[Federal Register Volume 63, Number 79 (Friday, April 24, 1998)]
[Notices]
[Pages 20496-20508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-10972]
[[Page 20495]]
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Part III
Department of the Interior
_______________________________________________________________________
National Park Service
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The Secretary of the Interior's Standards and Guidelines for Federal
Agency Historic Preservation Programs Pursuant to the National Historic
Preservation Act; Notice
Federal Register / Vol. 63, No. 79 / Friday, April 24, 1998 /
Notices
[[Page 20496]]
DEPARTMENT OF THE INTERIOR
National Park Service
The Secretary of the Interior's Standards and Guidelines for
Federal Agency Historic Preservation Programs Pursuant to the National
Historic Preservation Act
AGENCY: National Park Service, Interior.
ACTION: Final.
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SUMMARY: The National Park Service is publishing for effect revisions
to the Secretary of the Interior's Standards and Guidelines for Federal
Agency Historic Preservation Programs Pursuant to Section 110 of the
National Historic Preservation Act of 1966, as amended (16 U.S.C. 470h-
2).Q02
EFFECTIVE DATE: April 24, 1998.
FOR FURTHER INFORMATION CONTACT: Mr. David M. Banks, Heritage
Preservation Services, NC330, National Center for Cultural Resource
Stewardship and Partnerships Programs, National Park Service, 1849 C
Street, NW, Washington, DC 20240. Telephone: 202-343-9518. Facsimile:
202-343-3921. E-mail: [email protected].
SUPPLEMENTARY INFORMATION:
Background
Section 110 of the National Historic Preservation Act of 1966, as
amended (16 U.S.C. 470h-2) establishes Federal agency responsibilities
for the preservation of historic properties. Section 101(g) of the Act
(16 U.S.C. 470a) directs the Secretary of the Interior to promulgate
guidelines for Federal agency responsibilities under that part.
The proposal published here is a revision of guidelines originally
published in the Federal Register on February 17, 1988 (53 FR 4727-46).
The revision takes account of the 1992 amendments to the National
Historic Preservation Act of 1966, as amended (title XL of Pub. L. 102-
575).
These guidelines have no regulatory effect. Instead, they are the
Secretary's formal guidance to each Federal agency on meeting the
requirements of section 110 of the Act.
Preparation of the Final Standards and Guidelines
Public comment was invited for a 60-day period, ending on August
18, 1997 (62 FR 33105-15). Copies of the notice were sent to all
Federal Preservation Officers, all State Historic Preservation
Officers, and all Tribal Preservation Officers recognized pursuant to
section 101(d) of the NHPA.
Twenty-three written comments were received representing 20
different organizations. That included nine federal agencies, four
SHPOs, one Alaska Native association, one state transportation
department, two national associations, two mining companies and four
offices within NPS. Comments addressed all of the proposed standards
and almost all of the guidelines for implementing those standards. All
comments were fully considered in revising the proposal for publication
in final form.
In general, the comments were favorable. Most comments were
editorial in nature, i. e., they requested technical clarifications, or
suggested improvements in format, wording and syntax. In the interest
of brevity, these comments are not discussed further here. The
following response to public comments focuses first on those
substantive comments that were general in nature, and then on those
comments that addressed particular standards and guidelines.
Response to Public Comment
General Comments
First, several commenters asked that the statement, ``these
guidelines have no regulatory effect'' be made more prominent. We agree
and have added the statement just before the listing of the standards,
themselves. In a related comment, one person suggested that use of the
word ``standards'' rather than just guidelines implies some level of
regulatory enforcement. We disagree. The Secretary has over the years
established and published a wide variety of standards and guidelines
for historic preservation activity. None of these standards has
regulatory effect, unless they are incorporated in a separate
regulation that applies them as enforceable standards. These standards
and guidelines for federal agency programs are no different.
Second, one commenter suggested that, because so many federal
agency historic preservation activities are subject to review as
undertakings pursuant to section 106 of the NHPA, these standards and
guidelines should refer more often and more prominently to section 106
and to the section 106 review process set out in 36 CFR part 800. While
we agree that the section 106 process is a focal point for federal
agency undertakings, we believe that these standards and guidelines
already make sufficient reference to the section 106 process.
Additional references to the section 106 process would tend to obscure
the larger message that federal agencies have affirmative
responsibilities under section 110 that go beyond the responsibility
for compliance with section 106. In addition, these standards and
guidelines make clear that they are in addition to, not instead of,
other guidance and requirements, such as section 106.
Third, one commenter expressed concern that these standards and
guidelines do not include specific benchmarks for documentation of
historic properties. In response, we note that such standards and
guidelines already exist as a part of the Secretary of the Interior's
Standards and Guidelines Architectural and Engineering Documentation
(48 FR 44730-34). Consequently, they do not need to be restated here.
Comments on Specific Standards
Standard 1
First, two commenters suggested that the parameters of
``consultation'' with the Secretary be defined under guideline (d). We
agree on the need for additional guidance on the requirement in section
110(a)(2) that each federal agency shall establish a preservation
program ``in consultation with the Secretary.'' NPS is currently
working with an interagency task force of federal agency preservation
officers to develop this guidance, and will publish it for comment upon
completion of the task force's work.
Second, three commenters suggested that the cost of historic
preservation work can become an undue burden, so that guidelines (e)
and (i) should define more specifically what ``reasonable preservation
costs'' are. We disagree. Whether something is or is not an undue
burden will always be in the eye of the beholder. It is also
inappropriate and impractical to try to create some dollar-based
formula that would inevitably be an arbitrary measure. Each federal
agency must determine what is reasonable on a case-by-case basis,
taking into account the agency's programmatic needs, the alternatives
that are available for meeting those needs, the significance of any
affected historic resources and the nature of the work needed to
protect or minimize harm to them, the nature of the undertaking, and
the budgetary resources that are available for the project.
Third, one commenter noted that the NHPA requires only that federal
agencies ``consider'' preservation of historic properties, so that
these standards and guidelines should explicitly state that agencies
may in some cases decide to neglect or destroy a historic property. We
believe that the meaning of ``consideration'' is fully addressed in
Standard 4 and its
[[Page 20497]]
guidelines, and that the full range of options available to federal
agencies is addressed in Standard 7 and its guidelines. Consequently,
no additional guidance in necessary in Standard 1.
Standard 2
Four comments addressed guideline (g) and asked for more
clarification of and/or limitations on the need to resurvey an area
that was surveyed at some point in the past. Specific suggestions
included establishing a minimum time period that must have elapsed
before resurvey is necessary, and establishing limits on the costs of
resurvey that can be passed on to private parties. We agree with those
comments that pointed out the need for clarification and have added
appropriate language to the guideline. However, we disagree with the
suggestions for a standard time period and for a limit on the costs to
private parties. Agencies must make these latter decisions based on the
facts of each case, rather than on an arbitrary formula that may or may
not be relevant to the case at hand.
One commenter expressed concern that the inclusion in guideline (e)
of the phrase ``alter the social, cultural, or economic character of a
community'' exceeds the intent of the National Historic Preservation
Act. We believe the phrase is appropriate. The phrase is among a list
of examples of actions that can affect historic properties. Where those
actions do affect historic properties, they are properly within the
scope of the Act. If, on the other hand, an action alters the character
of a community in a way that does not affect historic properties, the
action falls outside the purview of the Act.
One commenter asked whether the requirement in guideline (b) for
the identification and evaluation of historic properties by
professionally qualified individuals means that the identification and
evaluation process must be carried out to the exclusion of
``generalist'' staff members who nevertheless have some management
responsibility for agency properties. While we do not believe that
additional language is necessary for the guideline, we affirm here that
the guideline applies only to the technical process of determining
whether and why a property appears to meet the National Register's
eligibility criteria. Such a technical finding should be made by
someone with appropriate professional qualifications, but the agency's
property management decisions both before and after such a finding are
the province of the ``generalists'' who exercise that decision-making
authority for the agency.
One commenter suggested two additional guidelines for this
standard. One guideline would call on agencies to establish plans and
schedules for the identification and evaluation of properties under
their control. We agree that, where it is feasible for an agency to
establish such specific objectives, it should do so in order to measure
its own progress. However, the ability to conduct survey and evaluation
work independent of specific project needs varies so greatly from
agency to agency and from year to year that establishing a schedule
would often be a meaningless exercise. Section 110 makes no such
requirement, so we must leave it to each agency to determine whether
such a schedule would be meaningful and helpful.
The second suggested additional guideline addressed the disposition
of archeological collections recovered during agency activities
pursuant to section 110. Omission of this guidance was an oversight.
However, we have added the appropriate language to Standard 6,
guideline (c), rather than to Standard 2.
Standard 3
Several commenters offered essentially editorial suggestions that
were aimed at emphasizing the importance of nominating properties to
the National Register. We agree that the language of section 110
anticipates that nomination of properties to the Register will be an
ongoing function of agency preservation programs. We have incorporated
the suggested changes as appropriate.
