[Federal Register Volume 75, Number 199 (Friday, October 15, 2010)]
[Proposed Rules]
[Pages 63428-63431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-25853]



National Park Service

36 CFR Part 67

RIN 1024-AD65

Historic Preservation Certifications for Federal Income Tax 

AGENCY: National Park Service, Interior.

ACTION: Proposed rule.


SUMMARY: The National Park Service (NPS) proposes to amend its 
procedures for obtaining historic preservation certifications for 
rehabilitation of historic structures. Individuals and corporations 
must obtain these certifications to be eligible for tax credits from 
the Internal Revenue Service (IRS). This rule: Incorporates references 
to the revised sections of the Internal Revenue Code containing the 
requirements for obtaining a tax credit; replaces references to NPS's 
regional offices with references to its Washington Area Service Office 
(WASO); requires NPS to accept appeals for denial of certain 
certifications; and removes the certification fee schedule from the 
regulation. These latter two revisions provide an additional avenue for 
appeals and allow NPS to update fees by publishing a notice in the 
Federal Register as administrative costs change.

DATES: Comments must be received by December 14, 2010.

ADDRESSES: You may submit comments, identified by the number 1024-AD65, 
by any of the following methods:

--Federal rulemaking portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
--Mail: National Park Service, Attn. Michael J. Auer, 1849 C Street, 
NW. (org. code 2255), Washington, DC 20240.

    All submissions must include the agency name and the number 1024-
AD65. We will post all comments without change to http://www.regulations.gov, including any personal information provided. For 
additional information, see ``Public Participation'' under 

Service, 1849 C Street, NW. (org. code 2255), Washington, DC 20240; 
[email protected]; fax: 202-371-1616.



    Section 47 of Title 26 of the United States Code (the Internal 

[[Page 63429]]

Code), formerly Section 48(g), authorizes tax credits for qualified 
expenditures of funds for ``certified rehabilitation'' of ``certified 
historic structures.'' This section of the Internal Revenue Code 
designates the Secretary of the Interior as the authority for review of 
applications for certifications to verify: (a) That buildings 
undergoing rehabilitation are ``certified historic structures,'' and 
(b) that the rehabilitation preserves the overall historic character of 
the buildings, and therefore is a ``certified rehabilitation.''
    These approvals take the form of notifications or 
``certifications'' by the Secretary of the Interior to the Secretary of 
the Treasury. In addition, section 170(h) of the Internal Revenue Code 
allows a Federal income tax deduction for the donation of interests in 
qualified real property for conservation purposes.
    Section 170(h) also designates the Secretary of the Interior as the 
authority who receives applications and issues certifications verifying 
to the Secretary of the Treasury that the building or buildings 
contribute to the significance of a historic district.
    The proposed rule accomplishes four objectives. First, it removes 
outdated references to the Internal Revenue Code. Second, the proposed 
rule deletes references to the regional offices and substitutes the NPS 
Washington office in their place. In 1995, the review authority on 
applications for historic preservation certifications was moved from 
the NPS regional offices to the Washington office. Third, it lifts the 
prohibition on appeals from the denial of preliminary certification for 
rehabilitation of a property that is not a certified historic 
structure. Removing this prohibition from the language of Sec.  
67.10(b) brings the proposed rule into conformity with longstanding 
agency practice, which has been to grant administrative review in such 
    Fourth, the proposed rule removes the certification fee schedule 
from the regulation. In 1984, NPS began charging fees for processing 
and reviewing tax incentives applications. This proposed rule removes 
the fee schedule from Sec.  67.11 and all other specific provisions 
regarding the charging of fees from the regulations, and incorporates 
an explanation of the method by which we will determine the kind and 
amount of review fees to be charged in the future. We will provide 
public notice of all fee changes. Until a revised means of determining 
fees is decided upon, approved, and published, the 1984 fee schedule 
will remain in effect.

Compliance With Other Laws, Executive Orders, and Department Policies

Regulatory Planning and Review (Executive Order 12866)

    The Office of Management and Budget has determined that this 
document is not a significant rule. We have made the assessments 
required by E.O. 12866 and the results are available as a supporting 
document with the proposed rule at http://www.regulations.gov.
    (1) The results of the NPS cost/benefit analysis are that this rule 
will not have an effect of $100 million or more on the economy. It will 
not adversely affect in a material way the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or Tribal governments or communities.
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency. It is an 
agency-specific rule. No other Federal agency designates ``certified 
historic structures'' or ``certified rehabilitations'' for Federal 
income tax incentives.
    (3) This rule does not alter the budgetary effects of entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients. This rule updates statutory authority, deletes 
references to regional offices and substitutes the NPS Washington 
office in their place, authorizes additional administrative appeals, 
and removes from the text of the regulations the fee dollar amounts and 
specific instructions for charging fees.
    (4) This rule does not raise novel legal or policy issues.

