Notice of Proposed Draft Program Comment To Exempt Effects of Transportation-Related Undertakings Within Rail Rights-of-Way, 54390-54402 [2017-25025]

Agencies

• Historic Preservation, Advisory Council

[Federal Register Volume 82, Number 221 (Friday, November 17, 2017)]
[Notices]
[Pages 54390-54402]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-25025]


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ADVISORY COUNCIL ON HISTORIC PRESERVATION


Notice of Proposed Draft Program Comment To Exempt Effects of 
Transportation-Related Undertakings Within Rail Rights-of-Way

AGENCY: Advisory Council on Historic Preservation.

ACTION: Notice of availability and request for comments.

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SUMMARY: The Advisory Council on Historic Preservation, in coordination 
with the U.S. Department of Transportation, proposes a program comment 
to exempt effects of transportation-related undertakings within 
railroad and rail transit rights-of-way. This program comment would 
exempt from Section 106 review certain activities that have the 
potential to affect historic properties within railroad and rail 
transit rights-of-way where those effects are likely to be minimal or 
not adverse. Further, this program comment includes an optional 
approach that could streamline the Section 106 review for additional 
types of transportation-related undertakings involving railroad and 
rail transit properties, including those that may cause adverse 
effects. Issuance of this program comment would fulfill the

[[Page 54391]]

requirements of Section 11504 of the Fixing America's Surface 
Transportation Act.

DATES: Submit comments on or before December 8, 2017.

ADDRESSES: Address all comments concerning the draft program comment to 
both the ACHP and the U.S. Department of Transportation's Federal 
Railroad Administration (FRA) by U.S. mail as follows: Charlene Dwin 
Vaughn, AICP, Office of Federal Agency Programs, Advisory Council on 
Historic Preservation, 401 F Street NW., Suite 308, Washington, DC 
20001-2637, and Laura Shick, U.S. Department of Transportation, Federal 
Railroad Administration, Office of Railroad Policy and Development, 
RPD-13, 1200 New Jersey Avenue SE., Washington, DC 20590. Comments may 
also be submitted through electronic mail to RailROW@achp.gov and 
FRA.106Exemption@dot.gov. Please submit comments to both the ACHP and 
FRA to ensure timely consideration.

FOR FURTHER INFORMATION CONTACT: Charlene Dwin Vaughn, Assistant 
Director, Federal Permitting, Licensing, and Assistance Section, Office 
of Federal Agency Programs, ACHP (202) 517-0207, cvaughn@achp.gov; 
Laura Shick, Federal Preservation Officer, Federal Railroad 
Administration, (202) 366-0340, laura.shick@dot.gov; or Sharyn LaCombe, 
Federal Preservation Officer, Federal Transit Administration, (202) 
366-5213, sharyn.lacombe@dot.gov.

SUPPLEMENTARY INFORMATION: Section 106 of the National Historic 
Preservation Act (``NHPA'') (54 U.S.C. 306108) requires federal 
agencies to take into account the effects of undertakings they carry 
out, license, permit, or assist on historic properties and provide the 
Advisory Council on Historic Preservation (``ACHP'') a reasonable 
opportunity to comment with regard to such undertakings. Historic 
properties are those that are listed on the National Register of 
Historic Places (``National Register'') or eligible for such listing. 
The definition of historic properties and other terms relevant to the 
proposed Section 106 program comment for railroad and rail transit 
rights-of-way (``rail ROW'') are provided in Section VI, Definition of 
Terms, and are consistent with the NHPA and the Section 106 
regulations.
    The Section 106 implementing regulations allow federal agencies to 
tailor the Section 106 process to meet their needs through a variety of 
program alternatives (36 CFR 800.14). Types of Section 106 program 
alternatives include program comments and exemptions. The process for 
establishing an exemption is detailed in 36 CFR 800.14(c). In 
accordance with 36 CFR 800.14(c)(1), the ACHP may approve an exemption 
for a program or category of undertakings if: (i) The actions within 
the program or category would otherwise qualify as ``undertakings'' as 
defined in 36 CFR 800.16; (ii) the potential effects of the 
undertakings within the program or category upon historic properties 
are foreseeable and likely to be minimal or not adverse; and (iii) 
exemption of the program or category is consistent with the purposes of 
the NHPA. The ACHP takes into account the magnitude of the exempted 
undertaking or program and the likelihood of impairment of historic 
properties in reviewing a proposed exemption. Further, at 36 CFR 
800.14(e), the Section 106 implementing regulations provide a process 
for the ACHP to issue a program comment. Through a program comment, the 
ACHP comments on a category of undertakings in lieu of conducting 
individual reviews under 36 CFR 800.4-800.6.
    Section 11504 of the Fixing America's Surface Transportation Act 
(``FAST Act'') (49 U.S.C. 24202), enacted on December 4, 2015, mandated 
the development of a Section 106 exemption for ``railroad rights-of-
way.'' The FAST Act requires that ``the Secretary [of the United States 
Department of Transportation (``USDOT'')] shall submit a proposed 
exemption of railroad rights-of-way from the review under section 
306108 of title 54 to the [ACHP] for consideration, consistent with the 
exemption for interstate highways approved on March 10, 2005 (70 FR 
11928).'' The FAST Act continues that, ``Not later than 180 days after 
the date on which the Secretary submits the proposed exemption. . .to 
the Council, the Council shall issue a final exemption of railroad 
rights-of-way from review under chapter 3061 of title 54 consistent 
with the exemption for interstate highways approved on March 10, 2005 
(70 FR 11928).'' While the Section 106 regulations provide the process 
and criteria for development of program alternatives, the FAST Act 
modified the timeframe and directed agency actions.
    This proposed Section 106 program comment includes an activities-
based exemption that would fulfill the FAST Act mandate by exempting 
certain routine transportation-related undertakings that occur within 
rail ROW. The list of activities proposed to be exempt from Section 106 
review is provided in Appendix A. Based on the past experience of USDOT 
Operating Administrations (``USDOT OAs''), undertakings limited to the 
activities specified in Appendix A have typically resulted in effects 
to historic properties that are either minimal or not adverse. In 
addition to incorporating exempt activities that meet the criteria 
specified in the Section 106 regulations at 36 CFR 800.14(c)(1), this 
program comment includes an optional, Project Sponsor-led property-
based approach that ultimately could provide additional streamlining 
for undertakings that may cause adverse effects.

I. Background

    The railroad industry in the United States has developed for nearly 
two centuries. Ongoing activities such as maintenance, improvements, 
and upgrades are necessary to allow rail infrastructure to continue to 
serve the transportation needs of the nation safely and efficiently. 
Further, these activities when carried out properly preserve the 
infrastructure and historic transportation purpose of moving goods and 
passengers. Most of the nation's railroads are privately-owned and 
maintained through the continuous investments of private owners. 
According to the Association of American Railroads (AAR), privately-
owned freight railroads spent more than $630 billion on rail equipment 
and infrastructure, including tracks, bridges, and tunnels, during the 
36-year period from 1980 to 2016.\1\
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    \1\ https://www.aar.org/Pages/Railroad-101.aspx.
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    The federal government also makes substantial investments in and 
has oversight of the nation's railroads and rail transit systems. This 
includes maintaining and expanding intercity passenger rail, rail 
transit, and freight rail services, and regulating and improving the 
safety and efficiency of rail operations. USDOT serves both an 
investment (e.g., grants, loans) role and a regulatory and safety 
oversight role, with activities carried out most frequently by the 
following USDOT OAs: The Federal Railroad Administration (``FRA''), the 
Federal Transit Administration (``FTA''), and the Federal Highway 
Administration (``FHWA'').
    For example, FRA provides financial and technical assistance for 
planning and infrastructure projects that enable the nation's railroads 
to move passengers and goods across the United States. FRA's 
investments are principally, but not exclusively, in support of 
intercity passenger rail operations and often provide financial 
assistance for maintenance, improvements, and upgrades to railroad 
infrastructure, equipment, and

[[Page 54392]]

