[Senate Report 109-235]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 397
109th Congress                                                   Report
                                 SENATE
 2d Session                                                     109-235

======================================================================
 
       NATIONAL HISTORIC PRESERVATION ACT AMENDMENTS ACT OF 2006

                                _______
                                

                 April 20, 2006.--Ordered to be printed

   Filed, under authority of the order of the Senate of April 7, 2006

                                _______
                                

   Mr. Domenici, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 1378]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 1378) to amend the National Historic 
Preservation Act to provide appropriation authorization and 
improve the operations of the Advisory Council on Historic 
Preservation, having considered the same, reports favorably 
thereon with amendments and recommends that the bill, as 
amended, do pass.
    The amendments are as follows:
    1. On page 1, line 7, strike ``2005'' and insert ``2006''.
    2. On page 2, line 3, insert ``(16 U.S.C. 470 et seq.)'' 
after ``Act''.
    3. On page 2, line 6, strike ``2011'' and insert ``2015''.
    4. On page 2, line 17, strike ``eleven'' and insert ``12''.
    5. On page 3, strike lines 17 through 23.
    6. On page 3, line 24, strike ``(g)'' and insert ``(f)''.
    7. On page 4, line 6, strike ``(h)'' and insert ``(g)''.

                         Purpose of the Measure

    The purpose of S. 1378, as ordered reported, is to amend 
the National Historic Preservation Act to reauthorize the 
Historic Preservation Fund and to reauthorize and improve the 
operations of the Advisory Council on Historic Preservation.

                          Background and Need

    The National Historic Preservation Act of 1966 and later 
amendments constitute our Nation's primary historic 
preservation legislative authority. To help preserve historic 
resources, the Act authorized the Historic Preservation Fund 
and the Advisory Council on Historic Preservation.
    The Historic Preservation Fund provides support to the 
State Historic Preservation Offices and provides matching 
grants to States to catalog and preserve historic properties 
and resources. The fund has always had strong support and has 
been reauthorized three times since its creation. S. 1378 would 
extend authorization of the Historic Preservation Fund, which 
expired in 2005, to 2015.
    The Advisory Council on Historic Preservation is an 
independent Federal agency that works with the Secretary of the 
Interior to administer the National Historic Preservation Act. 
The Council helps to administer the Historic Preservation Fund 
and the National Register of Historic Places. One of the 
Council's most visible duties is to oversee section 106 of the 
National Historic Preservation Act. Section 106 requires 
Federal agencies to consider the impacts of their actions on 
historic resources. The Council is comprised of 20 members, 
including heads of Federal agencies, elected State and local 
officials, private citizens, and experts in the field of 
historic preservation.
    S. 1378 would change the membership, procedures, and 
authorities of the Advisory Council on Historic Preservation. 
The bill would add the heads of three Federal agencies to the 
Council, bringing total membership to 23. To reflect this 
change in membership, the bill would raise the number of 
members required for a quorum from nine to twelve. Finally, the 
bill would allow the State Governor sitting on the Council to 
appoint a designee with full voting privileges, a right 
currently given to Cabinet Secretaries serving on the Council.
    S. 1378 would give the Council several new authorities. The 
bill would give the Council the authority to seek 
administrative services from any Federal agency or private 
entity, amending existing law, which requires the Council to 
seek such services solely from the Department of the Interior.
    S. 1378 would also allow the Council to review any Federal 
grant or assistance programs affecting historic resources and 
subject to provisions of the National Historic Preservation 
Act. The Council would have the authority to enter into a 
cooperative agreement with any agency that administers such a 
program and participate in the development of grant criteria 
and the selection of grant recipients.

                          Legislative History

    S. 1378 was introduced by Senators Talent and Wyden on July 
11, 2005. Senators Allen and Chaffee are also cosponsors on the 
bill. The Subcommittee on National Parks held a hearing on S. 
1378 on September 22, 2005. At the business meeting on March 8, 
2006, the Committee on Energy and Natural Resources ordered S. 
1378 favorably reported as amended.

                        Committee Recommendation

    The Committee on Energy and Natural Resources, in open 
business session on March 8, 2006, by unanimous voice vote of a 
quorum present, recommends that the Senate pass S. 1378, if 
amended as described herein.

                          Committee Amendment

    During consideration of S. 1288, the Committee adopted an 
amendment to S. 1378. In addition to technical corrections, the 
amendment would extend authorization of the Historic 
Preservation Fund to 2015 instead of 2011. The amendment would 
also increase the number of Council members necessary for a 
quorum to 12. Finally, the amendment would delete language in 
the bill that would have given the Council the authority to 
solicit donations.

