[Federal Register Volume 61, Number 192 (Wednesday, October 2, 1996)]
[Proposed Rules]
[Pages 51536-51543]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24406]


      

[[Page 51535]]


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Part III





Department of the Interior





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National Park Service



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36 CFR Part 61



Procedures for State, Tribal and Local Government Historic Preservation 
Programs; Proposed Rule

  Federal Register / Vol. 61, No. 192 / Wednesday, October 2, 1996 / 
Proposed Rules  

[[Page 51536]]



DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 61

RIN 1024-AC44


Procedures for State, Tribal and Local Government Historic 
Preservation Programs

AGENCY: National Park Service, Interior.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The National Park Service (NPS) proposes to revise the 
requirements for State and local historic preservation programs as well 
as the way NPS administers these programs. The proposed changes are 
intended to provide more flexibility in State historic preservation 
office staffing, State Historic Preservation Review Board membership 
and operations, and carrying out State Historic Preservation Officer 
responsibilities. This proposed revision also officially recognizes the 
growing role of tribal historic preservation programs. Some of the 
proposed changes are necessary because of the 1992 amendments to the 
National Historic Preservation Act (the Act). Other changes are 
proposed to reduce the regulatory burden on, and provide more 
flexibility for, State and local historic preservation programs as well 
as NPS. Much of this has been done pursuant to the President's 
Regulatory Reinvention Initiative and Executive Order 12866. Also, the 
evolution and growing maturity of State and local offices in the 
national historic preservation program have eliminated the need for 
some of the more detailed and restrictive requirements. Repetition, 
advice, and quotations from the Act are no longer needed and are 
removed from this regulation.

DATES: Written comments will be accepted through December 2, 1996.

ADDRESSES: All comments concerning this proposed regulation should be 
addressed to: Chief, Heritage Preservation Services Division, National 
Center for Cultural Resource Stewardship and Partnership Programs, 
National Park Service, P.O. Box 37127, Washington, D.C. 20013-7127; 
Attention: John W. Renaud. Comments may be hand-delivered or overnight 
mailed to 800 North Capitol Street, NW., Suite 200, Washington, D.C. 
20002. Comments may be sent FAX'ed to 202-343-6004 or by E-mail to 
John__R[email protected].

FOR FURTHER INFORMATION CONTACT: John W. Renaud, 202-343-1059, FAX 202-
343-6004, John__R[email protected] (E-mail).

SUPPLEMENTARY INFORMATION:

Background

    36 CFR Part 61 is promulgated pursuant to the Act (16 U.S.C. 470 et 
seq.) that created the national historic preservation program as a 
partnership among Federal, State, tribal and local governments, 
nonprofit organizations, commercial organizations, and private 
individuals. The Act also created a mechanism for funding this 
partnership, the Historic Preservation Fund. This partnership is 
dedicated to the preservation of irreplaceable historic and 
archeological resources that provide the foundation of the Nation's 
heritage. Through this partnership the vital legacy of cultural, 
educational, aesthetic, inspirational, and economic benefits of our 
historical patrimony will be maintained and enriched for future 
generations of Americans. 36 CFR Part 61 provides the regulatory 
framework for voluntary participation by State, local, and tribal 
governments in the national historic preservation program. These 
programs are administered by the Secretary of the Interior operating 
through the Director of the NPS. As of the date of publication of this 
proposed revision to this rule, all 59 States and territories 
participate in the program, as do more than 1000 local governments. The 
tribal portion (currently reserved) of this proposed regulatory 
revision could lead to the participation in the national historic 
preservation program of the more than 500 federally recognized Indian 
tribes, Native Alaskan corporations, and Native Hawaiian organizations. 
When guidance on tribal programs is promulgated and tribal historic 
preservation programs are approved pursuant to the Act, a tribal 
government will have a role in the national historic preservation 
program that is similar to the role of a State. NPS is responsible for 
providing national standards, guidance, and technical assistance to the 
State and local historic preservation programs. NPS also provides 
quality control and an appeals mechanism for the activities funded by 
the Historic Preservation Fund grants-in-aid and matching monies. The 
responsibility for most decision making in the programs and the 
selection of specific projects and activities lies with each State, 
tribal, and local government based on its needs and the needs of its 
customers. Public participation is a crucial part in guiding the course 
of State and local historic preservation programs.
    This proposed revision to 36 CFR Part 61 is necessary because the 
current regulation (promulgated in 1984) has become outmoded and 
incomplete due to changes in statute and the evolution of the national 
historic preservation program. The National Historic Preservation Act 
Amendments of 1992 (Title XL of Pub L. 102-575) made a number of 
substantive and technical changes to the subject matter covered by 
these rules. Whole new program mandates (such as tribal preservation 
programs) were added to the Act and many refinements were made to 
existing programs such as State Historic Preservation Officer 
responsibilities and the periodic evaluation of State programs. Much of 
the language in the 1984 regulation dealt with the establishment of the 
certified local government (CLG) program and the establishment of a 
system for periodic evaluation of State Historic Preservation Offices. 
These programs now have been in operation for over a decade. The 
regulation needs to reflect the current maturity of these programs. For 
some topics (such as the periodic evaluations of State programs), the 
1984 regulation set up a system that was more restrictive than is now 
deemed necessary. This regulatory revision proposes to build more 
flexibility into the regulation, rely more on State and local 
government programs, and reduce the standard, minimum oversight while 
retaining the ability to increase oversight in individual cases when 
needed.
    Aside from the 1992 Amendments to the Act, NPS became aware of the 
need for changes to these rules through day-to-day administration of 
the program, as well as through communication with partners in the 
national historic preservation program.
    Revision of 36 CFR Part 61 is the appropriate means to solve many 
of the problems identified above. The 1984 regulation is so narrowly 
defined that it limits the range of approaches available both to the 
Secretary in the administration of the program and to State and local 
governments in running the day-to-day operations of the programs. The 
national historic preservation program has grown in competency, 
responsibility, and accountability over the years. There also has been 
a maturation in the professional practice of historic preservation. 
There is every reason to believe that these trends will continue. 36 
CFR Part 61 needs to acknowledge that change will be constant. By 
placing more reliance on State and local governments, by eliminating 
unnecessary detail and procedures, and by expressing a more flexible 
oversight philosophy, 36 CFR Part 61 can reduce the need for a future 
rulemaking.
    The penalties for noncompliance as specified in this proposed 
rulemaking

