Notice2025-05438
Program Comment on Certain Housing, Building, and Transportation Undertakings
Primary source
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Published
April 2, 2025
Effective
December 20, 2024
Issuing agencies
Advisory Council on Historic Preservation
Abstract
The Advisory Council on Historic Preservation (ACHP) has approved a program comment that provides all federal agencies with an alternative way to review effects to historic properties for certain housing-related, building-related, and transportation infrastructure- related undertakings.
Full Text
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[Federal Register Volume 90, Number 62 (Wednesday, April 2, 2025)]
[Notices]
[Pages 14526-14548]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-05438]
[[Page 14525]]
Vol. 90
Wednesday,
No. 62
April 2, 2025
Part II
Advisory Council on Historic Preservation
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Program Comment on Certain Housing, Building, and Transportation
Undertakings; Notice
Federal Register / Vol. 90, No. 62 / Wednesday, April 2, 2025 /
Notices
[[Page 14526]]
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ADVISORY COUNCIL ON HISTORIC PRESERVATION
Program Comment on Certain Housing, Building, and Transportation
Undertakings
AGENCY: Advisory Council on Historic Preservation.
ACTION: Notice of approval.
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SUMMARY: The Advisory Council on Historic Preservation (ACHP) has
approved a program comment that provides all federal agencies with an
alternative way to review effects to historic properties for certain
housing-related, building-related, and transportation infrastructure-
related undertakings.
DATES: The Program Comment went into effect on December 20, 2024.
FOR FURTHER INFORMATION CONTACT: Jaime Loichinger, (202) 517-0219,
<a href="/cdn-cgi/l/email-protection#355f595a5c565d5c5b5250477554565d451b525a43"><span class="__cf_email__" data-cfemail="4d272122242e2524232a283f0d2c2e253d632a223b">[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. The ACHP has issued the regulations that set forth the
process through which federal agencies comply with these duties. Those
regulations are codified under 36 CFR part 800 (Section 106
regulations).
Under Section 800.14(e) of those regulations, agencies can request
the ACHP to provide a ``program comment'' on a particular category of
undertakings in lieu of conducting individual reviews of each
individual undertaking under such category, as set forth in 36 CFR
800.4 through 800.7. An agency can meet its Section 106
responsibilities with regard to the effects of those undertakings by
taking into account an applicable program comment and following the
steps set forth in that comment. The ACHP may also provide a program
comment on its own initiative.
The ACHP developed the ``Program Comment on Certain Housing,
Building, and Transportation Undertakings'' (Program Comment) on its
own initiative to promote actions that advance historic preservation
goals, including the reuse of historic materials and buildings and the
upgrading of infrastructure in historic neighborhoods. On December 20,
2024, the ACHP approved the Program Comment, the text of which is
reproduced at the end of this notice.
I. Background
The ACHP developed the Program Comment to harmonize policies and
procedures for the preservation of the nation's historic places with
other efforts designed to produce and rehabilitate affordable,
accessible, energy-efficient, and hazard-free housing; to reduce energy
use and associated costs, improve resilience against natural hazards;
and improve access to transportation. These needs have received
attention from Congress, as well as state, local, and Tribal
governments and private parties.
II. Program Comment Summary
The Program Comment is national in scope and can be used by any
federal agency that elects to utilize it, after notifying the ACHP and
others of its intent to do so. The Program Comment does not supersede,
replace, or change the terms of existing Section 106 memoranda of
agreement or programmatic agreements, or other program comments.
Additionally, the Program Comment cannot be used in a variety of
circumstances, including in situations in which the federal agency
knows or has reason to believe there may be any likelihood of
encountering historic properties in which an Indian Tribe or Native
Hawaiian Organization may have an interest, and undertakings that would
occur on or have the potential to affect a number of National Park
Service units and sites of religious and cultural significance to
Indian Tribes and Native Hawaiian Organizations. In addition, the
Program Comment can only be used on Tribal lands if the Indian Tribe
provides explicit written consent for its application.
Appendices A and B provide a detailed list of undertakings covered
by the Program Comment.
Appendix A provides a list of undertakings not requiring further
review, including the following:
<bullet> Maintenance or repair of certain site work-related
elements, building elements and systems, building equipment, building
interior features, and transportation fixtures and equipment;
<bullet> Certain landscaping activities;
<bullet> Installation of certain temporary structures;
<bullet> Certain boring, drilling, and testing activities;
<bullet> Abatement of hazardous materials on the exterior or
interior of a building, where such abatement does not cause ground
disturbance and/or is not visible from the building exterior and/or
interior; and
<bullet> In-kind replacement or installation of certain above-
ground elements.
