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DA-14-680A2

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Program Comment to Tailor the Federal Communications Commission's

Section 106 Review for Undertakings Involving the Construction of

Positive Train Control Wayside Poles and Infrastructure



This Program Comment was issued by the Advisory Council on Historic Preservation (ACHP) on May 16,
2014, pursuant to 36 CFR 800.14(e), and went into effect on that date. It provides the Federal
Communications Commission (FCC) with an alternative way to comply with its responsibilities under
Section 106 of the National Historic Preservation Act, 16 U.S.C. 470f, and its implementing regulations,
36 CFR part 800 (Section 106), with regard to the effects of wayside poles and associated infrastructure
installed by the Nation's freight and passenger railroads to deploy Positive Train Control (PTC) systems
on historic properties. It also relieves other federal agencies from the need to conduct separate Section
106 reviews regarding the effects of such poles and infrastructure.

I.

Introduction


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). According
to a Federal Railroad Administration report, an average of 2,000 derailments and 205 train collisions,
resulting in 422 injuries and 12 fatalities, occurred annually from 1998 to 2009, excluding accidents at
highway-rail crossings. Federal Railroad Administration, Office of Safety, Railroad Safety Statistics,
Annual Report, April 1, 2011, pp. 4-20. The RSIA requires freight and passenger railroads to deploy
interoperable PTC systems by December 31, 2015. More specifically, RSIA requires PTC system
implementation on all Class 1 railroad lines that carry poison- or toxic-by-inhalation hazardous 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.
The implementation of the PTC system 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 operating, 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.

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. In 2010,
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.
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One of the components necessary to implement PTC systems is the “wayside pole,” a vertical structure
that will be used to support fixed wireless antennas within the existing railroad right of way alongside
existing tracks. Approximately 30,000 wayside poles will be required nationwide, of which at least
10,000 poles have already been installed. Although the precise system architecture varies 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 tracks and at certain switch points and other operational sites. Nearly all of the wayside
poles measure 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. Five of the seven Class 1 freight
railroads are typically installing poles with foundations that vary from 5 to 10 feet or in some instances
up to 15 feet in depth, depending on site conditions, and from 12 to 18 inches in diameter. These
railroads generally install the foundations either by screwing the shaft directly into the ground or by
auger drilling a hole up to 20 inches in diameter. However, some of these railroads have stated that they
can use hand excavation methods where necessary in order to assist in ascertaining the presence of
archaeological resources or avoiding effects on these properties. The other two Class 1 freight railroads
are using precast foundations up to 30 inches square and up to 5.75 feet in depth. These foundations
are generally installed using a backhoe to dig a hole up to 4 by 6 feet in surface area and up to 6 feet
deep. At many sites, installation will also require using fill rock or dirt, either taken from the excavation
hole or trucked in from elsewhere, in order to build up the area immediately adjacent to the track bed.

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.

II.

Section 106 Implications


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 the FCC's rules, at 47 CFR 1.1307 and 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 ACHP
and the FCC.

The FCC currently conducts Section 106 review of wireless tower and antenna undertakings in
accordance with the Section 106 implementing regulations, 36 C.F.R. part 800, as modified and
supplemented by two Nationwide Programmatic Agreements negotiated and executed a decade ago in
accordance with 36 CFR 800.14(b). These Nationwide Programmatic Agreements are codified in the
FCC's rules at 47 CFR part 1, Apps. B (Nationwide Collocation Agreement) and C (FCC NPA).
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There exists the possibility that, through assistance, licensing, permitting, or other approvals, other
federal agencies may have Section 106 responsibilities regarding the implementation of PTC. For
instance, to the extent that PTC may be implemented within lands managed by federal agencies, such
agencies may have to provide approvals to allow the installation of PTC. Other agencies may be involved
in financially supporting PTC implementation through grants or other financial assistance.