[[Page 51537]]

involve the ability to retain approved program status. These are 
mandated by statute. The regulation also refers to government-wide 
requirements for Federal grants that include noncompliance penalties 
ranging from increased oversight and reporting, to recovery of Federal 
funds, to suspension from the program until requirements are met. 
Monitoring these regulatory requirements is accomplished through a 
periodic review of State Programs; with quality control of documents 
such as National Register nominations and Preservation Tax Incentive 
applications that are forwarded by the State to NPS; and by evaluation 
of standard reports on the accomplishments made using Federal grant 
money.
    36 CFR Part 61 provides the general procedural framework for State, 
local, and tribal (reserved) historic preservation programs. Procedures 
can be found elsewhere for specific activities carried out by those 
programs and referred to in this document, e.g., 36 CFR Part 60 for the 
National Register of Historic Places, 36 CFR Part 67 for Federal 
Historic Preservation Tax Incentives, etc. National standards and 
guidance on general topics of applicability such as survey, planning, 
treatment of historic properties, and professional qualifications can 
be found in the Secretary of the Interior's Standards and Guidelines 
for Archeology and Historic Preservation that can be obtained from the 
NPS.

Section-by-Section Analysis

    This proposed revision includes a number of general and 
organizational changes to the regulation promulgated in 1984. The title 
of the regulation has been changed by removing the word ``approved'' 
and by adding tribal programs. The word ``approved'' also has been 
deleted from section titles. The word ``approved'' implied too much 
emphasis on the oversight role of the NPS. While oversight is part of 
the purpose of the regulation, it is not the entire focus of it. 36 CFR 
Part 61 defines the roles for all of the national historic preservation 
program partners. These responsibilities, not the oversight, are the 
key items of this regulation. Tribal programs were added to the title 
pursuant to section 101(d) of the Act, and in recognition of their 
growing role in the national historic preservation program partnership.
    The sections of 36 CFR Part 61 have been reordered to put the 
State-related sections together, the local government sections 
together, and the tribal sections together. Previously, all 
``approval'' sections were together and all grants sections were 
together. This proposal reduces the need for the user to jump around 
the regulation to find needed information. Sections 61.8 and 61.9 have 
been reserved for tribal historic preservation programs. These sections 
will be published in the Federal Register at a later date.
    All repetition has been eliminated within 36 CFR Part 61. 
Quotations from the Act have been eliminated. In the 1984 promulgation 
of this regulation, whole sections of the Act were repeated with little 
expansion or interpretation. In cases where little elaboration of 
statutory language was needed (such as with most of the 
responsibilities of the State Historic Preservation Officer), this 
proposed revision provides a citation to the specific section of the 
Act rather than quoting it.
    Language has been removed when it is unnecessary for comprehension 
of a topic. Procedural details and titles that are subject to change 
have also been removed. Examples include (1) the listing of subparts in 
the definition of the Secretary of the Interior's Standards and 
Guidelines for Archeology and Historic Preservation, (2) the listing of 
how the NPS will organize its periodic evaluation of State Historic 
Preservation Offices, and (3) the statement of how often the NPS will 
issue revisions to the National Register Programs Guideline.
    Advice and examples, such as possible methods to obtain temporary 
professional assistance, also have been removed from the regulation. 
Numerous editorial changes have also been made that will not be 
discussed in detail in this document.
Section 61.1  Authorization
    This section has been revised to eliminate redundancy and to add 
tribal references.
Section 61.2  Definitions
    Those terms defined in the Act that do not need any regulatory 
interpretation have been dropped from this proposal. Instead, specific 
cross references to the sections of the Act containing definitions have 
been provided.
Section 61.3  Implementation of This Part 61
    A new subsection has been added that describes the NPS approach to 
administering the programs described in 36 CFR Part 61. It is a 
flexible approach drawn largely from OMB Circular A-102, as implemented 
in the Department of Interior through 43 CFR Part 12.
    A new subsection has been added that authorizes State, tribal, or 
local government fiscal audit and management systems to be substituted 
for comparable Federal procedures upon approval by the Secretary. 
Examples include accounting methods, cash management and internal audit 
controls and procedures. In the spirit of reinventing government, this 
revision recognizes the competence, objectivity and accountability of 
governments at all levels. Prior approval by the Secretary protects the 
interests of the Federal Government and the intent of the Act.
    The grandfather clause (formerly located in subsection 61.4(d) that 
concerns State staff) has been moved to this section and broadened to 
include State Review Board members and CLG Commission members. Whenever 
the mandatory historic preservation professional qualification 
standards change, an individual officially qualified under the former 
Standards and still serving on State staff, a State Review Board, or a 
CLG commission may be considered to be professionally qualified as long 
as he/she continues to hold that position.
Section 61.4  State Programs
61.4(b)
    The quotation of State Historic Preservation Officer 
responsibilities enumerated in the Act has been replaced by a citation 
to Section 101(b)(3) of the Act.
61.4(b)(1)
    An updated description of comprehensive statewide historic 
preservation planning has been added that more clearly describes the 
purpose of the statewide plan.
61.4(b)(2)
    This new paragraph has been added to clarify that, though each 
State is required to conduct surveys for ``historic properties'' (i.e., 
properties eligible for listing in the National Register of Historic 
Places) and maintain an inventory of such properties, it is 
permissible, and important for each State to maintain an inventory of 
what is known about the presence or absence of historic properties 
within its boundaries. For example, when choosing a location for a new 
economic development project so as not to harm historic properties, it 
would be helpful and cost effective for project planners to know that 
an area has been intensively surveyed two years previously for both 
archeological and architectural/historical resources and nothing was 
found.
61.4(b)(3)
    The subsection regarding public participation was formerly 
subsection 61.4(f) and has been revised to reflect

