[House Report 109-641]
[From the U.S. Government Publishing Office]
109th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 109-641
======================================================================
NATIONAL HISTORIC PRESERVATION ACT AMENDMENTS OF 2006
_______
September 6, 2006.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Pombo, from the Committee on Resources, submitted the following
R E P O R T
[To accompany H.R. 5861]
[Including cost estimate of the Congressional Budget Office]
The Committee on Resources, to whom was referred the bill
(H.R. 5861) to amend the National Historic Preservation Act,
and for other purposes, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``National Historic Preservation Act
Amendments of 2006''.
SEC. 2. STATE HISTORIC PRESERVATION OFFICER RESPONSIBILITIES.
Section 101(b) of the National Historic Preservation Act (16 U.S.C.
470a(b)) is amended by adding at the end the following:
``(7) The State Historic Preservation Officer shall have no authority
to require an applicant for Federal assistance, permit, or license to
identify historic properties outside the undertaking's area of
potential effects as determined by the Federal agency in accordance
with regulations implementing section 106.
``(8) If the State Historic Preservation Officer or Tribal Historic
Preservation Officer fails to respond within 30 days after an
adequately documented finding of `no historic properties affected' or
`no adverse effect' as provided in the regulations implementing section
106, the Federal agency may assume that the State Historic Preservation
Officer or Tribal Historic Preservation Officer has no objection to the
finding.''.
SEC. 3. ADDITIONAL CRITERIA FOR CERTIFICATION OF LOCAL GOVERNMENTS TO
CARRY OUT NATIONAL HISTORIC PRESERVATION ACT.
Section 101(c)(1) of the National Historic Preservation Act (16
U.S.C. 470a(c)(1)) is amended--
(1) by striking ``and'' at the end of subparagraph (D);
(2) by redesignating subparagraph (E) as subparagraph (F);
(3) by inserting after subparagraph (D) the following new
subparagraph:
``(E) agrees that it shall not use any eligibility
determination regarding the inclusion of any property or
District on the National Register to initiate local regulatory
requirements unless the entity provides full due process
protection to the owner or owners of the property or District
through a hearing process; and''; and
(4) in the matter below the subparagraphs, by striking
``through (E)'' and inserting ``through (F)''.
SEC. 4. HISTORIC PRESERVATION FUND.
Section 108 of the National Historic Preservation Act (16 U.S.C.
470h) is amended by striking ``2005'' and inserting ``2015''.
SEC. 5. ADVISORY COUNCIL ON HISTORIC PRESERVATION.
(a) Membership.--Section 201 of the National Historic Preservation
Act (16 U.S.C. 470i) is amended--
(1) in subsection (a)(4), by striking ``four'' and inserting
``seven'';
(2) in subsection (b), by striking ``(5) and (6)'' and
inserting ``paragraph (6)''; and
(3) in subsection (f), by striking ``Nine'' and inserting
``Eleven''.
(b) Financial and Administrative Services.--Section 205(f) of such
Act (16 U.S.C. 470m(f)) is amended to read as follows:
``(f) Financial and administrative services (including those related
to budgeting, accounting, financial reporting, personnel and
procurement) shall be provided the Council by the Department of the
Interior or, at the discretion of the Council, such other agency or
private entity that reaches an agreement with the Council, for which
payments shall be made from funds of the Council in such amounts as may
be agreed upon by the Chairman of the Council and the head of the
agency or, in the case of a private entity, the authorized
representative of the private entity that will provide the services.
When a Federal agency affords such services, the regulations of that
agency for the collection of indebtedness of personnel resulting from
erroneous payments, prescribed under section 5514(b) of title 5, United
States Code, shall apply to the collection of erroneous payments made
to or on behalf of a Council employee, and regulations of that agency
for the administrative control of funds under sections 1513(d) and 1514
of title 31, United States Code, shall apply to appropriations of the
Council. The Council shall not be required to prescribe such
regulations.''.
(c) Authorization of Appropriations.--Section 212(a) of the Act (16
U.S.C. 470t(a)) is amended by striking ``for purposes of this title not
to exceed $4,000,000 in each fiscal year 1997 through 2005'' and
inserting ``such amounts as may be necessary to carry out this title''.
SEC. 6. EFFECTIVENESS OF FEDERAL GRANT AND ASSISTANCE PROGRAMS IN
MEETING PURPOSES AND POLICIES OF THE NATIONAL
HISTORIC PRESERVATION ACT.
