Procedures for State, Tribal, and Local Government Historic Preservation Programs

Federal RegisterMar 9, 1999

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SUMMARY: Through this rule, the National Park Service (NPS) revises

requirements (and the description of its own administrative procedures)

for State, tribal, and local historic preservation programs carrying

out actions under the National Historic Preservation Act of 1966, as

amended. Many revisions derive from the 1992 amendments to the National

Historic Preservation Act. Other changes reduce the regulatory burden

on, and provide more flexibility to, State, tribal, and local historic

preservation programs in response to the President's Regulatory

Reinvention Initiative and Executive Order 12866. Still others are made

in recognition of the changing and maturing professional practice of

historic preservation nationwide.

DATES: This rule is effective on June 7, 1999.

FOR FURTHER INFORMATION CONTACT: John W. Renaud, 202-343-1059, FAX 202-

343-6004, John__R[email protected] (E-mail).

SUPPLEMENTARY INFORMATION:

Background

36 CFR part 61 is promulgated pursuant to the National Historic

Preservation Act of 1966, as amended, (16 U.S.C. 470 et seq.) which

creates the national historic preservation program, which is a

partnership among Federal, State, tribal, and local governments,

nonprofit and for profit organizations, and individual citizens. The

Act also provides funding for this partnership through the Historic

Preservation Fund. This partnership is dedicated to the preservation of

historic properties (as defined by the Act) nationwide which provide

the foundation of our Nation's rich and irreplaceable heritage. Through

this partnership, the vital legacy of cultural, educational, aesthetic,

inspirational, and economic benefits of our patrimony is maintained and

enriched for future generations of Americans. 36 CFR part 61 provides

the regulatory framework for voluntary participation by State, local,

and tribal governments in this national program administered by the

Secretary of the Interior through the Director of the National Park

Service (NPS). As of the date of publication of this rulemaking, all 59

States (as defined by the Act) participate as do more than 1,100 local

governments and 17 tribal governments. The tribal sections (currently

reserved) of this rule, which will address more particularly the needs

of tribes participating in this program, may eventually lead to the

participation in the national historic preservation program of the more

than 300 federally recognized Indian tribes. NPS is responsible for

providing national standards, guidance, and technical assistance to the

State, tribal, and local historic preservation programs participating

in the national historic preservation program. NPS also provides

quality control for the activities funded by the Historic Preservation

Fund grants-in-aid and matching monies. The responsibility for most

decision making in the State, tribal, and local government programs and

the selection of specific projects and activities lies largely with

each State, tribal, and local government based on its particular needs.

Public participation is a crucial part in guiding the course of this

national historic preservation program.

This revision to 36 CFR part 61 is needed as the former regulation

(promulgated in 1984) became outmoded due to changes in statute and the

natural evolution of the national historic preservation program. The

National Historic Preservation Act Amendments of 1992 (Title XL of Pub.

L. 102-575) made a number of substantive as well as technical changes

to the subject matter covered by these rules. Through day-to-day

administration of the program, as well as through communication with

partners in the national historic preservation program, NPS has become

aware of the need for other changes to these rules.

One of the significant policy changes made to the Act in the 1992

amendments directed a substantive and meaningful role for Indian tribes

within the national historic preservation program. The United States

has a unique legal relationship with Indian tribes set out in the

Constitution of the United States as well as in treaties, statutes, and

Federal court decisions. The full participation of tribes within the

national historic preservation program is a national policy goal and is

recognized within this rule.

Pursuant to the 1992 amendments to the Act, Indian tribes can be

approved by the Secretary of the Interior to assume formal

responsibility for carrying out on tribal lands any or all of those

functions previously assigned to State Historic Preservation Officers.

Indian tribes can use (and to date 17 tribes have used) the statutory

language of that amendment and the existing regulatory framework set

out in this rule and in related regulations to assume those formal

responsibilities. Sections 61.8 and 61.9 of this rule (currently

reserved) will address in more detail the process for tribal assumption

of program responsibilities. These two sections will also be used to

implement the statutory mandate for providing greater flexibility in

the application of statutory and regulatory requirements to tribal

programs, in order to accommodate tribal values to the greatest extent

feasible.

Sections 61.8 and 61.9 which are currently under development by NPS

will be issued for general review and comment in the Federal Register

and eventually issued for effect. In addition to those sections, other

changes to this rule may be proposed in further recognition of the role

of tribes in this program and will be issued for review and comment

within the Federal Register at an appropriate time for public

consideration and comment. In developing Sec. 61.8, Sec. 61.9, and

other changes to the rule, NPS will consult with the tribes already

participating in the program and with other interested parties.

The 1992 amendments to the Act also included a more formal

recognition (within the breadth of programs authorized by the Act) of

properties of traditional religious and cultural importance to Indian

tribes or Native Hawaiian organizations. It is the intent of this rule

to ensure that, to the extent feasible, State and local governments

operating under this rule identify, evaluate and protect these unique

classes of properties in consultation with Indian tribes and Native

Hawaiian organizations in activities listed in section 101(b)(3) of the

Act for States and section 101(c) of the Act for local governments.

Revision of 36 CFR part 61 is the appropriate means to resolve many

of these issues. The national historic preservation program has grown

in competency, responsibility, and accountability over the years. There

also has been a maturation in the professional practice of historic

preservation nationwide. By placing more reliance on State, tribal, and

local governments, by eliminating unnecessary detail and procedures,

and by expressing a more flexible oversight philosophy, these revisions

to 36 CFR

[[Page 11737]]

part 61 can reduce the need for a future rulemaking.

The penalties for noncompliance as specified in this rulemaking

include revoking the approved program status of any noncompliant party

as mandated by statute. The regulation also recognizes government-wide

requirements for Federal grants that include penalties (for

noncompliance with the terms of such grants) ranging from increased

oversight and reporting, to recovery of Federal funds, to suspension

from the grant program until requirements are met. Monitoring these

regulatory requirements is accomplished through a periodic review of

programs; with quality control of documents such as nominations to the

National Register of Historic Places and Federal Historic Preservation

Tax Incentive applications that are forwarded by the State to NPS; and,

by evaluation of standard reports on measures and accomplishments made

using Federal grant money.

36 CFR part 61 provides the general procedural framework for State,

local, and tribal historic preservation programs. Procedures can be

found elsewhere for specific activities carried out by those programs

and referred to in this document; e.g., 36 CFR part 60 for the National

Preservation Tax Incentives. National standards and guidance on general

topics of applicability such as survey, planning, treatment of historic

properties, and professional qualifications can be found in ``the

Secretary of the Interior's Standards and Guidelines for Archeology and

Historic Preservation'' that can be obtained from NPS.

Comments on and Revisions to the Proposed Rule

This section summarizes and responds to comments received by NPS in

response to the proposed revisions to 36 CFR part 61 published in the

Federal Register on October 2, 1996 (61 FR 51536). This section

summarizes those comments and is organized by general subject matter.

Citations to the applicable part of the proposed rule are provided.

Changes made as a result of the comments are minor and clarify rather

than substantively change the proposed rule. This eliminates the normal

need to repeat in this document the section-by-section rationale for

the changes made to the 1984 rule. The Section-by-Section Analysis in

the preamble to the proposed rule remains an accurate description of

the rationale for the detailed changes except where modified in this

document. For example, the Department of the Interior Solicitor's

Office pointed out that the definition of ``State program'' in

Sec. 61.2(e) of the proposed rule leaves out statutory elements of a

State program as described in section 101(b) of the Act. We have

revised the definition accordingly.