[[Page 51538]]

the flexibility that is possible (e.g., within the National Register 
nomination process) while meeting the requirements of the Act.
61.4(b)(4)
    This subsection on contracts and cooperative agreements was 
formerly subsection 61.4(g).
61.4(c)
    This new subsection acknowledges that there may be temporary 
situations during which it would not make sense to require a State 
Historic Preservation Officer to carry out all of the statutory 
responsibilities. Examples might include emergencies or other 
conditions that compel a State Historic Preservation Officer to 
concentrate staffing and financial resources on certain activities and 
thus delay or curtail other responsibilities.
61.4(d)
    State Program Review. This section, formerly subsection 61.4(c), 
has been revised to reflect the changes made by the 1992 Amendments to 
the Act and to remove the procedural details from the regulation.
61.4(d)(1)
    Pursuant to the Act, State programs now will be evaluated for 
``consistency'' rather than ``compliance'' with the Act. The evaluation 
will take place at least once every four years rather than once every 
two to three years. This proposed revision reflects the flexibility 
provided for in the Act without preventing a more frequent program 
evaluation if necessary. The former detailed description of how each 
evaluation will be conducted has been removed because experience since 
1984 has revealed that it restricted the flexibility necessary to 
administer the program.
61.4(d)(2)
    Proposed new language in this paragraph provides more flexibility 
in the process used to evaluate State programs.
61.4(d)(3)
    New language has been proposed that reflects the 1992 Amendments to 
the Act. State program approval will be continued if the program is 
``consistent with the Act,'' and disapproval will take place only if a 
State is found to have ``major program aspects'' inconsistent with the 
Act. Minor inconsistencies, even though they may require correction, 
cannot be grounds for disapproving the entire program as part of the 
State program review process. A technical correction has been made to 
make it clear that the Secretary has the authority to take immediate 
action to disapprove a State program if the situation warrants.
61.4(e)
    State Staff. The proposed changes to this subsection, formerly 
subsection 61.4(d), are largely editorial and technical. Inasmuch as 
Appendix A has been eliminated (see below), the historic preservation 
professional qualifications now refer to the ``Secretary's Standards.'' 
The annual certification that the State has a fully qualified staff has 
been removed from the regulation. By applying for its annual grant, the 
State Historic Preservation Officer is confirming that all program 
prerequisites (including a qualified staff) are, and will continue to 
be, met. Each State generally can be relied upon to inform NPS when 
there is a vacancy in required staff. Consequently, detailed 
notification requirements are no longer needed in this regulation.
61.4(f)
    State Review Board. Formerly subsection 61.4(e), the professional 
disciplines required in this subsection for each State's Review Board 
have been changed to match the requirements for State staff; i.e., each 
Review Board must include the disciplines of history, architectural 
history and either prehistoric or historic archeology. Architecture has 
been dropped as a national requirement but most likely will be 
represented on Review Boards because of the usefulness of that 
expertise. Following the logic of the expanded statutory definition of 
``State Historic Preservation Review Board'' in the Act (see Section 
301(12)), the required ``professional majority'' in Review Board 
membership may be drawn from any of the disciplines defined in the 
Secretary's historic preservation professional qualification standards. 
Each State can be relied upon to select a professional composition for 
its Review Board that best fits the State's historic resources and the 
historic preservation needs within the State. These ``professional 
qualification'' requirements apply to whatever State board or boards, 
commissions, etc., that carry out the Review Board responsibilities 
specified in this regulation that normally require access to 
specialized historic preservation expertise.
    The minimum required number of Review Board meetings has been 
changed from three to one per year. Each State is expected to convene 
its Review Board as often as is necessary to complete its work in a 
timely fashion. The minimum number of meetings required will vary from 
State to State and from year to year. The regulatory change is being 
proposed to avoid requiring meetings that might not be needed.
    The language regarding Appendix A, the annual certification of the 
State Review Board, and vacancy on a State Review Board has been 
removed for reasons that parallel those described above for the 
revisions to section 61.4(e).
Section 61.5  Grants to State Programs
    The proposed changes to this section, formerly Sec. 61.6, include a 
new name, and the changes are all editorial, technical, or discussed in 
the general changes section.
Section 61.6  Certified Local Government Programs
    This section, formerly Sec. 61.5, has been renamed, reoriented, 
reorganized and greatly reduced in length. A large number of editorial 
changes have been made in this section, but relatively few substantive 
changes are proposed. In the 1984 version, much of the language in this 
section mandated how each State must establish its procedures for 
certifying local governments. Since 1985, every eligible State has had 
NPS-approved procedures. In this proposed revision, the lengthy and 
detailed language on how to establish State procedures has been 
replaced by much shorter language concerning the maintenance and 
amendment of State procedures.
61.6(e)(i)
    Pursuant to the 1992 Amendments to the Act, this subsection has 
been changed to require that State and local designation and protection 
legislation meet the definition of ``designation'' and ``protection'' 
in the Act.
Section 61.7  Subgrants to Certified Local Governments
    This section has been renamed, reoriented, reorganized and greatly 
reduced in length. The changes parallel those described above for the 
revisions to Section 61.6. In addition, the following revisions are 
proposed:
    Inasmuch as CLG subgrants are treated like any other subgrant, all 
language specifying standard subgrant requirements has been eliminated 
from this section and replaced with a single statement that standard 
requirements must be met as specified in the National Register Programs 
Guideline.
    The old section exempting the District of Columbia from this CLG 
subgrant section has been eliminated as

