Final Section 106 Program Comment for Rail Rights-of-Way

Section 11504 of the 2015 Fixing America’s Surface Transportation Act (FAST Act)  directed the Secretary of Transportation to develop a proposed exemption of railroad rights-of-way (ROW) from review under the requirements of Section 106 of the National Historic Preservation Act (Section 106). The final Section 106 exemption for rail ROW would be approved by the Advisory Council on Historic Preservation (ACHP), and be consistent with the Section 106 exemption for the Interstate Highway System approved by the ACHP in 2005.

As described in the November 17, 2017 Federal Register Notice, the FAST Act-mandated exemption was incorporated into a draft program comment, which is a type of Section 106 program alternative allowable under the ACHP’s Section 106 implementing regulations. FRA, in coordination with the Federal Transit Administration (FTA), the USDOT Office of the Secretary, and the Federal Highway Administration (FHWA), led the development of the program comment, which covers both railroad and rail transit ROW.

On August 17, 2018, the ACHP issued the Section 106 Program Comment to Exempt Consideration of Effects to Rail Properties Within Rail Rights-of-Way (Program Comment).The full text is available in the ACHP’s Federal Register Notice published on August 24, 2018. The Program Comment is available for use by any federal agency having an undertaking that may affect rail properties located in railroad or rail transit ROW.

The Program Comment is comprised of two parts: 1) An activities-based approach, which is a comprehensive list of maintenance, repair, and upgrade activities that are likely to have effects to historic rail properties that are minimal or not adverse and are therefore exempt from Section 106 review (exempted activities list); and 2) An optional Project Sponsor-led property-based approach that ultimately may further streamline the Section 106 review process for transportation-related projects in railroad and rail transit ROW. Under the optional property-based approach, Project Sponsors would work with the USDOT Operating Administrations (i.e., FRA, FTA and/or FHWA, as appropriate) to designate “excluded historic rail properties;” such properties are those that are important in illustrating the history of the development of railroads and rail transit in the US and would remain subject to Section 106.

The Program Comment required USDOT to publish guidance for implementing the property-based approach before this part of the Program Comment is effective and available to Project Sponsors. USDOT provided an opportunity for stakeholder review and comment on the draft guidance in July 2019. USDOT finalized the guidance on October 11, 2019, and it is available here.

Questions regarding the Program Comment may be sent to: FRA.106Exemption@dot.gov.

Webinar Training

The Federal Railroad Administration hosted two webinars explaining the streamlining approaches to the Section 106 review process: Section 106 Program Comment to Exempt Consideration of Effects to Rail Properties for Rail Rights-of-Way (focusing on the Activities-Based Approach) and Optional Property-Based Approach to Exempt Consideration of Effects to Rail Properties within Rail Rights-of-Way. To view these presentations and/or the webinar recordings, visit the Training & Guidance page.