Requirements for Certified Local Government Historic Preservation

Review Commissions, State Historic Preservation Program Staff, and

State Historic Preservation Review Boards

Comment: The largest number of comments received (15 in total)

supported making a specific discipline (or disciplines) a requirement

for each State's historic preservation program staff (State staff) in

Sec. 61.4(e)(1) and/or for each State's Historic Preservation Review

Board (Review Board) in Sec. 61.4(f)(1). Some commenters objected to

the proposed elimination of specific mandatory disciplines while other

commenters proposed that new disciplines be added as requirements. The

proposal to eliminate Architecture and Prehistoric and Historic

Archeology as requirements were most commonly mentioned. Additionally,

the suggestion for State staff and Review Boards to have professional

expertise in traditional cultural resources was promoted by a number of

commenters especially for States in which there are extensive

concentrations of such resources.

Response: It is the position of NPS that full-time State staff and

Review Board member professional proficiency in History, Architectural

History, and either Prehistoric or Historic Archeology is needed to

provide a common national baseline given the frequency with which all

State programs deal with certain repetitive classes of historic

properties (as defined by the Act). Experience has shown that other

disciplines may well be needed by some State programs but not by all

State programs, and not necessarily full time. For example, traditional

cultural properties expertise would be appropriate in a State with

large concentrations of such properties. In States where this is not

the case, this expertise may be less of a concern. These determinations

are best made by the State Historic Preservation Officer (SHPO) and not

by NPS through this rule. However, NPS expects each SHPO to maintain a

State staff and Review Board appropriate to the historic properties (as

defined by the Act) in that State.

Comment: Two commenters stated that all disciplines listed in the

Act should be required on every State staff and Review Board.

Response: NPS disagrees. To require all disciplines cited in the

Act would be an unnecessary burden for State programs in many instances

given State resources, historic preservation needs, and program

emphases. NPS expects each SHPO to fill professional positions as

necessary to balance historic property, customer or constituent, and

historic preservation needs of the State and to obtain expertise in

disciplines as appropriate.

Comment: Three people expressed the view that there should be no

specific required disciplines for either State staff or Review Board

mandated in Secs. 61.4(e)(1) and (f)(1).

Response: NPS disagrees. As stated above, it is the position of NPS

that a common national baseline of historic preservation professionals

on each State staff and Review Board is needed. This position was

reached after detailed consultations with State Historic Preservation

Officers over a period of several years.

Comment: Two commenters thought that only the disciplines of

History, Architectural History, and Prehistoric or Historic Archeology

could be represented on a State program's staff or Review Board, and

that no other discipline could be allowed. They concluded that this

would mean a State program would be without expertise in many essential

areas. They also objected to the apparent position held by NPS that

other disciplines are not as valuable as the required disciplines.

Response: Sections 61.4(e) and 61.4(f) have been revised to make

clear that the required disciplines are not the only disciplines that

can or should be represented in the ``professional positions.'' This

rule, however, does not designate which additional disciplines to

select. It is the position of NPS that each SHPO knows best what

additional disciplines are needed to meet its particular needs and

resources. Furthermore, the fact that certain disciplines are minimum

regulatory requirements for State staffs and Review Boards does not

mean that those disciplines are necessarily more critical than the

other disciplines in a specific State.

Comment: One commenter thought that for a Certified Local

Government's (CLG's) historic preservation review commission

(Commission) to meet the requirements of Sec. 61.6(e)(2)(i), every

discipline listed in ``the Secretary's (Historic Preservation)

Professional Qualifications Standards'' would have to be represented on

the Commission.

Response: This is not the case. The Act requires that professional

membership on a Commission be drawn

[[Page 11738]]

from among (but not from all of) such disciplines to the extent

available in the community. It is at the discretion of each SHPO as

expressed in the Statewide local government certification procedures,

how many and which disciplines should be represented on each

Commission.

Comment: One person asked, concerning Sec. 61.4(f)(1), who within

each State has the authority to select the professional disciplines

(beyond the requirements set by this rule) for the Review Board.

Response: The SHPO, pursuant to Section 301(12)(A) of the Act, has

the authority to select the professional disciplines unless State law

specifies to the contrary.

Comment: Three individuals stated that the alternative composition

provisions of Secs. 61.4(e)(2) and (f)(2) are unnecessary given how

easy it is to meet the basic requirements for State staff and Review

Board professional membership.

Response: NPS disagrees. The alternative composition provisions

remain necessary and appropriate in allowing flexibility for State

programs. In addition, Indian tribes are currently using this

regulatory framework for assuming historic preservation

responsibilities parallel to some or all State Historic Preservation

Officer duties. The alternative composition provisions offer very

important flexibility for accommodating these new tribal programs that

vary greatly in their scope, size, and focus. Section 61.8, currently

under development, will expand on these provisions for tribal programs.

Comment: One person asked what constitutes ``demonstrated

competence, interest, or knowledge in historic preservation'' as

specified in Sec. 61.4(f)(1), how this is documented, and expressed

concern that this requirement is in conflict with a State law that

requires that only a majority of members have such ``demonstrated

competence, interest, or knowledge in historic preservation.''

Response: Any ``professional'' meeting ``the Secretary's (Historic

Preservation) Professional Qualifications Standards'' automatically

meets the ``demonstrated competence, interest, or knowledge'' test. For

other Review Board members, NPS expects each SHPO to use a rule of

reasonableness to determine whether a person has competence, interest,

or knowledge in historic preservation. For the programs and activities

subject to this rule, the provisions of 36 CFR part 61 take precedence

over conflicting State law.

Comment: Another person thought that requiring in Sec. 61.4(f)(1)

that every Review Board member have a demonstrated ``interest,

competence, or knowledge in historic preservation'' meant that all

Review Board members must be ``historic preservation practitioners''

who meet ``the Secretary's (Historic Preservation) Professional

Qualifications Standards'' for the discipline of ``Historic

Preservation.''

Response: There is no such requirement.

Comment: One commenter suggested that ``as appropriate'' be added

to Sec. 61.6(e)(2)(i) to ensure that a ``professional'' would not be

appointed to a Commission just because he or she is the only

professional available in the community.

Response: This rule does not require a CLG to limit its Commission

membership selection criteria to the Federal minimum requirements,

provided that its additional selection criteria are not inconsistent

with the purposes of the Act and Statewide procedures.

Comment: One person thought that the provision in

Sec. 61.6(e)(2)(ii) matching Commission membership requirements to

those for the Review Board was too restrictive because in many States,

Commissions and Review Boards have very different (although

overlapping) responsibilities.

Response: NPS agrees and has modified the language of the rule

accordingly to place an emphasis on local needs and functions for State

procedure requirements relating to Commission membership.

Comment: Two commenters expressed concern that requiring only three

disciplines on each Review Board means that only those three

disciplines could be professional members of the Commission pursuant to

Sec. 61.6(e)(2).

Response: State programs and local offices can, and often do, set

additional membership requirements that are responsive to particular

State and local needs and issues. Nothing in this rule prohibits a CLG

from appointing to its Commission more than the minimally required

number or types of professional members.

Comment: Two commenters expressed concern that reducing the minimum

number of Review Board meetings from three to one a year

(Sec. 61.4(f)(4)), would make it more difficult for a State historic

preservation office to justify State budgetary authority for additional

meetings necessary to carry out Review Board responsibilities. Of

particular concern was timely review of nominations to the National

Response: NPS agrees and language has been added to make clear that

each Review Board should meet as often as necessary to meet national

historic preservation statutory and regulatory requirements.

Comment: Another individual expressed concern about the proposed

change in Sec. 61.4(f)(3) to extend from six months to one year the

time period in which a vacancy on a Review Board could exist prior to

NPS intervention.