technologies, including those focused on improving the safety of 
railroad operations and roadway/railroad grade crossings, as well as 
for research and development activities and training. FTA provides 
financial and technical assistance to transit agencies for investment 
in public transportation systems that include various forms of rail 
transit that occupy existing or former rail ROW, such as heavy rail, 
commuter rail, streetcar, and light rail. FHWA supports state, local, 
and tribal governments and federal agencies in the design, 
construction, and maintenance of the nation's highway systems. Highways 
frequently cross over, go under, or are parallel to rail ROW, requiring 
extensive coordination between the entities responsible for the highway 
and the railroad or rail transit lines, including safety 
considerations. FHWA's Railway-Highway Crossings Program \2\ provides 
funds for safety improvements to reduce the number of fatalities, 
injuries, and crashes at public railway-highway grade crossings.
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    \2\ https://safety.fhwa.dot.gov/xings/.
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    On June 5, 2008, a congressional hearing before the Subcommittee on 
Railroads, Pipelines, and Hazardous Materials, within the House 
Committee on Transportation and Infrastructure, included testimonies by 
the ACHP, the Alaska Railroad Corporation, the National Conference of 
State Historic Preservation Officers (``NCSHPO''), the National Trust 
for Historic Preservation (``NTHP''), the North Carolina Department of 
Transportation, and the Rails-to-Trails Conservancy.\3\ The purpose of 
the hearing was to consider whether federal requirements for the 
preservation of historic properties created unnecessary delays and 
administrative burdens for improvements to rail infrastructure. This 
hearing revealed that while the nation's railroad system is 
historically important, the existing federal review process in some 
cases could be carried out more efficiently to expedite project 
delivery. As a result, Congress mandated a study to explore these 
issues and to recommend solutions.
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    \3\ The Historic Preservation of Railroad Property and 
Facilities: Hearing before the Subcommittee on Railroads, Pipelines, 
and Hazardous Materials of the Committee on Transportation and 
Infrastructure House of Representatives, 110th Congress, 2008.
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    Pursuant to Section 407 of the Passenger Rail Investment and 
Improvement Act of 2008 (``PRIIA''), FRA, in partnership with other 
USDOT OAs, state departments of transportation (``state DOTs''), and 
historic preservation organizations and agencies, including the ACHP, 
NCSHPO, and NTHP, conducted a study assessing the current state of 
historic preservation for federally funded railroad projects and the 
potential for expediting compliance with Section 106 and Section 4(f) 
(23 U.S.C. 138, 49 U.S.C. 303). In 2013, FRA submitted to Congress the 
resulting study, titled ``Streamlining Compliance with Section 4(f) of 
the Department of Transportation Act and Section 106 of the National 
Historic Preservation Act for Federally Funded Railroad Infrastructure 
and Improvement Projects'' (``2013 FRA Study'').\4\
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    \4\ Report to Congress: Streamlining Compliance with the Section 
4(f) of the Department of Transportation Act and Section 106 of the 
National Historic Preservation Act for Federally Funded Railroad 
Infrastructure Repair and Improvement Projects, Federal Railroad 
Administration, March 2013, https://www.fra.dot.gov/eLib/details/L04483.
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    The 2013 FRA Study drew upon the experiences shared by the 
participating agencies and organizations, SHPOs, and other 
stakeholders, and on best practices and data extrapolated from case 
studies. The 2013 FRA Study concluded that there is no consistent 
approach on how to address the National Register eligibility of 
railroad corridors or how to avoid, minimize, or mitigate impacts to 
individual rail properties along a corridor once it is determined to be 
eligible for the National Register. The lack of consistency was 
attributed to a multitude of entities conducting National Register 
evaluations, including SHPOs, Tribal Historic Preservation Officers 
(``THPOs''), federal agencies, consultants, state DOTs and railroad and 
rail transit operators. These inconsistency issues raised concerns 
regarding the lack of specific nationwide guidance for identifying, 
evaluating, and classifying rail properties and differentiation based 
on likely importance of particular historic resources on the part of 
each evaluator. This variety of approaches leads to inconsistent 
standards for evaluation and procedures to consider and address 
impacts, an overly burdensome process, delays in project delivery, and 
some projects failing to advance. The substantial experience of USDOT 
OAs over the years in funding maintenance, improvements, and upgrades 
to railroads and rail transit systems, and highway/rail grade 
crossings, has provided further evidence of this conclusion. 
Furthermore, the experience of USDOT OAs has been that undertakings 
involving maintenance, improvements, and upgrades to rail 
infrastructure often do not result in adverse effects to historic 
properties under Section 106 when early planning involves diverse 
stakeholders.
    The 2013 FRA Study offered several streamlining recommendations, 
including the development of a Section 106 administrative exemption and 
a program comment. In 2015, Congress mandated a proposed administrative 
exemption in the FAST Act and directed USDOT that the exemption be 
consistent with the Interstate Highway Exemption. Developed by FHWA and 
approved by the ACHP in 2005, the Section 106 exemption for the 
Interstate Highway System acknowledges ``the importance of the 
Interstate System in American history, but also recognizes that ongoing 
maintenance, improvements and upgrades are necessary to allow the 
system to continue to serve the transportation needs of the nation.'' 
\5\ Further, the concept for the exemption for the Interstate Highway 
System stated that, ``While actions carried out by federal agencies to 
maintain or improve the Interstate System will, over time, alter 
various segments of the system, such changes are considered to be 
`minimal or not adverse' when viewing the system as a whole. Moreover, 
the exemption does not apply to certain historically important elements 
of the system.'' Therefore, in exempting only certain effects of 
undertakings to the interstate highway system, the exemption met the 
requirements of 36 CFR 800.14(c)(1).
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    \5\ Exemption Regarding Historic Preservation Review Process for 
Effects to the Interstate Highway System, 70 FR 11928, Mar. 10, 
2005.
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    In accordance with Section 11504 of the FAST Act, the USDOT, led by 
FRA and FTA, proposed to the ACHP in July 2017 a Section 106 exemption 
that would have applied to certain types of undertakings within rail 
ROW that would result in effects to rail properties that were likely to 
be minimal or not adverse. FRA's and FTA's proposed exemption drew upon 
the collective expertise and experience of the USDOT OAs and 
acknowledged the unique history, construction, and technological 
improvements of railroads and rail transit systems. The exemption as 
initially drafted also included an optional Project Sponsor-led 
property-based approach that could have streamlined the review process 
for other types of undertakings having the potential to adversely 
affect historic properties.
    To develop the proposed exemption, FRA and FTA held early 
coordination meetings with the ACHP, NCSHPO, and NTHP. The purpose of 
these meetings was to discuss the most effective approach to an 
exemption that would satisfy the FAST Act requirement. It was also 
identified during these meetings that more information on the history 
of

[[Page 54393]]

rail transit development in the country was needed to have comparable 
information to what was contained in FRA's 2013 Study. Subsequently, in 
2017 FTA prepared a broad historic context report entitled, ``Historic 
Context Report for Transit Rail System Development.'' \6\ Also during 
the early coordination meetings, the ACHP, NCSHPO, and USDOT 
acknowledged that opportunities for stakeholder outreach would be 
provided to obtain input from railroad and rail transit industries, 
state agencies (e.g., state DOTs), SHPOs and THPOs, Indian tribes and 
Native Hawaiian organizations, and historic preservation interest 
groups.
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    \6\ https://www.transit.dot.gov/regulations-and-guidance/environmental-programs/historic-context-report-transit-rail-system.
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    FRA's and FTA's original approach to the proposed exemption was to 
treat the ROW in which railroads and rail transit systems operate as a 
resource unto itself that would be exempt from Section 106 review. FRA 
and FTA conducted outreach to discuss and seek feedback from 
stakeholders regarding how such a property-based approach might be 
developed and implemented. The ACHP expressed concern that a property-
based approach would exceed the limit of its authority to exempt 
activities under 54 U.S.C. 304108(c) and 36 CFR 800.14(c)(1) because it 
did not define the program or category of undertakings that would be 
subject to its terms and as proposed, it could allow adverse effects to 
historic properties without requiring Section 106 review. The ACHP 
recommended that FRA and FTA take an activities-based approach to the 
Section 106 exemption that focused on routine undertakings involving 
rail properties located within rail ROW, with effects that would be 
foreseeable and likely to be minimal or not adverse. This 
recommendation was echoed in comments submitted to FRA and FTA by 
numerous stakeholders, particularly from the preservation community. 
The ACHP also recommended FRA and FTA consider developing a separate 
program comment to provide for the property-based approach along a 
parallel track.
    Subsequently, in response to the concerns and requests of Project 
Sponsors, particularly transportation stakeholders, that the program 
alternative should include the flexibility to address a broader range 
of undertakings and effects to historic properties, FRA, FTA, and the 
ACHP decided to incorporate the proposed activities-based exemption 
within a proposed program comment in order to restore the two-part 
concept within a single program alternative, including the property-
based approach, as originally proposed by FRA and FTA. The proposed 
program comment recognizes that many properties in the national 
railroad network and rail transit systems have historic significance 
and that important historic rail properties (as defined in the draft 
program comment, Section VI: Definition of Terms) located within rail 
ROW should remain subject to Section 106 review when proposed 
undertakings cannot avoid adverse effects on such properties.
    The proposed program comment is intended to balance the need for 
continued safe and efficient transportation with the goals of historic 
preservation, and takes into account the differences between the 
Interstate Highway System and railroad and rail transit operations. 
Each railroad and rail transit system has its own unique history of 
construction and operation, including private or public ownership; 
periods of economic success; opening of key markets or geographic 
areas; and improvements, acquisition, and consolidation or abandonment. 
Many buildings and structures within rail ROW followed the common 
standard plans of a specific carrier, but there were exceptions for 
individual buildings, bridges, and other structures that may have 
unique qualities or unusual design characteristics. Similarly, many 
rail corridors follow a simple natural grade and alignment, but there 
were exceptions made for difficult terrain, climate, and topography 
that may have involved unique or unusual engineering techniques and 
structures. Railroads have been adapted to accommodate modern freight, 
passenger train operations, higher speeds, and much heavier freight 
loads than those for which the original rail infrastructure was 
designed and built. Finally, rail ROW is typically privately-owned, 
making it challenging or impossible to perform the cultural resources 
surveys usually necessary to develop a comprehensive inventory of rail 
properties.
    The nation's rail ROW and rail properties located therein have a 
long history, dating to the mid-1800s, and maintenance, improvements, 
and upgrades are necessary to their preservation and continued safe 
use. These activities have occurred and continue to occur regularly 
within rail ROW to maintain the efficient use and safety of the 
nation's railroads, rail transit systems, and roads; and support the 
continued function for which surface transportation is historically 
important.

