FCC Circulates Draft Comment on Positive Train Control Review Exemptions, Expedited Clearance Process
The FCC circulated Wednesday night a draft program comment it plans to submit to the Advisory Council on Historic Preservation (ACHP) that seeks to streamline the FCC’s review process for wayside poles that railroads are building for the positive train control (PTC) safety system. The draft would also exempt some PTC infrastructure from review (http://bit.ly/1ffJpho). The FCC began developing the program comment last year amid railroads’ concerns they wouldn’t be able to meet Congress’s mandate to complete work on PTC infrastructure by Dec. 31, 2015. The railroads were concerned the existing preview process under Section 106 of the National Historic Preservation Act would not be able to expeditiously clear each of the more than 20,000 poles in time to meet the deadline (CD Dec 19 p2). An FCC official told us the railroads have “essentially agreed” that the rules in the program comment would create a timeline that “works for them to get everything into our system, reviewed by the tribes and the states and still allow them to get everything constructed by the statutory deadline."
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The program comment would exempt some PTC infrastructure from Section 106 review, including some new infrastructure being constructed within 50 feet of a railroad right-of-way already designated and actively used for communications towers and utility towers. PTC structures that are “similar” to structures that already exist on those rights of way would be exempt from review, provided they are not substantially larger in size than nearby existing structures and aren’t in the boundaries of a tribal historic property, the FCC said. The program comment would also allow the FCC to exempt wayside poles from review of potential effects “on the rails or the track bed.” Wayside poles “are unlikely to have significant or adverse effects upon such nearby track and track beds,” the FCC said. The poles would still be subject to a review of their effects on other railroad-related property determined eligible for inclusion on the National Register of Historic Places or are culturally or religiously significant to tribal nations, the FCC said.
The program comment would also allow railroads to seek a “batch” review of all poles with a county in some cases, rather than the typical site-by-site reviews. The FCC chose to allow county-by-county batch reviews because states and tribal nations typically indicate interest for items of cultural importance on a county-by-county basis, an FCC official said. Railroads seeking a “batch” review are required to submit their reviews through the Tower Construction Notification System and the E106 System, which respectively notify tribal nations and state historical preservation boards of proposed tower projects, the FCC said. Railroads would need to submit a map listing the location of all proposed wayside poles and topographical information about the pole’s location, as well as a cultural resources report prepared by a professional who meets Department of the Interior standards. Railroads may also want to prepare an ethnographic survey of the area around the proposed poles, since tribal nations commonly request those surveys anyway, the FCC said.
Wayside poles eligible for possible exemption from Section 106 review or for inclusion in a batch review can’t be more than 75 feet tall, require a foundation deeper than 15 feet, create a foundation hole more than 15 inches in diameter nor be situated outside a railroad’s right of way, the FCC said. The commission designated the area of potential effects (APE) around eligible wayside poles at a quarter-mile radius around the pole.
A tribal nation would have 40 days under the proposed program comment to identify any wayside pole in a batch submission that requires further review. The tribal nation and the requesting railroad would then have 15 days to attempt to resolve a tribal nation’s concerns about a particular site before they could bring it to the FCC for action. The FCC would then have 60 days to resolve the dispute, unless it deems more time is necessary. The program comment would allow the FCC to contact the tribal nation directly if the tribal nation does not respond to a batch review within the first 20 days, provided the requesting railroad attempts to follow up at least once, the FCC said. If the tribal nation does not respond to the FCC’s follow-up within 15 days, the commission will determine the tribal nation has no interest in the review. Federal agencies that have jurisdiction over land located within the APE around a pole site may respond only to a requesting railroad’s request to submit information to a state historical preservation board review within 30 days of the request, the FCC said.
The program comment would allow tribal nations that are asked to conduct a batch review to “seek recovery of expenses necessary to complete their review,” including paying for additional staff. An expedited review would place an “extraordinary burden” on a tribal nation’s cultural resource staff that justifies requiring a railroad to pay additional expenses upon request, the FCC said. The requesting railroad must also honor “reasonable” requests for tribal inspection of wayside pole construction sites, the FCC said.
The FCC is accepting public comment on the draft until Feb. 13 and expects to submit a finalized version to the ACHP on Feb. 26. The ACHP will have 45 days to consider the program comment, bringing the deadline for it to respond back to the FCC around April 14, FCC officials said. If the ACHP approves the program comment, railroads will be able to begin filing batch review applications and undergoing the revised tribal and state preservation board reviews, FCC officials said. The commission had advised in 2013 that most railroads not proceed with review requests until the FCC could issue the program comment (CD Aug 9 p9). An FCC official said the commission is not concerned about applicants jamming the review system with requests if the ACHP approves the program comment. The FCC took an “interim step” in December that allowed railroads that had participated in the commission’s tribal PTC consultations in Tulsa, Okla., and Rapid City, S.D., to submit review applications on sections of track discussed at the consultations, an FCC official said. “Those railroads are beginning to follow a process that will be very similar to the program comment process for areas of track that they identified as being priority areas that they would like to build on,” the FCC official said.
Several major industry stakeholders -- including PCIA, the American Public Transportation Association, the Association of American Railroads and the Joint Council on Transit Wireless Communications -- had urged the FCC to exempt new PTC infrastructure from Section 106 review or to streamline the review process. Jonathan Campbell, PCIA director-government affairs, told us he still needed to complete his review of the draft but noted that the FCC’s move to circulate it “is a major step forward. It’s something that gives industry and all the stakeholders something to sink their teeth into and move forward with a mutually agreeable process at the FCC. It’s definitely an important step.” An APTA spokeswoman said the group “is supportive of the program comment that was released by FCC last night.” AAR and the Joint Council did not comment.