Notice of Issuance of Program Comment To Exempt Consideration of Effects to Rail Properties Within Rail Rights-of-Way, 42920-42929 [2018-18329]

Agencies

• Historic Preservation, Advisory Council

[Federal Register Volume 83, Number 165 (Friday, August 24, 2018)]
[Notices]
[Pages 42920-42929]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18329]


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ADVISORY COUNCIL ON HISTORIC PRESERVATION


Notice of Issuance of Program Comment To Exempt Consideration of 
Effects to Rail Properties Within Rail Rights-of-Way

AGENCY: Advisory Council on Historic Preservation.

ACTION: Program Comment issued to exempt consideration of effects to 
rail properties within rail rights-of-way.

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SUMMARY: The Advisory Council on Historic Preservation (``ACHP'') 
issued a Program Comment to exempt consideration of effects to rail 
properties within rail rights-of-way at the request of the U.S. 
Department of Transportation to accelerate the review of these 
undertakings under Section 106 of the National Historic Preservation 
Act and to meet the requirement of Section 11504 of the Fixing 
America's Surface Transportation Act. The Program Comment can be used 
by any federal agency with responsibility to consider the effects of 
undertakings within rail rights-of-way. Federal agencies using the 
Program Comment may fulfill their Section 106 responsibilities for the 
relevant undertakings by implementing the terms of this comment, which 
include identifying those activities that meet the conditions in 
Appendix A and opting into the process to identify excluded historic 
rail properties and seek further streamlining of the review process 
under the property-based approach.

DATES: The Program Comment was issued by the ACHP on August 17, 2018.

ADDRESSES: Address all questions concerning the Program Comment to 
Kelly Y. Fanizzo, Office of General Counsel, Advisory Council on 
Historic Preservation, 401 F Street NW, Suite 308, Washington, DC 
20001-2637. You may submit questions through electronic mail to: 
[email protected].

FOR FURTHER INFORMATION CONTACT: Kelly Y. Fanizzo, (202) 517-0193, 
[email protected].

SUPPLEMENTARY INFORMATION: Section 106 of the National Historic 
Preservation Act (``NHPA''), as amended, 54 U.S.C. 306108 (``Section 
106''), requires federal agencies to take into account the effects of 
undertakings they carry out, license, permit, or fund to historic 
properties and provide the Advisory Council on Historic Preservation 
(``ACHP'') a reasonable opportunity to comment with regard to such 
undertakings. The ACHP has issued the regulations that set forth the 
process through which federal agencies comply with these 
responsibilities. Those regulations are codified under 36 CFR part 800 
(``Section 106 regulations'').
    Under Section 800.14(e) of those regulations, federal agencies can 
request the ACHP to issue a ``Program Comment'' on a particular 
category of undertakings in lieu of conducting reviews for each 
individual undertaking in the category. An agency can meet its Section 
106 responsibilities with regard to the effects of those undertakings 
by implementing an applicable Program Comment that has been issued by 
the ACHP.

I. Background

    At the request of the U.S. Department of Transportation 
(``USDOT''), the ACHP has issued a Program Comment that provides new 
efficiencies in the Section 106 review for undertakings with the 
potential to affect historic rail properties within railroad and rail 
transit rights-of-way (``rail ROW''). 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 required that 
``the Secretary [of the 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 continued 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.
    The ACHP worked closely with the Federal Railroad Administration 
(``FRA''), the Federal Transit Administration (``FTA''), the Federal 
Highway Administration (``FHWA''), and the Office of Policy 
Development, Strategic Planning, and Performance within the Office of 
the Secretary, USDOT (``OST-P''); representatives from the railroad and 
rail transit industries; and historic preservation stakeholders to 
develop the final Section 106 program alternative for rail ROW. The 
ACHP communicated extensively with the staff of the Senate Committee on 
Commerce, Science, and Transportation (``Senate Committee'') as well in 
developing this program alternative. The ACHP recommended incorporating 
the originally proposed exemption within a Program Comment to better 
achieve the intent and purpose of the FAST Act and meet the needs of 
the various stakeholders.
    The Program Comment is the product of consultation and careful 
review. The USDOT and FRA conducted outreach on the preliminary 
exemption concept and early drafts prior to submitting a formal request 
to the ACHP in July 2017. The ACHP in turn published the draft Program 
Comment in the Federal Register (82 FR 54390, November 17, 2017), and 
hosted additional meetings with industry and preservation 
representatives in 2018. Recognizing the complexity of the issues to be 
addressed and wanting to ensure the final product met the statutory 
requirement of the FAST Act to be consistent with the interstate 
highway exemption, the staff for the Senate Committee extended the 
deadline for the final issuance of the Program Comment. The final 
Program Comment takes into account the many significant comments and 
questions raised by various stakeholders over the course of its 
development and represents the collective work of the ACHP, USDOT 
(inclusive of FRA, FTA, FHWA, and OST-P), and the Senate Committee 
staff to ensure that it meets the FAST Act requirement.
    The Program Comment is comprised of two major parts: (1) An 
activity-based approach, and (2) a property-based approach. The 
activity-based approach provides a list of activities in Appendix A for 
which, when the specific conditions are met, no further Section 106 
review is required. 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. The property-based 
approach establishes a process whereby project sponsors can opt to work 
with the relevant USDOT OA and stakeholders to develop a list of 
excluded historic rail properties that would remain subject to Section 
106 review, and exempt from

[[Page 42921]]

review the effects of undertakings to all other historic rail 
properties within a designated area. While the activity-based approach 
will be immediately effective, the property-based approach does not go 
into effect until USDOT publishes implementing guidance. Once in 
effect, both the activity-based approach and the property-based 
approach are available for use by all federal agencies with a 
responsibility to carry out Section 106 review for undertakings that 
may affect rail properties within rail ROW.
    The Program Comment does not apply to undertakings that are located 
within or would affect historic properties located on tribal lands; 
undertakings consisting of activities not included in Appendix A and 
that may affect an excluded historic rail property designated by USDOT; 
undertakings that could affect historic buildings, structures, sites, 
objects, or districts that do not have a demonstrable relationship to 
the function and operation of a railroad or rail transit system; 
undertakings that could affect archaeological sites located in 
undisturbed portions of rail ROW, regardless of whether the sites are 
associated with railroads or rail transit systems; and undertakings 
that could affect historic properties of religious and cultural 
significance to federally recognized Indian tribes or Native Hawaiian 
organizations. There is no sunset clause in the Program Comment; 
however, there will be regular program review and evaluations between 
the USDOT and the ACHP to ensure its proper implementation.