II. Program Comment Concept

    The continued operation of railroads and rail transit systems is 
vital to enabling the efficient and safe movement of people and goods 
throughout America. Various linear segments of rail lines, as well as 
individual buildings and structures along those rail lines, were 
determined eligible for and/or listed on the National Register prior to 
Congress's mandate to develop a Section 106 exemption for rail ROW.
    A primary objective of the proposed program comment is to expedite 
certain types of maintenance, improvements, and upgrades to railroad 
and rail transit infrastructure located within rail ROW that typically 
have not resulted in adverse effects to historic properties based on 
years of experience gained through the Section 106 consultations among 
USDOT OAs, SHPOs, and consulting parties for individual undertakings. 
Under such an approach, fewer routine undertakings involving rail 
properties would be subject to Section 106 review thereby enabling 
federal agencies to focus their time and resources on undertakings that 
have the potential to cause adverse effects on historic properties. 
Federal agency staff, Project Sponsors, SHPOs, THPOs, and other 
stakeholders would be able to devote more time and resources to 
developing solutions that avoid, minimize, or resolve adverse effects 
to important historic rail properties and non-rail historic properties 
located within an undertaking's Area of Potential Effects (``APE'').
    Recognizing the concerns and needs of industry stakeholders and 
seeking to achieve further efficiencies in project reviews, the ACHP, 
FRA and FTA incorporated the originally proposed exemption into a 
different program alternative under 36 CFR 800.14: a program comment. 
Unlike an exemption, which the ACHP can only approve for undertakings 
that have effects to historic properties that are foreseeable and 
likely to be minimal or not adverse, a program comment may provide an 
optional alternative process for compliance with Section 106 for a 
category of undertakings, including those that may result in adverse 
effects. Therefore, the proposed program comment includes both an 
activities-based exemption and an optional Project Sponsor-led approach 
to identify important historic rail properties and streamline the 
review process for other transportation-related activities. It is 
important to note that this Project Sponsor-led approach would require 
an investment of time and resources and

[[Page 54394]]

would not likely result in immediate efficiencies as would the approval 
of the list of exempted activities under Appendix A. To ensure the 
requirements of the FAST Act are met, the program comment would 
incorporate the substance of the exemption for certain activities 
within rail ROW, as well as add the property-based approach as 
envisioned by FRA and FTA and discussed during the agencies' outreach 
to stakeholders in late 2016 and early 2017.
    Given the unique history of the rail industry and the challenge of 
conducting the cultural resources surveys that would be needed to 
develop a comprehensive nationwide inventory of rail properties 
(including restrictions regarding access to privately-owned rail ROW, 
the extensive linear miles of rail ROW nationwide, and the number of 
qualified professionals and financial resources that would be needed), 
it is not feasible for USDOT OAs or Project Sponsors to identify all 
important historic rail properties nationwide concurrently with the 
development of this program alternative. The program comment would 
include a modified review process for transportation-related 
undertakings that would only apply after completion of the optional 
Project Sponsor-led approach to identify important historic rail 
properties within a study area.
    Under the program comment, Project Sponsors, in coordination with 
the appropriate USDOT OA(s), the ACHP, NCSHPO, individual SHPOs/THPOs, 
NTHP, railroad and rail transit operators, state DOTs, and other 
appropriate stakeholders, would have the option to follow an 
established process to develop a list of important historic rail 
properties within a designated study area. The Project Sponsor would 
ensure that the public would be given an opportunity to provide input 
on the proposed list of such properties. The appropriate USDOT OA(s), 
in consultation with Project Sponsors, the ACHP, SHPOs/THPOs, and other 
stakeholders, would confirm the significance and integrity of these 
important historic rail properties consistent with National Register 
criteria.
    The intent of this optional Project Sponsor-led identification and 
evaluation effort would be to (1) revisit those rail properties that 
have been previously determined eligible for listing or listed on the 
National Register to confirm that the property meets one or more of the 
National Register eligibility criteria, retains integrity, and is 
considered important (as defined in Section VI, Definitions of Terms), 
and (2) identify previously unevaluated rail properties located within 
the study area that should be recognized as important historic rail 
properties. Once the identification process is complete, federal 
agencies would be able to carry out, license, permit, or assist 
transportation-related undertakings that meet the terms listed in the 
Program Comment without further Section 106 review.
    Project Sponsors could benefit from this optional property-based 
approach because it would expedite Section 106 reviews for non-routine 
undertakings through the early identification of and agreement on 
important historic rail properties located in rail ROW. The upfront 
identification of such properties would allow Project Sponsors to plan 
for and design projects within rail ROW in a manner that could avoid or 
minimize effects to such important properties. Furthermore, if a 
Project Sponsor completes the process to identify important historic 
rail properties, another review efficiency would apply. Future 
transportation-related activities within the same study area that 
require a license, permit, or assistance from any federal agency and 
that would affect rail properties that are not included on a USDOT OA-
approved list of important historic rail properties would not be 
subject to further Section 106 review.
    The lead federal agency for a proposed transportation-related 
undertaking in rail ROW will be responsible for determining if the 
program comment applies. Approval by the lead federal agency would be 
required in the form of written approval or through another established 
review and decision-making process normally used by the lead federal 
agency (e.g., grant-making processes or permit issuance).

III. Public Participation

    In accordance with 36 CFR 800.14(e)(2), USDOT, in coordination with 
the ACHP, is arranging for public participation appropriate to the 
subject matter and scope of the category of undertakings to be included 
within this program comment. This notice invites the public to comment 
on the proposed draft program comment.
    In addition to this notice, FRA and FTA have previously solicited 
the views of a diverse group of stakeholders and subject matter 
experts. While that outreach was conducted with the intent to develop a 
Section 106 exemption (as defined in 36 CFR 800.14(c)), the substance 
of FRA's and FTA's original proposal is essentially the same as the 
content of the draft program comment that is being made available for 
public review and comment in this notice. This outreach included in-
person meetings, webinars followed up with attendees' submittal of 
written comments and questions, teleconferences, and presentations at 
national transportation conferences with representatives from the 
following: USDOT OAs, the ACHP, NCSHPO, the National Association of 
Tribal Historic Preservation Officers, NTHP, tribal governments, 
individual SHPOs and their staff, THPOs, and state DOTs; national 
transportation associations (e.g., AAR, American Public Transportation 
Association); private railroad companies; intercity passenger rail 
service providers (e.g., Amtrak) and rail transit agencies; the Surface 
Transportation Board (STB); \7\ and historic preservation organizations 
(e.g., American Cultural Resources Association). These agencies and 
organizations shared their unique and varied perspectives and concerns 
and provided valuable feedback. Prior to transitioning the approach 
from an exemption to a program comment and when proposing to request an 
exemption, in response to the ACHP's recommendation to satisfy its 
consultation responsibilities under 36 CFR 800.14(c)(3), FRA and FTA 
provided a draft exemption to all SHPOs and THPOs for review and 
requested their feedback regarding any significant issues. Pursuant to 
36 CFR 800.14(c)(4), the ACHP shared a draft of the proposed exemption 
with Indian tribes and Native Hawaiian organizations and hosted two 
conference calls to solicit their input and feedback. Comments were 
received from nine SHPOs and 14 tribes in October 2017. FRA and FTA 
considered these comments and made further revisions to the draft of 
the proposed exemption primarily to clarify the scope of the proposed 
exemption to make it clear that the focus was strictly on rail 
properties and would not apply to other types of historic properties 
that could be located within or adjacent to rail ROW. FRA and FTA also 
refined some of the proposed exempted activities in Appendix A in 
response to comments from SHPOs and Indian tribes, but did not 
eliminate any activities from the draft list because the agencies felt 
that all stakeholders should have the opportunity to review and provide

[[Page 54395]]

comments. The draft exemption shared with SHPOs, THPOs, Indian tribes, 
and Native Hawaiian organizations in September and October 2017 focused 
only on exempted activities and did not include the optional Project 
Sponsor-led approach for identifying important historic rail 
properties.
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    \7\ The Surface Transportation Board (STB) is an independent 
agency that has broad economic regulatory oversight of the nation's 
freight rail system and jurisdiction over railroad rate and service 
issues; new rail line constructions; abandonments of existing rail 
lines; and railroad mergers and line acquisitions. Refer to STB's 
Web site at https://www.stb.gov/stb/about/overview.html.
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    The feedback received over the past year has been helpful in 
informing the development of the proposed program alternative and 
generally related to the following topics: (1) The scope, 
applicability, and implementation of exempt activities; (2) how 
important historic rail properties could be identified; (3) what types 
of resources, including archaeological sites, should explicitly not be 
covered by the program alternative; and (4) developing and clarifying 
the definitions of terms used in the proposed exemption. FRA and FTA 
used this feedback to refine the proposed list of exempt activities 
included in Appendix A and to revise key definitions (such as the 
definition of rail ROW). As FRA and FTA refined the approach to and 
scope of the proposed exemption based on stakeholder input, they 
determined that certain actions, such as those approved by STB (e.g., 
rail line abandonments, new rail line constructions) as well as 
conversion of rail ROW to shared use (e.g., bicycle, pedestrian) trails 
(sometimes referred to as ``rails-to-trails'' initiatives), have the 
potential to cause adverse effects or greater than minimal effects on 
historic properties, and therefore are not appropriate for inclusion in 
the proposed list of exempt activities included in Appendix A. The 
fundamental purpose of the proposed exempted activities list is to 
enable federal agencies to expedite reviews and approvals of proposed 
transportation-related undertakings for certain types of maintenance, 
improvements, and upgrades to railroad and rail transit infrastructure; 
accordingly, FRA and FTA expect that these activities would primarily 
involve extant buildings, structures, and equipment in existing rail 
ROW. Therefore, and in consideration of stakeholder comments received 
to date, FRA and FTA determined that effects to archaeological 
resources of any nature, including those associated with railroads and 
rail transit, should not be covered by the proposed exemption. Lastly, 
in response to feedback from NCSHPO and several individual SHPOs, the 
draft program comment includes an annual reporting requirement to help 
assess the effectiveness of Section 106 review streamlining as well as 
to help ensure that the program comment's terms are being appropriately 
applied.
    In addition to providing substantive comments regarding the scope 
and content of the proposed exemption, some SHPOs questioned the type 
of Section 106 program alternative itself. The FAST Act specifically 
mandates development of an exemption; however, after further 
consideration and in order to fulfill the intent of that statutory 
mandate, USDOT and the ACHP have revised the exemption to this draft 
program comment. The program comment would have a broader scope and 
include more types of undertakings than would have the exemption.