Various factors unique to PTC implementation call for an approach different from the typical Section 106
review process to provide needed flexibility to the FCC, the railroads, the State Historic Preservation
Officers (SHPOs) and Indian tribes. Such a tailored approach will be provided through this Program
Comment. Foremost among these factors is the underlying purpose of PTC implementation: to avoid the
loss of life and property from preventable train accidents. Another factor is that, unlike many
undertakings reviewed under Section 106, a “no build” alternative is not an option. As mentioned
above, the RSIA legislation requires the implementation of PTC. Another consideration is the very short
window of time for implementation. While the deployment of PTC has an aggressive schedule that may
be challenging for reasons unrelated to historic preservation, the RSIA as it exists today has imposed a
fast approaching deadline on railroads. Such deployment necessitates actions beyond the installation of
PTC facilities, which create further time constraints. For instance, such facilities, once installed, must be
tested and debugged as necessary, before PTC can begin to be used. Finally, due to the technology
chosen to implement PTC, there is limited flexibility in the exact location of the wayside poles and
therefore there may be somewhat limited strategies to avoid adverse effects to historic properties such
as cultural landscapes, archaeological sites, sites of religious and cultural significance to Indian tribes,
buildings, and structures.

This Program Comment is responsive to the unusual set of factors surrounding the deployment of PTC. It
is not meant to set a precedent for Section 106 Memoranda of Agreement or program alternatives
covering different types of undertakings.

III.

Scope and Use of this Program Comment

This Program Comment provides an alternative way for the FCC to comply with its Section 106
responsibility to take into account the effects on historic properties of PTC wayside poles that are no
taller than 75 feet (including their antenna) located within existing railroad rights-of-way and PTC
wayside pole associated equipment cabinets and other supporting infrastructure (including collocated
antennas) also located within existing railroad rights-of-way (collectively, “wayside poles and
infrastructure”) and to give the ACHP a reasonable opportunity to comment regarding such poles and
infrastructure. To achieve such compliance, the FCC may rely on the railroad’s implementation of
alternative agreements under Section VI, the exclusions under Section V, and the review process under
Section VII.
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Per Section VIII, this Program Comment also explains how the FCC will comply with its responsibilities
under Sections 106 and, as applicable, Section 110(k) of the National Historic Preservation Act for those
wayside poles and infrastructure that were installed prior to Section 106 compliance.
This Program Comment does not apply on tribal lands unless the relevant Indian tribe provides to the
FCC a written notice agreeing to such application on its tribal lands.
In order to facilitate early consultation under this Program Comment, the ACHP encourages the railroads
to work with the FCC to, as soon as possible, provide SHPOs and Indian tribes with easy access to
information about the location of the railroad tracks subject to PTC implementation.

IV. Exemption from Duplicate Review of Effects of Wayside Poles and Infrastructure by Other Agencies

Other federal agencies are not required to comply with Section 106 with regard to the effects of wayside
poles and infrastructure that either have undergone or will undergo Section 106 review, or are exempt
from Section 106 review, under this Program Comment or any other Section 106 program alternative
applicable to the FCC. When federal agencies have undertakings that include wayside poles and
infrastructure as well as components in addition to such wayside poles and infrastructure, such agencies
will need to comply with Section 106 in accordance with the process set forth at 36 CFR 800.3 through
800.7, or 36 CFR 800.8(c), or another applicable program alternative under 36 CFR 800.14. However,
they will not have to consider the effects of the wayside poles and infrastructure on historic properties
under the circumstance described earlier in this paragraph.

V.

