[Federal Register Volume 83, Number 208 (Friday, October 26, 2018)]
[Notices]
[Pages 54119-54128]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-23397]



[[Page 54119]]

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ADVISORY COUNCIL ON HISTORIC PRESERVATION


Notice of Issuance of the U.S. Department of Veterans Affairs 
Program Comment for Vacant and Underutilized Properties

AGENCY: Advisory Council on Historic Preservation.

ACTION: Notice of issuance of the U.S. Department of Veterans Affairs 
Program comment for vacant and underutilized properties.

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SUMMARY: The Advisory Council on Historic Preservation (ACHP) has a 
program comment for the U.S. Department of Veterans Affairs (VA) that 
sets forth the way in which VA complies with Section 106 of the 
National Historic Preservation Act (NHPA) for its real property actions 
related to the transfer of property rights of vacant and underutilized 
buildings, structures and land, including out leases, exchanges, sales, 
transfers, conveyances, deconstructions and demolitions, and for 
certain maintenance and repairs.

DATES: The program comment went into effect on October 26, 2018.

ADDRESSES: Address any questions concerning the Program Comment to 
Angela McArdle, Office of Federal Agency Programs, Advisory Council on 
Historic Preservation, 401 F Street NW, Suite 308, Washington, DC 
20001.

FOR FURTHER INFORMATION CONTACT: Angela McArdle, (202) 517-0221, 
[email protected].

SUPPLEMENTARY INFORMATION: Section 106 of the NHPA requires federal 
agencies to consider the effects of projects they carry out, license, 
or assist (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 those undertakings by 
taking into account an applicable Program Comment and following the 
steps set forth in that comment.
    The U.S. Department of Veterans Affairs (VA) sought a Program 
Comment for its real property actions related to the transfer of 
property rights of vacant and underutilized buildings, structures and 
land, including out leases, exchanges, sales, transfers, conveyances, 
deconstructions and demolitions, and for certain maintenance and 
repairs. The ACHP issued the Program Comment on October 19, 2018. The 
regulations implementing Section 106 require that such program comments 
be published in the Federal Register before going into effect.

I. Overview of the Program Comment

    Reducing vacant and underutilized properties in its portfolio will 
allow VA to redirect limited operations and maintenance staff and 
funding to those facilities supporting delivery of services and 
benefits to veterans.
    Changing needs, technology, and medical care have contributed to 
the functional obsolescence of many buildings and structures in VA's 
real property portfolio and altered how facilities are used or not used 
given VA's funding parameters. These changes have resulted, and will 
continue to result, in vacancies and underutilized buildings and 
structures in VA's portfolio. The Program Comment will enable VA to 
more efficiently complete the Section 106 review process to achieve a 
reduction of vacant and underutilized buildings and structures, thereby 
reducing the square footage to be maintained, costs for management of 
VA's real property and ultimately the burden on taxpayers. The Program 
Comment creates an alternative process that will result in greater 
project schedule certainty, increased engagement of VA field personnel, 
and a better understanding of VA's Section 106 responsibilities.
    The Program Comment applies to VA disposals of federal real 
property including sales, transfers, conveyances or exchanges to non-
federal entities, lease termination, public benefit conveyance, 
deconstruction and demolition of vacant and underutilized properties, 
as well as maintenance and repair of such properties that are non-
historic or historic properties that have been categorized as 
utilitarian. This Program Comment does not apply to real property 
transfers, conveyances or exchanges from VA to another federal agency 
where such property remains in federal ownership and the receiving 
agency continues to be subject to Section 106.
    This Program Comment also applies to Enhanced Use Leases (EULs) 
developed under 38 U.S.C. 8161 and leases or exchanges under 54 U.S.C. 
306121 and 306122 (formerly Section 111 of the NHPA). These authorities 
allow outside parties to lease a building or structure from VA for 
development of supportive housing for homeless veterans (EUL) or to 
lease historic properties for other uses that may benefit veterans, 
their families or communities. An exchange of one historic property 
with a comparable historic property is allowed under Section 111 of the 
NHPA.
    According to VA's real property database, the Capital Asset 
Inventory (CAI), there are currently about 1,000 vacant and 
underutilized properties, of which approximately 400 are vacant and 
about 600 are underutilized. Not all of the vacant and underutilized 
properties are historic properties. There are currently about 330 
vacant historic properties, of which about 160 are categorized as 
utilitarian. There are currently about 260 underutilized historic 
properties, of which about 200 are categorized as utilitarian.
    By eliminating the need for Section 106 review of each individual 
real property action, the Program Comment will allow more efficient 
compliance with Section 106 for the reduction of VA's vacant and 
underutilized properties.

II. Background Leading to the Program Comment

    Since 1971, VA has steadfastly invested in identification and 
evaluation of its historic properties. In 1981, the Keeper of the 
National Register of Historic Places (National Register) determined all 
national cemeteries, regardless of age, eligible for inclusion in the 
National Register. Over the past fifteen years, VA has evaluated or re-
evaluated more than 115 of its 152 medical centers according to the 
National Register Criteria for Evaluation to assess the significance in 
American history, architecture, archaeology, engineering, and culture 
present in VA's districts, sites, buildings, structures, and objects 
that possess integrity of location, design, setting, materials, 
workmanship, feeling, and association.
    In 2004, VA partnered with the National Park Service (NPS) to 
inventory its oldest medical centers, the eleven branches of the 
National Home for Disabled Volunteer Soldiers. This group of facilities 
includes properties dating from just after the Civil War through 1930, 
and is known within VA as the First Generation.
    From 2008 to 2012, VA compiled documentation on 50 facilities built 
at the end of World War I through the end of World War II. The ``United 
States

