[Federal Register Volume 70, Number 46 (Thursday, March 10, 2005)]
[Notices]
[Pages 11928-11931]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-4739]
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Notices
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains documents other than rules
or proposed rules that are applicable to the public. Notices of hearings
and investigations, committee meetings, agency decisions and rulings,
delegations of authority, filing of petitions and applications and agency
statements of organization and functions are examples of documents
appearing in this section.
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Federal Register / Vol. 70, No. 46 / Thursday, March 10, 2005 /
Notices
[[Page 11928]]
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: Approval of exemption regarding the Interstate Highway System.
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SUMMARY: The Advisory Council on Historic Preservation has approved 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 proposed exemption was
published in the Federal Register on December 29, 2004 with a 30 day
period for public comment. Minor revisions were made in response to
these comments.
DATES: The exemption goes into effect on March 10, 2005.
FOR FURTHER INFORMATION CONTACT: Carol Legard, (202) 606-8522.
SUPPLEMENTARY INFORMATION: Section 106 of the National Historic
Preservation Act, 16 U.S.C. 470f (``Section 106''), requires Federal
agencies to take into account 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.
The National Historic Preservation Act (``NHPA'') authorizes the
ACHP to promulgate regulations for exempting undertakings ``from any or
all of the requirements of'' the Act. 16 U.S.C. 470v. The Section 106
regulations, 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
Since the year 2001, when parts of the Interstate Highway System
were first suggested as potentially eligible for inclusion in the
National Register, the Federal Highway Administration (``FHWA'') has
been considering how best to address the historic preservation
implications of managing the Dwight D. Eisenhower National System of
Interstate and Defense Highways (``Interstate System''). FHWA and State
Departments of Transportation (``State DOTs'') were concerned that
without appropriate provisions in place, such National Register
eligibility determinations 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, 23 U.S.C. 138 and 49 U.S.C.
303 (``Section 4(f)'').
FHWA initially worked with an ad hoc task force of key stakeholders
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 initially developed a draft Programmatic Agreement
(``PA''), but a number of FHWA divisions and the American Association
of State Highway and Transportation Officials (``AASHTO'') objected to
the approach taken in the PA, in part due to the statement in that
document that the entire 46,700 mile long Interstate Highway System
would be treated as if it was eligible for inclusion in the National
Register. Many 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. In light of these concerns, and the passage
of a bill prohibiting FHWA from pursuing the proposed PA, an
administrative exemption was determined to be the most appropriate
approach to resolving all parties' concerns.
The ACHP published the proposed exemption in the Federal Register
for public comment. 69 FR 77979-77981 (December 29, 2004). After
considering all public comments, and making revisions accordingly, the
ACHP approved the final exemption on February 18, 2005. The text of
that final exemption can be found at the end of this notice.
II. Exemption Concept
The final exemption releases all Federal agencies from the Section
106 requirement of having to take into account 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 elements of that system, as noted below,
warrant consideration. Such elements would still be considered under
Section 106. The exemption takes no position on the eligibility of the
Interstate System as a whole.
The Interstate System elements that will still be considered under
Section 106 are limited to certain defined elements, such as historic
bridges, tunnels, and rest areas, that: (a) Are at least 50 years old,
possess national significance, and meet the National Register
eligibility criteria (36 CFR part 63); (b) are less than 50 years old,
possess national significance, meet the National Register eligibility
criteria, and are of exceptional importance; or (c) were listed in the
National Register, or
[[Page 11929]]
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 in each
State, will make the determination of which elements of the system meet
these criteria. Additionally, FHWA may include properties of State or
local significance, so long as they meet the National Register
eligibility criteria, were constructed prior to 1956, and were later
incorporated into the Interstate System.
The exemption requires FHWA to designate, by June 30, 2006,
individual elements of the Interstate System that will continue being
considered under Section 106. That date marks the 50 year anniversary
of the legislation authorizing the system. FHWA Headquarters will be
responsible for completing the necessary consultation and analysis to
identify these elements. Prior to the completion of this study and
publication of the list of designated elements by FHWA headquarters,
FHWA Divisions may assume that an affected section of the Interstate
System is not eligible for inclusion in the National Register unless:
(1) it is already listed, or has been determined eligible for listing,
in the National Register (such a determination would be one done either
by the Keeper of the National Register or through consensus of the FHWA
and the relevant State Historic Preservation Officer (``SHPO'')); or
(2) in FHWA's estimation, it is likely to meet the criteria established
in Section III of the exemption.
