructed without Section 106 review, which will take into account Section 110(k) of
the NHPA and be consistent with Section X of the FCC NPA.
o This process will include provisions for appropriate mitigation, which the FCC will
involve SHPOs and Tribal Nations in developing and implementing
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