[Federal Register Volume 75, Number 49 (Monday, March 15, 2010)]
[Notices]
[Pages 12245-12249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5373]


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ADVISORY COUNCIL ON HISTORIC PRESERVATION


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

AGENCY: Advisory Council on Historic Preservation.

ACTION: Notice of Issuance of 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 has issued 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: The Program Comment was issued, and went into effect, on March 
5, 2010.

ADDRESSES: Address any questions concerning this 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 address questions 
through electronic mail 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 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

[[Page 12246]]

and following the steps set forth in that comment.

I. Background

    On March 5, 2010, the ACHP issued a Program Comment to the 
Department of the Navy (Navy) that sets 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.
    On January 22, 2010 the ACHP published in the Federal Register its 
``Notice of Intent to Issue Program Comments for the Department of the 
Navy for the Disposition of Historic Vessels.'' Please refer to that 
notice for additional background on the Program Comment (75 FR 3746-
3750).
    The ACHP also notified via e-mail State and Tribal Historic 
Preservation Officers, Indian tribes and Native Hawaiian Organizations, 
and other preservation partners of its intent and provided them with 
the Federal Register notice.
    A total of 6 comments were received by the end of the comment 
period on February 12. Most of the comments centered on the need to 
keep the SHPOs better informed regarding the Navy's statements of 
eligibility or noneligibility of the vessels to be decommissioned in 
the following year and when the Navy would strike those historic 
vessels from the Naval Vessel Register and dispose of them.
    Other comments asked for clarification of various issues, such as 
whether the applicability of the program comment is limited to floating 
vessels (it is) and whether the program comment would preclude the 
disposition of vessels for recycling (it does not).
    After the close of the comment period, the ACHP staff met with 
their Navy counterparts to address the comments and make edits as 
appropriate. The issued version of the Program Comment, reproduced 
below, reflects such edits.

II. Final Text of the Program Comment

    The following is the text of issued Program Comment:
    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 (NHP) 
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 CFR Part 800 describe 
the procedures Federal agencies must follow to meet their Section 106 
obligations. Under 36 CFR 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 CFR 800.14(e). 
The Program Comment benefits the Navy and the historic preservation 
stakeholders by providing the Navy with a process for evaluating 
floating 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 CFR 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. 7304, to strike the vessel from the NVR. By 
the authority of the Secretary of the Navy under 10 U.S.C. 5 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., 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 CFR 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 CFR 60.4 and listed below. The 
Navy is required to evaluate vessels for eligibility for listing in the 
NRHP using the four evaluation criteria:

[[Page 12247]]

    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 CFR 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 Stakeholder

    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 to the NCSHPO, as well as place them on its Web site 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 Web site. 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 Web site. 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 Web site. 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 Web site. 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

[[Page 12248]]

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. 7306 for up to two years unless:
    i. The vessel is designated for Foreign Military sales (FMS) 
transfer;
    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 the historic preservation of the 
vessel. As part of its Section 106 responsibilities, the Navy provides 
these contractual provisions to each appropriate SHPO for comment 
before finalizing the contract.
    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 permanent 
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. 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 NARZ' policies.

V. Reports

    The Navy will submit an annual report to the NCSHPQ 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 Web site.

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 CFR 800.14(e)(6).) 
Upon either event, the Navy shall comply with the requirements of 36 
CFR 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.

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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 EQ-I?, t1ie NP, 
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 floating 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 
shipwrecks or 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.

    Authority: 36 CFR 800.14(e)

    Dated: March 8, 2010.
John M. Fowler,
Executive Director.

[FR Doc. 2010-5373 Filed 3-12-10; 8:45 am]
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