[Federal Register Volume 61, Number 192 (Wednesday, October 2, 1996)]
[Proposed Rules]
[Pages 51536-51543]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24406]
[[Page 51535]]
_______________________________________________________________________
Part III
Department of the Interior
_______________________________________________________________________
National Park Service
_______________________________________________________________________
36 CFR Part 61
Procedures for State, Tribal and Local Government Historic Preservation
Programs; Proposed Rule
Federal Register / Vol. 61, No. 192 / Wednesday, October 2, 1996 /
Proposed Rules
[[Page 51536]]
DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 61
RIN 1024-AC44
Procedures for State, Tribal and Local Government Historic
Preservation Programs
AGENCY: National Park Service, Interior.
ACTION: Proposed rule.
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SUMMARY: The National Park Service (NPS) proposes to revise the
requirements for State and local historic preservation programs as well
as the way NPS administers these programs. The proposed changes are
intended to provide more flexibility in State historic preservation
office staffing, State Historic Preservation Review Board membership
and operations, and carrying out State Historic Preservation Officer
responsibilities. This proposed revision also officially recognizes the
growing role of tribal historic preservation programs. Some of the
proposed changes are necessary because of the 1992 amendments to the
National Historic Preservation Act (the Act). Other changes are
proposed to reduce the regulatory burden on, and provide more
flexibility for, State and local historic preservation programs as well
as NPS. Much of this has been done pursuant to the President's
Regulatory Reinvention Initiative and Executive Order 12866. Also, the
evolution and growing maturity of State and local offices in the
national historic preservation program have eliminated the need for
some of the more detailed and restrictive requirements. Repetition,
advice, and quotations from the Act are no longer needed and are
removed from this regulation.
DATES: Written comments will be accepted through December 2, 1996.
ADDRESSES: All comments concerning this proposed regulation should be
addressed to: Chief, Heritage Preservation Services Division, National
Center for Cultural Resource Stewardship and Partnership Programs,
National Park Service, P.O. Box 37127, Washington, D.C. 20013-7127;
Attention: John W. Renaud. Comments may be hand-delivered or overnight
mailed to 800 North Capitol Street, NW., Suite 200, Washington, D.C.
20002. Comments may be sent FAX'ed to 202-343-6004 or by E-mail to
John__Renaud@nps.gov.
FOR FURTHER INFORMATION CONTACT: John W. Renaud, 202-343-1059, FAX 202-
343-6004, John__Renaud@nps.gov (E-mail).
SUPPLEMENTARY INFORMATION:
Background
36 CFR Part 61 is promulgated pursuant to the Act (16 U.S.C. 470 et
seq.) that created the national historic preservation program as a
partnership among Federal, State, tribal and local governments,
nonprofit organizations, commercial organizations, and private
individuals. The Act also created a mechanism for funding this
partnership, the Historic Preservation Fund. This partnership is
dedicated to the preservation of irreplaceable historic and
archeological resources that provide the foundation of the Nation's
heritage. Through this partnership the vital legacy of cultural,
educational, aesthetic, inspirational, and economic benefits of our
historical patrimony will be 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 the national historic preservation program. These
programs are administered by the Secretary of the Interior operating
through the Director of the NPS. As of the date of publication of this
proposed revision to this rule, all 59 States and territories
participate in the program, as do more than 1000 local governments. The
tribal portion (currently reserved) of this proposed regulatory
revision could lead to the participation in the national historic
preservation program of the more than 500 federally recognized Indian
tribes, Native Alaskan corporations, and Native Hawaiian organizations.
When guidance on tribal programs is promulgated and tribal historic
preservation programs are approved pursuant to the Act, a tribal
government will have a role in the national historic preservation
program that is similar to the role of a State. NPS is responsible for
providing national standards, guidance, and technical assistance to the
State and local historic preservation programs. NPS also provides
quality control and an appeals mechanism for the activities funded by
the Historic Preservation Fund grants-in-aid and matching monies. The
responsibility for most decision making in the programs and the
selection of specific projects and activities lies with each State,
tribal, and local government based on its needs and the needs of its
customers. Public participation is a crucial part in guiding the course
of State and local historic preservation programs.
