[Federal Register Volume 75, Number 14 (Friday, January 22, 2010)]
[Notices]
[Pages 3746-3750]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-1023]


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ADVISORY COUNCIL ON HISTORIC PRESERVATION


Draft Program Comment for the Department of the Navy for the 
Disposition of Historic Vessels

AGENCY: Advisory Council on Historic Preservation.

ACTION: Notice of Intent to issue program comments for the Department 
of the Navy for the disposition of historic vessels.

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SUMMARY: The Advisory Council on Historic Preservation is considering 
issuing a Program Comment for the Department of the Navy setting forth 
the way in which it will comply with Section 106 of the National 
Historic Preservation Act with regard to the determination of National 
Register of Historic Places eligibility of its vessels and the 
treatment of adverse effects that may result from their disposition.

DATES: Submit comments on or before February 12, 2010.

ADDRESSES: Address all comments concerning this proposed Program 
Comment to Dr. Tom McCulloch, Office of Federal Agency Programs, 
Advisory Council on Historic Preservation, 1100 Pennsylvania Avenue, 
NW., Suite 803, Washington, DC 20004. Fax (202) 606-8647. You may 
submit electronic comments to: [email protected].

FOR FURTHER INFORMATION CONTACT: Dr. Tom McCulloch, (202) 606-8554, 
[email protected].

SUPPLEMENTARY INFORMATION: Section 106 of the National Historic 
Preservation Act requires Federal agencies to consider the effects of 
their undertakings on historic properties and to provide the Advisory 
Council on

[[Page 3747]]

Historic Preservation (ACHP) a reasonable opportunity to comment with 
regard to such undertakings. The ACHP has issued the regulations that 
set forth the process through which Federal agencies comply with these 
duties. Those regulations are codified under 36 CFR part 800 (Section 
106 regulations).
    Under Section 800.14(e) of those regulations, agencies can request 
the ACHP to provide a ``Program Comment'' on a particular category of 
undertakings in lieu of conducting individual reviews of each 
individual undertaking under such category, as set forth in 36 CFR 
800.4 through 800.7. An agency can meet its Section 106 
responsibilities with regard to the effects of particular aspects of 
those undertakings by taking into account ACHP's Program Comment and 
following the steps set forth in that comment.

I. Background

    The ACHP is now considering issuing a Program Comment to the 
Department of the Navy (Navy) that would set forth the way in which it 
will comply with Section 106 of the National Historic Preservation Act 
with regard to the determination of National Register of Historic 
Places (National Register) eligibility of its vessels and the treatment 
of adverse effects that may result from their disposition.
    As explained in the Program Comment itself, naval vessels are the 
ships and service craft built by and for the Navy, used in furthering 
the Navy's military mission, and listed in the Naval Vessel Register 
(NVR). Naval vessels are an unusual type of historic property. They are 
mobile assets that are put into harm's way and remain in active service 
for typically less than fifty years. Because naval vessels have a 
limited useful life, the Chief of Naval Operations undertakes a Ship 
Disposition Review (SDR) each year to determine whether any vessels 
should be decommissioned from active service. The total number of 
vessels to be decommissioned varies from year to year, but currently 
averages eight per year.
    Upon the decommissioning of a vessel, the Secretary of the Navy is 
authorized to strike the vessel from the NVR. By the authority of the 
Secretary of the Navy, stricken Navy vessels may be: (1) Sold; (2) 
dismantled; (3) transferred, by gift or otherwise, to any State, 
Commonwealth, or possession of the U.S., the District of Columbia, or 
non-profit entity; (4) used for experimental purposes, including Navy 
sink exercises (SINKEXes); (5) transferred, by gift or otherwise, to 
any State, Commonwealth or possession of the U.S. for use as an 
artificial reef; or (6) disposed to a foreign nation by sale, lease, 
grant, loan, barter, transfer or otherwise. These six methods of final 
disposition, which are ``undertakings'' under Section 106, are 
available to the Navy because it is neither cost effective nor 
consistent with the Navy's mission to retain vessels that have 
surpassed their useful life.
    Under the Program Comment, the Navy would apply the National 
Register criteria to vessels in active service and decommissioned 
vessels. That process would include input from the public and various 
historic preservation stakeholders. The Program Comment would establish 
a type of treatment that would begin immediately from the time a vessel 
is determined eligible, and thus, well before a Navy decision to 
dispose of the vessel. Finally, the Program Comment would clarify that 
the Navy will not need to conduct Section 106 reviews regarding effects 
to active vessels.
    Once the public comments resulting from this notice are considered, 
and edits are incorporated as deemed appropriate, the ACHP will decide 
whether to issue the Program Comment. The ACHP expects to make that 
decision at its upcoming quarterly meeting currently scheduled on 
February 24, 2010 in Washington, DC, or shortly thereafter.