One commenter suggested that placing National Register nominations
as the third standard could create the misimpression that only those
properties that are already registered are subject to the guidance in
the standards that follow. The commenter proposed making this standard
the last one on the list. We disagree. While one can devise--and,
indeed, we did consider--various sequences for the presentation of
these standards, we believe that the order presented here offers a
logical cadence. It is true that registration is not a prerequisite for
preservation and appropriate management, and we trust that the language
of the guidelines eliminates any confusion on that point. On the other
hand, as noted above, registration should be an ongoing function and
should not appear in these standards and guidelines as if it were an
activity to be carried out only when all else is said and done.
Standard 4
Stantive comments focused on guideline (f), concerning the
determination of whether an ``agency's procedures for compliance with
section 106 are consistent with regulations issued by the (Advisory)
Council.'' (Section 110(2)(E)(i)). Three commenters expressed the
concern that this guideline seems to say that an agency's procedures
must be identical to the Council's regulations in order to be
consistent with them. Such a requirement, they argue, would limit
needed flexibility and inhibit innovation. We recognize the need for
flexibility and innovation, and we affirm that these standards and
guidelines do not mean to say or imply that agency procedures must copy
the procedure set out in 36 CFR part 800. We have edited the language
accordingly. An agency's procedures may satisfy the requirement of the
law in one of two ways, as noted in guideline (f). First, of course,
the agency can choose to adopt and use the procedure exactly as it is
set out in 36 CFR part 800. Second, the agency can choose to develop
alternate procedures that satisfy the purposes of the section 106
review process but that include any number of modifications to the
standard process set out in 36 CFR part 800, in order to meet agency
needs more effectively. Because the Advisory Council is unquestionably
the appropriate judge of whether an agency's alternate procedures
remain consistent with the Council's own regulations, it is sufficient
and appropriate for these standards and guidelines to say that an
agency's alternate procedures meet the test of section 110(2)(E)(i), if
the Council has approved them .
One comment on guideline (a) cautioned that a federal agency's
responsibility to consider the impact of its actions on properties
outside its ownership or control must be carefully construed to avoid
any implication that the non-federal owners of those properties are
under any obligation to consider the impacts of their actions. In
addition, the commenter cautioned that federal agencies cannot invoke
their obligations under this standard as a means for interfering with
the actions of private property owners outside the agency's
jurisdiction or control. We agree that private property owners acting
without reliance on federal permission or assistance are not within the
scope of these standards and guidelines. On the other hand, a federal
agency that is considering whether to issue a permit or provide
assistance to
[[Page 20498]]
a private property owner does have to consider the impact of that
property owner's actions before deciding whether to issue the permit or
award the assistance.
Standard 5
Two commenters took issue with the idea set out in guidelines (b)
and (c) that seeking agreement among the federal agency and interested
parties is the reason for consultation. They argue that consultation is
simply an exchange of views, that there is no requirement that agencies
reach agreement with interested parties, and that there are many
instances where the agency knows ahead of time that agreement will not
be possible. Consequently, they argue, asserting that agreement is the
object of consultation will create unrealistic and unwarranted
expectations among interested parties and will lead to legal and
procedural challenges that will compromise the agency's ability to
accomplish its work. We disagree. We acknowledge that agencies are not
required by law or by these standards and guidelines to reach
agreements with interested parties. We also acknowledge that an agency
can sometimes know in advance that a proposed activity will face the
unalterable opposition of an interested party. Finally we acknowledge
here and in the guidelines, themselves, that no agency is obliged to
remain engaged in endless consultation when it is clear that agreement
cannot be reached. However, we do not agree that meaningful
consultation is accomplished by a mere exchange of views. Consultation
must include, at least as its theoretical purpose, the willingness to
explore the possibilities for agreement--or at least for a narrowing of
disagreement--among the consulting parties. Even if that exploration
quickly shows or confirms that further discussion would be fruitless,
the attempt is fundamental to the concept of consultation as envisioned
by these standards and guidelines. Finally, we believe that the
agency's ability to end consultation without reaching agreement is
sufficiently clear that procedural challenges should not be a problem.
One commenter sought the inclusion of specific time limits for
consultation, so as to minimize delays and avoid efforts to thwart
agency projects through endless consultation. We disagree. These
standards and guidelines are intended to speak more broadly to the
concepts and ideas that define meaningful consultation for federal
agency historic preservation programs, so that trying to determine
specific time periods for consultation is not appropriate here. In a
regulatory setting, deadlines for response may well be critical to
doing orderly business. However, even in the section 106 process there
is no ultimate time limit within which all consultation must be
completed, since such a deadline would ultimately compromise the
purposes of that consultation.
Similarly, one commenter asked for more specific guidance on what
constitutes a ``reasonable effort'' under guideline (h) to consult with
those groups that do not customarily participate in traditional
governmental means of consultation. As noted above, these guidelines
are not the appropriate place to spell out specific solutions for such
cases. The guideline means in general that, where an agency is dealing
with interested parties who are unaccustomed to the agency's standard
consultation procedures, the agency should--to the extent feasible
given its own needs--make some adjustments in its standard procedures
to allow those interested parties a reasonable opportunity to
participate in consultation with the agency. The specific adjustments
in each case will depend on a fair balancing of the needs of the agency
and the needs of the specific interested party.
Finally, one agency asked for additional guidance in guideline (f)
for how to provide the public with sufficient information to
participate and still be consistent with the requirements of Section
304 of the Act, which calls for withholding information in cases where
disclosure would put resources at risk, invade privacy, or impede
traditional religious use of a site. Guideline (f) is not intended to
be an instruction for how to balance these competing goals. The point
of guideline (f) is to emphasize the primacy of Section 304's specific
requirements for withholding information. An agency's efforts to
involve the public, while important, do not take precedence over the
requirements of Section 304. In any instance where an agency, in
consultation with the Secretary, determines that disclosure of certain
information would lead to one or more of the results listed in Section
304, the agency is required to withhold that information.
Standard 6
One commenter requested the insertion of a reference to Section 106
in the language of the standard, itself. We believe that the standard
is and should be a stronger, more all-encompassing message than would
be the case if a reference to Section 106 were added. Consequently, we
have left the standard unchanged. However, compliance with Section 106
is clearly a critical component of an agency's efforts to meet the
standard. Specific references to Section 106 appear in four of the
eight guidelines for this standard.
Another commenter requested more guidance on the appropriate
treatment of cultural landscape features when disturbance is
unavoidable. NPS has developed formal guidelines for applying the
Secretary's ``Standards for the Treatment of Historic Properties'' to
cultural landscapes. We have added a reference to those guidelines here
in guideline (a) of Standard 6.
Three commenters indicated that guideline (c)'s call for limiting
archeological excavation to the footprint of the area that will be
otherwise disturbed is inappropriate. We agree. The original intent had
been to emphasize the need to minimize excavation, but the result was
an arbitrary limit that ignored the need for excavation according to a
research design that would allow for meaningful evaluation of the
material that is excavated. We have amended the guideline accordingly.
One commenter argued with reference to guideline (c) that calling
on agencies to adhere to the Secretary's Standards for the Treatment of
Historic Properties when modifying historic properties is unduly
stringent and unrealistic. We disagree. We acknowledge that there may
be cases where meeting those standards will not be feasible, but we
believe that meeting the standards should be the goal toward which the
agency strives when modifying historic property. Where meeting that
goal is not feasible, we believe the agency is obliged to explain why
not. As a technical matter, both because this specific guideline uses
the verb ``should'' and not ``shall,'' and because these standards and
guidelines are not regulatory, these standards and guidelines do not
impose any specific requirement that federal agencies must always
adhere to the Treatment Standards noted above.
Standard 7
One commenter asked with reference to guideline (f) whether
federally recognized Indian tribes can be recipients of historic
properties under the Historic Surplus Property Program. We have added
language to make clear that tribes can receive such property.
One commenter suggested that, pursuant to Section 110(h) there
should be guidance concerning preservation awards programs that can be
established by federal agencies. While it is certainly true that
federal agencies can create
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their own awards programs, Section 110(h) of the Act addresses only an
awards program to be established by the Secretary of the Interior to
recognize officers and employees of Federal, State, and local
governments. Consequently, we have included no guidance for awards
programs that other agencies may wish to create.
Definitions
Two commenters suggested the addition of a definition for the
federal agency Preservation Officer. We agree and have added that
definition.
One commenter pointed out that, while a traditional cultural
property may be determined to be eligible for the National Register of
Historic Places, not every traditional cultural property is by
definition eligible for the Register.
We agree and have amended the definitions of ``historic property''
and ``traditional cultural property'' accordingly.
Dated: February 2, 1998.
de Teel Patterson Tiller,
Chief, Heritage Preservation Services Division, National Center for
Cultural Resource Stewardship and Partnerships Programs, National Park
Service.
The Secretary of the Interior's Standards and Guidelines for
Federal Agency Historic Preservation Programs Pursuant to the
National Historic Preservation Act
Introduction
Section 110 of the National Historic Preservation Act (16 U.S.C.