This proposed revision to 36 CFR Part 61 is necessary because the
current regulation (promulgated in 1984) has become outmoded and
incomplete due to changes in statute and the 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 and technical changes to the subject matter covered by
these rules. Whole new program mandates (such as tribal preservation
programs) were added to the Act and many refinements were made to
existing programs such as State Historic Preservation Officer
responsibilities and the periodic evaluation of State programs. Much of
the language in the 1984 regulation dealt with the establishment of the
certified local government (CLG) program and the establishment of a
system for periodic evaluation of State Historic Preservation Offices.
These programs now have been in operation for over a decade. The
regulation needs to reflect the current maturity of these programs. For
some topics (such as the periodic evaluations of State programs), the
1984 regulation set up a system that was more restrictive than is now
deemed necessary. This regulatory revision proposes to build more
flexibility into the regulation, rely more on State and local
government programs, and reduce the standard, minimum oversight while
retaining the ability to increase oversight in individual cases when
needed.
Aside from the 1992 Amendments to the Act, NPS became aware of the
need for changes to these rules through day-to-day administration of
the program, as well as through communication with partners in the
national historic preservation program.
Revision of 36 CFR Part 61 is the appropriate means to solve many
of the problems identified above. The 1984 regulation is so narrowly
defined that it limits the range of approaches available both to the
Secretary in the administration of the program and to State and local
governments in running the day-to-day operations of the programs. 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.
There is every reason to believe that these trends will continue. 36
CFR Part 61 needs to acknowledge that change will be constant. By
placing more reliance on State and local governments, by eliminating
unnecessary detail and procedures, and by expressing a more flexible
oversight philosophy, 36 CFR Part 61 can reduce the need for a future
rulemaking.
The penalties for noncompliance as specified in this proposed
rulemaking
[[Page 51537]]
involve the ability to retain approved program status. These are
mandated by statute. The regulation also refers to government-wide
requirements for Federal grants that include noncompliance penalties
ranging from increased oversight and reporting, to recovery of Federal
funds, to suspension from the program until requirements are met.
Monitoring these regulatory requirements is accomplished through a
periodic review of State Programs; with quality control of documents
such as National Register nominations and Preservation Tax Incentive
applications that are forwarded by the State to NPS; and by evaluation
of standard reports on the accomplishments made using Federal grant
money.
36 CFR Part 61 provides the general procedural framework for State,
local, and tribal (reserved) 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 Register of Historic Places, 36 CFR Part 67 for Federal
Historic Preservation Tax Incentives, etc. 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 the
NPS.
Section-by-Section Analysis
This proposed revision includes a number of general and
organizational changes to the regulation promulgated in 1984. The title
of the regulation has been changed by removing the word ``approved''
and by adding tribal programs. The word ``approved'' also has been
deleted from section titles. The word ``approved'' implied too much
emphasis on the oversight role of the NPS. While oversight is part of
the purpose of the regulation, it is not the entire focus of it. 36 CFR
Part 61 defines the roles for all of the national historic preservation
program partners. These responsibilities, not the oversight, are the
key items of this regulation. Tribal programs were added to the title
pursuant to section 101(d) of the Act, and in recognition of their
growing role in the national historic preservation program partnership.
The sections of 36 CFR Part 61 have been reordered to put the
State-related sections together, the local government sections
together, and the tribal sections together. Previously, all
``approval'' sections were together and all grants sections were
together. This proposal reduces the need for the user to jump around
the regulation to find needed information. Sections 61.8 and 61.9 have
been reserved for tribal historic preservation programs. These sections
will be published in the Federal Register at a later date.
All repetition has been eliminated within 36 CFR Part 61.
Quotations from the Act have been eliminated. In the 1984 promulgation
of this regulation, whole sections of the Act were repeated with little
expansion or interpretation. In cases where little elaboration of
statutory language was needed (such as with most of the
responsibilities of the State Historic Preservation Officer), this
proposed revision provides a citation to the specific section of the
Act rather than quoting it.
Language has been removed when it is unnecessary for comprehension
of a topic. Procedural details and titles that are subject to change
have also been removed. Examples include (1) the listing of subparts in
the definition of the Secretary of the Interior's Standards and
Guidelines for Archeology and Historic Preservation, (2) the listing of
how the NPS will organize its periodic evaluation of State Historic
Preservation Offices, and (3) the statement of how often the NPS will
issue revisions to the National Register Programs Guideline.
Advice and examples, such as possible methods to obtain temporary
professional assistance, also have been removed from the regulation.
Numerous editorial changes have also been made that will not be
discussed in detail in this document.