II. Public Participation and Response to Comments

    The USDOT conducted outreach between 2016-2018 with a variety of 
stakeholders, including State Historic Preservation Officers 
(``SHPOs''), Tribal Historic Preservation Officers (``THPOs''), Indian 
tribes, Native Hawaiian organizations, national historic preservation 
organizations, national railroad and rail transit associations, state 
departments of transportation, and railroad and rail transit companies, 
regarding development of the Program Comment; this included webinars; 
conference calls and in-person meetings to address concerns of specific 
stakeholders; presentations at national transportation conferences, and 
sharing and seeking informal comments on early drafts. The ACHP 
published the draft Program Comment in the Federal Register (82 FR 
54390, November 17, 2017). The ACHP notified SHPOs, THPOs, Indian 
tribes, Native Hawaiian organizations, national preservation 
organizations, and other stakeholders via emails on November 21, 2017, 
to provide them notice of the publication and solicit input. The public 
comment period was open until December 8, 2017, and the ACHP and USDOT 
received a total of 261 comments from 48 commenters: 11 SHPOs; 6 Indian 
tribes; 7 state DOTs; 5 transit organizations; 5 federal agencies; 4 
railroad organizations; 4 trade organizations; 2 stakeholders; and 4 
other organizations.
    The comments raised several procedural and substantive issues, 
including the following: Questioning the consistency of the draft 
Program Comment with the interstate highway exemption as required by 
the FAST ACT; clarifying the types of historic properties that may be 
covered by the Program Comment including historic properties of 
religious and cultural significance to Indian tribes and Native 
Hawaiian organizations, and archaeological sites; clarifying the SHPOs' 
and THPOs' roles regarding the development of the excluded historic 
properties lists; questioning the potential conflict of the Program 
Comment's requirements with Section 4(f) of the US Department of 
Transportation Act; monitoring the accountability of the project 
sponsor in appropriately applying the Program Comment; asking about the 
need for a dispute resolution provision; clarifying and defining 
specific terminology; specifying annual reporting requirements; 
questioning the types of activities that should or should not be exempt 
from Section 106 review under Appendix A; and questioning the types of 
activities in Appendix A that should be subject to review or 
supervision by an individual meeting the Secretary of the Interior's 
(``SOI'') Professional Qualifications Standards for Archaeologists or 
Architectural Historians.
    In response to the comments received to the November 2017 
publication, the ACHP and USDOT made several revisions to the Program 
Comment. The exclusion for historic properties of religious and 
cultural significance to Indian tribes and Native Hawaiian 
organizations and archaeological sites was clarified. The ACHP and 
USDOT also clarified how the USDOT would publish implementing guidance 
to provide further detail regarding the identification and evaluation 
of excluded historic rail properties. The Program Comment incorporates 
dispute resolution provisions, additional clarification or removal of 
specific terms and definitions, and a revised list of activities in 
Appendix A.
    The ACHP and USDOT hosted meetings and invited representatives of 
the National Conference of State Historic Preservation Officers 
(``NCSHPO''), the National Trust for Historic Preservation, the 
National Association of Tribal Historic Preservation Officers, and the 
railroad and rail transit industries in February and May 2018. These 
meetings continued discussions about the draft Program Comment and in 
particular, addressed the list of activities to be included in Appendix 
A and determining which activities should require supervision of SOI-
qualified personnel, and the process for establishing the lists of 
excluded historic rail properties and the scope of the exemption under 
the property-based approach. Draft versions of Appendix A and the 
property-based approach were circulated for additional review and 
comment following the May meeting. By the June 4, 2018, comment 
response date, the ACHP and USDOT received a total of 128 additional 
comments from 16 commenters: 11 SHPOs, including NCSHPO; 4 industry 
representatives; and 1 historic preservation stakeholder.
    The SHPOs provided several general comments and many specific 
comments on both the revised draft Appendix A and the property-based 
approach. Some questioned the broad scope of the Program Comment; 
however, due to the requirements of the FAST Act, the two-part approach 
has been retained in the final version as the ACHP and USDOT believe it 
represents the best way to achieve the intent and purpose of the 
statutory mandate.
    Many SHPOs asked for annual reporting in the Program Comment. The 
Program Comment was initially revised to clarify an annual reporting 
requirement as well as the information that agencies must include in 
such reports. Several SHPOs asked that an expiration date be included 
in the Program Comment. While the sunset clause and reporting 
requirement have been removed, as noted in the discussion of additional 
comments below, the revised Program Comment requires a regular 
evaluation be conducted (within one year of issuance and every two 
years thereafter) to ensure the effective operation of the Program 
Comment and that its terms are being met. The lack of an expiration 
date and process for regular evaluations is consistent with the 
interstate highway exemption.
    Many SHPOs asked for a dispute resolution process both in the 
decision-making under Appendix A and the development of the excluded 
historic property lists. The Program Comment

[[Page 42922]]

was revised to include an opportunity for objection under Appendix A 
implementation when it appears that a specific activity may be 
adversely affecting historic properties. It was also clarified that 
USDOT may request ACHP assistance in resolving any disputes or 
questions in the development of the excluded historic property lists. 
The ACHP, rather than the Keeper of the National Register, is the 
appropriate entity to resolve disputes in the development of the 
excluded historic property lists because such disputes are about the 
applicability of the Program Comment rather than the National Register 
eligibility of any property. Should a question regarding a property's 
eligibility be raised during the implementation of the Program Comment, 
USDOT may consult with the Keeper at any time to resolve questions or 
disagreements.
    One SHPO remarked that it would like to see more checks and 
balances in the Program Comment to ensure effects to historic 
properties are minimal or not adverse. The Program Comment has been 
revised to incorporate the comments received into the list of 
activities in Appendix A and to incorporate SHPO and tribal involvement 
in the development of the excluded historic property lists. The Program 
Comment includes activities that may adversely affect historic 
properties and is not limited to the conditions imposed on exemptions 
per 36 CFR 800.14(c). In response to a concern that this approach is 
contrary to the NHPA and other preservation laws, the ACHP and USDOT 
believe the Program Comment, with its two-part approach, strikes the 
right balance to achieve the requirements of the FAST Act and is 
consistent with the interstate highway exemption. Further, one SHPO 
recommended that traditional cultural properties also be listed as a 
property type to be excluded from the terms of the Program Comment. The 
applicability of the Program Comment is consistent with that of the 
interstate highway exemption in that it does not modify the Section 106 
review of effects to non-rail properties, historic properties of 
religious and cultural significance to Indian tribes or Native Hawaiian 
organizations, or to archaeological sites located in undisturbed 
locations. Because the Program Comment specifies that it does not apply 
to, and Section 106 continues to apply to these properties, the ACHP 
determined it was not necessary to specify that traditional cultural 
properties are not covered by the Program Comment.
    Finally, a concern was again raised regarding the coordination or 
impact of this Program Comment on a federal agency's Section 4f 
requirement. The Program Comment does not modify in any way USDOT's 
responsibility to comply with Section 4f or an agency's or project 
sponsor's responsibility to comply with any other applicable federal, 
state, or local legal requirement. In regard to discovery situations of 
non-rail historic properties, all relevant laws, for example those 
related to treatment of human remains, continue to apply.
    In response to many comments, the introduction and applicability 
section of Appendix A was revised and clarified. Most SHPOs suggested 
specific edits to the list of activities and conditions in Appendix A. 
A number of SHPOs suggested that SOI-qualified professionals review 
additional activities or asked that specific activities be removed from 
the Appendix. Other SHPOs asked to be more involved in the Appendix A 
process and to be provided an opportunity to review any activity that 
requires SOI-qualified professional's involvement. Changes were made to 
many individual activities, such as certain work done to meet the 
Americans with Disabilities Act, replacement of light fixtures in 
public spaces, and the addition of lanes and road widening for at-grade 
crossings within a National Register-eligible or listed historic 
district. In other cases, the ACHP and USDOT believe the activities and 
conditions in Appendix A work to reasonably ensure the activities would 
have minimal or no adverse effect on historic properties. The Program 
Comment includes an objection process in cases where there is a concern 
that an adverse effect is occurring or occurred, and the regular 
program evaluations would provide an additional opportunity to assess 
the implementation of Appendix A.
    SHPOs raised a concern that the use of in-kind replacement might 
result in a loss of integrity to a historic district. Further, one SHPO 
said no loss of a character-defining feature should be exempted from 
Section 106 review. The ACHP and USDOT believe Appendix A allows for a 
measured balance of preservation and greater efficiency by exempting 
consideration of effects under Section 106 for those activities that 
would likely result in minimal or no adverse effect to historic 
properties.
    Some SHPOs asked how federal agencies and project sponsors without 
SOI-qualified professionals on staff would determine whether the 
proposed activity had the potential to affect archaeological sites in 
undisturbed locations. In response, a definition of ``previous 
disturbance'' was added to the definitions section of the Program 
Comment to better clarify for all users the scope of the Program 
Comment. In addition, many ground disturbing activities in Appendix A 
require the involvement of an SOI-qualified professional.
    NCSHPO, and all of the commenting SHPOs, expressed concern with the 
lack of SHPO and other stakeholder involvement in the development of 
the excluded historic property lists. Further, several expressed 
concern regarding the sources of information that project sponsors 
would be instructed to consult in developing their initial proposed 
list as well as the timeline for any SHPO or tribal review of draft 
lists. In response, the Program Comment was revised to require SHPO and 
tribal notification by project sponsors in the initial development of 
the proposed lists and by USDOT in determining the final lists. The 
USDOT is required to seek public review and comment on each proposed 
list, and may also require a project sponsor to conduct additional 
evaluation, including field surveys, or prepare documentation to show 
how it identified historic properties. It is the USDOT who makes the 
final decision regarding the list of excluded historic rail properties 
following the outlined process, not the project sponsor. Additional 
information regarding USDOT's coordination with project sponsors during 
the development of the excluded historic property lists, recommended 
outreach to knowledgeable stakeholders, and the timelines for SHPO and 
tribal review will be provided in the implementing guidance.
    Some SHPOs were concerned with the resource-specific approach that 
is allowed under the property-based approach. Part of this concern was 
that it may allow inadvertent effects to other historic properties by 
its misapplication or by a lack of knowledge about other historic 
properties that may be present within an undertaking's area of 
potential effects. Further, one SHPO asked how the context and 
significance of rail properties that may extend beyond a specific study 
area would be evaluated. As noted above, the Program Comment now 
includes a requirement for SHPO and tribal notification and a request 
for input in the development of the excluded historic property lists. 
The intent is for the determination of each study area to be meaningful 
and cognizant of the rail line's or rail transit system's historic 
context. The Program Comment also includes a regular evaluation 
requirement to allow the ACHP, USDOT, and other stakeholders

