42920 Federal Register / Vol. 83, No. 165 / Friday, August 24, 2018 / Notices 

Dated: August 10, 2018. 

Suzanne M. Frisbie, 

Deputy Director, Technology Transfer and 

Intellectual Property Office, National Institute 

of Allergy and Infectious Diseases. 

[FR Doc. 2018–18397 Filed 8–23–18; 8:45 am] 

BILLING CODE 4140–01–P 

ADVISORY COUNCIL ON HISTORIC 

PRESERVATION 

Notice of Issuance of Program 

Comment To Exempt Consideration of 

Effects to Rail Properties Within Rail 

Rights-of-Way 

AGENCY: Advisory Council on Historic 

Preservation. 

ACTION: Program Comment issued to 

exempt consideration of effects to rail 

properties within rail rights-of-way. 

SUMMARY: The Advisory Council on 

Historic Preservation (‘‘ACHP’’) issued a 

Program Comment to exempt 

consideration of effects to rail properties 

within rail rights-of-way at the request 

of the U.S. Department of 

Transportation to accelerate the review 

of these undertakings under Section 106 

of the National Historic Preservation Act 

and to meet the requirement of Section 

11504 of the Fixing America’s Surface 

Transportation Act. The Program 

Comment can be used by any federal 

agency with responsibility to consider 

the effects of undertakings within rail 

rights-of-way. Federal agencies using 

the Program Comment may fulfill their 

Section 106 responsibilities for the 

relevant undertakings by implementing 

the terms of this comment, which 

include identifying those activities that 

meet the conditions in Appendix A and 

opting into the process to identify 

excluded historic rail properties and 

seek further streamlining of the review 

process under the property-based 

approach. 

DATES: The Program Comment was 

issued by the ACHP on August 17, 2018. 

ADDRESSES: Address all questions 

concerning the Program Comment to 

Kelly Y. Fanizzo, Office of General 

Counsel, Advisory Council on Historic 

Preservation, 401 F Street NW, Suite 

308, Washington, DC 20001–2637. You 

may submit questions through 

electronic mail to: kfanizzo@achp.gov. 

FOR FURTHER INFORMATION CONTACT: 

Kelly Y. Fanizzo, (202) 517–0193, 

kfanizzo@achp.gov. 

SUPPLEMENTARY INFORMATION: Section 

106 of the National Historic 

Preservation Act (‘‘NHPA’’), as 

amended, 54 U.S.C. 306108 (‘‘Section 

106’’), requires federal agencies to take 

into account the effects of undertakings 

they carry out, license, permit, or fund 

to historic properties and provide the 

Advisory Council on Historic 

Preservation (‘‘ACHP’’) a reasonable 

opportunity to comment with regard to 

such undertakings. The ACHP has 

issued the regulations that set forth the 

process through which federal agencies 

comply with these responsibilities. 

Those regulations are codified under 36 

CFR part 800 (‘‘Section 106 

regulations’’). 

Under Section 800.14(e) of those 

regulations, federal agencies can request 

the ACHP to issue a ‘‘Program 

Comment’’ on a particular category of 

undertakings in lieu of conducting 

reviews for each individual undertaking 

in the category. An agency can meet its 

Section 106 responsibilities with regard 

to the effects of those undertakings by 

implementing an applicable Program 

Comment that has been issued by the 

ACHP. 

I. Background 

At the request of the U.S. Department 

of Transportation (‘‘USDOT’’), the 

ACHP has issued a Program Comment 

that provides new efficiencies in the 

Section 106 review for undertakings 

with the potential to affect historic rail 

properties within railroad and rail 

transit rights-of-way (‘‘rail ROW’’). 

Section 11504 of the Fixing America’s 

Surface Transportation Act (‘‘FAST 

Act’’) (49 U.S.C. 24202), enacted on 

December 4, 2015, mandated the 

development of a Section 106 

exemption for ‘‘railroad rights-of-way.’’ 

The FAST Act required that ‘‘the 

Secretary [of the USDOT] shall submit 

a proposed exemption of railroad rightsof-way from the review under section 

306108 of title 54 to the [ACHP] for 

consideration, consistent with the 

exemption for interstate highways 

approved on March 10, 2005 (70 FR 

11928).’’ The FAST Act continued that, 

‘‘Not later than 180 days after the date 

on which the Secretary submits the 

proposed exemption . . . to the 

Council, the Council shall issue a final 

exemption of railroad rights-of-way 

from review under chapter 3061 of title 

54 consistent with the exemption for 

interstate highways approved on March 

10, 2005 (70 FR 11928).’’ While the 

Section 106 regulations provide the 

process and criteria for development of 

program alternatives, the FAST Act 

modified the timeframe and directed 

agency actions. 

The ACHP worked closely with the 

Federal Railroad Administration 

(‘‘FRA’’), the Federal Transit 

Administration (‘‘FTA’’), the Federal 

Highway Administration (‘‘FHWA’’), 

and the Office of Policy Development, 

Strategic Planning, and Performance 

within the Office of the Secretary, 

USDOT (‘‘OST–P’’); representatives 

from the railroad and rail transit 

industries; and historic preservation 

stakeholders to develop the final 

Section 106 program alternative for rail 

ROW. The ACHP communicated 

extensively with the staff of the Senate 

Committee on Commerce, Science, and 

Transportation (‘‘Senate Committee’’) as 

well in developing this program 

alternative. The ACHP recommended 

incorporating the originally proposed 

exemption within a Program Comment 

to better achieve the intent and purpose 

of the FAST Act and meet the needs of 

the various stakeholders. 

The Program Comment is the product 

of consultation and careful review. The 

USDOT and FRA conducted outreach 

on the preliminary exemption concept 

and early drafts prior to submitting a 

formal request to the ACHP in July 

2017. The ACHP in turn published the 

draft Program Comment in the Federal 

Register (82 FR 54390, November 17, 

2017), and hosted additional meetings 

with industry and preservation 

representatives in 2018. Recognizing the 

complexity of the issues to be addressed 

and wanting to ensure the final product 

met the statutory requirement of the 

FAST Act to be consistent with the 

interstate highway exemption, the staff 

for the Senate Committee extended the 

deadline for the final issuance of the 

Program Comment. The final Program 

Comment takes into account the many 

significant comments and questions 

raised by various stakeholders over the 

course of its development and 

represents the collective work of the 

ACHP, USDOT (inclusive of FRA, FTA, 

FHWA, and OST–P), and the Senate 

Committee staff to ensure that it meets 

the FAST Act requirement. 