Section 61.1 Authorization
This section has been revised to eliminate redundancy and to add
tribal references.
Section 61.2 Definitions
Those terms defined in the Act that do not need any regulatory
interpretation have been dropped from this proposal. Instead, specific
cross references to the sections of the Act containing definitions have
been provided.
Section 61.3 Implementation of This Part 61
A new subsection has been added that describes the NPS approach to
administering the programs described in 36 CFR Part 61. It is a
flexible approach drawn largely from OMB Circular A-102, as implemented
in the Department of Interior through 43 CFR Part 12.
A new subsection has been added that authorizes State, tribal, or
local government fiscal audit and management systems to be substituted
for comparable Federal procedures upon approval by the Secretary.
Examples include accounting methods, cash management and internal audit
controls and procedures. In the spirit of reinventing government, this
revision recognizes the competence, objectivity and accountability of
governments at all levels. Prior approval by the Secretary protects the
interests of the Federal Government and the intent of the Act.
The grandfather clause (formerly located in subsection 61.4(d) that
concerns State staff) has been moved to this section and broadened to
include State Review Board members and CLG Commission members. Whenever
the mandatory historic preservation professional qualification
standards change, an individual officially qualified under the former
Standards and still serving on State staff, a State Review Board, or a
CLG commission may be considered to be professionally qualified as long
as he/she continues to hold that position.
Section 61.4 State Programs
61.4(b)
The quotation of State Historic Preservation Officer
responsibilities enumerated in the Act has been replaced by a citation
to Section 101(b)(3) of the Act.
61.4(b)(1)
An updated description of comprehensive statewide historic
preservation planning has been added that more clearly describes the
purpose of the statewide plan.
61.4(b)(2)
This new paragraph has been added to clarify that, though each
State is required to conduct surveys for ``historic properties'' (i.e.,
properties eligible for listing in the National Register of Historic
Places) and maintain an inventory of such properties, it is
permissible, and important for each State to maintain an inventory of
what is known about the presence or absence of historic properties
within its boundaries. For example, when choosing a location for a new
economic development project so as not to harm historic properties, it
would be helpful and cost effective for project planners to know that
an area has been intensively surveyed two years previously for both
archeological and architectural/historical resources and nothing was
found.
61.4(b)(3)
The subsection regarding public participation was formerly
subsection 61.4(f) and has been revised to reflect
[[Page 51538]]
the flexibility that is possible (e.g., within the National Register
nomination process) while meeting the requirements of the Act.
61.4(b)(4)
This subsection on contracts and cooperative agreements was
formerly subsection 61.4(g).
61.4(c)
This new subsection acknowledges that there may be temporary
situations during which it would not make sense to require a State
Historic Preservation Officer to carry out all of the statutory
responsibilities. Examples might include emergencies or other
conditions that compel a State Historic Preservation Officer to
concentrate staffing and financial resources on certain activities and
thus delay or curtail other responsibilities.
61.4(d)
State Program Review. This section, formerly subsection 61.4(c),
has been revised to reflect the changes made by the 1992 Amendments to
the Act and to remove the procedural details from the regulation.
61.4(d)(1)
Pursuant to the Act, State programs now will be evaluated for
``consistency'' rather than ``compliance'' with the Act. The evaluation
will take place at least once every four years rather than once every
two to three years. This proposed revision reflects the flexibility
provided for in the Act without preventing a more frequent program
evaluation if necessary. The former detailed description of how each
evaluation will be conducted has been removed because experience since
1984 has revealed that it restricted the flexibility necessary to
administer the program.
61.4(d)(2)
Proposed new language in this paragraph provides more flexibility
in the process used to evaluate State programs.
61.4(d)(3)
New language has been proposed that reflects the 1992 Amendments to
the Act. State program approval will be continued if the program is
``consistent with the Act,'' and disapproval will take place only if a
State is found to have ``major program aspects'' inconsistent with the
Act. Minor inconsistencies, even though they may require correction,
cannot be grounds for disapproving the entire program as part of the
State program review process. A technical correction has been made to
make it clear that the Secretary has the authority to take immediate
action to disapprove a State program if the situation warrants.
61.4(e)
State Staff. The proposed changes to this subsection, formerly
subsection 61.4(d), are largely editorial and technical. Inasmuch as
Appendix A has been eliminated (see below), the historic preservation
professional qualifications now refer to the ``Secretary's Standards.''