IV. Proposed Text of the Program Comment

    The following is the draft text of the proposed program comment:

Program Comment To Exempt Effects of Transportation-Related 
Undertakings Within Rail Rights-of-Way

    Section 106 of the National Historic Preservation Act (``NHPA''), 
54 U.S.C. 306108 (``Section 106''), requires federal agencies to ``take 
into account'' 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 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 provide a ``program comment'' on a particular category of 
undertakings in lieu of conducting separate reviews of each individual 
undertaking under such category, as set forth in 36 CFR 800.3 through 
800.7. Federal agencies can meet their Section 106 responsibilities 
with regard to the effects of transportation-related undertakings on 
rail properties located in railroad and rail transit rights-of-way 
(``rail ROW'') by following this program comment and the steps set 
forth therein.

I. Introduction

    This program comment exempts from Section 106 review the activities 
listed in Appendix A provided the conditions specified therein are met. 
It also establishes an optional Project Sponsor-led property-based 
approach. This optional approach could be followed to identify 
important historic rail properties in rail ROW in advance of specific 
transportation-related undertakings. Undertakings affecting such 
important historic rail properties and that involve activities not 
included in Appendix A would remain subject to Section 106 review, in 
order to ensure potential adverse effects are avoided, minimized, or 
mitigated. However, the optional property-based approach, described in 
Section IV below, if completed by an interested Project Sponsor, would 
also create efficiencies by (1) allowing transportation-related 
undertakings proposed to be carried out, licensed, permitted, or 
assisted by any federal agency to proceed without Section 106 review if 
the affected rail property(ies) is not on the USDOT OA-approved list of 
important historic rail properties and (2) providing Project Sponsors 
with an early awareness of which rail properties are important so that 
they could design projects in a manner to either avoid adverse effects 
or to factor sufficient time into project planning and design to 
resolve any unavoidable adverse effects.
    The proposed program alternative has been developed in accordance 
with section 11504 of the FAST Act (49 U.S.C. 24202). Section 11504 
mandated the development of a Section 106 exemption for ``railroad 
rights-of-way.'' More specifically, it required the Secretary of 
Transportation to submit a proposed exemption to the ACHP for 
consideration, and for the ACHP to issue a final exemption not later 
than 180 days after the date of receipt of U.S. Department of 
Transportation's (``USDOT's'') submittal.
    Pursuant to 36 CFR 800.14(e), the ACHP can issue a program comment 
on its own initiative or at the request of another agency. This program 
comment would provide the ACHP's comment on those transportation-
related undertakings that may affect rail properties within rail ROW. 
If a federal agency responsible for carrying out, licensing, 
permitting, or assisting such an undertaking with the potential to 
affect rail-related historic properties meets the terms of this program 
comment, its Section 106 responsibility to take into accounts those 
effects would be satisfied.
    Under 36 CFR 800.14(c), an exemption from Section 106 for federal 
undertakings must be consistent with the purposes of the NHPA. 
Furthermore, in order to be exempted, the potential effects of those 
undertakings on historic properties must be ``foreseeable and likely to 
be minimal or not adverse.'' The substance of USDOT's originally 
proposed exemption, incorporated within this program comment, meets 
these criteria. The transportation-related undertakings that federal 
agencies carry out, license, permit, and assist to

[[Page 54396]]

maintain, improve, or upgrade rail properties located within rail ROW 
will alter over time various elements of rail ROW, but such changes are 
minimal or not adverse when viewing rail ROW as a whole and when 
limited to the activities specified in Appendix A.

II. Applicability

    The program comment would apply to (1) those undertakings that are 
strictly limited to the activities listed in Appendix A and are carried 
out, licensed, permitted, or assisted by any federal agency and involve 
rail properties located within existing rail ROW; and (2) any 
transportation-related undertaking that would be carried out, licensed, 
permitted, or assisted by any federal agency and meets the terms for 
the completed optional Project-Sponsor led approach to identify 
important historic rail properties. The activities listed in Appendix A 
are for the intended purpose of routine maintenance, improvements, and 
upgrades to transportation infrastructure. Should the Program Comment 
be issued by the ACHP, federal agencies would be able to proceed with 
carrying out, licensing, permitting, or assisting undertakings that are 
limited to the activities listed in Appendix A and that meet the 
certain conditions specified therein without further Section 106 review 
regardless of whether the rail properties involved or affected are 
eligible for or listed on the National Register. Undertakings involving 
activities that are not included in Appendix A would not be included 
within the proposed exemption section of the program comment (e.g., 
demolition; decommissioning, abandonment and/or conversion of rail 
infrastructure to a non-transportation use; double-tracking a 
historically single-tracked rail corridor; major new construction 
activities such as construction of a new or substantially expanded 
passenger station; or construction of a new railroad or rail transit 
line on new right-of-way (commonly referred to as ``greenfield 
construction'')). However, some of these activities may fall within the 
other section of the program comment regarding the optional Project 
Sponsor-led property-based approach.
    Activities requiring a federal license, permit, or assistance that 
are not listed in Appendix A but constitute a transportation-related 
undertaking with the potential to affect rail properties located within 
rail ROW, as defined in Section VI, Definitions of Terms, would not 
require Section 106 review provided the optional Project Sponsor-led 
approach for identifying important historic rail properties has been 
completed for a defined study area and the affected rail property(ies) 
within that study area are not included on a USDOT OA-approved list of 
important historic rail properties.
    If the optional Project Sponsor-led approach to identify important 
historic rail properties has been completed for a defined study area, 
transportation-related undertakings involving activities that are not 
included in Appendix A and would affect properties included on a USDOT 
OA-approved list of important historic rail would require Section 106 
review. This would ensure that potential adverse effects to important 
historic rail properties are appropriately avoided, minimized, or 
mitigated consistent with the purposes of the NHPA.
    Federal agencies remain responsible for determining whether a 
proposed undertaking, including those activities listed in Appendix A, 
has the potential to cause effects to non-rail historic properties, 
such as those of religious and cultural significance to Indian tribes 
or Native Hawaiian organizations or archaeological sites of any nature, 
in the undertaking's APE. If a federal agency determines such potential 
exists, the federal agency must follow the requirements of 36 CFR part 
800 or follow an applicable program alternative executed pursuant to 36 
CFR 800.14 in order to consider the potential effects to such 
properties located within that APE.
    Under the Surface Transportation Project Delivery Program, codified 
at 23 U.S.C. 327, a state may assume the Secretary of Transportation's 
responsibilities to comply with Section 106 for certain projects or 
classes of projects. In such cases, the state may rely on this program 
comment to fulfill its Section 106 responsibilities. Where a program 
alternative developed pursuant to 36 CFR 800.14, such as a statewide 
programmatic agreement, delegates Section 106 responsibility to another 
entity, that entity may also utilize the terms of this program comment 
for relevant transportation-related undertakings.

III. Activities Exempt From Section 106 Review

    Undertakings that are carried out by a federal agency or require a 
federal license, permit, or assistance to maintain, improve, or upgrade 
rail properties located in railroad and rail transit rights-of-way 
(``rail ROW'') and are limited to the activities specified in Appendix 
A: Exempted Activities, are exempt from the requirements of Section 106 
of the National Historic Preservation Act, 54 U.S.C. 306108 (``Section 
106'') because their effects on rail historic properties are 
foreseeable and likely to be minimal or not adverse.

IV. Optional Project Sponsor-Led Property-Based Approach

    If a Project Sponsor wishes to carry out a transportation-related 
activity that requires a federal license, permit, or assistance and is 
not included in Appendix A and therefore has the potential to cause 
adverse effects to historic rail properties, it must either: (1) Notify 
the lead federal agency, which will then determine whether the standard 
Section 106 process or an available program alternative applies to the 
proposed undertaking; or (2) follow the Project-Sponsor led approach 
outlined in this section to identify important historic rail 
properties. Important historic rail properties, as defined further in 
Section VI, are individual rail properties or rail property types that 
meet the National Register eligibility criteria (36 CFR part 63), 
illustrate the history of the development of the nation's railroads or 
rail transit systems, and either possess national significance or are 
of certain state or local importance.
    Given the variety and number of rail properties nationwide, the 
fact that many systems cross state boundaries, and the challenges of a 
``one size fits all'' nationwide approach, important historic rail 
properties would be initially identified within defined study areas by 
Project Sponsors that wish to get additional benefit from this program 
comment beyond the list of exempted activities included in Appendix A. 
The process would intentionally provide a great deal of flexibility for 
Project Sponsors to identify important historic rail properties to meet 
state and local needs and interests and to take into account state and 
local historic contexts. Within six months of the ACHP's issuance of 
the final Program Comment, FRA, FTA, and FHWA, in coordination with the 
ACHP, and other federal agencies who may have an interest in utilizing 
the Program Comment (e.g., permitting agencies such as US Army Corps of 
Engineers or US Coast Guard), will develop supplemental guidance for 
implementing the optional Project Sponsor-led property-based approach 
described below to identify important historic rail properties.

