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

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.

The ACHP approved the final program comment on August 17, 2018. 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 final program comment is comprised of two parts: 1) 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.

Questions regarding the program comment may be sent to: FRA.106Exemption@dot.gov.