II. Text of the Proposed Program Comment

    The following is the text of the proposed Program Comment, without 
the Guideline appendices: PROGRAM COMMENT PURSUANT TO 36 CFR 800.14(e) 
IMPLEMENTING SECTION 106 OF THE NATIONAL HISTORIC PRESERVATION ACT FOR 
THE EVALUATION OF VESSELS FOR ELIGIBILITY FOR LISTING IN THE NATIONAL 
REGISTER OF HISTORIC PLACES AND THE TREATMENT OF ELIGIBLE VESSELS TO 
RESOLVE ADVERSE EFFECTS THAT MAY RESULT FROM CERTAIN METHODS OF FINAL 
DISPOSITION.

I. Introduction

    Section 106 of the National Historic Preservation Act (NHPA) 
requires Federal agencies to ``take into account the effect of [an] 
undertaking on any . . . structure . . . eligible for inclusion in 
the National Register'' and to ``afford the Advisory Council on 
Historic Preservation . . . a reasonable opportunity to comment with 
regard to such undertaking.'' Regulations promulgated by the 
Advisory Council on Historic Preservation (ACHP) and codified at 36 
C.F.R. Part 800 describe the procedures Federal agencies must follow 
to meet their Section 106 obligations. Under 36 C.F.R. Sec.  800.14, 
the ACHP provides Federal agencies with ``a variety of alternative 
methods . . . to meet their Section 106 obligations,'' thereby 
allowing agencies ``to tailor the Section 106 process to their 
needs'' (65 FR 77698-01)
    The following Program Comment was proposed by the Navy, and 
issued by the ACHP on (date to be determined), pursuant to 36 C.F.R. 
Sec.  800.14(e). The Program Comment benefits the Navy and the 
historic preservation stakeholders by providing the Navy with a 
process for evaluating vessels to determine eligibility for listing 
in the National Register of Historic Places (NRHP) for Section 106 
and Section 110 purposes. The Program Comment also provides a 
Section 106 method of treatment of eligible vessels to resolve 
adverse effects that result from certain methods of final 
disposition. The Program Comment will enable Navy decision-makers to 
apply the eligibility criteria as defined by the National Park 
Service (NPS) at 36 C.F.R. Part 60 to vessels in active service and 
decommissioned vessels. Furthermore, the Program Comment will give 
the public and various historic preservation stakeholders 
opportunities to provide input regarding a vessel's eligibility for 
listing in the NRHP. The Program Comment will establish a type of 
treatment (i.e., collecting documentation in accordance with Section 
IV of this Program) that will begin immediately from the time a 
vessel is determined eligible, and thus, well before a Navy decision 
to dispose of the vessel. Finally, the Program Comment will clarify 
that the Navy will not need to conduct Section 106 reviews regarding 
effects to active vessels.
    By implementing the Program Comment, the Navy will no longer be 
required to follow the standard Section 106 process for each final 
disposition decision affecting inactive vessels. In addition to 
satisfying the Navy's obligations under Section 106 of the NHPA for 
vessels, the Program Comment enables the Navy to fulfill its 
responsibility under Section 110 of the NHPA to manage and maintain 
vessels that may be eligible for listing in the NRHP in a way that 
considers the preservation of their historic value.