470). Section 110 of the National Historic Preservation Act
(hereinafter referred to as NHPA or the Act) sets out the broad
historic preservation responsibilities of Federal agencies and is
intended to ensure that historic preservation is fully integrated into
the ongoing programs of all Federal agencies. This intent was first put
forth in the preamble to the National Historic Preservation Act upon
its initial adoption in 1966. When the Act was amended in 1980, section
110 was added to expand and make more explicit the statute's statement
of Federal agency responsibility for identifying and protecting
historic properties and avoiding unnecessary damage to them. Section
110 also charges each Federal agency with the affirmative
responsibility for considering projects and programs that further the
purposes of the NHPA, and it declares that the costs of preservation
activities are eligible project costs in all undertakings conducted or
assisted by a Federal agency.
The 1992 amendments to the Act further strengthened the provisions
of section 110. Under the law, the head of each Federal agency must do
several things. First, he or she must assume responsibility for the
preservation of historic properties owned or controlled by the agency.
Each Federal agency must establish a preservation program for the
identification, evaluation, nomination to the National Register, and
protection of historic properties. Each Federal agency must consult
with the Secretary of the Interior (acting through the Director of the
National Park Service) in establishing its preservation programs. Each
Federal agency must, to the maximum extent feasible, use historic
properties available to it in carrying out its responsibilities. The
1992 additions to section 110 also set out some specific benchmarks for
Federal agency preservation programs, including: (a) Historic
properties under the jurisdiction or control of the agency are to be
managed and maintained in a way that considers the preservation of
their historic, archeological, architectural, and cultural values;
(b) Historic properties not under agency jurisdiction or control
but potentially affected by agency actions are to be fully considered
in agency planning;
(c) Agency preservation-related activities are to be carried out in
consultation with other Federal, State, and local agencies, Indian
tribes, Native Hawaiian organizations, and the private sector;
(d) Agency procedures for compliance with section 106 of the Act
are to be consistent with regulations issued by the Advisory Council on
Historic Preservation; and
(e) An agency may not grant assistance or a license or permit to an
applicant who damages or destroys historic property with the intent of
avoiding the requirements of section 106, unless specific circumstances
warrant such assistance.
The complete text of section 110 is included as Appendix A to these
Guidelines. Also included as Appendix B are sections 1 and 2 of the
NHPA that set out the purposes and policies of that Act. Anyone
unfamiliar with the purposes of the Act or with the specific provisions
of section 110 as amended in 1992 should refer to those texts in
addition to the revised Guidelines.
Section 110 Guidelines--Background and Format
The Section 110 Guidelines were first published in the Federal
Register on February 17, 1988 (53 FR 4727-46). This second edition has
been revised to incorporate the 1992 amendments to the Act and to make
the Guidelines easier to use.
These Guidelines neither replace nor incorporate other statutory
authorities, regulations, or The Secretary of the Interior's Standards
and Guidelines for Archeology and Historic Preservation. These
Guidelines show how Federal agencies should address these various other
requirements and guidelines in carrying out their responsibilities
under the Act. The head of each Federal agency, acting through its
Preservation Officer, should become familiar with all the statutes,
regulations, and guidelines that bear upon the agency historic
preservation program required by section 110.
This second edition of the Section 110 Guidelines follows a format
significantly different from that of its predecessor. The first edition
followed the sequence of the statute and provided detailed guidance for
each subsection of section 110. The current edition instead takes the
form of standards and guidelines that will assist each Federal agency
in establishing a preservation program that meets the various
requirements of section 110.
Agency Use of These Standards and Guidelines for Evaluating Their
Programs
The preservation and use of historic properties and their careful
consideration in agency planning and decisionmaking are in the public
interest, are consistent with the declaration of policy set forth in
the NHPA, and must be a fundamental part of the mission of any Federal
agency. These standards and guidelines are intended to assist Federal
agency personnel and the agency head in carrying out their policies,
programs, and projects in a manner consistent with the requirements and
purposes of section 110 of the NHPA, related statutory authorities, and
existing regulations and guidance.
An agency should use these standards and guidelines, and
consultation with the Secretary and others, to ensure that the basic
individual components of a preservation program called for in section
110 are in place. The preservation program should also be fully
integrated into both the general and specific operating procedures of
the agency. The agency's preservation program should interact with the
agency's management systems to ensure that historic preservation issues
are considered in decisionmaking. The program should try to ensure that
the agency's officials, employees, contractors, and other responsible
parties have sufficient budgetary and
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personnel resources needed to identify, evaluate, nominate, manage, and
use the historic properties under agency care or affected by agency
actions.
Consultation and Technical Assistance
Section 110(a)(2) requires that agency preservation programs be
established ``in consultation with the Secretary.'' Federal agencies
seeking such consultation should contact the Associate Director,
Cultural Resource Stewardship and Partnerships, National Park Service,
Department of the Interior, 1849 C Street, NW, Washington, DC 20240.
Consultation with the Secretary regarding an agency's program will be
based upon the degree to which that program is consistent with the Act
and with the standards and guidelines that follow. Upon request, the
Secretary will also provide informal technical assistance to any agency
on questions concerning the establishment or improvement of the
agency's historic preservation program. Requests for technical
assistance should also be addressed to the Associate Director, Cultural
Resources Stewardship and Partnerships, National Park Service.
Section 202(a)(6) of the Act provides that the Advisory Council may
review Federal agency preservation programs and recommend improvements
to such agencies. Where the Council carries out such a review, it will
base any recommendations on its own regulations and policy statements,
and on the standards and guidelines that follow.
The Secretary of the Interior's Standards for Federal Agency Historic
Preservation Programs
Standard 1. Each Federal agency establishes and maintains a
historic preservation program that is coordinated by a qualified
Preservation Officer, and that is consistent with and seeks to advance
the purposes of the National Historic Preservation Act. The head of
each Federal agency is responsible for the preservation of historic
properties owned or controlled by the agency. (Sec. 110(a)(1), sec.
110(a)(2), sec. 110(c), and sec. 110(d)).
Standard 2. An agency provides for the timely identification and
evaluation of historic properties under agency jurisdiction or control
and/or subject to effect by agency actions. (Sec. 110(a)(2)(A), and
sec. 112)
Standard 3. An agency nominates historic properties under the
agency's jurisdiction or control to the National Register of Historic
Places. (Sec. 110(a)(2)(A)).
Standard 4. An agency gives historic properties full consideration
when planning or considering approval of any action that might affect
such properties. (Sec.110(a)(2)((B), (C), and (E), Sec. 110(f) and Sec.
402(16 U.S.C. 470a-2))
Standard 5. An agency consults with knowledgeable and concerned
parties outside the agency about its historic preservation related
activities. (Sec. 110(a)(2)(D)).
Standard 6. An agency manages and maintains historic properties
under its jurisdiction or control in a manner that considers the
preservation of their historic, architectural, archeological, and
cultural values. (Sec. 110(a)(1), sec. 110 (a)(2)(B), sec. 110(b)).
Standard 7. An agency gives priority to the use of historic
properties to carry out agency missions. (Sec. 110(a)(1)).
For a cross-reference of each standard to the parts of 110 see
Appendix A.
The Secretary's Standards and Guidelines for Federal Agency Historic
Preservation Programs
These guidelines have no regulatory effect. Instead, they are the
Secretary's formal guidance to each Federal agency on meeting the
requirements of section 110 of the Act.
The following guidelines provide information on the steps an agency
must take to establish and maintain a preservation program that meets
each of the applicable Secretary's Standards.
Standard 1. Each Federal agency establishes and maintains a
historic preservation program that is coordinated by a qualified
Preservation Officer, and that is consistent with and seeks to advance
the purposes of the National Historic Preservation Act. The head of
each Federal agency is responsible for the preservation of historic
properties owned or controlled by the agency. (Sec. 110(a)(1), sec.
110(a)(2), sec. 110(c), and sec. 110(d)).
Guidelines
Agency Programs
(a) An agency historic preservation program must include specific
provisions to ensure, to the extent feasible given the agency's mission
and mandates, the full consideration and appropriate preservation of
historic properties under the agency's jurisdiction or control and of
other historic properties affected by the agency's actions. (Sec.
110(a)(2)(B))
(b) An agency historic preservation program is embodied in agency-
wide policies, procedures, and activities. An agency historic
preservation program is the vehicle for ensuring that the agency's
mission-driven activities are carried out in a manner consistent with
the purposes of National Historic Preservation Act. The program is not
an activity carried out separate and apart from the activities mandated
by the agency mission.
(c) The identification, evaluation, and preservation of historic
properties must be the fundamental goal of any Federal agency
preservation program. (Sec. 110(a)(2)). However, an agency's ability to
achieve this goal is affected by its own mission and by whether it owns
and manages historic property:
(1) In those cases where historic property is under the
jurisdiction and control of the agency, the agency has an affirmative
responsibility to manage and maintain such property in a manner that
takes into account the property's historic significance. In addition,
the Federal agency has an affirmative responsibility to seek and use
historic properties to the maximum extent feasible in carrying out its
activities. (Sec. 110(a)(1) and sec. 110(a)(2)(B))
(2) Where an agency carries out its mission through the award of
grant funds for specific activities, and where those activities will
inevitably affect historic properties, the agency should, to the
maximum extent feasible, design its programs to encourage grantees to
retain and make appropriate use of historic properties in carrying out
grant-funded activities.