Exclusions

A. The FCC is not required to take into account the effects of the following on historic
properties:
(1) wayside poles and infrastructure that are installed within existing railroad rights-of-
way, provided that:
(i) they are located within 500 feet of the following structures, so long as such
structures are 25 feet tall or taller:
(a) existing railroad signal equipment that includes one or more vertical
posts adjacent to the track that displays the signal indication or a
platform or bridge extending over the tracks with the signal indication
over the track that they control;
(b) an existing catenary bridge or catenary mast; or
(c) above ground utility transmission or distribution lines and associated
structures and equipment located within 100 feet of the center line of
the railroad right of way; and
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(ii) they will not be located within the boundaries of a historic property that is
listed in the National Register of Historic Places (National Register), formally
determined eligible by the Keeper of the National Register, determined eligible
on a SHPO or Indian tribe record, including State archaeological records, or
found during any agreed-to monitoring under Section VII;
(2) wayside antennas of less than 10 feet in height that are collocated on existing
railroad infrastructure, provided that such infrastructure is not listed in the National
Register, formally determined eligible by the Keeper of the National Register, or
determined eligible on a SHPO or Indian tribe record; and
(3) wayside poles and infrastructure to be located within the outer boundaries of a
system of yard track occupying 100,000 square feet or more, so long as such poles and
infrastructure are not located within the boundaries of or within 500 feet of a historic
property that is listed in the National Register, formally determined eligible by the
Keeper of the National Register, or determined eligible on a SHPO or Indian tribe record,
including State archaeological records. For purposes of this exclusion, a yard track is
defined as it is under 49 CFR 245.5(o) ("a system of tracks within defined limits used for
the making up or breaking up of trains, for the storing of cars, and for other related
purposes, over which movements not authorized by timetable, or by train order may be
made subject to prescribed signals, rules or other special instructions"). Although that
regulatory definition of yard track excludes sidings and main line track passing through
the yard, this exclusion applies to all locations within the yard limits.
B. The FCC is also not required to take into account the effects of wayside poles and
infrastructure on the rails themselves or the track bed itself. The track bed consists of the ballast
that supports the tracks as well as minor culverts and drainage devices. It does not include the
soil beneath the ballast or any archaeological resources within the ballast.
C. Through written notice to the railroad and the FCC, a SHPO or Indian tribe may exempt a
railroad from including that SHPO or Indian tribe in the Section VII review of wayside poles and
infrastructure within a geographic area defined by that SHPO or Indian tribe, as applicable.

VI.

Alternative Agreements

The FCC may comply with its Section 106 responsibilities regarding the effects of wayside poles and
infrastructure through railroad implementation of agreements negotiated between the railroad and the
relevant SHPO(s) and Indian tribe(s) regarding the review and resolution of adverse effects of such poles
and infrastructure within a particular geographic area. The relevant SHPOs are the SHPOs for the States
in which the wayside poles and infrastructure covered by the agreement are to be located. The relevant
Indian tribes are those Indian tribes that may attach religious and cultural significance to historic
properties that may be affected by the installation and operation of the wayside poles and
infrastructure covered by the agreement. The railroads must make a reasonable and good faith effort to
identify the relevant Indian tribes. Although the use of the FCC’s Tower Construction Notification System
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(TCNS) is not required in connection with alternative agreements, use of TCNS is the FCC’s
recommended approach for satisfying the reasonable and good faith standard.
Such agreements must be in writing, and executed by the relevant railroad, and all relevant SHPO(s) and
Indian tribe(s), and filed with the FCC's Federal Preservation Officer. FCC applicants are encouraged to
use the assistance of qualified professionals (see the definition under Section XII.A., including its
recognition of tribal expertise outside the Secretary of the Interior’s standards) to facilitate the
negotiation and drafting of such agreements. One agreement may include multiple SHPOs and/or Indian
tribes.
Once such an agreement has been properly executed and filed with the FCC, the railroad may
commence installation of the wayside poles and infrastructure covered by the agreement in accordance
with the terms of the agreement. The railroad will maintain adequate documentation regarding its
compliance with such an agreement for two years after the agreement has been fully implemented.
If a railroad reaches an agreement with some, but not all, of the relevant SHPO(s) and Indian tribe(s)
regarding the wayside poles and infrastructure to be located in a particular geographic area, the railroad
would follow the process in Section VII, below, with those SHPO(s) and Indian tribe(s) not parties to the
agreement regarding the wayside poles and infrastructure in that area, and follow the terms of the
agreement with the SHPO(s) and Indian tribe(s) that entered into the agreement.
Railroads, SHPOs, and Indian tribes are encouraged to use relevant provisions of the agreement
template provided by the FCC under Section VII.G., below, when negotiating these alternative
agreements.

