[Federal Register Volume 67, Number 155 (Monday, August 12, 2002)]
[Proposed Rules]
[Pages 52532-52541]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19816]



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Part III





Department of the Interior





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National Park Service



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36 CFR Part 61



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

  Federal Register / Vol. 67, No. 155 / Monday, August 12, 2002 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 61

RIN 1024-AC79


Procedures for State, Tribal and Local Government Historic 
Preservation Programs

AGENCY: National Park Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The National Park Service (NPS) proposes to establish the 
requirements for an Indian Tribe to assume the duties as State Historic 
Preservation Officer (SHPO) pursuant to section 101(d)(2) of the 
National Historic Preservation Act (NHPA). The 1992 amendments to the 
NHPA include a provision that enables a Tribe to assume any or all of 
the duties of a SHPO on tribal lands. The proposed rule establishes the 
formal process by which a Tribe may secure the Secretary of the 
Interior's (Secretary) approval to assume SHPO duties on tribal land.

DATES: The NPS will accept written comments through December 10, 2002. 
The NPS will hold public meetings on September 20, 2002, at 9 a.m. in 
Albuquerque, New Mexico; on September 18, 2002, at 9 a.m. in Phoenix, 
Arizona; on September 16, 2002, 9 a.m. in Reno, Nevada; on September 
13, 2002, at 9 a.m. in Seattle, Washington; on October 4, 2002, at 10 
a.m. in Oklahoma City, Oklahoma; on October 9, 2002, at 9 a.m. in Lac 
du Flambeau, Wisconsin; on October 22, 2002, at 9 a.m. in Washington, 
DC; on September 11, 2002, at 9 a.m. in Polson, Montana; and on October 
2, 2002 at 9 a.m. in Fort Yates, North Dakota, to present the proposed 
rule and to receive oral comments.

ADDRESSES: Comments should be addressed to: Chief, Heritage 
Preservation Services Division, National Center for Cultural Resources, 
National Park Service, 1849 C Street, NW., NC 330, Washington, DC 
20240; Attention: H. Bryan Mitchell. You may hand carry your comments 
or send them by overnight mail to 800 North Capitol Street, NW., Suite 
330, Washington, DC 20002. Fax: (202) 343-3921. E-mail: 
[email protected]. The public meetings noted in DATES will be at 
the Indian Pueblo Cultural Center, Inc. (Antelope Room) 2401 12th 
Street, NW., in Albuquerque, New Mexico; Intertribal Council of 
Arizona, El Encanto Building, Suite 130, 2214 North Central Avenue, in 
Phoenix, Arizona; University of Nevada at Reno, Continuing Education 
Bldg., Room 109, 1041 North Virginia Street, in Reno, Nevada; Daybreak 
Star Indian Cultural Center (Lounge Room), Discovery Park, 34th Avenue 
West and West Government Way, in Seattle, Washington; Shepherd Mall, 
Suite 65, NW 23rd Street and Villa, in Oklahoma City, Oklahoma; Lake of 
the Torches Resort Hotel (3rd Floor Conference Room), 510 Old Abe Road, 
in Lac du Flambeau, Wisconsin; Department of the Interior (Room 7000-B) 
1849 C Street, NW., in Washington, DC; KwaTaqNuk Resort Hotel (Charlo 
Room), 303 U.S. Highway 93 East, in Polson, Montana; and Prairie 
Knights Casino and Lodge (Prairie View Room), 7932 Highway 24, in Fort 
Yates, North Dakota.

FOR FURTHER INFORMATION CONTACT: H. Bryan Mitchell, National Park 
Service, 1849 C Street, NW. (NC 330), Washington, DC 20240. Telephone: 
(202) 343-9558. Fax: (202) 343-3921. E-mail: [email protected].

SUPPLEMENTARY INFORMATION:

Background

    The NPS has promulgated 36 CFR part 61 pursuant to the NHPA (16 
U.S.C. 470 et seq.) that implemented the national historic preservation 
program as a partnership among Federal, State, Tribal, and local 
governments, non-profit organizations, and private individuals. The 
NHPA also created the mechanism for funding this partnership, the 
Historic Preservation Fund. This partnership promotes and carries out 
the preservation of irreplaceable historic and archeological resources 
that provide the foundation of the Nation's heritage. Through this 
partnership the vital legacy of cultural, educational, aesthetic, 
inspirational, and economic benefits of our historical patrimony will 
be maintained and enriched for future generations of Americans. 36 CFR 
part 61 provides the regulatory framework for voluntary participation 
by State, Tribal, and local governments in the national historic 
preservation program. The Secretary, operating through the Director of 
the National Park Service (Director), administers these programs.
    The specific objects of this proposed rule are Secs. 61.8 and 61.9 
of 36 CFR part 61. These two sections, which the NPS reserved for 
future development in the recent overall revision of Part 61 (published 
for effect in the Federal Register on March 9, 1999), are specific to 
tribal participation in the national historic preservation program. 
Where a Tribe assumes responsibilities on tribal lands pursuant to this 
section of the NHPA, the SHPO does not have responsibility for those 
functions, except in those cases where a non-tribal land owner requests 
the State's participation in addition to the Tribe's. Prior to the 
enactment of the 1992 amendments, the NHPA included no provision by 
which a Tribe could formally assume these duties in the national 
program. Issuance of these two sections will complete the revision of 
Part 61 in response to the 1992 amendments to the NHPA.
    Federally recognized Tribes that exercise governmental jurisdiction 
over tribal lands are eligible for this program. The NHPA defines 
tribal lands as all lands within the exterior boundaries of any Indian 
reservation and all dependent Indian communities (16 U.S.C. 470w).
    As of the date of publication of this proposed regulation, the 
Secretary has already approved 31 Tribes to assume SHPO duties pursuant 
to section 101(d)(2) of the NHPA. In the absence of a regulation 
specifically implementing that new section of the NHPA, the NPS has 
reviewed tribal proposals to date in accordance with and in reliance 
upon the existing statutory and regulatory requirements for SHPOs. The 
NPS has based this review process on the broad requirements that ensure 
a certain level of quality, consistency, and public participation in 
the delivery of the national program. The current review process has 
demonstrated the need for rules that establish a formal assumption 
process for Tribes and that respond more specifically to those values 
and needs of Tribes that are distinct from those of the States. 
Further, section 101(d)(2) of the NHPA, itself, specifically 
anticipates that the NPS will promulgate regulations that are specific 
to tribal assumption of SHPO duties.