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Second Generation Veterans Hospitals'' National Register Multiple 
Property Documentation was accepted by the NPS in January 2012.
    Since 2010, VA has compiled documentation on 57 of its facilities 
built after World War II up to 1958. The ``United States Third 
Generation Veterans Hospitals'' National Register Multiple Property 
Documentation was accepted by the NPS in May 2018.
    In March 2016, the NPS accepted the Inter-World War National 
Cemeteries National Register Multiple Property Documentation for 
facilities opened between 1934 and 1939.
    As of May 2018, VA has over 8,350 buildings and structures within 
its three divisions: Veterans Health Administration (VHA), National 
Cemetery Administration (NCA), and Veterans Benefits Administration 
(VBA). VA has evaluated about 7,325 of these 8,350 buildings and 
structures, approximately 88% of the built resources in its inventory, 
for eligibility to the National Register. Approximately 2,325 of these 
are historic: National Register eligible or listed, or National 
Historic Landmarks (NHLs). Of these historic properties, about 85%, or 
nearly 2,000 buildings and structures, are being used in support of 
veterans. More than 5,000 other buildings and structures have been 
evaluated and determined not eligible.
    In recent decades, the White House, Congress and agencies have been 
assessing the federal government's ability to manage its capital 
assets--specifically buildings, structures, and land. These efforts 
have prompted the federal government to identify, assess, analyze, and 
review capital asset management to improve fiscal accountability and 
management. Several studies, Presidential memoranda, and Executive 
Orders have highlighted this matter:
    (1) A 2003 Government Accountability Office report (GAO-03-122) 
titled High-Risk Series: Federal Real Property highlighted federal real 
property as high risk, noting ``multibillion-dollar cost implications 
[that] can seriously jeopardize mission accomplishment.''
    (2) Issued in 2004, Executive Order 13327, Federal Real Property 
Asset Management, became law in December 2016 as the Federal Property 
Management Reform Act (Pub. L. 114-318). The order directed creation of 
the Federal Real Property Profile (FRPP), a database updated annually 
with descriptions of individual buildings, structures, and objects 
including, among other elements, the historic status of the property. 
FRPP historic status is defined as: NHL, National Register listed or 
eligible, Non-contributing element of an NHL/National Register 
district, Not Evaluated or Evaluated/Not Historic. National Register 
listed or eligible assets are considered historic properties under the 
NHPA.
    (3) A Presidential Memorandum issued in 2010, Disposing of Unneeded 
Federal Real Estate, required federal agencies to: Identify and 
eliminate excess properties; increase space utilization and occupancy 
rates; reduce operating costs; and improve energy efficiency and 
sustainability. The government-wide goal as directed by the Memorandum 
was to encourage federal agencies to save costs and be more efficient 
in managing real property. Oversight and implementation roles were 
assigned to the Office of Management and Budget (OMB) and General 
Services Administration (GSA).
    (4) Two OMB memoranda applicable to all federal agencies' real 
property management followed in 2012 and 2013. The first memorandum (M-
12-12, Promoting Efficient Spending to Support Agency Operations) 
provided that any acquisition of new civilian real property that 
increases the total square footage of an agency must be offset through 
consolidation, co-location or disposal of space from that agency's 
inventory. The second memorandum (Management Procedures No. 2013-02, 
Implementation of OMB Memorandum M-12-12), known as ``Freeze the 
Footprint,'' set an annual performance standard of no net increase/no 
net growth in the square footage of each agency's domestic office and 
warehouse owned and leased property relative to a Fiscal Year (FY) 2012 
FRPP inventory baseline. Acceptable offsets, or removal from a federal 
agency's inventory, include declaration of individual buildings to GSA 
as excess and disposal. According to OMB policy, unacceptable offsets 
include mothballing, EULs, other out leases, or simply leaving a 
building unused or unoccupied.
    (5) In 2015, OMB issued the ``National Strategy for the Efficient 
Use of Real Property 2015-2020, Reducing the Federal Portfolio through 
Improved Space Utilization, Consolidation, and Disposal.'' This 
national effort, known as ``Reduce the Footprint'' is a follow-up to 
the earlier ``Freeze the Footprint'' initiative. The strategy and 
related policy require federal agencies to reduce their domestic real 
property square footage rather than simply maintaining their FY 2012 
levels.
    (6) In May 2017, the VA Secretary emphasized the need for VA to 
develop ``different types of strategic partnerships'' related to the 
reduction of vacant and underutilized buildings and specifically called 
out 430 vacant buildings and 735 underutilized buildings which VA had 
identified during a December 2016 review of its real property database, 
the Capital Asset Inventory (CAI). The VA MISSION Act of 2018 (S.2372) 
requires consideration of ``the extent to which the real property that 
no longer meets the needs of the Federal Government could be 
reconfigured, repurposed, consolidated, realigned, exchanged, 
outleased, replaced, sold, or disposed.''
    A Program Comment under the NHPA Section 106 regulations, 36 CFR 
800.14(e), is an efficient alternative to address several categories of 
undertakings in support of VA's need to reduce its square footage of 
vacant and underutilized properties.

III. Public Participation

    VA sought public participation in the Program Comment's development 
prior to formally requesting the ACHP to review its proposal for the 
Program Comment. These actions included publication of a Notice of 
Availability in the Federal Register in April 2018, giving the public a 
30-day period to submit comments. Comments from the public were 
provided to the ACHP with VA's formal request.
    Working with the Veterans Service Organizations (VSOs) Liaison, VA 
consulted with Disabled American Veterans (DAV), Veterans of Foreign 
Wars (VFW), American Legion, Military Officers Association of America 
(MOAA), Paralyzed Veterans of America (PVA), AMVETS, and Vietnam 
Veterans of America (VVA). These organizations were consulted prior to 
the development of the Program Comment to help determine issues that 
may be of specific concern prior to formal submission to the ACHP.
    In December 2017 and January 2018, VA invited staff from the ACHP, 
National Conference of State Historic Preservation Officers (NCSHPO), 
National Association of Tribal Historic Preservation Officers (NATHPO), 
and National Trust for Historic Preservation (NTHP) to face-to-face 
meetings concerning VA's proposed request for a Program Comment. These 
meetings solicited input from the participating entities to develop a 
Program Comment that considered the consulting parties' perspectives.
    VA's Office of Tribal Government Relations (OTGR) reached out to 
leaders of all federally recognized Indian tribes through a letter sent 
in March 2018, which included a 45-day comment period. A webinar for 
Indian tribes,

