[Federal Register Volume 64, Number 45 (Tuesday, March 9, 1999)]
[Rules and Regulations]
[Pages 11736-11746]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5783]



[[Page 11735]]

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Part VI





Department of the Interior





_______________________________________________________________________



National Park Service



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36 CFR Part 61



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

  Federal Register / Vol. 64, No. 45 / Tuesday, March 9, 1999 / Rules 
and Regulations  

[[Page 11736]]



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: Final rule.

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

SUMMARY: Through this rule, the National Park Service (NPS) revises 
requirements (and the description of its own administrative procedures) 
for State, tribal, and local historic preservation programs carrying 
out actions under the National Historic Preservation Act of 1966, as 
amended. Many revisions derive from the 1992 amendments to the National 
Historic Preservation Act. Other changes reduce the regulatory burden 
on, and provide more flexibility to, State, tribal, and local historic 
preservation programs in response to the President's Regulatory 
Reinvention Initiative and Executive Order 12866. Still others are made 
in recognition of the changing and maturing professional practice of 
historic preservation nationwide.

DATES: This rule is effective on June 7, 1999.

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 National Historic 
Preservation Act of 1966, as amended, (16 U.S.C. 470 et seq.) which 
creates the national historic preservation program, which is a 
partnership among Federal, State, tribal, and local governments, 
nonprofit and for profit organizations, and individual citizens. The 
Act also provides funding for this partnership through the Historic 
Preservation Fund. This partnership is dedicated to the preservation of 
historic properties (as defined by the Act) nationwide which provide 
the foundation of our Nation's rich and irreplaceable heritage. Through 
this partnership, the vital legacy of cultural, educational, aesthetic, 
inspirational, and economic benefits of our patrimony is 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 this national program administered by the 
Secretary of the Interior through the Director of the National Park 
Service (NPS). As of the date of publication of this rulemaking, all 59 
States (as defined by the Act) participate as do more than 1,100 local 
governments and 17 tribal governments. The tribal sections (currently 
reserved) of this rule, which will address more particularly the needs 
of tribes participating in this program, may eventually lead to the 
participation in the national historic preservation program of the more 
than 300 federally recognized Indian tribes. NPS is responsible for 
providing national standards, guidance, and technical assistance to the 
State, tribal, and local historic preservation programs participating 
in the national historic preservation program. NPS also provides 
quality control for the activities funded by the Historic Preservation 
Fund grants-in-aid and matching monies. The responsibility for most 
decision making in the State, tribal, and local government programs and 
the selection of specific projects and activities lies largely with 
each State, tribal, and local government based on its particular needs. 
Public participation is a crucial part in guiding the course of this 
national historic preservation program.
    This revision to 36 CFR part 61 is needed as the former regulation 
(promulgated in 1984) became outmoded due to changes in statute and the 
natural 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 as well as technical changes 
to the subject matter covered by these rules. Through day-to-day 
administration of the program, as well as through communication with 
partners in the national historic preservation program, NPS has become 
aware of the need for other changes to these rules.
    One of the significant policy changes made to the Act in the 1992 
amendments directed a substantive and meaningful role for Indian tribes 
within the national historic preservation program. The United States 
has a unique legal relationship with Indian tribes set out in the 
Constitution of the United States as well as in treaties, statutes, and 
Federal court decisions. The full participation of tribes within the 
national historic preservation program is a national policy goal and is 
recognized within this rule.
    Pursuant to the 1992 amendments to the Act, Indian tribes can be 
approved by the Secretary of the Interior to assume formal 
responsibility for carrying out on tribal lands any or all of those 
functions previously assigned to State Historic Preservation Officers. 
Indian tribes can use (and to date 17 tribes have used) the statutory 
language of that amendment and the existing regulatory framework set 
out in this rule and in related regulations to assume those formal 
responsibilities. Sections 61.8 and 61.9 of this rule (currently 
reserved) will address in more detail the process for tribal assumption 
of program responsibilities. These two sections will also be used to 
implement the statutory mandate for providing greater flexibility in 
the application of statutory and regulatory requirements to tribal 
programs, in order to accommodate tribal values to the greatest extent 
feasible.
    Sections 61.8 and 61.9 which are currently under development by NPS 
will be issued for general review and comment in the Federal Register 
and eventually issued for effect. In addition to those sections, other 
changes to this rule may be proposed in further recognition of the role 
of tribes in this program and will be issued for review and comment 
within the Federal Register at an appropriate time for public 
consideration and comment. In developing Sec. 61.8, Sec. 61.9, and 
other changes to the rule, NPS will consult with the tribes already 
participating in the program and with other interested parties.
    The 1992 amendments to the Act also included a more formal 
recognition (within the breadth of programs authorized by the Act) of 
properties of traditional religious and cultural importance to Indian 
tribes or Native Hawaiian organizations. It is the intent of this rule 
to ensure that, to the extent feasible, State and local governments 
operating under this rule identify, evaluate and protect these unique 
classes of properties in consultation with Indian tribes and Native 
Hawaiian organizations in activities listed in section 101(b)(3) of the 
Act for States and section 101(c) of the Act for local governments.
    Revision of 36 CFR part 61 is the appropriate means to resolve many 
of these issues. 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 nationwide. By placing more reliance on State, tribal, and 
local governments, by eliminating unnecessary detail and procedures, 
and by expressing a more flexible oversight philosophy, these revisions 
to 36 CFR

[[Page 11737]]

part 61 can reduce the need for a future rulemaking.
    The penalties for noncompliance as specified in this rulemaking 
include revoking the approved program status of any noncompliant party 
as mandated by statute. The regulation also recognizes government-wide 
requirements for Federal grants that include penalties (for 
noncompliance with the terms of such grants) ranging from increased 
oversight and reporting, to recovery of Federal funds, to suspension 
from the grant program until requirements are met. Monitoring these 
regulatory requirements is accomplished through a periodic review of 
programs; with quality control of documents such as nominations to the 
National Register of Historic Places and Federal Historic Preservation 
Tax Incentive applications that are forwarded by the State to NPS; and, 
by evaluation of standard reports on measures and accomplishments made 
using Federal grant money.
    36 CFR part 61 provides the general procedural framework for State, 
local, and tribal 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 and 36 CFR part 67 for Federal Historic 
Preservation Tax Incentives. 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 NPS.

Comments on and Revisions to the Proposed Rule

    This section summarizes and responds to comments received by NPS in 
response to the proposed revisions to 36 CFR part 61 published in the 
Federal Register on October 2, 1996 (61 FR 51536). This section 
summarizes those comments and is organized by general subject matter. 
Citations to the applicable part of the proposed rule are provided. 
Changes made as a result of the comments are minor and clarify rather 
than substantively change the proposed rule. This eliminates the normal 
need to repeat in this document the section-by-section rationale for 
the changes made to the 1984 rule. The Section-by-Section Analysis in 
the preamble to the proposed rule remains an accurate description of 
the rationale for the detailed changes except where modified in this 
document. For example, the Department of the Interior Solicitor's 
Office pointed out that the definition of ``State program'' in 
Sec. 61.2(e) of the proposed rule leaves out statutory elements of a 
State program as described in section 101(b) of the Act. We have 
revised the definition accordingly.