VII.

Review Process for Effects of Wayside Poles and Infrastructure Not Excluded or Covered by an
Alternative Agreement

With regard to wayside poles and infrastructure that are neither excluded under Section V, nor fully
covered by an alternative agreement under Section VI, FCC Section 106 compliance regarding the effects
of such poles and infrastructure may be carried out using the FCC’s TCNS and E-106 systems as follows.
Before installing wayside poles and infrastructure in a particular area:
A. With the assistance of qualified professionals (see the definition under Section XII.A.,
including its recognition of tribal expertise outside the Secretary of the Interior’s standards),
railroads will prepare a map showing the proposed location of wayside poles and infrastructure
to be installed within a selected geographic area (including the poles and infrastructure
excluded per Section V, above). To avoid confusion and unmanageable workloads by reviewers
and to accommodate technical parameters of the FCC’s systems, no later than June 6, 2014, the
FCC, in coordination with the FRA and the railroads, will provide guidance regarding the quantity
of poles and extent of geographic areas that should be allowed per submission. The map and
other information listed below will:
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(1) include an overlay showing the boundaries of documented historic properties within
a 1/4 mile area from the location of the wayside poles and infrastructure. “Documented
historic properties” means historic properties that are listed in the National Register,
formally determined eligible by the Keeper of the National Register, or identified, after a
reasonable and good faith effort search through existing SHPO and tribal records,
including State archaeological records as appropriate, as having been determined
eligible. SHPOs and Indian tribes are encouraged to make available survey information
to railroads to assist in the identification of documented historic properties;
(2) be based on railroad engineering maps with pole coordinates, topographic
information, and other background pertinent to the installation of wayside poles and
infrastructure;
(3) identify any alternative locations considered by the railroad for wayside poles and
infrastructure, that the railroad believes would avoid or minimize adverse effects to
documented historic properties, and any proposed minimization and mitigation
strategies to address adverse effects to documented historic properties when the
railroad takes the position that avoidance is not a viable option;
(4) for each wayside pole and infrastructure, specify the type of wayside pole and
infrastructure and the installation technique that is proposed, and include a photograph
of each type of such pole and infrastructure; and
(5) for wayside poles and infrastructure excluded per Section V, above, specify the part
of Section V that provides the exclusion for each wayside pole and infrastructure.
In order to facilitate future consultations, the maps should also include the location of
the relevant PTC base stations. The submission should also include information about
the source of fill material if such material will be used in the installation of the wayside
poles and infrastructure.
B. The railroad will provide such a map and supporting documentation to the relevant SHPO and
Indian tribes. The relevant SHPO is the SHPO for the State in which the wayside poles and
infrastructure covered by the map are to be located. The relevant Indian tribes are those Indian
tribes that may attach religious and cultural significance to historic properties that may be
affected by the installation and operation of the wayside poles and infrastructure covered by
the map. The railroads must make a reasonable and good faith effort to identify the relevant
Indian tribes. Unless another method of submission is specified in an alternative agreement
under Section VI, the railroads will use TCNS to submit required information to the Indian tribes
and will use the FCC’s E106 system (E106) to submit required information to the SHPOs. In the
event an Indian tribe or SHPO does not accept submissions through TCNS or E106, the railroads
will also provide information to that Indian tribe or SHPO by the means the Indian tribe or SHPO
prefers. Use of TCNS meets the railroads’ obligation to make a reasonable and good faith effort
to identify the relevant Indian tribes. Such use of TCNS, and use of E106, also ensures the FCC