The exemption concerns only the effects of Federal undertakings on
the Interstate System. It does not alter the Section 106 review
obligations regarding any non-Interstate System historic properties
that may be affected by an undertaking. Each Federal agency remains
responsible for complying with Section 106 regarding effects of its
undertakings on historic properties that are not components of the
Interstate System. For example, Federal agencies must still comply with
Section 106 regarding archaeological sites that may be affected by
ground disturbing activities and historic properties of religious and
cultural significance to Indian tribes that may be affected.
This exemption supercedes the requirements for review and
consultation contained in any existing Programmatic Agreement executed
pursuant to the Section 106 regulations with regard only to the
consideration of effects to elements of the Interstate System.
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.'' See 36 CFR 800.16(y). The exemption
is also consistent with the purposes of the NHPA. Among other things,
the NHPA establishes as the policy of the Government to ``use measures
* * * to foster conditions under which our modern society and our
prehistoric and historic resources can exist in productive harmony and
fulfill the social, economic, and other requirements of present and
future generations'' and to ``encourage the public and private
preservation and utilization of all usable elements of the Nation's
historic built environment.'' 16 U.S.C. 470-1(1) and (5). By
facilitating the ongoing maintenance, improvements, and upgrades to the
Interstate System that ensure the system can continue being utilized
for its purposes, and providing for consideration of particularly
important, historic elements of the system, the exemption is consistent
with the expressed purposes of the NHPA.
The Interstate System is comprised of approximately 46,700 miles of
roadway forming a web across the intercontinental United States. The
scale of this system and its attendant impact to the 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. While actions
carried out by Federal agencies to maintain or improve the Interstate
System will, over time, alter various segments of the system, such
changes are considered to be ``minimal or not adverse'' when viewing
the system as a whole. Moreover, 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
regarding exemptions must be arranged on a level commensurate with the
subject and scope of the exemption. In order to meet this requirement,
an earlier draft was published for public comment in the Federal
Register on December 29, 2004 (69 FR 77979-77981). The ACHP has worked
closely with FHWA in the development of this exemption and both the
ACHP and FHWA consulted with SHPOs, all FHWA Divisions, 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 historic property
of cultural and religious significance to such tribes and
organizations. Moreover, the exemption will not apply on tribal lands.
V. Response to Public Comment
In response to publication of the draft exemption in the Federal
Register, the ACHP received comments from 33 individuals and
organizations. Of these, 26 expressed support for the proposed
exemption (some offering constructive comments) and five opposed it.
Two others offered comments without expressing either support or
opposition.
Comments in support of the exemption were received from 18 State
DOTs, AASHTO, the American Council of Engineering Companies, the
American Cultural Resource Associates, the American Road and
Transportation Builders Association, NCSHPO, the Society for American
Archaeology, the Western Association of State Highway and
Transportation Officials, and regional staff of the U.S. Forest
Service.
Comments opposing the proposed exemption were received from
regional staff of two Federal agencies (National Park Service and
Federal Wildlife Service), the staff of two SHPOs (from Florida and
Virginia), and two State DOTs (from Virginia and West Virginia).
Objections to the exemption and the ACHP's responses are summarized
below:
1. There was a concern by one comment that the exemption did not
[[Page 11930]]
meet all of the criteria for an exemption. In particular, that reviewer
commented that the proposed exemption failed to meet the criterion that
the effects be ``foreseeable and likely to be minimal or not adverse.''
The reviewer argued that such effects should not be evaluated on the
basis of impacts on the entire 46,700 mile-long Interstate System,
since this was beyond the experiential scale of the property. The ACHP
disagrees. The ACHP recognizes the Interstate System as a
transportation system of exceptional importance based on its scale and
attendant impact to social, commercial, and transportation history in
the United States. The Interstate System has been evolving since its
inception as it has been constructed, expanded, and upgraded to serve
the transportation needs of the nation and, therefore, its integrity
lies in its location, feeling, and association which are rooted in the
connectivity of the system as a whole. Continuing maintenance,
improvements, and upgrades will, by and large, maintain the
characteristics that define the Interstate System. Furthermore, as
already explained above, the exemption (in Section III) allows for the
Section 106 consideration of historically significant elements of the
system. Also, Section III(b) of the exemption allows States and local
governments an opportunity to identify other elements of the system
that have significance at the State or local level that were
constructed prior to 1956 and later incorporated into the Interstate
System.
2. Several parties expressed concern about the process for
designating individual elements requiring Section 106 review. Comments
included statements that the exemption provides insufficient time for
FHWA to complete the work, that a context study should be completed
prior to designating elements to be excluded from the exemption, that a
context and a list of designated elements should be made available to
other Federal agencies, and that the process for SHPO and public
involvement should be detailed in the exemption. A comment also
suggested that FHWA lacks the necessary expertise to identify
individual elements that should be excluded from the exemption.
