Notice2022-23854
Exemption From Historic Preservation Review for Electric Vehicle Supply Equipment
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 2, 2022
Effective
October 26, 2022
Issuing agencies
Advisory Council on Historic Preservation
Abstract
The Advisory Council on Historic Preservation (ACHP) has approved an exemption that would relieve federal agencies from the historic preservation review requirements under the National Historic Preservation Act regarding the effects of the installation of certain electric vehicle supply equipment (EVSE) on historic properties.
Full Text
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<title>Federal Register, Volume 87 Issue 211 (Wednesday, November 2, 2022)</title>
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[Federal Register Volume 87, Number 211 (Wednesday, November 2, 2022)]
[Notices]
[Pages 66201-66204]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-23854]
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ADVISORY COUNCIL ON HISTORIC PRESERVATION
Exemption From Historic Preservation Review for Electric Vehicle
Supply Equipment
AGENCY: Advisory Council on Historic Preservation.
[[Page 66202]]
ACTION: Approval of exemption regarding electric vehicle supply
equipment.
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SUMMARY: The Advisory Council on Historic Preservation (ACHP) has
approved an exemption that would relieve federal agencies from the
historic preservation review requirements under the National Historic
Preservation Act regarding the effects of the installation of certain
electric vehicle supply equipment (EVSE) on historic properties.
DATES: The exemption goes into effect on October 26, 2022.
FOR FURTHER INFORMATION CONTACT: Jaime Loichinger, (202) 517-0219,
<a href="/cdn-cgi/l/email-protection#93f9fffcfaf0fbfafdf4f6e1d3f2f0fbe3bdf4fce5"><span class="__cf_email__" data-cfemail="e9838586808a8180878e8c9ba9888a8199c78e869f">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Section 106 of the National Historic
Preservation Act, 54 U.S.C. 306108 (section 106 and NHPA), requires
federal agencies to consider the effects of projects they carry out,
license/permit/approve, or assist (undertakings) on historic
properties, and provide the Advisory Council on Historic Preservation
(ACHP) a reasonable opportunity to comment with regard to such
undertakings. Historic properties are those properties that are listed
in the National Register of Historic Places (National Register) or
eligible for such listing.
The NHPA authorizes the ACHP to promulgate regulations for
exempting undertakings from any or all of the requirements of section
106. 54 U.S.C. 304108(c). The section 106 regulations, found at 36 CFR
part 800, detail the process for the approval of such exemptions at 36
CFR 800.14(c).
In accordance with section 800.14(c), the ACHP may approve an
exemption for an undertaking if it finds that: (i) the actions within
the program or category would otherwise qualify as ``undertakings'' as
defined in 36 CFR 800.16; (ii) the potential effects of the
undertakings within the program or category upon historic properties
are foreseeable and likely to be minimal or not adverse; and (iii)
exemption of the program or category is consistent with the purposes of
the NHPA.
I. Background
In 2021, two Executive Orders (E.O.) were issued to accelerate
investment in sustainable procurement strategies, focused on clean
energy and infrastructure: (1) E.O. 14008, Tackling the Climate Crisis
at Home and Abroad, prioritizes the development of a Federal Clean
Electricity and Vehicle Procurement Strategy and directs Federal
agencies to upgrade the entire federal fleet to clean and zero-emission
vehicles (ZEV); and (2) E.O. 14057, Catalyzing Clean Energy Industries
and Jobs Through Federal Sustainability, sets a goal of 100 percent ZEV
federal acquisitions by 2035, including 100 percent light duty vehicle
federal acquisitions by 2027.
Additionally, the Infrastructure Investment and Jobs Act (IIJA) of
2021 (Pub. L. 117-58) appropriates $550 billion for new infrastructure
investments related to electric vehicles (EV), which are ZEVs. The IIJA
includes provisions to increase investment in electric vehicle supply
equipment (EVSE), alternative fuel infrastructure, EV batteries,
electricity grid upgrades, and light-, medium-, and heavy-duty ZEVs and
vessels. Several federal grant programs were established or received
additional funding through the IIJA. The National Electric Vehicle
Infrastructure (NEVI) program provides formula funding to states to
install EVSE, while the Charging and Fueling Infrastructure Grant
Program will provide grants on a competitive basis, with priority given
to projects that expand access to EVSE within rural areas and low- and
moderate-income neighborhoods. In total, the IIJA provides up to $7.5
billion to build out a national network of EV chargers in the United
States, including on Tribal lands. Due to these requirements and
investments, federal agencies are anticipated to propose activities to
carry out, license, approve, or fund undertakings to electrify federal
vehicles and provide EVSE that have the potential to affect historic
properties and therefore, require section 106 review.
