[Federal Register Volume 78, Number 50 (Thursday, March 14, 2013)]
[Notices]
[Pages 16275-16277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-05917]



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ADVISORY COUNCIL ON HISTORIC PRESERVATION


Extension of the Duration of Programmatic Agreements Based on the 
Department of Energy Prototype Programmatic Agreement for Its 
Weatherization Assistance Program, State Energy Program, and Energy 
Efficiency and Conservation Block Grant; Notice of Program Comment

AGENCY: Advisory Council on Historic Preservation.

ACTION: The Advisory Council on Historic Preservation has issued a 
Program Comment for Extending the Duration of Programmatic Agreements 
based on the Department of Energy Prototype Programmatic Agreement for 
its Weatherization Assistance Program, State Energy Program, and Energy 
Efficiency and Conservation Block Grant.

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SUMMARY: The Advisory Council on Historic Preservation (ACHP) issued a 
Program Comment at the request of the U.S. Department of Energy that 
allows its program of tailored compliance with Section 106 of the 
National Historic Preservation Act to continue under the prototype 
Programmatic Agreement (PA) for the Office of Weatherization and 
Intergovernmental Programs Weatherization Related Grant Programs: 
Weatherization Assistance Program (WAP), State Energy Program (SEP), 
and Energy Efficiency and Conservation Block Grant (EECBG).

DATES: The Program Comment was issued by the ACHP on March 11, 2013.

ADDRESSES: Address all comments concerning the Program Comment to Lee 
Webb, Liaison to the Department of Energy, Office of Federal Agency 
Programs, Advisory Council on Historic Preservation, 1100 Pennsylvania 
Avenue NW., Suite 803, Washington, DC 20004. You may also submit 
comments via fax at (202) 606-8647 or via electronic mail at 
[email protected].

FOR FURTHER INFORMATION CONTACT: Lee Webb, (202) 606-8583, 
[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 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 those undertakings by 
taking into account the ACHP's Program Comment and following the steps 
set forth in that comment.

I. Background

    The ACHP has issued a Program Comment to the U.S. Department of 
Energy (DOE) to extend the duration of agreements based on the DOE 
prototype PA for its WAP, SEP, and EECBG programs. The ACHP membership 
voted in favor of issuing the Program Comment via an unassembled vote 
that concluded on March 11, 2013.
    The Program Comment extends the duration of the existing 44 
agreements executed under the prototype PA until December 31, 2020, and 
provides the same duration period for any future agreements that may be 
executed under the prototype PA. Nothing in the Program Comment alters 
or modifies any other provisions of the prototype PA or the 44 
agreements, including the ability of the parties to amend or terminate 
an executed agreement prior to the expiration date.
    According to the requirements for obtaining a Program Comment, the 
DOE formally requested the ACHP comment on its continuing use of the 
prototype PA to tailor its Section 106 compliance for undertakings 
funded by WAP, SEP, and EECBG in each state in lieu of renegotiating 
and amending each executed agreement. The prototype PA provided a 
suggested duration clause of three years for each agreement from the 
date of final signature and filing with ACHP. As a result, DOE 
currently has 44 executed agreements based on the prototype PA, with 
various expiration dates dependent on their respective dates of 
execution. The first PAs will start expiring in mid-March of 2013 and, 
with these first expiration dates fast approaching, there is an 
immediate need to extend the expiration date of the PAs developed under 
the prototype PA. The use of the Program Comment to achieve this goal 
avoids the need to negotiate extensions to each of the 44 individual 
agreements. The ACHP has concluded that the use of a Program Comment to 
achieve this goal is the most efficient mechanism for doing so and the 
most expedient way to ensure that these successful agreements remain in 
force.
    The Program Comment does not restrict the use and application of 
the prototype PA in states where they have not yet been developed by 
allowing any new agreements developed under the prototype to extend to 
2020. This provides continuity in the Section 106 review for those 
undertakings covered by existing agreements and any new agreements 
executed under the prototype PA. By extending the duration of these 
agreements, the Program Comment provides the DOE, SHPOs, and state 
agency recipients with the option to continue operating under the 
prototype PA and the subsequently executed agreements. However, any 
party may amend or terminate an agreement in accordance with the 
amendment and termination provisions prior to December 31, 2020.
    The ACHP received DOE's request for the Program Comment on January 
31, 2013, and took steps to inform the public and stakeholders about 
the proposed Program Comment. Prior to receiving the formal request 
from DOE, ACHP hosted, with DOE's participation, listening sessions for 
State Historic Preservation Officers (SHPOs) to discuss the upcoming 
expiration of the agreements executed under the prototype PA and the 
possibility of developing a new program alternative. The ACHP and DOE 
then coordinated to develop the text of the Program Comment. The ACHP 
published a notice of the proposed Program Comment in the Federal 
Register on February 22, 2013, for a one-week comment period (78 FR 
12336-12337).
    In accordance with 36 CFR 800.14(e), the ACHP is responsible for 
obtaining the views of SHPOs and Tribal Historic Preservation Officers 
(THPOs) before reaching a decision on issuing a Program Comment. On 
February 22, 2013, the ACHP notified SHPOs and the Section 106 contacts 
for Indian tribes and Native Hawaiian organizations of the proposed 
Program Comment via electronic mail and asked for their review and 
comment. The DOE provided the draft Program Comment and brief 
background narrative to its state agency recipients for their review 
and comment. All comments on the draft Program Comment from SHPOs, 
THPOs, Indian tribes, Native Hawaiian organizations, DOE state agency 
recipients, and members of the public were due to ACHP staff on March 
1, 2013.
    Various substantive comments from stakeholders and the public were 
received and considered by the ACHP, as noted below. The majority of 
comments received were in support of