Requirements for Certified Local Government Historic Preservation 
Review Commissions, State Historic Preservation Program Staff, and 
State Historic Preservation Review Boards

    Comment: The largest number of comments received (15 in total) 
supported making a specific discipline (or disciplines) a requirement 
for each State's historic preservation program staff (State staff) in 
Sec. 61.4(e)(1) and/or for each State's Historic Preservation Review 
Board (Review Board) in Sec. 61.4(f)(1). Some commenters objected to 
the proposed elimination of specific mandatory disciplines while other 
commenters proposed that new disciplines be added as requirements. The 
proposal to eliminate Architecture and Prehistoric and Historic 
Archeology as requirements were most commonly mentioned. Additionally, 
the suggestion for State staff and Review Boards to have professional 
expertise in traditional cultural resources was promoted by a number of 
commenters especially for States in which there are extensive 
concentrations of such resources.
    Response: It is the position of NPS that full-time State staff and 
Review Board member professional proficiency in History, Architectural 
History, and either Prehistoric or Historic Archeology is needed to 
provide a common national baseline given the frequency with which all 
State programs deal with certain repetitive classes of historic 
properties (as defined by the Act). Experience has shown that other 
disciplines may well be needed by some State programs but not by all 
State programs, and not necessarily full time. For example, traditional 
cultural properties expertise would be appropriate in a State with 
large concentrations of such properties. In States where this is not 
the case, this expertise may be less of a concern. These determinations 
are best made by the State Historic Preservation Officer (SHPO) and not 
by NPS through this rule. However, NPS expects each SHPO to maintain a 
State staff and Review Board appropriate to the historic properties (as 
defined by the Act) in that State.
    Comment: Two commenters stated that all disciplines listed in the 
Act should be required on every State staff and Review Board.
    Response: NPS disagrees. To require all disciplines cited in the 
Act would be an unnecessary burden for State programs in many instances 
given State resources, historic preservation needs, and program 
emphases. NPS expects each SHPO to fill professional positions as 
necessary to balance historic property, customer or constituent, and 
historic preservation needs of the State and to obtain expertise in 
disciplines as appropriate.
    Comment: Three people expressed the view that there should be no 
specific required disciplines for either State staff or Review Board 
mandated in Secs. 61.4(e)(1) and (f)(1).
    Response: NPS disagrees. As stated above, it is the position of NPS 
that a common national baseline of historic preservation professionals 
on each State staff and Review Board is needed. This position was 
reached after detailed consultations with State Historic Preservation 
Officers over a period of several years.
    Comment: Two commenters thought that only the disciplines of 
History, Architectural History, and Prehistoric or Historic Archeology 
could be represented on a State program's staff or Review Board, and 
that no other discipline could be allowed. They concluded that this 
would mean a State program would be without expertise in many essential 
areas. They also objected to the apparent position held by NPS that 
other disciplines are not as valuable as the required disciplines.
    Response: Sections 61.4(e) and 61.4(f) have been revised to make 
clear that the required disciplines are not the only disciplines that 
can or should be represented in the ``professional positions.'' This 
rule, however, does not designate which additional disciplines to 
select. It is the position of NPS that each SHPO knows best what 
additional disciplines are needed to meet its particular needs and 
resources. Furthermore, the fact that certain disciplines are minimum 
regulatory requirements for State staffs and Review Boards does not 
mean that those disciplines are necessarily more critical than the 
other disciplines in a specific State.
    Comment: One commenter thought that for a Certified Local 
Government's (CLG's) historic preservation review commission 
(Commission) to meet the requirements of Sec. 61.6(e)(2)(i), every 
discipline listed in ``the Secretary's (Historic Preservation) 
Professional Qualifications Standards'' would have to be represented on 
the Commission.
    Response: This is not the case. The Act requires that professional 
membership on a Commission be drawn

[[Page 11738]]

from among (but not from all of) such disciplines to the extent 
available in the community. It is at the discretion of each SHPO as 
expressed in the Statewide local government certification procedures, 
how many and which disciplines should be represented on each 
Commission.
    Comment: One person asked, concerning Sec. 61.4(f)(1), who within 
each State has the authority to select the professional disciplines 
(beyond the requirements set by this rule) for the Review Board.
    Response: The SHPO, pursuant to Section 301(12)(A) of the Act, has 
the authority to select the professional disciplines unless State law 
specifies to the contrary.
    Comment: Three individuals stated that the alternative composition 
provisions of Secs. 61.4(e)(2) and (f)(2) are unnecessary given how 
easy it is to meet the basic requirements for State staff and Review 
Board professional membership.
    Response: NPS disagrees. The alternative composition provisions 
remain necessary and appropriate in allowing flexibility for State 
programs. In addition, Indian tribes are currently using this 
regulatory framework for assuming historic preservation 
responsibilities parallel to some or all State Historic Preservation 
Officer duties. The alternative composition provisions offer very 
important flexibility for accommodating these new tribal programs that 
vary greatly in their scope, size, and focus. Section 61.8, currently 
under development, will expand on these provisions for tribal programs.
    Comment: One person asked what constitutes ``demonstrated 
competence, interest, or knowledge in historic preservation'' as 
specified in Sec. 61.4(f)(1), how this is documented, and expressed 
concern that this requirement is in conflict with a State law that 
requires that only a majority of members have such ``demonstrated 
competence, interest, or knowledge in historic preservation.''
    Response: Any ``professional'' meeting ``the Secretary's (Historic 
Preservation) Professional Qualifications Standards'' automatically 
meets the ``demonstrated competence, interest, or knowledge'' test. For 
other Review Board members, NPS expects each SHPO to use a rule of 
reasonableness to determine whether a person has competence, interest, 
or knowledge in historic preservation. For the programs and activities 
subject to this rule, the provisions of 36 CFR part 61 take precedence 
over conflicting State law.
    Comment: Another person thought that requiring in Sec. 61.4(f)(1) 
that every Review Board member have a demonstrated ``interest, 
competence, or knowledge in historic preservation'' meant that all 
Review Board members must be ``historic preservation practitioners'' 
who meet ``the Secretary's (Historic Preservation) Professional 
Qualifications Standards'' for the discipline of ``Historic 
Preservation.''
    Response: There is no such requirement.
    Comment: One commenter suggested that ``as appropriate'' be added 
to Sec. 61.6(e)(2)(i) to ensure that a ``professional'' would not be 
appointed to a Commission just because he or she is the only 
professional available in the community.
    Response: This rule does not require a CLG to limit its Commission 
membership selection criteria to the Federal minimum requirements, 
provided that its additional selection criteria are not inconsistent 
with the purposes of the Act and Statewide procedures.
    Comment: One person thought that the provision in 
Sec. 61.6(e)(2)(ii) matching Commission membership requirements to 
those for the Review Board was too restrictive because in many States, 
Commissions and Review Boards have very different (although 
overlapping) responsibilities.
    Response: NPS agrees and has modified the language of the rule 
accordingly to place an emphasis on local needs and functions for State 
procedure requirements relating to Commission membership.
    Comment: Two commenters expressed concern that requiring only three 
disciplines on each Review Board means that only those three 
disciplines could be professional members of the Commission pursuant to 
Sec. 61.6(e)(2).
    Response: State programs and local offices can, and often do, set 
additional membership requirements that are responsive to particular 
State and local needs and issues. Nothing in this rule prohibits a CLG 
from appointing to its Commission more than the minimally required 
number or types of professional members.
    Comment: Two commenters expressed concern that reducing the minimum 
number of Review Board meetings from three to one a year 
(Sec. 61.4(f)(4)), would make it more difficult for a State historic 
preservation office to justify State budgetary authority for additional 
meetings necessary to carry out Review Board responsibilities. Of 
particular concern was timely review of nominations to the National 
Register of Historic Places.
    Response: NPS agrees and language has been added to make clear that 
each Review Board should meet as often as necessary to meet national 
historic preservation statutory and regulatory requirements.
    Comment: Another individual expressed concern about the proposed 
change in Sec. 61.4(f)(3) to extend from six months to one year the 
time period in which a vacancy on a Review Board could exist prior to 
NPS intervention.
    Response: The rule change parallels the move in Sec. 61.4(f)(4) to 
a one Review Board meeting per year minimum. If a Review Board meets 
only once a year, a ten-month-long vacancy between meetings would not 
necessarily be problematic. Note, however, that the rule retains the 
requirement that a vacancy be filled in a ``timely'' fashion. NPS would 
expect a more rapid response to a vacancy from a State that holds 
quarterly Review Board meetings.