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will have access to the relevant information if the FCC needs to become involved in the review.
The FCC will work with the railroads to coordinate the reasonable timing of submissions.
C. The railroads will also use their regular external communications protocol to inform relevant
local governments and federal agencies, and the public of the status of wayside pole and
infrastructure installations and the opportunity for them to provide their views to the railroad
regarding adverse effects on historic properties of such installations during the 30-day review
process outlined in Section VII.D., below.
D. The relevant SHPO and Indian tribe(s) have 30 days from receipt of a submission under
Section VII.A. to review the map and supporting documentation, inform the railroad as to
historic properties not identified by the railroad and/or areas likely to contain previously
unidentified historic properties, inform the railroad about the need for additional information,
and provide recommendations and comments to the railroad. Any request for additional
information, and any request for monitoring, will explain the basis for the request and will not
suspend the 30-day review period once it commences. Within the review period, the railroad is
encouraged to schedule meeting(s) or telephone call(s) with the relevant SHPO and Indian
tribe(s) to discuss the adequacy of the map and supporting documentation, and proposed
avoidance, minimization and mitigation strategies (including the need for monitoring). If an
Indian tribe or SHPO has not responded within these 30 days, the railroad will refer the matter
to the FCC. The Indian tribe or SHPO will have no further opportunity to participate in this
review unless the FCC determines otherwise within 10 business days.
If an agreement between the railroad and the relevant SHPO and Indian tribe(s) is reached
regarding how the adverse effects of the wayside poles and infrastructure will be avoided,
minimized, or mitigated (PTC adverse effect agreement), the railroad will provide the FCC with a
copy of the PTC adverse effect agreement. The Section 106 process is then complete, and the
railroad may proceed with the installation of the wayside poles and infrastructure covered by
the map in accordance with the PTC adverse effect agreement unless the FCC requires further
processing for reasons other than Section 106. Such agreements must be in writing, and
executed by the relevant railroad, and all relevant SHPO(s) and Indian tribe(s), and filed with the
FCC's Federal Preservation Officer.
E. If the railroad is not able to reach a PTC adverse effect agreement with the relevant SHPO and
Indian tribe(s) regarding how the adverse effects of the wayside poles and infrastructure will be
avoided, minimized, or mitigated, the railroad will consult further with the relevant SHPO(s) and
Indian tribe(s) for a period of no less than 10 business days to attempt to reach such an
agreement, and will notify FCC of ongoing consultation and coordination.
(1) At any point after the end of the 10 business days, if the railroad, and the relevant
SHPO and Indian tribe(s) are unable to reach a PTC adverse effect agreement, any of
these parties may refer the lack of agreement (along with relevant information) to the
FCC, with a copy to the ACHP.
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(2) Within 10 business days after receipt of the referral and supporting documentation,
the FCC will make a decision as to how the adverse effects of the wayside poles and
infrastructure will be avoided, minimized, or mitigated, unless the FCC finds it necessary
to extend this time period due to exceptional circumstances such as those involving
sensitive historic properties and confidentiality concerns. During this period, the FCC will
consult with the SHPO as appropriate and with Indian tribes as necessary to fulfill its
trust responsibilities to Indian tribes. If the ACHP so requests, the FCC will consult with
the ACHP during this period and will consider the timely comments of the ACHP in
making its decision. At the end of the 10 business day period (plus extensions, if any),
the railroad may then install the wayside poles and infrastructure in accordance with
the FCC decision, if any, unless the FCC requires further processing for reasons other
than Section 106.
F.
(1) If, as part of consultations described in Section VII.D., the relevant SHPO and/or
Indian tribe(s) request monitoring of construction for specific areas or wayside poles,
the railroad will collaborate with the relevant SHPO and/or Indian tribe(s) to:

