Notice of Issuance of Program Comment To Tailor the Federal Communications Commission's Review for Undertakings Involving the Construction of Positive Train Control Wayside Poles and Infrastructure, 30861-30869 [2014-11897]

Agencies

• Historic Preservation, Advisory Council

[Federal Register Volume 79, Number 103 (Thursday, May 29, 2014)]
[Notices]
[Pages 30861-30869]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-11897]


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ADVISORY COUNCIL ON HISTORIC PRESERVATION


Notice of Issuance of Program Comment To Tailor the Federal 
Communications Commission's Review for Undertakings Involving the 
Construction of Positive Train Control Wayside Poles and Infrastructure

AGENCY: Advisory Council on Historic Preservation.

ACTION: Notice.

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SUMMARY: The Advisory Council on Historic Preservation (ACHP) issued a 
Program Comment at the request of the Federal Communications Commission 
(FCC) to tailor its review, under Section 106 of the National Historic 
Preservation Act, of undertakings involving the construction of 
Positive Train Control wayside poles and infrastructure.

DATES: The Program Comment was issued by the ACHP on May 16, 2014 and 
went into effect that day.

ADDRESSES: Address all questions concerning the Program Comment to 
Charlene Dwin Vaughn, AICP, Office of Federal Agency Programs, Advisory 
Council on Historic Preservation, 1100 Pennsylvania Avenue NW., Suite 
803, Washington, DC 20004. The ACHP will soon be moving, so that 
address will change on June 2, 2014 to 401 F Street NW., Suite 308, 
Washington, DC 20001-2637. You may submit questions through electronic 
mail to: cvaughn@achp.gov.

FOR FURTHER INFORMATION CONTACT: Charlene Vaughn at cvaughn@achp.gov.

SUPPLEMENTARY INFORMATION: Section 106 of the National Historic 
Preservation Act (Section 106) requires federal agencies to consider 
the effects of their undertakings on historic properties and to provide 
the Advisory Council on Historic Preservation (ACHP) a reasonable 
opportunity to comment with regard to such undertakings. The ACHP has 
issued the regulations that set forth the process through which Federal 
agencies comply with these duties. Those regulations are codified under 
36 CFR part 800 (Section 106 regulations).
    Under Section 800.14(e) of those regulations, agencies can request 
the ACHP to issue a ``Program Comment'' on a particular category of 
undertakings in lieu of conducting reviews of each individual 
undertaking under such category, as set forth in 36 CFR 800.3 through 
800.7. An agency can meet its Section 106 responsibilities with regard 
to the effects of particular aspects of those undertakings by taking 
into

[[Page 30862]]

account an applicable Program Comment that has been issued by the ACHP 
and following the steps set forth in that comment.

I. Background

    The ACHP has issued a Program Comment to tailor the Federal 
Communications Commission's (FCC) Section 106 review for undertakings 
involving the construction of Positive Train Control (PTC) wayside 
poles and infrastructure. According to the requirements for obtaining a 
Program Comment, the FCC formally requested the ACHP to issue the 
mentioned program comment on March 5, 2014. After the ACHP staff made 
several revisions to the Program Comment, the ACHP membership voted in 
favor of issuing the revised Program Comment via an unassembled vote 
that concluded on May 16, 2014.
    The need for this Program Comment relates to the Congressional 
enactment of the Rail Safety Improvement Act of 2008 (P.L. 110-432) 
(RSIA) on October 16, 2008, which requires freight and passenger 
railroads to deploy inter-operable PTC systems by December 31, 2015. 
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.
    Congress passed RSIA in response to a tragic railroad accident 
between a Southern California Regional Rail Authority Metrolink 
commuter train and Union Pacific freight train that occurred in 
Chatsworth, California, on September 12, 2008, killing 25 and injuring 
100 persons. While this accident gained a high level of public 
attention, other railroad accidents have continued to occur. FRA 
documented in its annual report issued in 2011 that an average of 2,000 
derailments and 205 train collisions occurred annually from 1998 to 
2009, excluding accidents at highway-rail crossings. Given the high 
probability of derailments and train collisions continuing to occur on 
passenger and freight railroads as well as intercity commuter, the 
implementation of the provisions in RSIA, and related regulations 
implemented by FRA and FCC is critical.
    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. 
Wayside poles are the vertical structures that will be used to support 
fixed wireless antennas within the existing railroad right of way 
alongside existing tracks. The antennas are used to support the 
wireless flow of information needed for the operation of PTC. Wayside 
infrastructure refers to the wayside pole associated equipment cabinets 
and other supporting infrastructure. Approximately 30,000 wayside poles 
will be required nationwide, of which at least 10,000 poles have 
already been installed.
    Various factors, including the public safety need for the PTC 
system, the approaching December 2015 mandatory deadline, and the sheer 
number of poles and infrastructure needed, argued for tailoring the 
Section 106 review of PTC wayside poles and infrastructure as provided 
by this Program Comment.