Other State and Local Program Issues

    Comment: One commenter raised the question as to whether 
municipalities were meant to be included in Sec. 61.4(b)(4) as part of 
``any qualified nonprofit organization, educational institution, or 
otherwise pursuant to State law'' regarding a SHPO's ability to carry 
out activities via contract or cooperative agreement. If so, the 
commenter suggests that this is in conflict with Sec. 61.6(f)(1) which 
prohibits SHPOs from delegating the authority to nominate properties 
directly to the National Register.
    Response: A SHPO may use third parties, including municipalities, 
to carry out aspects of the National Register process, but may not 
delegate the authority to nominate properties directly to the National 
Register. This section provides flexibility to each SHPO, but does not 
allow the SHPO to divest himself or herself of statutory authorities 
and responsibilities. NPS has added language to clarify this point.
    Comment: One person found it problematic that Federal and State 
requirements for Commissions might not be stringent enough to justify 
conducting certain SHPO responsibilities through a CLG pursuant to 
Sec. 61.6(d) if that CLG only meets the minimum requirements specified 
in Sec. 61.6(e).
    Response: It is each SHPO's responsibility to ensure that a CLG has 
adequate capacity to carry out any additional responsibilities.
    Comment: Two commenters opposed the option in Sec. 61.4(b)(3) to 
waive the face-to-face meeting requirement for the

[[Page 11739]]

Review Board (or a Commission acting for the Review Board) in 
considering a National Register nomination because they believe face-
to-face meetings are an important part of the National Register and 
public participation process.
    Response: NPS recognizes the value inherent in a face-to-face 
discussion of any nomination to the National Register. Therefore this 
provision is optional and can be used only when all parties (including 
the chief elected local official as the representative of the general 
public) consent to waive the face-to-face meeting.
    Comment: Six commenters opposed the options provided in 
Sec. 61.4(b)(3) to allow broader CLG participation in the National 
Register process because they believe that many CLGs may not be 
interested in, qualified for, or sufficiently objective to take the 
place of the Review Board in reviewing nominations. They expressed 
concern that the National Register process could be compromised.
    Response: Even if a SHPO chooses to offer this option, if a CLG is 
not interested in participating more broadly in the National Register 
process, nothing in this rule would compel it to do so. However, in 
those situations in which a CLG has so requested, it must meet all 
applicable program criteria thus ensuring minimum levels of 
professional credibility and accountability. The integrity of the 
National Register process is protected also by the appeals process 
specified in 36 CFR part 60. Note that section 101(c)(2) of the Act 
sets parameters for CLG participation in the National Register process.
    Comment: One person suggested that the provision in Sec. 61.4(b)(3) 
requiring owner consent to waive a public meeting for the Review Board 
(or Commission) review of a National Register nomination conflicts with 
the owner objection provisions in section 101(a) of the Act regarding 
district nominations.
    Response: NPS disagrees. NPS believes that there is no 
inconsistency because the subject matter is different; i.e., whether to 
waive a public hearing for considering National Register eligibility 
(in this case) versus whether historic properties should be listed in 
the case of district nominations.
    Comment: Four people asserted that requiring consent from the chief 
elected local official for the waiver of the requirement for a public 
meeting as stated in Sec. 61.4(b)(3) is unnecessary and could be 
eliminated or, alternatively, replaced by a notification.
    Response: NPS disagrees. NPS believes that the consent of the chief 
elected local official (as the community's representative) is important 
in waiving a community's right to an open and public consideration of a 
property's nomination to the National Register.
    Comment: One person requested that the rule provide detailed 
technical guidance about how the National Register-related public 
participation provisions of Sec. 61.4(b)(3) should be carried out by 
interested SHPOs, Review Boards, and Commissions.
    Response: NPS agrees with the need for technical guidance. However, 
the technical guidance does not need to be presented as part of this 
rule. NPS intends to prepare this technical guidance in consultation 
with affected parties and to issue it as soon as possible.
    Comment: Four comments stated that State survey and inventory data 
(Sec. 61.4(b)(2)) which includes information on the absence of National 
Register eligible properties or on properties for potential future 
nomination to the National Register are wasteful and could lead to 
restriction of private property rights.
    Response: NPS disagrees. Typically, though not a focus of all 
surveys, gathering and keeping data on ``no properties found'' (i.e., 
areas which include properties that are not National Register eligible) 
is ultimately highly cost effective. This information reduces the need 
for costly re-surveys to plan for both public and private projects. 
There is no evident reduction of property rights due to this provision 
because neither the Act nor this rule gives the SHPO the authority to 
carry out surveys on private land without owner permission. 
Furthermore, a property cannot be listed on the National Register if 
the private property owner (or majority of owners for districts) 
objects.
    Comment: One person suggested changing the phrase ``absence of 
historic properties'' in Sec. 61.4(b)(2) to ``absence of particular 
kinds of properties'' because a finding of no historic properties in an 
area may have been based only upon a particular class or type or 
survey, but be misconstrued to mean that there are no historic 
properties of any kind. For example, in a survey for a particular class 
or type of resources (e.g., archaeology only or bridges only), other 
kinds of historic properties resources would not necessarily be 
identified.
    Response: While NPS agrees, changing the rule would weaken the 
point of this provision which is to highlight the cost-effectiveness 
and usefulness for planning purposes of knowing that there is no 
historic property in the area. Reminders (such as this comment) on the 
use and limitations of such ``negative'' surveys are more appropriately 
addressed, NPS believes, in a different venue; e.g., ``the Secretary's 
Standards and Guidelines for Identification'' or similar technical 
publications.
    Comment: One person stated that the SHPO may not have authority to 
ensure that CLG survey and inventory data ``can be readily integrated 
into . . . local planning processes'' as stated in Sec. 61.6(e)(3).
    Response: The chief elected local official's signature on the CLG 
certification agreement carries with it a commitment to follow the 
Federal and State requirements for the CLG program. Also, this rule 
does not require the actual integration into local systems--clearly a 
local decision--but rather that the data are in a format compatible 
with the local planning process(es).
    Comment: One person expressed concern that Sec. 61.6(e)(1) seemed 
to be highlighting regulatory tools for local historic preservation 
programs rather than encouraging non-regulatory approaches to historic 
preservation.
    Response: These provisions for CLG requirements follow the Act 
which specifically sets forth the use of regulatory tools by mandating 
that CLGs must enforce appropriate State and local legislation for the 
``designation'' and ``protection'' of historic properties (see section 
101(c)(4) of the Act). However, nothing in this rule should be 
interpreted to advocate only regulatory approaches to historic 
preservation at any level of government.