[[Page 42923]]

the opportunity to review its implementation and determine its 
effectiveness. Should evaluation show that other historic properties 
are being adversely affected by a misapplication of the program 
comment, the parties would be able to address it, for example, via the 
amendment process in the Program Comment.
    Further, commenters expressed concern about potential unintended or 
unknown adverse effects, including visual effects, to archaeological 
sites and traditional cultural properties. Consistent with the 
interstate highway exemption, the Program Comment does not apply to 
non-rail historic properties and any archaeological site of any nature 
in undisturbed locations. Section 106 review to consider the effects to 
these types of historic properties would still need to occur, even if 
specific activities or effects to certain rail properties would be 
streamlined under the terms of the Program Comment.
    There was some confusion as to whether the criteria for including a 
rail property on the excluded property list was just an assessment of 
its National Register eligibility or whether such evaluation only 
considered rail properties significant at the national level. On a 
related point, one SHPO said it appeared the duties of the SHPO 
regarding developing and maintaining lists of eligible and listed 
historic properties were being given to the USDOT. The excluded 
historic property lists only refer to the applicability of the Program 
Comment, not to any particular property's eligibility for the National 
Register. The Program Comment is not intended to modify the process for 
determining properties eligible for listing on the National Register. 
While there is reference to a property's significance, properties 
significant at the state and local level may also be considered for 
inclusion in the excluded historic property lists. The same criteria 
for developing the lists of excluded historic properties was used in 
the interstate highway exemption, and per the requirement of the FAST 
Act, this Program Comment is consistent with that approach. In response 
to a concern raised about any change to the process of de-listing a 
property from the National Register, the relevant text has been 
deleted.
    There was also a question whether the term ``non-rail'' historic 
property should be more clearly defined. In response, the ACHP and 
USDOT reviewed the definition of rail historic property and believe it 
is clear, including any temporal association. The use of these terms 
relates to the mandate of the FAST Act to exempt effects within rail 
ROW.
    Many SHPOs requested that any surveys be done by SOI-qualified 
professionals and more generally, that project sponsors be required to 
use SOI-qualified professionals in proposing excluded historic rail 
properties. USDOT may require a project sponsor to conduct additional 
evaluation, including field surveys, and prepare documentation to show 
how it identified historic properties. SHPOs also raised a question 
about whether the property-based approach would allow for a loss of 
integrity to historic districts due to cumulative effects. The Program 
Comment has been revised to require specific opportunities for SHPO and 
tribal involvement in the development of the excluded historic property 
lists. It is also important to note that the Program Comment does not 
apply to consideration of effects to any non-rail historic properties.
    Many SHPOs noted concern about the level of detail to be provided 
in the implementing guidance as well as a concern with the lack of 
required consultation with SHPOs and other parties by the USDOT and the 
ACHP in developing the guidance. In response, more details were added 
in the Program Comment to the description of the content of the 
guidance. Further, this approach models the approach taken in the 
interstate highway exemption by USDOT to develop implementing guidance 
to assist in the implementation of the program alternative.
    The National Trust for Historic Preservation endorsed the comments 
provided by the Colorado SHPO as well as provided a few additional 
points. They asked that revisions be made to clarify the continued 
applicability of Section 4f and National Environmental Policy Act to 
undertakings that may be subject to the Program Comment, and that SOI-
qualified personnel be involved in additional activities in Appendix A. 
They asked that a dispute resolution process be added to Appendix A as 
well. Finally, they expressed concern about the level of detail to be 
included in the implementing guidance document and the lack of 
consultation with SHPOs and other parties in its development. These 
comments reflect points raised and addressed in the discussion above.
    Four industry representatives provided comments on the drafts of 
Appendix A and the property-based approach shared with stakeholders in 
May 2018 (the American Public Transportation Association, Amtrak, the 
Association of American Railroads [AAR] and American Short Line and 
Regional Railroad Association collectively). They reiterated previous 
concerns that this draft was not consistent with the interstate highway 
exemption and did not do enough to effectively streamline the review 
process for undertakings within rail ROW. However, Amtrak said the 
Program Comment would enhance its ability to perform crucial 
maintenance and enhancement projects in a timely manner. As noted 
above, the ACHP and USDOT believe this two-part Program Comment meets 
the statutory requirement to exempt the consideration of effects within 
rail ROW consistent with the interstate highway exemption. The industry 
representatives asked that the sunset clause be deleted from the draft, 
and it has been removed and replaced with regular evaluations. They 
expressed concern over the reporting requirement as being too 
burdensome under Appendix A. The reporting requirement was initially 
revised to be an annual report. Finally, the industry representatives 
noted concern over the title of the ``excluded'' historic property 
lists, and revisions were made to the section headings to clarify the 
applicability and context for these lists.
    After making the edits noted above, USDOT submitted a revised final 
draft Program Comment to the ACHP on June 25, 2018. The ACHP made 
further revisions and circulated this draft to its council members and 
industry representatives for an informal review. In response, AAR and 
the Senate Committee staff asked for additional changes to the Program 
Comment, and in particular, asked the ACHP to remove the reporting 
requirement as it was still seen as overly burdensome on industry. The 
final version of the Program Comment does not include any annual 
reporting requirement but requires more frequent program evaluations 
and requires USDOT OAs to review their use and application of the 
Program Comment.