The Program Comment is comprised 

of two major parts: (1) An activity-based 

approach, and (2) a property-based 

approach. The activity-based approach 

provides a list of activities in Appendix 

A for which, when the specific 

conditions are met, no further Section 

106 review is required. Based on the 

past experience of USDOT Operating 

Administrations (‘‘USDOT OAs’’), 

undertakings limited to the activities 

specified in Appendix A have typically 

resulted in effects to historic properties 

that are either minimal or not adverse. 

The property-based approach 

establishes a process whereby project 

sponsors can opt to work with the 

relevant USDOT OA and stakeholders to 

develop a list of excluded historic rail 

properties that would remain subject to 

Section 106 review, and exempt from 


daltland on DSKBBV9HB2PROD with NOTICES
Federal Register / Vol. 83, No. 165 / Friday, August 24, 2018 / Notices 42921 

review the effects of undertakings to all 

other historic rail properties within a 

designated area. While the activitybased approach will be immediately 

effective, the property-based approach 

does not go into effect until USDOT 

publishes implementing guidance. Once 

in effect, both the activity-based 

approach and the property-based 

approach are available for use by all 

federal agencies with a responsibility to 

carry out Section 106 review for 

undertakings that may affect rail 

properties within rail ROW. 

The Program Comment does not apply 

to undertakings that are located within 

or would affect historic properties 

located on tribal lands; undertakings 

consisting of activities not included in 

Appendix A and that may affect an 

excluded historic rail property 

designated by USDOT; undertakings 

that could affect historic buildings, 

structures, sites, objects, or districts that 

do not have a demonstrable relationship 

to the function and operation of a 

railroad or rail transit system; 

undertakings that could affect 

archaeological sites located in 

undisturbed portions of rail ROW, 

regardless of whether the sites are 

associated with railroads or rail transit 

systems; and undertakings that could 

affect historic properties of religious and 

cultural significance to federally 

recognized Indian tribes or Native 

Hawaiian organizations. There is no 

sunset clause in the Program Comment; 

however, there will be regular program 

review and evaluations between the 

USDOT and the ACHP to ensure its 

proper implementation. 

II. Public Participation and Response to 

Comments 

The USDOT conducted outreach 

between 2016–2018 with a variety of 

stakeholders, including State Historic 

Preservation Officers (‘‘SHPOs’’), Tribal 

Historic Preservation Officers 

(‘‘THPOs’’), Indian tribes, Native 

Hawaiian organizations, national 

historic preservation organizations, 

national railroad and rail transit 

associations, state departments of 

transportation, and railroad and rail 

transit companies, regarding 

development of the Program Comment; 

this included webinars; conference calls 

and in-person meetings to address 

concerns of specific stakeholders; 

presentations at national transportation 

conferences, and sharing and seeking 

informal comments on early drafts. The 

ACHP published the draft Program 

Comment in the Federal Register (82 FR 

54390, November 17, 2017). The ACHP 

notified SHPOs, THPOs, Indian tribes, 

Native Hawaiian organizations, national 

preservation organizations, and other 

stakeholders via emails on November 

21, 2017, to provide them notice of the 

publication and solicit input. The 

public comment period was open until 

December 8, 2017, and the ACHP and 

USDOT received a total of 261 

comments from 48 commenters: 11 

SHPOs; 6 Indian tribes; 7 state DOTs; 5 

transit organizations; 5 federal agencies; 

4 railroad organizations; 4 trade 

organizations; 2 stakeholders; and 4 

other organizations. 

The comments raised several 

procedural and substantive issues, 

including the following: Questioning 

the consistency of the draft Program 

Comment with the interstate highway 

exemption as required by the FAST 

ACT; clarifying the types of historic 

properties that may be covered by the 

Program Comment including historic 

properties of religious and cultural 

significance to Indian tribes and Native 

Hawaiian organizations, and 

archaeological sites; clarifying the 

SHPOs’ and THPOs’ roles regarding the 

development of the excluded historic 

properties lists; questioning the 

potential conflict of the Program 

Comment’s requirements with Section 

4(f) of the US Department of 

Transportation Act; monitoring the 

accountability of the project sponsor in 

appropriately applying the Program 

Comment; asking about the need for a 

dispute resolution provision; clarifying 

and defining specific terminology; 

specifying annual reporting 

requirements; questioning the types of 

activities that should or should not be 

exempt from Section 106 review under 

Appendix A; and questioning the types 

of activities in Appendix A that should 

be subject to review or supervision by 

an individual meeting the Secretary of 

the Interior’s (‘‘SOI’’) Professional 

Qualifications Standards for 

Archaeologists or Architectural 

Historians. 

In response to the comments received 

to the November 2017 publication, the 

ACHP and USDOT made several 

revisions to the Program Comment. The 

exclusion for historic properties of 

religious and cultural significance to 

Indian tribes and Native Hawaiian 

organizations and archaeological sites 

was clarified. The ACHP and USDOT 

also clarified how the USDOT would 

publish implementing guidance to 

provide further detail regarding the 

identification and evaluation of 

excluded historic rail properties. The 

Program Comment incorporates dispute 

resolution provisions, additional 

clarification or removal of specific terms 

and definitions, and a revised list of 

activities in Appendix A. 

The ACHP and USDOT hosted 

meetings and invited representatives of 

the National Conference of State 

Historic Preservation Officers 

(‘‘NCSHPO’’), the National Trust for 

Historic Preservation, the National 

Association of Tribal Historic 

Preservation Officers, and the railroad 

and rail transit industries in February 

and May 2018. These meetings 

continued discussions about the draft 

Program Comment and in particular, 

addressed the list of activities to be 

included in Appendix A and 

determining which activities should 

require supervision of SOI-qualified 

personnel, and the process for 

establishing the lists of excluded 

historic rail properties and the scope of 

the exemption under the property-based 

approach. Draft versions of Appendix A 

and the property-based approach were 

circulated for additional review and 

comment following the May meeting. By 

the June 4, 2018, comment response 

date, the ACHP and USDOT received a 

total of 128 additional comments from 

16 commenters: 11 SHPOs, including 

NCSHPO; 4 industry representatives; 

and 1 historic preservation stakeholder. 

The SHPOs provided several general 

comments and many specific comments 

on both the revised draft Appendix A 

and the property-based approach. Some 

questioned the broad scope of the 

Program Comment; however, due to the 

requirements of the FAST Act, the twopart approach has been retained in the 

final version as the ACHP and USDOT 

believe it represents the best way to 

achieve the intent and purpose of the 

statutory mandate. 

