02-8336. Exemption Regarding Historic Preservation Review Process for Projects Involving Historic Natural Gas Pipelines

AGENCY:

Advisory Council on Historic Preservation.

ACTION:

Notice of final exemption regarding historic natural gas pipelines.

SUMMARY:

The Advisory Council on Historic Preservation is publishing a final exemption that relieves Federal agencies from the requirement of taking into account the effects of their undertakings on historic natural gas pipelines. The exemption goes into effect on April 5, 2002.

DATES:

This final exemption will go into effect on April 5, 2002.

FOR FURTHER INFORMATION CONTACT:

Address all questions about this exemption to Javier Marqués, Office of General Counsel, Advisory Council on Historic Preservation, 1100 Pennsylvania Avenue, NW., Suite 809, Washington, DC 20004. Fax [phone]. [e-mail].

SUPPLEMENTARY INFORMATION:

Section 106 of the National Historic Preservation Act, 16 U.S.C. 470f, requires Federal agencies to consider the effects of their undertakings on historic properties and provide the Advisory Council on Historic Preservation (“Council”) a reasonable opportunity to comment with regard to such undertakings. The Council has issued the regulations that set forth the process through which Federal agencies comply with these duties. Those regulations are codified under 36 CFR part 800 (“Section 106 regulations”).

The National Historic Preservation Act (“Act”) authorizes the Council, with the concurrence of the National Park Service, to promulgate regulations for exempting undertakings “from any or all of the requirements of” the Act. 16 U.S.C. 470v. The Section 106 regulations detail the process for the approval of such exemptions. 36 CFR 800.14(c).

According to that process, the Federal Energy Regulatory Commission (“Commission”) formally proposed an exemption regarding the effects of undertakings on historic natural gas pipelines. The Council preliminarily approved that exemption, pending the results of the public comment opportunity provided through an earlier notice (67 FR 9429, March 1, 2002). Please refer to that earlier notice for a lengthier background on the exemption, and an explanation of how it meets the criteria for exemptions under the Section 106 regulations.

At the end of the public comment period provided by that earlier notice, only three comments had been filed: the National Conference of State Historic Preservation Officers (“NCSHPO”), the Interstate Natural Gas Association of America (“INGAA”), and Duke Energy Gas Transmission (“Duke Energy”). Since all three comments supported the exemption, the Council's preliminary approval of the exemption was not withdrawn, and the exemption will go into effect on April 5, 2002.

The exemption releases all Federal agencies from the Section 106 requirement of having to consider the effects of their undertakings on historic natural gas pipelines. Historic natural gas pipelines are defined as those natural gas pipelines that meet the criteria for listing on the National Register of Historic Places. The exemption applies unconditionally for all undertakings except for those that entail the abandonment of a historic natural gas pipeline. The sole condition for those cases is that the historic natural gas pipeline gets documented prior to abandonment. The documentation requirements are enumerated in the exemption document. Finally, the exemption does not apply on tribal land.

The comment filed by INGAA, and supported by Duke Energy, requested a clarification on the term “abandonment.” INGAA submitted that the Council clarify that term by specifically defining it as any abandonment filed pursuant to Section 7(b) of the National Gas Act, 15 U.S.C. 717f(b) (2000), except for all abandonments described in the blanket certification provisions set forth in Subpart F, Section 157.201 et seq of the regulations of the Commission, that is, those abandonments that are automatically authorized under the Commission's regulations or those that are filed under the Commission's prior notice regulations. The Council believed such a definition accurately reflected the intent of the proposed exemption and thereby incorporated it into the final exemption.

Under this definition of “abandonment,” documentation of a historic natural gas pipeline is ensured when significant pipeline facilities are to be abandoned. This would include any abandonment of mainline facilities. Due to their age and their central importance to the resource as a whole, such mainline facilities are the most likely to contain or reflect the historically significant features of the pipeline.

By the same token, the use of this specific definition of “abandonment” underlines the fact that the exemption does not require documentation of the pipeline for the abandonment of relatively minor (and more recently constructed) facilities, such as gas supply facilities, receipt or delivery points, or related supply or delivery laterals. Such abandonments, by their nature, present much more limited, if not negligible, impacts on the pipeline as a whole. As the Council has noted before, natural gas pipelines exhibit considerable redundance and uniformity in form over their entire extent. Accordingly, these minor abandonments are unlikely to affect the integrity of the pipeline as a historic property or jeopardize adequate documentation of the pipeline in the future.

The full text of the final exemption is reproduced below.

Section 106 Exemption Regarding Effects to Historic Natural Gas Pipelines

I. Exemption Regarding Effects to Historic Natural Gas Pipelines

Except as noted on Section II, all Federal agencies are exempt from the Section 106 requirement of taking into account the effects of their undertakings on historic natural gas pipelines.

II. Abandonment of Historic Natural Gas Pipelines

Abandonment of a historic natural gas pipeline, in part or in whole, will qualify for the exemption under Section I, provided that the Federal agency or its applicant has documented the historic natural gas pipeline by:

(a) Completing a determination of eligibility for the pipeline as a whole, which identifies contributing and non-contributing components of the pipeline, using standard information required on a National Register nomination form. The documentation must be prepared by an individual meeting the Secretary of the Interior's Professional Qualification Standards (48 FR 44738-9). The documentation must include the following components:

(i) a brief history of construction of the line with a bibliography recording the primary and secondary sources that were used;

(ii) documentation through as-built drawings, historical photographs or, 35 mm photographs, as appropriate, of representative examples of significant features associated with the line;

(iii) a map of the historic property set at an appropriate scale; and

(iv) an annotated bibliography of other primary and secondary sources identified during research; and

(b) Placing the documentation in an appropriate repository, accessible to the general public, in each State crossed by the pipeline, and filing the documentation with the relevant State Historic Preservation Officer(s).

When the abandonment involved only a section of the historic natural gas pipeline, Federal agencies or applicants handling subsequent abandonments of other sections of the historic natural gas pipeline will not have to repeat the documentation requirements set forth above.

III. Existing Agreements

This exemption is not intended to amend, invalidate or otherwise modify Section 106 Programmatic Agreements (PAs) in existence at the time this exemption goes into effect. Parties to such PAs may amend them according to their terms.

IV. Tribal Lands

This exemption does not apply to those portions of undertakings that take place on tribal lands.

V. Definitions

(a) “Section 106” means Section 106 of the National Historic Preservation Act, 16 U.S.C. 470f, and its implementing regulations, found under 36 CFR part 800.

(b) “Undertaking” means a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; those requiring a Federal permit, license or approval; and those subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency.

(c) “Historic natural gas pipelines” means natural gas pipelines, and their appurtenant facilities, that are listed, or eligible for listing, on the National Register of Historic Places.

(d) “Tribal lands” means all lands within the exterior boundaries of any Indian reservation and all dependent Indian communities.

(e) “Abandonment” means any abandonment that would be filed pursuant to Section 7(b) of the National Gas Act, 15 U.S.C. 717f(b)(2000), except for all abandonments described in the blanket certification provisions set forth in Subpart F, 18 CFR 157.201 et seq. of the regulations of the Federal Energy Regulatory Commission.

Authority: 16 U.S.C. 470v; 36 CFR 800.14(c).

Dated: April 1, 2002.

John M. Fowler,

Executive Director.