An EV produces zero tailpipe emissions when running only on
electricity, dramatically lowering smog and greenhouse gas emissions
even when considering electricity generation (EV refers to both Battery
Electric Vehicles and Plug-in Hybrid Electric Vehicles). In order to
charge EVs, installation of EVSE is required. EVs have the potential to
significantly improve federal fleet efficiency by reducing vehicle
operation and maintenance costs. EVs require EVSE. Commonly referred to
as charging stations, EVSE is the hardware that supplies electricity to
charge an EV. There are three levels of EVSE that are defined by their
charging capacities; EVSE can be wall- or pole-mounted, co-located or
stand alone, and vary in design, size, charging speed and energy use.
II. Exemption Concept and Criteria
In considering how to address the anticipated increase in
undertakings as a result of these requirements and investments, the
Department of Homeland Security (DHS) assembled an ad hoc working group
of Federal Preservation Officers (FPOs) to discuss EV priorities and
the potential effects of expanded EVSE infrastructure programs on
historic properties. Through consultation with fleet technical experts,
the working group defined the undertakings to be addressed by the
proposed exemption as the installation, maintenance, repair, and
expansion of Levels 1, 2, and 3 EVSE as defined by the General Services
Administration (GSA). After being approached by DHS with the concept of
a program alternative, the ACHP determined it would propose the
exempted category itself. The government-wide priority for fleet
electrification and EVSE installation merited ACHP coordination of the
proposal to ensure broad and appropriate consultation for an exemption
likely to be applied across multiple federal agency programs.
The exemption can be used by ``federal agencies.'' It is also
available to be used by a state, local, or tribal government official
who has been delegated legal responsibility for compliance with section
106 in accordance with a federal statute. Consistent with 36 CFR
800.14(c)(1), section 106 exemptions must meet the criteria mentioned
earlier. The ACHP has determined that the proposed exemption, which
appears below, meets these criteria. The exemption aligns with the
requirements of the NHPA because it reflects an effort to harmonize
modernization and climate change reduction measures with the continued
protection and enjoyment of historic properties. As described above and
in the exemption text, the EVSE will be restricted to existing
footprints and levels of previous ground disturbance, and would use
reversible, non-permanent techniques for installation, where
appropriate. As such, the effects of the proposed undertakings are
foreseeable and likely to be minimal or not adverse.
III. Public Participation and Consultation
In accordance with 36 CFR 800.14(c)(2), public participation
regarding exemptions must be arranged on a level appropriate to the
subject and scope of the exemption. In order to meet this requirement,
an earlier draft was published for public comment in the Federal
Register on May 5, 2022 (87 FR 26771-26773). The ACHP worked closely
with multiple federal agencies to ensure the exemption has the correct
technical language, and also consulted
[[Page 66203]]
with State Historic Preservation Officers, Tribal leaders, Tribal
Historic Preservation Officers, and other consulting parties, including
the National Trust for Historic Preservation and the National Alliance
of Preservation Commissions.
Seven consultation meetings were held between June and August 2022,
and had participants from 31 states, 21 Tribes, and 3 organizations.
Comments and questions were submitted during consultation meetings, as
well as via email during comment periods that followed the consultation
meetings. Most comments were supportive of the effort, although two
organizations opposed the exemption in its entirety.
Comments reflected a range of areas, including: the scope of the
exemption; the need for additional details, definitions and conditions
to ensure effects to historic properties are not adverse; the use of
professionals qualified within historic preservation field by agencies
to meet the exemption's conditions; the potential cumulative effects to
historic properties or post-review discoveries; and the potential for
effects to properties of religious and cultural significance to Indian
Tribes and Native Hawaiian organizations.
In response to these comments, the ACHP revised the exemption to
more clearly define the range of actions that can occur using the
exemption and added additional detail to the conditions under which an
undertaking may fall within the scope of this exemption. Additional
definitions, including changes to ``parking facilities'', were included
in the version approved by the ACHP. Regarding the use of qualified
professionals, the ACHP determined that such a requirement is not
necessary because even if historic properties are present, they would
not be affected due to the exemption's conditions. While the
requirement was not included within the exemption, the conditions were
further refined to ensure that non-historic preservation professionals
could reasonably apply the exemption's terms.
The ACHP received comments regarding the potential for the
installation of EVSE, particularly when several EVSE might be installed
within one location, to result in cumulative effects to historic
properties, or for there to be discoveries of historic properties
during project implementation. As written, because the exemption
requires the use of existing electrical infrastructure, the amount of
new EVSE that could be constructed or implemented at a given location
is necessarily limited to the current electrical capacity. Therefore,
it is unlikely to result in cumulative adverse effects on historic
properties. Further, any addition beyond the existing electrical
capacity would fall outside the exemption and require section 106
review. Other comments requested that there be a survey requirement.
