[Federal Register Volume 78, Number 211 (Thursday, October 31, 2013)]
[Notices]
[Pages 65308-65311]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-26000]


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FEDERAL COMMUNICATIONS COMMISSION

[WT Docket No. 13-240; DA 13-1980]


Comment Sought on Scoping Document for Development of a Proposed 
Program Comment To Govern Review of Positive Train Control Facilities 
Under Section 106 of the National Historic Preservation Act

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: The Wireless Telecommunications Bureau (Bureau) of the Federal 
Communications Commission (FCC) seeks public comment in connection with 
the development of a proposed Program Comment to govern review for the 
construction of positive train control (PTC) wayside facilities under 
section 106 of the National Historic Preservation Act (NHPA). The ideas 
the Bureau is considering for the potential Program Comment are 
described in the referenced Supplementary Information.

DATES: Comments are due on November 15, 2013.

ADDRESSES: You may submit comments, identified by WT Docket No. 13-240; 
DA 13-1980, by any of the following methods:
    Federal Communications Commission's Web site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting 
comments.
    Mail: Filings can be sent by hand or messenger delivery, by 
commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail. All filings must be addressed to the Commission's 
Secretary, Office of the Secretary, Federal Communications Commission.
    People With Disabilities: Contact the FCC to request reasonable 
accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by email: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT:  Stephen Del Sordo, (202) 418-
1986 or [email protected], or Anne Marie Wypijewski, (717) 338-
2508 or [email protected]. Media contact: Cecilia Sulhoff, 
(202) 418-0587 or [email protected]. Jeffrey Steinberg, Deputy 
Chief of the Spectrum and Competition Policy Division, at 
[email protected] or 202-418-0896.
     Geoffrey Blackwell, Chief of the FCC's Office of Native 
Affairs and Policy, at [email protected] or 202-418-3629; or
     Irene Flannery, Deputy Chief of the FCC's Office of Native 
Affairs and Policy, at [email protected] or 202-418-1307.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Public 
Notice in WT Docket No. 13-240; DA 13-1980, released on September 27, 
2013. The full text of this document is available for public inspection 
and copying during regular business hours in the FCC Reference Center, 
Federal Communications Commission, 445 12th Street SW., Room CY-B402, 
Washington, DC 20554. Alternative formats are available for people with 
disabilities (Braille, large print, electronic files, audio format), by 
sending an email to [email protected] or calling the Commission's Consumer 
and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-
0432 9TTY). Program Comment For Planned Construction of Positive Train 
Control Facilities Within The Railroad Bed section 106 Scoping 
Document. The Federal Communications Commission (FCC) invites the 
participation of State Historic Preservation Officers (SHPOs), the 
historic preservation community, and other stakeholders in developing a 
proposed Program Comment, pursuant to Sec.  800.14(e) of the rules of 
the Advisory Council on Historic Preservation (ACHP), 36 CFR part 800, 
to facilitate the review process under section 106 of the National 
Historic Preservation Act (NHPA), 16 U.S.C. 470f, for the 
infrastructure required for Positive Train Control (PTC). The FCC is 
the lead, or action, federal agency because the construction of PTC 
facilities requires the use of radio spectrum that is licensed by the 
FCC. Our process for developing the Program Comment includes 
government-to-government consultation with federally recognized Indian 
Tribes in accordance with Sec.  800.14(e)(4) and (f) of the ACHP rules 
and in accordance with the trust relationship we share with sovereign 
Tribal Nations as outlined in the FCC's Statement of Policy on 
Establishing a Government-to-Government Relationship With Indians 
Tribes (16 FCC Rcd 4078, 4081 (2000)).
    The purpose of this scoping document is to inform and engage all 
stakeholders in this important process. The FCC will also release a 
document substantively identical to this document to initiate formal 
consultation on the development of the proposed Program Comment with 
federally recognized Tribal Nations. This document provides a statement 
of purpose, background on PTC, an overview of PTC infrastructure, an 
explanation of compliance with section 106 for PTC infrastructure, a 
discussion of ideas for the proposed Program Comment, a description of 
next steps, and FCC contact information.