[[Page 51539]]

unnecessary inasmuch as it is exempted in Section 61.6 from the entire 
CLG program.
Section 61.8  Tribal Programs [Reserved]
    This new section has been added and reserved for later use.
Section 61.9  Grants to Tribal Programs [Reserved]
    This new section has been added and reserved for later use.
Section 61.10  Waiver
    This section, formerly Sec. 61.8, is redesignated Sec. 61.10 and is 
mostly unchanged.
Section 61.11  Information Collection Requirements [Reserved]
    This section, formerly Sec. 61.9, is redesignated and reserved. 
After OMB approval of the information collection requirements, this 
section will be updated at the final rule to reflect program changes 
and the Paperwork Reduction Act of 1995.
Appendix A to Part 61--Professional Qqualifications Standards
    This Appendix has been dropped as redundant to the historic 
preservation professional qualification standards found in the 
Secretary of the Interior's Standards and Guidelines for Archeology and 
Historic Preservation.
Appendix B to Part 61--Information sources
    This revision to 36 CFR Part 61 proposes the elimination of 
Appendix B as growing too large, too quickly becoming out of date and 
not as necessary as it was in 1984. The 1984 version contained names, 
addresses and phone numbers of NPS Regional Offices and State Historic 
Preservation Offices; there were no CLGs at that time. Some of that 
information became out of date within a year of publication. An 
Appendix B updated to 1996 would become almost twenty times longer with 
the addition of CLGs. At some point, tribal historic preservation 
offices, and Federal agency historic preservation offices would need to 
be added. A list with more than a thousand entries (not including 
tribes, Federal agencies and new CLGs) would become out of date faster 
than the 1984 list of 62 entries. The growth of technological tools, 
such as E-mail, FAX machines and the Internet, makes the need to have 
such a list of information sources in 36 CFR Part 61 unnecessary.

Public Participation

    It is the policy of the Department of the Interior, whenever 
practicable, to afford the public an opportunity to participate in the 
rulemaking process. Accordingly, interested persons may submit written 
comments regarding this rule to the address noted at the beginning of 
this rulemaking. The NPS will review all comments and consider making 
changes to the rule based upon an analysis of the comments.

Drafting Information

    The primary author of this rule is John W. Renaud, Heritage 
Preservation Services Division, National Center for Cultural Resource 
Stewardship and Partnership Programs, National Park Service, P.O. Box 
37127, Washington, DC 20013-7127.

Paperwork Reduction Act

    The collection of information contained in this section has 
previously been approved by the Office of Management and Budget under 
44 U.S.C. 3507, et seq., and assigned clearance number 1024-0038. This 
approval expired in January 1996 and renewal of this approval has been 
submitted to OMB. The information is being collected as part of the 
process of reviewing the procedures and programs of State and local 
governments participating in the national historic preservation 
program. The information will be used to evaluate those procedures and 
programs. The obligation to respond is required to obtain a benefit.
    The public reporting burden for the collection of this information 
is estimated to average 14.06 hours per response, including the time 
for reviewing instructions, searching existing data sources, gathering 
and maintaining the data needed, and completing and reviewing the 
collection of information. Send comments regarding this burden estimate 
or any other aspect of this collection of information, including 
suggestions for reducing the burden, to Information Collection Officer, 
National Park Service, 800 North Capitol Street, Washington, D.C. 
20001; and the Office of Management and Budget, Office of Information 
and Regulatory Affairs, Attention: Desk Officer for the Department of 
the Interior (1024-0038), Washington, D.C. 20503.