The annual certification that the State has a fully qualified staff has
been removed from the regulation. By applying for its annual grant, the
State Historic Preservation Officer is confirming that all program
prerequisites (including a qualified staff) are, and will continue to
be, met. Each State generally can be relied upon to inform NPS when
there is a vacancy in required staff. Consequently, detailed
notification requirements are no longer needed in this regulation.
61.4(f)
State Review Board. Formerly subsection 61.4(e), the professional
disciplines required in this subsection for each State's Review Board
have been changed to match the requirements for State staff; i.e., each
Review Board must include the disciplines of history, architectural
history and either prehistoric or historic archeology. Architecture has
been dropped as a national requirement but most likely will be
represented on Review Boards because of the usefulness of that
expertise. Following the logic of the expanded statutory definition of
``State Historic Preservation Review Board'' in the Act (see Section
301(12)), the required ``professional majority'' in Review Board
membership may be drawn from any of the disciplines defined in the
Secretary's historic preservation professional qualification standards.
Each State can be relied upon to select a professional composition for
its Review Board that best fits the State's historic resources and the
historic preservation needs within the State. These ``professional
qualification'' requirements apply to whatever State board or boards,
commissions, etc., that carry out the Review Board responsibilities
specified in this regulation that normally require access to
specialized historic preservation expertise.
The minimum required number of Review Board meetings has been
changed from three to one per year. Each State is expected to convene
its Review Board as often as is necessary to complete its work in a
timely fashion. The minimum number of meetings required will vary from
State to State and from year to year. The regulatory change is being
proposed to avoid requiring meetings that might not be needed.
The language regarding Appendix A, the annual certification of the
State Review Board, and vacancy on a State Review Board has been
removed for reasons that parallel those described above for the
revisions to section 61.4(e).
Section 61.5 Grants to State Programs
The proposed changes to this section, formerly Sec. 61.6, include a
new name, and the changes are all editorial, technical, or discussed in
the general changes section.
Section 61.6 Certified Local Government Programs
This section, formerly Sec. 61.5, has been renamed, reoriented,
reorganized and greatly reduced in length. A large number of editorial
changes have been made in this section, but relatively few substantive
changes are proposed. In the 1984 version, much of the language in this
section mandated how each State must establish its procedures for
certifying local governments. Since 1985, every eligible State has had
NPS-approved procedures. In this proposed revision, the lengthy and
detailed language on how to establish State procedures has been
replaced by much shorter language concerning the maintenance and
amendment of State procedures.
61.6(e)(i)
Pursuant to the 1992 Amendments to the Act, this subsection has
been changed to require that State and local designation and protection
legislation meet the definition of ``designation'' and ``protection''
in the Act.
Section 61.7 Subgrants to Certified Local Governments
This section has been renamed, reoriented, reorganized and greatly
reduced in length. The changes parallel those described above for the
revisions to Section 61.6. In addition, the following revisions are
proposed:
Inasmuch as CLG subgrants are treated like any other subgrant, all
language specifying standard subgrant requirements has been eliminated
from this section and replaced with a single statement that standard
requirements must be met as specified in the National Register Programs
Guideline.
The old section exempting the District of Columbia from this CLG
subgrant section has been eliminated as
[[Page 51539]]
unnecessary inasmuch as it is exempted in Section 61.6 from the entire
CLG program.
Section 61.8 Tribal Programs [Reserved]
This new section has been added and reserved for later use.
Section 61.9 Grants to Tribal Programs [Reserved]
This new section has been added and reserved for later use.
Section 61.10 Waiver
This section, formerly Sec. 61.8, is redesignated Sec. 61.10 and is
mostly unchanged.
Section 61.11 Information Collection Requirements [Reserved]
This section, formerly Sec. 61.9, is redesignated and reserved.
After OMB approval of the information collection requirements, this
section will be updated at the final rule to reflect program changes
and the Paperwork Reduction Act of 1995.
Appendix A to Part 61--Professional Qqualifications Standards
This Appendix has been dropped as redundant to the historic
preservation professional qualification standards found in the
Secretary of the Interior's Standards and Guidelines for Archeology and
Historic Preservation.