II. Public Input and Revisions to the Program Comment

    To develop the Program Comment, the FCC issued two Public Notices 
on the PTC wayside facilities program on September 27, 2013, and 
January 29, 2014. Approximately 60 comments were filed by diverse 
stakeholders during this period. FCC held two scheduled tribal 
consultations with several federally recognized tribes in 2013 in 
Oklahoma and South Dakota. Railroads representatives and FRA 
participated in both meetings to provide technical presentations on PTC 
and its engineering. The FCC has been consulting with State Historic 
Preservation Officers (SHPOs) regularly, and particularly with those 
who received submissions from railroads on PTC projects.
    FCC has worked extensively with FRA and the railroad industry to 
consider options for developing an efficient Section 106 review process 
for PTC construction. FRA also had received several PTC implementation 
plans submitted by railroads pursuant to the PTC regulations published 
in January 2010. This information reflects the location of the tracks 
on which PTC systems will be deployed; the types of systems that would 
be used; and the anticipated number of wayside poles to support the PTC 
system.
    The ACHP received the official FCC request for a Program Comment on 
March 5, 2014.
    The ACHP notified the SHPOs, Indian tribes, and railroads via 
broadcast emails on March 12, 2014, that it was in receipt of FCC's 
draft Program Comment, and provided them a copy for review and comment. 
Subsequent to this notification, teleconferences were held for Indian 
tribes, SHPOs, and railroads to review their historic preservation 
concerns before the deadline for written comments. The ACHP received 36 
written comments.
    On April 24, 2014, the ACHP notified stakeholders via broadcast 
email about the request for an extension and FCC's approval of the new 
deadline of May 16 for ACHP action on the Program Comment. The ACHP 
staff revised the FCC proposed Program Comment, and provided it to 
stakeholders for review and comment, after which teleconferences were 
scheduled with each stakeholder group prior to the comment deadline. 
The ACHP received 21 comments by the May 6th deadline. An in-person 
Section 106 consultation meeting was also held on May 6th to discuss 
with stakeholders the substance of the final Program Comment.
    The stakeholder comments raised several procedural and substantive 
issues. For instance, the railroad industry requested that the ACHP 
exempt the construction of PTC wayside poles and infrastructure from 
the requirements of Section 106 per 36 CFR 800.14(c). While the ACHP 
staff considered that request, it declined to pursue it due to concerns 
that such an exemption may not meet regulatory requirements. In 
particular, due to the high number of poles, their height, the level of 
subsurface disturbance resulting from their installation, and the 
potential that previously unknown archaeological sites may be impacted, 
it is questionable whether the requirement for an exemption that the 
poles' ``potential effects . . . upon historic properties [would be] 
foreseeable and likely to be minimal or not adverse'' would be met. 36 
CFR 800.14(c)(1)(ii).
    Another salient issue revolved around whether to make the use of 
the FCC's Tower Construction Notification System (TCNS) a requirement 
under the Program Comment. While the railroad industry noted its 
concerns about the use of TCNS, particularly questioning its capacity 
to handle the volume of submissions and possible geographic area limits 
for such submissions, the use of TCNS was seen by the staff as 
necessary to make tribal involvement feasible and provide the FCC with 
the ability to respond to disputes within the

[[Page 30863]]