Tribal Issues

    Comment: One person wondered why the tribal sections of the rule 
were reserved and suggested that information be provided explaining the 
status of this material.
    Response: NPS believes that it is premature to provide language 
(either inclusive or exclusive) in this rulemaking that provides 
regulatory interpretation of the statutory mandate to establish tribal 
programs under section 101(d) of the Act. Preliminary consultation with 
the tribes and other interested parties is now underway but has not yet 
been completed, and the Federal Register review and comment process 
must still be undertaken.
    Comment: One person asked what impact this rulemaking will have on 
the development of procedures for tribal historic preservation programs 
under section 101(d) of the Act. Concern was expressed that the State 
and local requirements contained in this rule would either limit or 
predetermine the direction of tribal program procedures.

[[Page 11740]]

    Response: This rulemaking will not constrain or predetermine the 
development of tribal procedures because section 101(d) of the Act 
calls for flexibility and modifications to accommodate tribal settings. 
Any requirement for State programs is subject to modification for 
tribal programs in accordance with rules under NPS development.
    Comment: One person recommended exempting tribes from State 
Historic Preservation Officer responsibilities specified in this rule.
    Response: The position of NPS is that such a blanket exemption for 
the tribes is neither appropriate nor consistent with the intent and 
meaning of the Act. By law, State historic preservation program 
requirements provide a point of reference in the establishment of 
tribal historic programs under section 101(d) of the Act. In 
furtherance of the requirements of section 101(d) of the Act, Sec. 61.8 
of this rule (currently reserved and under development in consultation 
with the tribes) will propose significant flexibility for tribal 
programs by allowing for the case-by-case waiver or modification of 
requirements in the Act and its attendant regulations in order to 
accommodate tribal values to the greatest extent feasible. In the 
meantime, tribes already choosing to participate in the national 
program can avail themselves of the provisions of Sec. 61.4 that allow 
for case-by-case approval of various program alternatives, as well as 
the provisions of Sec. 61.10 that allow for case-by-case waiver of 
those requirements of this rule not otherwise required by statute or 
other regulation and as long as the purposes, conditions, or 
requirements of the Act would not be compromised.
    Comment: Another concern expressed was that no definition of 
``tribal historic preservation program'' or ``tribal program'' is 
included in this rulemaking.
    Response: Again, these definitions will be developed as part of the 
consultation process for drafting the regulations for the tribal 
preservation programs and as such will be added to this rule at a later 
date.
    Comment: One person suggested adding section 101(d) to the other 
referenced sections of the Act in Sec. 61.2(a) of this rule.
    Response: NPS agrees with the importance of section 101(d), but not 
with referencing it in Sec. 61.2 of this rule. Section 61.2 is the 
``definitions'' section of this rule and, unlike the other referenced 
sections of the Act, section 101(d) contains no definitions.
    Comment: One person suggested changing the term ``Native Alaskan 
corporations'' to ``Native Alaskan groups.''
    Response: NPS cannot adopt this suggestion. The term 
``corporation'' comes directly from the definition of Indian tribe in 
section 301(4) of the Act which in turn is based on the definitions in 
section 3 of the Alaska Claims Settlement Act (43 U.S.C. 1602).

National Park Service (NPS) Roles

    Comment: Five commenters expressed concern about the 
appropriateness of, and/or the lack of, a precise explanation in 
Sec. 61.3(a) of ``management by exception'' for the administration of 
historic preservation programs under the Act.
    Response: ``Management by exception'' is the preferred policy 
approach of NPS in administering the national historic preservation 
program. It presumes that State, tribal, and local programs are being 
administered in an accountable fashion in meeting all applicable 
government-wide requirements unless proved to the contrary. A 
management-by-exception approach uses oversight and analysis of systems 
and quality control processes rather than an in-depth, project-by-
project approach. NPS has adopted this management policy wherever 
warranted in recognition of both the growing maturation of the national 
program, as well as changing Administration and Congressional 
directives concerning the relationship between the Federal Government 
and State, tribal, or local governments. However, whenever situations 
warrant, NPS can, and will, apply more rigorous oversight to ensure 
that requirements are met.
    Comment: One person expressed the view that NPS is sometimes too 
responsive to SHPO views and does not hear the concerns of the State's 
clients.
    Response: NPS makes every effort to serve equally each member of 
the national partnership in administering the national historic 
preservation program and considers all constituent comments. Oversight 
and accountability are not affected by our long-standing relationship 
with the State historic preservation programs.
    Comment: Two people asked for clarification of ``independent peer 
review'' in Sec. 61.3(a) as applied to a State, tribal, or local 
government substituting its own fiscal audit and management systems for 
comparable requirements set by the Secretary.
    Response: ``Independent peer review'' is defined as a review 
carried out by entities (public or private) who are not a part of NPS 
but who can provide comparable independent, objective, and 
knowledgeable oversight, analysis, and review that inspires confidence 
that government-wide and Act-specific audit and management requirements 
are being met.
    Comment: One person opposed eliminating the requirement that each 
SHPO make an annual certification that it has a fully qualified staff 
and Review Board because, in the commenter's opinion, SHPOs may not 
always inform NPS when there is a vacancy.
    Response: The former regulatory requirement is redundant. The 
annual grant agreement (executed between NPS and each State 
participating in the national program) includes as a condition for 
receiving the grant award the mandate that the State program meets and 
will continue to meet all of the applicable requirements of the Act and 
this rule.
    Comment: One person suggested amending ``appropriate action'' to 
``suspension of approved status'' in Secs. 61.4 (e) and (f) regarding 
the result of NPS intervention when a vacancy has not been filled in a 
timely fashion.
    Response: NPS disagrees. NPS needs the flexibility to take a range 
of administrative steps (which might include suspension of approved 
status) to fit each situation.
    Comment: One person thought that it is inconsistent to say in 
Sec. 61.4 that State program reviews would take place at least once 
every four years but more often if the Secretary deems necessary.
    Response: This confuses the minimum frequency of review of each 
State that must take place with the possible number of reviews that can 
take place. The Act requires an evaluation at least once every four 
years. Government-wide grant procedures authorize, and good management 
demands, an evaluation whenever the situation merits it.
    Comment: One person stated that the current State program reviews 
were not frequent enough to address adequately serious problems.
    Response: NPS disagrees. Nothing in the current system prevents NPS 
from undertaking a State program review whenever it believes one is 
warranted.
    Comment: One person suggested that explicit time frames be added 
for the various stages of the State program review process.
    Response: NPS disagrees. NPS needs the regulatory flexibility to 
tailor schedules to specific situations.
    Comment: One person wondered what would constitute ``a major 
program inconsistency with the Act'' that would be sufficient to 
suspend a State

[[Page 11741]]

program's approved status after a State program review (see 
Sec. 61.4(d)).
    Response: NPS recognizes that loss of approved program status is 
not the appropriate administrative response to minor compliance 
problems. Refusal to carry out statutory requirements, a pattern of 
gross negligence, and illegal use of grant funds are among the factors 
that could contribute to a program's suspension or termination. 
However, the determination of ``a major program inconsistency'' must be 
done on a case-by-case basis.
    Comment: Three people stated that Sec. 61.6(c) should be changed to 
allow SHPOs with approved programs and NPS-certified CLG criteria and 
procedures to certify CLGs without NPS concurrence.
    Response: NPS does not have the statutory authority to do this. The 
dual certification by the SHPO and NPS (acting for the Secretary) is 
specifically required by section 101(c)(1) of the Act.
    Comment: One person further suggested changing Sec. 61.6(e)(5) to 
vest SHPOs with the sole authority for an involuntary decertification 
of a CLG.
    Response: NPS disagrees. Decertification procedures must generally 
parallel those for the certification of qualified local governments.