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hosted by NATHPO, was held March 22, 2018, and led by VA's Federal 
Preservation Officer (FPO). VA coordinated with OTGR in the internal 
review of the draft Program Comment. OTGR also participated in the 
January 2018 consultation meeting with the consulting parties. In 
addition, information regarding the proposed Program Comment was 
included in the 2017 VA/OTGR Executive Summary Report.
    On August 2, 2018, VA presented its proposal for a Program Comment 
at the ACHP's Federal Agency Programs (FAP) Committee meeting in 
Washington, DC and submitted its formal request for a Program Comment 
to the ACHP, starting the ACHP's 45-day regulatory clock, which was 
originally set to end on September 17, 2018. The most substantial 
change in the draft submitted with the formal request was the removal 
of National Historic Landmarks from consideration under the Program 
Comment, a request that multiple consulting parties had made in the 
early stages of the draft's development.
    Following VA's formal request, the ACHP carried out its own 
consultation. ACHP hosted a consultation meeting with NCSHPO, NATHPO, 
NTHP, and VA on August 9, 2018 to discuss the draft sent with VA's 
formal request. These preservation organizations expressed a desire for 
a longer public comment period than would have been possible in the 
original 45-day period. Based on this feedback, ACHP requested and 
obtained a 2-week extension from VA on August 23, 2018, to allow for an 
extended public review period of 28 days.
    ACHP created a web page to host the text of the Program Comment, 
linked to it on its Trending Topics web page and its Twitter and 
Facebook web pages, and sent a broadcast email announcing the posting 
of the Program Comment text and ACHP's request for public review and 
comment. ACHP sent the email to ACHP members, Senior Policy Officials 
and Senior Policy Official Representatives (SPOs & SPO Reps), ACHP 
Alumni, Federal Preservation Officers and Federal Preservation Officer 
Representatives (FPOs & FPO Reps), State Historic Preservation Officers 
(SHPOs), NTHP, National Preservation Organizations, Preservation 
Partners, Statewide and Local Preservation Organizations, Native 
Hawaiian Organizations (NHOs), Tribal 106 Chairs, Tribal 106 Contacts, 
and the same seven VSOs VA had consulted earlier in the development 
process. VA also posted a link to the Program Comment text on its 
Historic Preservation Office web page. The public review period began 
August 23, 2018 and ended September 19, 2018 for a total period of four 
weeks.
    Mid-way through the public comment period, ACHP members requested 
the opportunity to discuss the Program Comment in person at the next 
business meeting. In response, ACHP requested and obtained an 
additional 6-day extension from VA on September 6, 2018, to extend the 
period for ACHP comment until October 4, 2018, which would allow ACHP 
to accommodate an assembled vote at its October 4 Business Meeting.
    By the close of the public comment period, ACHP received comments 
from 21 respondents. The primary concerns expressed in the comments 
focused on the need for: (1) A greater degree of procedural 
transparency by increasing notification and consultation with parties 
external to VA; (2) clarification on the categorization of VA's real 
property into ``utilitarian'' and ``non-utilitarian'' and consideration 
of the cumulative effects to historic districts if multiple utilitarian 
historic properties were removed; and (3) clarification on how the 
Program Comment addresses archaeological historic properties and 
properties of traditional religious and cultural significance to Indian 
tribes or Native Hawaiian Organizations (NHOs).
    ACHP staff held a conference call with ACHP members on September 
21, 2018 to discuss the comments received during the public comment 
period and to seek any comments or recommendations for revisions to the 
draft that ACHP members wished to provide. Fourteen ACHP members 
participated. ACHP staff hosted another consultation meeting September 
26, 2018 with NCSHPO, NTHP, and VA to discuss specific revisions to 
address the comments received during the public comment period and 
those raised during the ACHP member teleconference.
    Based on this feedback, ACHP and VA then worked together to revise 
the draft in the following ways:
    (1) A new consultation process was added in Section 3. (Annual 
Publication and Review of VA's Real Property Portfolio) where each year 
VA will provide a composite list of properties that could be subject to 
the Program Comment to the ACHP for posting on a publicly accessible 
web page. VA would provide this list, with an accompanying narrative, 
to accommodate interested parties who wished to request additional 
information or send comments to VA concerning properties on the 
composite list. New processes of notification and consultation with 
parties external to VA were also added to Section 5.1. (Leases and 
Exchanges), Section 5.2. (Sales, Transfers, Exchanges, and 
Conveyances), Section 5.3. (Deconstruction and Demolition), Section 6. 
(Programmatic Mitigation), Section 7. (Review of Undertakings), and 
Section 8. (Consideration of Archaeological Properties and Properties 
of Traditional Religious and Cultural Significance to Indian tribes or 
NHOs);
    (2) the definition of the term ``utilitarian property'' was updated 
in Section 2.2. (Definitions) and the consultation process added in 
Section 3. affords greater transparency on which properties VA will 
categorize as utilitarian. The Section 3. consultation process also 
allows interested parties to request more information about a 
utilitarian property and provide their views on that property's 
categorization as utilitarian. Section 4.3.1. (Utilitarian Historic 
Properties) has been made more concise for clarity, and the requests 
for clarification about maintenance and repair on utilitarian 
properties have been addressed in Section 2.2. (Definitions) and 
Section 5.4. (Maintenance and Repair of Non-Historic and Utilitarian 
Historic Properties); and
    (3) the newly added Section 8. (Consideration of Archaeological 
Properties and Properties of Traditional Religious and Cultural 
Significance to Indian tribes or NHOs) introduces procedures for how 
historic properties other than buildings and structures will be 
addressed when an undertaking subject to the Program Comment could 
affect them. The procedures require (1) Further identification efforts 
(notification and consultation with SHPOs, Indian tribes, and NHOs) of 
VA if there are ground disturbance activities proposed in previously 
undisturbed areas that VA has no record of being previously surveyed; 
(2) No further identification efforts of VA if land has been previously 
reviewed/surveyed and found to have no such properties that would be 
adversely affected, if previous ground disturbance indicates a low 
probability of finding such properties, or if a qualified professional 
has determined the area has a low probability for such properties; and 
(3) VA to follow the steps at 36 CFR 800.13 (b) (Post-review 
Discoveries), if historic properties are discovered or unanticipated 
effects on historic properties are found during the implementation of 
an undertaking.
    With these revisions, ACHP staff anticipated that the VA Program 
Comment was ready for vote by the membership. A draft was sent to ACHP 
members for their consideration on

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September 28, 2018 with the expectation that it would be the subject of 
discussion at the October 3 Federal Agency Program (FAP) Committee 
Meeting and voted on at the October 4 ACHP Business Meeting in 
Washington, DC. Discussion at the FAP Committee meeting on October 3, 
2018 indicated that the ACHP members had additional concerns about the 
VA Program Comment that needed to be addressed prior to a vote. Namely, 
the need for an annual meeting, for clarification on the language 
concerning historic tax credits, for more consideration of cultural 
landscapes, for the addition of more consulting parties, and for 
additional clarification on the level of consultation with Indian 
tribes with ground disturbance activities. Consequently, on October 3, 
2018, ACHP requested a third extension from VA for an additional 15 
days to work through the remaining concerns. VA granted the extension.
    ACHP members provided their final comments to ACHP staff on October 
9, 2018. ACHP staff then worked with VA to produce another draft that 
was circulated to the ACHP members on October 11, 2018 and was to be 
the basis of discussion for a teleconference scheduled the next day, 
October 12, 2018. Fourteen ACHP members participated in the 
teleconference call on October 12, 2018. Discussion during the 
teleconference indicated that the ACHP members were comfortable moving 
forward with a vote on the draft. Consequently, the draft was revised 
one final time for minor technical edits and sent to ACHP members on 
October 15, 2018 along with a ballot for them to cast their vote. On a 
vote that closed on October 19, 2018, the ACHP members voted in favor 
of issuing the program comment reproduced below.

IV. Text of the Program Comment

    What follows is the text of the issued program comment:

U.S. Department of Veterans Affairs Program Comment for Vacant and 
Underutilized Properties

