March 8, 2022

RAIL

MOVING AMERICA FORWARD

Amanda Murphy, Deputy Federal Preservation Officer, FRA

Katherine Zeringue, Federal Preservation Officer, FRA

Section 106 Basics for Potential FRA Grantees
2

Presenters

Katherine Zeringue

Federal Preservation Officer, 

Environment & Project 

Engineering Division

Amanda Murphy

Deputy Federal 

Preservation Officer, 

Environment & Project 

Engineering Division
3

• Objectives: Basic 5 W’s and H of 

Section 106

o What

o Why 

o Where

o Who 

o When

o How

• Q&A

Agenda

Photo Credit: APTA Committee, John Smatlak
4

Objectives

FRA wants to 

help you, 

the Grantee, 

understand 

the basics of 

Section 106

WHEN

should you begin thinking 

about Section 106 and 

preparing Section 106 

materials?

WHO

is responsible for completing 

the Section 106 process? 

WHAT

• is Section 106 and the Program 

Comment for Rail ROW?

• information does FRA need from a 

grantee?

WHERE

does Section 106 fit into the 

grant lifecycle?

WHY

does FRA need to comply 

with Section 106?

HOW

• do you assist FRA in complying with Section 

106?

• does Section 106 affect the obligation of grant 

funding for your project and project delivery? 

• long does the Section 106 process take?
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WHAT & WHY

WHAT is Section 106? 

WHY does FRA need to comply with Section 106?
6

Section 106 of the National Historic Preservation Act 

• Requires federal agencies to consider the effects of their 

undertakings on historic properties

o For FRA, undertakings are typically federally funded 

projects (i.e., grants and loans) and new safety rules

o Historic properties are:

 Districts, sites, buildings, structures, orobjects

 Generally, 50 years of age or older

 Listed in or eligible for listing in the National Register of 

Historic Places (NRHP)

• Follows a decision-making process established in 

regulations at 36 CFR 800

• Must be complete prior to the obligation of FRA grant 

funding and implementation of a project

• Is one of several federal environmental review 

requirements under the “NEPA umbrella”
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The NEPA Umbrella

• Clean Air Act

• Clean Water Act

• Environmental Justice Executive Order

• U.S. Department of Transportation Act 

of 1966; Section 4(f)

• Section 106 of the National Historic 

Preservation Act

• Endangered Species Act

• Coastal Zone Management Act

• Migratory Bird Treaty Act

• Floodplain Management Executive Order

• State/local environmental laws

• Property acquisition

• Prime & unique farmland

• Noise and vibration

• Hazardous materials/waste

• Safety

• Visual Effects

NEPA = National Environmental Policy Act
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WHERE & WHEN

WHERE does Section 106 fit into the grant lifecycle?

WHEN should the Section 106 process begin?
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Pre-Award 

(NOFO Development)

Award 

(Obligation Process) Administration Monitoring/Oversight Closeout

NOFO = Notice of Funding Opportunity

Section 106: A Critical Pathway to Grant Obligation

Key

Activities

Duration

• NOFO Publication

• Application Intake & 

Evaluation

• Environmental 

Readiness Review 

(including Section 

106)

• Project Selection

• Notification

• Terms and Conditions

• Budget and SOW 

Development

• Environmental Review 

(including Section 106)

• Engineering Review

• Performance 

Measures

• Stakeholder 

Agreements

• Creating Grant Award 

in Grant Solutions

• Grant Administration 

• Annual Monitoring

• Project Management

• Review Project 

Deliverables

• Provide Technical 

Assistance

• Enforcement and 

Compliance

• Complete Section 106 

mitigation requirements 

(if applicable)

• Grantee Notification

• Final Invoice 

• Final Performance 

Report

• Tracking Project 

Benefit Agreements

• Inform FRA that all 

Section 106 

mitigation measures 

are complete (if 

applicable)

Up to 5 months 6-15 months 3+ years 90 days
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HOW & WHAT

HOW does FRA conduct Section 106 review?

WHAT information does FRA need?
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The Section 106 Process: Standard 4-Step 

Graphic credit: https://www.achp.gov/digital-library-section-106-landing/section-106-review-process-flowchart
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Key Concepts: Participants in the Section 106 Process 

Section 106 

Process

FRA Grantee

SHPO/THPO Tribes

Consulting 

Parties Public

ACHP ACHP: Advisory Council on Historic Preservation

SHPO: State Historic Preservation Officer 

THPO: Tribal Historic Preservation Officer
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• Geographic area or areas within which 

an undertaking may directly or 

indirectly cause alteration in the 

character or use of a historic property

• Will be unique for each project 

depending upon the scale and nature 

of the undertaking

• May extend beyond the rail right-ofway (ROW) and involve non-rail 

properties

• Includes primary work sites, as well as 

access roads, staging areas, etc. 

