[Federal Register Volume 65, Number 180 (Friday, September 15, 2000)]
[Proposed Rules]
[Pages 55928-55929]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-23575]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 65, No. 180 / Friday, September 15, 2000 / 
Proposed Rules  

[[Page 55928]]



ADVISORY COUNCIL ON HISTORIC PRESERVATION

36 CFR Part 800


Protection of Historic Properties

AGENCY: Advisory Council on Historic Preservation.

ACTION: Notice of proposed suspension of rule and adoption as 
guidelines.

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SUMMARY: The Advisory Council on Historic Preservation proposes to 
suspend its rule implementing Section 106 of the National Historic 
Preservation Act. Such rule sets forth the process by which Federal 
agencies consider the effects of their undertakings on historic 
properties and provide the Council with a reasonable opportunity to 
comment with regard to such undertakings, as required by Section 106. 
The suspended rule would become guidelines upon the effective date of 
suspension.

DATES: Submit comments on or before October 30, 2000.

ADDRESSES: Address all comments concerning this proposed rule to the 
Executive Director, Advisory Council on Historic Preservation, 1100 
Pennsylvania Avenue, NW., Suite 809, Washington, DC 20004. Fax (202) 
606-8672. You may submit electronic comments to: [email protected].

FOR FURTHER INFORMATION CONTACT: Javier Marques, Advisory Council on 
Historic Preservation, 1100 Pennsylvania Avenue, NW., Suite 809, 
Washington, DC 20004 (202) 606-8503.

SUPPLEMENTARY INFORMATION: On September 6, 2000, the Advisory Council 
on Historic Preservation (``Council'') voted to suspend the Section 106 
rule currently codified under 36 CFR part 800 after a 45-day notice and 
comment period. That rule sets forth the process by which Federal 
agencies consider the effects of their undertakings on historic 
properties and provide the Council with a reasonable opportunity to 
comment with regard to such undertakings, as required by Section 106 of 
the National Historic Preservation Act. The Council also voted to adopt 
the rule to be suspended as guidelines, effective immediately upon 
suspension of the rule.
    The Council is currently seeking public comment on such actions. If 
the public comments received do not compel the Council to change its 
course, the Council plans to proceed with publishing a final rule 
suspension that would suspend the current rule and reissue the text of 
the suspended rule as guidelines, with an immediate effective date.
    The Council is compelled to take these actions by the prospect of a 
potentially unfavorable ruling from the court that would severely 
disrupt the Section 106 process. Reluctantly, the Council has come to 
the conclusion that suspending the current Section 106 rule, which is 
at the heart of the litigation, is now the most advisable course to 
follow.
    The preeminent issue in the litigation at this point is the 
participation of two Council members, who are not appointed by the 
President, in the rulemaking process leading up to the adoption of the 
current rule. The plaintiff has argued to the court that such 
participation violated the Appointments Clause of the Constitution, and 
that the court should therefore invalidate the regulations without 
delay. Even though the Council believes the law is on its side on this 
issue, it runs a risk of having the court rule against it and 
immediately invalidate the current Section 106 rule in short order. An 
abrupt suspension of the rule would cause chaos in the ongoing Section 
106 reviews, and is seen by the Council as an unacceptable risk.
    The Council believes that by proceeding in this manner, it is 
fashioning an orderly and prudent way of proceeding rather than risking 
the possibility of an immediate suspension from an adverse court 
ruling. Of utmost importance, the Council will be able to provide 
adequate advance notice to the public that the current Section 106 rule 
is being suspended by a certain date and specify the system that should 
be followed until new regulations take effect, so Federal agencies, 
other participants in the Section 106 process and the public can 
prepare accordingly. This notice and comment period is essential to 
provide participants in the Section 106 process with sufficient notice 
of the proposed suspension to ensure an orderly transition. Section 106 
regulations were applied to 95,419 agency undertakings during fiscal 
year 1999. Accordingly, thousands of projects are undergoing Section 
106 review at any one time during the year. A reasonable notice and 
comment period is essential to prevent unduly and abruptly disrupting 
these thousands of reviews that are proceeding under the existing 
Section 106 rule. It would also provide Federal agencies the time 
needed to make responsible and informed decisions as to how to complete 
their ongoing reviews, and how to comply with Section 106 for new 
projects without the benefit of a regulatory framework.
    As already mentioned, the Council is also proposing to adopt the 
rule to be suspended as guidelines. While such guidelines would not 
have the binding legal effect of a rule, they would specify a 
reasonable procedure for participants in the Section 106 process. The 
other alternative is to go back to the 1986 rule, but the Council 
believes that would be unwise. The 1992 amendments to the National 
Historic Preservation Act brought important changes to the Section 106 
process that are simply not reflected at all in the 1986 rule. The 
current Section 106 rule to be suspended incorporates those changes.
    The current Section 106 rule, which would become guidance following 
the proposed suspension, was unanimously approved by the Council in 
February, 1999. On June 23, 2000, the Council membership (minus the 
two, non-Presidentially appointed members) unanimously reaffirmed its 
belief that the current Section 106 rule represents the process that 
Federal agencies should follow to comply with Section 106. Those who 
wish to examine the evolution and rationale behind the substance in 
these proposed guidelines, are asked to consult the following public 
documents: (a) Notice of proposed rulemaking at 59 FR 50396, October 3, 
1994; (b) notice of proposed rulemaking at 61 FR 48580, September 13, 
1996; and (c) final rule and preamble published at 64 FR 27044-27084, 
May 18, 1999.
    The Council is optimistic that the period of time during which the 
public will need to comply with the Section

[[Page 55929]]

106 process without the benefit of a rule will be brief. The general 
comment period for the proposed rule published July 11, 2000 (65 FR 
42834) closed on August 10, 2000. The Council extended the comment 
period to August 31, 2000 for all those members of the public that made 
timely requests for additional time to provide comments. The Council 
received a total of 59 comments. The Council is currently in the 
process of reviewing and evaluating the comments received on the 
proposed rule, and believes that it will vote on adopting a new final 
rule by November 17, 2000, as originally anticipated.

List of Subjects in 36 CFR Part 800

    Administrative practice and procedure, Historic preservation, 
Indians, Intergovernmental relations.

    For the reasons stated above, the Advisory Council on Historic 
Preservation proposed to suspend the rule currently codified at 36 CFR 
part 800, and adopt it as guidelines.

    Dated: September 8, 2000.
John M. Fowler,
Executive Director.
[FR Doc. 00-23575 Filed 9-14-00; 8:45 am]
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