[Federal Register Volume 87, Number 211 (Wednesday, November 2, 2022)]
[Notices]
[Pages 66201-66204]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-23854]


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ADVISORY COUNCIL ON HISTORIC PRESERVATION


Exemption From Historic Preservation Review for Electric Vehicle 
Supply Equipment

AGENCY: Advisory Council on Historic Preservation.

[[Page 66202]]


ACTION: Approval of exemption regarding electric vehicle supply 
equipment.

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SUMMARY: The Advisory Council on Historic Preservation (ACHP) has 
approved an exemption that would relieve federal agencies from the 
historic preservation review requirements under the National Historic 
Preservation Act regarding the effects of the installation of certain 
electric vehicle supply equipment (EVSE) on historic properties.

DATES: The exemption goes into effect on October 26, 2022.

FOR FURTHER INFORMATION CONTACT: Jaime Loichinger, (202) 517-0219, 
[email protected].

SUPPLEMENTARY INFORMATION: Section 106 of the National Historic 
Preservation Act, 54 U.S.C. 306108 (section 106 and NHPA), requires 
federal agencies to consider the effects of projects they carry out, 
license/permit/approve, or assist (undertakings) on historic 
properties, and provide the Advisory Council on Historic Preservation 
(ACHP) a reasonable opportunity to comment with regard to such 
undertakings. Historic properties are those properties that are listed 
in the National Register of Historic Places (National Register) or 
eligible for such listing.
    The NHPA authorizes the ACHP to promulgate regulations for 
exempting undertakings from any or all of the requirements of section 
106. 54 U.S.C. 304108(c). The section 106 regulations, found at 36 CFR 
part 800, detail the process for the approval of such exemptions at 36 
CFR 800.14(c).
    In accordance with section 800.14(c), the ACHP may approve an 
exemption for an undertaking if it finds that: (i) the actions within 
the program or category would otherwise qualify as ``undertakings'' as 
defined in 36 CFR 800.16; (ii) the potential effects of the 
undertakings within the program or category upon historic properties 
are foreseeable and likely to be minimal or not adverse; and (iii) 
exemption of the program or category is consistent with the purposes of 
the NHPA.

I. Background

    In 2021, two Executive Orders (E.O.) were issued to accelerate 
investment in sustainable procurement strategies, focused on clean 
energy and infrastructure: (1) E.O. 14008, Tackling the Climate Crisis 
at Home and Abroad, prioritizes the development of a Federal Clean 
Electricity and Vehicle Procurement Strategy and directs Federal 
agencies to upgrade the entire federal fleet to clean and zero-emission 
vehicles (ZEV); and (2) E.O. 14057, Catalyzing Clean Energy Industries 
and Jobs Through Federal Sustainability, sets a goal of 100 percent ZEV 
federal acquisitions by 2035, including 100 percent light duty vehicle 
federal acquisitions by 2027.
    Additionally, the Infrastructure Investment and Jobs Act (IIJA) of 
2021 (Pub. L. 117-58) appropriates $550 billion for new infrastructure 
investments related to electric vehicles (EV), which are ZEVs. The IIJA 
includes provisions to increase investment in electric vehicle supply 
equipment (EVSE), alternative fuel infrastructure, EV batteries, 
electricity grid upgrades, and light-, medium-, and heavy-duty ZEVs and 
vessels. Several federal grant programs were established or received 
additional funding through the IIJA. The National Electric Vehicle 
Infrastructure (NEVI) program provides formula funding to states to 
install EVSE, while the Charging and Fueling Infrastructure Grant 
Program will provide grants on a competitive basis, with priority given 
to projects that expand access to EVSE within rural areas and low- and 
moderate-income neighborhoods. In total, the IIJA provides up to $7.5 
billion to build out a national network of EV chargers in the United 
States, including on Tribal lands. Due to these requirements and 
investments, federal agencies are anticipated to propose activities to 
carry out, license, approve, or fund undertakings to electrify federal 
vehicles and provide EVSE that have the potential to affect historic 
properties and therefore, require section 106 review.
    An EV produces zero tailpipe emissions when running only on 
electricity, dramatically lowering smog and greenhouse gas emissions 
even when considering electricity generation (EV refers to both Battery 
Electric Vehicles and Plug-in Hybrid Electric Vehicles). In order to 
charge EVs, installation of EVSE is required. EVs have the potential to 
significantly improve federal fleet efficiency by reducing vehicle 
operation and maintenance costs. EVs require EVSE. Commonly referred to 
as charging stations, EVSE is the hardware that supplies electricity to 
charge an EV. There are three levels of EVSE that are defined by their 
charging capacities; EVSE can be wall- or pole-mounted, co-located or 
stand alone, and vary in design, size, charging speed and energy use.