Section by Section Analysis

Section 61.8  Tribal Programs

    Taken as a whole, the section includes the process by which a Tribe 
can gain approval from the Secretary, acting through the Director, to 
assume SHPO duties on tribal lands. This section affirms that a Tribe 
must meet existing broad requirements for level of quality, 
consistency, and public participation in order to be deemed fully 
capable of assuming SHPO duties. However, an important purpose of this 
section is to distinguish tribal participation in the national program 
from state participation in the national program, where such 
distinctions are appropriate and consistent with the purposes of the 
NHPA. The section:

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     Provides the necessary guidance for what a Tribe must 
include in a proposal;
     Establishes deadlines by which the NPS must respond to a 
tribal proposal;
     Implements the provisions of section 101(d)(1)(B) of the 
NHPA that allow for waivers and modifications of the requirements of 
the NHPA, in order to accommodate tribal values and the cultural 
setting of tribal heritage preservation goals and objectives;
     Provides a process by which a Tribe can request review by 
the Director of any decision to disapprove a tribal proposal or to deny 
a tribal request for a waiver or modification of requirements, or of 
any failure to act within certain deadlines; and
     Establishes the process for periodic review by the NPS of 
approved tribal programs, in accordance with sections 101(d)(2) and 
101(b)(2) of the NHPA.
(a) What Is the Purpose of the Section?
    This paragraph makes clear that the procedures and requirements set 
out in Sec. 61.8 apply only to tribal assumption of SHPO 
responsibilities in the national historic preservation program. The 
procedures and requirements of this rule do not apply to tribal 
historic preservation programs and activities that are created and 
carried out solely pursuant to tribal ordinances.
    For example, if a Tribe assumes the responsibility for nominating 
properties to the National Register of Historic Places, the Tribe must 
follow the National Register's nomination procedures, and it must use 
the National Register's evaluation criteria to assess the significance 
of the property being nominated. On the other hand, if the Tribe 
proposes to establish and maintain its own tribal register--either 
instead of or in addition to nominating properties to the National 
Register--the Tribe may establish whatever procedures and evaluation 
criteria it feels best meet the Tribe's needs. If a Tribe chooses only 
to establish and maintain a tribal register, then the responsibility 
for nominating properties to the National Register remains with the 
SHPO.
    In another example, if a Tribe assumes the SHPO's responsibility 
for commenting on the possible effects of proposed Federal 
undertakings, the Tribe must carry out that responsibility in 
accordance with the regulations (36 CFR 800) of the Advisory Council on 
Historic Preservation. The Tribe's authority within that arena is set 
out in that regulation. On the other hand, if a Tribe adopts an 
ordinance requiring tribal approval and a permit for activities on 
tribal land that may affect historic or cultural resources, the terms 
of that ordinance are set out by the Tribe to meet its own needs. The 
two processes are separate and do not substitute for each other.
(b) What Policies Govern Tribal Participation in the National Historic 
Preservation Program?
    The statements of policy affirm that:
    (1) tribal assumption of SHPO duties is a governmental function and 
so is a part of the government-to-government relationship between the 
United States and Indian Tribes;
    (2) tribal participation will strengthen the national historic 
preservation program [16 U.S.C. 470-1(2)]; and
    (3) the program should encourage and facilitate tribal 
participation [16 U.S.C. 470-1(d)(1)(A)];
(c) How Will the NPS Implement These Policies in Carrying Out the 
Procedures and Requirements for Tribal Assumption of SHPO Duties?
    The NPS will administer this rule in a manner sufficiently flexible 
to respond to the varying scopes of tribal programs and to tribal 
values while remaining consistent with the intent and purposes of the 
NHPA.
(d) What Terms Do I Need To Know?
    The NHPA defines most of the terms used in this rule. Those 
definitions are not repeated here. This paragraph defines one very 
important term not defined elsewhere: ``tribal traditional cultural 
authority.'' The definition affirms two important ideas for the 
purposes of this program. First, the only test for determining that 
someone is a tribal traditional cultural authority is whether the Tribe 
recognizes that person as such. Second, the NPS attributes the same 
professional standing and credibility to a tribal traditional cultural 
authority as he or she does to an individual who meets the Secretary of 
the Interior's Professional Qualifications Standards. This equivalent 
standing does not mean that a tribal traditional cultural authority is 
necessarily qualified to assess the archeological, historical, or 
architectural significance of a site. Likewise, a professionally 
qualified archeologist, historian, or architectural historian is not 
necessarily competent to assess the traditional cultural significance 
of that same site. The NPS recognizes each of these individuals as 
competent within a specific sphere of knowledge.
(e) How Does Our Tribe Seek Approval To Assume SHPO Functions?
    This paragraph reiterates the NHPA's three fundamental procedural 
requirements that a Tribe must meet when it proposes to assume SHPO 
duties on tribal lands:
    (1) submit an appropriate resolution from the Tribe's chief 
governing authority;
    (2) duly designate a Tribal Historic Preservation Officer (THPO) 
who will be responsible for carrying out these duties; and
    (3) submit a Program Plan that describes how the Tribe will carry 
out the duties it proposes to assume.
(f) What Are the General Requirements for Our Tribe's Program Plan?
    This paragraph establishes the basic framework for a Program Plan. 
It refers to the SHPO functions as they are set out in the NHPA and 
calls on a Tribe to indicate in its Program Plan which functions the 
Tribe will assume and which ones it will not assume. The paragraph also 
makes clear that a Tribe must include in its Program Plan sufficient 
descriptive information on the Tribe's current historic preservation 
activities and on how the Tribe will carry out the functions it 
proposes to assume, so that the NPS can determine whether the Tribe is, 
in the words of the NHPA, ``fully capable'' of carrying out the 
functions it proposes to assume.
    The paragraph also indicates that a Tribe may, at its discretion, 
include other materials in its Program Plan, such as a request for a 
waiver or modification of requirements, a request for technical 
assistance, and any other background information the Tribe wishes to 
include.
(g) What Are the Specific Elements That Must Be in a Tribal Program 
Plan?
    This paragraph provides more detailed guidance on the descriptive 
information a Tribe must provide in its Program Plan. The NPS bases the 
required information directly on existing statutory and regulatory 
requirements for SHPO duties. The Tribe must demonstrate its 
familiarity with those requirements and describe how it will meet them, 
so that the NPS can determine, pursuant to section 101(d)(2)(D)(i) of 
the NHPA, whether the Tribe is ``fully capable of carrying out the 
functions specified in the plan.'' However, the paragraph also modifies 
some of the requirements imposed on States, in order to take into 
account tribal values and to recognize that tribal programs may vary in 
scope from state programs.
    The paragraph is divided into two parts. The first part concerns 
information about the Tribe's overall program:
    (a) Information on how the Tribe will include professionally 
qualified individuals in its program;