Terminology, Definitions, and References

    Comment: Two commenters asked for clarification, in Sec. 61.3(b), 
of the regulatory force of the ``Secretary of the Interior's Standards 
and Guidelines for Archeology and Historic Preservation.''
    Response: NPS has added language to the rule to clarify two aspects 
of this issue. NPS will use the Standards set forth in the ``Secretary 
of the Interior's Standards and Guidelines for Archeology and Historic 
Preservation'' as technical performance standards for matters covered 
by 36 CFR part 61. NPS may also use as technical performance standards 
(for matters covered by this part) additional guidance provided from 
time to time by NPS after appropriate consultation and notice. This 
additional guidance may include, but is not limited to, selected 
Guidelines set forth in the ``Secretary of the Interior's Standards and 
Guidelines for Archeology and Historic Preservation.''
    Comment: Another person asked what is the relationship between the 
current initiative of NPS to revise ``the Secretary's (Historic 
Preservation) Professional Qualifications Standards'' and the changes 
to Secs. 61.4(e) and (f) of this rule.
    Response: Revising ``the Secretary's (Historic Preservation) 
Professional Qualifications Standards'' will not affect their 
regulatory relationship with this rule; i.e., in order for a person to 
satisfy a regulatory requirement for a historic preservation 
professional, that person must meet ``the Secretary's (Historic 
Preservation) Professional Qualifications Standards.'' Note that the 
grandfather provision in Sec. 61.3(c) has been modified to account for 
changes to these Standards. Note also that the name of the Standards 
will officially change to ``the Secretary of the Interior's Historic 
Preservation Professional Qualifications Standards'' when they are 
issued in the Federal Register. To signal this forthcoming change, 
``Historic Preservation'' is placed in parentheses as part of the 
current title of the Standards in this rulemaking.
    Comment: One person suggested restoring to this rule all statutory 
definitions, Standards, and regulatory material that in the former rule 
were quoted verbatim.
    Response: Repetition of standards or statutory and regulatory 
material would make this rule unwieldy to use and is unnecessary at 
this point in the program's history. These materials are widely 
available and known to customers. Nevertheless, NPS has included in 
Sec. 61.6(e)(1) the CLG program definitions for ``designation'' and 
``protection'' because they are relatively new and represent a 
significant statutory addition to CLG requirements.
    Comment: One person suggested that in light of the elimination of 
the former Appendix B (the list of SHPO addresses), the regulation 
identify a central source to locate information.
    Response: NPS agrees and have added appropriate language.
    Comment: Two people found the references in this rule to the 
National Register Programs Guideline (NPS-49) confusing without further 
explanation.
    Response: NPS agrees and has replaced them with more general 
references to NPS administrative guidance.
    Comment: One person suggested replacing ``cultural resource'' with 
``historic resource'' or ``historic property'' to be consistent with 
the Act.
    Response: NPS has adopted this suggestion and used the term 
``historic property'' as defined in section 301 of the Act except where 
quoting the Act.
    Comment: One person suggested adding to Sec. 61.2 a definition of 
``partnership.''
    Response: NPS has not defined the term ``partnership'' as suggested 
because, aside from a common commitment to the purposes of the Act, 
``partnership'' is not amenable to a single definition. In general, 
however, the word ``partnership,'' in the context of the national 
historic preservation program, recognizes that this is a nation-wide 
initiative including full participation of not only the Federal but 
also State, tribal, and local governments; the not-for-profit as well 
as the for-profit sector; and, individual citizens.
    Comment: One person suggested that the role of CLGs in the section 
106 process be described in Sec. 61.6(e)(1).
    Response: This suggestion was not considered because that 
responsibility is more appropriately addressed by the Advisory Council 
on Historic Preservation through 36 CFR part 800.
    Comment: One person suggested quoting in Sec. 61.6(f) the text of 
section 101(c)(2) of the Act concerning National Register nominations 
within the jurisdiction of a CLG.
    Response: NPS believes that the cross reference is sufficient.

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, the National Park Service (NPS) 
consulted extensively with State and local historic preservation 
programs prior to publishing the proposed revisions to the rule for 
general review and comment in the Federal Register (61 FR 51536) 
concerning which NPS received 38 comments. All governmental members of 
the national historic preservation partnership rely upon the public to 
help guide and otherwise assist in the functions of their historic 
preservation programs. Consequently, NPS encourages public 
participation in all of the programs under the purview of this rule. 
NPS welcomes comments at any time from any interested person concerning 
the direction, administration, oversight, or any other aspect of these 
programs. Interested parties should send written comments regarding 
these programs to Heritage Preservation Services, National Center for 
Cultural Resource Stewardship and Partnership Programs, National Park 
Service, 1849 C Street, NW (NC Suite 200), Washington, D.C. 20240 or 
via the National Park Service Home Page for cultural programs at http:/
/www.cr.nps.gov.
    Drafting Information: The primary author of this rule is John W. 
Renaud, Heritage Preservation Services, National Center for Cultural 
Resource Stewardship and Partnership Programs, National Park Service, 
1849 C Street NW (NC Suite 200), Washington, D.C. 20240.

[[Page 11742]]