(i) determine the proposed location of monitoring;

(ii) develop a scope of work for the monitors, including railroad monitoring
protocols, coordination of information sharing regarding newly discovered
historic properties, and compensation; and

(iii) establish a monitoring plan that is consistent with rail safety, PTC
implementation scheduling, and approved engineering drawings.
Monitoring ordinarily will not be useful where a pole will be installed by helical screw
due to the lack of removed sediments for observation or analysis, but may be
appropriate in cases involving a pit excavation up to 30 square feet in surface area.
(2) The purpose of monitoring prior to installation of PTC wayside poles is to avoid or
minimize disturbance of previously unknown and potentially National Register-eligible
properties and to record the presence of such properties so that effects to them may be
considered during future ground-disturbing activities.
(3) Areas with high probability of containing unknown National Register eligible sites
may include, but are not necessarily limited to:
(i) areas within close proximity to existing and previous natural water courses
known to exhibit prehistoric habitation or use;
(ii) areas in close proximity to previously identified prehistoric archaeological
resources;
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(iii) areas identified as having potential for buried/subsurface archaeological
deposits based on a professional geo-archaeological analysis; and/or
(iv) areas identified through consultation with tribal representatives as having
sensitivity for tribal cultural resources.
(4) All monitors must be qualified professionals (see the definition under Section XII.A.,
including its recognition of tribal expertise outside the Secretary standards).
(5) All monitors will adhere to the applicable railroad protocols. To address safety and
logistical concerns associated with monitoring, monitors must attend requisite training
held by the railroads. Any concerns or disputes regarding monitoring will be submitted
to the FCC for resolution, recognizing the time sensitive nature of monitoring for PTC
installations.
(6) If a tribal or archaeological monitor finds that a previously unknown property exists
at the location of a planned wayside pole installation, railroad personnel shall notify the
FCC and will determine whether the pole location can be moved to avoid the property.
If avoidance is possible, the monitor will record the property and installation of the pole
will be completed at the new location. If the railroad personnel determine that the pole
location cannot be moved, the monitor will record the property on the relevant State
form, and the railroad will proceed consistent with the PTC adverse effect agreement
prior to installation of the pole.
(7) If a tribal or archaeological monitor observes cultural materials being exposed during
mechanical excavation of the pit for placement of the wayside pole foundation, railroad
personnel shall notify the FCC and immediately halt the excavations. The monitor will
record the exposed evidence, complete in-field analysis of any artifacts, record any
visible features and take samples if appropriate, and consult with railroad personnel to
determine how best to complete installation of the pole while minimizing further
damage.
(8) Monitors will complete appropriate recordation forms for any discovered properties
and submit them to the appropriate state or tribal records repository.
G. FCC will prepare an agreement template and guidance on standard measures to assist in the
PTC adverse effect agreement drafting and negotiation mentioned above.
H. The ACHP encourages railroads to specify how wayside poles and infrastructure adjacent to
or within the boundaries of a historic property will be disassembled if and when they become
obsolete.
I. The ACHP encourages railroads to use fill that has not come from sites associated with historic
properties in order to avoid the need for further Section 106 consideration of the effects of such
use.
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VIII. Previously Constructed Facilities

The FCC has entered into a Memorandum of Understanding with the railroads with respect to the
wayside poles and infrastructure that were installed without prior compliance with the requirements of
Section 106. The FCC provided the ACHP with a five-day opportunity to review the Memorandum of
Understanding. The executed Memorandum of Understanding reflects ACHP’s input and concerns. The
FCC has determined, and the ACHP agrees, that the Memorandum of Understanding with the railroads
fully addresses concerns regarding the previously constructed wayside poles and infrastructure and, to
the extent Section 110(k) of the National Historic Preservation Act applied to this situation, any
requirements for the FCC to consult with the ACHP under that statute and implementing regulations.

IX. Discoveries


A. Human Remains Discovery
Unless there are applicable provisions under an alternative agreement under Section VI
or a PTC adverse effect agreement under Section VII.D. regarding the discovery of
human remains, if human remains are discovered at any time in project
implementation, the railroad will immediately cease work at the site, except for work
that may be necessary to secure the site, and:


(1) comply with State burial law or NAGPRA, as applicable; or
(2) if no such State law or NAGPRA is applicable, and an agreement with the relevant
SHPO and Indian tribe(s) cannot be reached on treatment measures for human remains
within 10 business days of the discovery, the matter will be referred by the railroad to
FCC, with a copy to the ACHP, for a final resolution by the FCC. FCC will respond within
10 business days after the receipt of the referral, unless the FCC finds it necessary to
extend this time period due to exceptional circumstances, such as those involving
sensitive historic properties and confidentiality concerns. The FCC will consult with the
SHPO and Indian tribes during this period as appropriate and to the extent necessary to
fulfill its trust responsibility to Indian tribes. If the ACHP so requests, the FCC will consult
with the ACHP during this period and will consider the timely comments of the ACHP in
making its decision. The railroad may then continue the installation of the relevant
wayside poles and infrastructure in accordance with the FCC decision. It is the
expectation of the ACHP that human remains will be treated with respect, consistent
with the ACHP’s Policy Statement Regarding Treatment of Burial Sites, Human Remains
and Funerary Objects, dated February 23, 2007.