Response: The rule change parallels the move in Sec. 61.4(f)(4) to

a one Review Board meeting per year minimum. If a Review Board meets

only once a year, a ten-month-long vacancy between meetings would not

necessarily be problematic. Note, however, that the rule retains the

requirement that a vacancy be filled in a ``timely'' fashion. NPS would

expect a more rapid response to a vacancy from a State that holds

quarterly Review Board meetings.

Other State and Local Program Issues

Comment: One commenter raised the question as to whether

municipalities were meant to be included in Sec. 61.4(b)(4) as part of

``any qualified nonprofit organization, educational institution, or

otherwise pursuant to State law'' regarding a SHPO's ability to carry

out activities via contract or cooperative agreement. If so, the

commenter suggests that this is in conflict with Sec. 61.6(f)(1) which

prohibits SHPOs from delegating the authority to nominate properties

directly to the National Register.

Response: A SHPO may use third parties, including municipalities,

to carry out aspects of the National Register process, but may not

delegate the authority to nominate properties directly to the National

allow the SHPO to divest himself or herself of statutory authorities

and responsibilities. NPS has added language to clarify this point.

Comment: One person found it problematic that Federal and State

requirements for Commissions might not be stringent enough to justify

conducting certain SHPO responsibilities through a CLG pursuant to

Sec. 61.6(d) if that CLG only meets the minimum requirements specified

in Sec. 61.6(e).

Response: It is each SHPO's responsibility to ensure that a CLG has

adequate capacity to carry out any additional responsibilities.

Comment: Two commenters opposed the option in Sec. 61.4(b)(3) to

waive the face-to-face meeting requirement for the

[[Page 11739]]

Review Board (or a Commission acting for the Review Board) in

considering a National Register nomination because they believe face-

to-face meetings are an important part of the National Register and

public participation process.

Response: NPS recognizes the value inherent in a face-to-face

discussion of any nomination to the National Register. Therefore this

provision is optional and can be used only when all parties (including

the chief elected local official as the representative of the general

public) consent to waive the face-to-face meeting.

Comment: Six commenters opposed the options provided in

Sec. 61.4(b)(3) to allow broader CLG participation in the National

interested in, qualified for, or sufficiently objective to take the

place of the Review Board in reviewing nominations. They expressed

concern that the National Register process could be compromised.

Response: Even if a SHPO chooses to offer this option, if a CLG is

not interested in participating more broadly in the National Register

process, nothing in this rule would compel it to do so. However, in

those situations in which a CLG has so requested, it must meet all

applicable program criteria thus ensuring minimum levels of

professional credibility and accountability. The integrity of the

National Register process is protected also by the appeals process

specified in 36 CFR part 60. Note that section 101(c)(2) of the Act

sets parameters for CLG participation in the National Register process.

Comment: One person suggested that the provision in Sec. 61.4(b)(3)

requiring owner consent to waive a public meeting for the Review Board

(or Commission) review of a National Register nomination conflicts with

the owner objection provisions in section 101(a) of the Act regarding

district nominations.

Response: NPS disagrees. NPS believes that there is no

inconsistency because the subject matter is different; i.e., whether to

waive a public hearing for considering National Register eligibility

(in this case) versus whether historic properties should be listed in

the case of district nominations.

Comment: Four people asserted that requiring consent from the chief

elected local official for the waiver of the requirement for a public

meeting as stated in Sec. 61.4(b)(3) is unnecessary and could be

eliminated or, alternatively, replaced by a notification.

Response: NPS disagrees. NPS believes that the consent of the chief

elected local official (as the community's representative) is important

in waiving a community's right to an open and public consideration of a

property's nomination to the National Register.

Comment: One person requested that the rule provide detailed

technical guidance about how the National Register-related public

participation provisions of Sec. 61.4(b)(3) should be carried out by

interested SHPOs, Review Boards, and Commissions.

Response: NPS agrees with the need for technical guidance. However,

the technical guidance does not need to be presented as part of this

rule. NPS intends to prepare this technical guidance in consultation

with affected parties and to issue it as soon as possible.

Comment: Four comments stated that State survey and inventory data

(Sec. 61.4(b)(2)) which includes information on the absence of National

nomination to the National Register are wasteful and could lead to

restriction of private property rights.

Response: NPS disagrees. Typically, though not a focus of all

surveys, gathering and keeping data on ``no properties found'' (i.e.,

areas which include properties that are not National Register eligible)

is ultimately highly cost effective. This information reduces the need

for costly re-surveys to plan for both public and private projects.

There is no evident reduction of property rights due to this provision

because neither the Act nor this rule gives the SHPO the authority to

carry out surveys on private land without owner permission.

Furthermore, a property cannot be listed on the National Register if

the private property owner (or majority of owners for districts)

objects.

Comment: One person suggested changing the phrase ``absence of

historic properties'' in Sec. 61.4(b)(2) to ``absence of particular

kinds of properties'' because a finding of no historic properties in an

area may have been based only upon a particular class or type or

survey, but be misconstrued to mean that there are no historic

properties of any kind. For example, in a survey for a particular class

or type of resources (e.g., archaeology only or bridges only), other

kinds of historic properties resources would not necessarily be

identified.

Response: While NPS agrees, changing the rule would weaken the

point of this provision which is to highlight the cost-effectiveness

and usefulness for planning purposes of knowing that there is no

historic property in the area. Reminders (such as this comment) on the

use and limitations of such ``negative'' surveys are more appropriately

addressed, NPS believes, in a different venue; e.g., ``the Secretary's

Standards and Guidelines for Identification'' or similar technical

publications.

Comment: One person stated that the SHPO may not have authority to

ensure that CLG survey and inventory data ``can be readily integrated

into . . . local planning processes'' as stated in Sec. 61.6(e)(3).

Response: The chief elected local official's signature on the CLG

certification agreement carries with it a commitment to follow the

Federal and State requirements for the CLG program. Also, this rule

does not require the actual integration into local systems--clearly a

local decision--but rather that the data are in a format compatible

with the local planning process(es).

Comment: One person expressed concern that Sec. 61.6(e)(1) seemed

to be highlighting regulatory tools for local historic preservation

programs rather than encouraging non-regulatory approaches to historic

preservation.

Response: These provisions for CLG requirements follow the Act

which specifically sets forth the use of regulatory tools by mandating

that CLGs must enforce appropriate State and local legislation for the

``designation'' and ``protection'' of historic properties (see section

101(c)(4) of the Act). However, nothing in this rule should be

interpreted to advocate only regulatory approaches to historic

preservation at any level of government.

Tribal Issues

Comment: One person wondered why the tribal sections of the rule

were reserved and suggested that information be provided explaining the

status of this material.

Response: NPS believes that it is premature to provide language

(either inclusive or exclusive) in this rulemaking that provides

regulatory interpretation of the statutory mandate to establish tribal

programs under section 101(d) of the Act. Preliminary consultation with

the tribes and other interested parties is now underway but has not yet

been completed, and the Federal Register review and comment process

must still be undertaken.

Comment: One person asked what impact this rulemaking will have on

the development of procedures for tribal historic preservation programs

under section 101(d) of the Act. Concern was expressed that the State

and local requirements contained in this rule would either limit or

predetermine the direction of tribal program procedures.

[[Page 11740]]

Response: This rulemaking will not constrain or predetermine the

development of tribal procedures because section 101(d) of the Act

calls for flexibility and modifications to accommodate tribal settings.

Any requirement for State programs is subject to modification for

tribal programs in accordance with rules under NPS development.

Comment: One person recommended exempting tribes from State

Historic Preservation Officer responsibilities specified in this rule.