Key Concept: Area of Potential Effects (APE)

Photo Credits: FRA Project Files
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How far away will construction 

and/or operational activities be 

heard or vibrations felt?

Defining the APE

• Information you, as the Grantee, need to provide for FRA to define the APE:

Where will ground-disturbing activities 

take place?

• Examples: Locations of pile driving, in-water work 

including barge anchors, placement of riprap, 

removal of debris, tree/vegetation clearing, 

construction of new temporary or permanent 

access roads, new equipment or materials staging 

areas.

What needs to be demolished, cut down, 

destroyed, etc. in order to facilitate 

your project?

Are there historic districts (e.g., 

neighborhoods, downtown commercial 

areas) immediately adjacent to your 

project?

From how far away will your 

project be seen?

• Will work only be internal, within a 

building?

• Will people be able to see your project 

from nearby buildings?

• Is vegetation or are other visual 

intrusions shielding your project?
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• NRHP: Official list of districts, sites, buildings, structures, 

and objects significant in American history, architecture, 

archeology, engineering, and culture

• Have historic significance at the local, state, and/or 

national level

• Through Section 106, you must identify historic properties 

that are listed in OR eligible for listing in the NRHP

o Listed: Designated by the Keeper following a formal 

nomination process and review by a professional 

review board 

o Eligible for Listing: Determined by federal agencies, in 

consultation with SHPO and/or THPO

o Previously unidentified resources that meet NRHP criteria

Key Concepts: National Register of Historic Places (NRHP)

Photo Credits: history.delaware.gov
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Key Concepts: Historic Property and NRHP Eligibility Criteria 

Historic properties possess integrity of location, design, setting, materials, 

workmanship, feeling, and association, and:

• Are associated with events that have made a significant 

contribution to the broad patterns of our history; or 

• Are associated with the lives of significant persons in our past; or 

• Embody the distinctive characteristics of a type, period, 

or method of construction, or represent the work of 

a master, possess high artistic values, or represent 

a significant and distinguishable entity whose components 

may lack individual distinction; or

• Have yielded or may be likely to yield information 

important in history or prehistory.

• Events

• Persons

• Architecture/design

• Archaeology 
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Identifying and Evaluating Historic Properties in the APE

Information the Grantee needs to provide to help FRA identify and evaluate historic 

properties:

• What resources are already listed in the National Register of Historic Places?

• What resources does the SHPO have listed as eligible in their records?

• What resources are 45 years of age or older?

• Do you have records (e.g., construction, 

maintenance, inspections, hazardous materials 

remediation) that show previous ground 

disturbance or modifications?

• Do you have a cultural resources report for your 

project or previous projects in the area?

• Do you have an archaeological report for your 

project or previous projects in the area?

If SHPO concurs with FRA that there are no historic properties in the APE, Section 106 review is complete.
18

Determining Effects 

Will your project result in the following effects to any historic properties identified 

in the APE?

• Demolition, removal, and replacement 

• Alteration or rehabilitation

• Damage or destruction 

• Introduction of visual, atmospheric, 

and/or audible elements

• Change in setting

• Neglect or abandonment

• Transfer, lease, or sale

If SHPO concurs there are no adverse effects to historic properties, the Section 106 process is 

complete.
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Key Concept: Effects

Not Adverse Adverse

NPS.gov

1001archives.blogspot.com lifeasahuman.com Photo Credits: Katherine Zeringue, and ValerieGomez

fineartsamerica.com pinterest.com
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Resolving Adverse Effects

FRA notifies 

ACHP 

FRA and Grantee work 

with SHPO, Tribes, & 

consulting parties to 

develop ways to 

minimize or mitigate 

adverse effects

Develop Section 

106 agreement 

document 

Memorandum of 

Agreement 

(MOA)

Programmatic 

Agreement (PA)

Execute MOA/PA 

Grantee/Project Sponsor 

completes mitigation 

requirements and submits annual 

reports to FRA and SHPO
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WHAT

WHAT is the Program Comment for Rail ROW?
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The Section 106 Process: ACHP Program Alternatives (36 CFR 800.14)

a) Alternate Procedures

b) Programmatic Agreements

c) Prototypical ProgrammaticAgreements

d) Exempted Categories

e) Standard Treatments

f) Program Comment
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Applicability: Section 106 Program Comment for Rail ROW

• Applies to activities that:

o Are federal undertakings

o Affect rail properties

 Listed or eligible for listing in the National 

Register of Historic Places

 Treated as eligible, based on such factors 

as age and integrity

o Are located within:

 Existing rail ROW (in part or in full)