Compliance With Other Laws

    This rule was not subject to Office of Management and Budget review 
under Executive Order 12866. The Department of the Interior determined 
that this document will not have a significant economic effect on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). The economic effects of this rulemaking are 
negligible.
    The Service has determined and certifies pursuant to the Unfunded 
Mandates Reform Act, 2 U.S.C. 1502 et seq., that this proposed rule 
will not impose a cost of $100 million or more in any given year on 
local, State, or tribal governments or private entities.
    The NPS has determined that this proposed rulemaking will not have 
a significant effect on the quality of the human environment, health 
and safety because it is not expected to:

(a) increase public use to the extent of compromising the nature and 
character of the area or causing physical damage to it;
(b) introduce incompatible uses which compromise the nature and 
characteristics of the area or cause physical damage to it;
(c) conflict with adjacent ownership or land uses; or
(d) cause a nuisance to adjacent owners or occupants.

    Based on this determination, the regulation is categorically 
excluded from the procedural requirements of the National Environmental 
Policy Act (NEPA) by Departmental guidelines in 516 DM 6 (49 FR 21438). 
As such, neither an Environmental Assessment (EA) nor an Environmental 
Impact Statement (EIS) has been prepared.

List of Subjects in 36 CFR Part 61

    Grant programs-natural resources, Historic preservation, Reporting 
and recordkeeping requirements.
    In consideration of the forgoing, 36 CFR Chapter I is proposed to 
be amended as follows:
    1. 36 CFR Part 61 is revised to read as follows:

PART 61--PROCEDURES FOR STATE, TRIBAL AND LOCAL GOVERNMENT HISTORIC 
PRESERVATION PROGRAMS

Sec.
61.1  Authorization.
61.2  Definitions.
61.3  Implementation of this part 61.
61.4  State programs.
61.5  Grants to State programs.
61.6  Certified local government programs.
61.7  Subgrants to certified local governments.
61.8  Tribal programs. [Reserved]
61.9  Grants to Tribal programs. [Reserved]
61.10  Waiver.
61.11  Information collection. [Reserved]

    Authority: 16 U.S.C. 470 et seq.


Sec. 61.1  Authorization.

    The National Historic Preservation Act of 1966, as amended (16 
U.S.C. 470 et seq.):

[[Page 51540]]

    (a) Requires the Secretary of the Interior (Secretary) to 
promulgate regulations for:
    (1) Approving State historic preservation programs;
    (2) Certifying local governments to carry out the purposes of the 
Act;
    (3) The allocation by the State of a share of the grants received 
by the State under the Act to certified local governments (CLGs); and
    (4) Assisting Indian tribes in preserving their particular historic 
properties.
    (b) Directs the Secretary to administer a program of grants-in-aid 
to the States and Indian tribes for historic preservation projects and 
programs approved by the Secretary; and
    (c) Requires the Secretary to make available information concerning 
professional standards, methods, and techniques for the preservation of 
historic properties and the administration of historic preservation 
programs.


Sec. 61.2  Definitions.

    As used in this part:
    (a) All terms defined in the National Historic Preservation Act of 
1966, as amended, have the same meaning as provided by that statute. 
See especially Sections 101(a), 101(b)(1), 101(c)(4), 108 and 301 of 
the Act.
    (b) Act means the National Historic Preservation Act of 1966, as 
amended, (16 U.S.C. 470 et seq.)
    (c) Chief elected local official means the elected head of a local 
government.
    (d) The National Register Programs Guideline means the official NPS 
document that establishes administrative procedures and guidelines for 
historic preservation programs of the National Trust for Historic 
Preservation, and the State, tribal and local governments supported by 
the Historic Preservation Fund (HPF) or matching funds.
    (e) The Secretary's Standards and Guidelines means the Secretary of 
the Interior's Standards and Guidelines for Archeology and Historic 
Preservation, that provide broad national policy guidance on 
archeological and historic preservation practices, methods and 
qualifications.
    (f) State historic preservation program or State program means 
those activities listed in Section 101(b)(3) of the Act as 
responsibilities of the ``State Historic Preservation Officer''.


Sec. 61.3  Implementation of this part 61.

    (a) NPS policy of management by exception. The regulations in this 
part will be implemented in such a way, where it is feasible to be 
consistent with its terms, as to:
    (1) Rely to the maximum extent feasible on State, tribal and local 
government systems of financial and program administration that meet 
Federal standards;
    (2) Presume that historic preservation programs are managed in an 
accountable way unless situations indicate the contrary; and
    (3) Limit the use of direct Federal management review procedures to 
high risk situations, to new programs or to activities more 
appropriately overseen at the Federal level.
    (b) At the discretion of the Secretary, each State, tribal and 
local government may substitute its own fiscal audit and management 
systems for comparable fiscal audit and management requirements issued 
by the Secretary, so long as the system establishes and maintains 
substantially similar accounting standards and provides for independent 
peer review.
    (c) The National Register Programs Guideline. NPS will maintain 
this Guideline to ensure that each State, certified local government, 
tribal government, and the National Trust for Historic Preservation 
meets the requirements of the Act and of applicable regulations in 
performing historic preservation activities, pursuant to the Act.
    (d) The Secretary of the Interior's Standards and Guidelines. The 
National Register Programs Guideline will include The Secretary of the 
Interior's Standards and Guidelines for Archeology and Historic 
Preservation. The Standards and Guidelines will be used by NPS as the 
technical performance standards for matters covered by this part.
    (e) Each State staff, State Review Board member and certified local 
government Commission member approved by the Secretary as meeting the 
Secretary's Professional Qualification Standards will retain that 
status, regardless of any subsequent changes in the Standards, until 
such time as that individual no longer is employed by the State office, 
serves on the State Review Board, or serves on the certified local 
government Commission with which that individual was affiliated as of 
the date of that individual's approval.
    (f) Publications mentioned in this part can be obtained by 
contacting: Heritage Preservation Services Division, National Center 
for Cultural Resource Stewardship and Partnership Programs, National 
Park Service, P.O. Box 37127, Washington, D.C. 20013-7127.


