Notice2024-25984
Notice of Approval of Exemption for Indigenous-Knowledge Informed Activities by Native Hawaiian Organizations
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 8, 2024
Effective
October 18, 2024
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 Section 106 of the National Historic Preservation Act regarding the effects of various undertakings in Hawaii that are proposed or directed by a Native Hawaiian Organization (NHO), or substantially led, designed, or managed by an NHO, informed by Indigenous Knowledge of that NHO, and related to traditional cultural practices of Native Hawaiians.
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[Federal Register Volume 89, Number 217 (Friday, November 8, 2024)]
[Notices]
[Pages 88791-88798]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-25984]
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ADVISORY COUNCIL ON HISTORIC PRESERVATION
Notice of Approval of Exemption for Indigenous-Knowledge Informed
Activities by Native Hawaiian Organizations
AGENCY: Advisory Council on Historic Preservation.
ACTION: Notice.
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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 Section 106 of the
National Historic Preservation Act regarding the effects of various
undertakings in Hawaii that are proposed or directed by a Native
Hawaiian Organization (NHO), or substantially led, designed, or managed
by an NHO, informed by Indigenous Knowledge of that NHO, and related to
traditional cultural practices of Native Hawaiians.
DATES: The exemption went into effect on October 18, 2024.
FOR FURTHER INFORMATION CONTACT: William Dancing Feather, (202) 517-
0195, <a href="/cdn-cgi/l/email-protection#87f0e3e6e9e4eee9e0e1e2e6f3efe2f5c7e6e4eff7a9e0e8f1"><span class="__cf_email__" data-cfemail="453221242b262c2b22232024312d20370524262d356b222a33">[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).
After following that process, on October 18, 2024, the ACHP
membership, by a vote of 17 in favor, none against, and three
abstentions, approved the exemption reproduced at the end of this
notice.
I. Background
The ACHP acknowledges that Native knowledge and expertise are
crucial to a full understanding of historic properties that must be
recognized in the Section 106 review process. Accordingly, the ACHP
published the 2021 Traditional Knowledge and the Section 106 Process:
Information for Federal Agencies and Other Participants document to
keep Federal agencies apprised of their duty to incorporate traditional
knowledge in Section 106 decisions. Most recently, in March 2024, the
ACHP adopted a Policy Statement on Indigenous Knowledge and Historic
Preservation calling for the respectful integration of Indigenous
Knowledge at all levels of the Section 106 review process. In
particular, Principle 3 of this policy describes ``Indigenous
Knowledge'' for purposes of Section 106 to include, but is not limited
to, the ``experiences, insights, and knowledge held by Indian Tribes
and NHOs that can assist Federal agencies in identifying, evaluating,
assessing, and resolving adverse effects to historic properties that
may be of religious and cultural significance to them.'' Moreover,
Principle 4 of the policy explains that section 106 agreement documents
and program alternatives that relate to historic properties of
religious and cultural significance to an Indian Tribe or NHO should
recognize Indigenous Knowledge in informed decision making.
II. Exemption Criteria
As mentioned, exemptions are a program alternative under 36 CFR
800.14(c) which may be proposed by a Federal agency or by the ACHP.
Exempted categories must meet the following three criteria: (i) the
actions within the program or category would otherwise qualify as
``undertakings'' as defined in Sec. 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) the exemption of the program or category is consistent with the
purposes of the NHPA.
The actions covered by the exemption are undertakings. The ACHP
identified that certain Federal agencies reviewing undertakings
involving NHOs, specifically those utilizing Indigenous Knowledge, were
experiencing challenges in meeting section 106 requirements despite
clear compliance with the broad goals and outlines of Federal historic
preservation policy. Examples of such projects have included, in the
past, Federal grant activities to NHOs, such as grants for agricultural
restoration in He[revaps]eia and maintenance activities at Ulup[omacr]
Heiau in Kailua, and select Federal land management actions.
The exemption applies to certain types of undertakings to be
carried out, licensed, permitted, or assisted by Federal agencies that
are (1) proposed, directed, or authorized by an NHO, or substantially
led, designed, or managed by an NHO, (2) informed by Indigenous
Knowledge of that NHO, (3) related to traditional cultural practices of
Native Hawaiians, and (4) preceded by the submission of an attestation
statement by the NHO to the relevant Federal agency. The types of
activities that are included are landscaping practices; agricultural
practices; rehabilitation, preservation, restoration, or reconstruction
of water features and systems, including fishponds, historic pathways,
sacred and traditional sites, traditional Native Hawaiian buildings and
structures, properties of religious and cultural significance to NHOs;
installation of interpretative signage; and transfer of Federal
property or interest in Federal property to an NHO.
The undertaking's potential effects are likely to be minimal or not
adverse. In considering the likely potential effects of the
undertakings informed by NHOs on historic properties, the ACHP Chair
and staff met with many representatives of NHOs, Federal agencies, the
Hawai[revaps]i State Historic Preservation Office, and other
preservation partners. In addition, the ACHP conducted public
engagement and consultation as further described below.
Based on this input and input from ACHP members, the likely effects
of the exempted undertakings on historic properties (including those
not of religious and cultural significance to NHOs), would be minimal
or not adverse, as such effects are defined in 36 CFR 800.16(i) and
800.5 respectively. The exemption includes several safeguards to limit
the covered undertakings' effects to those that are minimal or not
adverse, including: the requirements that covered activities include
only those informed by Indigenous Knowledge of the NHO and related to
the traditional cultural practices of Native Hawaiians; a requirement
that the NHO attest to its involvement in the undertaking and the
undertaking's relationship to Native Hawaiian cultural practice; a
carefully prescribed list of covered activities, each tied to
Indigenous Knowledge of the NHO and traditional cultural
[[Page 88792]]
practice of Native Hawaiians; and careful limits on the types of
materials, construction techniques, and activities of the covered
activities.