 Disturbed portions of the rail ROW

• Applies to projects for which the environmental review has not started or is already in 

process

• Some projects will be subject to:

o Both the application of the Program Comment and a standard Section 106 review

o Other Section 106 Program alternative or agreement document
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• 95 total exempted activities

• 13 category types

o Track and Trackbed

o Bridges and Tunnels

o Railroad Buildings and Boarding Platforms

o Signals, Communications, and Power Generation

o Roadway At-Grade Crossing and Grade Separations

o Safety and Security

o Erosion Control, Rock Slopes, and Drainage

o Environmental Abatement

o Operations

o Landscaping, Access Roads, and Laydown Areas

o Utilities

o Bicycle and Pedestrian Facilities, Shared Use Paths, and 

Other Trails

o Construction/Installation of New Railroad Infrastructure

Appendix A: Overview of Exempted Activities
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Projects That Don’t Qualify for Section 106 Program Comment

Examples of projects not exempt from Section 106 review:

• Demolition/replacement of railroad bridges

• Repair/rehabilitation of railroad bridges that do not follow the specified criteria in 

the Exempted Activities List (e.g., change in super- or sub-structure material from 

timber to concrete)

• Projects located outside of existing rail ROW (e.g., rail line relocations)
26

Section 106 Program Comment for Rail Rights-of-Way 

• Focuses on railroad infrastructure located in railroad ROW

• Includes a list of maintenance, repair, and upgrade activities that are exempt 

from Section 106 review

• “User friendly” version of Exempted Activities List available on FRA’s website: 

https://railroads.dot.gov/rail-network-development/environment/finalsection-106-program-comment-rail-rights-way

• FRA delivered a webinar on December 6, 2018

• Available on FRA’s website: https://railroads.dot.gov/rail-networkdevelopment/training-guidance/webinars
27

WHAT

WHAT should be included about Section 106 in a grant application? 
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Grant Application: Environmental Readiness

• Potential FRA grantees do not initiate Section 106 consultation just to apply for an FRA 

grant or loan

• In the environmental readiness section of the application, explain whether FRA or another 

federal agency completed or is currently conducting the Section 106 process for your 

project

• No Section 106 

consultation for your 

project yet? 

Provide FRA with 

information to help 

us determine how long 

the process may take

Sample information Description

Age of infrastructure Age of railroad infrastructure involved with your project

Proximity to historic 

properties

Explain if there are any resources within or surrounding your 

project area that are historic properties

Project schedule Account for the time it may take to do Section 106 review in your 

project schedule

Exempted activity Explain if you think all or part of your project would qualify as an 

exempted activity under the Rail ROW Program Comment.

Budget costs Include in your project budget costs for qualified staff to prepare 

Section 106 review materials
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Grant Application: Environmental Readiness

Potential FRA grantees may conduct some informal 

coordination to gather preliminary historic resource 

information for the environmental readiness section of an 

FRA grant application

• The SHPO can provide:

• A desktop search of their historic property and archaeological 

survey records (if this info was not on their website)

• Recommendations on qualified cultural resource consultants

• Recommendations on potential consulting parties (including 

Federally Recognized Tribes) for the project

• State-specific Section 106 documentation requirements or 

forms, or submission requirements

• SHPO does not have to provide any of this assistance

RESOURCES

For a preliminary desktop 

survey of historic properties 

within your project area:

• National Register of Historic 

Places 

https://www.nps.gov/subjec

ts/nationalregister/database

-research.htm

• State Historic Preservation 

Office (SHPO) website 

https://www.nps.gov/subjec

ts/nationalregister/statehistoric-preservationoffices.htm

of historic properties 
30

HOW

HOW long does the Section 106 process take?

HOW does this affect the obligation of grant funding for a project? 
31

Section 106 Time Frames

Time frames vary depending upon:

• The type & location of project 

• The type & number of historic properties involved 

• Whether the project will have adverse effects to 

historic properties

• If there is public interest regarding the project 

• When in the project planning/design process FRA 

receives adequate documentation from the Grantee 

to advance the Section 106 process 
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Potential Time Frames Once FRA Receives Adequate Documentation

1 month

6 months 1 year +

If Program 

Comment is 100% 

applicable

If Section 106 

consultation is 

required*

If adverse effects 

need to be 

resolved

*30-day regulatory review by SHPO and consulting parties for every submission (some projects require multiple submissions).
33

WHO

WHO is responsible for completing this process?
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Grantees Should...