Many SHPOs asked for annual 

reporting in the Program Comment. The 

Program Comment was initially revised 

to clarify an annual reporting 

requirement as well as the information 

that agencies must include in such 

reports. Several SHPOs asked that an 

expiration date be included in the 

Program Comment. While the sunset 

clause and reporting requirement have 

been removed, as noted in the 

discussion of additional comments 

below, the revised Program Comment 

requires a regular evaluation be 

conducted (within one year of issuance 

and every two years thereafter) to ensure 

the effective operation of the Program 

Comment and that its terms are being 

met. The lack of an expiration date and 

process for regular evaluations is 

consistent with the interstate highway 

exemption. 

Many SHPOs asked for a dispute 

resolution process both in the decisionmaking under Appendix A and the 

development of the excluded historic 

property lists. The Program Comment 


daltland on DSKBBV9HB2PROD with NOTICES
42922 Federal Register / Vol. 83, No. 165 / Friday, August 24, 2018 / Notices 

was revised to include an opportunity 

for objection under Appendix A 

implementation when it appears that a 

specific activity may be adversely 

affecting historic properties. It was also 

clarified that USDOT may request ACHP 

assistance in resolving any disputes or 

questions in the development of the 

excluded historic property lists. The 

ACHP, rather than the Keeper of the 

National Register, is the appropriate 

entity to resolve disputes in the 

development of the excluded historic 

property lists because such disputes are 

about the applicability of the Program 

Comment rather than the National 

Register eligibility of any property. 

Should a question regarding a property’s 

eligibility be raised during the 

implementation of the Program 

Comment, USDOT may consult with the 

Keeper at any time to resolve questions 

or disagreements. 

One SHPO remarked that it would 

like to see more checks and balances in 

the Program Comment to ensure effects 

to historic properties are minimal or not 

adverse. The Program Comment has 

been revised to incorporate the 

comments received into the list of 

activities in Appendix A and to 

incorporate SHPO and tribal 

involvement in the development of the 

excluded historic property lists. The 

Program Comment includes activities 

that may adversely affect historic 

properties and is not limited to the 

conditions imposed on exemptions per 

36 CFR 800.14(c). In response to a 

concern that this approach is contrary to 

the NHPA and other preservation laws, 

the ACHP and USDOT believe the 

Program Comment, with its two-part 

approach, strikes the right balance to 

achieve the requirements of the FAST 

Act and is consistent with the interstate 

highway exemption. Further, one SHPO 

recommended that traditional cultural 

properties also be listed as a property 

type to be excluded from the terms of 

the Program Comment. The 

applicability of the Program Comment is 

consistent with that of the interstate 

highway exemption in that it does not 

modify the Section 106 review of effects 

to non-rail properties, historic 

properties of religious and cultural 

significance to Indian tribes or Native 

Hawaiian organizations, or to 

archaeological sites located in 

undisturbed locations. Because the 

Program Comment specifies that it does 

not apply to, and Section 106 continues 

to apply to these properties, the ACHP 

determined it was not necessary to 

specify that traditional cultural 

properties are not covered by the 

Program Comment. 

Finally, a concern was again raised 

regarding the coordination or impact of 

this Program Comment on a federal 

agency’s Section 4f requirement. The 

Program Comment does not modify in 

any way USDOT’s responsibility to 

comply with Section 4f or an agency’s 

or project sponsor’s responsibility to 

comply with any other applicable 

federal, state, or local legal requirement. 

In regard to discovery situations of nonrail historic properties, all relevant laws, 

for example those related to treatment of 

human remains, continue to apply. 

In response to many comments, the 

introduction and applicability section of 

Appendix A was revised and clarified. 

Most SHPOs suggested specific edits to 

the list of activities and conditions in 

Appendix A. A number of SHPOs 

suggested that SOI-qualified 

professionals review additional 

activities or asked that specific activities 

be removed from the Appendix. Other 

SHPOs asked to be more involved in the 

Appendix A process and to be provided 

an opportunity to review any activity 

that requires SOI-qualified 

professional’s involvement. Changes 

were made to many individual 

activities, such as certain work done to 

meet the Americans with Disabilities 

Act, replacement of light fixtures in 

public spaces, and the addition of lanes 

and road widening for at-grade crossings 

within a National Register-eligible or 

listed historic district. In other cases, 

the ACHP and USDOT believe the 

activities and conditions in Appendix A 

work to reasonably ensure the activities 

would have minimal or no adverse 

effect on historic properties. The 

Program Comment includes an objection 

process in cases where there is a 

concern that an adverse effect is 

occurring or occurred, and the regular 

program evaluations would provide an 

additional opportunity to assess the 

implementation of Appendix A. 

SHPOs raised a concern that the use 

of in-kind replacement might result in a 

loss of integrity to a historic district. 

Further, one SHPO said no loss of a 

character-defining feature should be 

exempted from Section 106 review. The 

ACHP and USDOT believe Appendix A 

allows for a measured balance of 

preservation and greater efficiency by 

exempting consideration of effects 

under Section 106 for those activities 

that would likely result in minimal or 

no adverse effect to historic properties. 

Some SHPOs asked how federal 

agencies and project sponsors without 

SOI-qualified professionals on staff 

would determine whether the proposed 

activity had the potential to affect 

archaeological sites in undisturbed 

locations. In response, a definition of 

‘‘previous disturbance’’ was added to 

the definitions section of the Program 

Comment to better clarify for all users 

the scope of the Program Comment. In 

addition, many ground disturbing 

activities in Appendix A require the 

involvement of an SOI-qualified 

professional. 

NCSHPO, and all of the commenting 

SHPOs, expressed concern with the lack 

of SHPO and other stakeholder 

involvement in the development of the 

excluded historic property lists. Further, 

several expressed concern regarding the 

sources of information that project 

sponsors would be instructed to consult 

in developing their initial proposed list 

as well as the timeline for any SHPO or 

tribal review of draft lists. In response, 

the Program Comment was revised to 

require SHPO and tribal notification by 

project sponsors in the initial 

development of the proposed lists and 

by USDOT in determining the final lists. 

The USDOT is required to seek public 

review and comment on each proposed 

list, and may also require a project 

sponsor to conduct additional 

evaluation, including field surveys, or 

prepare documentation to show how it 

identified historic properties. It is the 

USDOT who makes the final decision 

regarding the list of excluded historic 

rail properties following the outlined 

process, not the project sponsor. 

