[Federal Register Volume 67, Number 41 (Friday, March 1, 2002)]
[Notices]
[Pages 9429-9431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4867]


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 Notices
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 This section of the FEDERAL REGISTER contains documents other than rules 
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  Federal Register / Vol. 67, No. 41 / Friday, March 1, 2002 / 
Notices  

[[Page 9429]]



ADVISORY COUNCIL ON HISTORIC PRESERVATION


Exemption Regarding Historic Preservation Review Process for 
Projects Involving Historic Natural Gas Pipelines

AGENCY: Advisory Council on Historic Preservation.

ACTION: Notice of intent to issue exemption regarding historic natural 
gas pipelines.

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SUMMARY: The Advisory Council on Historic Preservation has 
preliminarily approved an exemption that would relieve Federal agencies 
from the requirement of taking into account the effects of their 
undertakings on historic natural gas pipelines. The public is invited 
to comment on the exemption before it goes into effect. Unless the 
Council withdraws its preliminary approval after considering such 
comments, the exemption will go into effect on April 5, 2002.

DATES: Submit comments on or before March 22, 2002.

ADDRESSES: Address all comments concerning this exemption to Javier 
Marques, Office of General Counsel, 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, 202-606-8503.

SUPPLEMENTARY INFORMATION: Section 106 of the National Historic 
Preservation Act, 16 U.S.C. 470f, requires Federal agencies to consider 
the effects of their undertakings on historic properties and provide 
the Advisory Council on Historic Preservation (``Council'') a 
reasonable opportunity to comment with regard to such undertakings. The 
Council has issued the regulations that set forth the process through 
which Federal agencies comply with these duties. Those regulations are 
codified under 36 CFR part 800 (``Section 106 regulations'').
    The National Historic Preservation Act (``Act'') authorizes the 
Council, with the concurrence of the National Park Service, to 
promulgate regulations for exempting undertakings ``from any or all of 
the requirements of'' the Act. 16 U.S.C. 470v. The section 106 
regulations detail the process for the approval of such exemptions. 36 
CFR 800.14(c).
    In accordance with the Section 106 regulations, the Council may 
approve an exemption for an undertaking if it finds that: (1) The 
potential effects of the undertaking upon historic properties are 
foreseeable and likely to be minimal or not adverse; and (2) the 
exemption is consistent with the purpose of the Act.
    The Federal Energy Regulatory Commission (``Commission'') has 
proposed an exemption regarding the effects of undertakings on historic 
natural gas pipelines. The Council has preliminarily approved that 
exemption, pending the results of the public comment opportunity 
provided through this notice. The full text of the exemption can be 
found at the end of this notice. Unless the Council decides (prior to 
April 5, 2002, and based on the results of this final round of public 
comments) to withdraw its preliminary approval, the exemption will go 
into effect on April 5, 2002.

I. Background

    On October 19, 2001, the Council published for public comment in 
the Federal Register a Draft Program Comment Regarding Historic 
Preservation Review Process for Projects Involving Historic Natural Gas 
Pipelines which was intended to streamline the historic preservation 
review process for projects involving natural gas pipelines (66 FR 
53198). That draft Program Comment proposed an alternative way for the 
Commission to address its responsibilities under Section 106 with 
regard to effects on natural gas pipelines and related facilities when 
authorizing projects under section 7 of the Natural Gas Act (NGA) by 
either applicants pursuant to 18 CFR part 157, subpart A, or 
certificate holders pursuant to 18 CFR part 157, Subpart F, and 18 CFR 
part 284 of the regulations of the Commission.
    The draft Program Comment was meant to apply only to those 
undertakings affecting natural gas pipelines determined to be eligible 
for the National Register of Historic Places (``National Register'') by 
the applicant/certificate holder and the respective State Historic 
Preservation Office (``SHPO''). When the applicant or certificate 
holder implemented a level and type of documentation agreeable to the 
applicant/certificate holder and the SHPO, and deposited that record in 
an appropriate repository, the project could not then be found to have 
an effect upon the characteristics that make the pipeline eligible for 
inclusion in the National Register.
    The Commission noted on its review of this Program Comment that it 
``provide(d) guidance and a basic mechanism for section 106 compliance 
that could make more complex and time consuming processes 
unnecessary.'' Indeed, the Council developed the Program Comment to 
respond directly to the delays in project review under the blanket 
certificate procedures when there was an effect to a historic natural 
gas pipeline. The Commission supported that objective, and the 
Council's efforts to keep them involved throughout the initiative.
    After the Council and the Commission staff had reviewed the public 
comments on that proposal, the Commission proposed that the Council use 
the Exempted Categories alternatives pursuant to 36 CFR 800.14(c) to 
streamline the historic preservation review process for historic 
natural gas pipelines.
    Based on a number of factors discussed below, the Council believes 
that using the Exempted Categories program alternative offers a more 
focused, practical, predictable, and elegant way to address section 106 
review for projects involving natural gas pipelines. In addition, 
comments from the affected industry reflected a preference for such an 
approach as opposed to the Program Comment alternative.