Purpose

    PTC will enable the railroads to improve the safety of freight and 
passenger train operations by preventing derailments, incursions into 
work zones, and collisions. The FCC's goal, through Tribal consultation 
and engagement with the ACHP, SHPOs and stakeholders, is to develop an 
efficient, practical, and timely review process that ensures full 
consideration of the effects of PTC facilities on historic properties, 
including Tribal religious and cultural sites.
    Congress mandated that the railroads complete PTC deployment by 
December 31, 2015. To meet this statutory mandate, the railroads are 
preparing to install more than 20,000 wayside poles nationwide within 
the existing railroad bed alongside existing tracks. The freight 
railroads intend to install wayside poles approximately one to two 
miles apart along their tracks and at certain switch points and other 
operational sites. Nearly all of the wayside poles are expected to be

[[Page 65309]]

between 25 and 65 feet in height, including the antenna. The depth of 
the poles' foundations will vary from 5 to 10 feet or in some instances 
up to 15 feet, depending on site conditions. The foundation holes will 
be created by drilling and will vary from 12 to 15 inches in diameter.
    Until recently, the FCC understood that most of the wayside PTC 
antennas would be installed on existing infrastructure. By May 2013, 
however, it became clear that most of the wayside facilities, with some 
exceptions mainly in urban areas, would require new poles. Due to the 
impending statutory deadline, the railroads have stated that they must 
begin general deployment of these facilities by early 2014. 
Accordingly, the FCC seeks the cooperation of all interested parties to 
develop a Program Comment on an expedited basis. Our goal is to deliver 
a draft Program Comment to the ACHP for approval in accordance with its 
procedures by mid-December 2013.
    Some of the railroads have also requested to begin deployment of 
PTC poles along specific segments of track during 2013, prior to 
development of a draft Program Comment. The FCC believes that by 
conducting early, focused reviews in limited geographic areas, we can 
gain valuable experience that will provide useful information for the 
proposed Program Comment. These early reviews will also help illuminate 
the extent to which PTC installations have the potential to cause 
adverse effects. As a central feature of these early reviews, we have 
scheduled consultative meetings with Tribal Nations that have an 
interest in the relevant geographic areas in Tulsa, Oklahoma, and in 
Rapid City, South Dakota. These meetings will enable the FCC and Tribal 
Nations to share and hear each others' perspectives while working 
through the issues together in an actual, real world context. In 
addition to working sessions in which the railroads are expected to 
participate, these meetings will include government-to-government 
consultation sessions directly between the FCC and Tribal Nations. The 
FCC will also schedule appropriate opportunities for SHPOs and other 
interested parties to participate in the demonstration reviews. We 
anticipate this process will inform all stakeholders of the important 
issues involved in the critically important aspects of deploying of 
PTC, complying with the section 106 process, and promulgating the 
proposed Program Comment.

Background

    PTC is mandated by the Rail Safety Improvement Act of 2008, Public 
Law 110-432, which requires all of the major freight and passenger 
railroads to deploy PTC systems along most segments of their track by 
December 31, 2015. Congress enacted the PTC requirement following an 
accident in Chatsworth, California, that resulted in 25 deaths and 
injuries to more than 135 passengers. Utilizing radio signals between 
the locomotive and a land-based network, PTC is capable of remotely 
controlling or stopping a train that is traveling at an unsafe speed or 
is approaching danger. PTC will thus safeguard human life and property 
by preventing injuries, hazardous material spills, and property damage 
caused by preventable train collisions and over-speed derailments.
    PTC involves the construction of facilities in order to use radio 
spectrum that is licensed by the FCC. Therefore, the FCC considers the 
installation of PTC infrastructure to be an FCC undertaking under the 
NHPA. As such, the FCC is required to take into account the potential 
impacts of PTC facilities on historic properties. To meet that 
obligation, we are developing this Program Comment pursuant to ACHP 
procedures.