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    (b) Information on how the Tribe will include an adequate and 
qualified review board in its program; and
    (c) Information on how the Tribe will provide for adequate public 
participation in its program.
Two examples of how these overall requirements are modified for Tribes 
are:
    (1) The NHPA requires an SHPO to employ or appoint ``such 
professionally qualified staff as may be necessary * * *'' Existing 
regulations (36 CFR 61.4) require that such State staff include a 
professionally qualified architectural historian, a professionally 
qualified historian, and a professionally qualified archeologist. The 
Secretary recognizes that unique cultural settings, smaller workloads, 
more limited program scopes, and limited funding may make such full-
time staffing requirements both unnecessary and infeasible for a Tribe. 
Therefore, this proposed rule offers a Tribe greater flexibility to 
arrange for access to professionally qualified individuals as necessary 
to meet the specific needs of a Tribe's program.
    (2) The NHPA requires SHPO programs to include ``an adequate and 
qualified'' review board to review National Register nominations and to 
provide general programmatic advice to the SHPO. Existing regulations 
(36 CFR 61.4) require that a majority of the members of such State 
boards meet the Secretary's Professional Qualifications Standards. 
However, the Secretary recognizes that, like many local historic 
preservation programs that the Secretary has certified, Tribes may not 
have access to professionally qualified individuals who are locally 
available and willing to serve on the board. Further, the Secretary 
recognizes that the nature and scope of THPO programs may be such that 
they are better served by board members who are traditional cultural 
authorities, elders, and others experienced in the preservation of 
tribal culture. Therefore, this proposed rule only requires that tribal 
review board members be interested and experienced in historic 
preservation and/or tribal culture, in order for the board to be deemed 
``adequate and qualified.''
    The second part of the paragraph concerns information on the 
specific SHPO functions the Tribe may assume, with emphasis on the 
following three functions:
    (a) The National Register nomination process;
    (b) Consultation with Federal agencies pursuant to section 106 of 
the NHPA; and
    (c) Review of proposals for rehabilitation of historic properties 
that may qualify for Federal tax credits.
    The required information for these three functions makes clear that 
a Tribe that assumes any or all of these three functions must carry 
them out in a manner that is consistent with existing regulations 
applicable to SHPOs. However, the paragraph also makes clear that a 
Tribe that finds these existing regulations to be contrary to tribal 
values may seek and receive a waiver or modification of those 
regulations from the Secretary.
(h) How Does Our Tribe Obtain a Waiver or Modification of the 
Requirements of the NHPA or of This Rule?
    This paragraph implements the provision of section 101(d)(1) of the 
NHPA that allows for waivers and modifications of existing legal 
requirements applicable to SHPOs in order to take into account tribal 
values and to conform to the cultural setting of tribal heritage goals 
and objectives. A Tribe may include such a waiver or modification 
request as a part of its Program Plan. While the NPS neither requires 
nor expects that a Tribe include or divulge any information that is 
sensitive or culturally inappropriate for the Tribe, the Tribe must 
explain why a waiver or modification is appropriate, and it must 
propose a specific alternative.
(i) How Will the NPS Consult With Us on Our Proposed Program Plan?
    This paragraph makes clear that, when the NPS receives a proposed 
Program Plan from a Tribe, it will consult with the Tribe in an effort 
to clarify any ambiguities and remedy any deficiencies in that Plan. 
The paragraph also establishes deadlines by which the NPS must:
    (a) Acknowledge receipt of a Tribe's Program Plan;
    (b) Notify a Tribe of any ambiguities or apparent deficiencies in 
its Program Plan;
    (c) Notify a Tribe of any ambiguities or apparent deficiencies 
remaining in its Program Plan following consultation with the NPS.
(j) Will the NPS Consult With Anyone Else About Our Proposed Program 
Plan?
    This paragraph makes clear that the NHPA requires NPS to consult 
with the appropriate SHPO(s), any other Tribes whose traditional 
homelands may be affected, and, if you are assuming responsibilities 
pursuant to section 106, the Advisory Council on Historic Preservation. 
The paragraph establishes a deadline by which NPS must contact these 
other consulting parties, as well as a deadline by which the consulting 
parties must return any comments to NPS.
(k) On What Basis Will the Secretary Review Our Proposed Program Plan?
    This paragraph makes clear that the NPS must decide to approve or 
not to approve a Tribe's Program Plan based on the statutory test of 
whether the Tribe is ``fully capable'' of carrying out the SHPO 
functions it proposes to assume. The paragraph binds the NPS to 
determine whether the Tribe is fully capable based on whether the Tribe 
has met the requirements set out in Sec. 61.8(f) through Sec. 61.8(i) 
of this rule.
    The paragraph also affirms that, in any case where a Tribe has 
requested a waiver or modification of existing requirements applicable 
to SHPOs, the NPS will approve that request upon finding that such a 
waiver or modification is feasible, necessary to accommodate tribal 
values, and consistent with the purposes of the NHPA.
(l) How Will the NPS Make a Decision on Our Program Plan?
    Item (1) of this paragraph requires the NPS to provide the Tribe 
with a written finding as to whether the Tribe is fully capable of 
carrying out its proposed duties and whether the NPS has approved any 
requested waivers or modifications.
    Item (2) indicates that the finding must include an explanation for 
the NPS' decisions, a description of the necessary steps to correct any 
deficiencies that resulted in denial of the Tribe's request, an offer 
of technical assistance as appropriate, and a notice of the Tribe's 
right to request the Director's review of certain adverse decisions or 
actions.
    Items (3) and (4) establish that the NPS may approve a Tribe's 
entire plan, disapprove the entire plan, or approve parts of the plan 
and disapprove other parts. The basis for partial approval of a plan by 
the NPS and/or partial assumption of duties by the Tribe is section 
101(d)(2) of the NHPA, which provides that, ``A tribe may assume all or 
any part of the functions of a State Historic Preservation Officer * * 
* [emphasis added]''
    Item (5) makes clear that a Tribe that assumes only a portion of 
the SHPO duties at first may at any subsequent time assume any or all 
of the remaining duties upon approval by the NPS. Any Tribe that wants 
in the long term to assume all SHPO duties but feels that it

