[Federal Register Volume 68, Number 186 (Thursday, September 25, 2003)]
[Proposed Rules]
[Pages 55354-55358]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-24202]


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ADVISORY COUNCIL ON HISTORIC PRESERVATION

36 CFR Part 800

RIN 3014-AA27


Protection of Historic Properties

AGENCY: Advisory Council on Historic Preservation.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Advisory Council on Historic Preservation (ACHP) is 
submitting proposed amendments to the regulations setting forth how 
Federal agencies take into account the effects of their undertakings on 
historic properties and afford the ACHP a reasonable opportunity to 
comment, pursuant to section 106 of the National Historic Preservation 
Act. Most of the proposed amendments respond to recent court decisions 
which held that the ACHP could not force a Federal agency to change its 
determinations regarding whether its undertakings affected or adversely 
affected historic properties, and that section 106 does not apply to 
undertakings that are merely subject to State or local regulation 
administered pursuant to a delegation or approval by a Federal agency. 
Another proposed amendment clarifies the time period for objections to 
``No Adverse Effect'' findings. The last proposed amendments clarify 
that the ACHP can propose an exemption to the section 106 process on 
its own initiative, rather than needing a Federal agency to make such a 
proposal.

DATES: Submit comments on or before October 27, 2003.

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 
electronic comments, please type ``Regs Amendment 2003'' in the subject 
line of the e-mail.

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

SUPPLEMENTARY INFORMATION:

I. Background

    Section 106 of the National Historic Preservation Act of 1966, as 
amended, 16 U.S.C. 470f, requires Federal agencies to take into account 
the effects of their undertakings on properties included, or eligible 
for inclusion, in the

[[Page 55355]]

National Register of Historic Places and to afford the Advisory Council 
on Historic Preservation (``ACHP'') a reasonable opportunity to comment 
on such undertakings. The regulations implementing section 106 are 
codified at 36 CFR part 800 (2001) (``Section 106 regulations'').
    On September 18, 2001, the Federal district court for the District 
of Columbia (``district court'') upheld the section 106 regulations 
against several challenges. National Mining Ass'n v. Slater (Civil 
Action No. 00-288) and Cellular Telecommunications and Internet Ass'n 
v. Slater (Civil Action No. 01-00404) (Judge Ellen S. Huvelle). 
Nevertheless, the district court invalidated portions of two 
subsections of the section 106 regulations insofar as they allowed the 
ACHP to reverse a Federal agency's findings of ``No Historic Properties 
Affected'' (Sec.  800.4(d)(2)) and ``No Adverse Effects'' (Sec.  
800.5(c)(3)). See National Mining Ass'n v. Slater, 167 F. Supp. 2d 265 
(D.D.C. 2001); and Id. (D.D.C. Oct. 18, 2001) (order clarifying extent 
of original order regarding Section 800.4(d)(2) of the section 106 
regulations).
    Prior to the district court decision, an objection by the ACHP or 
the State Historic Preservation Officer/Tribal Historic Preservation 
Officer (``SHPO/THPO'') to a ``No Historic Properties Affected'' 
finding forced the Federal agency to proceed to the next step in the 
process, where it would assess whether the effects were adverse. An 
ACHP objection to a ``No Adverse Effect'' finding required the Federal 
agency to proceed to the next step in the process, where it would 
attempt to resolve the adverse effects.
    On appeal by the National Mining Association, the D.C. Circuit 
Court of Appeals (``D.C. Circuit'') ruled that section 106 does not 
apply to undertakings that are merely subject to State or local 
regulation administered pursuant to a delegation or approval by a 
Federal agency, and remanded to the district court. National Mining 
Ass'n v. Fowler, 324 F.3d 752 (D.C. Cir. 2003). On September 4, 2003, 
the district court issued an order declaring Sec. Sec.  800.3(a) and 
800.16(y) invalid to the extent that they applied section 106 to the 
mentioned undertakings, and remanding the matter to the ACHP.
    The ACHP is now proposing amendments to the mentioned subsections 
so that they comport with the court rulings, while still being 
consistent with the purpose of helping Federal agencies avoid 
proceeding with a project under an erroneous determination that the 
project would not affect or adversely affect historic properties, and 
still triggering section 106 compliance responsibilities for Federal 
agencies when they approve or fund State-delegated programs.
    A related amendment would clarify that even if a SHPO/THPO concur 
in a ``No Adverse Effect'' finding, the ACHP and any consulting party 
still have until the end of the 30 day review period to file an 
objection. Such objections would require the Federal agency to either 
resolve the objection or submit the dispute to the ACHP for its non-
binding opinion.
    Finally, the ACHP is also taking the opportunity to amend its 
regulations to clarify that the ACHP can propose an exemption to the 
section 106 process on its own initiative, rather than needing a 
Federal agency to make such a proposal.