Sec. 61.4  State programs.

    (a) A State Historic Preservation Officer (SHPO) will be appointed 
or designated by the Governor to administer the State historic 
preservation program.
    (b) It will be the responsibility of the SHPO to carry out the 
duties and activities described in section 101 (b)(3) of the Act. In 
performing those duties and activities:
    (1) The SHPO will carry out an historic preservation planning 
process that includes the development and implementation of a 
comprehensive statewide historic preservation plan that provides 
guidance for effective decision making about historic and cultural 
resource preservation throughout the State.
    (2) In addition to State activities to survey and maintain 
inventories of historic properties, eligible activities also include 
efforts to record a broad range of properties in order to obtain:
    (i) Comparative data valuable in determining the National Register 
eligibility of properties;
    (ii) Information on properties that may become eligible for the 
National Register of Historic Places with the passage of time; and/or
    (iii) Information on the absence of historic properties to be used 
in planning for public and private development projects.
    (3) The State will provide for adequate public participation in the 
State historic preservation program as a whole. As part of the process 
of recommending a property to the National Register, the State will 
comply with the consultation and notification procedures contained in 
36 CFR part 60. The State may authorize other persons or entities to 
fulfill the notice requirements in 36 CFR part 60. The State also may 
authorize the Local Preservation Commission of a certified local 
government to act for the State Review Board for the purpose of 
considering National Register nominations within its jurisdiction, 
provided the Commission meets the professional qualifications required 
for the State Review Board when considering such nominations. With the 
consent of all property owners in a nomination and the chief elected 
local official, the State Review Board or the Local Commission acting 
on its behalf may consider the nomination without a face-to-face 
meeting.
    (4) The State may carry out all or any part of its responsibilities 
by contract or cooperative agreement with any qualified nonprofit 
organization, educational institution, or otherwise pursuant to State 
law. However, the

[[Page 51541]]

State may not delegate its responsibility for compliance with grant 
assistance terms and conditions.
    (c) The Secretary will consider individual State proposals that 
include fewer than all of the SHPO duties in the Act in cases where the 
historic resources and needs would be better served for a specified 
period by implementing an alternative approach.
    (d) Procedures for review and approval of State historic 
preservation programs. (1) The Secretary will evaluate each State 
program for consistency with the Act periodically, but not less often 
than every four years, and will provide the State with written findings 
and analyses that highlight program strengths and weaknesses. A State 
program will be approved by the Secretary if the Secretary determines 
that it meets the program requirements of paragraphs (a), (b), (e) and 
(f) of this section.
    (2) The Secretary may use on-site and/or off-site inquiries to 
perform the evaluation.
    (3) Approval method. (i) Each State with a program determined to be 
consistent with the Act will receive timely written notice from the 
Secretary that its approved status is continued.
    (ii) Each State found to have major program aspects not consistent 
with the Act will receive timely written notice of deficiencies from 
the Secretary, along with required actions for correcting them. Unless 
circumstances warrant immediate action, the Secretary will defer making 
a decision on program approval for a specified period to allow the 
State to correct deficiencies or present a justifiable plan and 
timetable for correcting deficiencies. During this period, the State 
has the opportunity to appeal to the Secretary any findings and 
requirements.
    (iii) A State successfully resolving deficiencies will receive 
timely written notice from the Secretary that its approved status is 
continued. Once approved status is renewed, a State generally will not 
be reviewed until the next regular evaluation period, although 
evaluations may be conducted more often if the Secretary deems this 
necessary.
    (iv) A State with deficiencies that warrant immediate action or 
that remain after the expiration of the period specified pursuant to 
paragraph (d)(3)(ii) of this section will receive written notice from 
the Secretary that its approved status is removed. The Secretary will 
then initiate financial suspension and other actions in accordance with 
administrative guidelines specified in the National Register Programs 
Guideline and applicable regulatory requirements.
    (4) Instructions on carrying out the evaluation process are 
provided in the National Register Programs Guideline.
    (e) A professionally qualified staff will be appointed or employed 
by the State historic preservation program.
    (1) Except as approved pursuant to paragraph (e)(2) of this 
section, the staff will include at a minimum, one individual meeting 
The Secretary's Standards and Guidelines professional qualifications 
for history, one individual meeting the qualifications for historic or 
prehistoric archeology and one individual meeting the qualifications 
for architectural history. The State will determine the qualifications 
for staff positions in addition to this required minimum.
    (2) The Secretary will consider individual proposals made by States 
whose historic resources, needs or circumstances would be better served 
or met by an alternative staff composition.
    (3) When a staff position required by paragraph (e)(1) of this 
section becomes vacant, the State will ensure that the vacancy is 
filled in a timely manner. In the interim, the State will ensure that 
technical matters are addressed by appropriately qualified individuals. 
A vacancy in a required position that persists for more than six months 
will be cause for review and appropriate action by the Secretary.
    (f) An adequate and qualified State historic preservation Review 
Board will be appointed by the SHPO unless an alternative method of 
appointment is provided by State law.
    (1) All Review Board members will have demonstrated competence, 
interest or knowledge in historic preservation. A majority of Review 
Board members will meet the Secretary of the Interior's Professional 
Qualification Standards. Among the members meeting the Professional 
Qualification Standards will be individuals who meet the Standards for 
history, prehistoric archeology or historical archeology, and 
architectural history. One person may meet the Standards for more than 
one required discipline. The State will determine qualifications for 
any additional Review Board members.
    (2) The Secretary will consider individual proposals made by States 
whose historic resources, needs or circumstances would be better served 
or met by an alternative Review Board composition.
    (3) When a required Review Board position becomes vacant, the State 
will ensure that the vacancy is filled in a timely manner. In the 
interim, the State will ensure that the Review Board has access to 
advice from appropriately qualified individuals. A lapse of more than 
one year in filling the vacancy will be cause for review and 
appropriate action by the Secretary.
    (4) The State Review Board will meet at least once a year and will 
adopt written procedures governing its operations consistent with the 
provisions of this section and with the National Register Programs 
Guideline.
    (5) State Review Board responsibilities include, but need not be 
limited to, the following:
    (i) Reviewing and making recommendations on National Register 
nomination proposals;
    (ii) Participating in the review of appeals to National Register 
nominations; and
    (iii) Providing advice to the State on the full range of Historic 
Preservation Fund-supported activities, as described in Section 101 
(b)(3) of the Act.