Additional information regarding 

USDOT’s coordination with project 

sponsors during the development of the 

excluded historic property lists, 

recommended outreach to 

knowledgeable stakeholders, and the 

timelines for SHPO and tribal review 

will be provided in the implementing 

guidance. 

Some SHPOs were concerned with 

the resource-specific approach that is 

allowed under the property-based 

approach. Part of this concern was that 

it may allow inadvertent effects to other 

historic properties by its misapplication 

or by a lack of knowledge about other 

historic properties that may be present 

within an undertaking’s area of 

potential effects. Further, one SHPO 

asked how the context and significance 

of rail properties that may extend 

beyond a specific study area would be 

evaluated. As noted above, the Program 

Comment now includes a requirement 

for SHPO and tribal notification and a 

request for input in the development of 

the excluded historic property lists. The 

intent is for the determination of each 

study area to be meaningful and 

cognizant of the rail line’s or rail transit 

system’s historic context. The Program 

Comment also includes a regular 

evaluation requirement to allow the 

ACHP, USDOT, and other stakeholders 


daltland on DSKBBV9HB2PROD with NOTICES
Federal Register / Vol. 83, No. 165 / Friday, August 24, 2018 / Notices 42923 

the opportunity to review its 

implementation and determine its 

effectiveness. Should evaluation show 

that other historic properties are being 

adversely affected by a misapplication 

of the program comment, the parties 

would be able to address it, for example, 

via the amendment process in the 

Program Comment. 

Further, commenters expressed 

concern about potential unintended or 

unknown adverse effects, including 

visual effects, to archaeological sites and 

traditional cultural properties. 

Consistent with the interstate highway 

exemption, the Program Comment does 

not apply to non-rail historic properties 

and any archaeological site of any 

nature in undisturbed locations. Section 

106 review to consider the effects to 

these types of historic properties would 

still need to occur, even if specific 

activities or effects to certain rail 

properties would be streamlined under 

the terms of the Program Comment. 

There was some confusion as to 

whether the criteria for including a rail 

property on the excluded property list 

was just an assessment of its National 

Register eligibility or whether such 

evaluation only considered rail 

properties significant at the national 

level. On a related point, one SHPO said 

it appeared the duties of the SHPO 

regarding developing and maintaining 

lists of eligible and listed historic 

properties were being given to the 

USDOT. The excluded historic property 

lists only refer to the applicability of the 

Program Comment, not to any particular 

property’s eligibility for the National 

Register. The Program Comment is not 

intended to modify the process for 

determining properties eligible for 

listing on the National Register. While 

there is reference to a property’s 

significance, properties significant at the 

state and local level may also be 

considered for inclusion in the excluded 

historic property lists. The same criteria 

for developing the lists of excluded 

historic properties was used in the 

interstate highway exemption, and per 

the requirement of the FAST Act, this 

Program Comment is consistent with 

that approach. In response to a concern 

raised about any change to the process 

of de-listing a property from the 

National Register, the relevant text has 

been deleted. 

There was also a question whether the 

term ‘‘non-rail’’ historic property should 

be more clearly defined. In response, the 

ACHP and USDOT reviewed the 

definition of rail historic property and 

believe it is clear, including any 

temporal association. The use of these 

terms relates to the mandate of the 

FAST Act to exempt effects within rail 

ROW. 

Many SHPOs requested that any 

surveys be done by SOI-qualified 

professionals and more generally, that 

project sponsors be required to use SOIqualified professionals in proposing 

excluded historic rail properties. 

USDOT may require a project sponsor to 

conduct additional evaluation, 

including field surveys, and prepare 

documentation to show how it 

identified historic properties. SHPOs 

also raised a question about whether the 

property-based approach would allow 

for a loss of integrity to historic districts 

due to cumulative effects. The Program 

Comment has been revised to require 

specific opportunities for SHPO and 

tribal involvement in the development 

of the excluded historic property lists. It 

is also important to note that the 

Program Comment does not apply to 

consideration of effects to any non-rail 

historic properties. 

Many SHPOs noted concern about the 

level of detail to be provided in the 

implementing guidance as well as a 

concern with the lack of required 

consultation with SHPOs and other 

parties by the USDOT and the ACHP in 

developing the guidance. In response, 

more details were added in the Program 

Comment to the description of the 

content of the guidance. Further, this 

approach models the approach taken in 

the interstate highway exemption by 

USDOT to develop implementing 

guidance to assist in the implementation 

of the program alternative. 

The National Trust for Historic 

Preservation endorsed the comments 

provided by the Colorado SHPO as well 

as provided a few additional points. 

They asked that revisions be made to 

clarify the continued applicability of 

Section 4f and National Environmental 

Policy Act to undertakings that may be 

subject to the Program Comment, and 

that SOI-qualified personnel be 

involved in additional activities in 

Appendix A. They asked that a dispute 

resolution process be added to 

Appendix A as well. Finally, they 

expressed concern about the level of 

detail to be included in the 

implementing guidance document and 

the lack of consultation with SHPOs and 

other parties in its development. These 

comments reflect points raised and 

addressed in the discussion above. 

Four industry representatives 

provided comments on the drafts of 

Appendix A and the property-based 

approach shared with stakeholders in 

May 2018 (the American Public 

Transportation Association, Amtrak, the 

Association of American Railroads 

[AAR] and American Short Line and 

Regional Railroad Association 

collectively). They reiterated previous 

concerns that this draft was not 

consistent with the interstate highway 

exemption and did not do enough to 

effectively streamline the review 

process for undertakings within rail 

ROW. However, Amtrak said the 

Program Comment would enhance its 

ability to perform crucial maintenance 

and enhancement projects in a timely 

manner. As noted above, the ACHP and 

USDOT believe this two-part Program 

Comment meets the statutory 

requirement to exempt the 

consideration of effects within rail ROW 

consistent with the interstate highway 

exemption. The industry representatives 

asked that the sunset clause be deleted 

from the draft, and it has been removed 

and replaced with regular evaluations. 

They expressed concern over the 

reporting requirement as being too 

burdensome under Appendix A. The 

reporting requirement was initially 

revised to be an annual report. Finally, 

the industry representatives noted 

concern over the title of the ‘‘excluded’’ 

historic property lists, and revisions 

were made to the section headings to 

clarify the applicability and context for 

these lists. 