Appendix B provides a list of undertakings that can proceed without
further Section 106 review after the satisfaction of certain
conditions, exclusions, or requirements, including federal agencies
making one (or more) of seven distinct determinations that require
consideration of the impact of a proposed undertaking on historic
properties. These undertakings include the following:
<bullet> Replacement, installation, or removal of certain site
work-related items, building elements and systems, building equipment,
building interior features, and transportation fixtures and equipment;
<bullet> Planting trees under certain conditions;
<bullet> Certain boring, drilling, and testing activities; and
<bullet> Abatement of hazardous materials on the exterior or
interior of a building, where such abatement may cause ground
disturbance and/or is visible from the building exterior and/or
interior.
The Program Comment requires consultation with Indian Tribes and
Native Hawaiian Organizations, recommends financial assistance to
certain consulting parties conducting activities beyond the scope of
their obligations under Section 106, establishes a process for
unanticipated discoveries, promotes the inclusion of Indigenous
Knowledge, and includes a provision on confidentiality. As noted above,
the Program Comment also explicitly excludes any undertakings that have
the potential to affect sites of religious and cultural significance to
Indian Tribes or Native Hawaiian Organizations and any situations in
which the federal agency knows or believes that there is likelihood of
encountering such historic properties, and requires such undertakings
be subject to other existing Section 106 agreements or the full Section
106 review process. The Program Comment offers a dispute resolution
procedure that requires the involvement and notification of specific
consulting parties.
The Program Comment provides specific requirements for annual
federal agency reports, annual ACHP reports, annual ACHP-led meetings,
and ACHP training. The Program Comment will last for an initial period
of 10 years, with the ACHP chairman having the ability to extend its
duration one time by an additional 5 years, and thereafter
[[Page 14527]]
will either terminate due to the passage of time or be extended or
amended by the ACHP membership. In addition, the ACHP membership may
withdraw the Program Comment at any time.
III. ACHP Consultation Summary
In May 2024, the ACHP Regulations and Governance Committee met to
discuss the concept of initiating program comments to fulfill the goals
of its 2023 Policy Statements. Also in May, the ACHP released a 60-day
open call for public comment and invited Indian Tribes and Native
Hawaiian Organizations to provide feedback on potential topics for a
program comment or comments. A detailed list of proposed activities
that might be appropriate was provided to illustrate the range of
potential topics and to guide feedback. In June 2024, the ACHP hosted
four public listening sessions, with approximately 100 attendees at
each session. Two additional sessions were available specifically for
Indian Tribes and Native Hawaiian Organizations, which had no
attendees. In addition to the listening sessions, the ACHP received
written comments from State Historic Preservation Officers (SHPOs),
transportation advocates, representatives of city governments, and
economic development professionals that covered a range of concerns and
topics, including specific undertakings that should and should not be
included in the program comments.
In July 2024, the ACHP Regulations and Governance Committee met
again to discuss the development of proposed program comments. On July
18, 2024, the ACHP discussed feedback and solicited additional ACHP
member input at its triannual business meeting. Through those meetings
and other internal staff and member discussions, several proposed
activities to be covered by the program comments listed in the public
prompt for the May-July feedback period were removed from
consideration, including highway removal, transmission, large-scale
solar, and offshore wind activities. Other potential topics were
refined. On August 1, 2024, the ACHP chair called a meeting of the ACHP
members to discuss this feedback and next steps. The ACHP members and
staff coalesced around the notion that issuing four separate program
comments for feedback from consulting parties and the public would be
repetitive and burdensome to consulting parties and potentially
introduce inconsistencies in the review strategy for similar
undertakings. Instead, the ACHP members and staff urged the ACHP to
propose a single, unified program comment.
On August 8, 2024, the ACHP released the first draft of the Program
Comment, combining the proposed covered activities within one Program
Comment and providing a 60-day period for public feedback and
consultation with Indian Tribes, Native Hawaiian Organizations, and
other consulting parties. Prior to the release of the first draft, the
ACHP developed, and later implemented, a plan to consult with Indian
Tribes and Native Hawaiian Organizations in accordance with 36 CFR
800.14(e)(4) and 800.14(f) and various applicable executive orders. The
ACHP also arranged for public participation by scheduling two public
meetings, inviting written feedback, and arranging for the ACHP chair
to present at a number of additional meetings as well as consultation
with SHPOs and Tribal Historic Preservation Officers (THPOs) by
scheduling two consultation meetings and inviting written feedback.