II. Exemption Concept

    The exemption would release all Federal agencies from the Section 
106 requirement of having to consider the effects of their undertakings 
on historic natural gas pipelines. Historic natural gas pipelines are 
defined as those natural gas pipelines that meet the criteria for 
listing on the National Register of Historic Places.

[[Page 9430]]

    A public comment stated that the Act never intended pipelines to be 
eligible for the National Register. The Council disagrees. The Act 
specifically states that the National Register is composed of 
``districts, sites, buildings, structures, and objects significant in 
American history, architecture, archaeology, engineering and culture.'' 
16 U.S.C. 470a(a)(1)(a) (emphasis added). This statement does not 
explicitly exclude pipelines from consideration, but rather, it 
acknowledges that a variety of types of properties could be significant 
to American engineering. As one of type of property which can be 
eligible for inclusion in the National Register, a structure is defined 
as one ``made up of interdependent and interrelated parts in a definite 
pattern of organization [and] constructed by man it is often an 
engineering project large in scale.'' 36 CFR 60.3(p). Again, such a 
definition appears to be intentionally broad so as to embrace a variety 
of different structures, which arguably include natural gas pipelines.
    The exemption would apply unconditionally for all undertakings 
except for those that entail the abandonment of a historic natural gas 
pipeline. The sole condition for those cases would be that the historic 
natural gas pipeline gets documented prior to abandonment. The 
documentation requirements are enumerated in the exemption document, as 
opposed to being subject to negotiations with SHPOs or others.
    Public comments raised a concern that the earlier, proposed Program 
Comment only applied to the Commission and did not bind other Federal 
agencies whose lands the pipeline may cross. It was argued that such 
other Federal agencies could insist on a different, and possibly 
higher, process and documentation standard for pipelines crossing their 
lands. The comments also mentioned that unless the approach to historic 
natural gas pipelines was uniformly applicable to all Federal agencies, 
the benefit of the approach would be negated if any Federal land 
manager elected to impose a new or different standards. In response to 
this comment, the exemption now applies to all Federal agencies. The 
Council believes this makes sense since the approach is based on the 
type of resource involved (i.e., natural gas pipelines), and such 
resources are the same no matter what Federal agency is confronted with 
an undertaking affecting them.
    Some of the public comments also expressed a concern that disputes 
over eligibility and documentation issues under the earlier, proposed 
Program Comment would result in serious project delays. The Council 
agreed that such disputes could be time consuming, and therefore 
drafted the exemption in a way that will alleviate those concerns by: 
(1) Limiting the documentation requirement to only one type of pipeline 
activity (i.e., abandonment); (2) establishing a single, definitive 
documentation standard for such abandonments; and (3) clarifying that 
once a pipeline was documented, future undertakings would not have to 
consider effects to that pipeline. Since the exemption unconditionally 
applies to all activities other than abandonment, eligibility can only 
become an issue for abandonments.
    Finally, the exemption would not apply on tribal land. Such 
application would require substantial and lengthy tribal consultation. 
36 CFR 800.14(c)(4) and 800.14(f). It is our understanding from 
discussions with the Commission staff that, due to tribal sovereignty 
issues, pipeline projects through tribal lands are handled through 
separate agreements with the tribes. Moreover, the Council believes 
that such particularized consultation is not warranted since it is not 
aware of any natural gas pipeline that would be of religious and 
cultural significance to tribes, regardless of its location.
    On a more general note, a public comment criticized the earlier, 
proposed Program Comment by stating that it was not binding on the SHPO 
and, therefore, could be disregarded. This is incorrect. The Council is 
the only entity with the authority to enact regulations implementing 
Section 106 (16 U.S.C. 470s) and to provide exemptions from compliance 
with Section 106 (16 U.S.C. 470v). An exemption or program comment 
approved by the Council defines the legal requirements of section 106 
and, as such, cannot be disregarded by SHPOs.