Appendix B to Part 61--Information sources
This revision to 36 CFR Part 61 proposes the elimination of
Appendix B as growing too large, too quickly becoming out of date and
not as necessary as it was in 1984. The 1984 version contained names,
addresses and phone numbers of NPS Regional Offices and State Historic
Preservation Offices; there were no CLGs at that time. Some of that
information became out of date within a year of publication. An
Appendix B updated to 1996 would become almost twenty times longer with
the addition of CLGs. At some point, tribal historic preservation
offices, and Federal agency historic preservation offices would need to
be added. A list with more than a thousand entries (not including
tribes, Federal agencies and new CLGs) would become out of date faster
than the 1984 list of 62 entries. The growth of technological tools,
such as E-mail, FAX machines and the Internet, makes the need to have
such a list of information sources in 36 CFR Part 61 unnecessary.
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, interested persons may submit written
comments regarding this rule to the address noted at the beginning of
this rulemaking. The NPS will review all comments and consider making
changes to the rule based upon an analysis of the comments.
Drafting Information
The primary author of this rule is John W. Renaud, Heritage
Preservation Services Division, National Center for Cultural Resource
Stewardship and Partnership Programs, National Park Service, P.O. Box
37127, Washington, DC 20013-7127.
Paperwork Reduction Act
The collection of information contained in this section has
previously been approved by the Office of Management and Budget under
44 U.S.C. 3507, et seq., and assigned clearance number 1024-0038. This
approval expired in January 1996 and renewal of this approval has been
submitted to OMB. The information is being collected as part of the
process of reviewing the procedures and programs of State and local
governments participating in the national historic preservation
program. The information will be used to evaluate those procedures and
programs. The obligation to respond is required to obtain a benefit.
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 Information Collection Officer,
National Park Service, 800 North Capitol Street, Washington, D.C.
20001; and 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 not subject to Office of Management and Budget review
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 economic effects of this rulemaking are
negligible.
The Service has determined and certifies pursuant to the Unfunded
Mandates Reform Act, 2 U.S.C. 1502 et seq., that this proposed rule
will not impose a cost of $100 million or more in any given year on
local, State, or tribal governments or private entities.
The NPS has determined that this proposed 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;
(c) conflict with adjacent ownership or land uses; or
(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 (49 FR 21438).
As such, neither an Environmental Assessment (EA) nor an Environmental
Impact Statement (EIS) 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 forgoing, 36 CFR Chapter I is proposed to
be 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.
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. [Reserved]
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.):
[[Page 51540]]
(a) Requires the Secretary of the Interior (Secretary) to
promulgate regulations for:
(1) Approving State historic preservation programs;
(2) Certifying local governments to carry out the purposes of the
Act;
(3) The allocation by the State of a share of the grants received
by the State under the Act to certified local governments (CLGs); and
(4) Assisting Indian tribes in preserving their particular historic
properties.
(b) Directs the Secretary to administer a program of grants-in-aid
to the States and Indian tribes for historic preservation projects and
programs approved by the Secretary; and
(c) Requires the Secretary to make available information concerning
professional standards, methods, and techniques for the preservation of
historic properties and the administration of historic preservation
programs.
Sec. 61.2 Definitions.
As used in this part:
(a) All terms defined in the National Historic Preservation Act of
1966, as amended, have the same meaning as provided by that statute.
See especially Sections 101(a), 101(b)(1), 101(c)(4), 108 and 301 of
the Act.
(b) Act means the National Historic Preservation Act of 1966, as
amended, (16 U.S.C. 470 et seq.)
(c) Chief elected local official means the elected head of a local
government.
(d) The National Register Programs Guideline means the official NPS
document that establishes administrative procedures and guidelines for
historic preservation programs of the National Trust for Historic
Preservation, and the State, tribal and local governments supported by
the Historic Preservation Fund (HPF) or matching funds.
(e) The Secretary's Standards and Guidelines means the Secretary of
the Interior's Standards and Guidelines for Archeology and Historic
Preservation, that provide broad national policy guidance on
archeological and historic preservation practices, methods and
qualifications.
(f) State historic preservation program or State program means
those activities listed in Section 101(b)(3) of the Act as
responsibilities of the ``State Historic Preservation Officer''.
Sec. 61.3 Implementation of this part 61.
(a) NPS policy of management by exception. The regulations in this
part will be implemented in such a way, where it is feasible to be
consistent with its terms, as to:
(1) Rely to the maximum extent feasible on State, tribal and local
government systems of financial and program administration that meet
Federal standards;
(2) Presume that historic preservation programs are managed in an
accountable way unless situations indicate the contrary; and
(3) Limit the use of direct Federal management review procedures to
high risk situations, to new programs or to activities more
appropriately overseen at the Federal level.