In September 2024, the ACHP hosted six consultation meetings/
listening sessions (two with Indian Tribes and Native Hawaiian
Organizations, one with SHPOs, one with Federal Preservation Officers,
and two for other consulting parties and the general public), with 341
total attendees across the six sessions. The ACHP chair also convened
government-to-government consultation meetings with three Indian Tribes
that requested such consultation. During this first comment period, 148
written comments (including seven from Indian Tribes) were received,
encompassing approximately 1,800 individual comments, with the largest
number of specific comments (approximately 750) related to the six
appendices. The comment period closed on October 9, 2024.
Throughout and after this first comment period, the ACHP members
continued to meet to discuss feedback as it was received and after the
comment period closed. On August 19, 2024, the ACHP chair called a
meeting of the ACHP Ad Hoc ACHP-Initiated Program Alternatives Forum
Committee (the Ad Hoc Committee) to enable members of that committee to
discuss the contents of the first draft and the process for the Program
Comment's development, and to allow the Ad Hoc Committee members to
raise questions and offer ideas on improving the Program Comment.
Additional meetings of the Ad Hoc Committee took place on September 5,
October 17, and October 24, 2024. On September 18, 2024, and November
14, 2024, the ACHP Regulations and Governance Committee convened to
discuss the development of the Program Comment, and the full ACHP
membership received an update on the progress regarding the Program
Comment at the November 19, 2024, ACHP business meeting.
On November 15, 2024, the ACHP shared a revised draft of the
Program Comment and opened a second, 30-day period for public feedback
and consultation with Indian Tribes, Native Hawaiian Organizations,
SHPOs, and other consulting parties. In December, the ACHP hosted four
consultation meetings/listening sessions (one each with Indian Tribes
and Native Hawaiian Organizations, SHPOs, Federal Preservation
Officers, and other consulting parties and the general public), with
171 total attendees across the four sessions. The ACHP chair also
convened a government-to-government consultation meeting with one
Indian Tribe that requested such consultation. During that period, 48
written comments (including four from Indian Tribes) were received,
encompassing nearly 700 individual comments, with the largest number of
specific comments (approximately 250) related to Appendix A and
Appendix B. The comment period closed on December 15, 2024.
On December 17, 2024, the ACHP chair convened an Ad Hoc Committee
meeting to discuss comments and feedback received and to provide an
overview about how the ACHP could revise the second draft of the
Program Comment to respond to such comments and feedback. ACHP members
discussed a variety of issues related to the scope of covered
undertakings, certain process-related provisions, and certain
definitions and requirements.
IV. Comments and ACHP Response
As described above, in addition to earlier opportunities for review
and comment on the concept and proposal for a program comment, the ACHP
provided two review and comment periods on the draft Program Comment,
ending in October 2024 and December 2024. In the October review and
comment period, 148 total written comments were received (seven from
federal agencies, 37 from SHPOs, eight from Tribes, 13 from local/state
governments, 53 from industry/other, and 30 from the public). In the
December review and comment period, 48 total written comments were
received (six from federal agencies, 20 from SHPOs, four from Tribes,
13 from industry/other, and five from the public). The following
summaries are intended to provide a general overview of the comments
that were received on the draft Program Comment. They are
[[Page 14528]]
organized by section, although the comments from Indian Tribes are
included within a separate summary in recognition of the government-to-
government relationship between Indian Tribes and the ACHP.
October 2024 Comment Period for Initial Draft Program Comment
Comments from Indian Tribes: Generally, the Tribal comments opposed
the draft Program Comment and asked for early and meaningful
consultation in the process. Tribal commenters were concerned that the
Program Comment would be likely to result in potentially significant
harm to sites of religious and cultural significance to Indian Tribes
and Native Hawaiian Organizations. Tribal commenters stated this
likelihood was due to the breadth of activities and federal agencies
proposed to be covered in the Program Comment and its potential to
allow federal agencies to predetermine that covered activities are not
likely to affect sites of religious and Tribal significance on their
own. Tribal commenters stated that the Program Comment as written would
allow a federal agency to decide to use the Program Comment instead of
using previously negotiated agreements that are specific to various
situations, programs, and undertakings. Additionally, Tribal commenters
expressed concern about the inclusion of ground disturbance in
activities described in the appendices and asked that ground disturbing
activities be removed from the appendices. Generally, Tribal commenters
identified the importance of removing references to ``previously
disturbed ground'' and ``previously disturbed rights of way,'' as they
disagreed with a general assumption that previously disturbed areas
have a reduced likelihood of possessing or intersecting with sites of
religious and cultural significance to Indian Tribes or sacred sites.