(3) Where an agency's historic preservation activities are limited
to considering the impact of federally licensed, or permitted
activities initiated by non-federal entities on non-federally owned
historic properties, the agency's preservation responsibility may be
more narrowly cast as seeking to avoid or minimize any adverse effects
to such properties that might otherwise occur as a result of such
activities.
(d) An agency historic preservation program must be established in
consultation with the Secretary of the Interior. (Sec. 110(a)(2)).
Consultation with the Secretary regarding an agency's historic
preservation program will be based on these Standards and Guidelines.
(e) The agency historic preservation program must be an effective
and efficient vehicle through which the agency head can meet his or her
statutory responsibilities for the preservation of historic properties.
(Sec. 110(a)(2)). Compliance with responsibilities pursuant to section
106 of the Act is an integral part of an agency's overall historic
preservation program. That program, however, is not simply intended to
meet agency section 106 responsibilities to ``take into account'' the
effects of its undertakings on historic properties. The program
described in section 110(a)(2) is an
[[Page 20501]]
agency-wide approach to achieving the goals set forth in the NHPA. It
should be fully integrated into both the general and specific operating
procedures of the agency.
(f) The preservation program should interact with the agency's
budgetary and financial management systems to:
(1) Ensure that historic preservation issues are considered before
budgetary decisions are made that foreclose historic preservation
options, and
(2) Ensure that the historic preservation program itself is
adequately funded to enable it to perform its functions.
(g) To avoid needless duplication of effort and increased workload
in developing and implementing its program, the agency should carefully
review and consider using those existing policies, procedures,
approaches and standards that are government-wide, i.e., applicable to
all preservation programs, and develop only those that need to be
agency-specific. Preservation programs can be expected to differ based
on the extent to which:
(1) Agencies manage, own, or exercise control over historic
properties;
(2) Historic properties play a significant role in agency
activities through active use (e.g., for recreation, interpretation,
public access/use, transportation, office space);
(3) Agencies are engaged in public education/interpretation, or
multiple-use resource management; or,
(4) Agencies are in a position to influence actions affecting
historic properties.
(h) Agency funding decisions for historic preservation work should
be based on a determination of the prudent level of investment for a
specific undertaking. That determination, in turn, should acknowledge
that preservation costs are eligible project costs on an equal footing
with other planning, design, construction, environmental protection,
and mitigation needs and requirements. Similarly, the cost of caring
for, documenting, and otherwise preserving artifacts, records, and
remains related to historic properties is an eligible project cost.
(Sec. 110(g)). The agency may contract with a State Historic
Preservation Officer (SHPO), another Federal agency, or other public or
private organization as appropriate to assist it in carrying out the
agency's historic preservation work.
(i) Where preservation activity is a condition of obtaining a
Federal license or permit, or Federal approval, or is subject to a
delegation of authority by a Federal agency, the recipient may be
expected to incur reasonable costs. (Sec. 110(g)). Because it is
difficult to establish fair standards that would be applicable in all
cases, ``reasonable costs'' should not be determined using inflexible
criteria, such as a flat fee or a standard percentage of a budget, but
rather should be determined on a case-by-case basis.
(j) An efficient preservation program should allow the agency to do
more than simply meet its section 110 and 106 responsibilities. In
order to eliminate duplicative effort and assist in agency planning,
the preservation program should be coordinated with actions the agency
takes to meet the requirements of other relevant and related Federal
statutes (e.g., NAGPRA, the Archaeological Resources Protection Act
(ARPA), the American Indian Religious Freedom Act (AIRFA), and the
National Environmental Policy Act (NEPA)) in a comprehensive,
anticipatory manner.
Preservation Officer
(k) The agency position responsible for coordinating the
preservation program is the Preservation Officer required of all
agencies by section 110(c) of the NHPA (unless specifically exempted
under section 214 of the NHPA). A Preservation Officer may have other
agency duties in addition to historic preservation coordination,
depending on the magnitude and degree of the agency's historic
preservation activities and responsibilities. (Sec. 110(c)).
(l) Agency officials designated as Preservation Officers should
have substantial experience administering Federal historic preservation
activities and/or specifically assigned staff under their supervision
who have such experience. Section 112 of the NHPA requires that agency
personnel or contractors responsible for historic resources, meet
qualification standards established by the Office of Personnel
Management in consultation with the Secretary.
(m) Each Preservation Officer should have sufficient agency-wide
authority, staff, and other resources to carry out section 110
responsibilities effectively. Agency administrative systems should
ensure that the Preservation Officer can review and comment
meaningfully on all agency programs and activities and interact with
the agency's planning and project management systems in such a way as
to influence decisions potentially affecting historic resources. The
Preservation Officer should have sufficient authority and the agency
should have sufficient control systems to ensure that decisions made
pursuant to section 106 and section 110 about the treatment of such
resources are in fact carried out.
(n) In agencies where significant preservation responsibilities are
delegated to regional or field offices, or Federal facilities or
installations, the agency head should also appoint qualified
preservation officials at those levels. Such officials should ensure
that their actions and conduct of historic preservation activities are
coordinated with, and consistent with, those of the central office
Preservation Officer for that agency.
(o) The agency should ensure that its personnel management system
identifies those personnel with preservation responsibilities, includes
such responsibilities in their position descriptions and performance
elements and standards, and appropriately rewards high-quality
performance. In addition, the agency should provide for ongoing
training in historic preservation for all agency personnel with
preservation responsibilities.
Standard 2. An agency provides for the timely identification and
evaluation of historic properties under agency jurisdiction or control
and/or subject to effect by agency actions. (Sec. 110(a)(2)(A) and sec.
112).
Guidelines
(a) Identification and evaluation of historic properties are
critical steps in their long-term management, as well as in project-
specific planning by Federal agencies. Normally, an agency must
identify the full range of historic properties that may be affected by
an agency program or activity, including, but not limited to, historic
buildings and structures, archaeological sites, traditional cultural
properties, designed and other cultural landscapes, historic linear
features such as roads and trails, historic objects such as signs and
street furniture, and historic districts comprising cohesive groups of
such properties. (Sec. 110(a)(2)(A)). Effective management of historic
properties requires that they first be identified and evaluated. The
level of identification needed can vary depending on the nature of the
property or property type, the nature of the agency's management
authority, and the nature of the agency's possible effects on the
property.
(b) The Secretary of the Interior has issued standards and
guidelines for identification and evaluation of historic properties (in
The Secretary of the Interior's Standards and Guidelines for Archeology
and Historic Preservation (48 FR 44720-44726)), which should be used to
ensure that the preservation program's identification and evaluation
[[Page 20502]]
procedures will be adequate and appropriate. Identification and
evaluation of historic properties must be conducted by professionally
qualified individuals. (Sec. 101(g), sec. 101(h), and sec. 112)
(c) Agency efforts to identify and evaluate historic properties
should include early consultation with the State Historic Preservation
Officer, or the Tribal Preservation Officer as appropriate, to ensure
that such efforts benefit from and build effectively upon any relevant
data already included in the State's or Tribe's inventory. For
information on consulting with an Indian tribe that has assumed State
Historic Preservation Officer functions pursuant to section 101(d)(2)
of the Act, see Standard 6, Guideline 7(b). Agencies are encouraged to
share with the appropriate SHPO and Tribal Preservation Officer,
information about historic properties gathered through their
identification and evaluation activities.
(d) Where an agency is planning an action that is not aimed at
specific land areas (for example, a nationwide program of assistance to
local governments, farmers, or low-income homeowners), and the
identification of specific historic properties subject to effect is not
feasible, the agency should nevertheless consider what types of
historic properties may be affected directly or indirectly, and
consider strategies that will minimize adverse effect and maximize
beneficial effect on those properties. Such consideration must be
carried out in consultation with SHPOs, Tribal Preservation Officers,
local governments, Indian tribes, Native Hawaiian organizations, and
the interested public as appropriate (110(a)(2)(E)(ii)).
(e) Where an agency is planning an action that could affect
historic properties directly or indirectly (e.g., a land-use or
construction project; a project that could change the way land or
buildings are used or developed, or alter the social, cultural, or
economic character of a community; and any program of assistance to or
the issuance of a license for such activities), identification and
evaluation should take place at the earliest possible stage of
planning, and be coordinated with the earliest phases of any
environmental review carried out under the National Environmental
Policy Act and/or related authorities. Identification and evaluation
efforts must be carried out in consultation with SHPOs, Tribal
Preservation Officers, local governments, Indian tribes, Native
Hawaiian organizations, and the interested public as appropriate
(110(a)(2)(E)(ii).
(f) Where identification and evaluation are carried out as a part
of long-term planning, it may be appropriate to conduct background
studies to develop a ``predictive model'' of historic property
distributions that can be used in evaluating the likely effects of
particular land management projects as the program proceeds. In some
cases, depending on management needs for a particular project or
activity, it may not be necessary to identify exhaustively every
historic property or historic property type. It may also be appropriate
and cost-effective to carry out the work in phases organized around
particular property types or other such coherent units. For example, if
historic architecture is of greater immediate concern than Native
American traditional properties or archeological sites, a survey of
architecture alone may be appropriate during a particular budget year,
with archeological survey and ethnographic studies deferred until
later. However, identification is not complete until all historic
properties have been identified. Such work should be developed in
consultation with SHPOs, Tribal Preservation Officers, local
governments, Indian tribes and Native Hawaiian organizations as
appropriate, and other parties that may have knowledge of, or interest
in, such properties.