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should take on those duties gradually or in phases may do so.
(m) How Can We Obtain a Review of a Negative Decision by the NPS?
    This paragraph establishes a clear process by which a Tribe can 
request the Director to review any decision that disapproved in whole 
or in part the Tribe's proposal to assume SHPO duties, any decision to 
deny the Tribe's request for a waiver or modification of requirements, 
or any failure to act by the deadlines established by this rule. The 
paragraph indicates what a Tribe should include in its request to the 
Director, and it establishes a 60-day deadline for making such a 
request. The paragraph calls for a meeting between the Tribe and the 
Director if the Tribe requests such a meeting, or if the Director 
believes that a meeting would be helpful. The paragraph requires that 
the Director's decision be in writing and that it include an 
explanation for the Director's action. Finally the paragraph requires 
the Director to act within 60 days of receiving the Tribe's request.
(n) May a Tribe That Assumes SHPO Functions Obtain Relevant Materials 
From the SHPO?
    Existing survey inventories and archives of the SHPOs often include 
significant information on sites within the boundaries of Indian 
reservations, as well as on aboriginal lands now outside the 
reservation. A Tribe that assumes SHPO duties needs that information 
very much, not only so that it can build upon rather than duplicate 
previous work carried out pursuant to the NHPA, but also so that it can 
effectively and efficiently work with the Federal agencies that consult 
with the Tribe pursuant to the NHPA.
    A few of the Tribes that have already assumed SHPO duties have 
reported some difficulties in acquiring copies of SHPO records. Those 
tribes have requested that the NPS require SHPOs to turn over their 
original records to the Tribes at no cost to the Tribes.
    The NPS cannot require SHPOs to divest their archives of these 
official state records. In addition, the SHPOs will have a continuing 
need to refer to those records for their own planning purposes. The NPS 
also cannot require that an SHPO bear all the costs of making duplicate 
records for a Tribe.
    On the other hand, the NPS recognizes the critical importance of 
these records for THPOs. This paragraph affirms that the State, if the 
Tribe requests, must provide the Tribe with original records or legible 
duplicates for sites on tribal lands or on a Tribe's aboriginal lands. 
While a State may charge the Tribe a fee not to exceed actual costs for 
transferring or duplicating materials, the NPS encourages the States to 
give whatever assistance they can to a Tribe that is assuming SHPO 
duties, so that the Tribe can obtain the necessary records quickly at 
the lowest possible cost.
(o) How Does the NPS Review the Performance of a Tribe That Has Assumed 
SHPO Functions?
    Section 101(d)(2) of the NHPA says that a tribe may assume SHPO 
duties ``in accordance with'' section 101 (b)(2) of the NHPA. This 
latter section requires periodic review, not less often than once every 
4 years, of each SHPO program to ensure that it remains consistent with 
the NHPA. 36 CFR 61.4 establishes the basic procedure by which the NPS 
carries out this review of state programs.
    Accordingly, paragraph 61.8(o) of this rule establishes a basic 
process for review of each THPO program that is identical to the 
procedure for review of SHPO programs as set out in 36 CFR 61.4
    The principal features of the review process are:
    1. It is collegial;
    2. It focuses on identifying both strengths and weaknesses;
    3. It provides a Tribe with a reasonable opportunity to correct any 
problems;
    4. It allows a Tribe to request a review by the Director of any 
findings or required actions; and
    5. It results in a formal continuation of a Tribe's approved 
status, or, where major deficiencies remain uncorrected, in a 
revocation of approved status and suspension of any financial 
assistance.
(p) What Is the Effect of This Rule on Tribal Sovereignty, Treaty 
Rights, and Other Tribal Rights?
    This paragraph affirms that nothing in this rule is intended to 
modify tribal sovereignty or to preempt any treaty rights or other 
rights in any way.
(q) What Is the Effect of This Rule on Tribes Previously Approved To 
Assume SHPO Functions?
    This paragraph ``grandfathers'' those Tribes that have been 
approved to assume SHPO duties prior to the effective date of this 
rule, so that they retain their approved status without reapplying to 
the NPS for approval.

Section 61.9 Grants to Tribal Programs

(a) Are Tribes That Have Assumed SHPO Functions Eligible for Financial 
Assistance To Carry Out Those Functions?
    Item (1) of this paragraph affirms that a Tribe that is approved to 
assume SHPO duties is eligible to receive financial assistance from the 
Historic Preservation Fund (HPF), just as SHPOs are eligible to receive 
financial assistance from the HPF.
    Item (2) establishes the first day of the Federal fiscal year 
(October 1) as the deadline by which a tribal program must have been 
approved in order to be eligible for financial assistance in any given 
fiscal year. This deadline is important and necessary for two reasons:
    1. The number of Tribes participating in this program is growing 
and will continue to grow for the foreseeable future. A Tribe may 
submit a program plan to the NPS for approval at any time during the 
year.
    2. The NPS provides annual financial assistance to approved Tribes 
based on an apportionment formula very soon after Congress appropriates 
the funds. Each approved Tribe needs to know as early as possible what 
its funding level will be for the year. The Tribe also needs access to 
its funds as early in the fiscal year as possible to meet ongoing 
costs. Already-approved Tribes would suffer unfairly, if apportionment 
were delayed in order to wait for possible additional Tribes.

Section 61.9(b)  What Requirements Govern the Financial Assistance for 
Tribes That Have Assumed SHPO Functions?

    This paragraph affirms that the various departmental and 
government-wide requirements for receiving and spending Federal grant-
in-aid money apply to the funds a Tribe receives through this program. 
This paragraph also affirms the provisions of section 101(e)(5) of the 
NHPA that the matching-share requirements normally attached to the HPF 
may be modified for Tribes.

Drafting Information

    The primary author of this rule is H. Bryan Mitchell, Heritage 
Preservation Services, National Center for Cultural Resources, National 
Park Service.

Compliance With Laws, Executive Orders and Department Policy

Regulatory Planning and Review (Executive Orders 12866)

    This document is not a significant rule and is not subject to 
review by the

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Office of Management and Budget under Executive Order 12866.
    (1) This rule will not have an effect of $100 million or more on 
the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities. The proposed rule provides the framework for the voluntary 
participation of individual Indian tribes in the national historic 
preservation program. Current grant funding available to participating 
tribes is under $5 million nationwide.
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency. This rule 
establishes the formal relationship between the NPS and participating 
tribes. Consultation between Federal agencies and Indian tribes 
concerning Federal undertakings on tribal lands is already required by 
section 110 of the NHPA and by the regulations (36 CFR part 800) of the 
Advisory Council on Historic Preservation.
    (3) This rule does not alter any existing budgetary effects or 
entitlements, grants, user fees, or loan programs or the rights or 
obligations of their recipients. This rule does make clear that Indian 
tribes that choose to participate in the national historic preservation 
program are eligible for additional grant funding from the Historic 
Preservation Fund to assist the tribe in carrying out the activities of 
that program. The rule establishes an annual deadline by which a tribe 
must be approved in order to be eligible for the next funding cycle; it 
also affirms that various government-wide and departmental requirements 
apply to grants received by participating tribes.
    (4) This rule does not raise novel legal or policy issues. The 
programmatic requirements established by this proposed rule for tribes 
that choose to participate in the program are consistent with the broad 
programmatic requirements that have been in place for states for over 
25 years. At the same time, the proposed rule recognizes the 
differences in scope, workload, and program emphasis that exist between 
states and tribes, as well as among tribes.

Regulatory Flexibility Act

    The Department of the Interior certifies 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.). 
As noted above, the proposed rule only establishes procedures and 
requirements for Indian tribes that voluntarily choose to participate 
in the national historic preservation program. Total grant funding 
available for participating tribes is less than $5 million annually.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million or 
more. As noted above, the proposed rule only establishes procedures and 
requirements for Indian tribes that voluntarily choose to participate 
in the national historic preservation program. Total grant funding 
available for participating tribes is less than $5 million annually. 
The proposed rule establishes no new requirements for small businesses.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions. Federal agencies are already required 
by section 110 of the NHPA and by the regulations (36 CFR part 800) of 
the Advisory Council on Historic Preservation to consult with Indian 
tribes concerning proposed Federal undertakings. Where a tribe has 
assumed SHPO functions pursuant to this proposed rule, the costs to 
Federal agencies may actually be reduced in some cases, because 
consultation with the SHPO in addition to the tribe would no longer be 
required.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises. The 
proposed rule establishes the procedures and requirements for any 
Indian tribe that chooses to enter into a formal relationship with the 
Secretary in which the tribe carries out the national historic 
preservation program on tribal lands.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or tribal governments, or the private sector. Tribal assumption 
of SHPO duties pursuant to the NHPA and this proposed rule is 
completely at the discretion of individual tribal governments with 
jurisdiction over tribal lands, so that no mandate of any kind arises 
from this proposed rule. In addition, the proposed rule creates no 
significant or unique effect on any unit of government.