                      Section-by-Section Analysis

    Section 1(a) entitles the bill, ``National Historic 
Preservation Act Amendments Act of 2006.''
    Subsection (b) states that any reference to ``the Act'' in 
the bill is a reference to the National Historic Preservation 
Act.
    Subsection (c) amends section 108 of the Act to extend the 
authorization of the Historic Preservation Fund from 2005 to 
2015.
    Subsection (d) revises the membership and procedural 
criteria for the Advisory Council on Historic Preservation. 
This subsection requires that three additional heads of 
agencies be added to the Council. The quorum is raised from 
nine to twelve members. The State Governor who sits on the 
Council is allowed to designate, in their absence, a delegate 
with full voting privileges.
    Subsection (e) authorizes the Council to engage any Federal 
agency or private entity to provide financial and 
administrative services.
    Subsection (f) eliminates the $4,000,000 ceiling on annual 
appropriations for the Advisory Council on Historic 
Preservation and makes the appropriations authorization 
permanent.
    Subsection (g) adds section 216 to the Act. This new 
section would grant the Council the authority to review any 
Federal grant or assistance program that is subject to 
provisions of the Act. It would also grant the Council the 
authority to enter into cooperative agreements with agencies 
administering such grants or assistance programs for the 
purpose of furthering the goals of the Act.

                   Cost and Budgetary Considerations

    The following estimate of the cost of this measure has been 
provided by the Congressional Budget Office:

S. 1378--National Historic Preservation Act Amendments Act of 2006

    Summary: S. 1378 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 whatever 
amounts are necessary for each year to the Advisory Council on 
Historic Preservation (ACHP). Authority for this funding--at a 
specified 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 S. 1378 would cost about $500 million over the 
2007-2011 period. Enacting this legislation would not affect 
direct spending or revenues.
    S. 1378 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would impose no costs on state, local, or tribal 
governments.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 1378 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 a..........................................      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 S. 1378 for Historic Preservation:
    Estimated Authorization Level...............................      77     155     155     155     156     156
    Estimated Outlays...........................................      79      94     101     114     133     159
----------------------------------------------------------------------------------------------------------------
a 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 S. 
1378 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 are 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 S. 1378, would amend the National 
Historic Preservation Act, would have no significant impact on 
the federal budget.
    Intergovernmental and private-sector impact: S. 1378 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would impose no costs on state, local, or 
tribal governments.
    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: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                      Regulatory Impact Evaluation

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out S. 1378. The bill is not a regulatory measure in 
the sense of imposing Government-established standards or 
significant economic responsibilities on private individuals 
and businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little, if any, additional paperwork would result from the 
enactment of S. 1378, as ordered reported.

                        Executive Communications

    The views of the Administration on S. 1378 were included in 
testimony received by the Committee at a hearing on the bill on 
September 22, 2005. This testimony follows:

  Statement of Janet Snyder Matthews, Associate Director for Cultural 
      Resources, National Park Service, Department of the Interior