II. Background

    Naval vessels are the ships and service craft built by and for 
the Navy, used in furthering the Navy's military mission, and listed 
in the Naval Vessel Register (NVR). Naval vessels are an unusual 
type of historic property. They are mobile assets that are put into 
harm's way and remain in active service for typically less than 
fifty years. Because naval vessels have a limited useful life, the 
Chief of Naval Operations undertakes a Ship Disposition Review (SDR) 
each year to determine whether any vessels should be decommissioned 
from active service. The total number of vessels to be 
decommissioned varies from year to year, but currently averages 
eight per year. Upon the decommissioning of a vessel, the Secretary 
of the Navy is authorized, under 10 U.S.C. Sec.  7304, to strike the 
vessel from the NVR. By the authority of the Secretary of the Navy 
under 10 U.S.C. Sec.  7305-7307, stricken Navy vessels may be: 1) 
sold; 2) dismantled; 3) transferred, by gift or otherwise, to any 
State, Commonwealth, or possession of the U.S.,

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the District of Columbia, or non-profit entity; 4) used for 
experimental purposes, including Navy sink exercises (SINKEXes); 5) 
transferred, by gift or otherwise, to any State, Commonwealth or 
possession of the U.S. for use as an artificial reef; or 6) disposed 
to a foreign nation by sale, lease, grant, loan, barter, transfer or 
otherwise. These six methods of final disposition, which are 
``undertakings'' as defined by 36 C.F.R. Sec.  800.16(y), are 
available to the Navy because it is neither cost effective nor 
consistent with the Navy's mission to retain vessels that have 
surpassed their useful life.

III. Determining Eligibility for Listing in the NRHP

A. Criteria

    The Secretary of the Interior, through the NPS, established four 
criteria pursuant to its authority under the NHPA for determining 
whether property is eligible for listing in the NRHP. The four 
evaluation criteria are codified at 36 C.F.R. Sec.  60.4 and listed 
below. The Navy is required to evaluate vessels for eligibility for 
listing in the NRHP using the four evaluation criteria:
    i. are associated with events that have made a significant 
contribution to the broad patterns of our history;
    ii. are associated with the lives of persons significant in our 
past;
    iii. embody the distinctive characteristics of a type, period, 
or method of construction; or
    iv. have yielded, or may be likely to yield, information 
important in prehistory or history.
    Navy vessels that meet one or more of these criteria, and that 
continue to possess integrity of (as appropriate) design, materials, 
workmanship, feeling and/or association are eligible for listing in 
the NRHP.
    Recognizing that vessels have a limited useful life of typically 
less than fifty years, the Navy has determined that, for Section 106 
and Section 110 purposes, vessels possessing any of the following 
characteristics at any time, including during active service, are of 
exceptional importance and meet the listing eligibility criteria 
established by the NPS and codified at 36 C.F.R. Sec.  60.4:
    i. The vessel was awarded an individual Presidential Unit 
Citation. (A Presidential Unit Citation is awarded to military units 
that have performed an extremely meritorious or heroic act, usually 
in the face of an armed enemy.)
    ii. An individual act of heroism took place aboard the vessel 
such that an individual was subsequently awarded the Medal of Honor 
or the Navy Cross. (The Medal of Honor is awarded for valor in 
action against an enemy force. The Navy Cross is awarded for 
extraordinary heroism in action not justifying an award of the Medal 
of Honor.)
    iii. A President of the United States was assigned to the vessel 
during his or her naval service.
    iv. The vessel was the first to incorporate engineering, weapons 
systems, or other upgrades that represent a revolutionary change in 
naval design or warfighting capabilities, or other special and 
unique considerations.
    v. Some other historic or socially significant event occurred on 
the vessel.