Takings (Executive Order 12630)

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. The rule creates administrative 
procedures for the organization of Tribal historic preservation 
offices. This rule does not affect private property owners. The SHPO 
duties a tribe may assume pursuant to the NHPA and this proposed rule 
do not include any responsibilities or activities that affect property 
rights protected by the Constitution or that pose any risk of being a 
compensable taking. A takings implication assessment is not required.

Federalism (Executive Order 13132)

    In accordance with Executive Order 13132, the rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment. Tribal participation in the national program is 
voluntary. Nonetheless, the NPS has consulted with participating tribes 
in drafting this proposed rule. This proposed rule has evolved directly 
from a draft prepared by the participating tribes and provided to the 
NPS in July, 1997. Later in the drafting process the NPS met with the 
participating tribes in October, 1998 to discuss the draft at that 
point. The NPS also solicited written comments from the participating 
tribes following that meeting but received none. While the proposed 
rule has undergone a series of editorial refinements since the 1998 
meeting, it remains substantively the same. The proposed rule has no 
significant effect on states' abilities to make their own decisions. 
Where a tribe is approved by the NPS to assume SHPO functions on tribal 
lands, the state no longer has those responsibilities on tribal lands. 
However, the level of SHPO activity on tribal lands is relatively small 
and consists of providing technical assistance requested by tribes and 
consulting with Federal agencies on the potential impacts of their 
undertakings. Allowing tribes to assume SHPO functions with regard to 
tribal lands is mandated by the NHPA and not created by this proposed 
rule. The NHPA also calls for promulgation of regulations to implement 
the mandate, so that there is no alternative to publishing the proposed 
rule. A Federalism Assessment is not required.

[[Page 52537]]

Civil Justice Reform (Executive Order 12988)

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order.

Paperwork Reduction Act

    The Office of Management and Budget has approved the collection of 
information contained in this rule under 44 U.S.C. 3507 et seq. and has 
assigned clearance number 1024-0038. The information collected is part 
of the process for reviewing the procedures and programs of State, 
Tribal, and local governments participating in the national historic 
preservation program and the Historic Preservation Fund grant program. 
The 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. Participating State, Tribal, and local governments must 
respond in order to obtain a benefit under these programs. Note that a 
Federal agency may not conduct or sponsor, nor must a person respond 
to, a collection of information unless it displays a currently valid 
OMB control number. The NPS provides no assurance of confidentiality to 
respondents with the exception for the information concerning the 
location of some properties included in government historic 
preservation property inventories. Pursuant to Section 304 of the 
National Historic Preservation Act of 1966, as amended, the NPS tightly 
controls the release of information, when such release could have the 
potential of damaging those qualities that make a property historic or 
of vital cultural or religious significance.
    We estimate the public reporting burden for the collection of this 
information averages 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., MS 3317, 
Washington, DC 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, DC 20503.

National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment.

Government-to-Government Relationship With Tribes

    In accordance with the Executive Order 13175 ``Consultation and 
Coordination with Indian Tribal Governments'' (65 FR 67249) and 
President's memorandum of April 29, 1994, ``Government to Government 
Relations with Native American Tribal Governments'' (59 FR 22951) and 
512 DM 2:
    We have evaluated the possible effects on federally recognized 
Indian tribes. The proposed rule does not, in and of itself, have any 
effect on tribal trust resources, as contemplated by 512 DM 2. However, 
the proposed rule is of particular concern to those tribes. The 
proposed rule formalizes the process established by the National 
Historic Preservation Act, whereby a tribe can voluntarily choose to 
assume certain responsibilities pursuant to that Act. If a tribe 
chooses not to assume those duties and therefore takes no action to 
request approval to do so, this proposed rule has no effect upon the 
tribe. There is no consequence to the tribe that chooses not to assume 
these duties. Even where a tribe does choose to assume these 
responsibilities in accordance with this proposed rule, the tribe is 
assuming responsibilities previously assigned to a State Historic 
Preservation Officer, not to an agency of the Federal government, so 
that the trust relationship between the tribe and the Federal 
government is unaltered. The overall policy goal of this proposed rule 
and of section 101(d)(2) of the National Historic Preservation Act is 
the enhancement of tribes' abilities to identify, evaluate, and protect 
those cultural and historic resources that are of particular importance 
to the tribes.

Clarity of This Regulation

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand, including answers to questions such as 
the following: (1) Are the requirements in the rule clearly stated? (2) 
Does the rule contain technical language or jargon that interferes with 
its clarity? (3) Does the format of the rule (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity? (4) Would the rule be easier to understand if it were divided 
into more (but shorter) paragraphs? (5) Is the description of the rule 
in the ``Supplementary Information'' section of the preamble helpful in 
understanding the proposed rule? What else could we do to make the rule 
easier to understand?
    Send a copy of any comments that concern how we could make this 
rule easier to understand to: Office of Regulatory Affairs, Department 
of the Interior, Room 7229, 1849 C Street NW, Washington, DC 20240.

Public Comment Solicitation

    If you wish to comment, you may submit your comments by any one of 
several methods. You may mail comments to Heritage Preservation 
Services, National Center for Cultural Resources, National Park 
Service, 1849 C Street, NW (NC 330), Washington, DC 20240 You may also 
comment via the internet by sending your comments to the following e-
mail address: [email protected]. Please include ``Attn: RIN 1024-
AC79'' and your name and return address in your message. In addition, 
any interested person will have the opportunity to make oral comments 
at one of the public meetings noted at the beginning of this 
rulemaking. Finally, you may hand-deliver comments to Heritage 
Preservation Services, National Center for Cultural Resources, National 
Park Service, 800 North Capitol Street, Room 330, Washington, DC. Our 
practice is to make comments, including names and home addresses or 
respondents, available for public review during regular business hours. 
Individual respondents may request that we withhold their name or home 
address from the rulemaking record, which we will honor to the extent 
allowable by law. If you wish us to withhold your name and/or address, 
you must state this prominently at the beginning of your comment. 
However, we will not consider anonymous comments. We will make all 
submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety.

List of Subjects in 36 CFR Part 61

    Grant programs--natural resources, Historic preservation, Indians--
tribal government, Reporting and recordkeeping requirements.

    We propose to amend 36 CFR part 61 as set forth below:

[[Page 52538]]

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

    1. The authority citation for part 61 continues to read as follows:

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

    2. Revise Sec. 61.8 to read as follows:


Sec. 61.8  Tribal programs.