A. Process for Identifying Important Historic Rail Properties

    1. Individual Project Sponsors or multiple Project Sponsors working 
collaboratively must clearly identify the study area to be subject to 
this process: The portion of rail ROW (i.e., by

[[Page 54397]]

location (state, county); name of rail corridor, railroad, rail transit 
system or line; mile-post information; etc.). Project Sponsors must 
propose to the appropriate USDOT OA(s) (i.e., FRA, FTA and/or FHWA), 
rail properties to be included on a list of important historic rail 
properties. To develop such a list, Project Sponsors will consult with 
the appropriate USDOT OA(s), appropriate State Historic Preservation 
Officers (``SHPOs''), appropriate Tribal Historic Preservation Officers 
(``THPOs''), and other interested parties, i.e. those parties that 
would typically be involved in the standard Section 106 process to 
identify historic properties as specified in 36 CFR 800.4(a)-(c), that 
have knowledge and expertise regarding rail properties and of the 
history and operations of the nation's railroads and rail transit 
systems. The proposed list of important historic rail properties may 
include particular individual properties (i.e., a building, structure, 
object, or district) or a property type (e.g., bridges of a certain 
type (stone arch, metal truss, covered, or moveable); roundhouses). The 
Project Sponsor's efforts to develop a list of important historic rail 
properties will be informed by available background research, historic 
context studies, surveys and evaluations performed by persons meeting 
the Secretary of the Interior's Professional Qualification Standards 
for Architectural Historians, and other relevant documentation and 
professional experience and expertise.
    2. Once a Project Sponsor proposes a list of important rail 
properties located within a study area, the Project Sponsor will 
coordinate with the appropriate USDOT OA(s) to determine an appropriate 
method(s) for seeking public input on the proposed list and to 
determine which entity(ies) will be responsible for implementing the 
agreed-upon public outreach strategy. The Project Sponsor and/or the 
USDOT OA(s), as appropriate, will then implement the agreed-upon 
strategy. The USDOT OA(s) will consider input from interested parties 
and the public before approving the list of important historic rail 
properties.
    3. The USDOT OAs make the final decision regarding the list of 
important historic rail properties within each study area, and will 
publish all finalized lists on their respective agency Web sites 
(www.fra.dot.gov, www.fta.dot.gov, or www.fhwa.dot.gov). The relevant 
USDOT OA will update the list anytime a Project Sponsor completes the 
process described herein to identify important historic rail properties 
located within another study area.
    4. Once approved by the appropriate USDOT OA(s), the list of 
important historic rail properties will be available for use by any 
Project Sponsor and any federal agency.

B. No Further Section 106 Review Required

    Should any of the exempted activities in Appendix A referred to in 
Section III be proposed and affect important historic rail properties 
included on a USDOT OA-approved list, no further Section 106 review 
would be required for those activities.
    For rail properties in a given study area that are not included on 
a USDOT OA-approved list of important historic rail properties, the 
effects of transportation-related undertakings to those rail properties 
would be exempt from Section 106 review.

V. Continued Applicability of Section 106

    Section 106 review is still required for transportation-related 
undertakings within rail ROW in the following situations under both the 
activities-based exemption and Project Sponsor-led property-based 
approach:
    A. Undertakings that are located within, or would affect historic 
properties located on tribal lands;
    B. Undertakings, within a study area that has completed the 
optional Project Sponsor-led approach that involve activities that are 
not included in Appendix A and would affect important historic rail 
properties
    C. Undertakings that could affect historic buildings, structures, 
sites, objects, or districts that do not have a demonstrable 
association with the function and operation of a railroad or rail 
transit system;
    D. Undertakings that could affect archaeological sites located 
within, partially within, or bisected by rail ROW, regardless of 
whether the sites are associated with railroads or rail transit 
systems; \8\ and
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    \8\ Examples include: Archaeological remains of non-extant rail 
properties that have been determined eligible for the National 
Register under Criterion D or warrant evaluation for such 
eligibility because they may yield data and information on the 
development and operation of railroads and rail transit systems in 
U.S. history; archaeological sites that represent worker camps 
associated with the construction of a railroad and have been 
determined eligible for the National Register under Criterion A or 
warrant evaluation for such eligibility; prehistoric or historic 
archaeological sites that pre-date construction of a railroad or 
rail transit line and are historically significant for reasons that 
do not have a nexus with rail transportation.
---------------------------------------------------------------------------

    E. Undertakings that could affect historic properties of religious 
and cultural significance to federally recognized Indian tribes or 
Native Hawaiian organizations.
    In addition, federal agencies remain responsible for determining 
whether a proposed undertaking has the potential to cause effects to 
non-rail above-ground historic properties (buildings, structures, 
objects and districts) and archaeological sites of any nature 
(regardless of a rail nexus) that are located in the undertaking's area 
of potential effects (``APE'') but outside of or adjacent to rail ROW 
under both the activities-based exemption and Project Sponsor-led 
property-based approach.
    Likewise, if an unanticipated discovery of a non-rail historic 
property, archaeological site, or human remains is made during 
implementation of an exempt activity listed in Appendix A, the Project 
Sponsor must cease the activity and consult with the lead federal 
agency, who must follow the requirements of 36 CFR 800.13(b) and/or 
applicable state burial law with regard to the discovery; if an 
undertaking involves multiple exempted activities, those that do not 
involve or effect the discovery may continue.

VI. Definition of Terms

    A. Area of potential effects, as defined in 36 CFR 800.16(d), means 
the geographic area or areas within which an undertaking may directly 
or indirectly cause alterations in the character or use of historic 
properties, if any such properties exist. The area of potential effects 
is influenced by the scale and nature of an undertaking and may be 
different for different kinds of effects caused by the undertaking.
    B. Historic properties, as defined in 36 CFR 800.16(l), means any 
prehistoric or historic district, site, building, structure, or object 
included in, or eligible for inclusion in, the National Register of 
Historic Places maintained by the Secretary of the Interior. This term 
includes artifacts, records and remains that are related to and located 
within such properties. The term includes properties of religious and 
cultural importance to a federally recognized Indian tribe or Native 
Hawaiian organization that meet the National Register criteria.
    C. Important historic rail properties means rail properties located 
in rail ROW that have been identified through the Project-Sponsor led 
approach established in Section IV. Such properties must meet the 
National Register eligibility criteria (36 CFR part 63), illustrate the 
history of the development of the nation's railroads or rail transit 
systems, and either possess national significance (see the definition

[[Page 54398]]

below) or be of certain state or local importance. Examples of 
properties of certain state or local importance may include extant 
architectural properties, such as passenger depots, roundhouses, 
bridges, and tunnels that are not included in common standard plans; 
that met unique engineering challenges; that have exceptional design 
quality and characteristics; or that are of unusual or noteworthy 
importance, or are a rare property type.
    D. National significance means a historic property that is either, 
(1) designated as a National Historic Landmark; (2) designated as a 
Civil Engineering Landmark; (3) listed as nationally significant in its 
nomination or listing in the National Register; or (4) determined to 
have significance at the national level.\9\
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    \9\ Properties that have previously been determined to be 
nationally significant may be re-evaluated as part of the optional 
Project Sponsor-led approach. Properties may be newly determined to 
be nationally significant as part of the consultation that would 
occur under the optional Project Sponsor-led approach.
---------------------------------------------------------------------------

    E. Project Sponsor means an entity such as a state, tribal or local 
government, joint venture, or private company that is eligible to 
receive financial assistance under a federal transportation-related 
financial assistance program (e.g., grant, loan). A project sponsor may 
also be an entity that requires a federal permit, license, or approval 
in order to carry out a proposed activity in rail ROW (e.g., a permit 
under Section 404 of the Clean Water Act issued by the Army Corps of 
Engineers or a permit under Section 9 of the Rivers and Harbors Act of 
1899 issued by the United States Coast Guard).
    F. Rail properties means, for the purpose of this program comment, 
infrastructure within the rail ROW that has a demonstrable relationship 
to the past or current function and operation of a railroad or rail 
transit system, including but not limited to: Rails and tracks, ties, 
ballast, rail beds, signal and communication systems, switches, 
overhead catenary systems, signage, traction power substations, 
passenger stations/depots and associated infrastructure and utilities, 
freight transfer facilities, boarding areas and platforms, boarding 
platform shelters and canopies, bridges, culverts, tunnels, retaining 
walls, ancillary facilities, ventilation structures, equipment 
maintenance and storage facilities, railyards, parking lots and 
structures, landscaping, passenger walkways, and security and safety 
fencing. The definition does not include properties with no 
demonstrable relationship to the function and operation of a railroad 
or rail transit system, such as: Adjacent residential, commercial or 
municipal buildings; archaeological resources underneath rail ROW that 
are unrelated to the railroad or rail transit line; or property 
unrelated to existing or former railroads and rail transit lines that 
is proposed to be used for new rail infrastructure.
    G. Railroad and Rail Transit Rights-of-Way (rail ROW) means, for 
the purpose of this program comment, the land and infrastructure that 
have been developed for existing or former intercity passenger rail, 
freight rail, or rail transit operations, or that are maintained for 
the purpose of such operations. Rail ROW includes current or former 
railroad or rail transit lines regardless of current ownership and 
whether there is rail service operating on the railroad or rail transit 
line. It does not include land that was never developed and lacks 
visual evidence of historic railroad or rail transit use. Rail ROW 
includes and may be identifiable by the presence of infrastructure that 
has a demonstrable relationship to the past or current function and 
operation of a railroad or rail transit system that commonly includes 
but is not limited to the rail properties specified in the definition 
above.
    H. Section 106 means Section 106 of the National Historic 
Preservation Act, 54 U.S.C. 306108, and its implementing regulations, 
36 CFR part 800.
    I. Undertaking, as defined at 36 CFR 800.16(y), means a project, 
activity, or program funded in whole or in part under the direct or 
indirect jurisdiction of a federal agency, including those carried out 
by or on behalf of a federal agency; those carried out with federal 
financial assistance; and those requiring a federal permit, license or 
approval.