Response: The position of NPS is that such a blanket exemption for

the tribes is neither appropriate nor consistent with the intent and

meaning of the Act. By law, State historic preservation program

requirements provide a point of reference in the establishment of

tribal historic programs under section 101(d) of the Act. In

furtherance of the requirements of section 101(d) of the Act, Sec. 61.8

of this rule (currently reserved and under development in consultation

with the tribes) will propose significant flexibility for tribal

programs by allowing for the case-by-case waiver or modification of

requirements in the Act and its attendant regulations in order to

accommodate tribal values to the greatest extent feasible. In the

meantime, tribes already choosing to participate in the national

program can avail themselves of the provisions of Sec. 61.4 that allow

for case-by-case approval of various program alternatives, as well as

the provisions of Sec. 61.10 that allow for case-by-case waiver of

those requirements of this rule not otherwise required by statute or

other regulation and as long as the purposes, conditions, or

requirements of the Act would not be compromised.

Comment: Another concern expressed was that no definition of

``tribal historic preservation program'' or ``tribal program'' is

included in this rulemaking.

Response: Again, these definitions will be developed as part of the

consultation process for drafting the regulations for the tribal

preservation programs and as such will be added to this rule at a later

date.

Comment: One person suggested adding section 101(d) to the other

referenced sections of the Act in Sec. 61.2(a) of this rule.

Response: NPS agrees with the importance of section 101(d), but not

with referencing it in Sec. 61.2 of this rule. Section 61.2 is the

``definitions'' section of this rule and, unlike the other referenced

sections of the Act, section 101(d) contains no definitions.

Comment: One person suggested changing the term ``Native Alaskan

corporations'' to ``Native Alaskan groups.''

Response: NPS cannot adopt this suggestion. The term

``corporation'' comes directly from the definition of Indian tribe in

section 301(4) of the Act which in turn is based on the definitions in

section 3 of the Alaska Claims Settlement Act (43 U.S.C. 1602).

National Park Service (NPS) Roles

Comment: Five commenters expressed concern about the

appropriateness of, and/or the lack of, a precise explanation in

Sec. 61.3(a) of ``management by exception'' for the administration of

historic preservation programs under the Act.

Response: ``Management by exception'' is the preferred policy

approach of NPS in administering the national historic preservation

program. It presumes that State, tribal, and local programs are being

administered in an accountable fashion in meeting all applicable

government-wide requirements unless proved to the contrary. A

management-by-exception approach uses oversight and analysis of systems

and quality control processes rather than an in-depth, project-by-

project approach. NPS has adopted this management policy wherever

warranted in recognition of both the growing maturation of the national

program, as well as changing Administration and Congressional

directives concerning the relationship between the Federal Government

and State, tribal, or local governments. However, whenever situations

warrant, NPS can, and will, apply more rigorous oversight to ensure

that requirements are met.

Comment: One person expressed the view that NPS is sometimes too

responsive to SHPO views and does not hear the concerns of the State's

clients.

Response: NPS makes every effort to serve equally each member of

the national partnership in administering the national historic

preservation program and considers all constituent comments. Oversight

and accountability are not affected by our long-standing relationship

with the State historic preservation programs.

Comment: Two people asked for clarification of ``independent peer

review'' in Sec. 61.3(a) as applied to a State, tribal, or local

government substituting its own fiscal audit and management systems for

comparable requirements set by the Secretary.

Response: ``Independent peer review'' is defined as a review

carried out by entities (public or private) who are not a part of NPS

but who can provide comparable independent, objective, and

knowledgeable oversight, analysis, and review that inspires confidence

that government-wide and Act-specific audit and management requirements

are being met.

Comment: One person opposed eliminating the requirement that each

SHPO make an annual certification that it has a fully qualified staff

and Review Board because, in the commenter's opinion, SHPOs may not

always inform NPS when there is a vacancy.

Response: The former regulatory requirement is redundant. The

annual grant agreement (executed between NPS and each State

participating in the national program) includes as a condition for

receiving the grant award the mandate that the State program meets and

will continue to meet all of the applicable requirements of the Act and

this rule.

Comment: One person suggested amending ``appropriate action'' to

``suspension of approved status'' in Secs. 61.4 (e) and (f) regarding

the result of NPS intervention when a vacancy has not been filled in a

timely fashion.

Response: NPS disagrees. NPS needs the flexibility to take a range

of administrative steps (which might include suspension of approved

status) to fit each situation.

Comment: One person thought that it is inconsistent to say in

Sec. 61.4 that State program reviews would take place at least once

every four years but more often if the Secretary deems necessary.

Response: This confuses the minimum frequency of review of each

State that must take place with the possible number of reviews that can

take place. The Act requires an evaluation at least once every four

years. Government-wide grant procedures authorize, and good management

demands, an evaluation whenever the situation merits it.

Comment: One person stated that the current State program reviews

were not frequent enough to address adequately serious problems.

Response: NPS disagrees. Nothing in the current system prevents NPS

from undertaking a State program review whenever it believes one is

warranted.

Comment: One person suggested that explicit time frames be added

for the various stages of the State program review process.

Response: NPS disagrees. NPS needs the regulatory flexibility to

tailor schedules to specific situations.

Comment: One person wondered what would constitute ``a major

program inconsistency with the Act'' that would be sufficient to

suspend a State

[[Page 11741]]

program's approved status after a State program review (see

Sec. 61.4(d)).

Response: NPS recognizes that loss of approved program status is

not the appropriate administrative response to minor compliance

problems. Refusal to carry out statutory requirements, a pattern of

gross negligence, and illegal use of grant funds are among the factors

that could contribute to a program's suspension or termination.

However, the determination of ``a major program inconsistency'' must be

done on a case-by-case basis.

Comment: Three people stated that Sec. 61.6(c) should be changed to

allow SHPOs with approved programs and NPS-certified CLG criteria and

procedures to certify CLGs without NPS concurrence.

Response: NPS does not have the statutory authority to do this. The

dual certification by the SHPO and NPS (acting for the Secretary) is

specifically required by section 101(c)(1) of the Act.

Comment: One person further suggested changing Sec. 61.6(e)(5) to

vest SHPOs with the sole authority for an involuntary decertification

of a CLG.

Response: NPS disagrees. Decertification procedures must generally

parallel those for the certification of qualified local governments.

Terminology, Definitions, and References

Comment: Two commenters asked for clarification, in Sec. 61.3(b),

of the regulatory force of the ``Secretary of the Interior's Standards

and Guidelines for Archeology and Historic Preservation.''

Response: NPS has added language to the rule to clarify two aspects

of this issue. NPS will use the Standards set forth in the ``Secretary

of the Interior's Standards and Guidelines for Archeology and Historic

Preservation'' as technical performance standards for matters covered

by 36 CFR part 61. NPS may also use as technical performance standards

(for matters covered by this part) additional guidance provided from

time to time by NPS after appropriate consultation and notice. This

additional guidance may include, but is not limited to, selected

Guidelines set forth in the ``Secretary of the Interior's Standards and

Guidelines for Archeology and Historic Preservation.''

Comment: Another person asked what is the relationship between the

current initiative of NPS to revise ``the Secretary's (Historic

Preservation) Professional Qualifications Standards'' and the changes

to Secs. 61.4(e) and (f) of this rule.

Response: Revising ``the Secretary's (Historic Preservation)

Professional Qualifications Standards'' will not affect their

regulatory relationship with this rule; i.e., in order for a person to

satisfy a regulatory requirement for a historic preservation

professional, that person must meet ``the Secretary's (Historic

Preservation) Professional Qualifications Standards.'' Note that the

grandfather provision in Sec. 61.3(c) has been modified to account for

changes to these Standards. Note also that the name of the Standards

will officially change to ``the Secretary of the Interior's Historic

Preservation Professional Qualifications Standards'' when they are

issued in the Federal Register. To signal this forthcoming change,

``Historic Preservation'' is placed in parentheses as part of the

current title of the Standards in this rulemaking.