(g) Identification of historic properties is an ongoing process. As
time passes, events occur, or scholarly and public thinking about
historical significance changes. Therefore, even when an area has been
completely surveyed for historic properties of all types it may require
re-investigation if many years have passed since the survey was
completed. Such follow-up studies should be based upon previously
obtained information, may focus upon filling information gaps, and
should consider re-evaluation of properties based upon new information
or changed historical understanding.
Standard 3. An agency nominates historic properties under the
agency's jurisdiction or control to the National Register of Historic
Places. (Sec. 110(a)(2)(A)).
Guidelines
(a) The first step in designing a program for the nomination of
historic properties is to determine what role nomination will play in
the agency's overall preservation program. For example:
(1) An agency that controls relatively few historic properties may
find it realistic to nominate them all to the National Register, and
then manage them accordingly. An agency with a great many historic
properties will need to establish explicit priorities for identifying,
nominating, and preserving properties.
(2) Placement on the National Register may help justify budgeting
funds for preservation or management of a historic property, so
agencies may want to give priority to nominating properties as a first
step in upgrading their maintenance and providing for their continued
active service in carrying out agency programs. Further, development of
National Register-level documentation provides information on the
property that will assist the agency in its subsequent property
management decisions.
(3) An agency with an excellent internal program for identifying
and preserving historic properties may find that other determinants,
such as whether a property is to be managed and interpreted as a site
of public interest, are more useful in establishing nomination
priorities.
(4) An agency that regularly transfers property out of Federal
ownership may find it useful to give higher priority to nominating
properties to be transferred, at the expense of other properties, in
those cases where placement on the National Register may make
preservation more likely once a property is no longer under Federal
management.
(b) Beyond serving the agency's own internal management needs, the
National Register is the nation's formal repository of information on
historic properties. To the extent that the National Register is
incomplete, its usefulness as a planning and educational tool is
diminished. Consequently, an agency should generally strive to nominate
the historic properties under its jurisdiction or control to the
National Register.
(c) The Secretary of the Interior already has in place Standards
and Guidelines for registration of historic properties (in The
Secretary of the Interior's Standards and Guidelines for Archeology and
Historic Preservation (48 FR 44726-44728) that details the process that
should be followed in formally recognizing historic properties as
significant. These Standards and Guidelines, along with the National
Register Bulletin #16, Guidelines for Completing National Register
Forms, provide guidance on completing National Register nomination
forms. National Register regulations (36 CFR part 60) set forth the
nomination process.
[[Page 20503]]
Standard 4. An agency gives historic properties full consideration
when planning or considering approval of any action that might affect
such properties. (Sec. 110(a)(2)(B),(C), and (E), and sec. 402 (16
U.S.C. 470a-2)).
Guidelines
All Historic Properties
(a) Each Federal agency has an affirmative responsibility under
section 110 of the National Historic Preservation Act to consider its
activities' effects on our nation's historic properties. This
responsibility extends to a systematic consideration of properties not
under the jurisdiction or control of the agency, but potentially
affected by agency actions. (Sec. 110(a)(2)(C)).
(b) Full consideration of historic properties includes assessment
of the widest range of preservation alternatives early in program or
project planning, coordinated to the extent feasible with other kinds
of required planning and environmental review.
(c) Full consideration of historic properties includes
consideration of all kinds of effects on those properties: direct
effects, indirect or secondary effects, and cumulative effects. Effects
may be visual, audible, or atmospheric. Beyond the effects from
physical alteration of the resource, itself, effects on historic
properties may result from changes in such things as local or regional
traffic patterns, land use, and living patterns.
(d) Full consideration of historic properties includes an
obligation to solicit and consider the views of others in planning and
carrying out agency preservation activities (See Standard 5 on
Consultation). (Sec. 110(a)(2)(D)).
(e) Full consideration of historic properties must include
development of and adherence to agency procedures for section 106
review that are consistent with the regulations of the Advisory Council
on Historic Preservation, and, as necessary, with certain provisions of
the Native American Graves Protection and Repatriation Act. (Sec.
110(a)(2)(E)(i), (ii), and (iii)).
(f) The term consistent with the regulations issued by the Council
as used in the NHPA means that an agency's procedures provide for the
identification and evaluation of historic properties, the assessment of
project and program effects on them, and consultation (specifically
including consultation with the State Historic Preservation Officer,
Tribal Preservation Officer or other Native American groups where
appropriate, and other affected parties) to determine appropriate
treatment or mitigation. Such procedures must either adhere to and
expand upon the process set out in 36 CFR part 800, or include
modifications or alternatives to that process that have been reviewed
and approved by the Council. Implementation of procedures consistent
with the Council's regulations means that those procedures are carried
out in a manner consistent with the Guidelines for Standard 1 above.
(g) Full consideration of historic properties includes development
of procedures to identify, discourage, and guard against ``anticipatory
demolition'' of a historic property by applicants for Federal
assistance or license. Agency procedures should include a system for
early warning to applicants and potential applicants that anticipatory
demolition of a historic property may result in the loss of Federal
assistance, license or permit, or approval for a proposed undertaking.
When an historic property is destroyed or irreparably harmed with the
express purpose of circumventing or preordaining the outcome of section
106 review (e.g., demolition or removal of all or part of the property)
prior to application for Federal funding, a Federal license, permit, or
loan guarantee, the agency considering that application is required by
section 110(k) to withhold the assistance sought, unless the agency,
after consultation with the Council, determines and documents that
``circumstances justify granting such assistance despite the adverse
effect created or permitted by the applicant.'' (Sec. 110(k)).
(h) Agency preservation procedures for section 106 compliance must
provide for the disposition of Native American, Alaskan, and Hawaiian
human remains and cultural items from Federal or tribal land consistent
with section 3(c) of the Native American Graves Protection and
Repatriation Act of 1990 (NAGPRA). (Sec. 110(2)(E)(iii)). The
applicable NAGPRA sections on disposition (sections 3(c)(3) and 3(a) &
(b)) vest ``ownership and right of control'' according to a hierarchy
of relationships to the cultural items. See NAGPRA (25 U.S.C. 3002(c))
and the Department of Interior's regulations implementing this Act (43
CFR part 10) for detailed information.
(i) In those cases where consultation pursuant to section 106 does
not produce a Memorandum of Agreement (MOA) governing how an agency
will ``take into account'' the adverse effects of its undertaking on
historic properties, section 110(l) requires that the final
decision(s), reached after consideration of the Council's comments, be
made by the agency head and not by any subordinate official, that it be
explicit and informed, and that it be a part of the public record
available for review. (Sec. 110(l)).
National Historic Landmarks
(j) National Historic Landmarks (NHL) are designated by the
Secretary under the authority of the Historic Sites Act of 1935, which
authorizes the Secretary to identify historic and archaeological sites,
buildings, and objects which ``possess exceptional value as
commemorating or illustrating the history of the United States.''
Section 110(f) of the NHPA requires that Federal agencies exercise a
higher standard of care when considering undertakings that may directly
and adversely affect NHLs. The law requires that agencies, ``to the
maximum extent possible, undertake such planning and actions as may be
necessary to minimize harm to such landmark.'' In those cases when an
agency's undertaking directly and adversely affects an NHL, or when
Federal permits, licenses, grants, and other programs and projects
under its jurisdiction or carried out by a state or local government
pursuant to a Federal delegation or approval so affect an NHL, the
agency should consider all prudent and feasible alternatives to avoid
an adverse effect on the NHL. (Sec. 110(a)(2)(B) and sec. 110(f)).
(k) Where such alternatives appear to require undue cost or to
compromise the undertaking's goals and objectives, the agency must
balance those goals and objectives with the intent of section 110(f).
In doing so, the agency should consider:
(1) The magnitude of the undertaking's harm to the historical,
archaeological and cultural qualities of the NHL;
(2) The public interest in the NHL and in the undertaking as
proposed, and,
(3) The effect a mitigation action would have on meeting the goals
and objectives of the undertaking.
(l) The Advisory Council's regulations implementing section 106
include specific provisions that also implement section 110(f). These
regulations require that the Council must be included in any
consultation following a determination by the Federal agency that a
Federal or federally assisted undertaking will have an adverse effect
on an NHL. The Council must notify the Secretary and may request the
Secretary to provide a report to the Council detailing the significance
of the affected NHL under section 213 of the NHPA and recommending
measures to avoid, minimize or mitigate adverse effects. The Council
shall report the outcome of
[[Page 20504]]
the section 106 process to the Secretary and the head of the agency
responsible for the undertaking.
Foreign Historic Properties
(m) In accordance with section 402 of the National Historic
Preservation Act Amendments of 1980 (Pub. L. 96-515) and with Executive
Order 12114 (issued January 4, 1979), the agency's preservation program
should ensure that, when carrying out work in other countries, the
agency will consider the effects of such actions on historic
properties, including World Heritage Sites and properties that are
eligible for inclusion in the host country's equivalent of the National
Register.