Overall, the exemption aims to exempt those activities that are
themselves cultural preservation. By the terms of the exemption, these
are activities for the preservation, restoration, rehabilitation,
reconstruction, repair, maintenance, and stabilization of historic
properties of significance to NHOs, utilizing their expert Indigenous
Knowledge about such properties. Deference to an NHO's understanding of
their own cultural preservation activities is consistent with the
formal position of the ACHP as expressed in its Policy Statement on
Indigenous Knowledge and Historic Preservation which states that
Federal agencies should ``recognize and defer to Tribal or NHO
interpretation of the property's significance and integrity. Members of
the preservation community are not the experts on what constitutes
Indigenous Knowledge or how it should be utilized to identify or
evaluate the eligibility of a property that may be of religious and
cultural significance to an Indian Tribe or NHO.''
The exemption does not apply to demolition or removal of properties
listed or known to be eligible for listing on the National Register of
Historic Places, unless the demolition or removal decision has
previously completed review pursuant to Section 106; the construction
of new buildings or structures not expressly allowed in the covered
activities section; the treatment or disposition of burial sites, human
remains, and funerary objects in a manner contrary to the ACHP Policy
Statement on Burial Sites, Human Remains, and Funerary Objects; agency
decisions to provide or retract permission to access agency owned or
controlled land; and undertakings known by a Federal agency or the
relevant NHO to be contrary to or limiting of the Indigenous Knowledge-
informed traditional cultural practice of another NHO or to demolish or
remove properties on or eligible for the National Register of Historic
Places. Moreover, the exemption includes language, similar to that in
other exemptions, where Federal agencies remain responsible for
considering the effects of undertakings on historic properties other
than those directly addressed by the activities covered by the
exemption.
In sum, the ACHP consulted with and took into account the views of
stakeholders--including Federal and State officials, NHOs, historic
preservation organizations, and individuals--to identify a limited set
of undertakings whose potential effects upon historic properties are
foreseeable and likely to be minimal or not adverse and where exemption
of the undertakings would be consistent with the purposes of the NHPA.
The exemption includes several safeguards to limit the covered
undertakings' effects to those that are minimal or not adverse,
including: the requirements that covered activities include only those
informed by Indigenous Knowledge of the NHO and related to the
traditional cultural practices of Native Hawaiians; a requirement that
the NHO attest to its involvement in the undertaking and its
relationship to the property, and the undertaking's relationship to
Native Hawaiian cultural practice; a carefully prescribed list of
covered activities, each tied to Indigenous Knowledge of the NHO and
traditional cultural practice of Native Hawaiians; and careful limits
on the types of materials, construction techniques, and activities of
the covered activities.
The exemption is consistent with the purposes of the NHPA. Among
other things, the NHPA establishes as the policy of the government to
``provide leadership in the preservation of the historic property of
the United States and . . . in the administration of the national
preservation program'', to ``administer federally owned, administered,
or controlled historic property in the spirit of stewardship for the
inspiration and benefit of present and future generations'', and to
``contribute to the preservation of nonfederally owned historic
property in a spirit of stewardship for the inspiration and benefit of
present and future generations.'' 54 U.S.C. 30101(2), (3), (4).
The exemption aligns with the requirements of the NHPA reflecting
an effort to promote historic preservation by enabling types of
restoration and rehabilitation projects that are essentially
preservation activities. This effort also aligns with ACHP's work over
the course of three decades to expand the participation of NHOs in the
historic preservation review process under Section 106 and its
implementing regulations. In 1992, Congress amended the NHPA to clarify
that properties of religious and cultural importance to NHOs may be
eligible for listing in the National Register of Historic Places and
that Federal agencies, in carrying out their Section 106
responsibilities, must consult with any NHO that attaches religious and
cultural significance to historic properties that may be affected by an
undertaking. The ACHP incorporated the provisions in the Section 106
regulations, 36 CFR part 800, ``Protection of Historic Properties.''
The ACHP in 2008 adopted the ACHP Policy Statement on the ACHP's
interaction with Native Hawaiian Organizations. This policy set forth
the ACHP's commitments to ensure that NHOs are fully included and
allowed the opportunity to effectively participate in the Federal
historic preservation program. The policy also set forth the ACHP's
consideration of Native Hawaiian values, such as a deep love and
understanding of the land and a respect for the powerful forces of
nature, and its recognition of the significant contribution Native
Hawaiians make towards the enrichment of this nation. In 2010,
President Obama announced U.S. support for the United Nations
Declaration on the Rights of Indigenous Peoples and in 2013 the ACHP
became the first agency to formally adopt its intent with the ACHP Plan
to Support the U.N. Declaration on the Rights of Indigenous Peoples
(Declaration). The plan calls for the ACHP to incorporate the
principles and aspirations of the Declaration into its work regarding
Native Hawaiian historic preservation issues.
In 2021, the ACHP published the guidance document entitled
Traditional Knowledge and the Section 106 Process: Information for
Federal Agencies and Other Participants to help inform Federal agencies
of their obligation to incorporate traditional knowledge in the Section
106 decision making and noting the ACHP's position that Native
knowledge and expertise is essential to a full understanding of
historic properties that must be considered in the Section 106 review
process. In 2022, the White House Office of Science and Technology
Policy and the Council on Environmental Quality issued government-wide
Guidance for Federal Departments and Agencies on Indigenous Knowledge.