Comments on Approach: Commenters generally supported the intent of
the Program Comment. Several commenters supported the efforts to
streamline the Section 106 process; however, many commenters questioned
whether a program comment was the appropriate tool for streamlining,
given the breadth and scope of covered undertakings. Commenters noted
that the most effective program alternatives are focused on specific
resource types, repetitive project or program types, and specific
responsible agencies and professionals. Some commenters asked for
additional data to support the need for the proposed Program Comment,
asserting that the data would help demonstrate the need to address
ongoing compliance and timing issues related to Section 106 reviews for
the covered undertakings. Some commenters emphasized that the Program
Comment, as currently drafted, was difficult to understand and would
potentially result in delays and confusion due to the large number of
undertakings to be included and the level of detail and requirements to
be met. Numerous commenters requested additional consultation on the
concept of a program comment, as well as a dialogue on the issues that
were being encountered in Section 106 that the Program Comment was
meant to address.
Role of SHPO: Commenters questioned the role of SHPOs in the
proposed Program Comment and raised concern about removing or
diminishing the involvement of SHPOs in the review process.
Training: Commenters requested that the ACHP consider whether
broader Section 106 training would achieve the Program Comment's same
goals. Commenters also noted that if adopted, the Program Comment would
require the development of extensive guidance and training.
Format: Many commenters noted the length of the draft Program
Comment and the complexity of the overall document, including
definitions and cross references, as a potential concern for its
implementation, should it be adopted.
Comments on Section I (Introduction): Overall comments on this
section requested renaming the Program Comment to reflect the
undertakings it would cover, rather than policy goals.
Background: Several commenters suggested reframing the background
to emphasize the ACHP's mission of promoting the preservation and
sustainable use of historic properties, and how the Program Comment
would promote preservation as an outcome. Other commenters requested
the removal of transportation-sector undertakings due to coverage
within existing Section 106 programmatic agreements and the different
types of effects those undertakings create compared to housing and
building undertakings.
Prior ACHP Action: Commenters requested additional data to support
the rationale for the proposed Program Comment and the successes of
past program alternatives.
Goals: Commenters supported the Program Comment's broad goals for
streamlining and efficiency and the need for finding a way of making it
easier to create needed housing. Other commenters emphasized that those
goals should be balanced with historic preservation values.
Comments on Section II (Scope): Most commenters on this section
asked how the proposed Program Comment would address the issue of
delegation to applicants or permittees.
Overall Effect: Commenters noted the potential conflation with this
section's use of ``effect'' and the Section 106 regulations' definition
of ``effect.'' Other commenters noted that because of the Program
Comment's proposed breadth and scope, it would be difficult to track
its use and ensure that effects to historic properties would be
avoided. Several commenters observed that the Program Comment appeared
to acknowledge that minimal adverse effects may occur, with no further
discussion of mitigation or resolution of adverse effects. Some
commenters noted that the Program Comment assumed adequate or
appropriate identification efforts would have already been completed,
which may not always be the case. The potential for effects to
archaeological sites and Traditional Cultural Properties (TCPs) were
also noted in comments. Some commenters questioned the provision
allowing for use of the proposed Program Comment for components of
larger undertakings and noted potential concerns with the segmentation
of undertakings.
Effect on Other Applicable Laws: Commenters on this section
questioned whether the proposed Program Comment would conflict with
local processes in addition to state laws that often require SHPO
review, and whether it would achieve meaningful efficiencies without
other streamlining efforts, for example, under the National
Environmental Policy Act. Several commenters also noted the potential
conflicts with the requirements of the federal rehabilitation tax
credit standards.
Effect on Existing Agreements: Commenters noted that the proposed
Program Comment should not supersede existing Section 106 agreements
without consultation by the federal agency and the agreement of the
signatories, at a minimum. Commenters also raised questions regarding
disputes, asking whether the Program Comment's dispute resolution
stipulation could be used if a signatory objected to the use of the
Program Comment. Commenters also raised concerns about opportunities
for Tribal involvement in amending existing agreements or resolving
disputes.
Effect on Tribal Lands: Commenters questioned whether program
comments could ever apply on Tribal lands. One commenter noted the need
to clarify
[[Page 14529]]
where any Tribal authorizations would be posted.
Standard Section 106 Review: Commenters noted that a perceived
piecemeal application of the Program Comment to components of an
undertaking could result in segmentation or an incomplete consideration
of an undertaking's effects on historic properties. Other commenters
noted that without consultation a federal agency would not know if a
property of religious and cultural significance could be affected by a
covered undertaking, thereby raising questions as to whether the
Program Comment could be utilized.