II. Amendments Regarding ACHP Review of ``No Historic Properties 
Affected'' and ``No Adverse Effect'' Determinations

    As stated above, the district court held that the asserted power of 
the ACHP to reverse Federal agency determinations of ``No Historic 
Properties Affected'' and ``No Adverse Effect'' exceeded the ACHP's 
legal authority under the National Historic Preservation Act.
    The proposed amendments would still require a Federal agency that 
makes such findings and that receives a timely objection to submit the 
findings to the ACHP for the specified review period. Within that 
period, the ACHP would then be able to give its opinion on the matter 
to the agency official and, if it believed the issues warranted, to the 
head of the agency. The agency official, or the head of the agency, as 
appropriate, would take into account the opinion and provide the ACHP 
with a summary of the final decision that contains the rationale for 
the decision and evidence of consideration of the ACHP's opinion. 
However, the Federal agency would not be forced to abide by the ACHP's 
opinion on the matter.
    The amendments also change the time period, from 15 days to 30 
days, for the ACHP to issue its opinion regarding ``No Adverse Effect'' 
findings. This additional time is deemed necessary since the ACHP 
opinions may now be addressed to the head of the agency, and would 
therefore more likely be ultimately formulated by ACHP members, as 
opposed to such tasks being mostly delegated to the staff. Such 
formulation of opinions by ACHP members is expected to require more 
time considering that these ACHP members are Special Government 
Employees who reside in different areas of the country and whose 
primary employment lies outside the ACHP.

III. Amendment Regarding the Applicability of Section 106 to 
Undertakings That Are Merely Subject to State or Local Regulation 
Administered Pursuant to a Delegation or Approval by a Federal Agency

    As explained above, the D.C. Circuit held that section 106 does not 
apply to undertakings that are merely subject to State or local 
regulation administered pursuant to a delegation or approval by a 
Federal agency. Accordingly, the proposed amendment removes those types 
of undertakings from the definition of the term ``undertaking'' on 
Sec.  800.16(y).
    Formerly, an individual project would trigger section 106 due to 
its regulation by a State or local agency (through such things as 
permitting) pursuant to Federally-delegated programs such as those 
under the Surface Mining Control and Reclamation Act, 30 U.S.C. 1201 et 
seq. Under the proposed amendment, such State regulation would not, by 
itself, trigger section 106 for those projects.
    Nevertheless, it is the opinion of the ACHP that the Federal agency 
approval and/or funding of such State-delegated programs does require 
section 106 compliance by the Federal agency, as such programs are 
``undertakings'' receiving Federal approval and/or Federal funding. 
Accordingly, Federal agencies would need to comply with their section 
106 responsibilities regarding such programs before an approval and/or 
funding decision on them. For existing programs, this could occur 
during renewal or periodic assessment of such programs.
    Due to the inherent difficulties in prospectively foreseeing the 
effects of such programs on historic properties at the time of the 
program approval and/or funding, the ACHP believes that section 106 
compliance in those situations will be pursuant to a program 
alternative per 36 CFR 800.14. For example, that section of the 
regulations provides that ``Programmatic Agreements'' may be used when 
``* * * effects on historic properties cannot be fully determined prior 
to approval of an undertaking; [or] * * * when nonfederal parties are 
delegated major decisionmaking responsibilities * * *'' 36 CFR 
800.14(b)(1). The ACHP stands ready to pursue such alternatives with 
the relevant Federal agencies.