To further elaborate on this guidance, and advance and encourage
the use and integration of Indigenous Knowledge in the Section 106
process, in 2024 the ACHP adopted the ACHP Policy Statement on
Indigenous Knowledge and Historic Preservation. The policy includes
principles that should be applied by Federal agencies, State and local
governments, and nongovernmental institutions, including private
contractors, to advance the integration of Indigenous Knowledge into
historic preservation decision making. Principle 3 of that policy
states:
For purposes of Section 106, the term ``Indigenous Knowledge''
includes, but is not limited to, the experiences, insights, and
knowledge held by Indian
[[Page 88793]]
Tribes and NHOs that can assist Federal agencies in identifying,
evaluating, assessing, and resolving adverse effects to historic
properties that may be of religious and cultural significance to them.
While the NHPA directs Federal agencies to make the final decisions in
the Section 106 review, the law also directs agencies to consult with
Indian Tribes and NHOs in carrying out the review process. Deference
can and should be provided to the expertise of designated
representatives about Indigenous Knowledge that is provided to inform
decision making in the Section 106 process. A reasonable and good faith
effort includes the responsibility that Federal agencies, consistent
with 36 CFR 800.2(c)(2)(ii)(A), consider Indigenous Knowledge in a
successive and cumulative manner throughout the four-step Section 106
process.
Principle 4 of that policy states: ``Section 106 agreement
documents and program alternatives that relate to or include the
identification of, assessment of effects to, or resolution of adverse
effects to historic properties of religious and cultural significance
to an Indian Tribe or NHO should include language or stipulations that
address the role of Indigenous Knowledge in informed decision making
and how designated representatives would be involved in any ongoing
reviews or consultation.''
This exemption constitutes a Section 106 program alternative that
is designed to advance the recognition of Indigenous Knowledge in
informed decision making by Federal agencies and to advance the ACHP's
application of these and other principles within the ACHP Policy
Statement on Indigenous Knowledge and Historic Preservation and prior
relevant ACHP documents and statements.
The exemption is restricted to only specific activities undertaken
with or by NHOs, and to those projects that benefit historic
preservation and cultural perpetuation by reconstructing, interpreting,
restoring, rehabilitating, and preserving historic properties
significant to NHOs. Further, this exemption offers NHOs engaged with
Federal agencies the ability to identify the appropriate paradigm,
cultural methods, and practices in which proposed undertakings would be
carried out in order to support the cultural perpetuation goals of NHOs
as well as meeting the policy principles within the ACHP's Policy
Statement on Indigenous Knowledge. Accordingly, the proposed exemption
meets the final criterion for an exemption.
III. Summary of Consultation and Public Participation
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. The exemption is not a nationwide
action and would only have effect within the State of Hawai[revaps]i.
The AHCP determined that consultation requirements of Executive Order
13175 were not triggered for the development of this exemption as there
are no Indian Tribes with a government-to-government relationship
located within, nor have interests in Hawaii.
In mid-April 2024, Chair Bronin met with representatives of NHOs
while visiting several historic sites on Oahu with leaders from the
State of Hawaii Office of Hawaiian Affairs, Historic Hawai[revaps]i
Foundation, and the Department of the Interior (DOI) Office of Native
Hawaiian Relations. Chair Bronin and former ACHP Member Reno Franklin
further met with numerous Native Hawaiians on Maui, including the
Cultural Monitor of Federal Emergency Management Agency (FEMA) recovery
efforts in Lahaina. During these meetings, Chair Bronin and Member
Franklin heard comments about improving the Section 106 process for
certain undertakings involving one or more NHOs that propose or direct,
or substantially lead, design, or manage such undertakings. The NHOs
identified issues related to unnecessary delays and expenses associated
with Federal historic preservation reviews of Native Hawaiian cultural
practices, and potential interference by non-Indigenous authorities in
Indigenous Knowledge-informed activities. In addition, there was
concern that Section 106 reviews of any proposed reconstruction and
restoration of traditional Native Hawaiian sites in and around Lahaina
could delay or thwart the implementation of such undertakings.
In mid-May, Chair Bronin announced her intent to draft an exemption
at the ACHP Tribal and Indigenous Peoples Committee meeting with the
stated support of Chairman Franklin and creation of a proposed working
group consisting of Vice Chair Jordan Tannenbaum and representatives of
the Department of Homeland Security (DHS), the Department of Defense
(DOD), the DOI, the National Trust for Historic Preservation (NTHP),
and the National Association of Tribal Historic Preservation Officers
(NATHPO).
After circulating a draft of the exemption to the above-referenced
working group on May 16, 2024, Chair Bronin met with the NATHPO and
NTHP. Based on these meetings and exchanges among the working group,
Chair Bronin addressed comments and incorporated feedback into the
draft. On May 22, the Office of Tribal and Indigenous Peoples
distributed to the ACHP's NHO 106 contacts listserv a notice of intent
to propose an exemption, including a link to the ACHP's web page
explaining the proposal, notification of two NHO consultations and one
public meeting on the proposal, and a notice that written comments
would be taken until July 7. After Chair Bronin met with Hawai[revaps]i
State Historic Preservation Officer Dawn Chang on May 28 to discuss the
draft exemption, the draft of the exemption consolidating all
preliminary input was posted on the ACHP website.
The ACHP and Chair Bronin promoted the proposal and opportunities
for public engagement and NHO consultation on social media, including
LinkedIn, X, and Facebook. Chair Bronin further published an op-ed in
Hawai[revaps]i's largest newspaper, the Honolulu Star-Advertiser
(circulation 107,191), describing the proposed exemption, explaining
its history and rationale, and inviting public comment with a link to
the ACHP web page. This newspaper piece was promoted by Chair Bronin
and the ACHP on the above-referenced social media platforms.