 Begin the process early on in the grants management lifecycle

 Review the Exempted Activities List to see if all or parts of the 

project may be covered

 Ask FRA for technical assistance once you are awarded a grant

 Use appropriate cultural resource professionals to prepare draft 

Section 106 materials for FRA

 Prepare letters, materials, presentations for and/or actively 

participate in consulting party meetings

 Complete architectural and/or 

archaeological surveys following 

SHPO/state standards, if necessary

 Prepare agreement documents, if necessary
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Grantees Can...

• As previously explained, a grantee may informally coordinate with SHPO to do a records 

search, identify potential consulting parties (including federally recognized Indian Tribes), 

understand state-specific requirements, etc.

• Initiate Section 106 consultation if authorized by FRA

• Engage with SHPO, THPO, Tribes, or consulting parties when instructed to or authorized 

by FRA
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Grantees Should Engage Qualified Professionals

Grantees must assist FRA by:

• Identifying, evaluating, and assessing effects to 

historic properties

o This often requires hiring a qualified 

consultant, such as an architectural historian 

and/or archaeologist, to perform background 

research and/or a field survey

o Some SHPOs maintain and can provide lists of 

recommended cultural resources consultants 

Photo Credit: Alpha Stock Images

*http://alphastockimages.com/; Nick Youngson, http://www.nyphotographic.com/; original Image: http://www.picpedia.org/highway-signs/c/consultant.html; CC license: 

https://creativecommons.org/licenses/by-sa/3.0/
37

Grantees Should Engage Qualified Professionals

Consultant qualifications typically include: 

• Meeting the Secretary of the Interior’s (SOI) 

Professional Qualification Standards: 

https://www.nps.gov/articles/sec-standards-profquals.htm

• Previous Section 106 support to federal agencies

• Knowledge of any state-specific requirements

• Hold applicable state permits/licenses for conducting 

archaeological fieldwork

• Experience with transportation/railroad infrastructure 

Photo Credit: Alpha Stock Images

*http://alphastockimages.com/; Nick Youngson, http://www.nyphotographic.com/; original Image: http://www.picpedia.org/highway-signs/c/consultant.html; CC license: 

https://creativecommons.org/licenses/by-sa/3.0/
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FRA Is Responsible for...

1. Providing technical assistance to Grantees

2. Verifying appropriate application and usage of the Program 

Comment for Rail ROW: Exempted Activities List 

3. Authorizing Grantees to initiate Section 106 consultation

4. Reviewing and approving all Section 106 materials related to defining 

the APE, identification/evaluation of historic properties, and effects determinations; 

this includes reviewing architectural and/or archaeological survey reports

5. Government-to-government consultation with federally recognized Indian tribes

6. Making effects determinations 

7. Enforcing terms of MOA/PA, including monitoring Grantee’s implementation of 

mitigation measures
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Working with FRA 

BEST PRACTICES COMMON MISTAKES

Grantees are 

encouraged to

Begin early! Account for Section 106 

review in project planning/schedule 

And avoid Starting the process too late in the project 

planning/design process and/or too late in the 

grant cycle

Engage qualified professionals to 

conduct fieldwork and/or prepare 

Section 106 consultation materials

Not having qualified individuals to conduct 

necessary fieldwork or help prepare Section 

106 documents

Be aware that historic properties 

often include railroad infrastructure

Not providing the information needed or 

requested by FRA in a timely manner

Not asking for technical assistance from FRA

Poor project planning, where time and 

financial considerations are not reasonably 

considered in the project schedule
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Helpful Resources and Training 

FRA: https://railroads.dot.gov/rail-network-development/environment/final-section106-program-comment-rail-rights-way

ACHP:

https://www.achp.gov/protecting-historic-properties

Section 106 Resources

Section 106 Regulations (36 CFR Part 800): 

https://www.achp.gov/sites/default/files/regulations/2017-02/regs-rev04.pdf

Section 106 Review Process: https://www.achp.gov/sites/default/files/2018-

05/Section%20106%20Review%20Process.Handout.2017.jpg

rev04.pdf
41

Helpful Resources and Training 

A Citizen’s Guide to Section 106 Review: 

https://www.achp.gov/sites/default/files/documents/2019-04/CitizenGuide2015v4-

spreads%20layout.pdf

Section 106 and Infrastructure Projects: 

https://www.achp.gov/section-106-and-Infrastructure-Projects

Guidance on Agreement Documents: 

https://www.achp.gov/initiatives/guidance-agreement-documents

Recommended On-Line Training

ACHP’s website: https://www.achp.gov/training
Contact Us

Federal Railroad Administration

1200 New Jersey Avenue, SE

Washington, DC 20590

Connect with us USDOTFRA

Presenters:

Amanda Murphy

Deputy Federal Preservation Officer

Federal Railroad Administration

Katherine Zeringue

Federal Preservation Officer

Federal Railroad Administration

Email: FRA.106Exemption@dot.gov