Because the exemption relies upon existing infrastructure and parking
structures, any ground disturbance necessary to install the equipment
will be limited to areas already disturbed, meaning that a survey would
not likely result in the identification of historic properties that
have sufficient integrity to contribute to or be individually
considered eligible for listing in the National Register of Historic
Places. Similarly, because the exemption limits the level of ground
disturbance to previously disturbed sediments, it is unlikely that
discoveries of intact historic properties that retained integrity would
occur. Moreover, the requirements of the Native American Graves
Protection and Repatriation Act and other federal, state and local laws
(besides section 106) are unaffected by the exemption. No additional
edits were made to the exemption as a result of these comments.
Comments were received regarding potential effects from EVSE to
historic properties of religious and cultural significance to Indian
tribes and Native Hawaiian organizations (NHOs), and how agencies would
determine whether the installation of EVSE in a location may affect
such properties without consultation with the affected Indian Tribe or
NHO. While it is possible that some EVSE locations may be placed on or
near such properties, because the exemption requires that ground
disturbance be limited to the depth of previous construction and that
the EVSE be minimally visible, the ACHP believes the exemption will
reasonably ensure that any effects from the proposed EVSE undertakings
to historic properties will be minimal or not adverse. When planning
EVSE projects, agencies are encouraged to discuss the projects with
stakeholders, including Indian Tribes and NHOs, to ensure that
application of the exemption is appropriate. This recommendation is
further strengthened by the addition of a new stipulation within the
exemption, ``Recommendation Outside Tribal Lands.''
Two objections were made to the exemption, on the basis that the
proposal ran contrary to the purposes of the NHPA. However, one of the
explicit policies of the NHPA is for the federal government to ``use
measures . . . to foster conditions under which our modern society and
our historic property can exist in productive harmony and fulfill the
social, economic, and other requirements of present and future
generations.'' 54 U.S.C. 300101(1). Climate change presents various
challenges to historic properties and to many social, economic and
other needs that must be addressed. Given that this exemption supports
expansion of the use of EVs across the country, a climate change
reduction method, it clearly meets the purposes of the NHPA. The ACHP
acknowledges the objections and will continue to oversee the
exemption's use.
Finally, to ensure appropriate administrative oversight of the
exemption, the ACHP added an amendment provision to the exemption.
While there were requests to also include a reporting stipulation, such
reporting was determined by the ACHP to be unnecessary due to the
minimal or non-adverse effects to historic properties. Further, such
information would be challenging to require and obtain from the myriad
agencies that will be using this exemption. However, the ACHP has
committed to routinely querying agencies regarding the use of the
exemption and will share that information with consulting parties when
appropriate.
On October 26, 2022, the ACHP membership approved the exemption
reproduced below.
IV. Text of Exemption
The full text of the approved exemption is reproduced below:
Exemption Regarding Historic Preservation Review Process for
Undertakings Involving Electric Vehicle Supply Equipment
I. Exemption From Section 106 Requirements
Except as noted in Section II, all federal agencies are exempt from
the Section 106 requirements of taking into account the effects of the
installation, maintenance, repair, or expansion of EVSE and Level 1, 2,
or 3 charging stations, provided these:
(1) take place in existing parking facilities with no major
electrical infrastructure modifications and are located as close to an
existing electrical service panel as practicable;
(2) use reversible, minimally invasive, non-permanent techniques to
affix the infrastructure;
(3) minimize ground disturbance to the maximum extent possible, and
ensure that it does not exceed previous levels of documented ground
disturbance;
[[Page 66204]]
(4) use the lowest profile EVSE reasonably available that provides
the necessary charging capacity;
(5) place the EVSE in a minimally visibly intrusive area; and
(6) use colors complementary to surrounding environment, where
possible.
Each federal agency remains responsible for considering the effects
of components of its undertakings not subject to this exemption on
historic properties, in accordance with subpart B of the Section 106
regulations or according to an applicable program alternative pursuant
to 36 CFR 800.14.
II. Application on Tribal Lands
This exemption shall not apply on Tribal Lands, or to activities
that may affect historic properties located on Tribal Lands, unless the
Tribal Historic Preservation Officer, Tribe, or a designated
representative of the Tribe has provided prior written notification to
the Advisory Council on Historic Preservation (ACHP) that it agrees
with the use of the exemption on its lands. Indian Tribes can agree to
such use of the exemption by completing the attached form (Attachment
A) and submitting the completed form to the ACHP. The exemption would
then be applicable on those Tribal Lands when the ACHP provides notice
on its website of such agreement.