II. Exemption Concept and Criteria

    In considering how to address the anticipated increase in 
undertakings as a result of these requirements and investments, the 
Department of Homeland Security (DHS) assembled an ad hoc working group 
of Federal Preservation Officers (FPOs) to discuss EV priorities and 
the potential effects of expanded EVSE infrastructure programs on 
historic properties. Through consultation with fleet technical experts, 
the working group defined the undertakings to be addressed by the 
proposed exemption as the installation, maintenance, repair, and 
expansion of Levels 1, 2, and 3 EVSE as defined by the General Services 
Administration (GSA). After being approached by DHS with the concept of 
a program alternative, the ACHP determined it would propose the 
exempted category itself. The government-wide priority for fleet 
electrification and EVSE installation merited ACHP coordination of the 
proposal to ensure broad and appropriate consultation for an exemption 
likely to be applied across multiple federal agency programs.
    The exemption can be used by ``federal agencies.'' It is also 
available to be used by a state, local, or tribal government official 
who has been delegated legal responsibility for compliance with section 
106 in accordance with a federal statute. Consistent with 36 CFR 
800.14(c)(1), section 106 exemptions must meet the criteria mentioned 
earlier. The ACHP has determined that the proposed exemption, which 
appears below, meets these criteria. The exemption aligns with the 
requirements of the NHPA because it reflects an effort to harmonize 
modernization and climate change reduction measures with the continued 
protection and enjoyment of historic properties. As described above and 
in the exemption text, the EVSE will be restricted to existing 
footprints and levels of previous ground disturbance, and would use 
reversible, non-permanent techniques for installation, where 
appropriate. As such, the effects of the proposed undertakings are 
foreseeable and likely to be minimal or not adverse.

III. Public Participation and Consultation

    In accordance with 36 CFR 800.14(c)(2), public participation 
regarding exemptions must be arranged on a level appropriate to the 
subject and scope of the exemption. In order to meet this requirement, 
an earlier draft was published for public comment in the Federal 
Register on May 5, 2022 (87 FR 26771-26773). The ACHP worked closely 
with multiple federal agencies to ensure the exemption has the correct 
technical language, and also consulted

[[Page 66203]]