Comment: One person suggested restoring to this rule all statutory

definitions, Standards, and regulatory material that in the former rule

were quoted verbatim.

Response: Repetition of standards or statutory and regulatory

material would make this rule unwieldy to use and is unnecessary at

this point in the program's history. These materials are widely

available and known to customers. Nevertheless, NPS has included in

Sec. 61.6(e)(1) the CLG program definitions for ``designation'' and

``protection'' because they are relatively new and represent a

significant statutory addition to CLG requirements.

Comment: One person suggested that in light of the elimination of

the former Appendix B (the list of SHPO addresses), the regulation

identify a central source to locate information.

Response: NPS agrees and have added appropriate language.

Comment: Two people found the references in this rule to the

National Register Programs Guideline (NPS-49) confusing without further

explanation.

Response: NPS agrees and has replaced them with more general

references to NPS administrative guidance.

Comment: One person suggested replacing ``cultural resource'' with

``historic resource'' or ``historic property'' to be consistent with

the Act.

Response: NPS has adopted this suggestion and used the term

``historic property'' as defined in section 301 of the Act except where

quoting the Act.

Comment: One person suggested adding to Sec. 61.2 a definition of

``partnership.''

Response: NPS has not defined the term ``partnership'' as suggested

because, aside from a common commitment to the purposes of the Act,

``partnership'' is not amenable to a single definition. In general,

however, the word ``partnership,'' in the context of the national

historic preservation program, recognizes that this is a nation-wide

initiative including full participation of not only the Federal but

also State, tribal, and local governments; the not-for-profit as well

as the for-profit sector; and, individual citizens.

Comment: One person suggested that the role of CLGs in the section

106 process be described in Sec. 61.6(e)(1).

Response: This suggestion was not considered because that

responsibility is more appropriately addressed by the Advisory Council

on Historic Preservation through 36 CFR part 800.

Comment: One person suggested quoting in Sec. 61.6(f) the text of

section 101(c)(2) of the Act concerning National Register nominations

within the jurisdiction of a CLG.

Response: NPS believes that the cross reference is sufficient.

Public Participation

It is the policy of the Department of the Interior, whenever

practicable, to afford the public an opportunity to participate in the

rulemaking process. Accordingly, the National Park Service (NPS)

consulted extensively with State and local historic preservation

programs prior to publishing the proposed revisions to the rule for

general review and comment in the Federal Register (61 FR 51536)

concerning which NPS received 38 comments. All governmental members of

the national historic preservation partnership rely upon the public to

help guide and otherwise assist in the functions of their historic

preservation programs. Consequently, NPS encourages public

participation in all of the programs under the purview of this rule.

NPS welcomes comments at any time from any interested person concerning

the direction, administration, oversight, or any other aspect of these

programs. Interested parties should send written comments regarding

these programs to Heritage Preservation Services, National Center for

Cultural Resource Stewardship and Partnership Programs, National Park

Service, 1849 C Street, NW (NC Suite 200), Washington, D.C. 20240 or

via the National Park Service Home Page for cultural programs at http:/

/www.cr.nps.gov.

Drafting Information: The primary author of this rule is John W.

Renaud, Heritage Preservation Services, National Center for Cultural

Resource Stewardship and Partnership Programs, National Park Service,

1849 C Street NW (NC Suite 200), Washington, D.C. 20240.

[[Page 11742]]

Paperwork Reduction Act

The collection of information contained in this rule has been

approved by the Office of Management and Budget under 44 U.S.C. 3507 et

seq. and has been assigned clearance number 1024-0038. No comments were

received on notice of submission to the OMB and the request for

comments published in the Federal Register (62 FR 34484). The

information is being collected as part of the process for reviewing the

procedures and programs of State and local governments participating in

the national historic preservation program and the Historic

Preservation Fund grant program. The information will be used to

evaluate those programs and procedures for consistency with the

National Historic Preservation Act of 1966, as amended, and compliance

with government-wide grant requirements. The obligation to respond is

required to obtain a benefit under these programs. Note that a Federal

agency may not conduct or sponsor, and a person is not required to

respond to, a collection of information unless it displays a currently

valid OMB control number. No assurance of confidentiality is provided

to respondents with the exception of locational information concerning

some properties included in government historic preservation property

inventories. Pursuant to section 304 of the National Historic

Preservation Act of 1966, as amended, release of information is tightly

controlled when such release could have the potential of damaging those

qualities which make a property historic or of vital cultural or

religious significance.

The public reporting burden for the collection of this information

is estimated to average 14.06 hours per response, including the time

for reviewing instructions, searching existing data sources, gathering

and maintaining the data needed, and completing and reviewing the

collection of information. Send comments regarding this burden estimate

or any other aspect of this collection of information, including

suggestions for reducing the burden, to Ms. Diane M. Cooke, Information

Collection Officer, National Park Service, 1849 C Street NW,

Washington, D.C. 20240 and to the Office of Management and Budget,

Office of Information and Regulatory Affairs, Attention: Desk Officer

for the Department of the Interior (1024-0038), Washington, D.C. 20503.

Compliance With Other Laws

This rule was reviewed by the Office of Management and Budget under

Executive Order 12866. The Department of the Interior determined that

this document will not have a significant economic effect on a

substantial number of small entities under the Regulatory Flexibility

Act (5 U.S.C. 601 et. seq.). The overall economic effects of this

rulemaking should be negligible. There are no expected increases in

costs or prices for consumers, individual industries, Federal, State or

local governments, agencies or geographic regions.

The Service has determined and certifies pursuant to the Unfunded

Mandates Reform Act, 2 U.S.C. 1502 et seq., that this rule will not

impose a cost of $100 million or more in any given year on local,

State, or tribal governments or private entities.

In accordance with Executive Order 12630, the NPS has determined

that this rule does not have significant takings implications. The rule

revises administrative procedures for the organization of State,

tribal, and local historic preservation offices. This rule does not

impact private property owners.

In accordance with Executive Order 12612, the NPS has determined

that the rule does not have significant Federalism implications. State,

tribal, and local government participation in these programs is

voluntary. In the development of this rule, the NPS consulted State and

local governments currently participating in these programs. The NPS

has achieved the consensus of its State and local government partners

that this rule should be published. No State or local government has

opposed the promulgation of this rule.

The Department has determined that this rule meets the applicable

standards provided in Section 3(a) and 3(b)(2) of Executive Order

12988.

This rule is not a major rule under the Congressional review

provisions of the Small Business Regulatory Enforcement Fairness Act (5

U.S.C. 804(2)).

The National Park Service has determined that this rulemaking will

not have a significant effect on the quality of the human environment,

health, and safety because it is not expected to:

(a) increase public use to the extent of compromising the nature

and character of the area or causing physical damage to it;

(b) introduce incompatible uses which compromise the nature and

characteristics of the area or cause physical damage to it;

(d) cause a nuisance to adjacent owners or occupants.

Based on this determination, the regulation is categorically

excluded from the procedural requirements of the National Environmental

Policy Act (NEPA) by Departmental guidelines in 516 DM 6, Appendix 7.4D

(49 FR 21438). As such, neither an Environmental Assessment nor an

Environmental Impact Statement has been prepared.

List of Subjects in 36 CFR Part 61

Grant programs-natural resources, Historic preservation, Reporting

and recordkeeping requirements.