PTC Infrastructure

    In many respects, the wayside poles are similar in height, 
diameter, and depth of foundation to utility poles used to support 
electric, telephone, and broadband cables. In general, the wayside 
structures will be specialized metal poles affixed to a concrete or 
metal foundation at ground level. Many of the wayside poles contain a 
pivot point that will permit small crews to swing the pole down for 
maintenance and repairs, thus avoiding the need for crews to climb the 
poles. At some installations, the communications gear will be affixed 
to the pole and a small platform will be placed at the base for 
staging. In other cases, this equipment will be placed in a new or 
existing small shelter which will be connected to the pole using power 
and fiber cable connections buried in a shallow trench. The railroads 
intend to use existing equipment shelters where possible to reduce the 
fiscal and environmental impacts of PTC.
    The wayside poles will be installed in holes typically 5 to 10 feet 
in depth, although they may be up to 15 feet deep in certain limited 
situations. The depth of foundation for each pole will depend on the 
pole's height, soil conditions, and local safety regulations. The holes 
will be bored by a mechanical arm extending from equipment traveling on 
the railroad or an existing access road. Many of the foundations will 
be installed using a helical method through which the pole is screwed 
directly into the ground with minimal excavation of soil. In other 
cases, the hole may be excavated using an auger method before the 
foundation is inserted. Installation will require no ground disturbance 
other than the foundation hole, a concrete pad for the equipment 
shelter (where needed) or staging platform, and a shallow trench to 
connect the wayside pole to an equipment shelter or other wayside 
facility. Virtually all of the poles will be placed in the ballasted 
roadbed of the railway on ground that has been disturbed by railroad 
construction and ongoing maintenance. However, in some cases, the depth 
of the foundation hole may exceed the depth of the previous 
disturbance.
    The railroads have already determined proposed sites for most of 
their PTC facilities based on the technical requirements of PTC. Due to 
the system's technical requirements, the railroads state, there is 
typically little flexibility in these locations. The railroads have 
told the FCC that there might be opportunities to move some of the 
wayside poles over short distances. However, those determinations will 
have to be site-specific based on the technical requirements for the 
entire system.
    In addition to the wayside poles, the railroads will need to 
install between 3,000 and 4,000 antennas, typically at heights of 100 
to 150 feet, to serve as base stations. These base stations will 
typically be located farther away from the track. While some of the 
base station antennas will require new tower construction, the 
railroads have projected that the majority will be collocated on 
existing structures. The FCC intends that section 106 review of the new 
base station structures, as well as collocations to the extent required 
will be conducted under existing FCC regulations and procedures. Thus, 
we do not intend for the proposed Program Comment to cover these base 
station facilities.

Compliance With Section 106 for PTC Infrastructure

    The FCC is committed to protecting historic properties under the 
NHPA, including properties that have religious and cultural 
significance for Tribal Nations. The FCC has an efficient and 
successful section 106 review process. The FCC's rules require that 
applicants follow the ACHP's section 106 regulations, as modified by 
two

[[Page 65310]]

