A Program Comment to exempt the consideration of rail properties within rail right-of-way ("Rail ROW") was issued by the Advisory Council on Historic Preservation ("ACHP"), in coordination with the U.S. Department of Transportation (USDOT), on August 24, 2018 (83 FR 42920). The Rail ROW Program Comment relieves FTA and other Federal agencies from having to conduct reviews in accordance with Section 106 of the National Historic Preservation Act for certain activities affecting rail properties located within railroad and rail transit ROW. The Rail ROW Program Comment was developed pursuant to 49 U.S.C. § 24202, and established two approaches to exempt rail ROW from Section 106 review: 1) an activities-based approach; and 2) an optional property-based approach.

Activities-based approach: FTA project sponsors have the option to use the “activities-based approach” to exempt Section 106 review for routine maintenance, repair, and upgrades to rail properties within the rail right-of-way. Appendix A of the Rail ROW Program Comment provides an Exempt Activities List that can be completed without Section 106 review as long as the conditions listed in Appendix A: Section 1, A-G are met. These 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. The activities-based approach is available for immediate use on FTA projects. Please see the link to the recording of the external transportation stakeholders training webinar held on October 25, 2018 for more information.

Property-based approach: FTA project sponsors have the option to use the “property-based approach” to propose “excluded historic rail properties” within a specified study area or by property type (bridges, stations, culverts, etc.) to FTA.  Following a review of the materials and a required public notification, FTA will designate “excluded historic rail properties” that will remain subject to Section 106 and the historic rail transit properties or property types that will be exempt from Section 106 review for future undertakings. USDOT and ACHP issued guidance for the optional property-based approach on October 11, 2019. This guidance identifies the proposal elements, coordination expectations, and the review and approval process. FTA provided an overview of this approach by webinar held on December 12, 2019.  Project Sponsors can create an account and submit a proposed list of excluded properties here. Please email Sharyn.LaCombe@dot.gov with any questions regarding the Program Comment.