III. Exemption Criteria

    Pursuant to 36 CFR 800.14(c)(1), Section 106 exemptions must meet 
certain criteria. Only actions that qualify as undertakings, as defined 
in 36 CFR 800.16, may be considered for exemption, and the exemption 
itself must be consistent with the purposes of NHPA. Furthermore, in 
order to be considered exempted, the potential effects on historic 
properties of those undertakings should be ``foreseeable and likely to 
be minimal or not adverse.'' The Council believes that the proposed 
exemption meets these conditions.
    In considering this proposition, it is important to recognize that 
neither the Commission nor any other Federal agency regulates all of 
the activities which might affect historic natural gas pipelines. 
Because physically deteriorated or obsolete facilities are specifically 
excluded by regulation from section 7(c) of the NGA, pursuant to 18 CFR 
part 2.55, most repair and maintenance of historic pipelines will not 
need Commission authorization prior to implementation. As a result, the 
integrity of an historic natural gas pipeline is likely to vary 
considerably over its full extent. Although these maintenance 
activities may result in the loss of some historic fabric, these 
changes allow the continued safe operation of the historic property as 
a pipeline and, as such, serve to protect the use of the property.
    The Council also believes that evaluation of the integrity of the 
pipeline as a historic property and the effect of any of these 
undertakings must be considered within the context of the totality of 
the historic natural gas pipeline, particularly when the historic 
significance of natural gas pipelines lies in both their engineering 
characteristics (Criterion C of the National Register) and their 
relationship to events (Criterion A of the National Register). From 
that perspective, for example, a 12 inch diameter tap inserted into a 
1,000 mile pipeline is of minor consequences for the whole historic 
property, especially when the property exhibits considerable redundance 
and uniformity in form over its entire extent.
    With abandonment, although a portion of the historic pipeline will 
cease to function as such, it usually remains in place. Moreover, for 
reasons of safety and because they are buried resources, historic 
natural gas pipelines cannot be experienced by the public during their 
productive life. Accordingly, we believe that potential effects of 
abandonment can be adequately minimized through documentation of the 
historic pipeline. This approach is also in keeping with the earlier, 
draft Program Comment. Working with Commission staff, the Council has 
established a standard for documenting historic natural gas pipelines 
that would apply under the exemption whenever there is an abandonment. 
As the comments on the Council's Program Comment indicate, setting a 
standard is needed because it would largely eliminate the possibility 
for disagreement between applicants or certificate holders, and SHPOs 
regarding the appropriate level and type of documentation.

IV. Public Participation

    In accordance with 36 CFR 800.14(c)(2), public participation must

[[Page 9431]]

