[Federal Register Volume 69, Number 249 (Wednesday, December 29, 2004)]
[Notices]
[Pages 77979-77981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-28483]


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 Notices
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 This section of the FEDERAL REGISTER contains documents other than rules 
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  Federal Register / Vol. 69, No. 249 / Wednesday, December 29, 2004 / 
Notices  

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ADVISORY COUNCIL ON HISTORIC PRESERVATION


Exemption Regarding Historic Preservation Review Process for 
Effects to the Interstate Highway System

AGENCY: Advisory Council on Historic Preservation.

ACTION: Notice of intent to issue exemption regarding the Interstate 
Highway System.

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SUMMARY: The Advisory Council on Historic Preservation (``ACHP'') 
proposes an exemption that would relieve Federal agencies from the 
requirement of taking into account the effects of their undertakings on 
the Interstate Highway System, except with regard to certain individual 
elements or structures that are part of the system. The public is 
invited to comment on the exemption before it is finalized and 
submitted for adoption by the ACHP.

DATES: Submit comments on or before January 28, 2005.

ADDRESSES: Address all comments concerning this exemption to Carol 
Legard, Federal Highway Administration (``FHWA'') Liaison, Advisory 
Council on Historic Preservation, 1100 Pennsylvania Avenue, NW., Suite 
809, Washington, DC 20004. Fax (202) 606-5072. You may submit 
electronic comments to: [email protected].

FOR FURTHER INFORMATION CONTACT: Carol Legard, 202-606-8522.

SUPPLEMENTARY INFORMATION: Section 106 of the National Historic 
Preservation Act, 16 U.S.C. 470f, requires Federal agencies to consider 
the effects of their undertakings on historic properties and provide 
the Advisory Council on Historic Preservation (``ACHP'') a reasonable 
opportunity to comment with regard to such undertakings. Historic 
properties are those that are listed on the National Register of 
Historic Places (``National Register'') or eligible for such listing.
    Section 214 of the National Historic Preservation Act (``NHPA'') 
authorizes the ACHP, with the concurrence of the National Park Service, 
to promulgate regulations for exempting undertakings ``from any or all 
of the requirements of'' the NHPA. 16 U.S.C. 470v. The Section 106 
regulations, found at 36 CFR part 800, detail the process for the 
approval of such exemptions. 36 CFR 800.14(c).
    In accordance with the Section 106 regulations, the ACHP may 
approve an exemption for an undertaking if it finds that: (i) The 
actions within the program or category would otherwise qualify as 
``undertakings'' as defined in 36 CFR 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 NHPA.

I. Background

    As the fiftieth anniversary in 2006 of the designation of the 
Dwight D. Eisenhower National System of Interstate and Defense Highways 
(``Interstate System'') nears, resolving the question of how the 
Interstate System will be treated under the NHPA has taken on increased 
urgency. Since the year 2001, when parts of the Interstate System were 
first suggested as potentially eligible for inclusion in the National 
Register, the Federal Highway Administration (``FHWA'') has been 
considering how best to deal with the historic preservation 
implications of managing the Interstate System. FHWA and State 
Departments of Transportation (``State DOTs'') were concerned that 
without appropriate provisions in place, such a designation could 
present an inordinate administrative burden under the provisions of 
Section 106 of the NHPA and Section 4(f) of the Department of 
Transportation Act (``Section 4(f)''). Section 4(f) prohibits 
transportation agencies from approving a project that uses land from, 
among other things, historic properties unless there is no prudent and 
feasible alternative to using the property and the project includes all 
possible planning to minimize the harm resulting from the use of the 
property.
    FHWA initially worked with an ad hoc task force representing FHWA 
divisions, State DOTs, State Historic Preservation Officers 
(``SHPOs''), the National Register, and the ACHP to develop a strategy 
to address the historic preservation issues. All agreed that a 
nationally coordinated approach was needed. The FHWA, in consultation 
with the ACHP and the National Conference of State Historic 
Preservation Officers (``NCSHPO''), determined that this nationwide 
approach should acknowledge the importance of the Interstate System in 
American history, but also recognize that ongoing maintenance, 
improvements, and upgrades are necessary to allow the system to 
continue to serve the transportation needs of the nation. ACHP and FHWA 
staff developed a draft Programmatic Agreement (``PA''), which was 
circulated for comment among the ad hoc task force members, FHWA 
Divisions, the American Association of State Highway and Transportation 
Officials (``AASHTO''), NCSHPO, and SHPOs. A PA is an alternative that 
Federal agencies can use to better tailor the Section 106 review 
process to their programs and needs. In most cases where there is a 
finding of No Adverse Effect for historic transportation facilities 
under the Section 106 process, the Section 4(f) process is not invoked 
under the Section 4(f) regulations. Accordingly, the PA addressed the 
Section 106 process directly and the Section 4(f) requirements by 
implication.
    Comments received on the draft PA, and the proposed approach, 
varied. Some FHWA divisions and AASHTO objected to the approach taken 
in the PA, primarily due to the statement in that document that the 
entire 46,700 mile long Interstate System would be treated as if 
eligible for inclusion in the National Register. Many FHWA divisions 
were also concerned with the expectation that each State would be 
responsible for identifying sections of the Interstate System within 
that State having national (as opposed to State or local) significance 
and then requiring consideration of such sections under Section 106. 
AASHTO urged FHWA and the ACHP to consider developing an exemption 
instead. ACHP staff met with FHWA in August, 2004, agreed on a revised 
set of principles and concepts for an administrative approach and set 
out to look at the possible use of an exemption. As consultation 
continued,