Regulatory Flexibility Act (RFA)

    The Department of the Interior certifies that this document will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act, (5 U.S.C. 601 et seq.).
    The NPS threshold analysis as part of the NPS cost-benefit analysis 
concluded the proposed rule would generate positive benefits for all 
affected businesses with no negative impacts.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    (1) Does not have an annual effect on the economy of $100 million 
or more. The rule merely updates statutory authority, revises 
references to NPS offices, authorizes additional administrative 
appeals, and deletes specific dollar amount of application review 
fees--changes that the Office of Management and Budget (OMB) has 
determined are purely technical in nature.
    (2) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions. The rule does not impose any new 
requirements on building owners undertaking building rehabilitations.
    (3) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises. OMB 
has determined that the changes proposed in the rule are purely 
technical. Moreover, the tax incentives program involves purely 
domestic buildings and entities.

Unfunded Mandates Reform Act (UMRA)

    This rule does not impose an unfunded mandate on State, local, or 
Tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local or Tribal governments or the private sector.
    Although State Historic Preservation Offices receive applications 
for the Federal tax incentives and forward them to the NPS, with a 
recommendation, State participation in this program is funded through 
the Historic Preservation Fund administered by the NPS.

Takings (Executive Order 12630)

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. Application for the Federal historic 
preservation tax incentives program is on a voluntary basis by owners 
seeking a benefit in the form of Federal income tax incentives. A 
takings implication assessment is not required.

Federalism (Executive Order 13132)

    Under the criteria in Executive Order 13132, this rule does not 
have sufficient federalism implications to warrant the preparation of a 
Federalism summary impact statement. The rule does not preempt or 
conflict with any State or local law. A Federalism impact statement is 
not required.

Civil Justice Reform (Executive Order 12988)

    This rule complies with the requirements of E.O. 12988. 
Specifically, this rule:

[[Page 63430]]

    (a) Meets the criteria requiring that all regulations be reviewed 
to eliminate errors and ambiguity and be written to minimize 
litigation; and
    (b) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 

Consultation With Indian Tribes (Executive Order 13175)

    Under the criteria in Executive Order 13175, we have evaluated this 
rule and determined that it has no potential effects on Federally 
recognized Indian tribes. The rule has no Tribal implications, and does 
not impose any costs on Indian Tribal governments.

Paperwork Reduction Act (PRA)

    This rule contains information collection requirements and a 
submission under the Paperwork Reduction Act is required. OMB has 
approved the information collection and has assigned approval number 
1024-0009, expiring on 03/31/2013. A Federal agency may not conduct or 
sponsor and you are not required to respond to, a collection of 
information unless it displays a currently valid OMB control number. 
Part 1 of the application is used in requesting a certification of 
historic significance or non-significance and preliminary 
determinations. Part 2 of the application is used in requesting an 
evaluation of a proposed rehabilitation project or (in conjunction with 
a request for certification of completed work) a certification of a 
completed rehabilitation project. Information contained in the 
application is required to obtain a benefit. We estimate the burden 
associated with this information collection to be 4.6 hours per 
response including the time for reviewing instructions, gathering and 
maintaining data, and completing and reviewing the form. Direct your 
comments regarding this burden estimate or any aspect of this form to 
the Manager, Administrative Program Center, National Park Service, 1849 
C Street, NW., Washington, DC 20240 and to the Office of Management and 
Budget, Paperwork Reduction Project Number 1024-0009, Washington, DC 

National Environmental Policy Act (NEPA)

    This rule is developed under the authority of the National Historic 
Preservation Act, particularly 16 U.S.C. 470a(a)(1)(A), and 26 U.S.C. 
47 (Internal Revenue Code), and does not constitute a major Federal 
action significantly affecting the quality of the human environment. A 
detailed statement under the National Environmental Policy Act of 1969 
is not required because the rule is administrative and procedural in 
nature and therefore is covered by a categorical exclusion under 43 CFR 
46.205(b) and 46.210(i).
    We have also determined that the rule does not involve any of the 
extraordinary circumstances listed in 43 CFR 46.215 that would require 
further analysis under the National Environmental Policy Act.

Information Quality Act (IQA)

    In developing this rule we did not conduct or use a study, 
experiment, or survey requiring peer review under the Information 
Quality Act (Pub. L. 106-554).

Effects on the Energy Supply (Executive Order 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211. A Statement of Energy Effects is not 

Clarity of This Regulation

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.
    Drafting Information: The primary authors of this regulation are 
Michael J. Auer, Technical Preservation Services, Heritage Preservation 
Services, National Park Service; Philip A. Selleck, Chief, Regulations 
and Special Park Uses, National Park Service; A.J. North, Branch Chief, 
Regulations and Special Park Uses, Regulations, National Park Service 
and Maria Elena Lurie, Office of the Solicitor, Department of the 

Public Participation

    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.
    Docket: For access to the electronic docket to read the proposed 
rule, background documents or e-mail comments received, go to http://www.regulations.gov and enter ``1024-AD65'' in the ``Keyword or ID'' 
search box.