On May 31, 2024, a second notice of the proposed exemption was
distributed to the ACHP's NHO listserv, restating key information in
the May 22 notice and pointing out that the final draft of the proposed
NHO Exemption had been posted on the ACHP website. Chair Bronin further
explained the proposed exemption while urging feedback and ACHP
engagement in a webinar of the American Planning Association Division
on Urban Design and Historic Preservation on May 22. More than 1,000
people registered for this event. On June 12, Chair Bronin led a public
engagement meeting about the proposed exemption with participating
members including representatives of Federal agencies, the State of
Hawai[revaps]i State Historic Preservation Division, and members of the
general public. Chair Bronin addressed comments and questions from
participants, including several representatives of the SHPO, Federal
agencies, and cultural resources practitioners.
The ACHP developed and executed a plan to consult with Native
Hawaiian Organizations. The plan included the conduct of two NHO
consultations organized by the ACHP and directly facilitated by Chair
Bronin. On June 14,
[[Page 88794]]
Chair Bronin led a first NHO consultation meeting with a second meeting
on June 27. At the first consultation meeting, representatives of NHOs
were in attendance. At the second consultation meeting, representatives
of NHOs were again in attendance.
At both meetings, attendees expressed support for the intent and
overall content of the exemption and raised specific suggestions about
covered activities to include in the list (including, among others,
fencing to protect cultural sites, climate change-related adaptation
measures, and new construction of traditional structures such as hale
and h[amacr]lau wa[revaps]a), urged that there be safeguards (such as
public notice or reporting) on the exemption, and that the exemption
provide for documentation that the NHO proponent meets the definition
of an NHO (pursuant to NHPA and 36 CFR 800.16(s)(1)). In addition,
attendees asked that undertakings known to have the potential to
infringe on the Indigenous Knowledge-informed cultural practice by
other NHOs not be included in the scope of the exemption and asked for
clarification about the applicability of other State and Federal laws.
Chair Bronin addressed comments and questions from the attendees, and
those unable to attend had the opportunity to contact staff through a
dedicated email address monitored by staff to guarantee a timely
response.
The first consultation period closed on July 7. Chair Bronin and
ACHP staff reviewed the comments and questions from NHOs and the
general public and made adjustments to create a second draft of the
exemption.
ACHP members discussed the public comments and preliminary version
of the second draft at the ACHP Tribal and Indigenous Peoples Committee
meeting on July 11 and at the ACHP Business Meeting on July 18. Members
discussed a timeline for a second round of consultation on a second
draft, and an updated draft was posted to the ACHP website.
On August 15, Chair Bronin led a third NHO consultation meeting.
Representatives of NHOs were in attendance.
At this meeting, certain individuals expressed general support for
the exemption, stating that it would simplify the process for
restoration and preservation activities. Many participants shared that
it would be helpful in Lahaina specifically, with others remarking it
had broader utility. A few participants asked for more specific details
about exactly which organizations could use this exemption, and flagged
concern that agency contractors are also reflected on the DOI NHO list
or otherwise may meet the criteria. Some participants expressed a
concern that the exemption would allow actors who do not properly
represent Native Hawaiian communities or lineal descendants in an area
to take advantage of the exemption, while others noted that recent ACHP
changes to the draft exemption may address these concerns. A few
participants flagged a desire for public information about ongoing use
of the exemption and public notice about the use of application of the
exemption before it is applied, so that lineal descendants are aware of
its use on properties of significance to their family and communities
and can raise a dispute if needed. Some individuals requested
additional outreach to consult on the proposed exemption. Chair Bronin
again responded to comments and questions from the attendees and
encouraged the submission of written comments.
The second consultation period closed on August 26. Chair Bronin
and ACHP staff reviewed the comments and made adjustments to create a
third draft of the exemption to be considered by ACHP members. Members
of the ACHP-Initiated Program Alternatives Forum Committee held a
meeting on September 5 to discuss a preliminary third draft. Members
provided additional feedback between that discussion and September 25.
Chair Bronin and staff revised the proposed exemption extensively
as a result of consultation. Below is a summary of how Chair Bronin and
staff integrated suggestions or considered them in the revisions.
Comments from members of the public, State and Federal agencies,
and NHOs covered a range of topics, including: strengthening
protections for historic and cultural properties not involved with a
covered undertaking; requesting additional consultation and outreach;
addressing several issues related to NHO connections to properties at
issue and NHO capacity; refining the scope of covered activities and
excluded activities; confirming Federal agency responsibilities; adding
notice to the public, periodic reporting, and reviews; and several
minor suggestions. 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.
Several comments suggested strengthening the provisions in the
exemption to clarify how historic and cultural properties not involved
with a covered undertaking would be protected against adverse effects.
In response, the ACHP revised the exemption to: require a statement by
an NHO participating in the exemption that explains the NHO's
connection to the property and its members' current or ancestors' prior
relationship to the property, as well as a statement that the NHO knows
of no other NHO's traditional cultural practice being infringed upon
and that no other properties on or eligible for the National Register
will be potentially demolished, removed, or modified in a manner that
adversely affects character-defining features; indicate that the
Federal agency remains responsible for identification and considering
the effects of the covered activities on other surrounding sites; and
explicitly exclude from the exemption undertakings known by the agency
or NHO to be contrary to or limiting of another NHO's traditional
cultural practice. Such provisions were added to other existing
protections, including the explicit exclusion from the exemption the
demolition or removal of properties listed or known to be eligible for
the National Register.