[[Page 55356]]

IV. Amendment Clarifying the 30-Day Review Period for No Adverse Effect 
Determinations

    Questions have arisen under the current section 106 regulations as 
to whether a Federal agency can proceed with its undertaking 
immediately after the SHPO/THPO concurs in a finding of ``No Adverse 
Effect.'' The current section 106 regulations specify a 30-day review 
period, during which the SHPO/THPO, the ACHP and other consulting 
parties can lodge an objection. The result of such objection is that 
the Federal agency must submit the finding to ACHP review. If the SHPO/
THPO concurs, for example, on the fifth day of the 30 day period, the 
current language may have given some the erroneous impression that this 
would cut off the right of other parties to object thereafter within 
the 30 day period (e.g., on the 15th or 28th day).
    The proposed, technical amendment provides clearer language, 
consistent with the original intent expressed in the preamble to the 
section 106 regulations (``the SHPO/THPO and any consulting party 
wishing to disagree to the [no adverse effect] finding must do so 
within the 30 day review period,'' 65 FR 77720 (December 12, 2000) 
(emphasis added)) and in subsequent ACHP guidance on the regulations 
(``Each consulting party has the right to disagree with the [no adverse 
effect] finding within that 30-day review period;'' http://www.achp.gov/106q&a.html#800.5). All consulting parties have the full 
30 day review period to object to a no adverse effect finding 
regardless of SHPO/THPO concurrence earlier in that period.

V. Amendments Authorizing the ACHP To Initiate Section 106 Exemptions

    Under the current section 106 regulations, in order for the ACHP to 
begin its process of considering an exemption, the ACHP needs to wait 
for a Federal agency to propose such an exemption. Under the proposed 
amendment, the ACHP would be able to initiate the process for an 
exemption on its own.
    The ACHP believes it is in an unique position, as overseer of the 
section 106 process, to find situations that call for a section 106 
exemption and to propose such exemptions on its own. There may also be 
certain types of activities or types of resources that are involved in 
the undertakings of several different Federal agencies that would be 
good candidates for exemptions when looking at the undertakings of all 
of these agencies, but that may not be a high enough priority for any 
single one of those agencies to prompt it to ask for an exemption or to 
ask for it in a timely fashion. The ACHP could step into those 
situations and propose such exemptions on its own, and then follow the 
already established process and standards for such exemptions.

VI. Impact Analysis

The Regulatory Flexibility Act

    The ACHP certifies that the proposed rule will not have a 
significant economic impact on a substantial number of small entities. 
The amendments in their proposed version only impose mandatory 
responsibilities on Federal agencies. As set forth in section 106 of 
the NHPA, the duties to take into account the effect of an undertaking 
on historic resources and to afford the ACHP a reasonable opportunity 
to comment on that undertaking are Federal agency duties. Indirect 
effects on small entities, if any, created in the course of a Federal 
agency's compliance with section 106 of the NHPA, must be considered 
and evaluated by that Federal agency.

The Paperwork Reduction Act

    The proposed rule does not impose reporting or record-keeping 
requirements or the collection of information as defined in the 
Paperwork Reduction Act.

The National Environmental Policy Act

    It is the determination of the ACHP that this action is not a major 
Federal action significantly affecting the environment. Regarding the 
National Environmental Policy Act (NEPA) documents for the regulation 
to be amended, as a whole, please refer to our Notice of Availability 
of Environmental Assessment and Finding of No Significant Impact at 65 
FR 76983 (December 8, 2000). A supplemental Environmental Assessment 
and Finding of No Significant Impact is not deemed necessary because 
(1) these amendments do not present substantial changes in the 
regulations that are relevant to environmental concerns; (2) most of 
the amendments are a direct result of a court order; and (3) there are 
no significant new circumstances or information relevant to 
environmental concerns and bearing on the regulations or their impacts.

Executive Orders 12866 and 12875

    The ACHP is exempt from compliance with Executive Order 12866 
pursuant to implementing guidance issued by the Office of Management 
and Budget's (OMB) Office of Information and Regulatory Affairs in a 
memorandum dated October 12, 1993. The ACHP also is exempt from the 
documentation requirements of Executive Order 12875 pursuant to 
implementing guidance issued by the same OMB office in a memorandum 
dated January 11, 1994.

The Unfunded Mandates Reform Act

    The proposed rule does not impose annual costs of $100 million or 
more, will not significantly or uniquely affect small governments, and 
is not a significant Federal intergovernmental mandate. The ACHP thus 
has no obligations under sections 202, 203, 204 and 205 of the Unfunded 
Mandates Reform Act.