In consideration of the foregoing, 36 CFR Chapter I is amended as

follows:

1. 36 CFR Part 61 is revised to read as follows:

PART 61--PROCEDURES FOR STATE, TRIBAL, AND LOCAL GOVERNMENT

HISTORIC PRESERVATION PROGRAMS

Sec.

61.1 Authorization.

61.2 Definitions.

61.3 Implementation of this part.

61.4 State programs.

61.5 Grants to State programs.

61.6 Certified local government programs.

61.7 Subgrants to certified local governments.

61.8 Tribal programs. [Reserved]

61.9 Grants to tribal programs. [Reserved]

61.10 Waiver.

61.11 Information collection.

Authority: 16 U.S.C. 470 et seq.

Sec. 61.1 Authorization.

The National Historic Preservation Act of 1966, as amended (16

U.S.C. 470 et seq.):

(a) Requires the Secretary of the Interior (Secretary) to

promulgate regulations for:

(1) Approving and overseeing State historic preservation programs;

(2) Certifying local governments to carry out the purposes of the

Act;

(3) Ensuring that applicable State Historic Preservation Officers

(SHPOs) allocate to certified local governments (CLGs) a share of

grants that the SHPOs receive under the Act; and

(4) Assisting Indian tribes in preserving their particular

``historic properties'' (as defined by the Act);

(b) Directs the Secretary to administer a program of grants-in-aid

to States and Indian tribes for historic preservation projects and

programs that the Secretary has approved; and

professional standards, methods, and techniques for the preservation of

[[Page 11743]]

``historic properties'' (as defined by the Act) and the administration

of historic preservation programs.

Sec. 61.2 Definitions.

As used in this part:

(a) All terms that the National Historic Preservation Act of 1966,

as amended, defines have the same meaning in the regulations in this

part that the statute provides; see especially sections 101(a)(1)(A),

101(b), 101(c)(4), 108, and 301.

(b) Act means the National Historic Preservation Act of 1966, as

amended, (16 U.S.C. 470 et seq.).

government.

(d) The Secretary's Standards means only the ``Standards'' portions

and not the ``Guidelines'' portions of ``the Secretary of the

Interior's Standards and Guidelines for Archeology and Historic

Preservation.'' The Secretary's Standards provide broad national

principles of archeological and historic preservation practices and

methods. ``The Secretary of the Interior's Standards and Guidelines for

Archeology and Historic Preservation'' also contains ``the Secretary's

Guidelines'' which provide broad national guidance on how to apply

``the Secretary's Standards.''

(e) State historic preservation program or State program means a

State government organization or program meeting the requirements that

section 101(b) of the Act specifies.

Sec. 61.3 Implementation of this part.

(a) National Park Service policy of management by exception. The

National Park Service (NPS) will administer the regulations in this

part in such a way (and where feasible) as to:

(1) Limit the use of direct Federal management review procedures to

high risk situations, to new programs, or to activities that are

appropriate for the Federal Government to oversee;

(2) Presume that State, tribal, and local government historic

preservation officials manage their programs in an accountable way

unless situations indicate the contrary; and

(3) Rely to the maximum extent feasible on State, tribal, and local

government systems of financial and program management that meet

Federal standards. At the discretion of the Secretary, each State,

tribal, and local government may substitute its own fiscal audit and

management systems for the Secretary's comparable fiscal audit and

management requirements, so long as the State, tribal, or local

government system establishes and maintains accounting standards

substantially similar to Federal standards and provides for independent

peer review.

(b) The Secretary's Standards. NPS will use the Secretary's

Standards as technical performance standards for matters covered by

this part. NPS may also use as technical performance standards (for

matters covered by this part) additional guidance that NPS identifies

and provides from time to time after appropriate consultation and

notice.

Historic Preservation Review Board (Review Board) member, and certified

local government (CLG) historic preservation review commission

(Commission) member whom the Secretary has approved as meeting ``the

Secretary's (Historic Preservation) Professional Qualifications

Standards'' will retain that status, regardless of subsequent revisions

to those Standards, until such time as that individual no longer works

in that program, or serves on that Review Board, or serves on that

Commission with which that individual was affiliated as of the date of

that individual's approval.

(d) You may obtain publications and other information mentioned in

this part by contacting: Heritage Preservation Services, National

Center for Cultural Resource Stewardship and Partnership Programs,

National Park Service, 1849 C Street NW (NC Suite 200), Washington,

D.C. 20240 or via the National Park Service Home Page for cultural

programs at http://www.cr.nps.gov.

Sec. 61.4 State programs.

(a) For a State to participate in the program that this part

describes, the Governor must appoint and designate a State Historic

Preservation Officer (SHPO) to administer the State historic

preservation program.

(b) It is the responsibility of the SHPO to carry out the duties

and activities that section 101 (b)(3) of the Act describes. In

performing those duties and activities:

(1) The SHPO must carry out a historic preservation planning

process that includes the development and implementation of a

comprehensive statewide historic preservation plan that provides

guidance for effective decision making about historic property

preservation throughout the State.

(2) The SHPO, in addition to surveying and maintaining inventories

of historic properties, may also obtain:

(i) Comparative data valuable in determining the National Register

eligibility of properties;

(ii) Information on properties that may become eligible for the

National Register of Historic Places with the passage of time; and/or

(iii) Information on the absence of historic properties for use in

planning for public and private development projects.

(3) The SHPO must provide for adequate public participation in the

State historic preservation program as a whole.

(i) As part of the process of recommending a property to the

National Register, the SHPO must comply with the consultation and

notification procedures contained in 36 CFR part 60.

(ii) The SHPO may authorize other persons or entities to fulfill

the notice requirements in 36 CFR part 60 pursuant to the Secretary's

written guidance.

(iii) The SHPO also may authorize the historic preservation review

commission (Commission) of a certified local government (CLG) to act in

place of the State Historic Preservation Review Board (Review Board)

for the purpose of considering National Register nominations within its

jurisdiction, provided that the Commission both meets the professional

qualifications required for the Review Board when considering such

nominations and otherwise follows the Secretary's written guidance.

(iv) In accordance with the Secretary's written guidance and with

the consent of both the property owners in a nomination and the chief

elected local official, the Review Board (or the Commission acting in

its place) may consider the nomination without a face-to-face meeting.

(4) The SHPO may carry out all or any part of his or her

responsibilities by contract or cooperative agreement with any

qualified nonprofit organization, educational institution, or otherwise

pursuant to State law. However, the SHPO may not delegate the

responsibility for compliance with the Act or with grant assistance

terms and conditions.

programs that, for a specified period, include fewer duties than those

section 101(b)(3) of the Act specifies, if a different approach would

better serve an appropriate balance of historic property, customer or

constituent, and historic preservation needs.

(d) Procedures for review and approval of State historic

preservation programs. (1) In accordance with the Act, the Secretary

will evaluate each State program for consistency with the Act

periodically, but not less often than every four years. If the

Secretary

[[Page 11744]]

determines that it meets the program requirements of paragraphs (a),

(b), (e) and (f) of this section, he or she will approve the State

program as set forth in this section.

(2) The Secretary may use on-site and/or off-site inquiries to

perform such evaluation. The Secretary will provide the SHPO with a

timely report containing written findings and analyses that highlight

the strengths and weaknesses of the State program.

(3) Approval method. (i) If the Secretary determines that a State

program is consistent with the Act, the report will include notice that

the State program's approved status continues.

(ii) If the Secretary determines that a State program has major

aspects not consistent with the Act, the report will include notice of

deficiencies along with required actions for correcting them. Unless

circumstances warrant immediate action, the Secretary will provide a

specified period to allow the SHPO either to correct the deficiencies

or to present for Secretarial approval a justifiable plan and timetable

for correcting the deficiencies. During this period, the SHPO has the

opportunity to request that the Secretary reconsider any findings and

required actions.