[[Page 77980]]

an administrative exemption, as authorized by Section 214 of the NHPA, 
was determined to be the most appropriate approach to resolving all 
parties' concerns.

II. Exemption Concept

    The proposed exemption contained herein would release all Federal 
agencies from the Section 106 requirement of having to consider the 
effects of their undertakings on the Interstate System, except for a 
limited number of individual elements associated with the system. The 
exemption embodies the view that the Interstate System is historically 
important, but only certain particularly important components of that 
system, as noted below, warrant consideration under Section 106 of the 
NHPA and would, therefore, be excluded from the exemption.
    Those exclusions would be limited to: (a) Elements that are at 
least 50 years old, possess national significance, and meet the 
National Register eligibility criteria (36 CFR part 63); (b) elements 
that are less than 50 years old, possess national significance, meet 
the National Register eligibility criteria, and are of exceptional 
importance; and (c) elements that were listed in the National Register, 
or determined eligible for the National Register by the Keeper pursuant 
to 36 CFR part 63, prior to the effective date of the exemption. FHWA, 
at the headquarters level, in consultation with stakeholders, would 
make the determination of which elements of the system meet these 
criteria. Additionally, FHWA may exclude historic bridges, tunnels, and 
rest areas of State or local significance, provided they meet the 
National Register eligibility criteria, were constructed prior to 1956, 
and were later incorporated into the Interstate System.
    The exemption concerns only the effects of Federal undertakings on 
the Interstate System and does not alter the Section 106 review 
obligations for other types of historic properties that may be affected 
by an undertaking. Each Federal agency would remain responsible for 
considering the effects of its undertakings on other historic 
properties that are not components of the Interstate System. For 
example, Federal agencies would still have to take appropriate actions 
to identify and consider archaeological sites that may be affected by 
ground disturbing activities, historic properties of religious and 
cultural significance to Indian tribes that may be impacted, and 
historic buildings or districts located within the area of potential 
effect of a proposed Federal undertaking in accordance with subpart B 
of the Section 106 regulations.

III. Exemption Criteria

    Pursuant to 36 CFR 800.14(c)(1), Section 106 exemptions must meet 
certain criteria. Only actions that qualify as undertakings, as defined 
in 36 CFR 800.16, may be considered for exemption, and the exemption 
itself must be consistent with the purposes of NHPA. Furthermore, in 
order to be considered exempted, the potential effects on historic 
properties of those undertakings should be ``foreseeable and likely to 
be minimal or not adverse.'' The ACHP believes that the proposed 
exemption meets these conditions. Federal funding, permits, or 
approvals for actions required for maintenance, alterations, or 
improvements to the Interstate System meet the definition of 
``undertaking.''
    The exemption was originally drafted to cover actions carried out 
under FHWA's Federal-aid program. It was later expanded to ensure that 
other federal actions constituting undertakings affecting interstate 
highway projects were subject to the same requirements as FHWA (e.g., 
issuance of a permit under Section 404 of the Clean Water Act for a 
project on the Interstate System).
    The Interstate System is comprised of 46,700 miles of roadway 
forming a web across the intercontinental United States. The scale of 
this system and its attendant impact to social, commercial, and 
transportation history of the second half of the twentieth century make 
the construction of this system an extremely important event in 
American history. The integrity of the system depends on continuing 
maintenance and upgrades so that it can continue to move traffic 
efficiently across great distances. Actions carried out by Federal 
agencies to maintain or improve the Interstate System will, over time, 
alter various segments of the system, but such changes are considered 
to be minimal or not adverse when viewing the system as a whole. The 
exemption does not apply to certain historically important elements of 
the system. By excluding these elements from the exemption, the ACHP 
and FHWA ensure that the important character-defining features of the 
Interstate System are considered through the normal Section 106 review 
process.