(b) At the discretion of the Secretary, each State, tribal and
local government may substitute its own fiscal audit and management
systems for comparable fiscal audit and management requirements issued
by the Secretary, so long as the system establishes and maintains
substantially similar accounting standards and provides for independent
peer review.
(c) The National Register Programs Guideline. NPS will maintain
this Guideline to ensure that each State, certified local government,
tribal government, and the National Trust for Historic Preservation
meets the requirements of the Act and of applicable regulations in
performing historic preservation activities, pursuant to the Act.
(d) The Secretary of the Interior's Standards and Guidelines. The
National Register Programs Guideline will include The Secretary of the
Interior's Standards and Guidelines for Archeology and Historic
Preservation. The Standards and Guidelines will be used by NPS as the
technical performance standards for matters covered by this part.
(e) Each State staff, State Review Board member and certified local
government Commission member approved by the Secretary as meeting the
Secretary's Professional Qualification Standards will retain that
status, regardless of any subsequent changes in the Standards, until
such time as that individual no longer is employed by the State office,
serves on the State Review Board, or serves on the certified local
government Commission with which that individual was affiliated as of
the date of that individual's approval.
(f) Publications mentioned in this part can be obtained by
contacting: Heritage Preservation Services Division, National Center
for Cultural Resource Stewardship and Partnership Programs, National
Park Service, P.O. Box 37127, Washington, D.C. 20013-7127.
Sec. 61.4 State programs.
(a) A State Historic Preservation Officer (SHPO) will be appointed
or designated by the Governor to administer the State historic
preservation program.
(b) It will be the responsibility of the SHPO to carry out the
duties and activities described in section 101 (b)(3) of the Act. In
performing those duties and activities:
(1) The SHPO will carry out an 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 and cultural
resource preservation throughout the State.
(2) In addition to State activities to survey and maintain
inventories of historic properties, eligible activities also include
efforts to record a broad range of properties in order to 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 to be used
in planning for public and private development projects.
(3) The State will provide for adequate public participation in the
State historic preservation program as a whole. As part of the process
of recommending a property to the National Register, the State will
comply with the consultation and notification procedures contained in
36 CFR part 60. The State may authorize other persons or entities to
fulfill the notice requirements in 36 CFR part 60. The State also may
authorize the Local Preservation Commission of a certified local
government to act for the State Review Board for the purpose of
considering National Register nominations within its jurisdiction,
provided the Commission meets the professional qualifications required
for the State Review Board when considering such nominations. With the
consent of all property owners in a nomination and the chief elected
local official, the State Review Board or the Local Commission acting
on its behalf may consider the nomination without a face-to-face
meeting.
(4) The State may carry out all or any part of its responsibilities
by contract or cooperative agreement with any qualified nonprofit
organization, educational institution, or otherwise pursuant to State
law. However, the
[[Page 51541]]
State may not delegate its responsibility for compliance with grant
assistance terms and conditions.
(c) The Secretary will consider individual State proposals that
include fewer than all of the SHPO duties in the Act in cases where the
historic resources and needs would be better served for a specified
period by implementing an alternative approach.
(d) Procedures for review and approval of State historic
preservation programs. (1) The Secretary will evaluate each State
program for consistency with the Act periodically, but not less often
than every four years, and will provide the State with written findings
and analyses that highlight program strengths and weaknesses. A State
program will be approved by the Secretary if the Secretary determines
that it meets the program requirements of paragraphs (a), (b), (e) and
(f) of this section.
(2) The Secretary may use on-site and/or off-site inquiries to
perform the evaluation.
(3) Approval method. (i) Each State with a program determined to be
consistent with the Act will receive timely written notice from the
Secretary that its approved status is continued.
(ii) Each State found to have major program aspects not consistent
with the Act will receive timely written notice of deficiencies from
the Secretary, along with required actions for correcting them. Unless
circumstances warrant immediate action, the Secretary will defer making
a decision on program approval for a specified period to allow the
State to correct deficiencies or present a justifiable plan and
timetable for correcting deficiencies. During this period, the State
has the opportunity to appeal to the Secretary any findings and
requirements.
(iii) A State successfully resolving deficiencies will receive
timely written notice from the Secretary that its approved status is
continued. Once approved status is renewed, a State generally will not
be reviewed until the next regular evaluation period, although
evaluations may be conducted more often if the Secretary deems this
necessary.