B. Process

    Each year, qualified Navy historians with knowledge about Navy 
vessels will review each vessel in active service to determine 
which, if any, possess any of the characteristics described above, 
and integrity, and therefore, will be determined eligible for 
listing in the NRHP.
    Upon decommissioning, those vessels that have not already been 
determined eligible for listing in the NRHP will be evaluated by 
qualified Navy historians with knowledge about Navy vessels in 
accordance with the listing eligibility criteria established by the 
NPS, including whether the vessels possess integrity, and informed 
by the above, and thus, prior to making any final disposition 
decision with the potential to adversely affect historic property.
    Depending on the availability of funds, the Navy may also 
develop type-specific context studies to determine NRHP listing 
eligibility of classes of vessels. Context studies shall be 
consistent with the eligibility criteria noted above and with the 
NPS publications ``How to Apply the National Register Criteria for 
Evaluation,'' ``How to Complete the National Register Multiple 
Property Documentation Form,'' and ``Nominating Historic Vessels and 
Shipwrecks to the National Register of Historic Places.'' Vessels 
will be analyzed by class and the appropriate historic preservation 
stakeholders will be consulted on appropriate application of the 
National Register criteria. In the event that context studies are 
developed, they will be made available to the public in accordance 
with Section IV of this Program.

C. Participation by Historic Preservation Stakeholders

    The Navy encourages historic preservation stakeholders, 
including but not limited to the ACHP, the NPS, State Historic 
Preservation Officers (SHPO), the National Conference of State 
Historic Preservation Officers (NCSHPO), the National Trust for 
Historic Preservation (National Trust), and the public to 
participate in the process for determining whether a vessel meets 
the eligibility criteria for listing in the NRHP. Through its 
existing public outreach programs the Navy will invite the public 
and historic preservation stakeholders to provide written comments 
and justification that support determining a vessel eligible for 
listing in the NRHP.
    After the annual SDR, the Navy provides a list of vessels 
planned to be decommissioned over the next five years in a Report to 
Congress on the Annual Long-Range Plan for Construction of Naval 
Vessels. Subsequent to the release of the annual report to Congress, 
the Navy will provide statements of eligibility or ineligibility for 
listing in the NRHP on its website for those vessels to be 
decommissioned in the forthcoming year. The Navy will then solicit 
written comments on those statements of eligibility or ineligibility 
for listing in the NRHP from historic preservation stakeholders via 
its website. Historic preservation stakeholders will have sixty days 
from the time of publication of the list of vessels to be 
decommissioned to provide their comments. The Navy will notify 
historic preservation stakeholders, including the Historic Naval 
Ships Association (HNSA) and other Veterans-affiliated 
organizations, of the beginning of the sixty-day period. All written 
comments should be mailed to the Naval History and Heritage Command 
(NHHC) or submitted electronically via the NHHC's website. The Navy 
will consider all written comments received before making a final 
determination as to whether a vessel is eligible for listing in the 
NRHP. If the Navy determines no question exists as to whether a 
vessel is eligible for listing in the NRHP, then the Navy will 
publish its final determination of listing eligibility for each 
vessel on its website. If the Navy determines that a question exists 
as to whether a vessel is eligible for listing in the NRHP, or if 
the ACHP or the Secretary of the Interior so request, the Navy will 
seek a formal determination of eligibility from the Keeper. Upon 
review, the Keeper's determination of listing eligibility shall be 
final.
    An historic preservation stakeholder may also comment on a 
vessel's eligibility or ineligibility for listing in the NRHP in 
writing while the vessel is in active service. These comments should 
be mailed to the NHHC or submitted electronically via the NHHC's 
website. The NHHC will acknowledge receipt of the comments in 
writing, and retain the comments for consideration when preparing 
the statement of eligibility or ineligibility for the vessel prior 
to the vessel's scheduled decommissioning.

D. Effect of Eligibility Determination on Active Vessels

    A determination that a vessel in active service is eligible for 
listing in the NRHP shall not affect the vessel's availability for 
routine operations, combat operations, and modernization to keep the 
vessel battle-worthy, safe, and habitable, as required by the Navy's 
military mission. Specifically, the Navy shall employ, deploy, 
activate, inactivate, repair, modify, move and decommission such 
vessels without regard to their eligibility and without needing to 
consider effects to them under Section 106 of the NHPA.