Paperwork Reduction Act

    The collection of information contained in this rule has been 
approved by the Office of Management and Budget under 44 U.S.C. 3507 et 
seq. and has been assigned clearance number 1024-0038. No comments were 
received on notice of submission to the OMB and the request for 
comments published in the Federal Register (62 FR 34484). The 
information is being collected as part of the process for reviewing the 
procedures and programs of State and local governments participating in 
the national historic preservation program and the Historic 
Preservation Fund grant program. The information will be used to 
evaluate those programs and procedures for consistency with the 
National Historic Preservation Act of 1966, as amended, and compliance 
with government-wide grant requirements. The obligation to respond is 
required to obtain a benefit under these programs. Note that a Federal 
agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number. No assurance of confidentiality is provided 
to respondents with the exception of locational information concerning 
some properties included in government historic preservation property 
inventories. Pursuant to section 304 of the National Historic 
Preservation Act of 1966, as amended, release of information is tightly 
controlled when such release could have the potential of damaging those 
qualities which make a property historic or of vital cultural or 
religious significance.
    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 Ms. Diane M. Cooke, Information 
Collection Officer, National Park Service, 1849 C Street NW, 
Washington, D.C. 20240 and to 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 reviewed by the Office of Management and Budget 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 overall economic effects of this 
rulemaking should be negligible. There are no expected increases in 
costs or prices for consumers, individual industries, Federal, State or 
local governments, agencies or geographic regions.
    The Service has determined and certifies pursuant to the Unfunded 
Mandates Reform Act, 2 U.S.C. 1502 et seq., that this rule will not 
impose a cost of $100 million or more in any given year on local, 
State, or tribal governments or private entities.
    In accordance with Executive Order 12630, the NPS has determined 
that this rule does not have significant takings implications. The rule 
revises administrative procedures for the organization of State, 
tribal, and local historic preservation offices. This rule does not 
impact private property owners.
    In accordance with Executive Order 12612, the NPS has determined 
that the rule does not have significant Federalism implications. State, 
tribal, and local government participation in these programs is 
voluntary. In the development of this rule, the NPS consulted State and 
local governments currently participating in these programs. The NPS 
has achieved the consensus of its State and local government partners 
that this rule should be published. No State or local government has 
opposed the promulgation of this rule.
    The Department has determined that this rule meets the applicable 
standards provided in Section 3(a) and 3(b)(2) of Executive Order 
12988.
    This rule is not a major rule under the Congressional review 
provisions of the Small Business Regulatory Enforcement Fairness Act (5 
U.S.C. 804(2)).
    The National Park Service has determined that this 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, Appendix 7.4D 
(49 FR 21438). As such, neither an Environmental Assessment nor an 
Environmental Impact Statement 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 foregoing, 36 CFR Chapter I is 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.
61.4  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.

    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.):
    (a) Requires the Secretary of the Interior (Secretary) to 
promulgate regulations for:
    (1) Approving and overseeing State historic preservation programs;
    (2) Certifying local governments to carry out the purposes of the 
Act;
    (3) Ensuring that applicable State Historic Preservation Officers 
(SHPOs) allocate to certified local governments (CLGs) a share of 
grants that the SHPOs receive under the Act; and
    (4) Assisting Indian tribes in preserving their particular 
``historic properties'' (as defined by the Act);
    (b) Directs the Secretary to administer a program of grants-in-aid 
to States and Indian tribes for historic preservation projects and 
programs that the Secretary has approved; and
    (c) Requires the Secretary to make available information concerning 
professional standards, methods, and techniques for the preservation of

[[Page 11743]]

``historic properties'' (as defined by the Act) and the administration 
of historic preservation programs.


Sec. 61.2  Definitions.

    As used in this part:
    (a) All terms that the National Historic Preservation Act of 1966, 
as amended, defines have the same meaning in the regulations in this 
part that the statute provides; see especially sections 101(a)(1)(A), 
101(b), 101(c)(4), 108, and 301.
    (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 Secretary's Standards means only the ``Standards'' portions 
and not the ``Guidelines'' portions of ``the Secretary of the 
Interior's Standards and Guidelines for Archeology and Historic 
Preservation.'' The Secretary's Standards provide broad national 
principles of archeological and historic preservation practices and 
methods. ``The Secretary of the Interior's Standards and Guidelines for 
Archeology and Historic Preservation'' also contains ``the Secretary's 
Guidelines'' which provide broad national guidance on how to apply 
``the Secretary's Standards.''
    (e) State historic preservation program or State program means a 
State government organization or program meeting the requirements that 
section 101(b) of the Act specifies.


Sec. 61.3  Implementation of this part.

    (a) National Park Service policy of management by exception. The 
National Park Service (NPS) will administer the regulations in this 
part in such a way (and where feasible) as to:
    (1) Limit the use of direct Federal management review procedures to 
high risk situations, to new programs, or to activities that are 
appropriate for the Federal Government to oversee;
    (2) Presume that State, tribal, and local government historic 
preservation officials manage their programs in an accountable way 
unless situations indicate the contrary; and
    (3) Rely to the maximum extent feasible on State, tribal, and local 
government systems of financial and program management that meet 
Federal standards. At the discretion of the Secretary, each State, 
tribal, and local government may substitute its own fiscal audit and 
management systems for the Secretary's comparable fiscal audit and 
management requirements, so long as the State, tribal, or local 
government system establishes and maintains accounting standards 
substantially similar to Federal standards and provides for independent 
peer review.
    (b) The Secretary's Standards. NPS will use the Secretary's 
Standards as technical performance standards for matters covered by 
this part. NPS may also use as technical performance standards (for 
matters covered by this part) additional guidance that NPS identifies 
and provides from time to time after appropriate consultation and 
notice.
    (c) Each State historic preservation program staff member, State 
Historic Preservation Review Board (Review Board) member, and certified 
local government (CLG) historic preservation review commission 
(Commission) member whom the Secretary has approved as meeting ``the 
Secretary's (Historic Preservation) Professional Qualifications 
Standards'' will retain that status, regardless of subsequent revisions 
to those Standards, until such time as that individual no longer works 
in that program, or serves on that Review Board, or serves on that 
Commission with which that individual was affiliated as of the date of 
that individual's approval.
    (d) You may obtain publications and other information mentioned in 
this part by contacting: Heritage Preservation Services, National 
Center for Cultural Resource Stewardship and Partnership Programs, 
National Park Service, 1849 C Street NW (NC Suite 200), Washington, 
D.C. 20240 or via the National Park Service Home Page for cultural 
programs at http://www.cr.nps.gov.


Sec. 61.4  State programs.

    (a) For a State to participate in the program that this part 
describes, the Governor must appoint and designate a State Historic 
Preservation Officer (SHPO) to administer the State historic 
preservation program.
    (b) It is the responsibility of the SHPO to carry out the duties 
and activities that section 101 (b)(3) of the Act describes. In 
performing those duties and activities:
    (1) The SHPO must carry out a 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 property 
preservation throughout the State.
    (2) The SHPO, in addition to surveying and maintaining inventories 
of historic properties, may also 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 for use in 
planning for public and private development projects.
    (3) The SHPO must provide for adequate public participation in the 
State historic preservation program as a whole.
    (i) As part of the process of recommending a property to the 
National Register, the SHPO must comply with the consultation and 
notification procedures contained in 36 CFR part 60.
    (ii) The SHPO may authorize other persons or entities to fulfill 
the notice requirements in 36 CFR part 60 pursuant to the Secretary's 
written guidance.
    (iii) The SHPO also may authorize the historic preservation review 
commission (Commission) of a certified local government (CLG) to act in 
place of the State Historic Preservation Review Board (Review Board) 
for the purpose of considering National Register nominations within its 
jurisdiction, provided that the Commission both meets the professional 
qualifications required for the Review Board when considering such 
nominations and otherwise follows the Secretary's written guidance.
    (iv) In accordance with the Secretary's written guidance and with 
the consent of both the property owners in a nomination and the chief 
elected local official, the Review Board (or the Commission acting in 
its place) may consider the nomination without a face-to-face meeting.
    (4) The SHPO may carry out all or any part of his or her 
responsibilities by contract or cooperative agreement with any 
qualified nonprofit organization, educational institution, or otherwise 
pursuant to State law. However, the SHPO may not delegate the 
responsibility for compliance with the Act or with grant assistance 
terms and conditions.
    (c) The Secretary will consider individual SHPO proposals for 
programs that, for a specified period, include fewer duties than those 
section 101(b)(3) of the Act specifies, if a different approach would 
better serve an appropriate balance of historic property, customer or 
constituent, and historic preservation needs.
    (d) Procedures for review and approval of State historic 
preservation programs. (1) In accordance with the Act, the Secretary 
will evaluate each State program for consistency with the Act 
periodically, but not less often than every four years. If the 
Secretary

