As published in the Federal Register 83 FR 42920 (August 24, 2018)

V1_08/30/2018

Page 1

Section 106 Program Comment for Rail ROW

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 (SOI) 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 nondamaging 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.
As published in the Federal Register 83 FR 42920 (August 24, 2018)

V1_08/30/2018

Page 2

F. The Exempted Activities List does not apply to non-railroad or rail transit related 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 nonrail 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.
As published in the Federal Register 83 FR 42920 (August 24, 2018)

V1_08/30/2018

Page 3

Section 106 Program Comment for Rail ROW

Appendix A: Exempted Activities List

A. Track and Trackbed

1. Track and trackbed maintenance, repair, replacement, and upgrades within the existing 

footprint (i.e., existing subgrade, subballast, 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.
As published in the Federal Register 83 FR 42920 (August 24, 2018)

V1_08/30/2018

Page 4

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 nonstructural 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., nonmechanical) 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 colocated with existing similar modern equipment, etc.

6. Maintenance, repair, or replacement of HVAC or electrical systems.
As published in the Federal Register 83 FR 42920 (August 24, 2018)

V1_08/30/2018

Page 5

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 nonhistoric 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:
As published in the Federal Register 83 FR 42920 (August 24, 2018)

V1_08/30/2018

Page 6

a. Maintenance and repair activities that affect character-defining architectural 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).
As published in the Federal Register 83 FR 42920 (August 24, 2018)

V1_08/30/2018

Page 7

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.
As published in the Federal Register 83 FR 42920 (August 24, 2018)

V1_08/30/2018

Page 8

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 atgrade 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 atgrade 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 Registerlisted 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 atgrade crossings when the crossing involves an individual National Register-listed or 

eligible roadway or a roadway that is a contributing resource to a National Registerlisted or eligible historic district.
As published in the Federal Register 83 FR 42920 (August 24, 2018)

V1_08/30/2018

Page 9

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 Registerlisted 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 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 reestablishment of ditch profiles.
As published in the Federal Register 83 FR 42920 (August 24, 2018)

V1_08/30/2018

Page 10

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, subballast, 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. (*A quiet zone is an FRA exemption to the rule requiring trains to 

sound their horns when approaching public highway-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).)
As published in the Federal Register 83 FR 42920 (August 24, 2018)

V1_08/30/2018

Page 11

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 laydown 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.
As published in the Federal Register 83 FR 42920 (August 24, 2018)

V1_08/30/2018

Page 12

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.