After making the edits noted above, 

USDOT submitted a revised final draft 

Program Comment to the ACHP on June 

25, 2018. The ACHP made further 

revisions and circulated this draft to its 

council members and industry 

representatives for an informal review. 

In response, AAR and the Senate 

Committee staff asked for additional 

changes to the Program Comment, and 

in particular, asked the ACHP to remove 

the reporting requirement as it was still 

seen as overly burdensome on industry. 

The final version of the Program 

Comment does not include any annual 

reporting requirement but requires more 

frequent program evaluations and 

requires USDOT OAs to review their use 

and application of the Program 

Comment. 

III. Final Text of the Program Comment 

The following is the text of the 

Program Comment as issued by the 

ACHP: 

Program Comment Program Comment To 

Exempt Consideration of Effects to Rail 

Properties Within Rail Rights-of-Way 

Section 106 of the National Historic 

Preservation Act (‘‘NHPA’’), 54 U.S.C. 

306108 (‘‘Section 106’’), requires federal 

agencies to take into account the effects of 

their undertakings on historic properties and 

to provide the Advisory Council on Historic 

Preservation (‘‘ACHP’’) a reasonable 

opportunity to comment with regard to such 

undertakings. The ACHP has issued 


daltland on DSKBBV9HB2PROD with NOTICES
42924 Federal Register / Vol. 83, No. 165 / Friday, August 24, 2018 / Notices 

regulations that set forth the process through 

which federal agencies comply with these 

responsibilities. Those regulations are 

codified under 36 CFR part 800 (‘‘Section 106 

regulations’’). 

Under section 800.14(e) of the Section 106 

regulations, agencies can request the ACHP 

to provide a program comment on a 

particular category of undertakings in lieu of 

conducting separate reviews of each 

individual undertaking under such category, 

as set forth in 36 CFR 800.3 through 800.7. 

Federal agencies can satisfy their Section 106 

responsibilities with regard to the effects of 

undertakings on rail properties located in 

railroad and rail transit rights-of-way (‘‘rail 

ROW’’) by following this program comment 

and the steps set forth therein. 

I. Introduction 

The ACHP is issuing this program 

comment to exempt consideration of effects 

under Section 106 to rail properties located 

within rail ROW. This program comment has 

been developed in accordance with Section 

11504 of the Fixing America’s Surface 

Transportation Act (‘‘FAST Act’’) (49 U.S.C. 

24202), which mandated the development of 

a Section 106 exemption for ‘‘railroad rightsof-way.’’ More specifically, it required the 

Secretary of Transportation to submit a 

proposed exemption to the ACHP for 

consideration, and for the ACHP to issue a 

final exemption not later than 180 days after 

the date of receipt of the U.S. Department of 

Transportation’s (‘‘USDOT’’) submittal. 

This program comment establishes two 

methods to meet the statutory directive: An 

activities-based approach and a propertybased approach. The activities-based 

approach described in section III exempts 

from Section 106 review the activities listed 

in Appendix A, ‘‘Exempted Activities List,’’ 

provided the conditions outlined therein are 

met. Those 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. 

While those activities may over time alter 

various historic elements within rail ROW, 

these changes are likely to be minimal or not 

adverse and are necessary to continue 

meeting the transportation needs of the 

nation. The property-based approach 

described in section IV provides an optional 

process for identifying excluded historic rail 

properties that are subject to Section 106 

review, while exempting consideration of 

effects to other rail properties. 

If a federal agency responsible for carrying 

out, licensing, permitting, or assisting an 

undertaking with the potential to affect 

historic rail properties meets the terms of this 

program comment, its Section 106 

responsibility to take into accounts those 

effects will be satisfied. 

II. Applicability 

A. Applicability of Program Comment 

1. The program comment applies to 

undertakings that may affect rail properties 

located within rail ROW. Any federal agency 

responsible for an undertaking located within 

rail ROW may utilize this program comment 

to satisfy its Section 106 responsibilities for 

those undertakings. 

2. Under the Surface Transportation Project 

Delivery Program, codified at 23 U.S.C. 327, 

a state may assume the Secretary of 

Transportation’s responsibilities to comply 

with Section 106 for certain projects or 

classes of projects. In such cases, the state 

may rely on this program comment to fulfill 

its Section 106 responsibilities. 

3. Where a program alternative developed 

pursuant to 36 CFR 800.14, such as a 

statewide programmatic agreement, delegates 

Section 106 responsibility to another entity, 

that entity may also utilize the terms of this 

program comment for relevant undertakings 

as applicable. This program comment does 

not supersede or modify any existing 

program alternatives, including existing 

executed programmatic agreements. In cases 

when this program comment and one or more 

other program alternatives apply to a 

proposed undertaking, the federal agency has 

discretion to determine which program 

alternative to follow. 

B. Continued Applicability of Section 106 

1. This program comment does not apply 

to, and the federal agency must comply with 

the requirements of 36 CFR part 800, or 

adhere to the terms of an applicable program 

alternative executed pursuant to 36 CFR 

800.14, for the following: 

a. Undertakings within rail ROW in the 

following situations: 

i. Undertakings that are located within or 

would affect historic properties located on 

tribal lands; 

ii. Undertakings consisting of activities not 

included in Appendix A and that may affect 

an excluded historic rail property designated 

by USDOT pursuant to section IV; 

iii. Undertakings that could affect historic 

buildings, structures, sites, objects, or 

districts that do not have a demonstrable 

relationship to the function and operation of 

a railroad or rail transit system; 

iv. Undertakings that could affect 

archaeological sites located in undisturbed 

portions of rail ROW, regardless of whether 

the sites are associated with railroads or rail 

transit systems. An archaeologist meeting the 

Secretary of the Interior’s Professional 

Qualifications (‘‘SOI-qualified professional’’) 

may assist in identifying undisturbed soils; 

and 

v. Undertakings that could affect historic 

properties of religious and cultural 

significance to federally recognized Indian 

tribes or Native Hawaiian organizations 

(‘‘NHOs’’). 

b. Undertakings that are not within rail 

ROW. For undertakings for which the area of 

potential effects (‘‘APE’’) is partially within 

but extends beyond rail ROW, this program 

comment applies only to the portions of the 

undertaking within rail ROW. Federal 

agencies must consider potential effects to 

properties adjacent to rail ROW that could be 

affected by the undertaking, including noise 

or vibration effects or changes to a historic 

property’s setting. 