1. Introduction
    This Program Comment provides the U.S. Department of Veterans 
Affairs (VA) with an alternative way to comply with its 
responsibilities under Section 106 of the National Historic 
Preservation Act (NHPA), 54 U.S.C. 306108, and its implementing 
regulations at 36 CFR part 800 (Section 106), regarding vacant and 
underutilized properties. It enables VA to proceed with certain 
undertakings following an expedited review process that complements 
VA's real property priorities in finding uses for vacant and 
underutilized properties. VA has and will continue to prioritize 
finding uses for vacant and underutilized properties in its inventory 
in the following order: (1) VA use; (2) third-party use via an Enhanced 
Use Lease (EUL) or NHPA Section 111 lease; (3) sales, transfers, 
exchanges, or conveyances (note: property must be severable from the 
campus); and (4) deconstruction and demolition.
    VA has an annual budget planning process, called the Strategic 
Capital Investment Planning (SCIP) process that addresses space needs 
projected out over a 10-year horizon for all its facilities. The SCIP 
process has successfully found a VA use for approximately 85 percent of 
VA's historic properties. This Program Comment will address those 
vacant and underutilized properties for which the SCIP process is 
unable to identify a viable VA need.
    As of October 2018, according to VA's real property database, the 
Capital Asset Inventory (CAI), there were about 1,000 vacant and 
underutilized properties, of which approximately 400 were vacant and 
about 600 were underutilized. Not all of such vacant and underutilized 
properties were historic properties. There were about 330 vacant 
historic properties, of which about 160 were categorized as 
utilitarian. There were about 260 underutilized historic properties, of 
which about 200 were categorized as utilitarian.
2. Scope of Program Comment and Definitions
2.1. Scope
    The Program Comment applies to the following categories of 
undertakings regarding management of VA's vacant and underutilized 
properties in its CAI:
    (1) EULs and NHPA Section 111 Leases and Exchanges;
    (2) Sales, Transfers, Exchanges, and Conveyances;
    (3) Deconstruction and Demolition; and
    (4) Maintenance and repair of non-historic properties and 
utilitarian historic properties.
    VA may choose to utilize a case-by-case approach for each 
undertaking and meet Section 106 requirements by following 36 CFR 
800.3-800.7 in the event VA determines the undertaking warrants 
individual consideration. Individual consideration may be warranted 
where State Historic Preservation Officers (SHPOs), Indian tribes or 
Native Hawaiian organizations (NHOs), and/or other interested parties 
have requested additional consideration.
    This Program Comment does not apply to National Historic Landmarks 
(NHLs), any property coming into VA's portfolio as the result of an 
exchange, or to the following when VA has a record of their existence: 
(1) Archaeological historic properties, or (2) properties of 
traditional religious and cultural significance to Indian tribes or 
NHOs. Undertakings with the potential to affect any of these historic 
properties will follow the standard Section 106 review process, or if 
extant, the process detailed in any previously executed Section 106 
agreement documents that govern such undertakings. VA will comply with 
the Native American Graves Protection and Repatriation Act (NAGPRA) and 
Archaeological Resources Protection Act (ARPA), as applicable.
    A VA facility or campus with a Section 106 agreement in effect that 
addresses a disposal, lease, or exchange of vacant or underutilized 
historic properties can choose to: (1) Continue to implement the 
existing agreement for its duration; (2) seek to amend the existing 
agreement, per its stipulations, to incorporate, in whole or in part, 
the terms of this Program Comment; or (3) terminate the existing 
agreement per the stipulations of that agreement and, prior to 
approving any undertaking formerly under its scope, follow the terms of 
this Program Comment. Terminating an existing agreement would require 
any undertakings previously covered by said agreement that would not be 
covered under the scope of the Program Comment to go through the 
standard Section 106 review process.
2.2. Definitions
    For purposes of this Program Comment, the following definitions 
apply:
    Area of potential effects (APE) means the geographic area or areas 
within which an undertaking may directly or indirectly cause 
alterations in the character or use of historic properties, if any such 
properties exist. The APE is influenced by the scale and nature of an 
undertaking and may be different for different kinds of effects caused 
by the undertaking.
    Day means one calendar day, including weekends and federal 
holidays. A deadline that would otherwise fall on a weekend or a 
holiday is extended until the next business day.
    Disposal is sale, lease termination, public benefit conveyance, 
exchange, deconstruction or demolition, and/or transfer of real 
property from VA's inventory.
    Ground disturbance is any activity that moves, compacts, alters, 
displaces,

[[Page 54123]]

or penetrates the ground surface of previously undisturbed soils. 
``Undisturbed soils'' are soils that possess significant intact and 
distinct natural soil horizons. Previously undisturbed soils may occur 
below the depth of disturbed soils.
    Historic property is any district (including contributing 
resources), site, building, structure, or object listed in or eligible 
for listing in the National Register of Historic Places (National 
Register).
    Maintenance and repair are minor routine activities needed to keep 
a building or structure in, or return it to, working or usable 
condition. These activities typically involve general repairs or 
replacement of in-kind materials and typically do not diminish the 
integrity of a historic property's character-defining features, which 
make a property eligible for listing in the National Register. Major 
alterations (e.g., additions that substantially increase the square 
footage of a building or structure) are not considered routine 
maintenance and repair.
    Non-historic property is any site, building, structure, or object 
that is not listed in or eligible for listing in the National Register. 
This includes non-contributing resources to National Register-listed or 
eligible historic districts.
    Non-utilitarian property is a building or structure that is 
generally of a higher quality construction and architectural detail 
than a utilitarian property and provided space for hospitals, medical 
care, staff offices or living quarters.
    Records Check means VA will request relevant information about 
whether archaeological historic properties or properties of traditional 
religious and cultural significance to Indian tribes or NHOs are known 
to exist within the APE from SHPO, tribal, and relevant federal agency 
files, records, inventories and databases, or other sources identified 
by the SHPO.
    Underutilized is a building or structure that is currently listed 
in the Federal Real Property Profile (FRPP) as underutilized (i.e., 
occupied but the current function does not require all the available 
space) and has been listed as such for a consecutive period of 12 
months or longer. That period includes any time in such a list prior to 
the adoption of this Program Comment.
    Utilitarian property is a building or structure of practical 
design, usually without much architectural ornamentation, utilizing 
traditional construction materials, with functions primarily limited to 
industrial and storage needs. VA's utilitarian properties tend to have 
standardized plans and little architectural design, complexity, or 
uniqueness, were constructed quickly, and have been determined by VA to 
have minor or no historic significance and/or diminished or no 
integrity. Utilitarian properties in VA's inventory could include, but 
are not limited to, warehouses, garages and carports, storage sheds, 
sewage plants, transformer buildings, incinerators, smoking shelters, 
pump houses, trailers, boiler/power plants, barns, Quonset structures, 
laundry facilities, golf shacks, gate houses, guard stations, 
connecting corridors, greenhouses, fall-out shelters, maintenance shops 
(e.g., machine, paint, vehicle repair, housekeeping), animal research 
laboratories, and associated research sheds or ancillary buildings.

    Note: Buildings and structures that are individually listed, or 
individually eligible for listing, in the National Register, are not 
considered ``utilitarian properties'' for purposes of this Program 
Comment.

    Vacant is a building or structure that is currently listed in the 
FRPP as vacant/unutilized (i.e., less than 50 percent occupied) and has 
been listed as such for a consecutive period of 12 months or longer. 
That period includes any time in such a list prior to the adoption of 
the Program Comment.

    Note: The definitions of ``vacant'' and ``underutilized'' in the 
Program Comment are based on the Federal Real Property Council's 
2018 Guidance for Real Property Inventory Reporting (Version 2-Issue 
Date: August 27, 2018) and VA Directive 7633, and its accompanying 
Handbook, Managing Underutilized Real Property Assets, Including 
Options for Reuse and Disposal (published January 11, 2018). The 
``vacant'' and ``underutilized'' categories are independent of one 
another because they assess different patterns (i.e., physical 
occupation of space versus efficient utilization of space).