VII. Effective Date

    This program comment shall go into effect on the date it is issued 
by the ACHP, at which time federal agencies may immediately utilize the 
list of exempted activities in Appendix A, including undertakings that 
have not yet been initiated and undertakings for which the Section 106 
review process is underway but not completed.

VIII. Reporting

    Any lead federal agency that utilizes this program comment shall 
report annually to NCSHPO, NATHPO, and the ACHP regarding the 
application of the exempt activities in Appendix A. The USDOT OAs will 
also report annually to NCSHPO, NATHPO, and the ACHP regarding any 
coordination with Project Sponsors to pursue the property-based 
approach.

XIV. Amendment

    The Chairman of the ACHP may amend this program comment after 
consulting with the USDOT and other relevant federal agencies, NCSHPO, 
NATHPO, tribal representatives, the National Trust for Historic 
Preservation, and industry representatives, as appropriate. The ACHP 
will publish a notice in the Federal Register informing the public of 
any amendments that are made to the program comment.

XV. Sunset Clause

    This program comment will expire twenty (20) years from the date of 
its issuance, unless it is amended prior to that date to extend the 
period in which it is in effect.

XVI. Withdrawal

    The Chairman of the ACHP may withdraw this program comment, 
pursuant to 36 CFR 800.14(e)(6), by publication of a notice in the 
Federal Register 30 days before the withdrawal will take effect.

Appendix A: Exempted Activities

    Undertakings limited to the activities listed below and when 
occurring within rail ROW are exempt from Section 106 review because 
their effects on rail-related historic properties are foreseeable 
and likely to be minimal and not adverse.
    The lead federal agency for a proposed transportation-related 
undertaking in rail ROW is responsible for determining if the 
program comment applies. Approval by the lead federal agency of 
undertakings involving exempt activities specified below will be 
required in the form of written approval or through another 
established review and decision-making process normally used by the 
lead federal agency (e.g., grant-making processes or permit 
issuance). In particular, activities denoted with (*) and (**) 
require evaluation by professionals meeting the Secretary of the 
Interior's (``SOI'') Professional Qualification Standards for 
Archaeologists or Architectural Historians, as appropriate. If the 
appropriate SOI-qualified professionals are not available to assist 
in the design and evaluation of activities denoted with (*) and 
(**), such activities are not exempt and remain subject to Section 
106 review. Additional information regarding activities denoted with 
(*), (**) and (***) is provided following the list.
    Before approving an undertaking, the lead federal agency (or a 
Project Sponsor that has been delegated or assigned responsibility 
for Section 106 compliance) must determine if the undertaking has 
the potential to cause effects to non-rail historic properties 
located within or in the vicinity of the rail ROW. For example, the 
construction of a new equipment maintenance building in an existing 
rail yard could introduce a visual, atmospheric, vibratory, and/or 
audible

[[Page 54399]]

element that could affect nearby non-rail historic properties. If 
such potential exists, the lead federal agency (or a Project Sponsor 
that has been delegated or assigned Section 106 responsibility) must 
follow the requirements of 36 CFR part 800, including establishing 
an Area of Potential Effects (APE) as defined in 36 CFR 800.16(d), 
or an applicable program alternative executed pursuant to 36 CFR 
800.14 in order to consider the potential effects to non-rail 
historic properties located within that APE. This requires the 
federal agency and/or Project Sponsor to complete the four-step 
Section 106 review process for such non-rail historic properties in 
the APE: Initiating the process; identifying historic properties; 
assessing adverse effects; and resolution of adverse effects to 
historic properties. Nevertheless, the effects of the activities 
listed below on rail properties within rail ROW remain exempt from 
Section 106 review.
    If an unanticipated discovery of a non-rail historic property, 
archaeological site of any nature, or human remains is made during 
the implementation of an exempt activity, the Section 106 
requirements at 36 CFR 800.13 and/or state burial law, as 
appropriate depending on the nature of the discovery, would apply 
because such resources are not covered by the program comment. In 
addition, although the activities listed below are exempted from 
Section 106, the Project Sponsor must still comply with the 
requirements of any easements, covenants, or state or local historic 
designations applicable to the affected rail property(ies). At 
minimum, the Project Sponsor must cease all work in and secure the 
area of the discovery while the appropriate notifications are made 
and the parties consult to determine the appropriate course of 
action.

A. Track and Trackbed \10\
---------------------------------------------------------------------------

    \10\ These activities do not include alterations to the trackbed 
that would result in a substation visual change (i.e., elevation) in 
the relationship between the trackbed and the surrounding landscape.
---------------------------------------------------------------------------

    1. Replacement of rails, fasteners, ties, or bridge timbers. 
This includes replacing jointed rail with continuous welded rail. 
This does not include changing the gauge of the rail.
    2. Addition of switches in an existing trackbed.
    3. Replacement of Y-tracks, turn-outs, frogs, or switches within 
existing footprint.
    4. Installation of new turn-outs, sidings, and crossovers in 
areas of previously disturbed soils or when construction methods do 
not require surface removal (*).
    5. Replacement of subgrade, ballast, and sub-ballast materials.
    6. Addition of fill free of debris or other clean borrow 
materials on top of existing soils or fill.
    7. Excavation of clean borrow material from sources within the 
rail ROW (*).
    8. Scraping and undercutting of an existing subgrade or 
embankment to restore a horizontal profile or increase vertical 
clearance (*). This includes modifying the subgrade only, not 
modifications to bridges, tunnels, or other infrastructure.
    9. Widening an existing embankment for the addition of turn-outs 
(*).
    10. Reinstallation of track in the same location where it 
existed previously but had been removed (e.g., reinstallation of 
double tracking on a currently single-tracked line that had 
historically been double-tracked).
    11. Removal of abandoned sidings, rails, ties, or ballast.

B. Bridges and Tunnels

    1. The following bridge and tunnel structure maintenance 
actions: Cleaning; in-kind painting of the bridge superstructure or 
substructure; in-kind masonry repointing; deck overlay with the same 
or similar materials as existing; application of preservative and 
corrosion protection treatments; ballast cribbing; affixing 
stiffeners; or patching spalled concrete.\11\
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    \11\ ``In-kind'' as used here and elsewhere in Appendix A means 
that new materials used in repairs or replacements must match the 
material being replaced in composition, design, color, texture, and 
other visual and material properties. Substitute materials should be 
used only on a limited basis and only when they will match the 
appearance and general properties of the historic material and will 
not damage the historic property. For more information, see https://www.nps.gov/tps/standards/rehabilitation/rehab/stand.htm.
---------------------------------------------------------------------------

    2. Repair or replacement of brackets, hardware, angles, rivets, 
flanges, bearings, fasteners, motors, locking devices, or similar 
elements.
    3. In-kind repair or replacement of structural or non-structural 
bridge members (e.g., I-beams, T-beams, girders, box beams, 
abutments, piers, parapets, bents, bridge protective systems (e.g., 
fenders, pile clusters, dolphins, sheer booms, sheer fences, island 
protection systems, or floating protection systems)) that do not 
alter character-defining features of the bridge (**). This does not 
include full or partial demolition of a bridge.
    4. Actions to strengthen or address deteriorating structural 
conditions of bridges that are intended to preserve their useful 
life and that do not alter character--defining features of the 
bridge (**). Examples include converting the bridge deck from an 
open deck to a ballast deck; the replacement of traditional roller 
bearing assemblies to elastomeric or similar pad bearings; or 
changing the material beneath the ballast such that the change in 
material would not be visually discernable from outside of the ROW.
    5. Repair or replacement of tunnel ventilation structures and 
associated equipment (e.g., fans, ducting) (**). Replaced structures 
must be substantially the same size as or smaller than existing and 
be visually compatible with the surrounding built environment.
    6. Removal or replacement of any bridge or tunnel material or 
added-on element that is not part of the original construction or 
that was not added during a period of major alteration dating back 
to 45 years or earlier (**).