Comments on Section III (Alternative Compliance Approaches):
Commenters raised concerns with the proposed elimination of
consultation with the SHPO, Indian Tribes, THPOs, consulting parties,
and the public. Others questioned the meaning of ``minimal potential to
affect historic properties.'' Commenters also questioned how federal
agencies would determine which appendix would be followed. Some
commenters also asked how federal agencies would document their
compliance with the Program Comment's various conditions, and how that
documentation could or would be shared.
Consultation with Indian Tribes and Native Hawaiian Organizations:
Commenters asked for further clarity on consultation with Indian Tribes
and Native Hawaiian Organizations, as they perceived it to be limited
to consultation on the use of the Program Comment, rather than
consulting on effects to properties of religious and cultural
significance to Indian Tribes and Native Hawaiian Organizations.
Use of Qualified Authorities: Many commenters asked whether the
definition of ``qualified authorities'' was needed, given its
similarity to ``qualified professional.'' Commenters also noted that
the inclusion of qualified professionals should be a requirement to use
the Program Comment. Other commenters questioned who would be
considered a qualified authority, who was making decisions regarding
who met that threshold, how ``appropriate to the circumstances'' would
be determined, and what constituted ``reasonable judgment.''
Determinations of Eligibility: Commenters asked how federal
agencies would be able to reasonably determine that there is minimal
potential to affect a property without understanding whether a property
was eligible for the National Register of Historic Places. Commenters
also questioned the identification of unknown historic properties and
whether the reliance on existing data would be sufficient for
identifying significant properties. Commenters observed that
determinations of eligibility were not required, but activities in the
appendices were limited to primary facades and primary rights-of-way.
Commenters requested clarification on who would be making those
determinations.
Comments on Section IV (Assistance to Consulting Parties):
Commenters questioned the relevancy of this section within the Program
Comment given that the compliance approaches established by this
Program Comment would largely eliminate consultation. Further,
commenters questioned the applicability of stipulations related to
mitigation within a compliance approach designed to avoid adverse
effects.
Comments on Section V (Unanticipated Discoveries): Commenters
stated that the alternative compliance approaches established by this
Program Comment would increase the likelihood of unanticipated
discoveries due to the lack of adequate consultation, lack of adequate
identification, and overreliance on assumptions regarding previously
disturbed soils.
Discovery of Human Remains, Funerary Objects, Sacred Objects, or
Items of Cultural Patrimony: Commenters recommended the Program Comment
reference 36 CFR 800.13 and include a stronger reference to state and
local laws. Further, commenters questioned the adequacy of the proposed
50-foot perimeter/buffer zone for discoveries.
Comments on Section VI (Dispute Resolution): Commenters focused on
the challenge of filing a dispute regarding the implementation of the
Program Comment without notification to consulting parties of the
federal agency's decision to utilize the Program Comment or a
comprehensive report of the agency's use of the Program Comment.
Further, commenters noted that a federal agency should be required to
forward unresolved disputes to the ACHP for its advisory opinion.
Comments on Section VII (Duration): Commenters considered the
duration too long and made recommendations primarily ranging from five
to 10 years as an appropriate duration.
Comments on Section VIII (Amendments): Commenters recommended
requiring consultation for amendments and defining the term ``other
parties'' used in this section.
Comments on Section IX (Withdrawal): Commenters noted the need for
SHPOs and Indian Tribes to be made aware of the Program Comment's
withdrawal. Commenters stated that publication in the Federal Register
alone would likely not be sufficient for formal notification to all
consulting parties.
Comments on Section X (Reports and Meetings): Commenters requested
metrics and data rather than examples so that the ACHP could
meaningfully analyze the Program Comment's usage. Other commenters
shared concerns with the lack of reporting after five years, raising
questions of transparency and accountability. Commenters stated that
reports should be shared with SHPOs and THPOs in addition to the ACHP
and that report due dates should track the federal fiscal cycle, with a
due date after the fiscal year closes. Commenters mentioned that the
public should be afforded a meeting. Commenters stated that the ACHP
members and preservation organizations should also be invited to
participate in the annual meetings, which should occur for the duration
of the Program Comment.
Comments on Section XI (Definitions): Comments in this section fit
into one of three categories: standardization, where commenters state
that the Program Comment has a conflicting definition with other
guidance or regulations; definition content, to include additional
detail or provide suggested revisions; or additional terms, for
definitions that should be added. Some commenters disagreed with how
terms such as ``qualified authority'' or ``previously disturbed soil''
were defined.
General Comments on the Appendices: General comments throughout the
appendices noted concern regarding the use of the phrase ``minimal
adverse effect'' and the lack of any mitigation discussion. Comments
were also submitted regarding the potential for effects to ``character-
defining features'' within buildings. Several commenters raised
questions regarding the clarity and/or the organization of excluded
activities, because they found it unclear which conditions must be met.