III. Final Text of the Program Comment

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

Program Comment Program Comment To Exempt Consideration of Effects to 
Rail Properties 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

[[Page 42924]]

regulations that set forth the process through which federal 
agencies comply with these responsibilities. Those regulations are 
codified under 36 CFR part 800 (``Section 106 regulations'').
    Under section 800.14(e) of the Section 106 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 satisfy their Section 
106 responsibilities with regard to the effects of 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

    The ACHP is issuing this program comment to exempt consideration 
of effects under Section 106 to rail properties located within rail 
ROW. This program comment has been developed in accordance with 
Section 11504 of the Fixing America's Surface Transportation Act 
(``FAST Act'') (49 U.S.C. 24202), which 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 the U.S. Department of Transportation's (``USDOT'') 
submittal.
    This program comment establishes two methods to meet the 
statutory directive: An activities-based approach and a property-
based approach. The activities-based approach described in section 
III exempts from Section 106 review the activities listed in 
Appendix A, ``Exempted Activities List,'' provided the conditions 
outlined therein are met. Those activities involve maintenance, 
repair, and upgrades to rail properties that are necessary to ensure 
the safe and efficient operation of freight, intercity passenger, 
commuter rail, and rail transit operations. While those activities 
may over time alter various historic elements within rail ROW, these 
changes are likely to be minimal or not adverse and are necessary to 
continue meeting the transportation needs of the nation. The 
property-based approach described in section IV provides an optional 
process for identifying excluded historic rail properties that are 
subject to Section 106 review, while exempting consideration of 
effects to other rail properties.
    If a federal agency responsible for carrying out, licensing, 
permitting, or assisting an undertaking with the potential to affect 
historic rail properties meets the terms of this program comment, 
its Section 106 responsibility to take into accounts those effects 
will be satisfied.

II. Applicability

A. Applicability of Program Comment

    1. The program comment applies to undertakings that may affect 
rail properties located within rail ROW. Any federal agency 
responsible for an undertaking located within rail ROW may utilize 
this program comment to satisfy its Section 106 responsibilities for 
those undertakings.
    2. 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.
    3. 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 undertakings 
as applicable. This program comment does not supersede or modify any 
existing program alternatives, including existing executed 
programmatic agreements. In cases when this program comment and one 
or more other program alternatives apply to a proposed undertaking, 
the federal agency has discretion to determine which program 
alternative to follow.

B. Continued Applicability of Section 106

    1. This program comment does not apply to, and the federal 
agency must comply with the requirements of 36 CFR part 800, or 
adhere to the terms of an applicable program alternative executed 
pursuant to 36 CFR 800.14, for the following:
    a. Undertakings within rail ROW in the following situations:
    i. Undertakings that are located within or would affect historic 
properties located on tribal lands;
    ii. Undertakings consisting of activities not included in 
Appendix A and that may affect an excluded historic rail property 
designated by USDOT pursuant to section IV;
    iii. Undertakings that could affect historic buildings, 
structures, sites, objects, or districts that do not have a 
demonstrable relationship to the function and operation of a 
railroad or rail transit system;
    iv. Undertakings that could affect archaeological sites located 
in undisturbed portions of rail ROW, regardless of whether the sites 
are associated with railroads or rail transit systems. An 
archaeologist meeting the Secretary of the Interior's Professional 
Qualifications (``SOI-qualified professional'') may assist in 
identifying undisturbed soils; and
    v. Undertakings that could affect historic properties of 
religious and cultural significance to federally recognized Indian 
tribes or Native Hawaiian organizations (``NHOs'').
    b. Undertakings that are not within rail ROW. For undertakings 
for which the area of potential effects (``APE'') is partially 
within but extends beyond rail ROW, this program comment applies 
only to the portions of the undertaking within rail ROW. Federal 
agencies must consider potential effects to properties adjacent to 
rail ROW that could be affected by the undertaking, including noise 
or vibration effects or changes to a historic property's setting.
    2. If an unanticipated discovery of a non-rail historic 
property, archaeological site of any nature, or human remains, or an 
unanticipated adverse effect on a previously identified non-rail 
historic property is made during the implementation of an exempted 
activity listed in Appendix A, the Section 106 requirements at 36 
CFR 800.13 and/or applicable burial law, as appropriate depending on 
the nature of the resource, apply because effects to such resources 
are not covered by this program comment. At minimum, the Project 
Sponsor must cease all work in the affected area, secure the area, 
and notify the federal agency within 72 hours. The federal agency 
will consult with the State Historic Preservation Officer (SHPO), 
federally recognized Indian tribes, NHOs, and any other stakeholders 
as appropriate, to determine the appropriate course of action. If an 
undertaking involves multiple exempted activities listed in Appendix 
A, those that do not involve or affect the non-rail resource, as 
determined by the federal agency, may continue. The Project Sponsor 
must comply with any applicable state and/or local law regarding the 
resource.
    C. This program comment does not alter the requirements of any 
applicable easements, covenants, and/or state or local historic 
preservation ordinances. Other federal and state laws such as the 
National Environmental Policy Act and Section 4(f) of the USDOT Act 
also remain applicable, as appropriate.

III. Activities-Based Approach to Exempting Consideration of Effects 
Under Section 106

    A. Undertakings to maintain, improve, or upgrade rail properties 
located in rail ROW that are limited to the activities specified in 
Appendix A are exempt from the requirements of Section 106 because 
their effects on historic rail properties are foreseeable and likely 
to be minimal or not adverse. The activities included in Appendix A 
are exempt from further Section 106 review regardless of whether the 
rail properties affected are eligible for or listed on the National 
Register of Historic Places or whether the activities may affect an 
excluded historic rail property as designated by USDOT pursuant to 
section IV.
    B. If a SHPO, a federally recognized Indian tribe, or an NHO 
believe an undertaking carried out under Appendix A is adversely 
affecting or has adversely affected a historic rail property, the 
SHPO, Indian tribe, or NHO may notify the federal agency responsible 
for the undertaking of its concern. The federal agency will promptly 
investigate the concern within 72 hours of the notification. The 
federal agency will then determine the appropriate course of action, 
in consultation with the Project Sponsor, SHPO, Indian tribe, NHO, 
and other stakeholders, as appropriate.

IV. Property-Based Approach to Exempting Consideration of Effects Under 
Section 106

    Project Sponsors may opt to collaborate with a USDOT Operating 
Administration (``OA'') to designate excluded historic rail 
properties within a defined study area, as described in section 
IV.A, for which the federal agency must comply with requirements of 
Section 106 for undertakings that have the potential to affect those 
properties. Once a USDOT OA formally excludes historic rail 
properties within a study area, consideration of effects to all 
other evaluated rail properties within that study area shall be 
exempt from Section 106

[[Page 42925]]

review for any undertaking by any federal agency. In accordance with 
section IV.C. below, USDOT will publish implementing guidance that 
will provide further detail regarding the identification and 
evaluation of excluded historic rail properties. This property-based 
approach shall go into effect on the date USDOT publishes the 
implementing guidance within nine months of issuance of this Program 
Comment.