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the Program Comment and did not require any revisions to the draft.
    Two SHPO comments asked for clarification as to whether the Program 
Comment would apply to state level interagency agreements that were 
developed prior to the prototype PA. Under Stipulation III of the 
prototype PA, DOE can choose to recognize an interagency agreement if 
the agreement closely resembled the prototype PA in establishing review 
efficiencies and providing exemptions from review for routine 
activities. To recognize such an agreement under the prototype PA, DOE, 
the SHPO and the state agency receiving DOE funds would sign a cover 
agreement. In response to these comments, the Program Comment was 
revised to clarify that it would be applicable to agreements recognized 
via cover agreement under Stipulation III of the prototype PA.
    Another SHPO comment asked for clarification as to whether the 
signatories on the executed PAs (DOE, SHPOs, and state agency 
recipients) were required to take any additional action to extend the 
PA, once the Program Comment was issued. To address this comment, the 
Program Comment was revised to include language that stated, ``by the 
issuance of the Program Comment,'' the PAs based on the DOE prototype 
PA could extend through December 31, 2020. The ACHP and DOE will send 
follow-up guidance to the stakeholders as needed to clarify the Program 
Comment's applicability and use.
    Another comment asked for clarification about how the prototype PA 
itself was developed and implemented and whether there was any tribal 
involvement in DOE projects in Washington and Oregon. The ACHP is 
preparing a written response to this commenter to explain the 
development of the prototype PA, and is coordinating with DOE to 
provide the additional information as requested. No revisions were made 
to the Program Comment as a result of this comment.
    The remaining comments from state agencies and SHPOs expressed 
support for the Program Comment and did not require any revisions to 
the draft text.

II. Final Text of the Program Comment

    The following is the text of the issued Program Comment:

Program Comment To Extend the Duration of Agreements Executed Under the 
Department of Energy's Prototype Programmatic Agreement

I. Introduction

    The Department of Energy's (DOE) Office of Weatherization and 
Intergovernmental Programs (OWIP) provides financial assistance to 
state agency applicants for three weatherization related grant 
programs: Weatherization Assistance Program (WAP), State Energy Program 
(SEP), and Energy Efficiency and Conservation Block Grant (EECBG). DOE 
has determined that activities carried out by these funded programs 
constitute undertakings with the potential to affect historic 
properties. Therefore, DOE must comply with Section 106 and its 
implementing regulations, 36 CFR Part 800, for these undertakings.
    The Advisory Council on Historic Preservation (ACHP) and DOE began 
a partnership in August 2009 to explore possible program alternatives 
to tailor the Section 106 process for these undertakings in 
anticipation of the dramatic increase in project funding as a result of 
American Recovery and Reinvestment Act. DOE, in consultation with the 
ACHP and the National Conference of State Historic Preservation 
Officers (NCSHPO), developed a prototype Programmatic Agreement (PA) to 
cover three weatherization related grant programs and to create 
efficiencies in the administration of these OWIP grants: WAP, SEP, and 
EECBG. The prototype PA identifies a category of routine undertakings 
with limited potential to affect historic properties and exempts them 
from further review. The ACHP's Chairman designated the prototype PA on 
February 8, 2010. Under the terms of the prototype PA, DOE, the State 
Historic Preservation Officer (SHPO), and the relevant state agency 
receiving OWIP grants can execute subsequent agreements without ACHP 
involvement. Execution of an agreement pursuant to the prototype PA 
presumes that DOE will conduct its government-to-government 
consultation responsibilities with federal recognized Indian tribes and 
its Section 106 consultation requirements with Native Hawaiian 
organizations. If DOE is notified that a particular undertaking may 
result in an adverse effect on historic properties of religious and 
cultural significance to Indian tribes or Native Hawaiian 
organizations, DOE must invite such Indian tribes or Native Hawaiian 
organizations to participate in consultation for the affected project.
    Since its designation, DOE has used the prototype PA to 
successfully negotiate and execute 44 programmatic agreements with 
SHPOs and state agencies receiving DOE OWIP grants. DOE's direct 
recipients may use the executed state agreement developed under the 
prototype PA as well. The prototype PA initially proposed a three year 
duration clause from the time of execution and filing with the ACHP. As 
a result, the 44 agreements executed under the prototype PA have 
different expiration dates. Several of the agreements will expire in 
mid-March 2013. It is now DOE's and the ACHP's intention that these 
agreements should extend beyond the three year term.