2. If an unanticipated discovery of a nonrail historic property, archaeological site of 

any nature, or human remains, or an 

unanticipated adverse effect on a previously 

identified non-rail historic property is made 

during the implementation of an exempted 

activity listed in Appendix A, 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 the affected area, secure the area, and 

notify the federal agency within 72 hours. 

The federal agency will consult with the 

State Historic Preservation Officer (SHPO), 

federally recognized Indian tribes, NHOs, 

and any other stakeholders as appropriate, to 

determine the appropriate course of action. If 

an undertaking involves multiple exempted 

activities listed in Appendix A, those that do 

not involve or affect the non-rail resource, as 

determined by the federal agency, may 

continue. The Project Sponsor must comply 

with any applicable state and/or local law 

regarding the resource. 

C. This program comment does not alter 

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, as 

appropriate. 

III. Activities-Based Approach to Exempting 

Consideration of Effects Under Section 106 

A. Undertakings to maintain, improve, or 

upgrade rail properties located in rail ROW 

that are limited to the activities specified in 

Appendix A are exempt from the 

requirements of Section 106 because their 

effects on historic rail properties are 

foreseeable and likely to be minimal or not 

adverse. The activities included in Appendix 

A are exempt from further Section 106 

review regardless of whether the rail 

properties affected are eligible for or listed on 

the National Register of Historic Places or 

whether the activities may affect an excluded 

historic rail property as designated by 

USDOT pursuant to section IV. 

B. If a SHPO, a federally recognized Indian 

tribe, or an NHO believe an undertaking 

carried out under Appendix A is adversely 

affecting or has adversely affected a historic 

rail property, the SHPO, Indian tribe, or NHO 

may notify the federal agency responsible for 

the undertaking of its concern. The federal 

agency will promptly investigate the concern 

within 72 hours of the notification. The 

federal agency will then determine the 

appropriate course of action, in consultation 

with the Project Sponsor, SHPO, Indian tribe, 

NHO, and other stakeholders, as appropriate. 

IV. Property-Based Approach to Exempting 

Consideration of Effects Under Section 106 

Project Sponsors may opt to collaborate 

with a USDOT Operating Administration 

(‘‘OA’’) to designate excluded historic rail 

properties within a defined study area, as 

described in section IV.A, for which the 

federal agency must comply with 

requirements of Section 106 for undertakings 

that have the potential to affect those 

properties. Once a USDOT OA formally 

excludes historic rail properties within a 

study area, consideration of effects to all 

other evaluated rail properties within that 

study area shall be exempt from Section 106 


daltland on DSKBBV9HB2PROD with NOTICES
Federal Register / Vol. 83, No. 165 / Friday, August 24, 2018 / Notices 42925 

review for any undertaking by any federal 

agency. In accordance with section IV.C. 

below, USDOT will publish implementing 

guidance that will provide further detail 

regarding the identification and evaluation of 

excluded historic rail properties. This 

property-based approach shall go into effect 

on the date USDOT publishes the 

implementing guidance within nine months 

of issuance of this Program Comment. 

A. Identification of Excluded Historic Rail 

Properties 

1. A Project Sponsor that opts to follow the 

property-based approach to identify excluded 

historic rail properties must follow the steps 

outlined below, in accordance with the 

implementing guidance. To provide 

maximum flexibility and utility in this 

process, a Project Sponsor can opt-in on its 

preferred timeline. 

a. A Project Sponsor must clearly define 

the study area, i.e., the portion of rail ROW 

to be evaluated, which can be identified by 

location (e.g., state, county), name of rail 

corridor, railroad, rail transit system or line, 

and/or mile-post information, etc. 

b. A Project Sponsor may choose to 

evaluate for designation as excluded historic 

rail properties either (i) all rail properties in 

the defined study area, or (ii) a particular 

property type or types, such as rail bridges, 

stations and depots, tunnels, etc. within the 

defined study area. 

c. A Project Sponsor’s evaluation efforts 

should also be informed by a variety of 

available and existing information, including 

historic context studies, local and state 

inventories, surveys and evaluations; railroad 

company records (e.g., bridge inventories or 

inspection reports); knowledgeable railroad 

and rail transit personnel; railroad and rail 

transit historical society museum and 

archival collections; railroad and rail transit 

enthusiast website publications; state or local 

historic preservation organizations; and other 

relevant documentation and professional 

experience and expertise. Prior to submitting 

its proposed list to the USDOT OA, each 

Project Sponsor must notify the SHPO(s) in 

the state(s) within which the study area lie(s), 

and Indian tribes or NHOs who may attach 

religious and cultural significance to historic 

properties within the study area, of its 

evaluation efforts to identify excluded 

properties and request their input. If existing 

information is not available to determine the 

potential historic significance of rail 

properties within the defined study area, the 

USDOT OA may require the Project Sponsor 

to conduct a physical survey of the study 

area carried out by or under the direct 

supervision of individuals meeting the SOI’s 

professional qualifications. 

d. A Project Sponsor must submit to the 

USDOT OA the rail properties it proposes be 

designated as excluded historic rail 

properties, along with a summary of its 

evaluation efforts including whether it 

evaluated all rail properties within the study 

area or only a certain type(s) of rail property, 

in accordance with the implementing 

guidance. 

2. Once a Project Sponsor submits a 

proposal to designate excluded historic rail 

properties for a study area to the USDOT OA, 

the USDOT OA will take the following 

actions to review and designate excluded 

historic rail properties: 

a. The USDOT OA will review each 

proposal received from a Project Sponsor in 

accordance with the implementing guidance. 

The USDOT OA shall notify and request the 

input of the SHPO(s), Indian tribes, and/or 

NHOs when reviewing a Project Sponsor’s 

proposal. The USDOT OA will have the 

discretion to require a Project Sponsor to 

conduct additional evaluation and/or provide 

additional documentation to demonstrate 

that the Project Sponsor made a reasonable 

effort to identify potential excluded rail 

properties. Following its review of a Project 

Sponsor’s proposal, the USDOT OA will 

make the proposed list, modified as 

necessary based on its review and any 

consultation or additional evaluation or 

documentation, available for public review 

and comment, and will consider input from 

interested parties and the public before 

designating the excluded historic rail 

properties within a study area. The USDOT 

OA may seek input from the ACHP, 

including advice regarding resolution of any 

objections or concerns from commenters, 

before making such designations. The 

USDOT may, as needed, consult with the 

Keeper of the National Register to resolve 

questions or disagreements about the 

National Register eligibility of any rail 

properties. 

b. The USDOT OA will designate excluded 

historic rail properties within a study area 

within 12 months of receipt of a Project 

Sponsor’s adequately supported proposal, in 

accordance with the implementing guidance. 

c. USDOT will publish and periodically 

update the list of designated excluded 

historic rail properties on its website 

(www.transportation.gov). 