(n) The agency's preservation program should ensure that those
agency officials, contractors, and other parties responsible for
implementing section 402 of the NHPA (16 U.S.C. 470a-z) and Executive
Order 12114 have access to personnel with appropriate levels and kinds
of professional expertise in historic preservation to identify and
assist in the management of such properties.
(o) Efforts to identify and consider effects on historic properties
in other countries should be carried out in consultation with the host
country's historic preservation authorities, with affected communities
and groups, and with relevant professional organizations.
Standard 5. An agency consults with knowledgeable and concerned
parties outside the agency about its historic preservation related
activities. (Sec. 110(a)(2)(D) and (E)(ii)).
Guidelines
Consultation General Principles
(a) Consultation means the process of seeking, discussing, and
considering the views of others, and, where feasible, seeking agreement
with them on how historic properties should be identified, considered,
and managed. Consultation is built upon the exchange of ideas, not
simply providing information. Whether consulting on a specific project
or on broader agency programs, the agency should:
(1) Make its interests and constraints clear at the beginning;
(2) Make clear any rules, processes, or schedules applicable to the
consultation;
(3) Acknowledge others' interests and seek to understand them;
(4) Develop and consider a full range of options; and,
(5) Try to identify solutions that will leave all parties
satisfied.
(b) Consultation should include broad efforts to maintain ongoing
communication with all those public and private entities that are
interested in or affected by the agency's activities and should not be
limited to the consideration of specific projects.
(c) Consultation should be undertaken early in the planning stage
of any Federal action that might affect historic properties. Although
time limits may be necessary on specific transactions carried out in
the course of consultation (e.g., the time allowed to respond to an
inquiry), there should be no hard-and-fast time limit on consultation
overall. Consultation on a specific undertaking should proceed until
agreement is reached or until it becomes clear to the agency that
agreement cannot be reached.
(d) While specific consultation requirements and procedures will
vary among agencies depending on their missions and programs, the
nature of historic properties that might be affected, and other
factors, consultation should always include all affected parties.
Section 110(a)(2)(D) specifies that an agency's preservation-related
activities be carried out in consultation with other Federal, State,
and local agencies, Indian tribes, Native Hawaiian organizations, and
the private sector. Section 110(a)(2)(E)(ii) requires an agency's
procedures for compliance with section 106 to provide a process for the
identification and evaluation of historic properties and the
development and implementation of agreements, in consultation with
SHPOs, local governments, Indian tribes, Native Hawaiian organizations,
and the interested public, as appropriate. In addition to having a
formal role under the Act, SHPOs and Tribal Preservation Officers can
assist in identifying other parties with interests, as well as sources
of information.
(e) The agency needs to inform other agencies, organizations, and
the public in a timely manner about its projects and programs, and
about the possibility of impacts on historic resources of interest to
them. However, the agency cannot force a group to express its views, or
participate in the consultation. These groups also bear a
responsibility, once they have been made aware that a Federal agency is
interested in their views, to provide them in a suitable format and in
a timely fashion.
(f) Agency efforts to inform the public about its projects and
programs and about the possibility of impacts on historic resources
must be carried out in a manner consistent with the provisions of
section 304 of the Act, which calls for withholding from disclosure to
the public information on the location, character, or ownership of a
historic resource where such disclosure may:
(1) Cause a significant invasion of privacy;
(2) Risk harm to the historic resource; or,
(3) Impede the use of a traditional religious site by
practitioners.
Consultation with Native Americans
(g) Inclusion of Indian tribes and Native Hawaiian organizations in
the consultation process is imperative and is specifically mandated by
the Act (Sec. 110(a)(2)(D)):
(1) Properties with traditional religious and cultural importance
to Native American and Native Hawaiian groups may be eligible for the
National Register; such properties must be considered, and the
appropriate Native American and/or Native Hawaiian groups must be
consulted in project and program planning through the section 106
review process (see NHPA Sec. 101(d)(6)(A&B);
(2) Section 101(d)(2) of the Act provides that Indian tribes may
assume State Historic Preservation Officer responsibilities on tribal
lands, when approved to do so by the Secretary of the Interior. In
those cases where a tribe has assumed such responsibilities on tribal
lands, a Federal agency must consult with the tribe instead of the
SHPO, in order to meet agency responsibilities for consultation
pursuant to the Act;
(3) The Native American Graves Protection and Repatriation Act of
1990 (NAGPRA) establishes consultation requirements (43 CFR part 10)
that may affect or be affected by consultation pursuant to section 106
of the NHPA concerning activities on Federal and Tribal lands that
could affect human remains and cultural items. The Archeological
Resources Protection Act of 1979 and its uniform regulations also
require consultation with tribes and provide a formal process of
notification (16 U.S.C. 470cc-dd);
(4) Section 110 requires that an agency's efforts to comply with
section 106 must also be consistent with the requirements of section
3(c) of NAGPRA concerning the disposition of human remains and Native
American cultural items from Federal and tribal lands.
(h) Where those consulted do not routinely or customarily
participate in traditional governmental means of consultation (e.g.,
through public meetings, exchanges of correspondence), reasonable
efforts should be made to accommodate their cultural values and modes
of communication.
[[Page 20505]]
Standard 6. An agency manages and maintains historic properties
under its jurisdiction or control in a manner that considers the
preservation of their historic, architectural, archeological, and
cultural values. (Sec. 110(a)(1), sec. 110(a)(2)(B), sec. 110(b)).
Guidelines
(a) Historic properties include any prehistoric or historic
districts, sites, buildings, structures, or objects listed in, or
eligible for inclusion in, the National Register of Historic Places,
including artifacts, records, and material remains related to such
properties. To the extent feasible, as part of its property management
program, the agency should endeavor to retain historic buildings and
structures in their traditional uses and to maintain significant
archeological sites and landscapes in their undisturbed condition. (See
Secretary of the Interior's Standards for the Treatment of Historic
Properties (36 CFR part 68), and Guidelines for Preserving,
Rehabilitating, Restoring & Reconstructing Historic Buildings and
Guidelines for the Treatment of Historic Landscapes.)
(b) Where it is no longer feasible to continue the traditional use
of a historic structure or to maintain a significant archeological site
or cultural landscape in undisturbed condition, the agency should
consider an adaptive use that is compatible with the historic property.
Adaptive use proposals must be reviewed in accordance with section 106
of the Act. The agency should consider as wide a range of adaptive use
options as is feasible given its own management needs, cost factors,
and the needs of preservation. A use that severely damages or destroys
a historic property is not consistent with the section 110(a)(1)
requirement to preserve historic properties in accordance with the
professional standards established pursuant to section 101(g) of the
Act.
(c) Where modification of a historic property is required to allow
it to meet contemporary needs and requirements, the agency should
ensure that The Secretary of the Interior's Standards for the Treatment
of Historic Properties and its accompanying guidelines are followed.
Agencies are authorized and directed by section 110(a)(1) to carry out
(or cause a lessee or concessioner to carry out) whatever preservation
work is necessary (e.g., rehabilitation or documentation) in
preparation for use. Proposals to modify historic properties must be
reviewed in accordance with section 106 of the Act. When such
modification requires disturbance of the earth, and it is not feasible
to avoid and protect significant archeological resources, the
archeological resources should be excavated and the data recovered.
Excavations should focus on areas that will be disturbed during the
project, but overall excavation efforts should be governed by a
research design intended to recover significant data contained in the
site. Doing so may require excavation of adjacent deposits of the site.
All archeological work should conform to the Secretary's ``Standards
for Archeological Documentation.'' Under sections 101(a)(7)(A) and 110,
agencies are also responsible for ensuring that prehistoric and
historic material remains and associated records recovered in
conjunction with projects and programs are deposited in repositories
capable of proving adequate long-term curatorial services (see 36 CFR
part 79). Additional requirements for the management and ongoing care
of archeological resources may be found in the Antiquities Act (16 USC
431-433) and the Archeological Resource Protection Act (16 USC 470aa-
mm), and their attendant regulations.
(d) Until and unless decisions are made to manage them in some
other manner, historic properties, and properties not yet formally
evaluated that may meet the criteria for inclusion in the National
Register, should be maintained so that their preservation is ensured
through adherence to The Secretary of the Interior's Standards for the
Treatment of Historic Properties.
(e) The relative cost of various management strategies for a
historic structure, ranging from full restoration, to rehabilitation
and adaptive use to demolition and replacement with a modern building,
should be carefully and objectively considered, with reference to the
pertinent requirements of Executive Order 11912, as amended, to the
pertinent criteria established in OMB Circular A-94, and to the
pertinent principles and methods set forth in the National Bureau of
Standards Life-Cycle Costing Manual (NBS Handbook 135).
(f) Applicable long and short-term costs should be carefully
considered as part of any cost analysis. It is often the case that the
short-term costs of preserving and rehabilitating a historic structure
are balanced by long-term savings in maintenance or replacement; on the
other hand, failure to perform needed cyclic maintenance may shorten
the life of a building and decrease the value of investment in its
rehabilitation.
(g) Where it is not feasible to maintain a historic property, or to
rehabilitate it for contemporary use, the agency may elect to modify it
in ways that are inconsistent with the Secretary's ``Standards for
Rehabilitation,'' allow it to deteriorate, or demolish it. However, the
decision to act or not act to preserve and maintain historic properties
should be an explicit one, reached following appropriate consultation
within the section 106 review process and in relation to other
management needs.