B. Other Discoveries
Unless there are applicable provisions under an alternative agreement under Section VI
or a PTC adverse effect agreement under Section VII.D. regarding the discovery of
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historic properties (other than those containing human remains), the railroad will follow
the applicable provisions of 36 CFR 800.13(b).

X. Involvement of FCC as Requested by Indian Tribes

While the Program Comment is set up so as to operate mostly without the continuous involvement of
the FCC, an Indian tribe that desires the involvement of the FCC at any point in the processes described
in this Program Comment may request the FCC to become so involved, and the FCC will decide how to
become involved consistent with its responsibilities towards Indian tribes. Such involvement by the FCC
does not extend the deadlines provided in this Program Comment.

XI. Confidentiality Concerns

If a railroad, an Indian tribe, or a SHPO raises a confidentiality concern regarding information to be
exchanged under this Program Comment, and such concern cannot be resolved through a confidentiality
agreement among the relevant parties, that party may request that the FCC resolve the concern.

XII. Administrative Provisions

A. Definition of a “qualified professional”
A “qualified professional” is a person who meets the relevant standards outlined in the
Secretary of the Interior’s Historic Preservation Professional Qualification Standards,
consistent with the proposal at 62 FR 33708 – 33723 (June 20, 1997). These qualification
standards do not apply to individuals recognized by the relevant Indian tribes to have
expertise in identification, evaluation, assessment of effect, and treatment of effects to
historic properties of religious and cultural significance to their tribes.
B. Other definitions
Unless otherwise defined in this Program Comment, the terms used in this Program
Comment will have the meaning ascribed to them under 36 CFR part 800 (2004).

C. Duration
This Program Comment will be in effect until May 16, 2021, unless extended through an
amendment per Section XII.D., below.

D. Amendments
The Chairman of the ACHP may amend this Program Comment after coordinating with
the FCC and other parties as deemed appropriate by the Chairman, and providing
written notice about the amendment to the FCC, the FRA, the Association of American
Railroads, the American Public Transportation Association, the American Short Line and
Regional Railroad Association, the National Conference on State Historic Preservation
Officers, and the National Association of Tribal Historic Preservation Officers.
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E. Withdrawal of Program Comment
If the Chairman of the ACHP determines that the consideration of historic properties is
not being carried out in a manner consistent with this Program Comment, the ACHP
Chairman may withdraw this Program Comment after consulting with the FCC, the FRA,
the Association of American Railroads, the American Public Transportation Association,
the American Short Line and Regional Railroad Association, the National Conference on
State Historic Preservation Officers, and the National Association of Tribal Historic
Preservation Officers, and thereafter providing them written notice of the withdrawal.

F. Periodic Meetings
Through the duration of this Program Comment, the ACHP and the FCC will meet semi-
annually (during September and March) during the first two years of this Program
Comment and then annually thereafter (in March) to discuss the effectiveness of this
Program Comment, including any issues related to improper implementation, and to
discuss any potential amendments that would improve the effectiveness of this Program
Comment. The FCC may, and will if requested by the ACHP, also invite the FRA, the
Association of American Railroads, the American Public Transportation Association, the
American Short Line and Regional Railroad Association, the National Conference on
State Historic Preservation Officers, the National Association of Tribal Historic
Preservation Officers, and tribal representatives to these meetings or any portion
thereof.

G. Complaints regarding implementation of this Program Comment
Members of the public may refer to the FCC any complaints regarding the
implementation of this Program Comment. The FCC may handle those complaints
consistent with Stipulation XI of the FCC NPA.
13


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