[Federal Register Volume 76, Number 102 (Thursday, May 26, 2011)]
[Rules and Regulations]
[Pages 30539-30542]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-12754]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 67

RIN 1024-AD65


Historic Preservation Certifications for Federal Income Tax 
Incentives

AGENCY: National Park Service, Interior.

ACTION: Final rule.

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SUMMARY: The National Park Service (NPS) is amending 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: The rule becomes effective June 27, 2011.

ADDRESSES: Chief, Heritage Preservation Services Program, National Park 
Service, 1849 C Street, NW. (org code 2255), Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT: Michael J. Auer, National Park 
Service, 1849 C Street, NW. (org code 2255), Washington, DC 20240; 
[email protected]; fax: 202-371-1616.

SUPPLEMENTARY INFORMATION

Background

    Section 47 of Title 26 of the United States Code (the Internal 
Revenue 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 final rule removes outdated references to the Internal Revenue 
Code, and deletes references to the regional offices and substitutes 
the NPS Washington office in their place. The final rule also lifts the 
prohibition on appeals from the denial of preliminary certification for 
rehabilitation of a property that is not a certified historic 
structure. The final rule also removes the certification fee schedule 
from the regulation, 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. Until a revised means of determining fees is 
decided upon, approved, and published, the 1984 fee schedule will 
remain in effect. The changes are technical rather than substantive in 
nature.

Public Comments

    The proposed rule was published on October 15, 2010 (75 FR 63428) 
and was open for public comment for 60 days. We received three 
comments. One was fully in support of the changes. The second made 
several proposals on how fees charged by NPS for review of 
rehabilitation certification applications should be set and used by the 
agency. However, the rule does not change the fee schedule, but merely 
removes it from the text of the regulations (in accordance with 
standard government practice). The third suggests that the rule state 
that the program is administered by the National Park Service in 
general rather than by the Washington Area Service Office of the NPS. 
The agency believes it serves a useful purpose to inform the public 
where the program is administered within a large government agency. 
Accordingly, the agency does not believe that further change to the 
rule is warranted

[[Page 30540]]

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 Executive Order 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:
    a. 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.
    b. 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.
    c. 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 Executive Order 12988. 
Specifically, this rule:
    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 
standards.

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 
20503.

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

[[Page 30541]]

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 
required.

List of Subjects in 36 CFR Part 67

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

    In consideration of the foregoing, 36 CFR part 67 is amended as 
follows:

PART 67--HISTORIC PRESERVATION CERTIFICATIONS UNDER THE INTERNAL 
REVENUE CODE

0
1. The authority citation for part 67 is revised to read as follows:

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


0
2. Revise the part heading to read as set forth above.


0
3. In part 67, remove the word[s] in the ``remove'' column wherever 
they occur and add in their place the word[s] in the ``add'' column in 
the following table:

------------------------------------------------------------------------
                   Remove                                Add
------------------------------------------------------------------------
regional office............................  WASO
regional offices...........................  WASO
Sec. 48(g).................................  Sec. 47
section 48(g)..............................  section 47
------------------------------------------------------------------------


0
4. In Sec.  67.1, revise the section heading, paragraph (a), and the 
first sentence of paragraph (b) to 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, 
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. * * *
* * * * *

0
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 
section 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 paragraph (c) of this 
section. 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.
* * * * *

0
8. In Sec.  67.5 revise the section heading to read as follows:


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

* * * * *

0
9. In Sec.  67.7 revise the section heading to read as follows:


Sec.  67.7  Standards for rehabilitation.

* * * * *

0
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 
proceeding.
    (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
* * * * *

0
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

[[Page 30542]]

application until the appropriate remittance is received.
    (c) Fees are nonrefundable.

    Dated: May 13, 2011.
Eileen Sobeck,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-12754 Filed 5-25-11; 8:45 am]
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