3. Annual Publication and Review of VA's Real Property Portfolio
    Every building, structure, or object owned or leased by VA is 
included in its CAI database, which also records whether a property has 
been evaluated and found to be historic. Utilizing real property 
portfolio information in the CAI allows VA a measure of predictability 
for addressing effects to its historic properties for the undertakings 
covered by the Program Comment.
    The Program Comment distinguishes between non-historic and historic 
properties, and, among historic properties, between utilitarian and 
non-utilitarian buildings and structures.
    Each year the Program Comment is in effect, once VA provides its 
real property information to the FRPP (i.e., December/January), VA will 
provide the Advisory Council on Historic Preservation (ACHP) with:
    (a) A composite list of properties that could be subject to the 
Program Comment should an applicable undertaking covered by the Program 
Comment be proposed (i.e., a combined list that incorporates the most 
current lists of VA's vacant and underutilized properties as defined in 
Section 2.2., indicating where the properties are located, those that 
are historic and non-historic, and those further classified as 
``utilitarian''); and
    (b) a narrative explaining its conclusion that historic utilitarian 
properties may be eliminated without endangering the continued National 
Register eligibility of the historic districts in which they are 
located. The narrative may include examples of situations where such 
eliminations have occurred with SHPO concurrence.
    The ACHP will host a publicly accessible web page that features 
information on the VA Program Comment and, each year upon receipt of 
the list and narrative from VA, will post the composite list of 
properties and narrative on that web page and send electronic mail 
(using its most recently updated lists) to the National Conference of 
State Historic Preservation Officers (NCSHPO), SHPOs, Tribal Historic 
Preservation Officers (THPOs), Indian tribes, NHOs, interested Veterans 
Service Organizations (VSOs), and ACHP members about its availability, 
along with a reminder about the timeframes outlined below. For 60 days 
after the electronic mail is sent, interested parties may request 
additional information and/or send comments to VA concerning properties 
on the composite list. For instance, any interested party may: Provide 
VA with additional information on a property and/or any associated land 
that it would like VA to take into consideration when proposing any 
future undertakings for said property; comment on and/or provide 
relevant information about the relationship between any buildings and 
structures on the composite list to the campus setting; or comment on 
and/or provide relevant information about the presence of or potential 
effects to cultural landscapes, traditional cultural properties, and/or 
properties of traditional religious and cultural significance to Indian 
tribes or NHOs. VA will respond to such requests and comments. Also 
within this 60-day period, SHPOs, THPOs, Indian tribes, and NHOs may 
object to VA in writing if there is a discrepancy between their files 
and the eligibility evaluations in

[[Page 54124]]

VA's CAI, and/or they believe the elimination of one or more 
utilitarian properties within particular historic districts in their 
states could (individually or cumulatively) endanger the continued 
eligibility of such districts. If any of these parties provide VA such 
an objection within the 60-day period, VA will either resolve the 
objection with the party or refer the matter to the ACHP for comments. 
Upon receipt of the referral, the ACHP has 30 days to provide comments 
to VA. VA will consider any such timely comments. Thereafter, and prior 
to proceeding with an undertaking involving the properties at issue, VA 
will notify the relevant party and the ACHP as to its final decision on 
the issue.
    Within the first year of the Program Comment's adoption, VA will 
present an implementation webinar to educate interested parties on the 
Program Comment.
    The 60-day period mentioned above will be reduced to 30 days in 
years subsequent to the first one. The 30-day period afforded the ACHP 
will be reduced to 15 days in years subsequent to the first one. The 
ACHP at its discretion may extend that time period for 15 days, in 
which case it shall notify the agency of such extension prior to the 
end of the initial 15-day period.
4. Consideration of Properties
4.1. Consideration of Properties Not Yet Evaluated
    If any vacant or underutilized building or structure in VA's CAI is 
being considered for an undertaking subject to this Program Comment and 
has not yet been evaluated for National Register eligibility, VA will 
undertake evaluation for eligibility to the National Register pursuant 
to 36 CFR 800.4 (c). Only evaluated properties can be subject to the 
Program Comment. Evaluation will be conducted by a person or persons 
meeting the Secretary of the Interior's Historic Preservation 
Professional Qualifications Standards in the appropriate discipline 
found in Federal Register, Vol. 62, p. 33,708 (June 20, 1997).
    Following concurrence on the evaluation results by the relevant 
SHPO, VA may proceed with following the applicable section(s) of this 
Program Comment for either non-historic or historic property. In case 
of a disagreement between VA and the relevant SHPO, VA will refer the 
matter to the Keeper of the National Register. VA will proceed in 
accordance with the Keeper's determination of eligibility.
4.2. Consideration of Non-Historic Properties
    Prior to any final approval on a proposed undertaking where there 
are no historic properties within the APE, VA's Federal Preservation 
Officer (FPO) will verify in writing for its records (Attachment 1) 
that the APE is appropriate and there are no historic properties in the 
APE (note: Non-historic properties includes non-contributing resources 
to historic districts). Once VA's FPO has completed the verification 
process, VA will have concluded its Section 106 review for such 
undertakings.
4.3. Consideration of Historic Properties
4.3.1. Utilitarian Historic Properties
    Unless VA agrees otherwise because of the Section 3. consultation 
process, above, VA will not have any further Section 106 
responsibilities regarding its leases, exchanges, sales, transfers, 
conveyances, deconstruction, or demolition of utilitarian historic 
properties that contribute to a historic district.
    With regard to the maintenance and repair of utilitarian historic 
properties that contribute to a historic district or non-historic 
properties located within a historic district, VA will follow Section 
5.4.
4.3.2. Non-Utilitarian Historic Properties
    Undertakings involving non-utilitarian historic properties will be 
reviewed in accordance with Section 5., below.
5. Consideration of Non-Utilitarian Historic Properties
    These buildings and structures are generally of a higher quality 
construction and architectural detail than utilitarian properties and 
provided space for hospitals, medical care, staff offices or living 
quarters.
    When VA determines there is no viable VA need for a non-utilitarian 
historic property, VA will ensure the property is considered for reuse 
via EUL or NHPA Section 111 Lease/Exchange as well as a sale, transfer, 
exchange, or conveyance (if property is severable from the campus) 
before deconstruction or demolition is considered.
5.1. Leases and Exchanges
    The Program Comment aims to incentivize reuse of VA's unneeded 
historic properties via lease or exchange by creating more certainty 
within the EUL process for the development of additional supportive 
housing for homeless veterans, and creating opportunities for 
efficiently converting vacant space into educational, training, 
conference, or other uses for veterans under NHPA Section 111. VA will 
issue a minimum of two solicitations for possible reuse of unneeded 
non-utilitarian historic properties through an EUL or NHPA Section 111 
lease or exchange in an effort to prioritize the reuse of vacant and 
underutilized buildings.
    VA will give priority consideration to design proposals that 
conform to the Secretary of the Interior's Standards for the Treatment 
of Historic Properties (Standards) and will include language in the 
initial public announcement that informs potential respondents of VA's 
commitment to this priority consideration.
5.1.1. First Solicitations for Lease or Exchange
    VA will market its first solicitation for reuse of a historic 
property through an EUL or NHPA Section 111 lease for a minimum of 60 
days at the national level through the Federal Business Opportunities 
(www.fbo.gov) platform. VA will consider additional time for 
solicitation based on level of interest of respondents or public 
comments. VA may also ask other national media to cross-reference the 
original posting.
5.1.1.1. Enhanced Use Lease (EUL)
    For an EUL, VA's initial public announcement will identify the 
building or structure as a historic property, and mention that 
financial incentives and financing options linked to the federal 
Historic Preservation Tax Incentives may be available to parties 
interested in leasing a historic property for supportive housing for 
homeless veterans. An EUL requires local public hearings, and this 
information will be presented to the affected community. To qualify and 
receive the tax incentives, the lessee must meet legal requirements and 
review processes identified in the National Park Service (NPS) 
Technical Preservation Services Tax Incentives Program and the Internal 
Revenue Service tax code. If a lessee pursues these financial 
incentives, and has ``Part 1--Evaluation of Significance'' and ``Part 
2--Description of Rehabilitation'' of its Historic Preservation 
Certification Application approved by NPS through the normal submission 
and review process and requirements, no further reviews will be 
required related to Section 106.
    If the lessee will not pursue federal Historic Preservation Tax 
Incentives or if Part 2 of its Historic Preservation Certification 
Application is not approved, VA will submit a design