B. Effect of Designation as an Excluded 

Historic Rail Property 

1. All undertakings that may affect 

USDOT-designated excluded historic rail 

properties are subject to Section 106. 

However, undertakings that include activities 

listed in Appendix A require no further 

Section 106 review regardless of the rail 

property that would be affected, including 

excluded historic rail properties. 

2. Once a USDOT OA designates excluded 

historic rail properties within a study area 

and the list is published on the USDOT 

website, consideration of effects to all other 

evaluated rail properties within that study 

area are exempt from Section 106 review. If 

a Project Sponsor chooses to evaluate only a 

specific rail property type, rather than all 

historic properties, within a study area, then 

consideration of effects to rail properties 

other than the type evaluated remain subject 

to Section 106. 

C. Implementing Guidance 

1. Within nine months of the ACHP’s 

issuance of the final Program Comment, 

USDOT, in coordination with the ACHP and 

other federal agencies who may have an 

interest in utilizing the Program Comment, 

will publish guidance for implementing the 

property-based approach. 

2. The guidance will: Provide further 

instruction and examples for evaluating rail 

properties for potential designation as 

excluded historic rail properties to remain 

subject to Section 106; describe the process 

by which a Project Sponsor may propose 

excluded historic rail properties to a USDOT 

OA, including early coordination between 

the Project Sponsor and the USDOT OA; 

establish timeframes for USDOT OA review 

of proposals and designation of excluded 

historic rail properties; and establish public 

involvement methods. 

V. Definition of Terms 

Any terms not defined below shall follow 

the definitions in the NHPA, 54 U.S.C. 

300301–300321, and in 36 CFR parts 60 and 

800. 

A. ‘‘Area of potential effects’’ is defined in 

36 CFR 800.16(d) and means the geographic 

area or areas within which an undertaking 

may directly or indirectly cause alterations in 

the character or use of historic properties, if 

any such properties exist. The area of 

potential effects is influenced by the scale 

and nature of an undertaking and may be 

different for different kinds of effects caused 

by the undertaking. 

B. ‘‘Excluded historic rail properties’’ 

means those historic properties that illustrate 

the history of the development of the nation’s 

railroads or rail transit systems and: 

1. Are at least 50 years old, possess 

national significance, and meet the National 

Register eligibility criteria as defined in 36 

CFR 60.4; 

2. are less than 50 years old, possess 

national significance, meet the National 

Register eligibility criteria, and are of 

exceptional importance; 

3. were listed in the National Register, or 

determined eligible for the National Register 

by the Keeper pursuant to 36 CFR part 63, 

prior to the effective date of the Program 

Comment and retain eligibility as determined 

by the USDOT OA; or 

4. are at least 50 years old and meet the 

National Register eligibility criteria at the 

state or local level of significance, as 

determined by the USDOT OA. 

C. ‘‘Historic property’’ is defined in 36 CFR 

800.16(l) and means any prehistoric or 

historic district, site, building, structure, or 

object included in, or eligible for inclusion 

in, the National Register of Historic Places 

maintained by the Secretary of the Interior. 

This term includes artifacts, records, and 

remains that are related to and located within 

such properties. The term includes properties 

of religious and cultural importance to a 

federally recognized Indian tribe or Native 

Hawaiian organization that meet the National 

Register criteria. 

D. ‘‘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 Standards for Rehabilitation, at 

https://www.nps.gov/tps/standards/ 

rehabilitation.htm. 

E. ‘‘National significance’’ means a historic 

property that is eligible or listed in the 

National Register and either: 

1. designated as a National Historic 

Landmark; 


daltland on DSKBBV9HB2PROD with NOTICES
42926 Federal Register / Vol. 83, No. 165 / Friday, August 24, 2018 / Notices 

2. designated as a Historical Civil 

Engineering Landmark; 

3. listed as nationally significant in its 

nomination or listing in the National 

Register; or 

4. determined by a USDOT OA to have 

significance at the national level. 

F. ‘‘Project Sponsor’’ means an entity such 

as a state, tribal or local government, joint 

venture, railroad commission, compact 

authority, port authority, transit agency or 

authority, or private company that is eligible 

to receive federal financial assistance (e.g., 

grant, loan). A Project Sponsor may also be 

an entity that requires a federal permit, 

license, or approval to carry out a proposed 

activity in rail ROW (e.g., a permit under 

Section 404 of the Clean Water Act issued by 

the Army Corps of Engineers or a permit 

under Section 9 of the Rivers and Harbors 

Act of 1899 issued by the United States Coast 

Guard). 

G. ‘‘Rail properties’’ means infrastructure 

located within rail ROW that has a 

demonstrable relationship to the past or 

current function and operation of a railroad 

or rail transit system, including but not 

limited to: Rails and tracks, ties, ballast, rail 

beds, signal and communication systems, 

switches, overhead catenary systems, 

signage, traction power substations, 

passenger stations/depots and associated 

infrastructure and utilities, freight transfer 

facilities, boarding areas and platforms, 

boarding platform shelters and canopies, 

bridges, culverts, tunnels, retaining walls, 

ancillary facilities, ventilation structures, 

equipment maintenance and storage 

facilities, railyards and rail transit yards, 

parking lots and parking structures, 

landscaping, passenger walkways, and 

security and safety fencing. Rail properties 

may also include a section of a railroad or 

rail transit line. The definition does not 

include properties with no demonstrable 

relationship to the function and operation of 

a railroad or rail transit system, such as: 

adjacent residential, commercial or 

municipal buildings; or property unrelated to 

existing or former railroads and rail transit 

lines that is proposed to be used for new rail 

infrastructure. 

H. ‘‘Railroad and Rail Transit Rights-ofWay’’ means the land and infrastructure that 

have been developed for existing or former 

intercity passenger rail, freight rail, rail 

transit operations, or that are maintained for 

the purpose of such operations. Rail ROW 

includes current and/or former railroad or 

rail transit lines regardless of current 

ownership and whether there is rail service 

operating on the railroad or rail transit line. 