List of Subjects in 36 CFR Part 67

    Administrative practice and procedures, Historic preservation, 
Income taxes, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, the NPS proposes to 
amend 36 CFR part 67 as follows:


    1. The authority citation for part 67 is revised to read as 

    Authority: 16 U.S.C. 470a(a)(1)(A); 26 U.S.C. 47 and 170(h).

    2. In part 67, revise the heading to read as set forth above.
    3. In part 67, remove the words ``regional office'' and ``regional 
offices'' wherever they occur and add in their place ``WASO.''
    4. In part 67, remove the words and numbers ``Sec. 48(g)'' wherever 
they occur and add in their place the words and numbers ``Sec. 47.''
    5. In part 67, remove the words and numbers ``section 48(g)'' 
wherever they occur and add in their place the words and numbers 
``section 47.''
    6. In Sec.  67.1,
    A. Revise the section heading
    B. Revise paragraph (a) and the first sentence of paragraph (b)
    The revisions read as follows:

Sec.  67.1  Program authority and function.

    (a) Section 47 of the Internal Revenue Code designates the 
Secretary as the authority for the issuance of certifications of 
historic district statutes and of State and local historic districts, 
certifications of significance, and certifications of rehabilitation in 
connection with certain tax incentives involving historic preservation. 
These certification responsibilities have been delegated to the 
National Park Service (NPS); the following office issues those 
certifications: National Park Service, Washington Area Service Office,

[[Page 63431]]

Technical Preservation Services, Heritage Preservation Services, 
(WASO), 1849 C Street, NW., Washington, DC 20240.
    (b) NPS WASO establishes program direction and considers appeals of 
certification denials. * * *
* * * * *
    7. In Sec.  67.4, revise paragraph (g) to read as follows:

Sec.  67.4  Certifications of historic significance.

* * * * *
    (g) For purposes of the other rehabilitation tax credits under sec. 
47 of the Internal Revenue Code, properties within registered historic 
districts are presumed to contribute to the significance of such 
districts unless certified as nonsignificant by the Secretary. Owners 
of non-historic properties within registered historic districts, 
therefore, must obtain a certification of nonsignificance in order to 
qualify for those investment tax credits. If an owner begins or 
completes a substantial rehabilitation (as defined by the Internal 
Revenue Service) of a property in a registered historic district 
without knowledge of requirements for certification of nonsignificance, 
he or she may request certification that the property was not of 
historic significance to the district prior to substantial 
rehabilitation in the same manner as stated in Sec.  67.4(c). The owner 
should be aware, however, that the taxpayer must certify to the 
Secretary of the Treasury that, at the beginning of such substantial 
rehabilitation, he or she in good faith was not aware of the 
certification requirement by the Secretary of the Interior.
* * * * *
    8. In Sec.  67.5 revise the section heading to read as follows:

Sec.  67.5  Standards for evaluating significance within registered 
historic districts.

* * * * *
    9. In Sec.  67.7 revise the section heading to read as follows:

Sec.  67.7  Standards for rehabilitation.

* * * * *
    10. In Sec.  67.10, revise paragraphs (a), (b), and (c)(3) to read 
as follows:

Sec.  67.10  Appeals.

    (a) The owner or a duly authorized representative may appeal any of 
the certifications or denials of certification made under this part or 
any decisions made under Sec.  67.6(f).
    (1) Appeals must:
    (i) Be in writing; e.g. letter, fax, or e-mail;
    (ii) Be addressed to the Chief Appeals Officer, Cultural Resources, 
National Park Service, U.S. Department of the Interior, 1849 C Street, 
NW., Washington, DC 20240;
    (iii) Be received by NPS within 30 days of receipt by the owner or 
a duly authorized representative of the decision which is the subject 
of the appeal; and
    (iv) Include all information the owner wishes the Chief Appeals 
Officer to consider in deciding the appeal.
    (2) The appellant may request a meeting to discuss the appeal.
    (3) NPS will notify the SHPO that an appeal is pending.
    (4) The Chief Appeals Officer will consider the record of the 
decision in question, any further written submissions by the owner, and 
other available information and will provide the appellant a written 
decision as promptly as circumstances permit.
    (5) Appeals under this section constitute an administrative review 
of the decision appealed from and are not conducted as an adjudicative 
    (b) The denial of a preliminary determination of significance for 
an individual property may not be appealed by the owner because the 
denial itself does not exhaust the administrative remedy that is 
available. The owner instead must seek recourse by undertaking the 
usual nomination process (36 CFR part 60).
    (c) * * *
    (3) Resubmit the matter to WASO for further consideration; or
* * * * *
    11. Revise Sec.  67.11 to read as follows:

Sec.  67.11  Fees for processing certification requests.

    (a) Fees are charged for reviewing certification requests according 
to the schedule and instructions provided in public notices in the 
Federal Register by NPS.
    (b) No payment should be made until requested by the NPS. A 
certification decision will not be issued on an application until the 
appropriate remittance is received.
    (c) Fees are nonrefundable.

    Dated: October 5, 2010.
Eileen Sobeck,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-25853 Filed 10-14-10; 8:45 am]