A. Identification of Excluded Historic Rail Properties

    1. A Project Sponsor that opts to follow the property-based 
approach to identify excluded historic rail properties must follow 
the steps outlined below, in accordance with the implementing 
guidance. To provide maximum flexibility and utility in this 
process, a Project Sponsor can opt-in on its preferred timeline.
    a. A Project Sponsor must clearly define the study area, i.e., 
the portion of rail ROW to be evaluated, which can be identified by 
location (e.g., state, county), name of rail corridor, railroad, 
rail transit system or line, and/or mile-post information, etc.
    b. A Project Sponsor may choose to evaluate for designation as 
excluded historic rail properties either (i) all rail properties in 
the defined study area, or (ii) a particular property type or types, 
such as rail bridges, stations and depots, tunnels, etc. within the 
defined study area.
    c. A Project Sponsor's evaluation efforts should also be 
informed by a variety of available and existing information, 
including historic context studies, local and state inventories, 
surveys and evaluations; railroad company records (e.g., bridge 
inventories or inspection reports); knowledgeable railroad and rail 
transit personnel; railroad and rail transit historical society 
museum and archival collections; railroad and rail transit 
enthusiast website publications; state or local historic 
preservation organizations; and other relevant documentation and 
professional experience and expertise. Prior to submitting its 
proposed list to the USDOT OA, each Project Sponsor must notify the 
SHPO(s) in the state(s) within which the study area lie(s), and 
Indian tribes or NHOs who may attach religious and cultural 
significance to historic properties within the study area, of its 
evaluation efforts to identify excluded properties and request their 
input. If existing information is not available to determine the 
potential historic significance of rail properties within the 
defined study area, the USDOT OA may require the Project Sponsor to 
conduct a physical survey of the study area carried out by or under 
the direct supervision of individuals meeting the SOI's professional 
qualifications.
    d. A Project Sponsor must submit to the USDOT OA the rail 
properties it proposes be designated as excluded historic rail 
properties, along with a summary of its evaluation efforts including 
whether it evaluated all rail properties within the study area or 
only a certain type(s) of rail property, in accordance with the 
implementing guidance.
    2. Once a Project Sponsor submits a proposal to designate 
excluded historic rail properties for a study area to the USDOT OA, 
the USDOT OA will take the following actions to review and designate 
excluded historic rail properties:
    a. The USDOT OA will review each proposal received from a 
Project Sponsor in accordance with the implementing guidance. The 
USDOT OA shall notify and request the input of the SHPO(s), Indian 
tribes, and/or NHOs when reviewing a Project Sponsor's proposal. The 
USDOT OA will have the discretion to require a Project Sponsor to 
conduct additional evaluation and/or provide additional 
documentation to demonstrate that the Project Sponsor made a 
reasonable effort to identify potential excluded rail properties. 
Following its review of a Project Sponsor's proposal, the USDOT OA 
will make the proposed list, modified as necessary based on its 
review and any consultation or additional evaluation or 
documentation, available for public review and comment, and will 
consider input from interested parties and the public before 
designating the excluded historic rail properties within a study 
area. The USDOT OA may seek input from the ACHP, including advice 
regarding resolution of any objections or concerns from commenters, 
before making such designations. The USDOT may, as needed, consult 
with the Keeper of the National Register to resolve questions or 
disagreements about the National Register eligibility of any rail 
properties.
    b. The USDOT OA will designate excluded historic rail properties 
within a study area within 12 months of receipt of a Project 
Sponsor's adequately supported proposal, in accordance with the 
implementing guidance.
    c. USDOT will publish and periodically update the list of 
designated excluded historic rail properties on its website 
(www.transportation.gov).

B. Effect of Designation as an Excluded Historic Rail Property

    1. All undertakings that may affect USDOT-designated excluded 
historic rail properties are subject to Section 106. However, 
undertakings that include activities listed in Appendix A require no 
further Section 106 review regardless of the rail property that 
would be affected, including excluded historic rail properties.
    2. Once a USDOT OA designates excluded historic rail properties 
within a study area and the list is published on the USDOT website, 
consideration of effects to all other evaluated rail properties 
within that study area are exempt from Section 106 review. If a 
Project Sponsor chooses to evaluate only a specific rail property 
type, rather than all historic properties, within a study area, then 
consideration of effects to rail properties other than the type 
evaluated remain subject to Section 106.

C. Implementing Guidance

    1. Within nine months of the ACHP's issuance of the final 
Program Comment, USDOT, in coordination with the ACHP and other 
federal agencies who may have an interest in utilizing the Program 
Comment, will publish guidance for implementing the property-based 
approach.
    2. The guidance will: Provide further instruction and examples 
for evaluating rail properties for potential designation as excluded 
historic rail properties to remain subject to Section 106; describe 
the process by which a Project Sponsor may propose excluded historic 
rail properties to a USDOT OA, including early coordination between 
the Project Sponsor and the USDOT OA; establish timeframes for USDOT 
OA review of proposals and designation of excluded historic rail 
properties; and establish public involvement methods.

V. Definition of Terms

    Any terms not defined below shall follow the definitions in the 
NHPA, 54 U.S.C. 300301-300321, and in 36 CFR parts 60 and 800.
    A. ``Area of potential effects'' is defined in 36 CFR 800.16(d) 
and 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. ``Excluded historic rail properties'' means those historic 
properties that illustrate the history of the development of the 
nation's railroads or rail transit systems and:
    1. Are at least 50 years old, possess national significance, and 
meet the National Register eligibility criteria as defined in 36 CFR 
60.4;
    2. are less than 50 years old, possess national significance, 
meet the National Register eligibility criteria, and are of 
exceptional importance;
    3. were listed in the National Register, or determined eligible 
for the National Register by the Keeper pursuant to 36 CFR part 63, 
prior to the effective date of the Program Comment and retain 
eligibility as determined by the USDOT OA; or
    4. are at least 50 years old and meet the National Register 
eligibility criteria at the state or local level of significance, as 
determined by the USDOT OA.
    C. ``Historic property'' is defined in 36 CFR 800.16(l) and 
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.
    D. ``In-kind'' means that new materials used in repairs or 
replacements match the material being repaired or replaced in 
design, color, texture, other visual properties, and, where 
possible, materials. For more information, see The Secretary of the 
Interior's Standards for Rehabilitation, at https://www.nps.gov/tps/standards/rehabilitation.htm.
    E. ``National significance'' means a historic property that is 
eligible or listed in the National Register and either:
    1. designated as a National Historic Landmark;

[[Page 42926]]

