The Secretary of the Interior's Standards and Guidelines for Federal Agency Historic Preservation Programs Pursuant to the National Historic Preservation Act

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

[[Page 20499]]

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]

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