Several comments queried how NHOs identified by a Federal agency
might be asked to demonstrate their connection to a particular historic
property at issue. Revisions to the NHO attestation provisions in
section II refine the types of connections that must be attested to,
including statements about the property's ongoing or prior traditional
cultural practices related to the property and about the prior
connections (including activities, support, and relationships) between
key individual decision-makers and members of the NHO and the Native
Hawaiian community and individuals known to have ancestral connections
to the property. In addition, as a threshold matter, it was noted that
some NHOs may not have the capacity to directly manage a project,
though they could nonetheless propose, direct, or authorize such a
project. Thus, the provision in the exemption originally requiring both
direct project management and proposal, direction, or authorization
were combined to allow for a broader range of NHOs to participate in
this exemption. This change was made in the first sentence of section
III.
Many comments addressed the list of covered activities in section
III. The draft exemption was revised to include several Native Hawaiian
terms and to identify more precisely certain activities, as well as
revised to acknowledge the description of
[[Page 88795]]
Indigenous Knowledge. A comment suggesting that undertakings with the
potential to affect ``properties with religious and cultural
significance to NHOs'' was an overly broad category of actions to
include in the proposed exemption, and this comment resulted in the
deletion of that provision given that other activities in the section
were described in greater detail. Commenters suggested that the
provision on new construction be narrowed, and specific buildings and
structures identified (or excluded); that provision was modified to
include hale, h[amacr]lau wa[revaps]a, and boundary structures in
response to specific suggestions. Several NHOs and a State agency
suggested that minor adaptations to the covered activities to respond
to climate change, pollution, and invasive species be expressly
allowed. A provision on this was included. Language on natural habitat
conservation practices, fishing, and aquaculture was also added,
reflecting the agency's stated commitment to advancing the fact that
natural resources are cultural resources.
Commenters had questions and suggestions about activities not to be
covered by the exemption. In response, the ACHP clarified that Federal
agency decisions regarding land access, undertakings known to be
contrary to or limiting of NHO or Native Hawaiian cultural practices,
undertakings outside the State of Hawai[revaps]i, undertakings
conducted during emergency situations, and National Historic Landmarks
were not covered by the exemption.
Commenters wanted clearer language confirming Federal agency
responsibilities for Section 106 compliance. New language in section II
clarifies that the exemption may only be applied after a Federal agency
identifies an NHO for participation in an undertaking, and only after
the Federal agency initiates any necessary consultation. A new section
V confirms that Federal agencies remain responsible for Section 106
compliance and for considering the effects of undertakings on historic
properties other than those directly addressed by covered activities.
It also provides clarity regarding dispute resolution if a Federal
agency learns of an unexpected conflict after it decides to use the
exemption.
Commenters from the Federal Government and NHOs suggested public
notice, periodic reporting, and reviews to assess the effectiveness of
the exemption. To address these comments, the ACHP added a
recommendation for public notice to the State of Hawai[revaps]i or a
newspaper of statewide circulation in section II. In addition, the ACHP
added section X, which includes annual reporting by Federal agencies
that use the exemption and biannual reporting for a subsequent period.
It also requires the ACHP to schedule a meeting with Federal agencies
that used the exemption, representatives of the State Historic
Preservation Office, NHOs, Federal preservation officers, and others.
During the second round of consultation, comments recommended that
the ACHP consider additional consultation with Native Hawaiian
Organizations to address difficulty of attending consultations during
working hours and to raise awareness about the proposed exemption and
encourage questions and discussions about it. The ACHP did not foresee
additional substantive concerns would be raised during additional
consultation sessions that had not been responded to during the course
of consultation.
Public comments also included a range of typographical and
similarly minor suggestions, such as including a reference to Chapter
6(E) of the Hawaii Revised Statutes in section VI. The ACHP largely
incorporated these suggestions. In addition, commenters suggested the
inclusion of definitions from the Secretary of the Interior Standards
for the Treatment of Historic Properties, and section XI now includes
these. Finally, it was suggested that a reference to the provision in
the policy statement promoting consultation with and deference for
descendant communities in the ACHP Policy Statement on Burial Sites,
Human Remains, and Funerary Objects be included; such a reference was
added.
The ACHP declined to include several suggestions. Several NHOs
suggested that the provision on new buildings and structures be
expanded to include various support facilities, such as offices and
housing. The ACHP declined to expand the provision on new buildings and
structures in this manner, because the potential adverse effects of
these buildings and structures could not be readily ascertained, and
similarly declined to include a suggestion by a Federal agency to add
wildland fire management. At least two comments requested there be an
appeals process to the ACHP of agency determinations. The ACHP declined
to include an appeals process into this exemption. The exemption, as a
type of program alternative, removes the requirement for Section 106
review for specified undertakings; therefore, it is not the appropriate
administrative vehicle to provide for a dispute resolution process.
Each Federal agency should consult meaningfully with NHOs in proposing
and developing undertakings that may be subject to this exemption. In
doing so, each agency should utilize, and update as needed, its own NHO
consultation policy and procedures. Should conflicts arise in
determining whether use of the exemption is appropriate, the agency
should work to resolve that conflict in accordance with its
consultation policy and procedures prior to utilizing the exemption.
The ACHP also declined to include reference to blood quantum in the
definition of Native Hawaiian, instead retaining the definition of
Native Hawaiian in the NHPA. And finally, the ACHP declined to include
reference to NAGPRA, as requested by one commentator, to avoid
conflating statutory regimes.
A comment also requested a definite end date for the exemption. The
ACHP declined to include an end date, noting that according to section
VII of the exemption, the ACHP membership may terminate the exemption
at any time. Another commenter suggested that the definition for NHO
should refer specifically to, and allow NHOs listed on, the DOI list.
Because NHOs and others requested that the DOI list not be referenced
or used to qualify organizations for use of this exemption, the ACHP
decided to maintain the definition of NHO as in the NHPA regulations
and to add additional requests for the NHO in section II of the
exemption, on attestation.