The National Historic Preservation Act is amended by inserting after
section 215 (16 U.S.C. 470v-1) the following new section:
``SEC. 216. EFFECTIVENESS OF FEDERAL GRANT AND ASSISTANCE PROGRAMS.
``(a) Cooperative Agreements.--The Council may enter into a
cooperative agreement with any Federal agency that administers a grant
or assistance program for the purpose of improving the effectiveness of
the administration of such program in meeting the purposes and policies
of this Act. Such cooperative agreements may include provisions that
modify the selection criteria for a grant or assistance program to
further the purposes of this Act or that allow the Council to
participate in the selection of recipients, if such provisions are not
inconsistent with the statutory authorization and purpose of the grant
or assistance program.
``(b) Review of Grant and Assistance Programs.--The council may--
``(1) review the operation of any Federal grant or assistance
program to evaluate the effectiveness of such program in
meeting the purposes and policies of this Act;
``(2) make recommendations to the head of the Federal agency
that administers such program to further the consistency of the
program with the purposes and policies of this Act and to
improve its effectiveness in carrying out those purposes and
policies; and
``(3) make recommendations to the President and the Congress
regarding the effectiveness of Federal grant and assistance
programs in meeting the purposes and policies of this Act,
including recommendations with regard to appropriate funding
levels.''.
Purpose of the Bill
The purpose of H.R. 5861 is to amend the National Historic
Preservation Act.
Background and Need for Legislation
In April 2004, the Subcommittee on National Parks conducted
a hearing on a draft bill that would have, among other things,
limited the definition of ``historic'' under Section 106 of the
National Historic Preservation Act (NHPA) to those sites and
buildings listed on the National Register or those determined
eligible by the Secretary of the Interior. Under the NHPA, an
historic property is defined as sites, buildings, and other
objects on the National Register of Historic Places or those
``eligible for inclusion on the National Register.'' The draft
also would have required a certified local government under the
NHPA that utilizes a determination of eligibility for inclusion
on the National Register to initiate local regulatory
requirements to provide full due process to persons who object
to a determination of eligibility on property they own.
Following the April 2004 hearing, Subcommittee staff
continued to work with John Nau, Chairman of the Advisory
Council on Historic Preservation, as well as the National
Conference of State Historic Preservation Officers, the tribal
community, the business community, the archeologists, and other
preservation organizations to develop language to address
issues raised in and since the 2004 hearing. One of the goals
for the Committee has been to reduce the burden (both time and
money) that has been unnecessarily placed on an applicant under
the Section 106 process.
Discussions concluded with the introduction of H.R. 5861,
which makes the following changes to the NHPA: (1) extends
expenditures from the Historic Preservation Fund from 2005 to
2015 for state and tribal preservation activities; (2)
reauthorizes and improves the administration of the Advisory
Council on Historic Preservation; (3) requires a certified
local government under the NHPA that utilizes a determination
of eligibility to initiate local regulatory requirements to
also provide full due process to property owners who object to
a determination of eligibility on their property; and (4)
amends Section 106 of the NHPA to require that a State Historic
Preservation Officer/Tribal Historic Preservation Officer
respond to a Section 106 application within 30 days of a ``no
adverse effects'' finding and prohibits a State Historic
Preservation Officer from requiring a federal agency and/or
applicant to identify properties outside the identified area of
potential effects as determined by the agency. The bill is
designed to protect applicants from being required to fund
surveys and other studies to identify historic properties
beyond the area in which the undertaking may reasonably be
expected to affect those historic properties. Section 106 of
the NHPA requires that a federal agency take into account if a
federal undertaking (i.e., a proposed activity involving
federal dollars, a federal permit or license) will have an
effect on any district, site, building, structure, or object
that is included in or eligible for inclusion in the National
Register of Historic Place.
The Committee recognizes the importance of tribal historic
preservation in the national historic preservation framework
articulated in the NHPA. Under NHPA, tribes are increasingly
choosing to establish Tribal Historic Preservation Officer
programs through agreements with the National Park Service.