    (a) What is the purpose of this section? This section sets out 
procedures and requirements for the assumption by Indian Tribes of any 
or all functions of a State Historic Preservation Officer (SHPO) with 
respect to tribal lands, in accordance with section 101(b)(2) and 
(b)(3) of the NHPA. A Tribe that has assumed any or all functions of an 
SHPO in accordance with the NHPA shall have the same authority and 
discretion accorded to an SHPO by the NHPA for the purpose of carrying 
out those functions.
    (b) What policies govern tribal participation in the national 
historic preservation program? (1) Congress has recognized that the 
national historic preservation program will be strengthened by 
providing Indian Tribes with the opportunity to become full partners in 
the program.
    (2) Our program and regulations should assist Indian Tribes in 
expanding and accelerating their historic preservation programs to 
protect their historic properties.
    (3) The program to assist Tribes in their preservation activities 
shall ensure that tribal values are taken into account to the extent 
feasible.
    (4) Qualified tribes are encouraged to assume all or any part of 
the functions of a SHPO and to plan, conduct, and administer programs, 
functions, services and activities for which they have assumed 
responsibility.
    (5) An Indian Tribe has an inherent legal right to self-
determination and the distinctive rights that flow from its inherent 
sovereignty. Assuming responsibility for functions in accordance with 
the NHPA and this regulation is an exercise of the government-to-
government relationship between the United States and the Indian 
tribes.
    (6) To the extent feasible, the National Park Service (NPS) will 
construe this section so as to facilitate tribal assumption of 
functions pursuant to the NHPA.
    (c) How will the NPS implement these policies in carrying out the 
procedures and requirements for tribal assumption of SHPO duties? (1) 
The NPS will consult with each Indian Tribe proposing to assume SHPO 
duties on a government-to-government basis, in a manner respectful of 
tribal sovereignty, and with the aim of building an effective working 
relationship between the two governments.
    (2) In accordance with section 101(d)(1)(B) of the NHPA, the NPS 
will recognize the need for flexibility, in order to respond to the 
varying scopes of tribal historic preservation programs, and in order 
to accommodate tribal values and the cultural setting of tribal 
heritage preservation goals and objectives.
    (d) What terms do I need to know? For the purposes of this section:
    Tribal traditional cultural authority means any individual 
recognized as such by an Indian Tribe. For the purposes of this 
section, a tribal traditional cultural authority has standing 
equivalent to that of an individual who meets the Secretary of the 
Interior's Professional Qualifications Standards. For example, in 
determining the overall historic significance of a property or site, a 
tribal traditional cultural authority's assessment of the traditional 
cultural value of that property or site has the same standing as a 
professionally qualified archeologist's assessment of the archeological 
value of that property.
    (e) How does our Tribe seek approval to assume SHPO functions? A 
Tribe that seeks to assume SHPO functions must do three things:
    (1) Submit a resolution to the NPS from the Tribe's chief governing 
authority requesting the assumption of SHPO functions by the Tribe;
    (2) Designate a Tribal Historic Preservation Officer (THPO), 
through appointment by the Tribe's chief governing authority or as a 
tribal ordinance may otherwise provide, who shall be responsible for 
administering the tribal historic preservation program; and
    (3) Submit a Tribal Historic Preservation Program Plan (hereinafter 
the Program Plan) to the NPS.
    (f) What are the general requirements for Tribal Program Plans? (1) 
When submitting a Tribal Program Plan for review and approval, you must 
include the following in your Program Plan:
    (i) A clear list of the SHPO functions set out in section 101(b)(3) 
of the NHPA that you propose to assume.
    (ii) Sufficient descriptive information on your current historic 
preservation program or activities and on the individual functions you 
propose to assume to allow the NPS to determine whether you are fully 
capable of carrying out the functions you propose to assume (see 
paragraph (g) of this section for further guidance on this 
requirement).
    (iii) A clear list of the SHPO functions, if any, that you propose 
will remain the responsibility of the SHPO.
    (2) You may include the following in your Program Plan:
    (i) A request for any waiver or modification of the requirements of 
the NHPA or of this rule that you believe is necessary to accommodate 
tribal values or the cultural setting of tribal heritage preservation 
goals and objectives (see paragraph (h) of this section for further 
guidance).
    (ii) Any additional information you believe will assist the NPS in 
determining that you are fully capable of carrying out the functions 
you propose to assume.
    (iii) A request for any technical assistance you believe would 
benefit the Tribe in carrying out the functions you propose to assume.
    (g) What are the specific elements that must be in a Tribal Program 
Plan? (1) In describing the overall assumption of SHPO functions set 
out in your Program Plan, your Program Plan must include:
    (i) Information on how the THPO will employ or appoint such 
professionally qualified individuals as may be necessary for carrying 
out those functions the Tribe proposes to assume. Such employment or 
appointment must be through establishment of full or part-time staff 
positions, or through other arrangements suitable to the workload of 
the THPO and to the scope of the tribal program. A professionally 
qualified individual meets the Secretary of the Interior's Professional 
Qualifications Standards or is recognized by the Tribe as a traditional 
cultural authority.
    (ii) Information on how the THPO will include an adequate and 
qualified tribal historic preservation review board in the operations 
of the tribal historic preservation program. The THPO appoints such a 
board, unless tribal ordinance or the Tribe's chief governing authority 
provides for another appointment process. Members of the board must 
have sufficient interest and experience in historic preservation and/or 
tribal culture to provide the THPO with meaningful advice. The board's 
duties include providing general advice and guidance to the THPO, 
reviewing appropriate documentation submitted to the NPS in connection 
with the Historic Preservation Fund, reviewing National Register 
nominations where the Tribe has assumed responsibility for that 
nomination process, and such other duties as may be appropriate.
    (iii) Information on how the THPO will provide for adequate 
participation

[[Page 52539]]