Executive Order 12898

    The proposed rule does not cause adverse human health or 
environmental effects, but, instead, seeks to avoid adverse effects on 
historic properties throughout the United States. The participation and 
consultation process established by the section 106 process seeks to 
ensure public participation--including by minority and low-income 
populations and communities--by those whose cultural heritage, or whose 
interest in historic properties, may be affected by proposed Federal 
undertakings. The section 106 process is a means of access for minority 
and low-income populations to participate in Federal decisions or 
actions that may affect such resources as historically significant 
neighborhoods, buildings, and traditional cultural properties. The ACHP 
considers environmental justice issues in reviewing analysis of 
alternatives and mitigation options, particularly when section 106 
compliance is coordinated with NEPA compliance.

VII. Text of Proposed Amendments

List of Subjects in 36 CFR Part 800

    Administrative practice and procedure, Historic preservation, 
Indians, Inter-governmental relations, Surface mining.

    For the reasons stated above, the Advisory Council on Historic 
Preservation proposes to amend 36 CFR part 800 as follows:

PART 800--PROTECTION OF HISTORIC PROPERTIES

    1. The authority citation for part 800 continues to read as 
follows:

    Authority: 16 U.S.C. 470s.

    2. Amend Sec.  800.4 by revising paragraph (d) to read as follows:


Sec.  800.4  Identification of historic properties.

* * * * *
    (d) Results of identification and evaluation.

[[Page 55357]]

    (1) No historic properties affected. If the agency official finds 
that either there are no historic properties present or there are 
historic properties present but the undertaking will have no effect 
upon them as defined in Sec.  800.16(i), the agency official shall 
provide documentation of this finding, as set forth in Sec.  800.11(d), 
to the SHPO/THPO. The agency official shall notify all consulting 
parties, including Indian tribes and Native Hawaiian organizations, and 
make the documentation available for public inspection prior to 
approving the undertaking.
    (i) If the SHPO/THPO, or the Council if it has entered the section 
106 process, does not object within 30 days of receipt of an adequately 
documented finding, the agency official's responsibilities under 
section 106 are fulfilled.
    (ii) If the SHPO/THPO, or the Council if it has entered the section 
106 process, objects within 30 days of receipt of an adequately 
documented finding, the agency official shall forward the finding and 
supporting documentation to the Council and request that the Council 
review the finding. Upon receipt of the request, the Council will have 
30 days in which to review the finding and provide the agency official 
and, if the Council determines the issue warrants it, the head of the 
agency with the Council's opinion regarding the finding. If the Council 
does not respond within 30 days of receipt of the request, the agency 
official may assume concurrence with the agency official's findings and 
proceed accordingly. The agency official, or, if the Council has 
commented to the head of the agency, the head of the agency, shall take 
into account the Council's opinion in reaching a final decision on the 
finding. The agency official or the head of the agency, as appropriate, 
shall then prepare a summary of the decision that contains the 
rationale for the decision and evidence of consideration of the 
Council's opinion, and provide it to the Council. If the agency 
official's initial finding will be revised, the agency official shall 
proceed in accordance with the revised finding. If the final decision 
of the agency is to affirm the initial agency finding of no historic 
properties affected, once the summary of the decision has been sent to 
the Council, the agency official's responsibilities under section 106 
will be fulfilled.
    (2) Historic properties affected. If the agency official finds that 
there are historic properties which may be affected by the undertaking, 
the agency official shall notify all consulting parties, including 
Indian tribes or Native Hawaiian organizations, invite their views on 
the effects and assess adverse effects, if any, in accordance with 
Sec.  800.5.
    3. Amend Sec.  800.5 by revising paragraphs (c)(1) and (c)(3) to 
read as follows:


Sec.  800.5  Assessment of adverse effects.