Nationwide Programmatic Agreements executed by the Commission with the 
ACHP and National Conference of State Historic Preservation Officers 
(47 CFR part 1, Appendices B and C), to ascertain whether proposed 
facilities may affect historic properties. Among other things, the FCC 
maintains an electronic system, the Tower Construction Notification 
System (TCNS) to ensure that federally recognized Indian Tribes receive 
timely notice of projects proposed in their geographic areas of concern 
and to engage them in the review. The FCC also maintains a companion 
system, E106, which may be used to transmit the required documentation 
to the SHPOs and other interested parties.
    The mandated completion date for PTC and the volume of wayside 
poles required present challenges to all of those involved in the FCC's 
existing section 106 process. In each of the past few years, the FCC 
and its preservation partners have completed the section 106 process 
for between 10,000 and 12,000 projects. PTC will approximately double 
that number over each of the next two years, thereby straining the 
resources of all participants in the process. Moreover, due to the 
location and physical characteristics of the facilities, the potential 
for PTC wayside poles to cause adverse effects to historic properties 
is not likely to be the same as for typical communications towers. In 
recognition of these facts, the ACHP has recommended that the FCC work 
with the ACHP and its preservation partners to develop efficiencies 
that are tailored to the review of PTC wayside facilities, to be 
memorialized in a Program Comment.
    A Program Comment, once approved by the ACHP, would identify 
alternative section 106 procedures for an applicant to follow in order 
to ascertain, as required by Sec.  1.1307(a)(4) of the FCC's rules, 
whether proposed PTC wayside facilities may affect historic properties 
that are listed or eligible for listing in the National Register for 
Historic Places, including steps to ensure that Tribal Nations have a 
full opportunity to participate in review. The Program Comment would 
not override the FCC's general obligation to consult with federally 
recognized Tribal Nations under the section 106 process, absent the 
Tribe's consent that consultation is unneeded.

Program Comment

    The FCC has identified several areas in which a Program Comment 
might appropriately tailor the section 106 process to the review of PTC 
wayside facilities. Please note that the ideas set forth below are 
intended to scope issues at a pre-decisional and early point in the 
process to facilitate productive dialogue, and do not represent 
decisions that the FCC has already made.
    Submission Process. Both TCNS and E106 are designed to accept 
proposed constructions on a site-by-site basis. In recognition of the 
large number of wayside facilities and the linear nature of PTC 
deployment, the FCC is developing a process for each railroad to submit 
multiple adjacent sites through these systems in a single filing. This 
batching process is intended only to improve processing efficiency, not 
to affect substantively the Section 106 review of proposed sites 
submitted in a single filing. For TCNS, the sites will likely be 
batched by county to match the way that Tribal Nations typically 
identify their areas of interest. E106 and other SHPO submissions may 
also best be batched by county to facilitate functional efficiencies 
between the systems. We invite input on how the batching process may be 
made to work best for all parties participating in Section 106 review. 
In order to gain experience with this process, the FCC proposes to use 
batched submissions for the demonstration projects that will begin in 
2013. We will soon be contacting the affected Tribal Nations and SHPOs 
to discuss the mechanics of this process that we propose for the 
demonstration projects.
    Exclusions. The FCC's current regulations require that applicants 
follow ACHP procedures, as modified by the Nationwide Programmatic 
Agreements, to ascertain whether proposed facilities may affect 
historic properties. Those Agreements permit SHPOs, with the consent of 
Tribal Nations, to identify areas that might be excluded from Section 
106 review for communications towers. The FCC believes it would be 
useful to explore procedures for establishing such exclusions in a more 
systematic manner for PTC facilities located along appropriate segments 
of track. For example, some SHPOs have told the FCC that they consider 
railroad lines to be industrial corridors and that they expect active 
construction and installations in disturbed areas within these 
corridors. In order to define excluded activities, SHPOs and Tribal 
Nations will need to identify circumstances, and geographic areas, if 
they exist, where adverse effects to historic properties are unlikely 
to occur. Factors to consider in defining exclusions may include the 
depth of previous soil disturbance relative to the depth of planned 
excavations in the area, the nature of any human presence prior to the 
railroad, and the proximity of sensitive historic sites. For example, 
we would not expect to exclude a segment of rail line that runs on top 
of a known village site or close to a religious or cultural site. We 
recognize that the potential for exclusions may vary by region 
depending on many factors. Nonetheless, PTC facilities in certain 
portions of the Nation's railway bed may be excludable from routine 
section 106 review through this cooperative process.
    Scope of Review. For those constructions that are not excluded from 
section 106 review, the FCC anticipates that the scope of review would 
be generally similar to that specified under the existing Nationwide 
Programmatic Agreements. We invite ideas as to any efficiencies that 
may be appropriate for PTC wayside poles. For example, in light of the 
relatively short height and narrow profile of these poles, as well as 
their location near railroad tracks, are there circumstances where the 
Area of Potential Effects (APE) for visual effects should be less than 
the \1/2\ mile radius specified in the Nationwide Programmatic 
Agreement for all towers less than 200 feet in height? Are there 
circumstances where it would be efficient for the railroads to consider 
a linear APE along the track rather than a separate APE for each pole? 
Is it necessary to assess effects where the only historic property 
within the APE is the track itself and there are no special features 
within the APE?
    Review Process. The FCC recognizes that the process for reviewing 
the effects of proposed constructions on historic properties is unique 
to each construction and to each SHPO or Tribal Nation, and we are wary 
of unduly constraining their flexibility. However, we invite any ideas 
for efficiencies in the review process. In particular, we welcome 
thoughts on whether voluntary best practices or protocols might provide 
useful guidance on any aspects of review, including response times, 
identification of sites where monitoring of construction is necessary, 
and coordination where multiple parties request monitoring. Would 
voluntary best practices or protocols also be useful to help Tribal 
representatives determine appropriate compensation when acting in the 
capacity of a consultant, in accordance with ACHP guidance?
    Avoidance and Mitigation. Based on experience with the construction 
of towers for communications carriers, the FCC anticipates that a small 
percentage of the wayside poles will have adverse effects on historic 
properties and Tribal sites of religious and cultural significance. 
When adverse effects are