Commenters questioned how an agency would differentiate between
different categories of undertakings to determine which appendix
applied. Some commenters noted the need for consultation with SHPOs and
THPOs to be able to make determinations about whether an activity
should be excluded, and potential conflicts with other existing program
alternatives and Section 106 agreements. Most other comments related to
a property's eligibility for listing on the National Register of
Historic Places, with
[[Page 14530]]
commenters raising questions regarding the 45-year age of a building as
the cutoff date and whether these modifications may render the property
ineligible for federal rehabilitation tax credits in the future.
Commenters also noted the extent of ground disturbance as a general
concept in the appendices, with questions regarding the need for an
archaeologist and the use of previously disturbed soil as a threshold.
Comments on Appendix A: Commenters requested that the activities to
be listed in this appendix pose no potential to cause effects to
historic properties even if historic properties are present and that
they would require minimal value judgments to determine applicability.
Commenters pointed to the challenge of conducting the balancing tests
that would be required to apply the provisions of this appendix,
especially without input from consulting parties. Other commenters
supported the allowance for certain activities without triggering
Section 106. Commenters requested clarification on the phrase ``minimal
adverse effects,'' raising concerns that without clear parameters and
consultation the term could be misapplied or abused and may result in
disputes over the Program Comment's applicability. Commenters requested
clarification on the meaning of ``adjacent to'' for when an activity
would be ``conducted in areas adjacent to or on the same lot as
housing.'' Concerns were raised over identifying and impacting
charactering-defining features, and potential effects to historic
districts, landscapes, and archaeological resources.
Comments on Appendix B: Commenters questioned the applicability of
the listed activities to the stated goals. Other commenters highlighted
the overlap between Appendix A and Appendix B by noting that their
comments apply to both appendices. Some commenters expressed concern
with treating all buildings the same, rather than as separate
categories. Commenters raised concerns about the potential subjectivity
of federal agencies, pointing to the perceived lack of clarity about
who qualifies as a qualified authority/professional and the absence of
SHPO/THPO and local involvement in eligibility determinations.
Commenters also highlighted a need for comprehensive understanding of
environmental impacts of buildings and prioritization of materials with
low or no embodied carbon. Commenters also raised concerns about
potential effects to archaeological resources, and impacts to historic
districts and landscapes.
Comments on Appendix C: Multiple comments on this appendix
requested that it be removed from the Program Comment. Commenters
raised concerns with the potential overbroad scope of the Program
Comment, believing that the nature of the activities covered in this
appendix was controversial, that the risk of inadvertent discoveries
and adverse effects to archaeological resources was increased, that
clarity was needed about who would qualify as a qualified authority/
professional, and that the listed activities were already covered by
other tailored Section 106 programmatic agreements and memoranda of
agreement. Commenters were also concerned about potential effects to
historic districts and landscapes, as well as to individual historic
properties such as bridges, roads, sidewalks, and curbs. Commenters in
support of the inclusion of this appendix pointed to the provisions for
public transportation (rail and bus transport) and requested that those
provisions be further expanded.
December 2024 Comment Period for Revised Draft Program Comment
Comments from Tribes: In addition to verbal comments received
during the December 10, 2024, consultation meeting/listening session
with Tribes, THPOs, and Native Hawaiian Organizations, the ACHP
received three letters from Tribes about the revised Program Comment.
The ACHP also received detailed verbal comments from one Tribe on
December 16, 2024. The ACHP did not receive comments from Native
Hawaiian Organizations. Several Tribal commenters appreciated the
ACHP's effort to address their concerns in the revised Program Comment.
Other Tribal commenters stated that remaining ambiguities in the
revised draft meant that the Program Comment might not be effective and
might not fully protect Tribal cultural resources and the remains of
Tribal Ancestors. Tribal commenters expressed opposition to the Program
Comment as written and requested that the ACHP either significantly
revise the draft Program Comment or abandon it altogether. Tribal
commenters communicated that the Program Comment was likely to result
in potentially significant harm to sites of religious and cultural
significance to Tribes. Tribal commenters also asserted that program
comments in general infringe on Tribal sovereignty and undermine the
federal government's Trust responsibility to the Tribes. One Tribal
commenter advised the ACHP that streamlining is best achieved by
encouraging federal agencies to learn the Section 106 process and
establish long-term relationships with Tribes and other stakeholders.
Tribal commenters expressed concerns with the ACHP's development of
the Program Comment, flagging the need for the ACHP to meaningfully and
systematically consult early in and throughout the process to ensure
Tribal input is appropriately considered. Several Tribal commenters
emphasized that the abbreviated comment period on the revised draft of
the Program Comment did not give adequate time to review and provide
in-depth, meaningful comments.