with State Historic Preservation Officers, Tribal leaders, Tribal 
Historic Preservation Officers, and other consulting parties, including 
the National Trust for Historic Preservation and the National Alliance 
of Preservation Commissions.
    Seven consultation meetings were held between June and August 2022, 
and had participants from 31 states, 21 Tribes, and 3 organizations. 
Comments and questions were submitted during consultation meetings, as 
well as via email during comment periods that followed the consultation 
meetings. Most comments were supportive of the effort, although two 
organizations opposed the exemption in its entirety.
    Comments reflected a range of areas, including: the scope of the 
exemption; the need for additional details, definitions and conditions 
to ensure effects to historic properties are not adverse; the use of 
professionals qualified within historic preservation field by agencies 
to meet the exemption's conditions; the potential cumulative effects to 
historic properties or post-review discoveries; and the potential for 
effects to properties of religious and cultural significance to Indian 
Tribes and Native Hawaiian organizations.
    In response to these comments, the ACHP revised the exemption to 
more clearly define the range of actions that can occur using the 
exemption and added additional detail to the conditions under which an 
undertaking may fall within the scope of this exemption. Additional 
definitions, including changes to ``parking facilities'', were included 
in the version approved by the ACHP. Regarding the use of qualified 
professionals, the ACHP determined that such a requirement is not 
necessary because even if historic properties are present, they would 
not be affected due to the exemption's conditions. While the 
requirement was not included within the exemption, the conditions were 
further refined to ensure that non-historic preservation professionals 
could reasonably apply the exemption's terms.
    The ACHP received comments regarding the potential for the 
installation of EVSE, particularly when several EVSE might be installed 
within one location, to result in cumulative effects to historic 
properties, or for there to be discoveries of historic properties 
during project implementation. As written, because the exemption 
requires the use of existing electrical infrastructure, the amount of 
new EVSE that could be constructed or implemented at a given location 
is necessarily limited to the current electrical capacity. Therefore, 
it is unlikely to result in cumulative adverse effects on historic 
properties. Further, any addition beyond the existing electrical 
capacity would fall outside the exemption and require section 106 
review. Other comments requested that there be a survey requirement. 
Because the exemption relies upon existing infrastructure and parking 
structures, any ground disturbance necessary to install the equipment 
will be limited to areas already disturbed, meaning that a survey would 
not likely result in the identification of historic properties that 
have sufficient integrity to contribute to or be individually 
considered eligible for listing in the National Register of Historic 
Places. Similarly, because the exemption limits the level of ground 
disturbance to previously disturbed sediments, it is unlikely that 
discoveries of intact historic properties that retained integrity would 
occur. Moreover, the requirements of the Native American Graves 
Protection and Repatriation Act and other federal, state and local laws 
(besides section 106) are unaffected by the exemption. No additional 
edits were made to the exemption as a result of these comments.
    Comments were received regarding potential effects from EVSE to 
historic properties of religious and cultural significance to Indian 
tribes and Native Hawaiian organizations (NHOs), and how agencies would 
determine whether the installation of EVSE in a location may affect 
such properties without consultation with the affected Indian Tribe or 
NHO. While it is possible that some EVSE locations may be placed on or 
near such properties, because the exemption requires that ground 
disturbance be limited to the depth of previous construction and that 
the EVSE be minimally visible, the ACHP believes the exemption will 
reasonably ensure that any effects from the proposed EVSE undertakings 
to historic properties will be minimal or not adverse. When planning 
EVSE projects, agencies are encouraged to discuss the projects with 
stakeholders, including Indian Tribes and NHOs, to ensure that 
application of the exemption is appropriate. This recommendation is 
further strengthened by the addition of a new stipulation within the 
exemption, ``Recommendation Outside Tribal Lands.''
    Two objections were made to the exemption, on the basis that the 
proposal ran contrary to the purposes of the NHPA. However, one of the 
explicit policies of the NHPA is for the federal government to ``use 
measures . . . to foster conditions under which our modern society and 
our historic property can exist in productive harmony and fulfill the 
social, economic, and other requirements of present and future 
generations.'' 54 U.S.C. 300101(1). Climate change presents various 
challenges to historic properties and to many social, economic and 
other needs that must be addressed. Given that this exemption supports 
expansion of the use of EVs across the country, a climate change 
reduction method, it clearly meets the purposes of the NHPA. The ACHP 
acknowledges the objections and will continue to oversee the 
exemption's use.
    Finally, to ensure appropriate administrative oversight of the 
exemption, the ACHP added an amendment provision to the exemption. 
While there were requests to also include a reporting stipulation, such 
reporting was determined by the ACHP to be unnecessary due to the 
minimal or non-adverse effects to historic properties. Further, such 
information would be challenging to require and obtain from the myriad 
agencies that will be using this exemption. However, the ACHP has 
committed to routinely querying agencies regarding the use of the 
exemption and will share that information with consulting parties when 
appropriate.
    On October 26, 2022, the ACHP membership approved the exemption 
reproduced below.

IV. Text of Exemption

    The full text of the approved exemption is reproduced below:

Exemption Regarding Historic Preservation Review Process for 
Undertakings Involving Electric Vehicle Supply Equipment

I. Exemption From Section 106 Requirements

    Except as noted in Section II, all federal agencies are exempt from 
the Section 106 requirements of taking into account the effects of the 
installation, maintenance, repair, or expansion of EVSE and Level 1, 2, 
or 3 charging stations, provided these:
    (1) take place in existing parking facilities with no major 
electrical infrastructure modifications and are located as close to an 
existing electrical service panel as practicable;
    (2) use reversible, minimally invasive, non-permanent techniques to 
affix the infrastructure;
    (3) minimize ground disturbance to the maximum extent possible, and 
ensure that it does not exceed previous levels of documented ground 
disturbance;

[[Page 66204]]

    (4) use the lowest profile EVSE reasonably available that provides 
the necessary charging capacity;
    (5) place the EVSE in a minimally visibly intrusive area; and
    (6) use colors complementary to surrounding environment, where 
possible.
    Each federal agency remains responsible for considering the effects 
of components of its undertakings not subject to this exemption on 
historic properties, in accordance with subpart B of the Section 106 
regulations or according to an applicable program alternative pursuant 
to 36 CFR 800.14.

II. Application on Tribal Lands

    This exemption shall not apply on Tribal Lands, or to activities 
that may affect historic properties located on Tribal Lands, unless the 
Tribal Historic Preservation Officer, Tribe, or a designated 
representative of the Tribe has provided prior written notification to 
the Advisory Council on Historic Preservation (ACHP) that it agrees 
with the use of the exemption on its lands. Indian Tribes can agree to 
such use of the exemption by completing the attached form (Attachment 
A) and submitting the completed form to the ACHP. The exemption would 
then be applicable on those Tribal Lands when the ACHP provides notice 
on its website of such agreement.