II. Background

    During the development of the prototype PA in 2009, the ACHP 
invited SHPOs, Indian tribes, and Native Hawaiian organizations to 
participate in a series of teleconferences to discuss the prototype PA 
and share information on which DOE programs would be covered by the new 
program alternative. The tribes that participated in the 
teleconferences noted that the vast majority of funding from the three 
programs did not relate to undertakings on or affecting historic 
properties on tribal lands, and were not interested in participating 
further in the process to develop the prototype PA. The SHPOs were 
generally supportive of DOE's intent to pursue a program alternative 
such as the prototype PA that would assist them in managing their 
workload by streamlining the review of certain undertakings. Further, 
the SHPOs liked the format of the prototype PA as they would be able to 
modify individual agreements under its terms to account for state-
specific issues.
    As a result of the partnership with ACHP and the development and 
the administration of the prototype PA, DOE established internal and 
external training; recognized best management practices; and utilized 
DOE guidance and directives to ensure that the DOE weatherization 
programs were properly implemented in compliance with Section 106. The 
prototype PA established review efficiencies and protocols which 
allowed for the grant programs to expedite the weatherization efforts 
of the homes of many low income individuals across the country, as well 
as assisted communities in funding energy efficiency, renewable energy, 
and weatherization projects for public buildings such as schools and 
courthouses. Due to the success of the prototype PA for DOE's 
weatherization programs, other departments within DOE have sought 
ACHP's and OWIP staff's guidance and direction for meeting their 
historic preservation compliance responsibilities.
    In the past year, DOE and the ACHP have discussed how to extend and 
build upon the program established by the prototype PA. In December 
2012, DOE and the ACHP held listening sessions with SHPOs. The 
discussions focused

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on the effectiveness of the prototype PA and the feasibility of 
pursuing a new program alternative. The SHPOs that participated in 
those listening sessions were generally supportive of the development, 
implementation, and effectiveness of the prototype PA and expressed a 
preference to continue using the PAs to provide streamlining of reviews 
and other review efficiencies. Further, in developing the text of this 
Program Comment, the ACHP provided an opportunity for SHPOs, Indian 
tribes, Native Hawaiian organizations, and state agencies to comment on 
its applicability and terms.
    This Program Comment extends the duration of the existing 44 
agreements executed under the prototype PA until December 31, 2020, and 
provides the same duration period for any future agreements that may be 
executed under the prototype PA. Nothing in this Program Comment alters 
or modifies any other provisions of the prototype PA or the 44 
agreements, including the ability of the parties to amend or terminate 
an executed agreement prior to the expiration date.

III. Establishment and Authority

    This Program Comment was issued by the ACHP on March 11, 2013 
pursuant to 36 CFR 800.14(e).

IV. Date of Effect

    This Program Comment went into effect on March 11, 2013.

V. Use of This Program Comment To Extend the Duration of the Existing 
Agreements Executed Under the DOE Prototype PA and for New Agreements 
Executed Pursuant to the Prototype PA

    By the issuance of this Program Comment, the DOE may continue, 
through December 31, 2020, complying with its responsibilities under 
Section 106 of the National Historic Preservation Act for its WAP, SEP, 
and EECBG in the relevant States using the 44 agreements currently 
executed, including those agreements that were recognized by 
Stipulation III, and those to be executed, under the ``Prototype 
Programmatic Agreement between the United States Department of Energy, 
the State Energy Office and the State Historic Preservation Office 
regarding EECBG, SEP and WAP Undertakings,'' designated by the ACHP on 
February 8, 2010, regardless of the duration clause of those 
agreements. However, if any of those agreements is terminated under its 
own terms, DOE may no longer use it to comply with its Section 106 
responsibilities in the relevant State. This will provide continuity in 
the Section 106 review for those undertakings covered by the existing 
and any new agreements executed under the prototype PA. This Program 
Comment does not alter or modify any provisions of the prototype PA or 
the 44 executed agreements other than their duration clauses.

VI. Amendment

    The ACHP may amend this Program Comment after consulting with DOE, 
NCSHPO, and other parties as appropriate, and publishing notice in the 
Federal Register to that effect.

VII. Sunset Clause

    This Program Comment will terminate on December 31, 2020, unless it 
is amended to extend the period in which it is in effect.

VIII. Termination

    The ACHP may terminate this Program Comment by publication of a 
notice in the Federal Register thirty (30) days before the termination 
takes effect.

    Authority:  36 CFR 800.14(e).

    Dated: March 11, 2013.
John M. Fowler,
Executive Director.
[FR Doc. 2013-05917 Filed 3-13-13; 8:45 am]
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