    2. designated as a Historical Civil Engineering Landmark;
    3. listed as nationally significant in its nomination or listing 
in the National Register; or
    4. determined by a USDOT OA to have significance at the national 
level.
    F. ``Project Sponsor'' means an entity such as a state, tribal 
or local government, joint venture, railroad commission, compact 
authority, port authority, transit agency or authority, or private 
company that is eligible to receive federal financial assistance 
(e.g., grant, loan). A Project Sponsor may also be an entity that 
requires a federal permit, license, or approval 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).
    G. ``Rail properties'' means infrastructure located within 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 and rail transit yards, parking lots 
and parking structures, landscaping, passenger walkways, and 
security and safety fencing. Rail properties may also include a 
section of a railroad or rail transit line. 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; or property 
unrelated to existing or former railroads and rail transit lines 
that is proposed to be used for new rail infrastructure.
    H. ``Railroad and Rail Transit Rights-of-Way'' means the land 
and infrastructure that have been developed for existing or former 
intercity passenger rail, freight rail, rail transit operations, or 
that are maintained for the purpose of such operations. Rail ROW 
includes current and/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 includes property 
that was previously developed for railroad or rail transit use even 
though the infrastructure has been modified or removed, and the 
property may lack visual evidence of previous railroad or rail 
transit use. It does not include land that was never developed for 
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.
    I. ``Section 106'' means Section 106 of the National Historic 
Preservation Act, 54 U.S.C. 306108.
    J. ``Study area'' means the portion of rail ROW identified for 
the purposes of the evaluation under the property-based approach 
described in section IV. It may be delineated by: location (e.g., 
state, county); name of rail corridor, railroad, rail transit system 
or line; or mile-post information.
    K. ``Undertaking'' is defined at 36 CFR 800.16(y) and 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.
    L. ``Undisturbed portions of rail ROW'' means soils that have 
not been physically impacted by previous construction or other 
ground disturbing activities such as grading. Undisturbed soils may 
occur below the depth of previously disturbed soils or fill.
    M. ``USDOT OA'' means the United States Department of 
Transportation's Operating Administrations, including the Federal 
Railroad Administration (``FRA''), the Federal Transit 
Administration, and the Federal Highway Administration.

VI. Effective Date

    The activities-based approach to exempting consideration of 
effects under Section 106, as described in section III, shall go 
into effect on the date the program comment is issued by the ACHP. 
At that time, federal agencies may immediately utilize the list of 
exempted activities in Appendix A. This includes undertakings that 
have not yet been initiated and undertakings for which the Section 
106 review process is underway but not completed.
    The property-based approach to exempting consideration of 
effects under Section 106, as described in section IV, shall go into 
effect on the date USDOT publishes the implementing guidance in 
accordance with section IV.C.

VII. Program Comment Review

    Within one year of the issuance of this program comment, and 
every two years thereafter, the USDOT OAs and the ACHP shall 
evaluate the ongoing effectiveness and efficiency of the 
implementation of this program comment. The USDOT OAs shall review 
their use and application of the program comment, and may invite 
transportation stakeholders to participate in this review as 
appropriate.

VIII. Amendment

    The ACHP may amend this program comment after consulting with 
the USDOT OAs and other relevant federal agencies, the National 
Conference of State Historic Preservation Offices (``NCSHPO''), 
National Association of Tribal Historic Preservation Officers 
(``NATHPO''), tribal representatives, the National Trust for 
Historic Preservation, and representatives from the railroad and 
rail transit industry, 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.

IX. Withdrawal

    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 List

I. General Rule

    A. The federal agency is responsible for determining if an 
undertaking is covered by one or more activities in the Exempted 
Activities List. At its discretion, the federal agency may require 
the Project Sponsor to provide relevant documentation, such as 
plans, photographs, or materials specifications, so that the federal 
agency can determine whether the Exempted Activities List applies.
    B. Whenever possible, historic materials must be repaired rather 
than replaced. At its discretion, the federal agency may require the 
Project Sponsor to provide written justification explaining why 
repair is not feasible. In cases where existing historic materials 
are beyond repair, replacement must be carried out in-kind as 
defined below.
    C. Several of the activities in the Exempted Activities List 
require that the work be ``in-kind.'' For purposes of this program 
comment, ``in-kind'' means that new materials used in repairs or 
replacements match the material being repaired or replaced in 
design, color, texture, other visual properties, and, where 
possible, materials. For more information, see The Secretary of the 
Interior's Standards for Rehabilitation, at https://www.nps.gov/tps/standards/rehabilitation.htm. Except where specified in the Exempted 
Activities List, a Project Sponsor is not required to involve an 
SOI-qualified professional in carrying out in-kind work. However, 
the federal agency, at its discretion, may require the Project 
Sponsor to provide documentation demonstrating that the work would 
be in-kind, utilize non-damaging or reversible methods, etc.
    D. Certain activities, as specified in the Exempted Activities 
List, require that the federal agency and Project Sponsor ensure the 
work is performed by or under the supervision of individuals that 
meet the SOI's Professional Qualification Standards in Architectural 
History, Architecture, and/or Historic Architecture (see 36 CFR 
Appendix A to part 61), as appropriate, and must be performed in 
accordance with the SOI Standards for the Treatment of Historic 
Properties (https://www.nps.gov/tps/standards.htm). If an SOI-
qualified professional is not available to assist in the evaluation 
and/or design of a specified activity, that activity is not exempt 
from Section 106 review.
    E. The Exempted Activities List does not apply to archaeological 
sites of any nature located within undisturbed portions of rail ROW. 
Therefore, if an exempted activity would cause ground disturbance in 
undisturbed portions of the rail ROW, the federal agency is 
responsible for complying with Section 106 regarding consideration 
of potential effects to archaeological sites before approving the 
undertaking.
    F. The Exempted Activities List does not apply to non-railroad 
or rail transit related

[[Page 42927]]

buildings or structures located within or adjacent to rail ROW 
within an undertaking's APE. The federal agency remains responsible 
for determining whether an activity in the Exempted Activities List 
has the potential to affect non-rail historic properties and for 
complying with Section 106 with regard to those properties before 
approving the undertaking.
    G. If an unanticipated discovery of a non-rail historic 
property, archaeological site of any nature, or human remains, or an 
unanticipated adverse effect on a previously identified non-rail 
historic property is made during the implementation of an activity 
on the Exempted Activities List, the Section 106 requirements at 36 
CFR 800.13 and/or applicable burial law, as appropriate depending on 
the nature of the resource, apply because effects to such resources 
are not covered by this program comment. At minimum, the Project 
Sponsor must cease all work in and secure the area and notify the 
federal agency within 72 hours. The federal agency will consult with 
SHPO, federally recognized Indian tribes, NHOs, and other 
stakeholders as appropriate, to determine the appropriate course of 
action. The Project Sponsor must comply with any applicable state or 
local law regarding the resource. If an undertaking involves 
multiple activities on the Exempted Activities List, those that do 
not involve or affect the non-rail resource, as determined by the 
federal agency, may continue.
    H. The Project Sponsor must comply with the requirements of any 
applicable easements, covenants, and/or state or local historic 
preservation ordinances. Other federal and state laws such as the 
National Environmental Policy Act and Section 4(f) of the USDOT Act 
also remain applicable to activities exempted from Section 106, as 
appropriate.

II. Exempted Activities List

A. Track and Trackbed

    1. Track and trackbed maintenance, repair, replacement, and 
upgrades within the existing footprint (i.e., existing subgrade, 
sub-ballast, ballast, and rails and crossties (track)). These 
activities must not include alterations to the trackbed that would 
result in a substantial visual change (i.e., elevation or alignment) 
in the relationship between the trackbed and the surrounding 
landscape or built environment.
    2. Reinstallation of double tracking on a currently single-
tracked line that had historically been double-tracked.