However, despite the increased tribal interest in participating
actively in the national historic preservation framework by
establishing Tribal Historic Preservation Offices, funding to
support these important programs in Indian Country has remained
stagnant and is being shared by a steadily increasing number of
tribes. The Committee understands that at current funding
levels, Tribal Historic Preservation Officers simply lack the
resources and capacity to respond to all requests for comments
in the Section 106 process in a timely fashion. The Committee
urges the National Park Service to request funding for Tribal
Historic Preservation Officers through the Historic
Preservation Fund at a level sufficient to ensure that all
Tribal Historic Preservation Officers have the resources
necessary to build capacity to efficiently consider and process
Section 106 clearance requests so that tribes have a fair
opportunity to participate in the national historic
preservation framework in a meaningful way.
In terms of Section 2 of the bill, the Committee does not
believe, nor is it its intention to (1) preempt existing
programmatic or national programmatic agreements for an area of
potential effects developed under Section 106 of the Act, or
interfere in the development of future agreements; or (2) limit
the obligations of a federal agency under the Section 106
regulations to take into account effects on historic properties
if historic properties are discovered or unanticipated effects
on historic properties are found after completion of the
Section 106 process. Finally, the Committee expects the
National Park Service will certify that all current and future
certified local governments under the NHPA comply with the due
process requirement in Section 3 of this bill.
Committee Action
H.R. 5861 was introduced on July 20, 2006, by Congressman
Stevan Pearce (R-NM). The bill was referred to the Committee on
Resources. On July 26, 2006, the Full Resources Committee met
to consider the bill. Congressman Pearce offered an amendment
in the nature of a substitute that changed the section to be
amend in the National Historic Preservation Act to better
reflect the changes for the State Historic Preservation
Officers in the Section 106 process, and modified the
authorization for appropriations for the Advisory Council on
Historic Preservation to improve long-term planning in Council
programs. The amendment was adopted by unanimous consent. The
bill as amended was then ordered favorably reported to the
House of Representatives by unanimous consent.
Constitutional Authority Statement
Article I, section 8, clause 3 of the Constitution of the
United States grants Congress the authority to enact this bill.
Compliance With House Rule XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
3. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to amend the National Historic
Preservation Act, and for other purposes.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:
H.R. 5861--National Historic Preservation Act Amendments of 2006
Summary: H.R. 5861 would extend the authority to make
annual deposits of $150 million to the Historic Preservation
Fund (HPF) through fiscal year 2015. Authority to make those
deposits of receipts earned from oil and gas development on the
Outer Continental Shelf into the HPF expired at the end of
fiscal year 2005. The National Park Service (NPS) uses amounts
appropriated from the HPF for grants to state, local, and
tribal governments, nonprofit organizations, and other
entities.
The bill also would authorize the appropriation of
necessary amounts for each year to the Advisory Council on
Historic Preservation (ACHP). Authority for this funding--at a
specific annual level of $4 million--also expired at the end of
2005. Appropriations to ACHP are derived from the general fund
of the U.S. Treasury.
Assuming appropriation of the amounts deposited into the
HPF each year, and assuming appropriation of the amounts
estimated to be necessary for ACHP, CBO estimates that
implementing H.R. 5861 would cost about $500 million over the
2007-2011 period. Enacting this legislation would not affect
direct spending or revenues.
H.R. 5861 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
Local governments might incur some costs as a result of new
requirements included in this bill, but those costs would
result from their participation in a voluntary federal program.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 5861 is shown in the following table.
The costs of this legislation fall within budget function 300
(natural resources and environment).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-----------------------------------------------------------------
2006 2007 2008 2009 2010 2011
----------------------------------------------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATION
Spending Under Current Law for Historic
Preservation:
Budget Authority \1\...................... 77 0 0 0 0 0
Estimated Outlays......................... 79 52 26 14 7 3
Proposed Changes:
Spending of Deposits to HPF:
Estimated Authorization Level......... 0 150 150 150 150 150
Estimated Outlays......................... 0 37 70 95 120 150
Advisory Council on Historic Preservation:
Estimated Authorization Level......... 0 5 5 5 6 6
Estimated Outlays..................... 0 5 5 5 6 6
Spending Under H.R. 5861 for Historic
Preservation:
Estimated Authorization Level............. 77 155 155 155 156 156
Estimated Outlays......................... 79 94 101 114 133 159
----------------------------------------------------------------------------------------------------------------
\1\ The 2006 level is the amount appropriated for that year, including $72 million to the NPS from the HPF and
nearly $5 million to ACHP.
Basis of estimate: For this estimate, CBO assumes that H.R.