(h) Where the agency determines in accordance with section 106 that
maintaining or rehabilitating a historic property for contemporary use
in accordance with the Secretary's Standards is not feasible, the
agency must provide for appropriate recording of the historic property
in accordance with section 110(b) before it is altered, allowed to
deteriorate, or demolished.
Standard 7. An agency gives priority to the use of historic
properties in carrying out agency missions. (Sec. 110(a)(1)).
Guidelines
(a) For the most part, use of historic properties involves the
integration of those properties into the activities directly associated
with the agency's mission. However, the agency should also be open to
the possibility of other uses, such as the use of traditional sacred
sites or plant gathering areas by Native Americans, or use of an
archeological site as a public interpretive facility.
(b) An agency with historic properties under its jurisdiction and
control should maintain an inventory of those properties that notes the
current use and condition of each property. The agency should provide
for regular inspection of the properties and an adequate budget for
their appropriate maintenance.
(c) Section 110(a)(1) applies not only to historic properties under
an agency's ownership or control, but to other historic properties
available to an agency. An agency that requires the use of non-federal
property is required to give priority to the use of historic
properties. In such cases the agency should notify potential private-
sector offerors of this priority and, if feasible, offer incentives to
help ensure that historic properties will be offered.
(d) Where an agency carries out its mission through the award of
grant funds for specific activities, and where those activities will
inevitably affect historic properties, the agency should, to the extent
feasible, design its grants programs so as to encourage grantees to
retain and make appropriate use of historic properties in carrying out
grant-funded activities.
(e) As provided for in section 111 of the Act, the agency should
consider
[[Page 20506]]
leases, exchanges, and management agreements with other parties as
means of providing for the continuing or adaptive use of historic
properties.
(f) Surplus properties that are listed in or have been formally
determined eligible for the National Register can be transferred to
State, tribal, and local governments for historic preservation purposes
through the Historic Surplus Property Program. Additionally, properties
or portions of surplus properties may be made available to States or
local agencies at no cost for parks and recreation through application
to the Federal Lands-to-Parks Program. Contact the NPS' Heritage
Preservation Services Division or its Recreation Resources Assistance
Division in Washington, D.C., for more information on these programs.
(g) The use of historic properties is not mandated where it can be
demonstrated to be economically infeasible, or where historic
properties will not serve the agency's requirements. The agency's
responsibility is to balance the needs of the agency mission, the
public interest in protecting historic properties, the costs of
preservation, and other relevant public interest factors in making such
decisions.
Definitions
(a) The Act or NHPA means the National Historic Preservation Act of
1966, as amended, 16 U.S.C. 470 et seq.
(b) Advisory Council or Council means the agency, fully titled the
Advisory Council on Historic Preservation, established pursuant to
section 201 of Title II of the NHPA, that is to be afforded a
reasonable opportunity under sections 106 and 110(f) of the NHPA to
comment with regard to proposed undertakings, as defined in section
301(7) of the NHPA; that reviews Federal programs pursuant to section
202(a)(6) of the NHPA; and with whose regulations outlining the
procedures for complying with the requirements of section 106 of the
NHPA (``Protection of Historic Properties,'' found at 36 CFR part 800)
in accordance with section 110(a)(2)(E)(i), other Federal agencies
procedures for compliance with section 106 must be consistent.
(c) Agency Head means the individual Departmental Secretary,
Executive Director or Administrator of an agency, as defined in the
Council's regulations (36 CFR part 800).
(d) Cultural items is defined in the Native American Graves
Protection and Repatriation Act of 1990 (NAGPRA, 25 U.S.C 3002(c)). It
includes human remains; associated and unassociated funerary objects
(consisting of items intentionally placed with the body in a grave,
including those not in possession of a Federal agency); sacred objects,
ceremonial objects important to the practice of Native American
traditional religions; and objects of cultural patrimony, those items
having historical, traditional, or cultural importance to Indian tribes
themselves. For a complete definition see section 2(3)(A)-(D) of
NAGPRA, and the Department of Interior's regulations implementing the
provisions of the Act at 43 CFR part 10.
(e) Historic property or historic resource is defined at section
301 of the NHPA and means any prehistoric or historic district, site,
building, structure, landscape or object included in, or eligible for
inclusion in the National Register, including artifacts, records, and
material remains related to such a property or resource. Section
101(d)(6)(A) of the National Historic Preservation Act provides that
``properties of traditional religious and cultural importance to an
Indian tribe or Native Hawaiian organization may be determined to be
eligible for inclusion on the National Register.''
(f) Historic resource (see definition for ``historic property'').
(g) Indian tribe or tribe is defined at section 301(4) of the NHPA
and means an Indian tribe, band, nation, or other organized group or
community, including a Native village, Regional Corporation or Village
Corporation, as those terms are defined in section 3 of the Alaska
Native Claims Settlement Act (43 U.S.C. 1602), which is recognized as
eligible for the special programs and services provided by the United
States to Indians because of their status as Indians. The Secretary of
the Interior is responsible for determining an Indian tribe's
eligibility for those special programs and services.
(h) Memorandum of Agreement means the document that records the
terms and conditions which have been agreed upon to resolve the adverse
effects of an undertaking upon historic properties.
(i) National Register is defined at Section 301(6) of the NHPA and
means the list of districts, sites, buildings, structures and objects
significant in American history, architecture, archeology, engineering,
and culture established under section 101 of the NHPA and maintained by
the Secretary of the Interior and fully titled the ``National Register
of Historic Places.''
(j) Native Hawaiian is defined in the NHPA at section 301(17) and
means any individual who is a descendant of the aboriginal people who,
prior to 1778, occupied and exercised sovereignty in the area that now
constitutes the State of Hawaii.
(k) Native Hawaiian organization as defined at section 301(18) of
the NHPA means any organization which--
(1) Serves and represents the interests of Native Hawaiians;
(2) Has as a primary and stated purpose the provision of services
to Native Hawaiians; and,
(3) Has demonstrated expertise in aspects of historic preservation
that are culturally significant to Native Hawaiians.
The term includes, but is not limited to, the Office of Hawaiian
Affairs of the State of Hawaii and Hui Malama I Na Kapuna O Hawai'i
Nei, an organization incorporated under the laws of the State of
Hawaii.
(l) Preservation or historic preservation as defined in the NHPA at
section 301(8) includes identification, evaluation, recordation,
documentation, curation, acquisition, protection, management,
rehabilitation, restoration, stabilization, maintenance, research,
interpretation, conservation, and education and training regarding the
foregoing activities or any combination of the foregoing activities.
(m) Preservation Officer means the individual in the agency
responsible for managing the agency's historic preservation program and
coordinating all preservation activities. All federal agencies are
required to appoint a Preservation Officer under section 110(c) of the
National Historic Preservation Act (unless specifically exempted under
section 214 of the NHPA). The Preservation Officer and the Agency Head
are not necessarily one and the same individual.
(n) Secretary is defined at section 301(11) of the NHPA and means
the Secretary of the Interior acting through the Director of the
National Park Service, except where otherwise specified.
(o) Secretary's Standards means the Secretary of the Interior's
Standards and Guidelines for Archeology and Historic Preservation
(available from the National Park Service), the project and program
standards and guidelines for implementing the NHPA. They are technical
guidance concerning archeological and historic preservation activities
and methods. The complete Secretary's Standards currently address each
of the following activities: Preservation Planning, Identification,
Evaluation, Registration, Historical Documentation, Architectural and
Engineering Documentation, Archeological Documentation, Treatment of
Historic Properties
[[Page 20507]]
(including Rehabilitation), and Professional Qualifications.
(p) State Historic Preservation Officer (SHPO) means the official
appointed or designated pursuant to section 101(b)(1) of the NHPA to
administer the State historic preservation program or a representative
designated to act for the SHPO.
(q) Traditional Cultural Property is defined as a property that is
associated with cultural practices or beliefs of a living community
that (1) are rooted in that community's history, and (2) are important
in maintaining the continuing cultural identity of the community.
Readers should refer to National Register Bulletin 38: Guidelines for
Evaluating and Documenting Traditional Cultural Properties (available
from the National Park Service) for more information.
(r) Tribal Preservation Officer or Tribal Historic Preservation
Officer means the official appointed or designated by the Tribe to
carry out the historic preservation program responsibilities that the
Tribe has assumed pursuant to section 101(d) of the NHPA.
(s) Tribal lands is defined at section 301(14) of the NHPA and
means--
(1) All lands within the exterior boundaries of any Indian
reservation; and
(2) All dependent Indian communities.
(t) Undertaking as defined in the NHPA at section 301(7) means a
project, activity, or program funded in whole or in part under the
direct or indirect jurisdiction of a Federal agency, including--
(1) Those carried out by or on behalf of the agency;
(2) Those carried out with Federal financial assistance;
(3) Those requiring a Federal permit, license, or approval; and
(4) Those subject to State or local regulation administered
pursuant to a delegation or approval by a Federal agency.
Appendix A
Section 110 of the National Historic Preservation Act (16 U.S.C.