Generally, Tribal commenters expressed concerns about the existence
of a predetermined stop-work buffer for unanticipated discoveries and
continued to dispute the provisions regarding ground disturbing
activities. One Tribal commenter emphasized the importance of
prioritizing the Native American Graves Protection and Repatriation Act
(NAGPRA) in any discussion regarding the treatment of Native American
human remains and cultural items. This Tribal commenter requested that
the Program Comment include language deferring to existing agreements
between federal agencies and Indian Tribes that have created more
appropriate buffers for work stoppages and avoidance areas during
discoveries. While several Tribal commenters appreciated the improved
definitions and clarification, they continued to reject the lack of
further Section 106 consideration for ground disturbing activities.
These Tribal commenters asked that ground disturbing activities be
removed from the appendices citing concerns about potential harm.
Several of the Tribal commenters indicated that previous disturbance
does not necessarily result in a property losing its cultural or
historical significance, and adequate consultation must occur to engage
in a good faith effort to avoid effects to these sites, artifacts, and
human remains, regardless of previous disturbance. The Tribal
commenters voiced concern that such consultation may not occur if the
Program Comment is implemented.
Tribal commenters stated that while the Program Comment requires
further Tribal consultation, there are components of the consultation
process that are still unclear. They stated that the Program Comment
attempts to kick out to the standard Section 106 process any
undertakings that would affect sites of religious and cultural
significance to Tribes; however, it remained unclear to the Tribal
commenters how federal agencies would know if a site was of religious
and cultural significance to a
[[Page 14531]]
Tribe without Tribal consultation. One Tribal commenter requested more
specific Tribal consultation procedures and that a greater reliance on
THPOs be included in the Program Comment, both to assist agencies in
evaluating Tribal interests in a particular undertaking and in making
required written determinations that a proposed undertaking could
result in an effect on a historic property with religious and cultural
significance to a Tribe.
Comments on Approach: Commenters generally recognized and
appreciated the ACHP's efforts to address concerns raised during the
first written comment period. Commenters supported changes in the
revised draft that helped resolve concerns with how the Program Comment
would affect existing Section 106 agreements and program alternatives,
the need for greater SHPO/THPO involvement, the role of qualified
professionals, and the identification and evaluation of historic
properties. Several commenters expressed concern with the consultation
process undertaken to develop the Program Comment. These commenters
underscored that the second comment period was shorter than the first
comment period, with a more limited number of consultation meetings.
Commenters emphasized the need for continued consultation with SHPOs/
THPOs, Indian Tribes, and other stakeholders. Some commenters asked
again for additional data to support the need for the Program Comment
based on Section 106 implementation challenges, encouraging the ACHP to
focus its efforts on gathering data necessary to pinpoint precisely why
Section 106 review may not be occurring in an expeditious manner for
certain project types. Several commenters noted that many of the
purported issues with efficiency could be resolved through proper
funding and staffing for SHPOs/THPOs, as well as increased training and
education for federal agencies, delegated authorities, and pass-through
entities. Commenters pointed to concerns that the lack of consultation
with SHPOs/THPOs and the public could slow down the Section 106 process
and lead to more negative outcomes and delays.
Use of a Program Comment: While commenters generally supported
efforts to tailor the Section 106 process, many expressed continued
concern with whether a program comment was the appropriate tool, given
the breadth and scope of the covered undertakings. These commenters
continued to note a preference for programmatic agreements (including
nationwide and prototype), which could be more closely tailored to
specific states and localities. Commenters continued to cite the ACHP's
guidance on program alternatives, noting that most effective program
alternatives are customized to specific resource types, repetitive
project or program types, and specific federal agencies.
Clarity: Commenters noted that the revisions clearly sought to
resolve concerns with the general organization, clarity, and complexity
of the prior draft. Commenters appreciated that the appendices had been
further refined and consolidated and that the revised draft clarified
the Program Comment's application. Some commenters continued to raise
concerns that the Program Comment, as revised, was still difficult to
understand and would potentially result in delays and confusion due to
the large number of undertakings to be included and the level of detail
and requirements to be met.
Legality of a Program Comment: Commenters stated that the Program
Comment would be a departure from previously issued program comments
and approved exemptions to the Section 106 process. Commenters stated
that the ACHP should have complied with the procedures and criteria set
forth in the Section 106 regulations for developing an exempted
category. Commenters also asserted that the Program Comment would
exempt activities across multiple federal agencies and such use
appeared to be an effort to avoid the three-step notice-and-comment
process for formulating, amending, and repealing an administrative rule
under the Administrative Procedures Act. Commenters observed that the
Program Comment may create legal questions about whether federal
agencies would be properly complying with Section 106, and for
developers who would be required to ascertain to what extent the
Program Comment may or may not apply to a particular situation.