[[Page 65311]]

determined, ACHP rules require the action agency to consider avoidance, 
minimization, and mitigation. In the case of wayside poles, there will 
often be little potential for avoidance or minimization due to the 
limited flexibility to move the poles. We invite input as to whether it 
would be appropriate for the Program Comment to specify a simple 
protocol to quickly consider whether avoidance is possible at a 
particular site. Where avoidance is not possible, the FCC ordinarily 
works with the SHPO, affected Tribal Nations, and other consulting 
parties to find mitigation measures that provide a public benefit. We 
seek suggestions as to standard mitigation measures, either site-
specific or programmatic, that might facilitate this negotiation 
process in appropriate cases.

Next Steps and Contact Information

    The FCC will follow with information regarding meetings, webinars, 
or other structured opportunities for dialogue on the proposed Program 
Comment. This will include information about participation in the 
upcoming demonstration reviews. In the meantime, we welcome ideas from 
all interested parties and are happy to meet or talk with you.
    Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's rules, 
47 CFR 1.415, 1.419, interested parties may file comments and reply 
comments on or before the dates indicated on the first page of this 
document. Comments may be filed using the Commission's Electronic 
Comment Filing System (ECFS). See Electronic filing of documents in 
rules making proceedings, 63 FR 24121 (1998).
    [ssquf] Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.
    [ssquf] Paper Filers: Parties who choose to file by paper should 
file an original and one copy of each filing. If more than one docket 
or rulemaking number appears in the caption of this proceeding, filers 
should submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail. All filings must be addressed to the Commission's Secretary, 
Office of the Secretary, Federal Communications Commission.
    [ssquf] All hand-delivered or messenger-delivered paper filings for 
the Commission's Secretary must be delivered to FCC Headquarters at 445 
12th Street SW., Room TW-A325, Washington, DC 20554. The filing hours 
are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together 
with rubber bands or fasteners. Any envelopes and boxes must be 
disposed of before entering the building.
    [ssquf] Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
    [ssquf] U.S. Postal Service first-class, Express, and Priority mail 
must be addressed to 445 12th Street SW., Washington DC 20554.

    Federal Communications Commission.
Jane Jackson,
Associated Chief, Wireless telecommunications Bureau.
[FR Doc. 2013-26000 Filed 10-30-13; 8:45 am]
BILLING CODE 6712-01-P