In response to these comments, the ACHP revised Section II to
require FHWA to publish the list of designated elements on its Web
site, and included the Web site location in the final exemption. FHWA
headquarters is confident that it will be able, with the use of
qualified consultants, to complete the designation of excluded elements
by the June 30, 2006 deadline. A context study for the Interstate
System has already been completed, and FHWA will soon make it available
to the public as part of its obligation under Section IV of the
exemption to recognize, interpret, and commemorate the public historic
of the Interstate System. State DOTs, FHWA Division staff and SHPOs
will be consulted from each State and will be given an opportunity to
identify additional parties (e.g., historic highway organizations) that
should be consulted. FHWA will also consult with the ACHP, the National
Trust for Historic Preservation, and the Keeper of the National
Register in determining which elements should be excluded from the
exemption. The identification of elements will be based on this
consultation and existing information, rather than on a comprehensive
survey of the system, and should be manageable in the time allotted.
The intent of Section II of the exemption is to create a process that
provides a national perspective and consistency in the application of
the criteria. It was also intended to allow FHWA to designate elements
of the system that will require further consideration in a cooperative
and efficient manner, without placing the burden for this analysis on
State DOTs and SHPOs. This effort will be conducted by a qualified
consultant under the supervision of FHWA headquarters staff with
expertise in historic preservation.
3. Concerns were also expressed about the individual elements to be
excluded from the exemption (Section III of the exemption). Some
objected that the exemption does not protect elements of the Interstate
System of State or local significance, except for those already listed
or determined eligible by the Keeper of the National Register. Concerns
were also expressed about the protection of historic landscapes,
viewsheds, and pristine segments of the Interstate System. Issues
regarding protecting elements of State or local significance are
addressed in the response to the first concern listed above.
In developing Section III of the exemption, the goal was to focus
review and consultation on a limited number of important elements of
the system, and thus freeing up FHWA and State DOTs from the burden of
documenting and evaluating segments of Interstate highways in their
State that lack distinction. In developing this exemption, FHWA and the
ACHP agreed that the designation of excluded elements would not be
restricted to bridges, tunnels, and rest stops. Rather, significant
designed landscapes that include Interstate Highways, even those less
than 50 years old but of exceptional significance, might be included on
the list. Moreover, viewsheds will be considered under Section 106
where they relate to another historic property affected by the
undertaking, such as a National Register eligible traditional cultural
property, or a historic district, but Federal agencies will not need to
consider the viewshed as it relates to the historic values of the
Interstate System itself, except where the relevant element of the
system has been designated for exclusion under Section II.
Another comment offered a different perspective on this issue,
expressing concern that the excluded elements are likely to be
designated National Historic Landmarks (NHLs), thus adding an
additional layer of process beyond that afforded most National Register
properties. Neither the ACHP nor FHWA propose to nominate any of the
designated properties as NHLs, nor has such a designation been proposed
by any other party consulted in the development of this exemption.
There is no ``added'' layer of review or separate review process
required for NHLs or properties of national significance. The already
existing requirements regarding NHLs, in Section 110(f) of the NHPA, 16
U.S.C. 470h-2(f), and Section 800.10 of the Section 106 regulations,
remain the same.
4. Based on the comments received, it became clear that several
reviewers read Section III of the proposed exemption to limit
exclusions to bridges, tunnels, and rest areas. As noted above, this
was not the ACHP's intent. To correct this, Section III(b) of the
exemption has been revised to clarify that certain elements, ``such
as'' bridges, tunnels, and rest areas, may be excluded from the
exemption, but that the exclusions will not necessarily be limited to
those three types of features or properties.
5. Finally, concerns were expressed about the longevity of the
exemption. Several parties recommended that the exemption provide for
the periodic review and update of the list of individual elements
excluded from the exemption or for periodic review of implementation of
the exemption by federal agencies. A specific provision for monitoring
or periodic review has not been included. Certainly, the ACHP will need
to periodically consider the effectiveness of the exemption and whether
it continues to meet the purposes of Section 106, and the ACHP has the
unilateral authority to terminate the exemption if it finds that it
does not meet those purposes. Two comments recommended that ACHP not be
able to unilaterally terminate the exemption. However, the Section 106
regulations
[[Page 11931]]
are clear regarding this matter: ``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.'' 36 CFR 800.14(c)(7). The ACHP would not,
however, terminate the exemption without first consulting FHWA.
VI. Text of the Exemption
The full text of the final 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. FHWA will publish the list of such
designated elements on its Web site (http://environment.fhwa.dot.gov/histpres/index.htm). 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 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: Elements such as bridges, tunnels, and rest areas so
long as they 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: March 7, 2005.
Don Klima,
Acting Executive Director.
[FR Doc. 05-4739 Filed 3-9-05; 8:45 am]
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