* * * * *
    (c) * * *
    (1) Agreement with finding. Unless the Council is reviewing the 
finding pursuant to Sec.  800.5(c)(3), the agency official may proceed 
after the close of the 30 day review period if the SHPO/THPO agrees 
with the finding and no consulting party objects within that period. 
The agency official shall carry out the undertaking in accordance with 
Sec.  800.5(d)(1). Failure of the SHPO/THPO to respond within 30 days 
from receipt of the finding shall be considered agreement of the SHPO/
THPO with the finding.
* * * * *
    (3) Council review of findings. When a finding is submitted to the 
Council pursuant to paragraph (c)(2) of this section, the agency 
official shall include the documentation specified in Sec.  800.11(e). 
The Council shall review the finding and provide the agency official 
and, if the Council determines the issue warrants it, the head of the 
agency with its opinion as to whether the adverse effect criteria have 
been correctly applied within 30 days of receiving the documented 
finding from the agency official. If the Council does not respond 
within 30 days of receipt of the finding, the agency official may 
assume concurrence with the agency official's findings and proceed 
accordingly. The agency official, or, if the Council has commented to 
the head of the agency, the head of the agency, shall take into account 
the Council's opinion in reaching a final decision on the finding. The 
agency official or the head of the agency, as appropriate, shall then 
prepare a summary of the decision that contains the rationale for the 
decision and evidence of consideration of the Council's opinion, and 
provide it to the Council. If the agency official's initial finding 
will be revised, the agency official shall proceed in accordance with 
the revised finding. If the final decision of the agency is to affirm 
the initial finding of no adverse effect, once the summary of the 
decision has been sent to the Council, the agency official's 
responsibilities under section 106 will be fulfilled.
* * * * *
    4. Amend Sec.  800.14 by revising paragraph (c) to read as follows:


Sec.  800.14  Federal agency program alternatives.

* * * * *
    (c) Exempted categories.
    (1) Criteria for establishing. The Council or an agency official 
may propose a program or category of undertakings that may be exempted 
from review under the provisions of subpart B of this part, if the 
program or category meets the following criteria:
    (i) The actions within the program or category would otherwise 
qualify as ``undertakings'' as defined in Sec.  800.16;
    (ii) The potential effects of the undertakings within the program 
or category upon historic properties are foreseeable and likely to be 
minimal or not adverse; and
    (iii) Exemption of the program or category is consistent with the 
purposes of the act.
    (2) Public participation. The proponent of the exemption shall 
arrange for public participation appropriate to the subject matter and 
the scope of the exemption and in accordance with the standards in 
subpart A of this part. The proponent of the exemption shall consider 
the nature of the exemption and its likely effects on historic 
properties and take steps to involve individuals, organizations and 
entities likely to be interested.
    (3) Consultation with SHPOs/THPOs. The proponent of the exemption 
shall notify and consider the views of the SHPOs/THPOs on the 
exemption.
    (4) Consultation with Indian tribes and Native Hawaiian 
organizations. If the exempted program or category of undertakings has 
the potential to affect historic properties on tribal lands or historic 
properties of religious and cultural significance to an Indian tribe or 
Native Hawaiian organization, the Council shall follow the requirements 
for the agency official set forth in paragraph (f) of this section.
    (5) Council review of proposed exemptions. The Council shall review 
an exemption proposal that is supported by documentation describing the 
program or category for which the exemption is sought, demonstrating 
that the criteria of paragraph (c)(1) of this section have been met, 
describing the methods used to seek the views of the public, and 
summarizing any views submitted by the SHPO/THPOs, the public, and any 
others consulted. Unless it requests further information, the Council 
shall approve or reject the proposed exemption within 30 days of 
receipt, and thereafter notify the relevant agency official and SHPO/
THPOs of the decision. The decision shall be based on the consistency 
of the exemption with the purposes of the act,

[[Page 55358]]

taking into consideration the magnitude of the exempted undertaking or 
program and the likelihood of impairment of historic properties in 
accordance with section 214 of the Act.
    (6) Legal consequences. Any undertaking that falls within an 
approved exempted program or category shall require no further review 
pursuant to subpart B of this part, unless the agency official or the 
Council determines that there are circumstances under which the 
normally excluded undertaking should be reviewed under subpart B of 
this part.
    (7) Termination. The Council may terminate an exemption at the 
request of the agency official or when the Council determines that the 
exemption no longer meets the criteria of paragraph (c)(1) of this 
section. The Council shall notify the agency official 30 days before 
termination becomes effective.
    (8) Notice. The proponent of the exemption shall publish notice of 
any approved exemption in the Federal Register.
* * * * *
    5. Amend Sec.  800.16 by revising paragraph (y) to read as follows:


Sec.  800.16  Definitions.

* * * * *
    (y) 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; and those 
requiring a Federal permit, license or approval.
* * * * *

    Dated: September 17, 2003.
John M. Fowler,
Executive Director.
[FR Doc. 03-24202 Filed 9-24-03; 8:45 am]
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