in the historic preservation program by Tribal traditional cultural 
authorities, representatives of other Tribes whose traditional lands 
are under the jurisdiction of the Tribe, and the interested public. At 
a minimum, adequate participation of the interested public means that, 
no less frequently than annually, the THPO solicits and considers 
comments on the goals and activities of the tribal historic 
preservation program. The THPO solicits these comments through means 
such as locally publishing a notice, holding an open meeting, or some 
other process consistent with the routine procedures of the tribal 
government.
    (iv) An affirmation that on tribal land that is neither owned by a 
member of the Tribe nor held in trust by the Secretary for the benefit 
of the Tribe, at the request of the owner of such land, the State 
Historic Preservation Officer, in addition to the Tribal Historic 
Preservation Officer, may exercise the historic preservation 
responsibilities in accordance with section 101(b)(2) and (b)(3) of the 
NHPA.
    (2) In setting out each of the duties in section 101(b)(3) of the 
NHPA that the Tribe proposes to assume, your Program Plan must include 
a description of how the Tribe will carry out each of those duties, and 
a description of how those duties are related to the Tribe's current 
historic preservation program or activities. If the Tribe proposes to 
assume responsibility for administering the National Register 
nomination process, for advising and assisting in the evaluation of 
proposals for rehabilitation of historic properties that may qualify 
for Federal tax credits, and/or for consulting with Federal agencies 
pursuant to section 106 of the NHPA, your Program Plan must include the 
following:
    (i) Information on the process the Tribe proposes for considering 
and submitting such nominations where the Tribe proposes to assume 
responsibility for submitting nominations to the National Register of 
Historic Places. The Tribe's process must be consistent with the 
National Register process set out in 36 CFR part 60 as it applies to 
State Historic Preservation Officers. The THPO must ensure that the 
tribal historic preservation review board has access to advice from 
appropriately qualified individuals in accordance with paragraph 
(g)(1)(i) of this section carrying out its responsibilities for 
reviewing National Register nominations. In the event that the process 
in 36 CFR part 60 is incompatible with tribal values and/or cultural 
preservation goals and objectives, the Tribe may propose an alternative 
process that provides at a minimum for review of nominations by 
professionally qualified individuals, review of nominations by a 
qualified advisory board or other independent, qualified entity, and 
reasonable opportunity for public comment on nominations before they 
are submitted to the National Register (see paragraph (h) of this 
section on waivers and modifications of requirements).
    (ii) Information on the Tribe's process for reviewing such projects 
and submitting them to the NPS where the Tribe proposes to assume 
responsibility for advising and assisting in the evaluation of 
proposals for rehabilitation of historic properties that may qualify 
for Federal tax credits or other Federal assistance. The Tribe's 
process must be consistent with the process set out in 36 CFR part 67 
as it applies to State Historic Preservation Officers. In the event 
that the process in 36 CFR part 67 is incompatible with tribal values 
and/or cultural preservation goals and objectives, the Tribe may 
propose an alternative process that provides at a minimum for 
professional review and timely submission of project documentation to 
the NPS in a manner that is consistent with the overall purposes of 36 
CFR part 67 (see paragraph (h) of this section on waivers and 
modifications of requirements).
    (iii) Information that indicates how the Tribe will carry out this 
responsibility in accordance with the regulations of the Advisory 
Council on Historic Preservation at 36 CFR part 800, or in accordance 
with alternate tribal procedures that have been specifically approved 
by the Council pursuant to section 101(d)(5) of the NHPA where the 
Tribe proposes to assume responsibility for consulting with Federal 
agencies for the purposes of section 106 of the NHPA.
    (h) How does our Tribe obtain a waiver or modification of the 
requirements of the NHPA or of this section? (1) If, in preparing your 
Program Plan, you determine that the requirements of the NHPA and/or of 
this regulation that are applicable to SHPOs are incompatible with 
tribal values or with the cultural setting of your tribal heritage 
goals and objectives, you may include as a part of your Program Plan a 
request that the NPS waive or modify those requirements in order to 
conform to tribal values and/or the cultural setting of tribal heritage 
preservation goals and objectives.
    (2) Your request must include:
    (i) An explanation of the inconsistency between the pertinent 
requirements and tribal values and/or the cultural setting of tribal 
heritage preservation goals and objectives.
    (ii) The specific remedy or alternate tribal procedures you 
propose.
    (3) Nothing in this paragraph (h) authorizes the waiver or 
modification of the duties and responsibilities of the Secretary.
    (i) How will the NPS consult with us on our proposed Program Plan? 
(1) Within 21 days of receipt, the NPS will notify you in writing that 
it has received your proposal. In accordance with section 101(d)(2) of 
the NHPA and paragraph (g) of this section, a complete proposal 
includes the formal resolution from the Tribe's chief governing 
authority, the official designation of a Tribal Historic Preservation 
Officer, and the Program Plan. If your proposal is incomplete, the NPS 
will indicate which parts are missing. The consultation process set out 
in paragraph (j) of this section will begin upon receipt of the missing 
parts.
    (2) Within 45 days of receipt of a complete proposal, the NPS will 
notify the Tribal Historic Preservation Officer, or other 
representative specifically designated by the Tribe, in writing of any 
ambiguities or apparent deficiencies that remain in the proposal and 
indicate how those ambiguities or apparent deficiencies may be 
remedied. Within 30 days of receipt of a written response from the 
Tribe, the NPS will notify the Tribe in writing whether or not the 
ambiguities or apparent deficiencies have been remedied.
    (j) Will the NPS consult with anyone else about our proposed 
Program Plan? (1) Unless the Tribe notifies the NPS that it wishes to 
have additional time to revise its proposal, within 21 days of 
completion of the consultation process in paragraph (i) of this 
section, the NPS, pursuant to section 101(d)(2)(D) of the NHPA, will 
provide copies of the Tribe's proposal, including any revisions, to the 
appropriate SHPO(s), to any other Tribes whose tribal or aboriginal 
lands may be affected by the conduct of the tribal historic 
preservation program and, if the Tribe proposes to assume Section 106 
responsibilities, to the Advisory Council on Historic Preservation.
    (2) The SHPO(s), other Tribes, and the Advisory Council will have 
30 days in which to provide written comments to the NPS on the Tribe's 
proposal.
    (k) On what basis will the Secretary review our proposed Program 
Plan? (1) Following the consultation process set out in paragraph (j) 
of this section, the NPS must review the Program Plan in accordance 
with section 101(d)(2)(E) of the NHPA. That review must determine:

[[Page 52540]]