C. Rail Buildings (i.e., Passenger Stations and Depots, Maintenance 
and Equipment Buildings, Interlocking Towers, Signal Houses)

    1. In-kind repair or replacement of light fixtures in public 
spaces, such as passenger waiting areas.
    2. Repair, extensions to the width, or extension or shortening 
of the length of boarding platforms, as necessary to meet federally-
mandated ADA-compliant boarding requirements or to accommodate 
longer or shorter trains, that are constructed with common concrete 
methods (e.g., concrete slab) (*). This does not include platforms 
constructed with brick, stone, tile, wood, or other materials. This 
does not include platform modifications that would result in the 
need to modify paths of travel, such as through the installation of 
ramps, to achieve ADA compliant access to/from associated passenger 
stations.
    3. In-kind repair of platforms constructed with brick, stone, 
tile, wood, or other non-concrete materials (**). This does not 
include increasing the height of an existing platform to meet ADA 
requirements.
    4. Maintenance, repair, or replacement (**) of escalators and 
elevators.
    5. Cleaning, painting, or refinishing of surfaces with a like 
color and where the products or methods used would not damage the 
original surface.
    6. In-kind masonry repointing.
    7. Repair or replacement of passenger walkways constructed with 
common concrete or asphalt methods when consistent with existing 
materials.
    8. The following federally mandated ADA improvements at 
passenger stations do not damage, cover, alter, or remove character-
defining architectural spaces, features, or finishes:
    a. Installation or replacement (**) of the following: Restroom 
stalls/partitions, and hardware and fixtures such as grab bars, tilt 
frame mirrors, sinks, and toilets; tactile warning strips on floors, 
passenger walkways, and platforms; cane detectors; sidewalk curb 
cuts; automatic door openers; station identifier and wayfinding 
signage; public information display systems (PIDS); wheelchair 
lifts; and wheelchair lift enclosures. This does not include ADA 
improvements involving the installation, modification, or removal of 
ramps, stairs, doors, windows, roofs, platform boarding canopies and 
supports, or ticket counters.
    b. Widening of or adjustments to the slope of passenger walkways 
constructed with common concrete or asphalt methods (*).
    9. Interior maintenance work or alterations in stations or other 
railroad facilities that is limited to non-public spaces that lack 
architectural distinction (**).
    10. Replacement of pumps, air compressors, or fueling stations 
(*).
    11. Removal of mechanical equipment inside railroad facilities 
not visible to the public (***). Examples include relay panels, 
switchgear, and track diagram boards.
    12. Addition of new mechanical equipment in basements, beneath 
platforms, in designated mechanical equipment areas, or in areas 
that are otherwise out of public view.
    13. Paving, painting, or striping of parking surfaces.

[[Page 54400]]

    14. In-kind repair and replacement of platform boarding canopies 
and supports (*,**).
    15. State-of-good-repair (``SOGR'') activities (**) not 
otherwise on this list that are necessary to keep a station, depot, 
or other rail building inhabitable, safe,\12\ and in use, and may 
affect character-defining architectural features of the property, 
such as the repair or in-kind replacement of the following: Elevator 
head houses and portals; roofs; doors; windows; stairs; or railings. 
SOGR activities do not include demolition, decommissioning, or 
mothballing of rail buildings that are not in use, or reconfiguring 
the interior spaces of passenger stations for a new use (e.g., 
enclosing a passenger waiting area to create new office, baggage 
handling, or event space).
---------------------------------------------------------------------------

    \12\ As required by applicable federal or municipal fire, life 
safety, or health codes or standards.
---------------------------------------------------------------------------

D. Signals, Communications, and Power Generation

    1. Maintenance, repair, or replacement of component parts of 
signal, communications, catenary, electric power systems, or other 
mechanical equipment that retains the visual appearance of the 
existing infrastructure (**). This includes replacement of 
individual signal masts, but does not include wholesale removal or 
replacement of a catenary system or signal bridge.
    2. Maintenance, repair, or replacement (*) of radio base 
stations.
    3. Maintenance, repair, or replacement (*) of the mechanical 
components of traction power substations, i.e., transformers, 
circuit breakers, electrical switches. This does not include 
replacement of an entire substation.
    4. Maintenance or repair of signal instrument houses and signal 
bungalows (**).
    5. Installation, repair, or replacement of communications 
equipment on locomotives and rolling stock that are actively used 
for intercity passenger rail, rail transit, or freight rail. This 
does not apply to historic trains used for tourism.

E. Rail/Roadway At-Grade Crossings and Grade Separations

    1. Maintenance of existing at-grade railroad crossings including 
installation of railroad crossing signs, signals, gates, warning 
devices and signage, highway traffic signal preemption, road 
markings, and similar safety upgrades (*).
    2. In-kind repair, rehabilitation, or replacement of existing 
at-grade railroad crossings including installation of railroad 
crossing signs, signals, gates, warning devices and signage, highway 
traffic signal preemption, road markings, and similar safety 
upgrades (*,**).
    3. Installation of new, at-grade railroad crossings on existing 
railroads and roadways, including installation of railroad crossing 
signs, signals, gates, warning devices and signage, highway traffic 
signal pre-emption, road markings, and similar safety features (*). 
This does not apply when the crossing involves an individual 
National Register-listed or eligible roadway or a roadway that is a 
contributing resource to a National Register-listed or eligible 
historic district.
    4. Expansion of existing sidewalks, constructed with common 
concrete or asphalt methods, along the sides of an existing at-grade 
rail crossing (*).
    5. Maintenance, repair, or rehabilitation of existing grade-
separated crossings of other transportation modes (highways, local 
roads, pedestrian underpasses) (*,**). This does not include 
modifications to existing grade separation structures (e.g., 
bridges, overpasses) that would result in a substantial increase in 
height or overall massing.
    6. Addition of lanes, turning lanes, road widening, and pavement 
markings for at-grade crossings (*). This does not apply when the 
crossing involves an individual National Register-listed or eligible 
roadway or a roadway that is a contributing resource to a National 
Register-listed or eligible historic district.
    7. Construction of curbs, gutters, or sidewalks adjacent to 
existing roadway for at-grade crossings (*). This does not apply 
when the crossing involves an individual National Register-listed or 
eligible roadway or a roadway that is a contributing resource to a 
National Register-listed or eligible historic district.

F. Safety

    1. Repair, replacement, or installation of the following 
security and intrusion prevention devices (*,**): security cameras, 
closed captioned television (CCTV) systems, light poles and 
fixtures, bollards, emergency call boxes, access card readers, and 
warning signage.
    2. Replacement of security and safety fencing where the 
replacement is substantially the same appearance as existing (*). 
This does not include replacement of an open-fence design with a 
closed design that would create a visual barrier.
    3. Replacement or installation of safety equipment/fall 
protection equipment on rail bridges, signal bridges, or other non-
station structures for the protection of rail workers or the public 
(**). Examples include railings, walkways, gates, tie-off safety 
cables, anchors, or warning signage.
    4. Repair, replacement, or installation of wayside detection 
devices (*).
    5. Repair, replacement (*), or installation (*,**) of bridge 
clearance/strike beams.

G. Erosion Control, Rock Slopes, and Drainage

    1. Placement of rip rap to prevent erosion affecting bridges and 
waterways.
    2. Erosion control through slide and slope corrections (*).
    3. Rock removal and re-stabilization activities such as scaling 
and bolting.
    4. Maintenance, repair, or replacement (*) of pre-cast concrete, 
cast iron, and corrugated metal culverts that lack stone headwalls. 
This does not include uniquely constructed culverts such as those 
built by the Civilian Conservation Corps or those made out of 
unusual materials (e.g., a hollowed log).
    5. Expansion, through horizontal elongation, of pre-cast 
concrete, cast iron, and corrugated metal culverts that lack stone 
headwalls for the purpose of improved drainage (*).
    6. Embankment stabilization or the re-establishment of ditch 
profiles where no new grading is involved.
    7. Corrections to drainage slopes, ditches, and pipes to 
alleviate improper drainage or changing alluvial patterns (*).
    8. In-kind repair or replacement of retaining walls (*,**).
    9. Maintenance, repair, or alterations to the interiors of 
culverts and related drainage pathways.

H. Environmental Abatement

    1. Removal of environmental hazards on bridge structures, e.g., 
treated wood that may leak into waterways or sensitive habitat, 
removal of graffiti; and abatement of lead/heavy-metal coatings and 
paintings. Activities that replace coatings or paint must be of the 
same color and appearance as the materials that have been abated.
    2. Removal of asbestos-containing pipe insulation or transmitter 
relay panels in or on rail operations buildings, bridges, or 
tunnels.
    3. Removal of contaminated ballast and sub-ballast materials.
    4. Removal of contaminated soils (*).

I. Operations

    1. Establishment of quiet zones, including the installation of 
required warning devices and additional safety measures installed at 
grade crossings, that do not entail closing of existing 
roadways.\13\
---------------------------------------------------------------------------

    \13\ A quiet zone is an FRA exemption to the rule requiring 
trains to sound their horns when approaching public 
highway[hyphen]rail grade crossings. More information on the 
creation of quiet zones is available in FRA's regulations at 49 CFR 
part 222, Use of Locomotive Horns at Public Highway-Rail Grade 
Crossings, and in guidance promulgated by FRA's Office of Railroad 
Safety (for example, see https://www.fra.dot.gov/Page/P0841 and 
https://www.fra.dot.gov/eLib/Details/L04781).
---------------------------------------------------------------------------

    2. Increased frequency of train operations that do not result in 
noise or vibration impacts. (Note: A noise and vibration study would 
be prepared by a qualified subject matter expert as part of the NEPA 
process).
    3. Temporary storage of rail cars on active rail lines.
    4. Repair, maintenance, or replacement (*) of noise barriers. 
Replacements must be substantially the same size and visual 
appearance as existing.