B. Bridges and Tunnels

    1. In-kind maintenance and repair of bridges and tunnels.
    2. In-kind replacement of bridge hardware and mechanical and 
electrical components (e.g., brackets, rivets, bearings, motors).
    3. Maintenance or repair of tunnel ventilation structures and 
associated equipment (e.g., fans, ducting).
    4. Replacement of tunnel ventilation structures that are not 
located within a previously identified historic district.
    5. Replacement of tunnel ventilation structures that are located 
and publicly visible within a previously identified historic 
district, provided the replaced structures are substantially the 
same size as or smaller than the existing structures and are 
visually compatible with the surrounding built environment.
    6. Maintenance, repair, or replacement of tunnel emergency 
egress hatchways.
    7. Maintenance, installation, repair, or replacement of 
lighting, signal and communications systems, railings, and other 
safety- and security-related equipment or elements located within 
the interiors of tunnels.
    8. Removal or replacement of any bridge or tunnel material or 
added-on element that is not part of the original construction.
    9. Actions to strengthen or repair deteriorating non-character 
defining structural components of bridges that are intended to 
maintain their useful life and safe use and that do not 
substantially alter the bridge from its existing appearance.
    10. The following activity must be performed or supervised by an 
SOI-qualified professional: In-kind replacement of character-
defining structural or non-structural components of a bridge 
superstructure or substructure that do not diminish the overall 
integrity of the bridge. This does not include demolition of a 
bridge and replacement with an entirely new structure.

C. Railroad and Rail Transit Buildings (e.g., Passenger Stations 
and Depots, Maintenance and Equipment Buildings, Interlocking 
Towers) and Boarding Platforms

    1. Modifications (e.g., repair, extension, widening, slope 
adjustments, changes in height) to non-character defining passenger 
platforms and walkways that are necessary to meet Americans with 
Disabilities Act (ADA) requirements or other federal or municipal 
public or life safety codes and standards, provided those changes do 
not require associated improvements such as relocation of station 
doors, construction of ramps, etc. When the original material and 
construction used something other than common concrete or asphalt 
methods (e.g., decorative brick or tile), new materials (e.g., non-
slip) may be used but must visually match the existing decorative 
pattern.
    2. Maintenance or repair of escalators, elevators, or stairs. 
Repair of decorative (i.e., non-mechanical) elements must be in-
kind. Repair of stairs constructed of material other than common 
concrete (e.g., brick, tile, marble) must be in-kind.
    3. Cleaning, painting, or refinishing of surfaces with a like 
color and where the products or methods used would not damage the 
original surface.
    4. Maintenance, repair, or replacement of fire or security alarm 
or fire suppression systems, physical access controls, security 
cameras, wireless internet, and similar safety, security, or 
computer equipment and devices.
    5. Installation of new fire or security alarm or fire 
suppression systems, physical access controls, security cameras, 
wireless internet, and similar safety, security, or computer 
equipment and devices, except within publicly accessible areas of 
stations or depots. Such new installations must, to the extent 
feasible and when appropriate, use a minimally obtrusive design; 
match the color of surrounding paint, wall coverings, finishes, 
etc.; avoid damaging or removing historic fabric; be attached to 
non-historic fabric; be concealed within existing enclosures or 
conduit or behind walls and ceilings; be co-located with existing 
similar modern equipment, etc.
    6. Maintenance, repair, or replacement of HVAC or electrical 
systems.
    7. Installation of new HVAC or electrical systems, except within 
publicly accessible areas of stations or depots. Such new 
installations must, to the extent feasible and when appropriate, use 
a minimally obtrusive design; match the color of surrounding paint, 
wall coverings, finishes, etc.; avoid damaging or removing historic 
fabric; be attached to non-historic fabric; be concealed within 
existing enclosures or conduit or behind walls and ceilings; be co-
located with existing similar modern equipment, etc.
    8. Minor ADA improvements at passenger stations that do not 
damage, cover, alter, or remove character-defining architectural 
spaces, features, or finishes. Examples include the installation of 
restroom stalls/partitions, hardware and fixtures such as grab bars, 
tilt frame mirrors, and sinks and toilets; tactile warning strips on 
floors, passenger walkways, and platforms; cane detectors; sidewalk 
curb cuts; automatic door openers; and handrails.
    9. Maintenance, repair, or replacement of previously installed 
ADA elements.
    10. Maintenance, repair, or replacement of pumps, air 
compressors, or fueling stations.
    11. Removal of mechanical equipment inside railroad and rail 
transit facilities not visible to the public. Examples include relay 
panels, switchgear, and track diagram boards. If the equipment to be 
removed includes obsolete or outdated technology, the Project 
Sponsor must contact the 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 must demonstrate to the federal 
agency that it has made a good faith effort to contact such parties 
prior to removal and disposition of such equipment.
    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 existing parking surfaces.
    14. In-kind maintenance or repair of platform boarding canopies 
and supports.
    15. In-kind maintenance or repair of architecturally distinctive 
light poles and fixtures.
    16. State-of-good-repair (``SOGR'') activities not included 
elsewhere in this section that are necessary to keep a station, 
depot, or other railroad or rail transit building inhabitable and 
safe, as required by applicable federal or municipal fire, life 
safety, or health codes or standards, and in transportation-related 
use that meet the following conditions:
    a. Maintenance and repair activities that affect character-
defining architectural

[[Page 42928]]

features (e.g., elevator head houses and portals; roofs; doors; 
windows; stairs; platform canopies; columns; floors; ceilings) must 
be in-kind.
    b. SOGR activities do not include demolition, decommissioning, 
or mothballing of railroad or rail transit 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).
    17. Maintenance, repair, or replacement activities that are not 
included elsewhere on this list and involve non-character-defining 
non-structural elements, features, systems, hardware, and fixtures 
in the interior or on the exterior of non-station railroad or rail 
transit buildings.
    18. In-kind maintenance or repair of original architectural 
features in the interior or on the exterior of passenger stations 
(e.g., handrails, ticket counters, mouldings.
    19. In-kind maintenance or repair of character-defining signage 
(e.g., station identifier, wayfinding) within publicly accessible 
areas of stations or depots.
    20. Maintenance, repair, or replacement of non-character 
defining signage (e.g., station identifier, wayfinding) within 
publicly accessible areas of stations or depots.
    21. The following activities must be performed or supervised by 
an SOI-qualified professional:
    a. Replacement of character defining escalators, elevators, or 
stairs, and decorative elements related thereto.
    b. ADA improvements at passenger stations that involve the 
modification or removal of character-defining features such as 
stairs, floors, ceilings, doors, windows, roofs, platform boarding 
canopies and supports, benches/seating, or ticket counters; or that 
involve the addition of new ramps, stairs, escalators, elevators, 
wheelchair lifts, wheelchair lift enclosures, station identifier and 
wayfinding signage, and public information display systems 
(``PIDS'').
    c. SOGR activities that include replacement of character-
defining architectural features or otherwise require substantial 
rehabilitation to address deteriorated conditions. As previously 
indicated, SOGR activities do not include demolition, 
decommissioning, or mothballing of railroad or rail transit 
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).
    d. Installation of new fire or security alarm or fire 
suppression systems, physical access controls, security cameras, 
wireless internet, and similar safety, security, or computer 
equipment and devices within publicly accessible areas of stations 
or depots.
    e. Installation of new HVAC or electrical systems within 
publicly accessible areas of stations or depots.
    f. Replacement of platform boarding canopies and supports.
    g. Replacement of architecturally distinctive light poles and 
fixtures.
    h. Replacement of original architectural features in the 
interior or on the exterior of passenger stations (e.g., handrails, 
ticket counters, mouldings).
    i. Replacement of character-defining signage (e.g., station 
identifier, wayfinding) within publicly accessible areas of stations 
or depots.