470h-2):
(a)(1) The heads of all Federal agencies shall assume
responsibility for the preservation of historic properties which are
owned or controlled by such agency. Prior to acquiring,
constructing, or leasing buildings for purposes of carrying out
agency responsibilities, each Federal agency shall use, to the
maximum extent feasible, historic properties available to the
agency. Each agency shall undertake, consistent with the
preservation of such properties and the mission of the agency and
the professional standards established pursuant to section 101(g),
any preservation, as may be necessary to carry out this section.
(Standards 1, 6 and 7.)
(2) Each Federal agency shall establish (unless exempted
pursuant to section 214), in consultation with the Secretary [of the
Interior], a preservation program for the identification,
evaluation, and nomination to the National Register of Historic
Places, and protection of historic properties. (Standard 1.) Such
program shall ensure--
(A) That historic properties under the jurisdiction or control
of the agency are identified, evaluated, and nominated to the
National Register (Standards 2 and 3);
(B) That such properties under the jurisdiction or control of
the agency as are listed in or may be eligible for the National
Register are managed and maintained in a way that considers the
preservation of their historic, archeological, architectural, and
cultural values in compliance with section 106 and gives special
consideration to the preservation of such values in the case of
properties designated as having national significance (Standard 4);
(C) That the preservation of properties not under the
jurisdiction or control of the agency, but subject to be potentially
affected by agency actions are given full consideration in planning
(Standards 4 and 6);
(D) That the agency's preservation-related activities are
carried out in consultation with other Federal, State, and local
agencies, Indian tribes, Native Hawaiian organizations carrying out
historic preservation planning activities, and with the private
sector (Standard 5); and
(E) That the agency's procedures for compliance with section
106--
(i) Are consistent with regulations issued by the (Advisory)
Council (on Historic Preservation) pursuant to section 211 (Standard
4);
(ii) Provide a process for the identification and evaluation of
historic properties for listing in the National Register and the
development and implementation of agreements, in consultation with
State Historic Preservation Officers, local governments, Indian
tribes, Native Hawaiian organizations, and the interested public, as
appropriate, regarding the means by which adverse effects on such
properties will be considered (Standard 4); and
(iii) Provide for the disposition of Native American cultural
items from Federal or tribal land in a manner consistent with
section 3(c) of the Native American Graves Protection and
Repatriation Act (25 U.S.C. 3002(c)) (Standard 4).
(b) Each Federal agency shall initiate measures to assure that
where, as a result of Federal action or assistance carried out by
such agency, a historic property is to be substantially altered or
demolished, timely steps are taken to make or have made appropriate
records, and that such records then be deposited, in accordance with
section 101(a), in the Library of Congress or with such other
appropriate agency as may be designated by the Secretary, for future
use and reference (Standard 6).
(c) The head of each Federal agency shall, unless exempted under
section 214, designate a qualified official to be known as the
agency's ``preservation officer'' who shall be responsible for
coordinating that agency's activities under this Act. Each
Preservation Officer may, in order to be considered qualified,
satisfactorily complete an appropriate training program established
by the Secretary under section 101(h) (Standard 1).
(d) Consistent with the agency's mission and mandates, all
Federal agencies shall carry out agency programs and projects
(including those under which any Federal assistance is provided or
any Federal license, permit, or other approval is required) in
accordance with the purposes of this Act and, give consideration to
programs and projects which will further the purposes of this Act
(Standard 1).
(e) The Secretary shall review and approve the plans of
transferees of surplus federally owned historic properties not later
than ninety days after his receipt of such plans to ensure that the
prehistorical, historical, architectural, or culturally significant
values will be preserved or enhanced (Standard 7).
(f) Prior to the approval of any Federal undertaking which may
directly and adversely affect any National Historic Landmark, the
head of the responsible Federal agency shall, to the maximum extent
possible, undertake such planning and actions as may be necessary to
minimize harm to such landmark, and shall afford the Advisory
Council on Historic Preservation a reasonable opportunity to comment
on the undertaking (Standard 4).
(g) Each Federal agency may include the costs of preservation
activities of such agency under this Act as eligible project costs
in all undertakings of such agency or assisted by such agency. The
eligible project costs may also include amounts paid by a Federal
agency to any State to be used in carrying out such preservation
responsibilities of the Federal agency under this Act, and
reasonable costs may be charged to Federal licensees and permittees
as a condition to the issuance of such license or permit (Standard
1).
(h) The Secretary shall establish an annual preservation awards
program under which he may make monetary awards in amounts not to
exceed $1,000 and provide citations for special achievement to
officers and employees of Federal, State, and certified local
governments in recognition of their outstanding contributions to the
preservation of historic resources. Such program may include the
issuance of annual awards by the president of the United States to
any citizen of the United States recommended for such award by the
Secretary.
(i) Nothing in this Act shall be construed to require the
preparation of an environmental impact statement where such
statement would not otherwise be required under the National
Environmental Policy Act of 1969, and nothing in this Act shall be
construed to provide any exemption from any requirement respecting
the preparation of such a statement under such Act.
(j) The Secretary shall promulgate regulations under which the
requirements of this section may be waived in whole or in part in
the event of a major natural disaster or an imminent threat to the
national security.
[[Page 20508]]
(k) Each Federal agency shall ensure that the agency will not
grant a loan, loan guarantee, permit, license, or other assistance
to an applicant who, with intent to avoid the requirements of
section 106, has intentionally significantly adversely affected a
historic property to which the grant would relate, or having the
legal power to prevent it, allowed such significant adverse effect
to occur, unless the agency, after consultation with the Council,
determines that circumstances justify granting such assistance
despite the adverse effect created or permitted by the applicant
(Standard 4).
(l) With respect to any undertaking subject to section 106 which
adversely affects any property included in or eligible for inclusion
in the National Register, and for which a Federal agency has not
entered into an agreement with the Council, the head of such agency
shall document any decision made pursuant to section 106. The head
of such agency may not delegate his or her responsibilities pursuant
to such section. Where a section 106 memorandum of agreement has
been executed with respect to an undertaking, such memorandum shall
govern the undertaking and all of its parts (Standard 4).
Appendix B
Purposes of the National Historic Preservation Act
Section 110(d) of the National Historic Preservation Act (the
Act) calls on all Federal agencies, consistent with their mission
and mandates, to carry out their activities in accordance with the
purposes of the Act and to consider programs and projects that will
further the purposes of the Act. The purposes of the Act are set
forth in sections 1 and 2. These sections are directly germane to
all Federal preservation programs:
Section 1 (b) The Congress finds and declares that--
(1) The spirit and direction of the Nation are founded upon and
reflected in its historic heritage;
(2) The historical and cultural foundations of the Nation should
be preserved as a living part of our community life and development
in order to give a sense of orientation to the American people;
(3) Historic properties significant to the Nation's heritage are
being lost or substantially altered, often inadvertently, with
increasing frequency;
(4) The preservation of this irreplaceable heritage is in the
public interest so that its vital legacy of cultural, educational,
aesthetic, inspirational, economic, and energy benefits will be
maintained and enriched for future generations of Americans;
(5) In the face of ever-increasing extensions of urban centers,
highways, and residential, commercial, and industrial developments,
the present governmental and nongovernmental historic preservation
programs and activities are inadequate to ensure future generations
a genuine opportunity to appreciate and enjoy the rich heritage of
our Nation;
(6) The increased knowledge of our historic resources, the
establishment of better means of identifying and administering them,
and the encouragement of their preservation will improve the
planning and execution of federal and federally assisted projects
and will assist economic growth and development; and,
(7) Although the major burdens of historic preservation have
been borne and major efforts initiated by private agencies and
individuals, and both should continue to play a vital role, it is
nevertheless necessary and appropriate for the Federal Government to
accelerate its historic preservation programs and activities, to
give maximum encouragement to agencies and individuals undertaking
preservation by private means, and to assist State and local
governments and the National Trust for Historic Preservation in the
United States to expand and accelerate their historic preservation
programs and activities.
Section 2: It shall be the policy of the Federal Government, in
cooperation with other nations and in partnership with the States,
local governments, Indian tribes, and private organizations and
individuals to--
(1) Use measures, including financial and technical assistance,
to foster conditions under which our modern society and our
prehistoric and historic resources can exist in productive harmony
and fulfill the social, economic, and other requirements of present
and future generations;
(2) Provide leadership in the preservation of the prehistoric
and historic resources of the United States and of the international
community of nations and in the administration of the national
preservation program in partnership with the States, Indian tribes,
Native Hawaiians, and local governments;
(3) Administer federally owned, administered, or controlled
prehistoric and historic resources in a spirit of stewardship for
the inspiration and benefit of present and future generations;
(4) Contribute to the preservation of nonfederally owned
prehistoric and historic resources and give maximum encouragement to
organizations and individuals undertaking preservation by private
means;
(5) Encourage the public and private preservation and
utilization of all usable elements of the Nation's historic built
environment; and
(6) Assist State and local governments, Indian tribes and Native
Hawaiian organizations and the National Trust for Historic
Preservation in the United States to expand and accelerate their
historic preservation programs and activities.
[FR Doc. 98-10972 Filed 4-23-98; 8:45 am]
BILLING CODE 4310-70-P