J. Landscaping, Access Roads, and Laydown Areas

    1. In-kind replacement of existing landscaping.
    2. Mowing, seeding/reseeding, planting, tree trimming, brush 
removal, or other similar groundcover maintenance activities.
    3. Herbicidal spraying.
    4. Maintenance of existing access roads and lay-down areas (*).

K. Utilities

    1. Installation, maintenance, repair, relocation, or replacement 
of underground utilities (*). Examples include electrical, sewer, 
compressed air lines, fuel lines, and fiberoptic cable.
    2. Maintenance, repair, or replacement (*) of above-ground 
utilities. Replacements must be substantially the same size and 
scale (including height) as existing.

[[Page 54401]]

    3. Installation, maintenance, repair, or replacement of utility 
lines and conduit inside tunnels that does not involve affixing new 
equipment to the exterior face of tunnel portals.
    4. Affixing conduit, repeaters, antennae, and similar small-
scale equipment on the exterior masonry face of tunnel portals where 
the color of the equipment matches the existing masonry in order to 
limit its visibility and does not damage the masonry construction 
(**).

L. Bicycle and Pedestrian Facilities, Shared Use Paths, and Other 
Trails

    1. Maintenance, repair, or replacement (*) of existing bicycle 
lanes, pedestrian walkways, shared use paths (e.g., bicycle, 
pedestrian), and other trails intended for non-motorized 
transportation that are constructed with common materials.
    2. Adding lanes to existing shared use paths or other trails 
constructed with common materials (*).
    3. Adding crossings for pedestrians and bicycle facilities, 
shared use paths, or other trails (*).
    4. Installation of bicycle aid stations, bicycle racks and 
storage units, and similar amenities (*, **).
    5. Maintenance, repair, or replacement (*) of bicycle aid 
stations, bicycle racks, and storage units, and similar amenities. 
Replacements must be substantially the same size and appearance as 
existing.
    6. Installation of information kiosks, panels, and similar 
amenities for pedestrian, bicyclists, or other path or trail users 
(***).
    7. Maintenance, repair, or replacement (*) of information 
kiosks, panels, and similar amenities. Replacements must be 
substantially the same size and appearance as existing.
    8. Maintenance, repair, or replacement (*) of existing curbs, 
gutters, or sidewalks constructed with common materials (e.g., non-
decorative concrete or asphalt).

M. Construction/Installation of New Rail Infrastructure

    1. Minor new construction and installation of rail 
infrastructure that is compatible with the scale, size, and type of 
existing rail infrastructure, such as buildings for housing 
telecommunications equipment, signal instruments, and similar 
equipment; storage buildings that house landscaping or maintenance 
of way equipment or specialty vehicles for track repairs or 
inspections; locomotive and train car service and inspection (S&I) 
facilities; trailers or temporary structures for housing rail 
personnel; and safety/security fencing that uses an open design and 
does not create a visual barrier. (*,**) applies to all activities 
in this bullet. This does not include the construction of new 
passenger stations, rail yards, bridges, or tunnels, or demolition 
of existing structures.
    2. Installation of utility and communications poles, 
transmission lines, and related equipment within electrified rail 
ROW (i.e., rail ROW with existing overhead transmission lines) (*). 
New poles and overhead lines must be substantially the same height 
as existing. (Note: If another existing Section 106 Program 
Alternative, such as the ACHP Program Comment for Positive Train 
Control or the ACHP Program Comment for Wireless Communications 
Facilities, would apply to the proposed activities, defer to that 
Program Alternative.)
    3. Installation of new culverts beneath the trackbed in areas 
not visible or accessible to the public (*).

N. Rail Properties Less Than 45 Years Old

    1. Maintenance, repair, replacement, rehabilitation, or 
demolition of any rail property less than 45 years old is an exempt 
activity (unless the rail property is of exceptional importance as 
defined under NHRP Criterion Consideration G \14\ and as determined 
through consultation between the lead federal agency and the State 
Historic Preservation Officer (SHPO)). However, as with all other 
activities in this list, the Project Sponsor and lead federal agency 
must consider whether the activity may cause effects to adjacent or 
nearby non-rail historic properties (e.g., demolition of a tall rail 
building could alter the existing viewshed or eliminate a noise 
buffer). Depending on the nature of the proposed undertaking, such 
consideration of effects to non-rail properties may require the 
involvement of an SOI-qualified professional and consultation with 
SHPO and other consulting parties, as well as establishment of an 
APE and identification of historic properties in that APE, 
assessment of effects to those properties, and resolution of any 
adverse effects to those properties.
---------------------------------------------------------------------------

    \14\ For information regarding the NRHP Criteria for Evaluation, 
see https://www.nps.gov/nr/publications/bulletins/nrb15/.
---------------------------------------------------------------------------

    (*) The proposed undertaking must be located entirely within 
previously disturbed soils or fill. Previously disturbed soils are 
those that show visible evidence that construction techniques used 
during previous construction activities required the grading or 
removal of soil or the addition of fill. A project engineer may be 
able to determine whether the ground has been previously disturbed 
or the project location consists of fill based on a review of 
relevant engineering plans from earlier construction activities at 
that location. If it cannot be readily demonstrated from a review of 
available documentation or a non-intrusive site investigation that 
the entire vertical and horizontal limits of ground disturbance for 
a proposed undertaking would be entirely located within previously 
disturbed soils or fill, the lead federal agency (or a Project 
Sponsor that has been delegated or assigned responsibility for 
Section 106 compliance) must ensure a Secretary of the Interior 
(SOI)-qualified archeologist confirms the presence or absence of 
previously disturbed soils. The Project Sponsor, if it has not been 
delegated or assigned responsibility for Section 106 compliance, 
must submit to the lead federal agency the archaeologist's 
recommendation, with supporting justification, that the undertaking 
would only affect disturbed soils, and the lead federal agency must 
provide written concurrence to the Project Sponsor before the 
undertaking can proceed. If the archaeologist determines that 
undisturbed soils are present in areas of proposed ground 
disturbance or if there is uncertainty, this program comment does 
not apply and the proposed activity remains subject to standard 
Section 106 review or another applicable program alternative.
    (**) The proposed undertaking must meet one of the following 
circumstances:
     The affected rail property(ies) is listed on the 
National Register of Historic Places (NRHP), has previously been 
determined eligible for listing on the NRHP, or the lead federal 
agency and Project Sponsor agree to treat the affected rail 
property(ies) as eligible for listing on the NRHP based on factors 
such as the date of construction (generally 45 years old or older) 
and the establishment of the period(s) of significance, an 
assessment of integrity, and the identification of character-
defining features of the affected rail property(ies) by an SOI-
qualified professional. SOI-qualified professionals may be federal 
agency staff, federal agency contractors, Project Sponsor staff, 
and/or consultants hired by Project Sponsors. The value of treating 
a rail property as being historic is the time-savings achieved by 
not having to go through the full identification, evaluation, and 
consultation steps of the standard Section 106 process. When the 
affected rail property(ies) is considered historic, the work must be 
performed in accordance with SOI standards. The work must follow the 
National Park Service Standards for Preservation and Guidelines for 
Preserving Historic Buildings, as appropriate. Whenever possible, 
historic fabric must be repaired rather than replaced. The Project 
Sponsor, if it has not been delegated or assigned responsibility for 
Section 106 compliance, must provide written justification to the 
lead federal agency explaining why repair is not feasible. In cases 
where existing historic materials are beyond repair, replacement 
must be carried out in-kind. The lead federal agency must ensure the 
Project Sponsor is performing the work using or under the direct 
supervision of an SOI-qualified professional in the relevant 
discipline(s). Verification and approval in writing by the lead 
federal agency is required before the Project Sponsor can implement 
the proposed undertaking. Lastly, the lead federal agency must 
notify the relevant SHPO(s) in writing of the proposed undertaking 
upon the lead federal agency's approval and prior to the Project 
Sponsor's commencement of the undertaking. Or,
     The rail property is less than 45 years old and does 
not meet NHRP Criterion Consideration G. In such cases, the Project 
Sponsor may carry out maintenance, repair, rehabilitation, or 
replacement activities of any nature and does not need to follow SOI 
standards with regard to the subject rail property. However, the 
restrictions noted in Section N of the preceding list apply.
    (***) If the equipment to be removed includes obsolete or 
outdated technology, the Project Sponsor must contact the relevant 
SHPO, railroad museums or railroad historical societies, museums, 
educational institutions, or similar entities to determine if there 
is an entity that may be interested in purchasing or receiving the 
equipment as a donation, as appropriate. The Project Sponsor, if it 
has not been delegated or

[[Page 54402]]

assigned responsibility for Section 106 compliance, must demonstrate 
to the lead federal agency that it has made a good faith effort to 
contact such parties prior to removal and disposition of such 
equipment.

    Authority:  36 CFR 800.14(e).

    Dated: November 14, 2017.
Kelly Y. Fanizzo,
Associate General Counsel.
[FR Doc. 2017-25025 Filed 11-16-17; 8:45 am]
 BILLING CODE 4310-K6-P