5861 will be enacted by the start of fiscal year 2007 and that
the entire $150 million that would be transferred to the HPF
each year under the bill will be appropriated in full beginning
in that year. Annual deposits to the HPF have been at the $150
million level since 1980, but the amounts typically
appropriated from the fund have been substantially lower. CBO
expects that more than doubling the size of the historic
preservation program (from the recent appropriation level of a
little over $70 million a year) would initially lead to delays
in processing grants and in raising funds for nonfederal
matching shares. As a result, outlays would likely lag behind
appropriations significantly over the next few years.
The estimated authorization levels for ACHP operations are
based on the current appropriation of nearly $5 million for
2006, adjusted annually for anticipated inflation. Outlay
estimates are based on historical spending patterns for these
activities.
Other provisions of H.R. 5861, which would amend the
National Historic Preservation Act, would have no significant
impact on the federal budget.
Intergovernmental and private-sector impact: H.R. 5861
contains no intergovernmental or private-sector mandates as
defined in UMRA. Local governments might incur some costs as a
result of new requirements included in this bill, but those
costs would result from their participation in a voluntary
federal program. State, local, and tribal governments would
benefit from federal funds authorized by the bill.
Previous CBO estimate: On March 16, 2006, CBO transmitted a
cost estimate for S. 1378, the National Historic Preservation
Act Amendments Act of 2006, as ordered reported by the Senate
Committee on Energy and Natural Resources on March 8, 2006. The
two versions of the legislation are very similar, and their
estimated costs are identical.
Estimate prepared by: Federal costs: Deborah Reis; Impact
on state, local, and tribal governments: Marjorie Miller;
Impact on the private sector: Paige Piper/Bach.
Estimate approved by: Robert A. Sunshine, Assistant
Director for Budget Analysis.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Preemption of State, Local or Tribal Law
This bill is not intended to preempt any State, local or
tribal law.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
NATIONAL HISTORIC PRESERVATION ACT
* * * * * * *
TITLE I
Sec. 101. (a) * * *
(b)(1) * * *
* * * * * * *
(7) The State Historic Preservation Officer shall have no
authority to require an applicant for Federal assistance,
permit, or license to identify historic properties outside the
undertaking's area of potential effects as determined by the
Federal agency in accordance with regulations implementing
section 106.
(8) If the State Historic Preservation Officer or Tribal
Historic Preservation Officer fails to respond within 30 days
after an adequately documented finding of ``no historic
properties affected'' or ``no adverse effect'' as provided in
the regulations implementing section 106, the Federal agency
may assume that the State Historic Preservation Officer or
Tribal Historic Preservation Officer has no objection to the
finding.
(c)(1) Any State program approved under this section shall
provide a mechanism for the certification by the State Historic
Preservation Officer of local governments to carry out the
purposes of this Act and provide for the transfer in accordance
with section 103(c), of a portion of the grants received by the
States under this Act, to such local governments. Any local
government shall be certified to participate under the
provisions of this section if the applicable State Historic
Preservation Officer, and the Secretary, certifies that the
local government--
(A) * * *
* * * * * * *
(D) provides for adequate public participation in the
local historic preservation program, including the
process of recommending properties for nomination to
the National Register; [and]
(E) agrees that it shall not use any eligibility
determination regarding the inclusion of any property
or District on the National Register to initiate local
regulatory requirements unless the entity provides full
due process protection to the owner or owners of the
property or District through a hearing process; and
[(E)] (F) satisfactorily performs the
responsibilities delegated to it under this Act.
Where there is no approved State program, a local government
may be certified by the Secretary if he determines that such
local government meets the requirements of subparagraphs (A)
through [(E)] (F); and in any such case the Secretary may make
grants-in-aid to the local government for purposes of this
section.
* * * * * * *
Sec. 108. To carry out the provisions of this Act, there is
hereby established the Historic Preservation Fund (hereafter
referred to as the ``fund'') in the Treasury of the United
States.
There shall be covered into such fund $24,400,000 for fiscal
year 1977, $100,000,000 for fiscal year 1978, $100,000,000 for
fiscal year 1979, $150,000,000 for fiscal year 1980, and
$150,000,000 for fiscal year 1981 and $150,000,000 for each of
fiscal years 1982 through [2005] 2015, from revenues due and
payable to the United States under the Outer Continental Shelf
Lands Act (67 Stat. 462, 469), as amended (43 U.S.C. 1338),
and/or under the Act of June 4, 1920 (41 Stat. 813), as amended
(30 U.S.C. 191), notwithstanding any provision of law that such
proceeds shall be credited to miscellaneous receipts of the
Treasury. Such moneys shall be used only to carry out the
purposes of this Act and shall be available for expenditure
only when appropriated by the Congress. Any moneys not
appropriated shall remain available in the fund until
appropriated for said purposes: That appropriations made
pursuant to this paragraph may be made without fiscal year
limitation.
