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Tribal Nations Consultation on Positive Train Control

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Released: September 27, 2013

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 13-1985

September 27, 2013

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

WT Docket No. 13-240

By this Public Notice, the Consumer and Governmental Affairs Bureau's (CGB) Office of Native
Affairs and Policy (ONAP) and the Wireless Telecommunications Bureau (WTB) initiate and invite
government-to-government consultation with and input from federally recognized Tribal Nations, their
Tribal Historic Preservation Officers (THPOs), and other Tribal cultural preservation officials regarding
the development of a proposed Program Comment to govern review of positive train control (PTC)
wayside facilities construction under Section 106 of the National Historic Preservation Act (NHPA).1
The ideas being considered for the potential Program Comment and consultation are described in the
attached Program Comment For Planned Construction of Positive Train Control Facilities Within the
Railroad Bed Section 106 Scoping Document for Consultation with Tribal Nations (Tribal Nations
Scoping Document), which is also being conveyed directly to Tribal leaders, THPOs and cultural
preservation officials pursuant to our federal trust responsibility to Tribal Nations.
In addition, the WTB is today releasing a separate, but substantially similar, Public Notice (WTB
Public Notice) and attached scoping document (WTB Scoping Document) seeking public comment and
inviting the participation of State Historic Preservation Officers (SHPOs) and other stakeholders,
including the railroad companies.2 The comment filing deadline for the WTB Public Notice is November
6, 2013. Reply Comments are not sought. The Tribal Nations Public Notice does not have a comment
period as it will be used to initiate formal consultations. Input and information shared with the FCC, WTB
and ONAP during the consultation process will be placed in the WTB docket. Specific instructions for
commenting appear in the WTB Public Notice and at the end of this notice.3

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, DA 13-1980 (rel. Sept 27, 2013)(WTB Public Notice)(attaching the Program
Comment For Planned Construction of Positive Train Control Facilities Within The Railroad Bed Section 106
Scoping Document
)(WTB Scoping Document).
3 See id. at 2-3 (filing instructions for commenters).

As described more fully in the Tribal Nations Scoping Document, PTC is mandated by the Rail
Safety Improvement Act of 2008,4 which requires all of the major freight and passenger railroads to
deploy PTC systems along most segments of their track by December 31, 2015. To meet this statutory
mandate, the freight railroads are preparing to install more than 20,000 wayside poles, between 25 and 65
feet in height, approximately one to two miles apart along their tracks and at certain switch points and
other operational sites. Because these poles will support antennas that will use radio spectrum licensed by
the Commission, the Commission considers the installation of PTC infrastructure to be an FCC
undertaking under the NHPA.
To comply with its obligations under the NHPA, the Commission's rules require that applicants
follow the Advisory Council on Historic Preservation (ACHP) regulations,5 as modified by two
Nationwide Programmatic Agreements executed by the Commission with the ACHP and the National
Conference of State Historic Preservation Officers,6 to ascertain whether proposed facilities may affect
historic properties.7 However, the mandated completion date for PTC and the volume of wayside poles
required present challenges to all those involved in the Section 106 process. A Program Comment, once
adopted by the ACHP, would identify alternative procedures for an applicant to follow in order to
ascertain, as required by Section 1.1307(a)(4) of the Commission's rules, whether proposed PTC wayside
facilities may affect historic properties that are listed or eligible for listing in the National Register for
Historic Places, including steps to ensure that Tribal Nations have a full opportunity to participate in
review.8 In developing a Program Comment, the action agency is required to ensure appropriate
government-to-government consultation with Tribal Nations.9 This Tribal Nations Public Notice and the
accompanying Tribal Nations Scoping Document are intended to fulfill this procedural requirement, the
Commission's trust responsibility as outlined in the FCC's 2000 Tribal Policy Statement,10 and the
federal government's trust responsibility to consult with Tribal governments prior to implementing any
regulatory action or policy that will significantly or uniquely affect Tribal governments, their land
and resources.
This proceeding will be treated as exempt under the Commission's ex parte rules.11 We find that
treating this proceeding as exempt is in the public interest because: (1) the ACHP's Program Comment
procedures require the Commission to gather facts, views, and information from multiple parties through
consultation, including government-to-government consultation with Tribal Nations; (2) requiring ex
parte
filings for each conversation in the development of the Program Comment would be cumbersome,

4 P.L. 110-432 (2008).
5 36 C.F.R. Pt. 800, Subpart B.
6 47 C.F.R. Pt. 1, Apps. B and C.
7 See 47 C.F.R. 1.1307(a)(4).
8 See 36 C.F.R. 800.14(a), 800.14(e).
9 36 C.F.R. 800.14(e)(4),(f).
10 Statement of Policy on Establishing a Government-to-Government Relationship with Indian Tribes, 16 FCC Rcd
4078, 4081 (2000) (FCC's 2000Tribal Policy Statement).
11 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

would potentially inhibit the consultation process, and would likely delay its development; and (3) once
developed, the Commission will submit the proposed Program Comment to the ACHP for approval, and
publish notice of the availability of proposed Program Comment in the Federal Register, as required by
ACHP regulations, thus giving all stakeholders a further opportunity to weigh in on the record at the
decisional stage.12
Tribal Nations, THPOs or other Tribal cultural preservation officials wishing to file comments in
the WTB docket may do so following the instructions in the WTB Public Notice13 and as follows:
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.

U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th
Street, SW, Washington DC 20554.
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 .
CGB Office of Native Affairs and Policy contacts: Geoffrey Blackwell, (202) 418-3629 or
Geoffrey.Blackwell@fcc.gov; Irene Flannery, (202) 418-1307 or Irene.Flannery@fcc.gov; or Rebekah
Bina, (202) 418-7931 or Rebekah.Bina@fcc.gov.

12 36 C.F.R. 800.14(a)(1). See also 36 C.F.R. 800.14(e)(5)(i) (requiring that, if the ACHP comments, the agency
shall publish notice in the Federal Register of the ACHP's comments).
13 See WTB Public Notice at 2-3 (filing instructions).
3

Media contact: Dan Rumelt, (202) 418-7512 or Dan.Rumelt@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.
We request that any Tribal Nation, THPO, or other Tribal cultural preservation official who
reaches out to any FCC points of contact, please also send an e-mail containing your full contact
information and a reference to this PTC scoping document to native@fcc.gov so the CGB Office of
Native Affairs and Policy and WTB Spectrum and Competition Policy Division may most effectively
coordinate on your responses to this scoping document and your involvement in our Tribal consultation
efforts.
4

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