IV. Text of Exemption
The full text of the approved exemption is reproduced below:
Exemption for Indigenous-Knowledge Informed Activities by Native
Hawaiian Organizations
Section I. Exemption From Section 106
Except as noted in Section IV, all federal agencies are exempt from
the Section 106 requirements of taking into account the effects of
undertakings identified in Section III.
Section II. Applicability and Initiation of Exemption
a. Applicability.
This exemption applies only to undertakings identified in Section
III that take place in the state of Hawai[revaps]i. This exemption
applies to undertakings where, prior to [date of adoption], the
relevant federal agency has not yet made a final decision about
carrying out, licensing, or assisting the undertaking, as applicable.
b. Prior Decision to Identify an NHO.
The exemption is not intended to guide the federal agency in
actually identifying a Native Hawaiian
[[Page 88796]]
Organization (NHO) for participation in a covered undertaking. It is
anticipated that the federal agency will have already made this
identification, pursuant to its own processes consistent with 36 CFR
800.2, and only after that identification will consider whether to use
this exemption. Such a process may include the federal agency
initiation of consultation with the NHOs known to have an interest in
the property or properties that are the subject of the proposed
undertaking to determine whether the proposed undertaking will be
contrary to or limiting of the Indigenous Knowledge-informed
traditional cultural practice of an NHO. The federal agency shall not
proceed with the use of this exemption if it determines that such a
conflict is likely to occur.
c. Submission of Formal Statement by an NHO.
After the federal agency identifies an NHO that will be proposing
or directing, or substantially leading, designing, or managing the
relevant undertaking, but before a federal agency may use this
exemption, the federal agency must request and receive from the
identified NHO a formal statement detailing how such activities meet
the terms of this exemption. Such a formal statement must include,
subject to Section IX of this exemption:
i. An attestation that the entity meets the definition of an NHO in
the NHPA, including expertise in aspects of historic preservation that
are significant to Native Hawaiians, which the federal agency should
consider in light of the ACHP Policy Statement on Indigenous Knowledge
and Historic Preservation;
ii. A description of the NHO's proposal, direction, leadership,
design, or management vis-[agrave]-vis the covered activities;
iii. A description of the extent to which the covered activities
are informed by the Indigenous Knowledge of the NHO;
iv. A statement identifying the property upon which the covered
activities are proposed to occur as a property of religious and
cultural significance to the NHO and explaining the NHO's ongoing or
prior traditional cultural practices related to the property;
v. An explanation of current or prior connections (including
activities, support, and relationships), if any, between (i) key
individual decision-makers and members of the NHO and (ii) the Native
Hawaiian community and individuals known to have ancestral connections
to the property;
vi. A statement indicating that, to the best of the knowledge of
the NHO and its authorized representative (i) no other NHO has asserted
or would likely assert that the covered activities are or would be
contrary to or limiting of the Indigenous Knowledge-informed
traditional cultural practice of another NHO and (ii) the activities
will not lead to demolition or removal of properties listed or known to
be eligible for listing on the National Register of Historic Places,
unless the demolition or removal decision was previously completed
during a review pursuant to Section 106;
vii. A statement identifying the individual (such as a chair,
executive director, president, or other person) who is authorized to
represent and submit on behalf of the NHO; and
viii. A signature or other attribution by the above-mentioned
authorized representative.
As a federal agency may identify more than one NHO that will
propose or direct, or substantially lead, design, or manage the covered
activities, this statement must be submitted by each such NHO.
d. Federal Agency Review and Documentation.
The federal preservation officer of the federal agency, or another
agency staff member with experience in historic preservation or Native
Hawaiian issues, shall review the formal statement from the NHO and
advise the lead agency official on the agency decision as to whether to
proceed with the use of this exemption. The lead agency official shall
document the agency decision to apply the exemption to an undertaking
and shall maintain the formal statement as part of the administrative
record.
e. Federal Agency Notice.
The federal agency is encouraged to submit notice of its decision
and invite public comment for a thirty-day period, to (1) the State of
Hawaii Office of Planning and Sustainable Development Environmental
Review Program for publication to ``Environmental Notice''; (2) a
newspaper of statewide circulation; or (3) any publication with similar
purpose or scope if the aforementioned publications cease to exist.
Such submission should include the name of the NHO proposing,
directing, or substantially leading, designing, or managing the
undertaking, a reasonable description of the proposed undertaking(s), a
description of the property sufficient for identification purposes, and
a mechanism for contacting the federal agency.
f. Federal Agency Discretion.
Nothing in this exemption shall be interpreted to require a federal
agency to permit, license, fund, or provide other assistance to any
covered activities.
Section III. Covered Activities
This exemption applies to the following categories of undertakings
when they are (1) proposed or directed by an NHO, or substantially led,
designed, or managed by an NHO, (2) informed by Indigenous Knowledge of
that NHO, (3) related to traditional cultural practices of Native
Hawaiians, and (4) preceded by the submission of the statement
described in Section II by the NHO to the relevant federal agency:
a. Conduct of landscaping practices or activities, including but
not limited to arboreal practices, invasive species removal, and other
landscape maintenance, reestablishment, or facilitation.
b. Conduct of agricultural or aquacultural practices or activities,
including but not limited to planting and crop rotation, harvesting,
native species propagation, soil management, and fishing.
c. Conduct of species conservation and habitat conservation and
management activities that are necessary to perpetuate traditional
Native Hawaiian cultural practices.
d. Rehabilitation, preservation, restoration, or reconstruction of
any the following:
i. Water features and systems, including but not limited to
fishponds (loko i[revaps]a) and other traditional aquaculture.
ii. Lo[revaps]i kalo and agricultural terraces.
iii. Historic pathways using natural materials, including gravel
and other rock, sand, mulch, and wood.