IV. Treatment of Vessels Determined to be Eligible for Listing in the 
NRHP

    The Navy will take the following steps regarding vessels 
determined to be eligible for listing in the NRHP during active 
service or upon decommissioning:
    i. Annotate the vessel's entry in the NVR to reflect listing 
eligibility and include the basis for eligibility (the public can 
access the NVR at http://www.nvr.navy.mil); and
    ii. Make available a documentation package consisting of 
historically significant records such as command operation reports, 
war diaries, and deck logs, as they are submitted (the public would 
be able to access the documentation package at the NHHC; 
unclassified command operation reports will be available at http://www.history.navy.mil).
    The Navy will also strongly consider making the vessel available 
for donation only upon decommissioning and striking from the NVR 
pursuant to 10 U.S.C. Sec.  7306 for up to two years unless:
    i. The vessel is designated for Foreign Military Sales (FMS) 
transfer;

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    ii. There are other Navy requirements for its continued use;
    iii. The material condition of the vessel precludes donation;
    iv. National security or other restrictions preclude donation; 
or
    v. The vessel is nuclear powered. (Additional coordination with 
the Director, Naval Nuclear Propulsion Program is required to 
determine donation feasibility.)
    The Navy's Ship Donation Program is described at http://peoships.crane.navy.mil/donation/. Donation application requirements 
include submission of acceptable curatorial/museum and maintenance 
plans among other plans for the preservation of the vessel in a 
condition satisfactory to the Secretary of the Navy. If a qualified 
donee is not identified within two years, the Navy may remove the 
vessel from donation hold status and proceed with another method of 
final disposition. Contracts between the Navy and qualified donees 
include provisions that address historic preservation of the vessel.
    The Navy will publish a list of vessels available for donation 
in the Federal Register and at http://peoships.crane.navy.mil/donation/. The list will include any NRHP eligible vessel initially 
precluded from donation that, due to a change in status, becomes 
available for donation.
    The Navy will take the following steps regarding decommissioned 
vessels determined eligible for listing in the NRHP before final 
disposition by a method other than donation:
    i. Give priority to compiling histories of these eligible 
vessels when preparing entries in the Dictionary of American Naval 
Fighting Ships;
    ii. Retain and, depending on classification, provide public 
access to historical documentation from NRHP eligible vessels such 
as command operation reports, war diaries, and ship deck logs at the 
NHHC (deck logs that are more than thirty years old are transferred 
to the National Archives and Records Administration (NARA) for 
pemanent retention);
    iii. In addition to the standard curator items removed from the 
vessel upon decommissioning in accordance with required Navy policy, 
including citations, correspondence of significant historical value, 
ship histories, paintings, ship silver services, and photographs 
selected to best display the physical characteristics of the vessel, 
the Navy would make the vessel available to the Navy Curator and 
eligible non-profit organizations for removal of additional 
equipment, parts of the vessel, etc. that contribute to the 
historical significance of the vessel. Items removed by the Navy 
Curator will be maintained and considered for loan to qualified U.S. 
non-profit organizations in accordance with 10 U.S.C. Sec.  2572, 
4575; and
    iv. Within three years of designating a NRHP-eligible vessel for 
final disposition, deposit with the NARA documentation consisting of 
archivally stable media of the following items:
    a. A Booklet of General Plans; and
    b. The last report of the Board of Inspection and Survey 
describing the material condition of the vessel.
    Note that accessibility to the public will depend on the 
document's classification and NARA policies.

V. Reports

    The Navy will submit an annual report to the NCSHPO and the ACHP 
on the progress of this Program Comment on 1 December, annually. The 
report will include the following information:
    i. The names and status of active vessels identified as eligible 
for listing in the NRHP, and the basis for their eligibility;
    ii. The names and status of decommissioned vessels identified as 
eligible for listing in the NRHP, and a copy of the statement of 
eligibility;
    iii. The names and status of decommissioned vessels identified 
as ineligible for listing in the NRHP, and a copy of the statement 
of ineligibility; and
    iv. The names of the vessels eligible for listing in the NRHP 
whose final disposition occurred during the reporting period, along 
with the status of the documentation supporting final disposition.
    The annual report will also be made available to the public on 
the Navy's donation website.