    Mr. Chairman, thank you for the opportunity to appear 
before you today to discuss the views of the Department of the 
Interior on S. 1378, a bill to amend the National Historic 
Preservation Act to provide appropriation authorization and 
improve the operations of the Advisory Council on Historic 
Preservation.
    The Department supports S. 1378 with an amendment to extend 
the authorization of the Historic Preservation Fund for ten 
years until 2015.
    S. 1378 would extend the authorization of the Historic 
Preservation Fund for an additional six years. The bill would 
also make a number of changes to the authority for the Advisory 
Council on Historic Preservation (ACHP) by increasing the 
membership of the ACHP, authorizing the governor appointed to 
the ACHP to have a designee serve in his place, revising the 
number of members that constitute a quorum, revising various 
financial and administrative authorities of the ACHP, 
authorizing the ACHP to solicit donations, and authorizing the 
ACHP to enter intocooperative agreements with other federal 
agencies to improve the effectiveness of the administration of grant or 
assistance programs to help meet the purposes of the National Historic 
Preservation Act.
    In addition, the bill also changes the authorization level 
for the ACHP from $4 million per fiscal year to such sums as 
may be necessary. It also makes the ACHP permanent instead of 
reauthorizing the ACHP for the standard five-year period.
    The Historic Preservation Fund grew out of the 
recommendations of the 1966 Special Committee on Historic 
Preservation of the U.S. Conference of Mayors. The Special 
Committee recommended the establishment of a grant program to 
State and local governments to carry out inventory and survey 
programs in coordination with the National Park Service. In 
1970, a historic preservation grant program was established and 
administered by the National Park Service in partnership with 
State governments on a cost-sharing basis. In 1976, the 
Historic Preservation Fund was created with revenues from Outer 
Continental Shelf oil and gas production.
    Over the years, the Historic Preservation Fund has provided 
essential support to the State Historic Preservation Offices 
that operate the national program at the State level. Through 
the work of our partners in the States, we can cite significant 
achievements over the past year:
     The National Park Service approved 1,537 new 
listings, which include 46,619 properties, in the National 
Register of Historic Places. This brings the total number of 
National Register properties to 79,617 listings that include 
over 1.4 million properties.
     Jointly administered by the National Park Service 
and the Internal Revenue Service, and in partnership with the 
State Historic Preservation Officers, the Historic Preservation 
Tax Incentives resulted in the rehabilitation of over 1,200 
historic properties listed in the National Register, creating 
over 15,000 new housing units and generating $3.8 billion in 
leveraged private investment--all during 2004. Since its 
inception in 1976, this tax incentives program has generated 
over $33 billion in historic preservation activity.
     In FY 2005, the Save America's Treasures (SAT) 
grant program awarded a total of 145 matching grants in 43 
states and the District of Columbia totaling $29.5 million. 337 
applications were received that totaled $134 million. The SAT 
program is administered by the National Park Service, the 
National Endowment for the Arts, the National Endowment for the 
Humanities, and the Institute of Museum and Library Services.
    Over the years, the Historic Preservation Fund authority 
has been a highly flexible authority for developing targeted 
grant programs that address the broad purposes of the National 
Historic Preservation Act. They include the grants to Indian 
Tribes to support Tribal Historic Preservation Offices and 
project grants to preserve America's native cultures; grants to 
Historically Black Colleges and Universities to preserve 
significant campus buildings; the Save America's Treasures 
Grant Program for threatened nationally significant properties; 
and more recently, the Preserve America grant program for 
heritage tourism, including education, and economic 
revitalization. These grant programs not only preserve historic 
resources, they attract new economic investment.
    Reauthorization of the ACHP also is an important objective 
as we work with this critical governmental agency to help 
protect historic resources while facilitating government-
sponsored development. We are working closely with the ACHP on 
a number of important initiatives, including the Preserve 
America program and compliance tools.
    We understand that the ACHP will discuss the specific 
provisions of S. 1378 that affect the ACHP. We believe these 
changes will increase the ACHP's effectiveness and strengthen 
the important role the ACHP has played in preserving the 
historic resources of our country.
    As recommended at the beginning of this testimony, the 
Department believes that the authorization of the Historic 
Preservation Fund should be extended for ten years instead of 
six. The fund is now almost 40 years old. It has been highly 
successful in meeting the objectives established by Congress in 
preserving the historic resources of this country. We believe 
this success calls for a longer authorization than previously 
has been provided, while allowing Congress the traditional 
oversight role it has always maintained. The proposed amendment 
is attached to the testimony.
    Mr. Chairman, this concludes my prepared remarks. I would 
be pleased to answer any questions you or members of the 
committee may have.
    Proposed amendment to S. 1378, National Historic 
Preservation Act Amendments Act of 2005. On page 2, line 6 
strike ``2011'' and insert ``2015''.

                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill S. 1378, as ordered reported, as 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):

                 A. NATIONAL HISTORIC PRESERVATION ACT


 (Public Law 89-665; Approved October 15, 1966; 16 U.S.C. 470 through 
                                470x-6)


   AN ACT To establish a program for the preservation of additional 
   historic properties throughout the Nation, and for other purposes.

    Be it enacted by the Senate and House of Representatives of 
the United States of America in Congress assembled,

           *       *       *       *       *       *       *

    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: Provided, That appropriations 
made pursuant to this paragraph may be made without fiscal year 
limitation.

           *       *       *       *       *       *       *

    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) a Chairman appointed by the President selected 
        from the general public;
          (2) the Secretary of the Interior;
          (3) the Architect of the Capitol;
          (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;
          (5) one Governor appointed by the President;
          (6) one mayor appointed by the President;
          (7) the President of the National Conference of State 
        Historic Preservation Officers;
          (8) the Chairman of the National Trust for Historic 
        Preservation;
          (9) four experts in the field of historic 
        preservation appointed by the President from the 
        disciplines of architecture, history, archaeology, and 
        other appropriate disciplines;
          (10) three at-large members from the general public, 
        appointed by the President; and
          (11) one member of an Indian Tribe or Native Hawaiian 
        organization who represents the interests of the tribe 
        or organization of which he or she is a member, 
        appointed by the President.
    (b) Each member of the Council specified in paragraphs (2) 
through (8) (other than [(5) and] (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] 12 members of the Council shall constitute a 
quorum.

           *       *       *       *       *       *       *

    Sec. 205. (a) There shall be an Executive Director of the 
Council who shall be appointed in the competitive service by 
the Chairman with the concurrence of the Council. The Executive 
Director shall report directly to the Council and perform such 
functions and duties as the Council may prescribe.

           *       *       *       *       *       *       *

    [(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 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 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 (5 
U.S.C. 5514(b)) 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 (31 U.S.C. 1513(d), 1514) 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 grant or assistance program's statutory 
authorization and purpose.
    (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 any Federal 
        agency that administers such program to further the 
        consistency of the program with the purposes and 
        policies of the Act and to improve its effectiveness in 
        carrying out those purposes and policies; and
          (3) make recommendations to the President and 
        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.

                                  
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