be arranged on a level commensurate with the subject and scope of the 
exemption. Since the proposed exemption was derived from, and is 
consistent with, the approach taken in the earlier, proposed Program 
Comment, the Council believes that the public participation requirement 
has been met through the extensive comment period already provided for 
that Program Comment. The Council only received a limited number of 
comments on the draft Program Comment. Those comments were shared, and 
discussed, with the Commission staff. As requested, that comment period 
was extended until December 9, 2001. Nevertheless, such extension only 
yielded one additional comment, for an overall total of 9 public 
comments. Likewise, although the Council made a special effort to 
notify SHPOs about the proposed Program Comment, comments from only 
three States, Arizona, Iowa, and Wyoming, were received. One of those 
comments was that the State had ``no comment'' on the proposal. 
Moreover, through this notice the Council is submitting the draft 
exemption for one last round of public comment.
    Neither the Council nor the Commission have engaged in the 
particularized consultation with Indian tribes and Native Hawaiian 
organizations, pursuant to 36 CFR 800.14(c)(4), since such consultation 
does not seem to be warranted. As stated above, the proposed exemption 
would not apply on tribal lands. The Council also believes that the 
proposed exemption will have no consequences for historic properties of 
religious and cultural significance, regardless of location, to any 
Indian tribe or Native Hawaiian organizations since it is limited to 
effects on only historic natural gas pipelines.

V. Text of the Exemption

    The full text of the proposed program comment is reproduced below.

Section 106  Exemption Regarding Effects to Historic Natural Gas 
Pipelines

I. Exemption Regarding Effects to Historic Natural Gas Pipelines

    Except as noted on Section II, all Federal agencies are exempt from 
the Section 106 requirement of taking into account the effects of their 
undertakings on historic natural gas pipelines.

II. Abandonment of Historic Natural Gas Pipelines

    Abandonment of a historic natural gas pipelines, in part or in 
whole, will qualify for the exemption under Section I, provided that 
the Federal agency or its applicant has documented the historic natural 
gas pipeline by:
    (a) Completing a determination of eligibility for the pipeline as a 
whole, which identifies contributing and non-contributing components of 
the pipeline, using standard information required on a National 
Register nomination form. The documentation must be prepared by an 
individual meeting the Secretary of the Interior's Professional 
Qualification Standards (48 FR 44738-9). The documentation must include 
the following components:
    (i) A brief history of construction of hte line with a bibliogrpahy 
recording the primary and secondary sources that were used;
    (ii) Documentation through as-built drawings, historical 
photographs or, 35 mm photographs, as approriate, of representative 
examples of significant features associated with the line;
    (iii) A map of the historic property set at an appropriate scale; 
and
    (iv) An annotated bibliography of other primary and secondary 
sources identified during research; and
    (b) Placing the documentation in an appropriate repository, 
accessible to the general public, in each State crossed by the 
pipeline, and filing the documentation with the relevant State Historic 
Preservation Officer(s).
    When the abandonment involved only a section of the historic 
natural gas pipeline, Federal agencies or application handling 
subsequent abandonment of other sections of the historic natural gas 
pipeline will not have to repeat the documentation requirements set 
forth above.

III. Existing Agreements

    This exemption is not intended to amend, invalidate or otherwise 
modify Section 106 Programmatic Agreements (PAs) in existence at the 
time this exemption goes into effect. Parties to such PAs may amend 
them according to their terms.

IV. Tribal Lands

    This exemption does not apply to those portions of undertakings 
that take place on tribal lands.

V. Definitions

    (a) Section 106 means section 106 of the National Historic 
Preservation Act, 16 U.S.C. 470f, and its implementing regulations, 
found under 36 CFR part 800.
    (b) Undertaking means a project, activity, or program funded in 
whole or in part under the direct or indirect jurisdiction of a Federal 
agency, including those carried out by or on behalf of a Federal 
agency; those carried out with Federal financial assistance; those 
requiring a Federal permit, license or approval; and those subject to 
State or local regulation administered pursuant to a delegation or 
approval by a Federal agency.
    (c) Historic natural gas pipelines means means natural gas 
pipelines, and their appurtenant facilities, that are listed, or 
eligible for listing, on the National Register of Historic Places.
    (d) Tribal lands means all lands within the exterior boundaries of 
any Indian reservation and all dependent Indian communities.

    Authority: 16 U.S.C. 470v; 36 CFR 800.14(c).

    Dated: February 25, 2002.
John M. Fowler,
Executive Director.
[FR Doc. 02-4867 Filed 2-28-02; 8:45 am]
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