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 or transmission lines, but does not include demolition 
and replacement of an entire 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, e.g., transformers, 
circuit breakers, electrical switches. This does not include 
demolition and replacement of an entire substation.
    4. In-kind maintenance or repair of signal bungalows, signal 
houses, control houses, instrument houses, and structures of similar 
function.
    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.
    6. The following activities must be performed or supervised by 
an SOI-qualified professional:
    a. Replacement of signal bungalows, signal houses, control 
houses, instrument houses, and structures of similar function.

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

    1. Maintenance, repair, or rehabilitation of at-grade railroad 
and rail transit crossings including installation of railroad and 
rail transit crossing signs, signals, gates, warning devices and 
signage, highway traffic signal preemption, road markings, paving 
and resurfacing, and similar safety improvements.
    2. Replacement of at-grade railroad and rail transit crossings 
on existing railroads, rail transit lines, and roadways, including 
components such as crossing signs, signals, gates, warning devices 
and signage, highway traffic signal pre-emption, road markings, 
paving and resurfacing, and similar safety features.
    3. Expansion of sidewalks, constructed with common concrete or 
asphalt methods, along the sides of an existing at-grade railroad or 
rail transit crossing.
    4. In-kind maintenance or repair of grade-separated crossings of 
other transportation modes (highways, local roads, pedestrian 
underpasses).
    5. In-kind rehabilitation or replacement of 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 or substantial change in appearance. Replacements must be 
substantially the same appearance and size as existing.
    6. Addition of lanes, turning lanes, road widening, and pavement 
markings at existing at-grade crossings when the crossing does not 
involve an individual National Register-listed or known historic 
roadway or a roadway that is a contributing resource to a National 
Register-listed or known historic district.
    7. Construction of curbs, gutters, or sidewalks adjacent to 
existing roadway at existing at-grade crossings when the crossing 
does not involve 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.
    8. The following activities must be performed or supervised by 
an SOI-qualified professional:
    a. Addition of lanes, turning lanes, road widening, and pavement 
markings at existing at-grade crossings 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.
    b. Construction of curbs, gutters, or sidewalks adjacent to 
existing roadway at existing at-grade crossings 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 and Security

    1. Maintenance, repair, replacement, or installation of the 
following security and intrusion prevention devices adjacent to 
tracks or in railyards or rail transit yards: Security cameras, 
closed captioned television (``CCTV'') systems, light poles and 
fixtures, bollards, emergency call boxes, access card readers, and 
warning signage.
    2. Maintenance, repair, replacement, or installation of security 
and safety fencing, guardrails, and similar intrusion prevention and 
fall protection measures.
    3. Maintenance, repair, 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, and warning signage.
    4. Maintenance, repair, replacement, or installation of wayside 
detection devices.
    5. Maintenance, repair, replacement, or installation of bridge 
clearance/strike beams.

G. Erosion Control, Rock Slopes, and Drainage

    1. Placement of riprap and similar bank stabilization methods 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 or brick 
headwalls. This does not include culverts such as those built by the 
Civilian

[[Page 42929]]

Conservation Corps or those made out of unique materials (e.g., a 
hollowed log).
    5. Expansion through horizontal elongation of pre-cast concrete, 
cast iron, and corrugated metal culverts that lack stone or brick 
headwalls for the purpose of improved drainage.
    6. Embankment stabilization or the re-establishment of ditch 
profiles.
    7. Corrections to drainage slopes, ditches, and pipes to 
alleviate improper drainage or changing alluvial patterns.
    8. In-kind maintenance, repair, or replacement of retaining 
walls. Replacements must be substantially the same size and 
appearance as existing.
    9. In-kind maintenance or repair of stone or brick culvert 
headwalls and wingwalls.
    10. Maintenance, repair, or replacement of culvert headwalls and 
wingwalls constructed of concrete.
    11. Maintenance, repair, or alterations to the interiors of 
culverts and related drainage pathways.
    12. The following activities must be performed or supervised by 
an SOI-qualified professional:
    a. Replacement of stone or brick culvert headwalls and 
wingwalls.
    b. Vertical extension of stone or brick culvert headwalls using 
in-kind materials and design compatible with existing.

H. Environmental Abatement

    1. Removal or abatement of environmental hazards such as 
asbestos, treated wood, and lead or heavy-metal coatings and 
paintings. Activities that replace coatings, paint, flooring 
materials, etc. must be of the same color and appearance as the 
materials that have been removed or abated.
    2. Removal of contaminated ballast, sub-ballast, subgrade, and 
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.\1\
---------------------------------------------------------------------------

    \1\ 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 or rail transit operations that 
do not result in noise or vibration impacts. The lead federal agency 
may, at its discretion, require a noise and vibration study be 
prepared by a qualified subject matter expert before approving the 
undertaking.
    3. Temporary storage of rail cars or rail transit cars on active 
rail lines.
    4. Maintenance, repair, or replacement of noise barriers. If a 
replaced noise barrier is to be located and publicly visible within 
a National Register-listed or eligible historic district, it must be 
substantially the same size as or smaller than existing and be 
visually compatible with the surrounding built environment.

J. Landscaping, Access Roads, and Laydown Areas

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

K. Utilities

    1. Maintenance, repair, or replacement of above-ground and 
underground utilities (e.g., electrical, sewer, compressed air 
lines, fuel lines, fiber optic cable).
    2. Maintenance, repair, replacement, or installation of utility 
lines and conduit inside tunnels that does not involve affixing new 
equipment to the exterior face of tunnel portals.
    3. 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 (i.e., 
non-decorative concrete, asphalt, pavement, or gravel).
    2. Adding lanes to existing shared use paths or other trails 
constructed with common materials.
    3. Adding at-grade crossings for pedestrians and bicycle 
facilities, shared use paths, or other trails.
    4. Maintenance, repair, replacement, or installation of bicycle 
aid stations, bicycle racks, and bicycle storage sheds, and similar 
amenities. Installation of new bicycle storage structures must be 
visually compatible with the surrounding building environment when 
located adjacent to historic passenger stations or within National 
Register-listed or eligible historic districts.
    5. Maintenance, repair, replacement, or installation of 
information kiosks or displays, wayfinding signage, and similar 
amenities for pedestrian, bicyclists, or other path or trail users.
    6. Maintenance, repair, or replacement of curbs, gutters, or 
sidewalks constructed with common materials.

M. Construction/Installation of New Railroad or Rail Transit 
Infrastructure

    For any of the activities listed below, the federal agency shall 
require the work be performed by or under the supervision of an SOI-
qualified professional, based on the scope of work and location of a 
specific proposal. As with all activities in this Exempted 
Activities List, but especially important for construction/
installation of new railroad or Rail Transit infrastructure, 
consideration must be given to the potential for effects to non-rail 
properties within or adjacent to the rail ROW.
    1. Minor new construction and installation of railroad or rail 
transit 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 or rail transit car service and 
inspection facilities; trailers or temporary structures for housing 
rail personnel; fueling stations; underground utilities; overhead 
utilities, transmission lines, and communications poles, and 
signage. This does not include substantial new construction, such as 
construction of new passenger stations, railyards or rail transit 
yards, or tunnels, or demolition of existing structures.
    2. Construction of new at-grade crossings.
    3. Construction of new erosion control, drainage, or stormwater 
management infrastructure, such as culverts or retaining walls.

    Authority:  36 CFR 800.14(e).

    Dated: August 21, 2018.
John M. Fowler,
Executive Director.

[FR Doc. 2018-18329 Filed 8-23-18; 8:45 am]
 BILLING CODE 4310-K6-P