(iii) The Secretary will provide timely notice of continued

approved State program status to a SHPO successfully resolving

deficiencies. Once the Secretary renews a State program's approved

status, he or she generally will not review the program until the next

regular evaluation period. However, if the Secretary deems it

necessary, he or she may conduct a review more often.

(iv) The Secretary will provide timely notice of the revocation of

a program's approved status to any SHPO whose program has deficiencies

that warrant immediate action or that remain uncorrected after the

expiration of the period specified pursuant to paragraph (d)(3)(ii) of

this section. The Secretary will then initiate financial suspension and

other actions in accordance with the Act, applicable regulatory

requirements, and related guidance that the National Park Service

issues.

(e) The SHPO must appoint or employ a professionally qualified

staff.

(1) Except as approved pursuant to paragraph (e)(2) of this

section, the staff must include at a minimum, one individual meeting

``the Secretary's (Historic Preservation) Professional Qualifications

Standards'' for history, one individual meeting ``the Secretary's

(Historic Preservation) Professional Qualifications Standards'' for

historic or prehistoric archeology, and one individual meeting ``the

Secretary's (Historic Preservation) Professional Qualifications

Standards'' for architectural history. ``The Secretary's (Historic

Preservation) Professional Qualifications Standards'' and related

guidance are part of the larger ``Secretary of the Interior's Standards

and Guidelines for Archeology and Historic Preservation.'' The SHPO may

determine that additional professional staff members representing the

required or other disciplines are necessary to administer the State

program in accordance with the Act.

(2) The Secretary will consider proposals from a SHPO for a minimum

required staff composition that differs from the requirement that

paragraph (e)(1) of this section specifies, if the proposal addresses

better an appropriate balance of historic property, customer or

constituent, and historic preservation needs in that State.

(3) When a staff position that paragraph (e)(1) of this section

requires becomes vacant, the SHPO must fill the vacancy in a timely

manner. In the interim, the SHPO must ensure that appropriately

qualified individuals address technical matters. A vacancy in a

required position that persists for more than six months is cause for

review, comment, and appropriate action by the Secretary.

(f) Unless State law provides for a different method of

appointment, the SHPO must appoint an adequate and qualified State

historic preservation Review Board (Review Board).

(1) All Review Board members must have demonstrated competence,

interest, or knowledge in historic preservation. A majority of Review

Board members must meet ``the Secretary of the Interior's (Historic

Preservation) Professional Qualifications Standards'' which are part of

the larger ``Secretary's Standards and Guidelines for Archeology and

Historic Preservation.'' The members meeting ``the Secretary's

(Historic Preservation) Professional Qualifications Standards'' must

include at a minimum, one individual meeting ``the Secretary's

(Historic Preservation) Professional Qualifications Standards'' for

history, one individual meeting ``the Secretary's (Historic

Preservation) Professional Qualifications Standards'' for prehistoric

archeology or historic archeology, and one individual meeting ``the

Secretary's (Historic Preservation) Professional Qualifications

Standards'' for architectural history. One person may meet the

Standards for more than one required discipline. The other Review Board

members, if any, who comprise the majority that meets ``the Secretary's

(Historic Preservation) Professional Qualifications Standards'' may

represent, subject to the SHPO's selection, any of the disciplines that

those ``Standards'' describe.

(2) The Secretary will consider proposals from a SHPO for a minimum

required Review Board composition that differs from the requirement

that paragraph (f)(1) of this section specifies, if the proposal

addresses better an appropriate balance of historic property, customer

or constituent, and historic preservation needs in that State.

(3) When a required Review Board position becomes vacant, the SHPO

must fill the vacancy in a timely manner. In the interim, the SHPO must

ensure that the Review Board has access to advice from appropriately

qualified individuals. A lapse of more than one year in filling the

vacancy is cause for review, comment, and appropriate action by the

Secretary.

(4) The Review Board must meet as often as is necessary to complete

its work in a timely fashion but no less often than once a year.

(5) The Review Board must adopt written procedures governing its

operations consistent with the provisions of this section and related

guidance that the National Park Service issues.

(6) Review Board responsibilities include, but are not limited to,

the following:

(i) Providing advice to the SHPO on the full range of Historic

Preservation Fund-supported activities, that section 101 (b)(3) of the

Act describes;

(ii) Reviewing and making recommendations on National Register

nomination proposals;

(iii) Participating in the review of appeals to National Register

nominations; and

(iv) Performing such other duties as may be appropriate.

Sec. 61.5 Grants to State programs.

(a) Each State with an approved State program is eligible for

grants-in-aid from the Historic Preservation Fund (HPF).

(b) The National Park Service (NPS) will administer HPF matching

grants-in-aid in accordance with the Act, OMB Circular A-133 and 43 CFR

part 12, and related guidance that NPS issues. Failure by a State

program to meet these requirements is cause for comment and appropriate

action by the Secretary.

Sec. 61.6 Certified local government programs.

(a) Each approved State program must provide a mechanism for

certification (by the State Historic Preservation Officer and the

Secretary) of local governments to carry out the purposes of the Act.

[[Page 11745]]

(b) Each State Historic Preservation Officer (SHPO) must follow

procedures that the Secretary approves for the certification of local

governments. Each SHPO also must follow procedures for removal of

certified local government (CLG) status for cause. A SHPO must submit

any proposed amendment to its procedures to the Secretary for approval.

The Secretary will act on each proposal in a timely fashion generally

within 45 days of receipt.

in accordance with the State program's National Park Service (NPS)-

approved certification process, the SHPO must prepare a written

certification agreement between the SHPO and the local government. The

certification agreement must list the specific responsibilities of the

local government when certified. The SHPO must submit to the Secretary

the written certification agreement and any additional information as

is necessary for the Secretary to certify the local government pursuant

to the Act and this part. If the Secretary does not disapprove the

proposed certification within 15 working days of receipt, the Secretary

has certified the local government.

(d) Beyond the minimum responsibilities set out in the Act for all

CLGs, the SHPO may make additional delegations of responsibility to

individual CLGs. However, these delegations may not include the SHPO's

overall responsibility derived from the Act or where law or regulation

specifies.

(e) The SHPO must ensure that each local government satisfies the

following minimum requirements as conditions for certification. Each

CLG must:

(1) Enforce appropriate State or local legislation for the

designation and protection of historic properties. The State procedures

must define what constitutes appropriate legislation, as long as:

(i) Designation provisions in such legislation include the

identification and registration of properties for protection that meet

criteria established by the State or the locality for significant

historic and prehistoric resources within the jurisdiction of the local

government;

(ii) Protection provisions in such legislation include a local

review process under State or local law for proposed demolitions of,

changes to, or other action that may affect historic properties as

paragraph (e)(1)(i) of this section describes; and

(iii) The legislation otherwise is consistent with the Act.

(2) Establish by State or local law and maintain an adequate and

qualified historic preservation review commission (Commission). All

Commission members must have a demonstrated interest, competence, or

knowledge in historic preservation. Unless State or local legislation

provides for a different method of appointment, the chief elected local

official must appoint all Commission members.

(i) The State procedures must encourage certified local governments

to include individuals who meet ``the Secretary's (Historic

Preservation) Professional Qualifications Standards'' among the

membership of the Commission, to the extent that such individuals are

available in the community.

(ii) The State procedures may specify the minimum number of

Commission members who must meet ``the Secretary's (Historic

Preservation) Professional Qualifications Standards.'' The State

procedures may also specify which, if any, disciplines the Commission's

membership must include from among those disciplines that the Standards

describe. Membership requirements set by the State procedures for

Commissions must be cognizant of the needs and functions of Commissions

in the State and subject to the availability of such professionals in

the community concerned.