[[Page 11744]]

determines that it meets the program requirements of paragraphs (a), 
(b), (e) and (f) of this section, he or she will approve the State 
program as set forth in this section.
    (2) The Secretary may use on-site and/or off-site inquiries to 
perform such evaluation. The Secretary will provide the SHPO with a 
timely report containing written findings and analyses that highlight 
the strengths and weaknesses of the State program.
    (3) Approval method. (i) If the Secretary determines that a State 
program is consistent with the Act, the report will include notice that 
the State program's approved status continues.
    (ii) If the Secretary determines that a State program has major 
aspects not consistent with the Act, the report will include notice of 
deficiencies along with required actions for correcting them. Unless 
circumstances warrant immediate action, the Secretary will provide a 
specified period to allow the SHPO either to correct the deficiencies 
or to present for Secretarial approval a justifiable plan and timetable 
for correcting the deficiencies. During this period, the SHPO has the 
opportunity to request that the Secretary reconsider any findings and 
required actions.
    (iii) The Secretary will provide timely notice of continued 
approved State program status to a SHPO successfully resolving 
deficiencies. Once the Secretary renews a State program's approved 
status, he or she generally will not review the program until the next 
regular evaluation period. However, if the Secretary deems it 
necessary, he or she may conduct a review more often.
    (iv) The Secretary will provide timely notice of the revocation of 
a program's approved status to any SHPO whose program has deficiencies 
that warrant immediate action or that remain uncorrected after the 
expiration of the period specified pursuant to paragraph (d)(3)(ii) of 
this section. The Secretary will then initiate financial suspension and 
other actions in accordance with the Act, applicable regulatory 
requirements, and related guidance that the National Park Service 
issues.
    (e) The SHPO must appoint or employ a professionally qualified 
staff.
    (1) Except as approved pursuant to paragraph (e)(2) of this 
section, the staff must include at a minimum, one individual meeting 
``the Secretary's (Historic Preservation) Professional Qualifications 
Standards'' for history, one individual meeting ``the Secretary's 
(Historic Preservation) Professional Qualifications Standards'' for 
historic or prehistoric archeology, and one individual meeting ``the 
Secretary's (Historic Preservation) Professional Qualifications 
Standards'' for architectural history. ``The Secretary's (Historic 
Preservation) Professional Qualifications Standards'' and related 
guidance are part of the larger ``Secretary of the Interior's Standards 
and Guidelines for Archeology and Historic Preservation.'' The SHPO may 
determine that additional professional staff members representing the 
required or other disciplines are necessary to administer the State 
program in accordance with the Act.
    (2) The Secretary will consider proposals from a SHPO for a minimum 
required staff composition that differs from the requirement that 
paragraph (e)(1) of this section specifies, if the proposal addresses 
better an appropriate balance of historic property, customer or 
constituent, and historic preservation needs in that State.
    (3) When a staff position that paragraph (e)(1) of this section 
requires becomes vacant, the SHPO must fill the vacancy in a timely 
manner. In the interim, the SHPO must ensure that appropriately 
qualified individuals address technical matters. A vacancy in a 
required position that persists for more than six months is cause for 
review, comment, and appropriate action by the Secretary.
    (f) Unless State law provides for a different method of 
appointment, the SHPO must appoint an adequate and qualified State 
historic preservation Review Board (Review Board).
    (1) All Review Board members must have demonstrated competence, 
interest, or knowledge in historic preservation. A majority of Review 
Board members must meet ``the Secretary of the Interior's (Historic 
Preservation) Professional Qualifications Standards'' which are part of 
the larger ``Secretary's Standards and Guidelines for Archeology and 
Historic Preservation.'' The members meeting ``the Secretary's 
(Historic Preservation) Professional Qualifications Standards'' must 
include at a minimum, one individual meeting ``the Secretary's 
(Historic Preservation) Professional Qualifications Standards'' for 
history, one individual meeting ``the Secretary's (Historic 
Preservation) Professional Qualifications Standards'' for prehistoric 
archeology or historic archeology, and one individual meeting ``the 
Secretary's (Historic Preservation) Professional Qualifications 
Standards'' for architectural history. One person may meet the 
Standards for more than one required discipline. The other Review Board 
members, if any, who comprise the majority that meets ``the Secretary's 
(Historic Preservation) Professional Qualifications Standards'' may 
represent, subject to the SHPO's selection, any of the disciplines that 
those ``Standards'' describe.
    (2) The Secretary will consider proposals from a SHPO for a minimum 
required Review Board composition that differs from the requirement 
that paragraph (f)(1) of this section specifies, if the proposal 
addresses better an appropriate balance of historic property, customer 
or constituent, and historic preservation needs in that State.
    (3) When a required Review Board position becomes vacant, the SHPO 
must fill the vacancy in a timely manner. In the interim, the SHPO must 
ensure that the Review Board has access to advice from appropriately 
qualified individuals. A lapse of more than one year in filling the 
vacancy is cause for review, comment, and appropriate action by the 
Secretary.
    (4) The Review Board must meet as often as is necessary to complete 
its work in a timely fashion but no less often than once a year.
    (5) The Review Board must adopt written procedures governing its 
operations consistent with the provisions of this section and related 
guidance that the National Park Service issues.
    (6) Review Board responsibilities include, but are not limited to, 
the following:
    (i) Providing advice to the SHPO on the full range of Historic 
Preservation Fund-supported activities, that section 101 (b)(3) of the 
Act describes;
    (ii) Reviewing and making recommendations on National Register 
nomination proposals;
    (iii) Participating in the review of appeals to National Register 
nominations; and
    (iv) Performing such other duties as may be appropriate.


Sec. 61.5  Grants to State programs.

    (a) Each State with an approved State program is eligible for 
grants-in-aid from the Historic Preservation Fund (HPF).
    (b) The National Park Service (NPS) will administer HPF matching 
grants-in-aid in accordance with the Act, OMB Circular A-133 and 43 CFR 
part 12, and related guidance that NPS issues. Failure by a State 
program to meet these requirements is cause for comment and appropriate 
action by the Secretary.


Sec. 61.6  Certified local government programs.

    (a) Each approved State program must provide a mechanism for 
certification (by the State Historic Preservation Officer and the 
Secretary) of local governments to carry out the purposes of the Act.

