00-23575. Protection of Historic Properties

AGENCY:

Advisory Council on Historic Preservation.

ACTION:

Notice of proposed suspension of rule and adoption as guidelines.

SUMMARY:

The Advisory Council on Historic Preservation proposes to suspend its rule implementing Section 106 of the National Historic Preservation Act. Such rule sets forth the process by which Federal agencies consider the effects of their undertakings on historic properties and provide the Council with a reasonable opportunity to comment with regard to such undertakings, as required by Section 106. The suspended rule would become guidelines upon the effective date of suspension.

DATES:

Submit comments on or before October 30, 2000.

ADDRESSES:

Address all comments concerning this proposed rule to the Executive Director, Advisory Council on Historic Preservation, 1100 Pennsylvania Avenue, NW., Suite 809, Washington, DC 20004. Fax [phone]. You may submit electronic comments to: [e-mail].

FOR FURTHER INFORMATION CONTACT:

Javier Marques, Advisory Council on Historic Preservation, 1100 Pennsylvania Avenue, NW., Suite 809, Washington, DC 20004 [phone].

SUPPLEMENTARY INFORMATION:

On September 6, 2000, the Advisory Council on Historic Preservation (“Council”) voted to suspend the Section 106 rule currently codified under 36 CFR part 800 after a 45-day notice and comment period. That rule sets forth the process by which Federal agencies consider the effects of their undertakings on historic properties and provide the Council with a reasonable opportunity to comment with regard to such undertakings, as required by Section 106 of the National Historic Preservation Act. The Council also voted to adopt the rule to be suspended as guidelines, effective immediately upon suspension of the rule.

The Council is currently seeking public comment on such actions. If the public comments received do not compel the Council to change its course, the Council plans to proceed with publishing a final rule suspension that would suspend the current rule and reissue the text of the suspended rule as guidelines, with an immediate effective date.

The Council is compelled to take these actions by the prospect of a potentially unfavorable ruling from the court that would severely disrupt the Section 106 process. Reluctantly, the Council has come to the conclusion that suspending the current Section 106 rule, which is at the heart of the litigation, is now the most advisable course to follow.

The preeminent issue in the litigation at this point is the participation of two Council members, who are not appointed by the President, in the rulemaking process leading up to the adoption of the current rule. The plaintiff has argued to the court that such participation violated the Appointments Clause of the Constitution, and that the court should therefore invalidate the regulations without delay. Even though the Council believes the law is on its side on this issue, it runs a risk of having the court rule against it and immediately invalidate the current Section 106 rule in short order. An abrupt suspension of the rule would cause chaos in the ongoing Section 106 reviews, and is seen by the Council as an unacceptable risk.

The Council believes that by proceeding in this manner, it is fashioning an orderly and prudent way of proceeding rather than risking the possibility of an immediate suspension from an adverse court ruling. Of utmost importance, the Council will be able to provide adequate advance notice to the public that the current Section 106 rule is being suspended by a certain date and specify the system that should be followed until new regulations take effect, so Federal agencies, other participants in the Section 106 process and the public can prepare accordingly. This notice and comment period is essential to provide participants in the Section 106 process with sufficient notice of the proposed suspension to ensure an orderly transition. Section 106 regulations were applied to 95,419 agency undertakings during fiscal year 1999. Accordingly, thousands of projects are undergoing Section 106 review at any one time during the year. A reasonable notice and comment period is essential to prevent unduly and abruptly disrupting these thousands of reviews that are proceeding under the existing Section 106 rule. It would also provide Federal agencies the time needed to make responsible and informed decisions as to how to complete their ongoing reviews, and how to comply with Section 106 for new projects without the benefit of a regulatory framework.

As already mentioned, the Council is also proposing to adopt the rule to be suspended as guidelines. While such guidelines would not have the binding legal effect of a rule, they would specify a reasonable procedure for participants in the Section 106 process. The other alternative is to go back to the 1986 rule, but the Council believes that would be unwise. The 1992 amendments to the National Historic Preservation Act brought important changes to the Section 106 process that are simply not reflected at all in the 1986 rule. The current Section 106 rule to be suspended incorporates those changes.

The current Section 106 rule, which would become guidance following the proposed suspension, was unanimously approved by the Council in February, 1999. On June 23, 2000, the Council membership (minus the two, non-Presidentially appointed members) unanimously reaffirmed its belief that the current Section 106 rule represents the process that Federal agencies should follow to comply with Section 106. Those who wish to examine the evolution and rationale behind the substance in these proposed guidelines, are asked to consult the following public documents: (a) Notice of proposed rulemaking at 59 FR 50396, October 3, 1994; (b) notice of proposed rulemaking at 61 FR 48580, September 13, 1996; and (c) final rule and preamble published at 64 FR 27044-27084, May 18, 1999.

The Council is optimistic that the period of time during which the public will need to comply with the Section 106 process without the benefit of a rule will be brief. The general comment period for the proposed rule published July 11, 2000 (65 FR 42834) closed on August 10, 2000. The Council extended the comment period to August 31, 2000 for all those members of the public that made timely requests for additional time to provide comments. The Council received a total of 59 comments. The Council is currently in the process of reviewing and evaluating the comments received on the proposed rule, and believes that it will vote on adopting a new final rule by November 17, 2000, as originally anticipated.

List of Subjects in 36 CFR Part 800

• Administrative practice and procedure
• Historic preservation
• Indians
• Intergovernmental relations

For the reasons stated above, the Advisory Council on Historic Preservation proposed to suspend the rule currently codified at 36 CFR part 800, and adopt it as guidelines.

Dated: September 8, 2000.

John M. Fowler,

Executive Director.