(iii) Provided that the Commission is otherwise adequate and

qualified to carry out the responsibilities delegated to it, the SHPO

may certify a local government without the minimum number or types of

disciplines established in State procedures, if the local government

can demonstrate that it has made a reasonable effort to fill those

positions, or that an alternative composition of the Commission best

meets the needs of the Commission and of the local government.

(iv) The SHPO must make available to each Commission orientation

materials and training designed to provide a working knowledge of the

roles and operations of Federal, State, and local historic preservation

programs, and historic preservation in general.

(3) Maintain a system for the survey and inventory of historic

properties. The SHPO must ensure that such systems and the data that

they produce are capable of integration into and are compatible with

statewide inventories and (when and as appropriate) with State and

local planning processes.

(4) Provide for adequate public participation in the local historic

preservation program as a whole. The SHPO must provide each CLG with

appropriate guidance on mechanisms to ensure adequate public

participation in the local historic preservation program including the

process for evaluating properties for nomination to the National

(5) Satisfactorily perform the responsibilities delegated to it

under the Act. The SHPO must monitor and evaluate the performance of

each CLG according to written standards and procedures that the SHPO

establishes. If a SHPO's evaluation of a CLG's performance indicates

that such performance is inadequate, the SHPO must suggest in writing

ways to improve performance. If, after a period of time that the SHPO

stipulates, the SHPO determines that the CLG has not improved its

performance sufficiently, the SHPO may recommend that the Secretary

decertify the local government. If the Secretary does not object within

30 working days of receipt, the Secretary has approved the

decertification.

(f) Effects of certification include:

(1) Inclusion in the process of nominating properties to the

National Register of Historic Places in accordance with sections 101

(c)(2)(A) and (c)(2)(B) of the Act. The SHPO may delegate to a CLG any

of the responsibilities of the SHPO and the Review Board in processing

National Register nominations as specified in 36 CFR part 60 (see also

Sec. 61.4(b)(3)), except for the authority to nominate properties

directly to the National Register. A CLG may make nominations directly

to NPS only when the State does not have an approved program pursuant

to Sec. 61.4.

(2) Eligibility to apply for a portion of the State's annual

Historic Preservation Fund (HPF) grant award. Each State must transfer

at least 10 percent of its annual HPF grant award to CLGs for historic

preservation projects and programs in accordance with the Act and as

Sec. 61.7 specifies.

(g) The District of Columbia is exempt from the requirements of

this section because there are no subordinated local governments in the

District. If any other jurisdiction that section 301(2) of the Act

defines as a State believes that its political subdivisions lack

authorities similar to those of local governments in other States, and

hence cannot satisfy the requirements for local government

certification, it may apply to the Secretary for exemption from the

requirements of this section.

(h) Procedures for direct certification by the Secretary where

there is no approved State program pursuant to Sec. 61.4. To the extent

feasible, the Secretary will ensure that there is consistency and

continuity in the CLG program of a State that does not have an approved

State program.

[[Page 11746]]

(1) Where there is no approved State program, a local government

wishing to become certified must apply directly to the Secretary.

(2) The application must demonstrate that the local government

meets the specifications for certification set forth in paragraph (e)

of this section.

(3) The Secretary will review certification applications under this

paragraph (h) and take action in a timely fashion generally within 90

days of receipt.

Sec. 61.7 Subgrants to certified local governments.

(a) Each SHPO must transfer at least 10 percent of its annual

Historic Preservation Fund (HPF) grant award to CLGs as subgrants for

historic preservation projects and programs in accordance with the Act.

In any year that the annual HPF State grant appropriation exceeds

$65,000,000, SHPOs must transfer one half of the amount over

$65,000,000 to CLGs according to procedures that the Secretary will

establish.

(b) Each CLG is eligible to receive funds from the 10 percent (or

greater) CLG share of the State's total annual HPF grant award.

However, the SHPO need not award funds to all CLGs.

Secretary approves for the use and distribution of funds from the

State's annual HPF grant award to CLGs to ensure that no CLG receives a

disproportionate share of the allocation. The procedure will provide a

clear basis for the funding decisions. The SHPO must submit any

proposed amendment to its procedure to the Secretary for approval. The

Secretary will respond to such a proposal in a timely fashion generally

within 45 days of receipt.

(d) Each SHPO must notify annually each CLG of its opportunity to

apply for HPF funding as well as what is entailed in the application

and project selection process.

(e) Each CLG receiving an HPF grant award from the CLG share is a

subgrantee of the State. The SHPO must ensure that each CLG adheres to

all applicable grant conditions and government-wide and program

specific requirements that the National Park Service issues. The SHPO

may require specific uses of funds subgranted to CLGs. CLGs may not

apply subgranted HPF monies as matching share for any other Federal

grant.

(f) Where there is no approved State program pursuant to Sec. 61.4,

the Secretary will determine the method for allocating funds to CLGs in

that State in accordance with the procedures set forth for the State in

this section. To the extent feasible, the Secretary will ensure

consistency and continuity in the funding allocation policy of the CLG

program for a State that does not have an approved historic

preservation program.

Sec. 61.8 Tribal programs. [Reserved]

Sec. 61.9 Grants to tribal programs. [Reserved]

Sec. 61.10 Waiver.

The Secretary may waive any of the requirements of the rules in

this part that are not mandated by statute or by other applicable

regulations if the Secretary finds, in writing, that the historic

preservation program would benefit from such waiver and the waiver

would not compromise the purposes, conditions, and requirements of the

National Historic Preservation Act of 1966, as amended.

Sec. 61.11 Information collection.

(a) The Office of Management and Budget (OMB) under 44 U.S.C. 3507

et seq., has approved the collection of information contained in this

part. OMB has assigned clearance number 1024-0038 to this collection of

information. The National Park Service (NPS) collects this information

as part of the process for reviewing the procedures and programs of

State and local governments participating in the national historic

preservation program and the Historic Preservation Fund grant program.

NPS will use the information to evaluate those programs and procedures

for consistency with the National Historic Preservation Act of 1966, as

amended, and compliance with government-wide grant requirements. The

obligation to respond is required to obtain a benefit under these

programs. Note that a Federal agency may not conduct or sponsor, and a

person is not required to respond to, a collection of information

unless it displays a currently valid OMB control number. NPS provides

no assurance of confidentiality to respondents with the exception of

locational information concerning some properties that government

historic preservation property inventories include. Pursuant to section

304 of the National Historic Preservation Act of 1966, as amended, NPS

tightly controls release of information when such release could have

the potential of damaging those qualities which make a property

historic.

(b) We estimate the public reporting burden for the collection of

this information to average 14.06 hours per response, including the

time for reviewing instructions, searching existing data sources,

gathering and maintaining the data needed, and completing and reviewing

the collection of information. Send comments regarding this burden

estimate or any other aspect of this collection of information,

including suggestions for reducing the burden, to Ms. Diane M. Cooke,

Information Collection Officer, National Park Service, 1849 C Street

NW, Washington, D.C. 20240 and to the Office of Management and Budget,

Office of Information and Regulatory Affairs, Attention: Desk Officer

for the Department of the Interior (1024-0038), Washington, D.C. 20503.

Dated: July 9, 1998.

Donald J. Barry,

Assistant Secretary for Fish and Wildlife and Parks.

Note: This document was received at the Office of the Federal

[FR Doc. 99-5783 Filed 3-8-99; 8:45 am]

BILLING CODE 4310-70-P

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.