(iv) A State with deficiencies that warrant immediate action or
that remain after the expiration of the period specified pursuant to
paragraph (d)(3)(ii) of this section will receive written notice from
the Secretary that its approved status is removed. The Secretary will
then initiate financial suspension and other actions in accordance with
administrative guidelines specified in the National Register Programs
Guideline and applicable regulatory requirements.
(4) Instructions on carrying out the evaluation process are
provided in the National Register Programs Guideline.
(e) A professionally qualified staff will be appointed or employed
by the State historic preservation program.
(1) Except as approved pursuant to paragraph (e)(2) of this
section, the staff will include at a minimum, one individual meeting
The Secretary's Standards and Guidelines professional qualifications
for history, one individual meeting the qualifications for historic or
prehistoric archeology and one individual meeting the qualifications
for architectural history. The State will determine the qualifications
for staff positions in addition to this required minimum.
(2) The Secretary will consider individual proposals made by States
whose historic resources, needs or circumstances would be better served
or met by an alternative staff composition.
(3) When a staff position required by paragraph (e)(1) of this
section becomes vacant, the State will ensure that the vacancy is
filled in a timely manner. In the interim, the State will ensure that
technical matters are addressed by appropriately qualified individuals.
A vacancy in a required position that persists for more than six months
will be cause for review and appropriate action by the Secretary.
(f) An adequate and qualified State historic preservation Review
Board will be appointed by the SHPO unless an alternative method of
appointment is provided by State law.
(1) All Review Board members will have demonstrated competence,
interest or knowledge in historic preservation. A majority of Review
Board members will meet the Secretary of the Interior's Professional
Qualification Standards. Among the members meeting the Professional
Qualification Standards will be individuals who meet the Standards for
history, prehistoric archeology or historical archeology, and
architectural history. One person may meet the Standards for more than
one required discipline. The State will determine qualifications for
any additional Review Board members.
(2) The Secretary will consider individual proposals made by States
whose historic resources, needs or circumstances would be better served
or met by an alternative Review Board composition.
(3) When a required Review Board position becomes vacant, the State
will ensure that the vacancy is filled in a timely manner. In the
interim, the State will ensure that the Review Board has access to
advice from appropriately qualified individuals. A lapse of more than
one year in filling the vacancy will be cause for review and
appropriate action by the Secretary.
(4) The State Review Board will meet at least once a year and will
adopt written procedures governing its operations consistent with the
provisions of this section and with the National Register Programs
Guideline.
(5) State Review Board responsibilities include, but need not be
limited to, the following:
(i) Reviewing and making recommendations on National Register
nomination proposals;
(ii) Participating in the review of appeals to National Register
nominations; and
(iii) Providing advice to the State on the full range of Historic
Preservation Fund-supported activities, as described in Section 101
(b)(3) of the Act.
Sec. 61.5 Grants to State programs.
(a) Each State with an approved State program will be eligible for
grants-in-aid from the Historic Preservation Fund (HPF).
(b) Administration of HPF matching grants-in-aid will be in
accordance with the Act, the National Register Programs Guideline, OMB
Circular A-128 and 43 CFR part 12. Failure by a State to meet these
requirements will be cause for appropriate action by the Secretary.
Sec. 61.6 Certified local government programs.
(a) All approved State programs will provide a mechanism for
certifying local governments (CLGs) to participate in the National
program.
(b) All approved State historic preservation programs will maintain
procedures approved by the Secretary for the certification of local
governments. Procedures also will be maintained for removal of
certified local government status for cause. The State will submit any
proposed amendments to its procedures to the Secretary for approval.
The Secretary will act on such proposals within 45 days of receipt.
(c) When a local government certification request has been approved
by the State in accordance with the State's approved certification
process, the State will prepare a written certification agreement that
lists the specific responsibilities of the local government. The State
will submit to the Secretary such information as is necessary for the
Secretary to certify the local government pursuant to the Act and this
part. If the Secretary does not take exception to the proposed
certification within 15 working days of
[[Page 51542]]
receipt, the local government will be regarded as certified by the
Secretary.
(d) Beyond the minimum responsibilities set out in the Act for all
CLGs, the State may make delegations of responsibility to individual
CLGs. However, these delegations may not include the State's overall
responsibility derived from the National Historic Preservation Act, as
amended, or where specified by law or regulation.