III. Recommendation Outside Tribal Lands
While the ACHP does not expect that activities carried out
consistent with this exemption will affect historic properties of
religious and cultural significance to Indian tribes or Native Hawaiian
organizations (NHOs), the ACHP notes that such historic properties have
not been consistently identified during prior documentation efforts.
The ACHP advises that, where the installation of EVSE may occur in a
location on or near an existing archaeological site, feature, or
district, or any other property with known potential significance to
Indian Tribes or NHOs, the agency should coordinate with interested
Indian Tribes or NHOs to determine whether they ascribe significance to
the site or property. Should a Tribe or Native Hawaiian organization
ascribe significance to the site area, the agency should undertake a
Section 106 review in accordance with subpart B of the Section 106
regulations or according to an applicable program alternative pursuant
to 36 CFR 800.14.
IV. Existing Agreements and State and Local Reviews
This exemption does not amend, invalidate, or otherwise modify
Section 106 agreements in existence at the time this exemption goes
into effect. This exemption does not modify, preempt, or replace any
applicable state or local laws or regulations.
V. Termination
The ACHP may terminate this exemption in accordance with 36 CFR
800.14(c)(7) if it determines that the purposes of Section 106 are not
adequately met.
VI. Amendments
This exemption may be amended by the ACHP membership. Such
amendments must be consistent with the criteria at 36 CFR 800.14(c)(1)
and preceded by consultation appropriate to the scope of the
amendments.
VII. Definitions
The following definitions shall apply to this exemption:
a. ``Agency'' means an agency as defined by 5 U.S.C. 551, and
includes state, local, or tribal government officials who have been
delegated legal responsibility for compliance with Section 106 in
accordance with federal law.
b. ``Electric Vehicle Supply Equipment'' (EVSE) means conductors,
including the ungrounded, grounded, and equipment grounding conductors
and the electric vehicle connectors, attachment plugs, and all other
fittings, devices, power outlets, or apparatus installed specifically
for the purpose of delivering energy from the premises wiring to the
EV. There are three levels of EVSE:
i. Level 1--Refers to a freestanding or wall mounted charging
structure that delivers a 110/120V charge, replenishing an EV battery
at a rate of 4 to 6 miles of range per hour of charging time. Charging
an EV at level 1 typically takes between 7 and 20 hours depending on
the size of the vehicle's battery.
ii. Level 2--Refers to a freestanding or wall mounted charging
structure that delivers a 208/240V charge, replenishing an EV battery
at a rate of 10 to 20 miles of range per hour of charging time.
Charging an EV at level 2 typically takes between 2 and 5 hours
depending on the size of the vehicle's battery.
iii. Level 3 (also known as Direct Current (DC) Fast Charging) -
Refers to a freestanding or wall mounted structure capable of being
networked that is designed to charge vehicles more quickly than level I
or level II with an electrical output ranging between 40 kW--500 kW
delivering 50--1000 volts of direct current to the EV battery. Converts
AC power to DC within the charging station and delivers DC power
directly to the battery. DC fast charging can typically replenish an EV
battery at a rate of 50 to 200 miles of range per 30 minutes of
charging time.
c. ``Lowest profile equipment'' means EVSE that is the smallest
height and width possible that meets the EV charging needs.
d. ``Minimally visibly intrusive'' means that the EVSE is partially
visible but does not detract from the views from or to historic
properties.
e. ``Parking facility'' means any building, structure, land, right-
of-way, facility or area used for parking of motor vehicles.
f. ``Tribal lands'' means all lands within the exterior boundaries
of any Indian reservation and all dependent Indian communities.
Attachment A to the Exemption From Historic Preservation Review for
Electric Vehicle Supply Equipment
The (INSERT NAME OF INDIAN TRIBE) authorizes federal agencies to
utilize the attached Exemption from Historic Preservation Review for
Electric Vehicle Supply Equipment on the Tribal Lands of the (INSERT
NAME OF INDIAN TRIBE).
Signed by: (Signature)
(Printed Name and Title)
(DATE)
The (INSERT NAME OF INDIAN TRIBE) may discontinue this
authorization at any time by providing written notice to the Advisory
Council on Historic Preservation.
For further information, please contact: (Tribal Contact; Name and
Contact Information)
(END OF DOCUMENT)
Authority: 36 CFR 800.14(c).
Dated: October 28, 2022.
Javier Marques,
General Counsel.
[FR Doc. 2022-23854 Filed 11-1-22; 8:45 am]
BILLING CODE 4310-K6-P
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