* * * * * * *
TITLE II
Sec. 201. (a) There is established as an independent agency
of the United States Government an Advisory Council on Historic
Preservation which shall be composed of the following members:
(1) * * *
* * * * * * *
(4) the Secretary of Agriculture and the heads of
[four] seven other agencies of the United States (other
than the Department of the Interior) the activities of
which affect historic preservation, designated by the
President;
* * * * * * *
(b) Each member of the Council specified in paragraphs (2)
through (8) (other than [(5) and (6)] paragraph (6)) of
subsection (a) may designate another officer of his department,
agency, or organization to serve on the Council in his stead,
except that, in the case of paragraphs (2) and (4), no such
officer other than an Assistant Secretary or an officer having
major department-wide or agency-wide responsibilities may be so
designated.
* * * * * * *
(f) [Nine] Eleven members of the Council shall constitute a
quorum.
* * * * * * *
Sec. 205. (a) * * *
* * * * * * *
[(f) Financial and administrative (including those related to
budgeting, accounting, financial reporting, personnel and
procurement) shall be provided the Council by the Department of
the Interior, for which payments shall be made in advance, or
by reimbursement, from funds of the Council in such amounts as
may be agreed upon by the Chairman of the Council and the
Secretary of the Interior: Provided, That the regulations of
the Department of the Interior for the collection of
indebtedness of personnel resulting from erroneous payments (5
U.S.C. 46e) shall apply to the collection of erroneous payments
made to or on behalf of a Council employee, and regulations of
said Secretary for the administrative control of funds (31
U.S.C. 665(g)) shall apply to appropriations of the Council:
And provided further, That the Council shall not be required to
prescribe such regulations.]
(f) Financial and administrative services (including those
related to budgeting, accounting, financial reporting,
personnel and procurement) shall be provided the Council by the
Department of the Interior or, at the discretion of the
Council, such other agency or private entity that reaches an
agreement with the Council, for which payments shall be made
from funds of the Council in such amounts as may be agreed upon
by the Chairman of the Council and the head of the agency or,
in the case of a private entity, the authorized representative
of the private entity that will provide the services. When a
Federal agency affords such services, the regulations of that
agency for the collection of indebtedness of personnel
resulting from erroneous payments, prescribed under section
5514(b) of title 5, United States Code, shall apply to the
collection of erroneous payments made to or on behalf of a
Council employee, and regulations of that agency for the
administrative control of funds under sections 1513(d) and 1514
of title 31, United States Code, shall apply to appropriations
of the Council. The Council shall not be required to prescribe
such regulations.
* * * * * * *
Sec. 212. (a) The Council shall submit its budget annually as
a related agency of the Department of the Interior. There are
authorized to be appropriated [for the purposes of this title
not to exceed $4,000,000 in each fiscal year 1997 through 2005]
such amounts as may be necessary to carry out this title.
* * * * * * *
SEC. 216. EFFECTIVENESS OF FEDERAL GRANT AND ASSISTANCE PROGRAMS
(a) Cooperative Agreements.--The Council may enter into a
cooperative agreement with any Federal agency that administers
a grant or assistance program for the purpose of improving the
effectiveness of the administration of such program in meeting
the purposes and policies of this Act. Such cooperative
agreements may include provisions that modify the selection
criteria for a grant or assistance program to further the
purposes of this Act or that allow the Council to participate
in the selection of recipients, if such provisions are not
inconsistent with the statutory authorization and purpose of
the grant or assistance program.
(b) Review of Grant and Assistance Programs.--The council
may--
(1) review the operation of any Federal grant or
assistance program to evaluate the effectiveness of
such program in meeting the purposes and policies of
this Act;
(2) make recommendations to the head of the Federal
agency that administers such program to further the
consistency of the program with the purposes and
policies of this Act and to improve its effectiveness
in carrying out those purposes and policies; and
(3) make recommendations to the President and the
Congress regarding the effectiveness of Federal grant
and assistance programs in meeting the purposes and
policies of this Act, including recommendations with
regard to appropriate funding levels.
* * * * * * *