Sec. 61.5  Grants to State programs.

    (a) Each State with an approved State program will be eligible for 
grants-in-aid from the Historic Preservation Fund (HPF).
    (b) Administration of HPF matching grants-in-aid will be in 
accordance with the Act, the National Register Programs Guideline, OMB 
Circular A-128 and 43 CFR part 12. Failure by a State to meet these 
requirements will be cause for appropriate action by the Secretary.


Sec. 61.6  Certified local government programs.

    (a) All approved State programs will provide a mechanism for 
certifying local governments (CLGs) to participate in the National 
program.
    (b) All approved State historic preservation programs will maintain 
procedures approved by the Secretary for the certification of local 
governments. Procedures also will be maintained for removal of 
certified local government status for cause. The State will submit any 
proposed amendments to its procedures to the Secretary for approval. 
The Secretary will act on such proposals within 45 days of receipt.
    (c) When a local government certification request has been approved 
by the State in accordance with the State's approved certification 
process, the State will prepare a written certification agreement that 
lists the specific responsibilities of the local government. The State 
will submit to the Secretary such information as is necessary for the 
Secretary to certify the local government pursuant to the Act and this 
part. If the Secretary does not take exception to the proposed 
certification within 15 working days of

[[Page 51542]]

receipt, the local government will be regarded as certified by the 
Secretary.
    (d) Beyond the minimum responsibilities set out in the Act for all 
CLGs, the State may make delegations of responsibility to individual 
CLGs. However, these delegations may not include the State's overall 
responsibility derived from the National Historic Preservation Act, as 
amended, or where specified by law or regulation.
    (e) The State must ensure that each local government satisfies the 
following minimum requirements as conditions for certification. Each 
certified local government will:
    (1) Enforce appropriate State or local legislation for the 
designation and protection of historic properties. The State will 
define what constitutes appropriate legislation, as long as:
    (i) Designation provisions include the identification and 
registration of properties for protection that meet criteria 
established by the State or the locality for significant historic and 
prehistoric resources within the jurisdiction of the local government;
    (ii) Protection provisions include a local review process under 
State or local law for proposed demolitions of, changes to, or other 
action that may affect historic properties as described in paragraph 
(e)(1)(i) of this section; and
    (iii) The legislation otherwise is consistent with the Act.
    (2) Establish by State or local law and maintain an adequate and 
qualified historic preservation review commission (Commission). All 
Commission members will have a demonstrated interest, competence or 
knowledge in historic preservation.
    (i) The State will encourage certified local governments to include 
individuals meeting the Secretary's Professional Qualification 
Standards among the membership of the Commission, to the extent that 
such individuals are available in the community.
    (ii) The State may specify the minimum number of Commission members 
that must meet the Secretary's Professional Qualification Standards. 
The State may also specify which, if any, of the disciplines listed in 
the Standards must be represented on the Commission. Membership 
requirements set by the State for Commissions will not be more 
stringent or comprehensive than its requirements for the State Review 
Board.
    (iii) Provided that the Commission is otherwise adequate and 
qualified to carry out the responsibilities delegated to it, a local 
government may be certified without the minimum number or types of 
disciplines established in State procedures, if it can demonstrate that 
it has made a reasonable effort to fill those positions, or that an 
alternative composition of the Commission best meets the needs of the 
Commission and of the local government.
    (iv) The State will make available to each Commission orientation 
materials and training designed to provide a working knowledge of the 
roles and operations of Federal, State and local historic preservation 
programs, and historic preservation in general.
    (3) Maintain a system for the survey and inventory of historic 
properties. The State will ensure that such systems and the data that 
they produce can be readily integrated into statewide inventories and 
appropriate State and local planning processes.
    (4) Provide for adequate public participation in the historic 
preservation program as a whole. The State will provide each CLG with 
appropriate guidance on mechanisms to ensure adequate public 
participation in the local historic preservation program.
    (5) Satisfactorily perform the responsibilities delegated to it 
under the Act. The State will monitor and evaluate the performance of 
each CLG according to written standards and procedures established by 