iv. Sacred and traditional sites and objects including but not
limited to heiau, burial sites, shrines, ahu, and similar sites and
objects.
v. Traditional Native Hawaiian buildings and structures built and
designed primarily by Native Hawaiians, and using traditional
techniques and primarily natural materials.
e. New construction, using traditional Native Hawaiian techniques
and primarily natural materials, of the following, to the extent such
new construction is for the express purpose of maintaining or
reestablishing traditional cultural or religious practices informed by
Indigenous Knowledge:
i. Hale.
ii. H[amacr]lau wa[revaps]a.
iii. Fencing, walls, natural buffer zones, flood mitigation, and
other boundary techniques to protect religious and traditional sites or
burial sites, within the NHO-defined boundary area of the property of
religious and cultural significance to the NHO.
f. Minor adaptations to the elevation and dimension of buildings,
structures,
[[Page 88797]]
and sites recognized by the NHO as a property of religious and cultural
significance to it; minor relocations of any buildings, structures, and
sites within the NHO-defined boundary area of the property of religious
and cultural significance to the NHO; or minor adaptations to any of
the landscaping or agricultural practices and activities, related to
any of the covered activities enumerated in Section III, subsections a
through e, where such adaptations are necessary to mitigate the impact
of sea level rise, increased precipitation, erosion, wildfire,
pollution, and invasive species, and notwithstanding any requirements
as to location contained in the definitions of rehabilitation,
preservation, restoration, or reconstruction.
g. Installation of interpretive signage related to any of the
covered activities enumerated in Section III, subsections a through f.
h. The lease, provision of an easement, or other limited transfer
of property rights in federal property to a NHO, or the grant of a
nonpossessory interest in real property to a NHO, for use of the
property solely to carry out any of the covered activities enumerated
in Section III, subsections a through g or for education, outreach, and
planning related to the covered activities.
While the preceding categories of action have been identified as
appropriate activities for this exemption, nothing in this section
should be construed as to suggest that practices not herein contained
are not in line with traditional practices informed by Indigenous
Knowledge, but rather that the preceding categories of action are
expressly eligible for this particular exemption.
Section IV. Activities Not Covered and Exceptions
This exemption shall not cover any activities not identified in
Section III, nor activities involving:
a. Demolition, removal, or modifications that adversely affect
character-defining features of properties listed or known to be
eligible for listing on the National Register of Historic Places,
unless the demolition, removal, or modification decision was previously
completed during a review pursuant to Section 106.
b. The construction of new buildings or structures not enumerated
in Section III.e.
c. The treatment or disposition of burial sites, human remains, and
funerary objects in a manner contrary to the ACHP Policy Statement on
Burial Sites, Human Remains, and Funerary Objects, including but not
limited to the provisions in that policy statement requiring
consultation with and deference for descendant communities.
d. Components of an undertaking beyond those listed in Section III,
meaning that a federal agency may follow the terms of this exemption
for a covered activity that is a component of a larger undertaking, but
must follow other applicable Section 106 procedures or agreements for
any other components of such larger undertaking.
e. Federal agency decisions to provide or retract permission to
access agency owned or controlled land, except as outlined in Section
III.h.
f. Undertakings known by a federal agency or the relevant NHO to be
contrary to or limiting of the Indigenous Knowledge-informed
traditional cultural practice of one or more other NHO, or Native
Hawaiian traditional cultural practice more generally, which cannot be
resolved through consultation and dispute resolution processes
referenced in Section V of this exemption.
g. Undertakings conducted during emergency situations and subject
to 36 CFR 800.12.
h. Undertakings that may affect any site, object, building, or
structure individually designated as National Historic Landmarks or
designated as a contributing property to a National Historic Landmark
district.
Section V. Federal Agency Responsibilities
The federal agency will remain responsible for Section 106
compliance with regard to any activities not covered by this exemption,
including appropriate identification, scoping, evaluation, and
consultation activities, among others.
Each federal agency remains responsible for considering the effects
of undertakings on historic properties other than those directly
addressed by the activities covered by this exemption (such as historic
properties adjacent to, on, or intermingled with the property upon
which the covered properties are proposed to occur or archaeological
sites that may lie within undisturbed areas) in accordance with subpart
B of the Section 106 regulations or according to an applicable program
alternative executed pursuant to 36 CFR 800.14.
This exemption is anticipated to be utilized in good faith by
agencies and NHOs without knowledge of potential conflicts with or
potential adverse effects on other historic properties (including
traditional cultural properties) listed on or eligible for the National
Register, the Indigenous-Knowledge informed traditional cultural
practice of one or more NHOs, or Native Hawaiian traditional cultural
practice more generally, and as noted in Sections IV(a) and IV(f) of
this exemption, any such knowledge would bar the use of this exemption.
If a federal agency learns of an unexpected conflict or dispute
after it decides to use this exemption, the federal agency will make a
reasonable and good faith effort to resolve the conflict or dispute in
accordance with its consultation policies and procedures (including its
NHO consultation policies and procedures) or in accordance with
procedures specifically adopted in relation to this exemption. Federal
agencies are encouraged to develop and utilize procedures that are
respectful of NHOs' rights to maintain, control, protect and develop
their traditional cultural heritage, Indigenous Knowledge, intellectual
property, traditional cultural expressions, sciences, and technologies,
and that reflect the principles contained in the 2013 ACHP guidance,
``Section 106 and the U.N. Declaration on the Rights of Indigenous
Peoples: General Information and Guidance.''