(e) The State must ensure that each local government satisfies the
following minimum requirements as conditions for certification. Each
certified local government will:
(1) Enforce appropriate State or local legislation for the
designation and protection of historic properties. The State will
define what constitutes appropriate legislation, as long as:
(i) Designation provisions 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 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 described in paragraph
(e)(1)(i) of this section; 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 will have a demonstrated interest, competence or
knowledge in historic preservation.
(i) The State will encourage certified local governments to include
individuals meeting the Secretary's Professional Qualification
Standards among the membership of the Commission, to the extent that
such individuals are available in the community.
(ii) The State may specify the minimum number of Commission members
that must meet the Secretary's Professional Qualification Standards.
The State may also specify which, if any, of the disciplines listed in
the Standards must be represented on the Commission. Membership
requirements set by the State for Commissions will not be more
stringent or comprehensive than its requirements for the State Review
Board.
(iii) Provided that the Commission is otherwise adequate and
qualified to carry out the responsibilities delegated to it, a local
government may be certified without the minimum number or types of
disciplines established in State procedures, if it 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 State will 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 State will ensure that such systems and the data that
they produce can be readily integrated into statewide inventories and
appropriate State and local planning processes.
(4) Provide for adequate public participation in the historic
preservation program as a whole. The State will provide each CLG with
appropriate guidance on mechanisms to ensure adequate public
participation in the local historic preservation program.
(5) Satisfactorily perform the responsibilities delegated to it
under the Act. The State will monitor and evaluate the performance of
each CLG according to written standards and procedures established by
the State. If a State evaluation of a CLG's performance indicates that
such performance is inadequate, the State will suggest ways to improve
performance. If, after a period of time stipulated by the State, the
State determines that there has not been sufficient improvement, it may
recommend to the Secretary that the local government be decertified. If
the Secretary does not object within 30 working days of receipt, the
decertification will be considered approved by the Secretary.
(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 State may delegate to a CLG any
of the responsibilities of the SHPO and the State Review Board in
processing National Register nominations as specified in 36 CFR part
60, 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. At least 10 percent of
the State's annual HPF grant award will be set aside for transfer to
CLGs.
(g) The District of Columbia will be exempted from the requirements
of this section because there are no subordinated local governments in
the District. If a territory 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.
(1) Where there is no approved State program, local governments
wishing to be 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 within 90 days of receipt.
Sec. 61.7 Subgrants to certified local governments.
(a) At least 10 percent of each State's annual Historic
Preservation Fund (HPF) grant award will be designated for transfer by
the State to CLGs as subgrants. In any year that the annual HPF State
grant appropriation exceeds $65,000,000, one half of the amount over
$65,000,000 will also be transferred to CLGs according to procedures to
be provided by the Secretary.
(b) Each CLG will be eligible to receive funds from the 10 percent
(or greater) CLG share of the State's total annual HPF grant award. The
State is not required to award funds to all governments eligible to
receive funds.
(c) Each State will maintain a procedure approved by the Secretary
for allocating the CLG share of its annual HPF grant award. The
procedure will provide a clear basis for funding decisions and ensure
that no CLG receives a disproportionate share of the allocation. The
State will submit any proposed amendments to its procedure to the
Secretary for approval. The Secretary will act on such proposals within
45 days of receipt.
(d) Each State will notify annually each eligible local government
of its opportunity to apply for funding as well as what is entailed in
the application and project selection process.
[[Page 51543]]
(e) Each CLG receiving an HPF grant award from the CLG share will
be considered a subgrantee of the State. The State will ensure that
each CLG adheres to all applicable requirements of the National
Register Programs Guideline. The State may require specific uses of
funds subgranted to CLGs. Subgranted monies will not be applied as
matching share for any other Federal grant.
(f) Where there is no approved State program pursuant to Sec. 61.4,
the method for allocating funds to CLGs in that State will be
determined by the Secretary in accordance with the procedures set forth
for the State in this Sec. 61.7. 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, in the Secretary's written opinion, the historic
preservation program would benefit from such waiver and the purposes,
conditions, and requirements of the National Historic Preservation Act
of 1966, as amended, would not be compromised.
Sec. 61.11 Information collection. [Reserved]
Dated: September 18, 1996.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 96-24406 Filed 10-1-96; 8:45 am]
BILLING CODE 4310-70-P