short deadlines provided by the Program Comment. Given that TCNS is the 
most sophisticated and consistently used communication system with all 
federally recognized tribes, the existence of this system should give 
Indian tribes some assurance that they would be active participants and 
that their tribal concerns would be promptly and appropriately 
addressed. Accordingly, the use of TCNS (and the FCC's E-106) is 
required when railroads are going through the review process 
established by the Program Comment. Although the use of TCNS is not 
required in connection with alternative agreements allowed by the 
Program Comment, its use provides a safe harbor for railroads to 
satisfy the requirement to make a reasonable and good faith effort to 
identify relevant Indian tribes for such alternative agreements.
    Another issue that raised concerns related to the number of towers 
and geographic areas that may be incorporated in each individual 
submission for SHPO and tribal review. While a higher number of poles 
and wider geographic area covered could speed up the process, such a 
larger number could present workload issues for reviewers. Likewise, 
submissions covering a wider geographic area could present problems for 
TCNS and make consultation unwieldy due to the number of relevant SHPOs 
and Indian tribes involved. Ultimately, the Program Comment did not 
prescribe limits of poles or areas to be included in a single 
submission, but stated that: ``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 exclusion proposed regarding wayside poles and infrastructure 
within the railroad right of way was another subject that engendered 
discussion. Through its original proposal, the FCC attempted to provide 
railroads with a similar exclusion to the one that exists in the 
Nationwide Programmatic Agreement the FCC uses for its Section 106 
compliance for telecommunications towers. While some Indian tribes and 
SHPOs read the exclusion as removing too many poles from consideration, 
the railroad industry saw it as removing too few since it was limited 
to poles not more than 10% taller than similar structures in the 
vicinity. The exclusion was also seen as overly complex, which may 
explain the differences in how parties interpreted its effect. After 
much consideration, the exclusion was ultimately revised to be clearer, 
and to cover wayside poles and infrastructure located within 500 feet 
of certain existing railroad signal equipment, catenary bridge or 
catenary mast, or above ground utility transmission or distribution 
lines, provided they are not located within the boundaries of certain 
historic properties. The goal was to make the revised exclusion more 
useful to railroads, while not eliminating consideration of effects to 
historic properties when appropriate.
    Various concerns were raised regarding monitoring in terms of 
possible time delays, expense, justification, and contractor safety. 
The Program Comment attempts to address most of these concerns by, 
among other things, providing that a request for monitoring must be 
accompanied by an explanation of the basis for the request; setting 
forth what must be decided prior to beginning monitoring; explaining 
when monitoring may not be appropriate and outlining some areas where 
it may be of particular use; specifying that railroads protocols must 
be followed to ensure safety; and explaining how to proceed when a 
previously unknown property is identified.
    Railroads were particularly concerned about setting time frames 
that accommodate the timely installation of wayside poles and 
infrastructure, and making sure such time frames were met. The Program 
Comment sets up a review process with shorter and more predictable time 
frames than the original proposal, and explicitly states that certain 
eventualities (e.g., request for more information) do not stop the time 
clock. The only extensions of time frames relate to those considered by 
the FCC to present exceptional circumstances.
    Finally, another issue of concern to many stakeholders had to do 
with how the FCC and railroads would address the issue about the many 
wayside poles and infrastructure that were installed prior to Section 
106 review. The FCC and the seven Class I Freight Railroads have 
recently finished negotiating a landmark Memorandum of Understanding 
(MOU) regarding this matter. The MOU provides for the creation by the 
railroads of a $10 million cultural resources fund that will be 
available to Indian tribes and SHPOs to advance their work in the area 
of historic preservation. Under the MOU, each freight railroad has also 
committed to providing training for its employees on environmental and 
historic preservation reviews and to building working relationships 
with Indian tribes. The MOU notes the railroads' commitment to full 
compliance with environmental and historic review requirements on 
future PTC installations. As a result of this MOU, the railroads are 
immediately able to start using almost 11,000 poles (one third of the 
anticipated national deployment) for important testing and other 
preparatory activities necessary for the ultimate provision of PTC. As 
the Program Comment states, the agreement ``reflects ACHP's input and 
concerns [, and] [t]he 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.''
    The ACHP also revised the Program Comment to cover many other 
potential eventualities based on its own review of the request. 
Accordingly, the Program Comment provides for how it may be amended or 
withdrawn; how confidentiality concerns may be addressed; how the 
discovery of human remains will be handled; and how periodic meetings 
will be held to monitor the effectiveness of the Program Comment.

III. Final Text of the Program Comment

    The following is the text of the Program Comment as issued by the 
ACHP:

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.

[[Page 30864]]

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 (Pub. 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.
    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 CFR 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).
    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

[[Page 30865]]

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.
    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
    (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

[[Page 30866]]

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 (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:
    (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 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

[[Page 30867]]

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.
    (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;
    (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.

[[Page 30868]]

    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.
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 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.
    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

[[Page 30869]]

Program Comment. The FCC may handle those complaints consistent with 
Stipulation XI of the FCC NPA.

    Authority:  36 CFR 800.14(e).

    Dated: May 19, 2014.
John M. Fowler,
Executive Director.
[FR Doc. 2014-11897 Filed 5-28-14; 8:45 am]
BILLING CODE 4310-K6-P