Section VI. Existing Agreements, Property Rights, 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, provided, however, that federal agencies are strongly
encouraged to use the applicable amendment provisions of Section 106
Memoranda of Agreement, Programmatic Agreements, or agreements executed
with NHOs in accordance with 36 CFR 800(c)(2)(ii)(E) executed prior to
[date of adoption] for undertakings that would otherwise be covered by
this exemption, to consider making such agreements consistent with this
exemption. This exemption does not modify or supersede existing
property rights, including access rights. This exemption does not
modify, preempt, or replace any other federal laws, or any applicable
state or local laws or regulations, including but not limited to Hawaii
Revised Statutes, Title 1, Chapter 6E, Historic Preservation.
Section VII. 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.
Section VIII. Amendments
This exemption may be amended by the ACHP membership. Such
[[Page 88798]]
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.
Section IX. Confidential Information
Nothing in the terms of this exemption shall be construed to
require the disclosure of confidential information or sensitive
information, or the publication of Indigenous Knowledge. Federal
agencies shall follow the guidance contained in the ACHP 2016
Frequently Asked Questions on Protecting Sensitive Information about
Historic Properties Under Section 304 of the National Historic
Preservation Act, as applicable, and shall comply with applicable laws
regarding the protection and dissemination of records.
Section X. Reports and Evaluations
For five years after the date of the adoption of this exemption,
the federal agencies that use this exemption will provide a report to
the ACHP for the previous reporting year, ending September 30 annually,
then every two years for six additional years. Each agency's report
will provide a brief summary of the locations and nature of covered
activities, any significant issues that arose while implementing the
exemption, the manner in which such issues were addressed, and
suggestions to avoid such issues in the future. Federal agencies are
invited to include an assessment of the overall effectiveness of the
exemption in meeting its intent in this report. Reports are due on or
before December 31 of each year, starting December 31, 2025 annually
through December 31, 2029, and then biannually on or before December
31, 2031 through December 31, 2035.
Within ninety days of each report due date, the ACHP will schedule
a meeting with the federal agencies that used the exemption during the
relevant reporting year or biennium, as applicable, and invite
representatives of the State of Hawaii Historic Preservation Division,
NHOs, federal preservation officers, and others it deems appropriate,
to discuss implementation of the exemption. The meetings shall provide
an opportunity for attendees to provide their views on the overall
effectiveness of the exemption in meeting its intent and may inform
decisions such as those regarding amendments to the exemption. The
meetings may take place in-person, by phone, virtually using electronic
meeting platforms, or any combination of such means.
Section XI. Definitions and Descriptions
For purposes of this Exemption, the following definitions apply:
a. Agency: As provided by 5 U.S.C. 551, including state, local, or
tribal government officials who have been delegated legal
responsibility for compliance with Section 106 in accordance with
federal law.
b. Effect: As provided in 36 CFR 800.5(a)(1) and 800.16(i), means a
direct, indirect, reasonably foreseeable, or cumulative alteration to
the characteristics of a historic property qualifying it for inclusion
in or eligibility for the National Register of Historic Places.
c. Historic property: As provided in 36 CFR 800.16(l), any
prehistoric or historic district, site, building, structure, or object
included in, or eligible for inclusion in, the National Register of
Historic Places maintained by the Secretary of the Interior. It
includes artifacts, records, and remains that are related to and
located within such properties, and it includes properties of religious
and cultural significance to an Indian Tribe or NHO that meet the
National Register of Historic Places criteria.
d. Native Hawaiian: As provided in 36 CFR 800(16)(s)(2), any
individual who is a descendant of the aboriginal people who, prior to
1778, occupied and exercised sovereignty in the area that now
constitutes the state of Hawaii.
e. Native Hawaiian Organization (NHO): As provided in 36 CFR
800(16)(s)(1), any organization which serves and represents the
interests of Native Hawaiians; has as a primary and stated purpose the
provision of services to Native Hawaiians; and has demonstrated
expertise in aspects of historic preservation that are significant to
Native Hawaiians.
f. Undertaking: As provided in 36 CFR 800(16)(y), 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; and those requiring a Federal permit, license or
approval.
This exemption uses the definitions for the following words found
in 36 CFR 68.2, and for convenience these definitions are provided
here:
g. Preservation: The act or process of applying measures necessary
to sustain the existing form, integrity and materials of an historic
property. Work, including preliminary measures to protect and stabilize
the property, generally focuses upon the ongoing maintenance and repair
of historic materials and features rather than extensive replacement
and new construction.
h. Rehabilitation: The act or process of making possible an
efficient compatible use for a property through repair, alterations and
additions while preserving those portions or features that convey its
historical, cultural or architectural values.
i. Restoration: The act or process of accurately depicting the
form, features and character of a property as it appeared at a
particular period of time by means of the removal of features from
other periods in its history and reconstruction of missing features
from the restoration period. The limited and sensitive upgrading of
mechanical, electrical and plumbing systems and other code-required
work to make properties functional is appropriate within a restoration
project.
j. Reconstruction: The act or process of depicting, by means of new
construction, the form, features and detailing of a non-surviving site,
landscape, building, structure or object for the purpose of replicating
its appearance at a specific period of time and in its historic
location.
Native Hawaiian terms in this exemption, including ahu, hale,
h[amacr]lau wa[revaps]a, heiau, loko i[revaps]a, and lo[revaps]i kalo,
shall be interpreted in a manner consistent with accepted understanding
of these terms by Native Hawaiians, as informed by any NHO using this
exemption.
A description of Indigenous Knowledge to be used in guiding
application of this exemption is set forth in the ACHP Policy Statement
on Indigenous Knowledge and Historic Preservation.
(END OF DOCUMENT)
(Authority: 36 CFR 800.14(c))
Dated: November 4, 2024.
Javier Marqu[eacute]s,
General Counsel.
[FR Doc. 2024-25984 Filed 11-7-24; 8:45 am]
BILLING CODE 4310-K6-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.