VI. Effect of the Program Comment

    By following this Program Comment, the Navy will meet its 
responsibilities for compliance with Section 110, in part, and 
Section 106 of the NHPA concerning the evaluation of vessels for 
eligibility for listing in the NRHP and the final disposition of 
eligible vessels. Accordingly, the Navy will no longer be required 
to follow the standard Section 106 process for each final 
disposition decision affecting inactive vessels, except as provided 
in this Program Comment.
    Vessels already determined eligible for listing in the NRHP that 
are not subject to an existing agreement established through the 
Section 106 consultation process will be subject to this Program 
Comment as if their eligibility had been established as a result of 
this Program Comment. Vessels that are the subject of an existing 
agreement established pursuant to the Section 106 regulations will 
continue to be subject to that existing agreement.
    The Program Comment described herein will remain in effect for 
twenty years, unless and until the Navy decides to terminate its 
application or the ACHP ``determines that the consideration of 
historic [vessels] is not being carried out in a manner consistent 
with the program comment'' and withdraws the comment. (36 C.F.R. 
Sec.  800.14(e) (6)).
    Upon either event, the Navy shall comply with the requirements 
of 36 C.F.R. Part 800 for each undertaking within the scope of this 
Program Comment. The Navy shall inform historic preservation 
stakeholders of the Program Comment's termination.
    The Navy shall reexamine the Program Comment's effectiveness 
after the first year of implementation and every five years 
thereafter within the context of its annual report or by convening a 
meeting with historic preservation stakeholders. In reexamining the 
Program Comment's effectiveness, the Navy shall consider any written 
recommendations for improvement submitted by historic preservation 
stakeholders to the NHHC.
    Once in effect, the Program Comment may be amended when such an 
amendment is agreed to in writing by the Navy and the ACHP. The 
amendment will be effective on the date a copy of the amended 
Program Comment signed by the Navy and the ACHP is filed with the 
ACHP.

Appendix A

Definitions

    a. Command Operation Report, formerly Command History Report 
means a report that covers the operational and administrative 
actions of the command for each calendar year and usually consists 
of a chronology, a narrative, and enclosures. Some Command Operation 
Reports are classified for a set period of time.
    b. Decommission means to remove a vessel from active service.
    c. Documentation package means a compilation of historically 
significant records including, but not limited to, command operation 
reports, war diaries, and deck logs.
    d. Effect means alteration to the characteristics of a historic 
property qualifying it for inclusion in or eligibility for the 
National Register.
    e. Historic Preservation Stakeholder means the ACHP, the NPS, 
SHPOs, NCSHPO, the National Trust, any other agency or organization 
specifically concerned with historic preservation issues, and the 
public.
    f. Naval Vessel Register means the official inventory of ships 
and service craft titled to or in the custody of the U.S. Navy. It 
includes information about vessels from the time of their 
authorization through their life cycle and final disposition.
    g. Ship deck log means a daily chronology of particular events 
for administrative and legal purposes, as set forth by the Office of 
the Chief of Naval Operations Instruction 3100.7 series.
    h. Ship disposition review means an annual review of vessels in 
active service conducted by the Chief of Naval Operations to 
determine which vessels will be decommissioned from active service 
and retained for potential reactivation or stricken from the Naval 
Vessel Register and designated for disposal.
    i. Stricken vessel means a decommissioned vessel that has been 
removed from the Naval Vessel Register.
    j. 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.
    k. Vessel means the ships and service craft built by and for the 
Navy, used in furthering the Navy's military mission, and listed in 
the Naval Vessel Register. Vessel does not include those vessels 
retained in Navy custody for public display (i.e., USS CONSTITUTION, 
NAUTILUS (SSN 571), ex-BARRY (DD 933)).
    1. War diary means a ship's recounting of wartime operations. 
Some war diaries are written in a cursory fashion. Others are works 
of literary art. War diaries for combat actions are included with 
the Command Operations Report.


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    Authority:  36 CFR 800.14(e).

    Dated: January 14, 2010.
John M. Fowler,
Executive Director.
[FR Doc. 2010-1023 Filed 1-21-10; 8:45 am]
BILLING CODE 4310-K6-M