IV. Public Participation

    In accordance with 36 CFR 800.14(c)(2), public participation must 
be arranged on a level commensurate with the subject and scope of the 
exemption. This notice is intended to meet the requirement for public 
participation in the development of this exemption. In developing the 
draft PA and this exemption, the ACHP and FHWA have also consulted 
directly with SHPOs, all FHWA Division, State DOTs, AASHTO, NCSHPO, and 
the National Trust for Historic Preservation.
    Neither the ACHP nor the FHWA have engaged in consultation with 
Indian tribes and Native Hawaiian organizations pursuant to 36 CFR 
800.14(c)(4), since the exemption is limited to effects on the 
Interstate System itself, which does not qualify as a property of 
cultural and religious significance to such tribes and organizations. 
Also, the exemption will not apply on tribal lands.

V. Text of the Exemption

    The full text of the proposed exemption is reproduced below:

Section 106 Exemption Regarding Effects to the Interstate Highway 
System

I. Exemption From Section 106 Requirements

    Except as noted in Sections II and III, all Federal agencies are 
exempt from the Section 106 requirement of taking into account the 
effects of their undertakings on the Interstate Highway System.
    This exemption concerns solely the effects of Federal undertakings 
on the Interstate Highway System. Each Federal agency remains 
responsible for considering the effects of its undertakings on other 
historic properties that are not components of the Interstate Highway 
System (e.g., adjacent historic properties or archaeological sites that 
may lie within undisturbed areas of the right of way) in accordance 
with subpart B of the Section 106 regulations or according to an 
applicable program alternative executed pursuant to 36 CFR 800.14.

II. Process for Designating Individual Elements Requiring Section 106 
Review

    By June 30, 2006, the Federal Highway Administration shall 
designate individual elements of the Interstate System that are to be 
excluded from this exemption. The Federal Highway Administration 
headquarters shall make the designations, following consultation with 
the relevant State Transportation Agencies, Federal Highway 
Administration Divisions, State Historic Preservation Officers, the 
Advisory Council on Historic Preservation, and the public. The Federal 
Highway Administration headquarters may, as needed, consult the Keeper 
of the National Register to resolve questions or

[[Page 77981]]

disagreements about the National Register eligibility of certain 
elements.

III. Individual Elements Excluded From Exemption

    (a) The following elements of the Interstate Highway System shall 
be excluded from the scope of this exemption, and therefore shall 
require Section 106 review:
    (i) Elements that are at least 50 years old, possess national 
significance, and meet the National Register eligibility criteria (36 
CFR part 63), as determined pursuant to Section II;
    (ii) Elements that are less than 50 years old, possess national 
significance, meet the National Register eligibility criteria, and are 
of exceptional importance (and therefore meet criteria consideration G 
for properties that have achieved significance within the last fifty 
years), as determined pursuant to Section II; and
    (iii) Elements that were listed in the National Register, or 
determined eligible for the National Register by the Keeper pursuant to 
36 CFR part 63, prior to the effective date of this exemption.
    (b) The following elements of the Interstate Highway System may be 
excluded from the exemption, at the discretion of the Federal Highway 
Administration: bridges, tunnels, and rest areas that were constructed 
prior to June 30, 1956, were later incorporated into the Interstate 
Highway System, possess State or local significance, and meet the 
National Register eligibility criteria, as determined pursuant to 
Section II.

IV. Interpretation and Commemoration

    The Federal Highway Administration will recognize, interpret, and 
commemorate the public history of the Interstate Highway System as it 
shaped the latter half of the twentieth century. Available for broad 
public use, this effort shall include the completion of a popular 
publication and/or development of a web site providing information and 
educational material about the Interstate Highway System and its role 
in American history.

V. Potential for Termination

    The Advisory Council on Historic Preservation may terminate this 
exemption in accordance with 36 CFR 800.14(c)(7) if it determines that 
the purposes of Section 106 are not being adequately met.

VI. Definitions

    The following definitions shall apply to this exemption:
    (a) ``Section 106'' means Section 106 of the National Historic 
Preservation Act, 16 U.S.C. 470f, and its implementing regulations, 
found under 36 CFR part 800.
    (b) ``Undertaking'' means a project, activity, or program funded in 
whole or in part under the direct or indirect jurisdiction of a Federal 
agency, including those carried out by or on behalf of a Federal 
agency; those carried out with Federal financial assistance; and those 
requiring a Federal permit, license or approval.
    (c) ``Interstate Highway System'' shall be defined as the Dwight D. 
Eisenhower National System of Interstate and Defense Highways as set 
forth in 23 U.S.C. 103(c), that being commonly understood to be the 
facilities within the rights-of-way of those highways carrying the 
official Interstate System shield, including but not limited to the 
road bed, engineering features, bridges, tunnels, rest stops, 
interchanges, off-ramps, and on-ramps.

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

    Dated: December 22, 2004.
John M. Fowler,
Executive Director.
[FR Doc. 04-28483 Filed 12-28-04; 8:45 am]
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