III. Recommendation Outside Tribal Lands

    While the ACHP does not expect that activities carried out 
consistent with this exemption will affect historic properties of 
religious and cultural significance to Indian tribes or Native Hawaiian 
organizations (NHOs), the ACHP notes that such historic properties have 
not been consistently identified during prior documentation efforts. 
The ACHP advises that, where the installation of EVSE may occur in a 
location on or near an existing archaeological site, feature, or 
district, or any other property with known potential significance to 
Indian Tribes or NHOs, the agency should coordinate with interested 
Indian Tribes or NHOs to determine whether they ascribe significance to 
the site or property. Should a Tribe or Native Hawaiian organization 
ascribe significance to the site area, the agency should undertake a 
Section 106 review in accordance with subpart B of the Section 106 
regulations or according to an applicable program alternative pursuant 
to 36 CFR 800.14.

IV. Existing Agreements and State and Local Reviews

    This exemption does not amend, invalidate, or otherwise modify 
Section 106 agreements in existence at the time this exemption goes 
into effect. This exemption does not modify, preempt, or replace any 
applicable state or local laws or regulations.

V. Termination

    The ACHP may terminate this exemption in accordance with 36 CFR 
800.14(c)(7) if it determines that the purposes of Section 106 are not 
adequately met.

VI. Amendments

    This exemption may be amended by the ACHP membership. Such 
amendments must be consistent with the criteria at 36 CFR 800.14(c)(1) 
and preceded by consultation appropriate to the scope of the 
amendments.

VII. Definitions

    The following definitions shall apply to this exemption:
    a. ``Agency'' means an agency as defined by 5 U.S.C. 551, and 
includes state, local, or tribal government officials who have been 
delegated legal responsibility for compliance with Section 106 in 
accordance with federal law.
    b. ``Electric Vehicle Supply Equipment'' (EVSE) means conductors, 
including the ungrounded, grounded, and equipment grounding conductors 
and the electric vehicle connectors, attachment plugs, and all other 
fittings, devices, power outlets, or apparatus installed specifically 
for the purpose of delivering energy from the premises wiring to the 
EV. There are three levels of EVSE:
    i. Level 1--Refers to a freestanding or wall mounted charging 
structure that delivers a 110/120V charge, replenishing an EV battery 
at a rate of 4 to 6 miles of range per hour of charging time. Charging 
an EV at level 1 typically takes between 7 and 20 hours depending on 
the size of the vehicle's battery.
    ii. Level 2--Refers to a freestanding or wall mounted charging 
structure that delivers a 208/240V charge, replenishing an EV battery 
at a rate of 10 to 20 miles of range per hour of charging time. 
Charging an EV at level 2 typically takes between 2 and 5 hours 
depending on the size of the vehicle's battery.
    iii. Level 3 (also known as Direct Current (DC) Fast Charging) -
Refers to a freestanding or wall mounted structure capable of being 
networked that is designed to charge vehicles more quickly than level I 
or level II with an electrical output ranging between 40 kW--500 kW 
delivering 50--1000 volts of direct current to the EV battery. Converts 
AC power to DC within the charging station and delivers DC power 
directly to the battery. DC fast charging can typically replenish an EV 
battery at a rate of 50 to 200 miles of range per 30 minutes of 
charging time.
    c. ``Lowest profile equipment'' means EVSE that is the smallest 
height and width possible that meets the EV charging needs.
    d. ``Minimally visibly intrusive'' means that the EVSE is partially 
visible but does not detract from the views from or to historic 
properties.
    e. ``Parking facility'' means any building, structure, land, right-
of-way, facility or area used for parking of motor vehicles.
    f. ``Tribal lands'' means all lands within the exterior boundaries 
of any Indian reservation and all dependent Indian communities.

Attachment A to the Exemption From Historic Preservation Review for 
Electric Vehicle Supply Equipment

    The (INSERT NAME OF INDIAN TRIBE) authorizes federal agencies to 
utilize the attached Exemption from Historic Preservation Review for 
Electric Vehicle Supply Equipment on the Tribal Lands of the (INSERT 
NAME OF INDIAN TRIBE).
Signed by: (Signature)
(Printed Name and Title)
(DATE)
    The (INSERT NAME OF INDIAN TRIBE) may discontinue this 
authorization at any time by providing written notice to the Advisory 
Council on Historic Preservation.
For further information, please contact: (Tribal Contact; Name and 
Contact Information)
(END OF DOCUMENT)
    Authority: 36 CFR 800.14(c).

    Dated: October 28, 2022.
Javier Marques,
General Counsel.
[FR Doc. 2022-23854 Filed 11-1-22; 8:45 am]
BILLING CODE 4310-K6-P