the State. If a State evaluation of a CLG's performance indicates that 
such performance is inadequate, the State will suggest ways to improve 
performance. If, after a period of time stipulated by the State, the 
State determines that there has not been sufficient improvement, it may 
recommend to the Secretary that the local government be decertified. If 
the Secretary does not object within 30 working days of receipt, the 
decertification will be considered approved by the Secretary.
    (f) Effects of certification include:
    (1) Inclusion in the process of nominating properties to the 
National Register of Historic Places in accordance with sections 101 
(c)(2)(A) and (c)(2)(B) of the Act. The State may delegate to a CLG any 
of the responsibilities of the SHPO and the State Review Board in 
processing National Register nominations as specified in 36 CFR part 
60, except for the authority to nominate properties directly to the 
National Register. A CLG may make nominations directly to NPS only when 
the State does not have an approved program pursuant to Sec. 61.4.
    (2) Eligibility to apply for a portion of the State's annual 
Historic Preservation Fund (HPF) grant award. At least 10 percent of 
the State's annual HPF grant award will be set aside for transfer to 
CLGs.
    (g) The District of Columbia will be exempted from the requirements 
of this section because there are no subordinated local governments in 
the District. If a territory believes that its political subdivisions 
lack authorities similar to those of local governments in other States, 
and hence cannot satisfy the requirements for local government 
certification, it may apply to the Secretary for exemption from the 
requirements of this section.
    (h) Procedures for direct certification by the Secretary where 
there is no approved State program pursuant to Sec. 61.4. To the extent 
feasible, the Secretary will ensure that there is consistency and 
continuity in the CLG program of a State that does not have an approved 
State program.
    (1) Where there is no approved State program, local governments 
wishing to be certified must apply directly to the Secretary.
    (2) The application must demonstrate that the local government 
meets the specifications for certification set forth in paragraph (e) 
of this section.
    (3) The Secretary will review certification applications under this 
paragraph (h) and take action within 90 days of receipt.


Sec. 61.7  Subgrants to certified local governments.

    (a) At least 10 percent of each State's annual Historic 
Preservation Fund (HPF) grant award will be designated for transfer by 
the State to CLGs as subgrants. In any year that the annual HPF State 
grant appropriation exceeds $65,000,000, one half of the amount over 
$65,000,000 will also be transferred to CLGs according to procedures to 
be provided by the Secretary.
    (b) Each CLG will be eligible to receive funds from the 10 percent 
(or greater) CLG share of the State's total annual HPF grant award. The 
State is not required to award funds to all governments eligible to 
receive funds.
    (c) Each State will maintain a procedure approved by the Secretary 
for allocating the CLG share of its annual HPF grant award. The 
procedure will provide a clear basis for funding decisions and ensure 
that no CLG receives a disproportionate share of the allocation. The 
State will submit any proposed amendments to its procedure to the 
Secretary for approval. The Secretary will act on such proposals within 
45 days of receipt.
    (d) Each State will notify annually each eligible local government 
of its opportunity to apply for funding as well as what is entailed in 
the application and project selection process.

[[Page 51543]]

    (e) Each CLG receiving an HPF grant award from the CLG share will 
be considered a subgrantee of the State. The State will ensure that 
each CLG adheres to all applicable requirements of the National 
Register Programs Guideline. The State may require specific uses of 
funds subgranted to CLGs. Subgranted monies will not be applied as 
matching share for any other Federal grant.
    (f) Where there is no approved State program pursuant to Sec. 61.4, 
the method for allocating funds to CLGs in that State will be 
determined by the Secretary in accordance with the procedures set forth 
for the State in this Sec. 61.7. To the extent feasible, the Secretary 
will ensure consistency and continuity in the funding allocation policy 
of the CLG program for a State that does not have an approved historic 
preservation program.


Sec. 61.8  Tribal programs. [Reserved]


Sec. 61.9  Grants to Tribal programs. [Reserved]


Sec. 61.10  Waiver.

    The Secretary may waive any of the requirements of the rules in 
this part that are not mandated by statute or by other applicable 
regulations, if, in the Secretary's written opinion, the historic 
preservation program would benefit from such waiver and the purposes, 
conditions, and requirements of the National Historic Preservation Act 
of 1966, as amended, would not be compromised.


Sec. 61.11  Information collection. [Reserved]

    Dated: September 18, 1996.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 96-24406 Filed 10-1-96; 8:45 am]
BILLING CODE 4310-70-P