    (i) Whether the Tribe's chief governing authority has requested to 
assume SHPO functions.
    (ii) Whether the Tribe has duly designated a THPO to carry out the 
functions assumed by the Tribe.
    (iii) Whether the Tribe has submitted a Program Plan that 
demonstrates that the Tribe is fully capable of carrying out the 
functions it proposes to assume in accordance with the requirements of 
the NHPA and of this section.
    (2) Where the Program Plan includes a request for waiver or 
modification of requirements in accordance with paragraph (h) of this 
section, the NPS will review the Tribe's request as a part of its 
review of the Tribe's Program Plan, pursuant to section 101(d)(1)(B) of 
the NHPA. Upon finding that a waiver or modification of the 
requirements of the NHPA is consistent with the purposes of the NHPA, 
feasible, and necessary to accommodate tribal values and/or the 
cultural setting of tribal heritage preservation goals and objectives, 
the NPS will waive or modify such requirements.
    (l) How will the NPS make a decision on our Program Plan? (1) 
Within 30 days of completion of the consultation process set forth in 
paragraph (j) of this section, the NPS must send to the Tribal Historic 
Preservation Officer or other designated representative of the Tribe a 
written finding as to:
    (i) Whether or not the Tribe is fully capable of carrying out the 
functions specified in the proposed program plan, including any 
modifications to that plan as were mutually agreed upon by the NPS and 
the Tribe pursuant to the consultation process set forth in paragraph 
(j) of this section; and
    (ii) Whether any requested waivers or modifications have been 
approved.
    (2) The written finding must:
    (i) Explain the basis for finding that the Tribe is or is not fully 
capable of carrying out a function or functions. The explanation for 
any finding that the Tribe is not fully capable must include a 
reference to the specific requirements(s) of this section and/or of the 
NHPA that the Tribe has failed to meet.
    (ii) Explain the basis for approving or denying any requested 
waiver or modification.
    (iii) Describe the steps the Tribe can take to correct any 
deficiency the NPS has identified as the basis for a finding that the 
Tribe is not fully capable of carrying out a function or functions.
    (iv) Identify the technical assistance available to the Tribe to 
correct any noted deficiency.
    (v) Clearly specify the Tribe's right to request a review of the 
decision by the Director and provide appropriate information on the 
procedure for filing such a request in accordance with paragraph (m) of 
this section.
    (3) If the NPS finds that the Tribe is fully capable of carrying 
out the functions specified in the program plan, including any mutually 
agreed upon modifications to the plan, the NPS must approve the program 
plan as it may have been modified and transmit the approved plan to the 
Tribe.
    (4) If the NPS finds that the Tribe is not fully capable of 
carrying out the functions specified in the program proposal as it may 
have been modified by mutual agreement between the NPS and the Tribe, 
the NPS will either:
    (i) Approve the tribal program plan in part for those portions that 
the Tribe is fully capable of carrying out; disapprove those portions 
of the program plan for which the Tribe is not fully capable of 
carrying out the function(s); and transmit to the Tribe the approved 
portions of the program plan; or
    (ii) Disapprove the entire program plan.
    (5) In any case where a Tribe initially assumes only a portion of 
the responsibilities of section 101(b)(3) of the NHPA, the Tribe may at 
any subsequent time request approval to assume any or all of the 
remaining responsibilities in accordance with this section.
    (m) How can we obtain a review of a negative decision by the NPS? 
(1) You may request a review by the Director of:
    (i) Any decision to disapprove in whole or in part your Program 
Plan to assume any or all of the functions of an SHPO.
    (ii) Any decision to deny your request for a waiver or modification 
of requirements.
    (iii) Any failure to act within the deadlines specified by this 
section.
    (2) You must make your request to the Director within 60 days of 
the adverse decision or missed deadline. Your request must be in 
writing, must come from the Tribe's chief governing authority, and must 
include:
    (i) A statement of the decision to be reviewed by the Director.
    (ii) A statement of the issues involved in the request for review.
    (iii) An explanation of why the Tribe believes the decision is 
wrong.
    (iv) Any appropriate supporting documentation.
    (3) If the chief governing authority of your Tribe asks for a 
meeting with the Director to discuss its request, or, if the Director 
on his or her own initiative desires such a meeting, the Director will 
convene a meeting with the designated representatives of the Tribe.
    (4) The Director must either meet with the Tribe's representatives 
or issue a decision in writing within 60 days of receipt of the Tribe's 
request. In any case where the Director and the Tribe's representatives 
have met in accordance with paragraph (m)(3) of this section, the 
Director must issue a decision in writing either within 60 days of 
receipt of the Tribe's request or within 30 days of the meeting, 
whichever is later. The Director and the Tribe may agree to extend 
these deadlines for reasons of mutual convenience or to allow for 
additional efforts to resolve the disagreement between the Tribe and 
the NPS. The Director's decision may affirm or overrule the previous 
decision, either in whole or in part. The Director must base his or her 
decision on the relevant provisions of this section and/or of the NHPA 
and must include an explanation that refers specifically to those 
provisions. The Director's decision is the final administrative 
decision on the appeal. No person shall be considered to have exhausted 
administrative remedies with respect to the decision described in this 
part until the Director has issued a final administrative decision 
pursuant to this section.
    (n) May a Tribe that assumes SHPO functions obtain relevant 
materials from the SHPO? (1) Upon formal assumption of SHPO 
responsibilities, a Tribe is entitled to receive from the affected 
SHPO(s) those records, data, maps, and reports, or legible copies 
thereof, that pertain to sites on tribal land, as well as to those 
sites on the Tribe's aboriginal lands to which the Tribe attaches 
religious and cultural significance.
    (2) The NPS will foster communication and cooperation between the 
Tribe and the affected SHPO(s) to ensure that the Tribe receives the 
information necessary to carry out its responsibilities.
    (3) The SHPO may charge the Tribe a fee not to exceed the actual 
cost of transferring or duplicating the materials.
    (o) How does the NPS review the performance of a Tribe that has 
assumed SHPO duties? (1) Pursuant to section 101(b)(2) and (d)(2) of 
the NHPA, the NPS periodically will evaluate each tribal program for 
consistency with the NHPA and with the Tribe's approved program plan. 
The review will occur at least once every four years. The NPS may use 
on-site and/or off-site inquiries to perform such evaluation. The 
review will provide the Tribe with written findings and analyses that 
highlight program strengths and weaknesses.
    (2) To the greatest extent feasible the review will be a collegial 
process that involves both the NPS and the Tribe in

[[Page 52541]]

a mutual evaluation and assessment of the program. The NPS will approve 
the Tribe's program if the NPS determines that it continues to meet the 
program requirements of the NHPA and of this section.
    (3) Each Tribe with a program determined to be consistent with the 
NHPA will receive timely written notice from the NPS that its approved 
status is continued.
    (4) Any Tribe found to have major program aspects not consistent 
with the NHPA or with its approved program plan will receive timely 
written notice of deficiencies from the NPS, along with the required 
actions for correcting them. Unless circumstances warrant immediate 
action, the NPS will defer making a decision on program approval for a 
specified period to allow the Tribe to correct deficiencies or present 
a justifiable plan and timetable for correcting deficiencies. During 
this period the Tribe may request that the Director review any findings 
and required actions.
    (5) A Tribe that successfully resolves deficiencies will receive 
timely written notice from the NPS of continued approved status. Once 
the NPS renews a Tribe's approved status, the NPS generally will not 
review that Tribe's program again until the next regular evaluation 
period, although the NPS may conduct evaluations more often if the NPS 
deems it necessary.
    (6) A Tribe with deficiencies that warrant immediate action or that 
remain after the expiration of the period specified pursuant to 
paragraph (o)(4) of this section will receive notice from the NPS that 
its approved status is revoked. The NPS will then initiate financial 
suspension and other actions in accordance with applicable regulatory 
requirements and applicable related guidance issued by the Secretary.
    (p) What is the effect of this section on tribal sovereignty, 
treaty rights, and other tribal rights? Nothing in this section is 
intended to alter, amend, repeal, interpret, or modify tribal 
sovereignty, or to preempt treaty rights, or other rights of an Indian 
Tribe, or modify or limit the exercise of such rights.
    (q) What is the effect of this section on Tribes previously 
approved to assume SHPO functions? Any Tribal Historic Preservation 
Program approved prior to [the effective date of the final rule]:
    (1) Retains that status in accordance with the terms of the 
previously executed Memorandum of Agreement, and
    (2) May, at the Tribe's request, modify its existing agreement in 
accordance with this section.
    3. Revise Sec. 61.9 to read as follows:


Sec. 61.9  Grants to tribal programs.

    (a) Are Tribes that have assumed SHPO functions eligible for 
financial assistance to carry out those functions? (1) Each Tribe with 
an approved tribal program is eligible for grants-in-aid from the 
Historic Preservation Fund.
    (2) A Tribe must have an approved program not later than the first 
day of the Federal fiscal year (October 1), in order to be eligible for 
a grant-in-aid during that same fiscal year.
    (b) What requirements govern the financial assistance for Tribes 
that have assumed SHPO functions? (1) The HPF will administer HPF 
grants-in-aid in accordance with the NHPA, OMB Circular A-133 (For 
availability, see 5 CFR 1310.3.), and 43 CFR part 12, and related 
guidance issued by the Secretary. Pursuant to section 101(e)(5) of the 
NHPA, the Secretary may modify matching fund requirements for Tribes.
    (2) Failure by a Tribe to meet the applicable requirements will be 
cause for comment and appropriate action by the NPS.

    Dated: April 16, 2002.
Craig Manson,
Assistant Secretary, Fish and Wildlife and Parks.
[FR Doc. 02-19816 Filed 8-9-02; 8:45 am]
BILLING CODE 4310-70-P