[[Page 54125]]

proposal to the relevant SHPO for its 30-day review and concurrence 
that the design conforms to the Standards. If VA finds that the 
proposal does not conform to the Standards, or if the SHPO does not 
concur with VA's assessment that it does conform, VA will request that 
the SHPO identify the specific characteristics of the building or 
structure that qualify the property for the National Register that will 
be adversely affected by the proposal. VA will encourage modification 
of the proposal to include retention of these character-defining 
features.
    If the lessee agrees to retention of these specific 
characteristics, VA will add language confirming their retention to the 
lease. If the lessee does not agree to retain the qualifying 
characteristics, VA will notify the relevant SHPO, along with any 
parties VA identified as additional consulting parties for the relevant 
property(ies) during the Section 3. consultation process, and ensure 
the qualifying characteristics are documented prior to removal or 
alteration or that another form of mitigation of equal or lesser cost 
that is identified in consultation with the relevant SHPO is carried 
out. The notification will include VA's estimate of such cost. Prior to 
any building alteration under the lease, VA will (1) allow the SHPO and 
other identified parties 30 days after the mentioned notification to 
submit any ideas for alternate mitigation of equal or lesser cost and 
(2) take into account any such ideas that are submitted within that 
timeframe and respond in writing with its decision. For purposes of 
this subsection, the ``cost'' is a good faith estimate, by a qualified 
professional, of the additional cost of preserving and rehabilitating 
the qualifying characteristics to be removed or altered.
5.1.1.2. NHPA Section 111 Lease or Exchange
    NHPA Section 111 leases or exchanges allow a lessee to secure 
funding for capital improvements and maintenance of historic properties 
VA does not need. VA will identify the building or structure's historic 
status in the solicitation for the Request for Expression of Interest 
(RFEI), Request for Qualifications (RFQ), or Request for Proposal 
(RFP). If the property was previously considered for an EUL, 
information about why an EUL was not pursued will inform the NHPA 
Section 111 solicitation to promote a successful NHPA Section 111 lease 
and preservation of the property. If a lessee pursues federal Historic 
Preservation Tax Incentives, and has ``Part 1--Evaluation of 
Significance'' and ``Part 2--Description of Rehabilitation'' of its 
Historic Preservation Certification Application approved by NPS through 
the normal submission and review process and requirements, no further 
reviews will be required related to Section 106.
    If the lessee will not pursue federal Historic Preservation Tax 
Incentives or if Part 2 of its Historic Preservation Certification 
Application is not approved, VA will submit a design proposal to the 
relevant SHPO for its 30-day review and concurrence that the design 
conforms to the Standards. If VA finds that the proposal does not 
conform to the Standards, or if the SHPO does not concur with VA's 
assessment that it does conform, VA will request that the SHPO identify 
the specific characteristics of the building or structure that qualify 
the property for the National Register that will be adversely affected 
by the proposal. VA will encourage modification of the proposal to 
include retention of these character-defining features.
    VA will add language incorporating specific requirements of the 
lessee regarding treatment of the qualifying characteristics to the 
lease. The lease will include terms to adequately ensure preservation 
of the historic property; however, this does not prohibit adverse 
effects if such effects will not disqualify the property from being 
National Register-eligible.
    If the lessee does not agree to retain all of the qualifying 
characteristics, VA will notify the relevant SHPO, along with any 
parties VA identified as additional consulting parties for the relevant 
property(ies) during the Section 3. consultation process, and ensure 
the qualifying characteristics are documented prior to removal or 
alteration or that another form of mitigation of equal or lesser cost 
that is identified in consultation with the relevant SHPO is carried 
out. The notification will include VA's estimate of such cost. Prior to 
any alteration under the lease, VA will (1) allow the SHPO and other 
identified parties 30 days after the mentioned notification to submit 
any ideas for alternate mitigation of equal or lesser cost and (2) take 
into account any such ideas that are submitted within that timeframe 
and respond in writing with its decision. For purposes of this 
subsection, the ``cost'' is a good faith estimate, by a qualified 
professional, of the additional cost of preserving and rehabilitating 
the qualifying characteristics to be removed or altered.
5.1.2. Second Solicitations for Lease or Exchange
    If the first solicitation to reuse a historic property through an 
EUL or NHPA Section 111 lease or exchange is not successful, VA will 
again solicit for either an EUL or NHPA Section 111 lease or exchange 
via RFEI, RFQ, or RFP in the state of the property's location. This 
second solicitation will be directed to local, state, and/or tribal 
governments, municipalities, and non-profit organizations that may have 
a potential program need for space. The solicitation will be listed in 
state and local newspapers or other local media where a potentially 
interested party may see it. VA may also request other media to cross-
reference the mentioned postings. VA will notify the relevant SHPO, 
Indian tribes, and veterans' groups of the solicitation so they may 
further circulate the notice to encourage responses.
    If there is no viable response to VA's second solicitation after 60 
days, VA may proceed to consideration of the property for sale, 
transfer, exchange, or conveyance (Section 5.2.). VA will consider 
additional time for solicitation based on level of interest of 
respondents or public comments.
5.1.3. Annual Compliance Review of Leases
    VA will conduct and document an annual compliance review for the 
life of any lease. The review ensures the terms of the lease, including 
any agreed upon historic property treatments, are being met. VA retains 
the right to terminate the lease in the event its terms are not 
implemented or followed.
5.2. Sales, Transfers, Exchanges, and Conveyances
    For any sale, transfer, exchange, or conveyance from VA out of 
federal government ownership, VA will either: (a) Include a 
preservation covenant or conservation easement for non-utilitarian 
historic properties to prevent future alterations that would disqualify 
the property from being National Register-eligible; or (b) carry out 
mitigation of equal or lesser value that VA identifies in consultation 
with the relevant SHPO and any parties VA identified as additional 
consulting parties for the relevant property(ies) during the Section 3. 
consultation process. For purposes of this subsection, such ``value'' 
is, as calculated by a professional appraiser with experience in the 
evaluation of historic properties, the difference between the fair 
market value of the property before and after

[[Page 54126]]