[[Page 11745]]

    (b) Each State Historic Preservation Officer (SHPO) must follow 
procedures that the Secretary approves for the certification of local 
governments. Each SHPO also must follow procedures for removal of 
certified local government (CLG) status for cause. A SHPO must submit 
any proposed amendment to its procedures to the Secretary for approval. 
The Secretary will act on each proposal in a timely fashion generally 
within 45 days of receipt.
    (c) When a SHPO approves a local government certification request 
in accordance with the State program's National Park Service (NPS)-
approved certification process, the SHPO must prepare a written 
certification agreement between the SHPO and the local government. The 
certification agreement must list the specific responsibilities of the 
local government when certified. The SHPO must submit to the Secretary 
the written certification agreement and any additional information as 
is necessary for the Secretary to certify the local government pursuant 
to the Act and this part. If the Secretary does not disapprove the 
proposed certification within 15 working days of receipt, the Secretary 
has certified the local government.
    (d) Beyond the minimum responsibilities set out in the Act for all 
CLGs, the SHPO may make additional delegations of responsibility to 
individual CLGs. However, these delegations may not include the SHPO's 
overall responsibility derived from the Act or where law or regulation 
specifies.
    (e) The SHPO must ensure that each local government satisfies the 
following minimum requirements as conditions for certification. Each 
CLG must:
    (1) Enforce appropriate State or local legislation for the 
designation and protection of historic properties. The State procedures 
must define what constitutes appropriate legislation, as long as:
    (i) Designation provisions in such legislation 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 in such legislation 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 
paragraph (e)(1)(i) of this section describes; 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 must have a demonstrated interest, competence, or 
knowledge in historic preservation. Unless State or local legislation 
provides for a different method of appointment, the chief elected local 
official must appoint all Commission members.
    (i) The State procedures must encourage certified local governments 
to include individuals who meet ``the Secretary's (Historic 
Preservation) Professional Qualifications Standards'' among the 
membership of the Commission, to the extent that such individuals are 
available in the community.
    (ii) The State procedures may specify the minimum number of 
Commission members who must meet ``the Secretary's (Historic 
Preservation) Professional Qualifications Standards.'' The State 
procedures may also specify which, if any, disciplines the Commission's 
membership must include from among those disciplines that the Standards 
describe. Membership requirements set by the State procedures for 
Commissions must be cognizant of the needs and functions of Commissions 
in the State and subject to the availability of such professionals in 
the community concerned.
    (iii) Provided that the Commission is otherwise adequate and 
qualified to carry out the responsibilities delegated to it, the SHPO 
may certify a local government without the minimum number or types of 
disciplines established in State procedures, if the local government 
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 SHPO must 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 SHPO must ensure that such systems and the data that 
they produce are capable of integration into and are compatible with 
statewide inventories and (when and as appropriate) with State and 
local planning processes.
    (4) Provide for adequate public participation in the local historic 
preservation program as a whole. The SHPO must provide each CLG with 
appropriate guidance on mechanisms to ensure adequate public 
participation in the local historic preservation program including the 
process for evaluating properties for nomination to the National 
Register of Historic Places.
    (5) Satisfactorily perform the responsibilities delegated to it 
under the Act. The SHPO must monitor and evaluate the performance of 
each CLG according to written standards and procedures that the SHPO 
establishes. If a SHPO's evaluation of a CLG's performance indicates 
that such performance is inadequate, the SHPO must suggest in writing 
ways to improve performance. If, after a period of time that the SHPO 
stipulates, the SHPO determines that the CLG has not improved its 
performance sufficiently, the SHPO may recommend that the Secretary 
decertify the local government. If the Secretary does not object within 
30 working days of receipt, the Secretary has approved the 
decertification.
    (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 SHPO may delegate to a CLG any 
of the responsibilities of the SHPO and the Review Board in processing 
National Register nominations as specified in 36 CFR part 60 (see also 
Sec. 61.4(b)(3)), 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. Each State must transfer 
at least 10 percent of its annual HPF grant award to CLGs for historic 
preservation projects and programs in accordance with the Act and as 
Sec. 61.7 specifies.
    (g) The District of Columbia is exempt from the requirements of 
this section because there are no subordinated local governments in the 
District. If any other jurisdiction that section 301(2) of the Act 
defines as a State 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.

[[Page 11746]]

    (1) Where there is no approved State program, a local government 
wishing to become 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 in a timely fashion generally within 90 
days of receipt.


Sec. 61.7  Subgrants to certified local governments.

    (a) Each SHPO must transfer at least 10 percent of its annual 
Historic Preservation Fund (HPF) grant award to CLGs as subgrants for 
historic preservation projects and programs in accordance with the Act. 
In any year that the annual HPF State grant appropriation exceeds 
$65,000,000, SHPOs must transfer one half of the amount over 
$65,000,000 to CLGs according to procedures that the Secretary will 
establish.
    (b) Each CLG is eligible to receive funds from the 10 percent (or 
greater) CLG share of the State's total annual HPF grant award. 
However, the SHPO need not award funds to all CLGs.
    (c) Each SHPO must maintain and follow a procedure that the 
Secretary approves for the use and distribution of funds from the 
State's annual HPF grant award to CLGs to ensure that no CLG receives a 
disproportionate share of the allocation. The procedure will provide a 
clear basis for the funding decisions. The SHPO must submit any 
proposed amendment to its procedure to the Secretary for approval. The 
Secretary will respond to such a proposal in a timely fashion generally 
within 45 days of receipt.
    (d) Each SHPO must notify annually each CLG of its opportunity to 
apply for HPF funding as well as what is entailed in the application 
and project selection process.
    (e) Each CLG receiving an HPF grant award from the CLG share is a 
subgrantee of the State. The SHPO must ensure that each CLG adheres to 
all applicable grant conditions and government-wide and program 
specific requirements that the National Park Service issues. The SHPO 
may require specific uses of funds subgranted to CLGs. CLGs may not 
apply subgranted HPF monies as matching share for any other Federal 
grant.
    (f) Where there is no approved State program pursuant to Sec. 61.4, 
the Secretary will determine the method for allocating funds to CLGs in 
that State in accordance with the procedures set forth for the State in 
this section. 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 the Secretary finds, in writing, that the historic 
preservation program would benefit from such waiver and the waiver 
would not compromise the purposes, conditions, and requirements of the 
National Historic Preservation Act of 1966, as amended.


Sec. 61.11  Information collection.

    (a) The Office of Management and Budget (OMB) under 44 U.S.C. 3507 
et seq., has approved the collection of information contained in this 
part. OMB has assigned clearance number 1024-0038 to this collection of 
information. The National Park Service (NPS) collects this information 
as part of the process for reviewing the procedures and programs of 
State and local governments participating in the national historic 
preservation program and the Historic Preservation Fund grant program. 
NPS will use the information to evaluate those programs and procedures 
for consistency with the National Historic Preservation Act of 1966, as 
amended, and compliance with government-wide grant requirements. The 
obligation to respond is required to obtain a benefit under these 
programs. Note that a Federal agency may not conduct or sponsor, and a 
person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number. NPS provides 
no assurance of confidentiality to respondents with the exception of 
locational information concerning some properties that government 
historic preservation property inventories include. Pursuant to section 
304 of the National Historic Preservation Act of 1966, as amended, NPS 
tightly controls release of information when such release could have 
the potential of damaging those qualities which make a property 
historic.
    (b) We estimate the public reporting burden for the collection of 
this information 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 Ms. Diane M. Cooke, 
Information Collection Officer, National Park Service, 1849 C Street 
NW, Washington, D.C. 20240 and to 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.

    Dated: July 9, 1998.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.

    Note: This document was received at the Office of the Federal 
Register on March 4, 1999.

[FR Doc. 99-5783 Filed 3-8-99; 8:45 am]
BILLING CODE 4310-70-P