It includes property that was previously 

developed for railroad or rail transit use even 

though the infrastructure has been modified 

or removed, and the property may lack visual 

evidence of previous railroad or rail transit 

use. It does not include land that was never 

developed for railroad or rail transit use. Rail 

ROW includes and may be identifiable by the 

presence of infrastructure that has a 

demonstrable relationship to the past or 

current function and operation of a railroad 

or rail transit system that commonly includes 

but is not limited to the rail properties 

specified in the definition above. 

I. ‘‘Section 106’’ means Section 106 of the 

National Historic Preservation Act, 54 U.S.C. 

306108. 

J. ‘‘Study area’’ means the portion of rail 

ROW identified for the purposes of the 

evaluation under the property-based 

approach described in section IV. It may be 

delineated by: location (e.g., state, county); 

name of rail corridor, railroad, rail transit 

system or line; or mile-post information. 

K. ‘‘Undertaking’’ is defined at 36 CFR 

800.16(y) and means a project, activity, or 

program funded in whole or in part under the 

direct or indirect jurisdiction of a federal 

agency, including those carried out by or on 

behalf of a federal agency; those carried out 

with federal financial assistance; and those 

requiring a federal permit, license, or 

approval. 

L. ‘‘Undisturbed portions of rail ROW’’ 

means soils that have not been physically 

impacted by previous construction or other 

ground disturbing activities such as grading. 

Undisturbed soils may occur below the depth 

of previously disturbed soils or fill. 

M. ‘‘USDOT OA’’ means the United States 

Department of Transportation’s Operating 

Administrations, including the Federal 

Railroad Administration (‘‘FRA’’), the 

Federal Transit Administration, and the 

Federal Highway Administration. 

VI. Effective Date 

The activities-based approach to exempting 

consideration of effects under Section 106, as 

described in section III, shall go into effect 

on the date the program comment is issued 

by the ACHP. At that time, federal agencies 

may immediately utilize the list of exempted 

activities in Appendix A. This includes 

undertakings that have not yet been initiated 

and undertakings for which the Section 106 

review process is underway but not 

completed. 

The property-based approach to exempting 

consideration of effects under Section 106, as 

described in section IV, shall go into effect 

on the date USDOT publishes the 

implementing guidance in accordance with 

section IV.C. 

VII. Program Comment Review 

Within one year of the issuance of this 

program comment, and every two years 

thereafter, the USDOT OAs and the ACHP 

shall evaluate the ongoing effectiveness and 

efficiency of the implementation of this 

program comment. The USDOT OAs shall 

review their use and application of the 

program comment, and may invite 

transportation stakeholders to participate in 

this review as appropriate. 

VIII. Amendment 

The ACHP may amend this program 

comment after consulting with the USDOT 

OAs and other relevant federal agencies, the 

National Conference of State Historic 

Preservation Offices (‘‘NCSHPO’’), National 

Association of Tribal Historic Preservation 

Officers (‘‘NATHPO’’), tribal representatives, 

the National Trust for Historic Preservation, 

and representatives from the railroad and rail 

transit industry, as appropriate. The ACHP 

will publish a notice in the Federal Register 

informing the public of any amendments that 

are made to the program comment. 

IX. Withdrawal 

The ACHP may withdraw this program 

comment, pursuant to 36 CFR 800.14(e)(6), 

by publication of a notice in the Federal 

Register 30 days before the withdrawal will 

take effect. 

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 ‘‘inkind.’’ 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 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 SOIqualified 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. 

F. The Exempted Activities List does not 

apply to non-railroad or rail transit related 


daltland on DSKBBV9HB2PROD with NOTICES
Federal Register / Vol. 83, No. 165 / Friday, August 24, 2018 / Notices 42927 

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 nonrail historic property, archaeological site of 

any nature, or human remains, or an 

unanticipated adverse effect on a previously 

identified non-rail 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. 

II. 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. 

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., 

non-mechanical) 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 co-located with existing similar 

modern equipment, etc. 

6. Maintenance, repair, or replacement of 

HVAC or electrical systems. 

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 

non-historic 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: 

a. Maintenance and repair activities that 

affect character-defining architectural 


daltland on DSKBBV9HB2PROD with NOTICES
42928 Federal Register / Vol. 83, No. 165 / Friday, August 24, 2018 / Notices 

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). 

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. 

E. Railroad and Rail Transit/Roadway AtGrade 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 gradeseparated 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 

at-grade 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 at-grade 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 Register-listed 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 

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. 

b. Construction of curbs, gutters, or 

sidewalks adjacent to existing roadway at 

existing at-grade crossings when the crossing 

involves an individual National Registerlisted or eligible roadway or a roadway that 

is a contributing resource to a National 

Register-listed 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 


daltland on DSKBBV9HB2PROD with NOTICES
Federal Register / Vol. 83, No. 165 / Friday, August 24, 2018 / Notices 42929 

1A 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). 

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. 

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.1

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. 

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. 

Authority: 36 CFR 800.14(e). 

Dated: August 21, 2018. 

John M. Fowler, 

Executive Director. 

[FR Doc. 2018–18329 Filed 8–23–18; 8:45 am] 

BILLING CODE 4310–K6–P 

DEPARTMENT OF HOUSING AND 

URBAN DEVELOPMENT 

[Docket No. FR–6081–N–10] 

Order of Succession for HUD Region 

VIII 

AGENCY: Office of Field Policy and 

Management, HUD. 

ACTION: Notice of Order of Succession. 

SUMMARY: In this notice, the Assistant 

Deputy Secretary for Field Policy and 

Management, Department of Housing 

and Urban Development, designates the 

Order of Succession for the Denver 

Regional Office and its Field Offices 

(Region VIII). This Order of Succession 

supersedes all previous Orders of 

Succession for HUD Region VIII. 

DATES: August 17, 2018. 

FOR FURTHER INFORMATION CONTACT: John 

B. Shumway, Assistant General 

Counsel, Administrative Law Division, 

U.S. Department of Housing and Urban 

Development, 451 7th Street SW, Room 

9262, Washington, DC 20410–0500, 

telephone number 202–402–5190 (this 

is not a toll-free number). This number 

may be accessed through TTY by calling 

the toll-free Federal Relay Service at 

800–877–8339. 

SUPPLEMENTARY INFORMATION: The 

Assistant Deputy Secretary for Field 

Policy and Management, Department of 

Housing and Urban Development, is 

issuing this Order of Succession of 

officials authorized to perform the 


daltland on DSKBBV9HB2PROD with NOTICES