the recording of the preservation covenant or conservation easement.
    (a) In the event a preservation covenant or conservation easement 
is included in the sale, transfer, exchange, or conveyance for non-
utilitarian historic properties, the holder would be identified at the 
time of each individual real property transaction. This process allows 
for the flexibility of negotiation unique to the circumstances of the 
sale, transfer, exchange, or conveyance of a particular historic 
property. VA will grant the covenant or easement to an organization 
(either private, nonprofit, or government) with access to qualified 
historic preservation expertise. VA will submit a draft of the 
preservation covenant or conservation easement to the relevant SHPO and 
other identified parties for a 30-day review and comment period. If 
after 30 days, there is no agreement on the language to be included in 
the covenant or easement, VA will refer the matter to the ACHP for 
comments. Upon receipt of the referral, the ACHP has 15 days to provide 
comments to VA. VA will consider any such timely comments and respond 
in writing with its decision. The ACHP at its discretion may extend 
that time period for 15 days, in which case it shall notify VA of such 
extension prior to the end of the initial 15-day period.
    (b) For any non-utilitarian historic property being considered for 
sale, transfer, exchange, or conveyance to a non-federal party without 
a covenant or easement, VA will consult for 30 days with the relevant 
SHPO to determine appropriate mitigation prior to completing the real 
estate transaction. If after 30 days there is no agreement on the 
mitigation, VA will refer the matter to the ACHP for comments. Upon 
receipt of the referral, the ACHP has 15 days to provide comments to 
VA. VA will consider any such timely comments and respond in writing 
with its decision. The ACHP at its discretion may extend that time 
period for 15 days, in which case it shall notify VA of such extension 
prior to the end of the initial 15-day period.
    VA will, prior to the transaction being concluded, complete any 
mitigation agreed upon in consultation.
    For any sale, transfer, exchange, or conveyance from VA to another 
federal agency, VA will take no further actions to document or protect 
the historic property.
5.3. Deconstruction and Demolition
    If there is no viable response to solicitations for an EUL or NHPA 
Section 111 lease or exchange per Section 5.1., VA determines that a 
sale, transfer, exchange, or conveyance is not feasible per Section 
5.2., and VA continues to have no use for a non-utilitarian historic 
property, VA may proceed with deconstruction or demolition of the 
property without any further consultation after notifying the relevant 
SHPO, any parties VA identified as additional consulting parties for 
the relevant property(ies) during the Section 3. consultation process, 
and the ACHP that it is doing so.
    However, if an entire historic district that up to this point in 
the process had been subject to the Program Comment is proposed for 
deconstruction or demolition, VA will consult for 90 days with the 
relevant SHPO and any parties VA identified as additional consulting 
parties for the relevant property(ies) during the Section 3. 
consultation process to develop a Memorandum of Agreement (MOA). If 
after 90 days there is no agreement on the terms of the MOA, VA will 
refer the matter to the ACHP for comments. Upon receipt of the 
referral, the ACHP has 30 days to provide comments to VA. VA will 
consider any such timely comments and respond in writing with its 
decision.
    Prior to deconstruction or demolition of a non-utilitarian historic 
property, VA will either: (a) Complete a Historic American Buildings 
Survey (HABS), Historic American Engineering Record (HAER), or Historic 
American Landscape Survey (HALS) documentation package, in accordance 
with the applicable guidelines, or (b) carry out another form of 
mitigation of equal or lesser cost that is identified in consultation 
with the relevant SHPO and any parties VA identified as additional 
consulting parties for the relevant property(ies) during the Section 3. 
consultation process. For purposes of this subsection, the ``cost'' is 
a good faith estimate, by a qualified professional, of the cost of 
producing the HABS/HAER/HALS documentation. If the mitigation detailed 
in (a) is pursued, the documentation will be submitted to NPS for 
inclusion in the HABS/HAER/HALS collection, submitted to the relevant 
SHPO, and will be distributed in digital form to the ACHP, NCSHPO, 
National Association of Tribal Historic Preservation Officers (NATHPO), 
National Trust for Historic Preservation, and VSOs upon request. If 
another form of mitigation is pursued as detailed in (b), VA will 
consult for 30 days with the relevant SHPO and any parties VA 
identified as additional consulting parties for the relevant 
property(ies) during the Section 3. consultation process to determine 
the type of mitigation appropriate. If after 30 days there is no 
agreement on the alternate mitigation, VA will refer the matter to the 
ACHP for comments. Upon receipt of the referral, the ACHP has 15 days 
to provide comments to VA. VA will consider any such timely comments 
and respond in writing with its decision. The ACHP at its discretion 
may extend that time period for 15 days, in which case it shall notify 
VA of such extension prior to the end of the initial 15-day period.
5.4. Maintenance and Repair of Non-Historic and Utilitarian Historic 
Properties
    Maintenance and repair is limited to vacant and underutilized non-
historic properties and historic properties that VA has categorized as 
``utilitarian.'' Routine maintenance and repair activities are included 
under the scope of this Program Comment with the goal of making it 
easier to undertake such improvements to prevent these properties from 
remaining vacant or underutilized. A building or structure that is no 
longer vacant or underutilized is no longer subject to the Program 
Comment, and is less likely to be proposed for disposal. For 
maintenance and repair activities on utilitarian historic properties, 
VA will encourage in-kind repairs, meaning that new materials used in 
repairs or replacements match the material being repaired or replaced 
in design, color, texture, other visual properties, and, where 
possible, materials. VA's FPO will verify in writing for its records 
(Attachment 1) that the proposed maintenance and repair activities on 
utilitarian historic properties meet the common-sense definition of 
``routine'' and where feasible, are performed in-kind. Major 
alterations (e.g., additions that substantially increase the square 
footage of a building or structure) are not considered routine 
maintenance and repair.
6. Programmatic Mitigation
    Since additional documentation for utilitarian historic properties 
described in Sections 2.2 and 4.3.1. will not be carried out, VA will 
develop, within five years, a public benefit document based on existing 
literature in archives, available VA documentation, photographs, and 
other source material. This document will be crafted specifically with 
veterans and the lay public as its audience. VA has generated 
substantial technical documentation on its properties (about 7,325 of 
its 8,350 buildings and structures [88 percent] have been evaluated). 
VA recognizes that while that information may be publicly available, it 
is not in a format that is readily accessible or of interest to

[[Page 54127]]

a wide audience. VA will use this information to develop a study 
grounded in the fields of anthropology, sociology, and geography to 
explore how veterans, and the way the U.S. government has cared for 
those veterans, have shaped the physical geography of VA's buildings, 
structures, and landscapes.
    The emphasis will be the cultural geography of VA over time--a 
study of the relationship between VA culture and place over three 
identified generations of its history. The three generational periods 
are (1) post-Civil War, (2) WWI through end of WWII, and (3) post-WWII 
through 1958. The document will explore how VA culture developed out of 
local landscapes but also shaped those landscapes, and will examine the 
interaction between the natural landscape and the veterans creating the 
cultural landscape. The document will focus on how VA shaped its 
particular facilities through the built environment, which encompasses 
places and spaces created or modified by people, and how those places 
and spaces reflect the people who produced them. It will address the 
different roles utilitarian buildings and structures serve on VA's 
medical campuses and national cemeteries and include information on 
where and how designed landscapes contribute to the National Register 
eligibility of campuses.
    Prior to finalization, VA will provide the ACHP, NCSHPO, NATHPO, 
and interested VSOs a draft of the document for their 30-day review and 
comment. Once finalized, the document will be available for download on 
VA's website.
7. Review of Undertakings
    All VA facilities and campuses utilizing the Program Comment will 
complete the VA Program Comment Form (Attachment 1) and submit it to 
VA's FPO. VA's FPO will review and retain all forms to ensure 
appropriate use of the Program Comment. The VA facility or campus must 
receive approval from the FPO prior to commencing the undertaking. VA 
will compile statistics annually at the end of each fiscal year for the 
duration of the Program Comment.
    Summary information about utilization of the Program Comment 
compiled by VA's FPO will be updated annually, available from VA's 
website, and included in VA's Executive Order 13287 Section 3 reports. 
VA will notify the ACHP and NCSHPO when the annually updated summary 
information is available.
    Once the summary information is available, VA will convene an 
annual meeting with the ACHP, NCSHPO, NATHPO, National Trust for 
Historic Preservation, and interested VSOs to report on use of the VA 
Program Comment. The annual meeting will include the opportunity to 
discuss the composite list of VA properties provided during the Section 
3. consultation process (see Attachment 2 for more detail about the 
annual meeting).
8. Consideration of Archaeological Properties and Properties of 
Traditional Religious and Cultural Significance to Indian Tribes or 
NHOs
    When an undertaking is proposed under the Program Comment, VA's FPO 
will verify the potential for ground disturbance activities associated 
with that undertaking as submitted. If there is the potential for 
ground disturbance activities, VA will proceed as follows:
8.1. Further Identification Efforts Required
    If there are ground disturbance activities proposed for areas 
outside the area of original/previous disturbance and VA has no 
internal record that this land has been previously surveyed for 
archaeological historic properties or properties of traditional 
religious and cultural significance to Indian tribes or NHOs, VA will:
    a. Notify the relevant SHPO, Indian tribes, and NHOs of VA's intent 
to follow this Program Comment, provide these parties with a proposed 
APE, and request comments on the APE and any information regarding 
known historic properties within the relevant APE be provided to VA 
within 30 days.
    b. Complete a Records Check to identify any archaeological historic 
properties within the APE of which VA does not already have a record. 
If a Records Check reveals no information on the presence of 
archaeological historic properties within the APE, VA will consult with 
the relevant SHPO, Indian tribes, and NHOs to determine whether, based 
on professional expertise, tribal culture and history, familiarity with 
the area, and similar geomorphology elsewhere, the APE includes areas 
that have a high probability of containing National Register-eligible 
archaeological properties. If so, those areas within the APE will be 
avoided. If they cannot be avoided, VA will consult with the SHPO, 
Indian tribes, and NHOs to determine whether a survey or monitoring 
program should be carried out to identify historic properties. VA will 
consider any comments or additional information provided by the SHPO, 
Indian tribes, and NHOs received within 30 days of the notification 
prior to making a final decision on its efforts to identify such 
historic properties.
    c. If historic properties are identified, VA will follow the steps 
at 36 CFR 800.13(b) (Post-review Discoveries).
8.2. No Further Identification Efforts Required
    If the area where ground disturbance activities are proposed falls 
under one or more of the below criteria, VA has no further 
responsibilities to identify archaeological historic properties or 
properties of traditional religious and cultural significance to Indian 
tribes or NHOs prior to implementing the undertaking. VA will follow 
the steps at 36 CFR 800.13(b) (Post-review Discoveries), if historic 
properties are discovered or unanticipated effects on historic 
properties are found during the implementation of the undertaking.
    a. If the land has been previously surveyed or reviewed by 
interested Indian tribes or NHOs or been the subject of previous 
consultation, and no historic properties of traditional religious and 
cultural significance to Indian tribes or NHOs have been identified 
whose National Register qualifying characteristics would be adversely 
affected; or
    b. If the land has been previously field surveyed by a qualified 
professional for archaeological resources and there have been no 
archaeological historic properties nor historic properties of 
traditional religious and cultural significance to Indian tribes or 
NHOs located within the APE whose National Register qualifying 
characteristics would be adversely affected; or
    c. If the land has been previously disturbed to the extent and 
depth where the probability of finding intact archaeological historic 
properties is low; or
    d. If the land is not considered to have a high probability for 
archaeological historic properties by a qualified professional based on 
professional expertise, familiarity with the area, and similar 
geomorphology elsewhere.
9. Effect of Program Comment
    By adhering to the terms of this Program Comment, VA meets its 
responsibilities for compliance under Section 106 of the NHPA for 
disposals, leases, or exchanges of its vacant and underutilized 
properties, and maintenance or repair of such properties that are non-
historic or utilitarian historic. VA is no longer required to follow 
the process set forth in 36 CFR 800.3-800.7 for case-by-case reviews 
for each of these individual undertakings.
    This Program Comment will remain in effect for 10 years from 
issuance

[[Page 54128]]

unless, prior to that time, VA determines that such comments are no 
longer needed and notifies the ACHP, in writing, or the ACHP withdraws 
the Program Comment in accordance with 36 CFR 800.14(e)(6). Following 
such withdrawal, VA will again be required to comply with Section 106 
through the process in 36 CFR 800.3-800.7, or an applicable program 
alternative under 36 CFR 800.14, for each individual undertaking 
formerly covered by this Program Comment.
    During the first six months of the ninth year since issuance of 
this Program Comment, VA and the ACHP will meet to determine whether to 
consider an extension to its term. Such an extension would need to be 
pursued through an amendment, as detailed below.
10. Amendment
    The ACHP may amend this Program Comment after consulting with VA, 
and other parties as appropriate. The ACHP will publish notice in the 
Federal Register to that effect within 30 days after its decision to 
amend this Program Comment.

Attachment 1: VA Program Comment Form 1-A

This Section To Be Completed by Facility Staff

Facility Name and Location:
Building Number:
Date building vacated and/or number of years vacant:
Date building listed as underutilized and/or number of years 
underutilized:
Type of building: _utilitarian _non-utilitarian
Photo: insert below
Describe Proposed Undertaking/Action:

    Please Circle the Applicable Undertaking and give an 
explanation:

    (1) Enhanced Use Leases, NHPA Section 111 Leases and Exchanges
    (2) Sales, Transfers, Exchanges, Conveyances
    (3) Deconstruction, Demolition
    (4) Maintenance and repair of non-historic properties and 
utilitarian historic properties

    Are there any ground-disturbing activities associated with 
Undertaking?
    If yes, describe the activities in detail and include a map 
indicating where these activities will likely occur (Area of 
Potential Effects):
    Has the APE been previously surveyed for archaeological historic 
properties or properties of traditional religious and cultural 
significance to Indian tribes or Native Hawaiian organizations?
    If yes, reference reports:

Your Name:
Title:
Email address:
Phone number:
Signature:
Date:

This Section To Be Completed by VA's Federal Preservation Officer

    Historic Evaluation:

--Date
--Historic Status

    Comments:
    VA FPO Approval Signature:
    Date:

Attachment 2: Annual Meeting Protocol

Annual Meeting Protocol

    A. Annual Meeting: A meeting among VA, ACHP, NCSHPO, NATHPO, 
National Trust for Historic Preservation, and interested VSOs will 
be coordinated on an annual basis for the duration of this Program 
Comment.
    B. Topics: At least two weeks prior to these meetings, VA will 
provide the other parties with the following information (subject to 
the confidentiality requirements of 36 CFR 800.11(c), and other 
applicable laws):
    1. A list of all undertakings reviewed in the previous year 
under Sections 4 through 8 of this Program Comment, including the 
following:
    a. Building or site identification, including location;
    b. a brief undertaking description;
    c. portfolio outcome, with completion date;
    C. Assessing Overall Effectiveness: In addition to providing an 
opportunity for the parties to discuss the specific information 
described in paragraph B, the annual meetings will also provide the 
parties an opportunity to assess the overall effectiveness of the 
Program Comment in addressing the preservation of historic 
properties, consistent with the operational mission and activities 
of VA. Specifically, the annual meetings will provide the parties an 
opportunity to discuss the planning, design, review, and 
implementation of undertakings affecting historic properties, and to 
discuss and evaluate the following issues:
    1. Whether the time periods allocated for review and 
consultation in the Program Comment have been adequate to ensure 
consideration of potential alternatives that avoid, minimize, or 
mitigate harm to historic properties; and
    2. Whether problems or misunderstandings have arisen in the 
course of applying the Program Comment and, if so, how those 
problems could be avoided in the future.

    Authority: 36 CFR 800.14(e).

    Dated: October 22, 2018.
John M. Fowler,
Executive Director.
[FR Doc. 2018-23397 Filed 10-25-18; 8:45 am]
BILLING CODE 4310-K6-P