Role of SHPO: Commenters appreciated the increased involvement of
SHPOs in the process in the second draft, though many commenters
continued to express concern that the Program Comment would establish a
process for unilateral decision making by federal agencies and
effectively remove states' voices. Many commenters recognized the
likelihood that federal agencies, delegated authorities, and pass-
through entities would continue to rely on SHPOs. Other commenters felt
otherwise, raising concerns that federal agencies would choose to not
consult with SHPOs, which would likely result in loss of historic
resources and/or character-defining features and would
disproportionally impact certain communities. Several commenters raised
concerns about loss of cultural resource data because SHPOs may not
receive information from federal agencies on eligible historic
properties identified and evaluated under the Program Comment.
Contents: Many commenters continued to emphasize that activities
covered by the Program Comment seem incongruous. Specifically, the
commenters stated that transportation-related activities were
dissimilar to undertakings related to housing and buildings. Many
commenters called for the removal of the entire section on
transportation-related projects. Several commenters urged the ACHP to
instead consider the development of a focused programmatic solution
tailored to transportation and based on careful analysis of any
identified gaps or problems. Some commenters also continued to
encourage the ACHP to focus on building interiors, rather than building
exteriors and transportation. Commenters underlined the controversial
nature of many of the included activities, particularly the increased
potential for adverse effects to historic building exteriors,
archaeological resources, and properties of traditional religious and
cultural importance to Indian Tribes and Native Hawaiian Organizations.
Timing: Several commenters noted a concern with the change in the
Presidential Administration and questioned whether proceeding with the
Program Comment under the current circumstances may cause confusion
among federal agencies and stakeholders regarding future implementation
of the Program Comment.
Ground Disturbance: Many commenters continued to express strong
concern regarding the treatment of ground disturbance, noting that the
Program Comment could result in unnecessary damage to archaeological
sites and project delays. Commenters requested that ground disturbing
activities be removed entirely from the Program Comment, citing past
experiences where archaeological resources, human remains, funerary
objects, sacred objects, or objects of cultural patrimony were found in
previously disturbed areas.
Comments on Section I (Introduction): Commenters reiterated
questions about the purpose and need of the Program Comment and noted
that additional data illustrating the need for the Program Comment
would be helpful.
Comments on Section II (Scope): Commenters appreciated the
[[Page 14532]]
clarification regarding the Program Comment's effect on existing
agreement documents, but there remained questions about whether the
Program Comment would conflict with local ordinances and the federal
rehabilitation tax credit program.
Comments on Section III (Alternative Compliance Approaches): Many
commenters requested that notification regarding the application of the
Program Comment be provided to SHPOs/THPOs by the federal agency.
Commenters further noted that the notification requirement was vague
and asked if the notification would be project by project or by
program. Commenters noted that the Program Comment would provide for
most of the substantive requirements of 36 CFR part 800 Subpart B
except for consultation and noted the lack of mitigation. Commenters
appreciated the revisions in this section but still had concerns about
the role of SHPOs/THPOs, the lack of dispute provisions if there is a
disagreement regarding findings, and the lack of timelines. Commenters
recommended that resumes be included in annual reports to verify
professional qualifications. Further, commenters recommended the term
``relevant discipline'' instead of the proposed language ``appropriate
to the circumstances.''
Comments on Section IV (Assistance to Consulting Parties): One
commenter asked if the ACHP had the authority to tell agencies to pay
different entities.
Comments on Section V (Unanticipated Discoveries): Commenters asked
that the Program Comment more clearly state the applicability of NAGPRA
and state burial laws. Many commenters objected to predetermined buffer
zones and asked that SHPOs/THPOs be notified of unanticipated
discoveries. A few commenters noted that not all federal agencies have
adopted the ACHP Burial Policy.
Comments on Section VI (Dispute Resolution): The majority of the
comments on this section noted the lack of notification to consulting
parties and the public regarding the use of the Program Comment or a
dispute associated with the use of Program Comment, stating that it
would make it challenging to file or weigh in on a dispute.
Comments on Section VII (Duration): Commenters appreciated the
change to a 10-year duration and some recommended shorter durations or
pilot periods.
Comments on Section VIII (Amendments): Commenters expressed concern
about the proposed ACHP chair's unilateral authority to amend to extend
the Program Comment and supported a full ACHP council member vote for
amendments. Further, commenters encouraged consultation on any
amendments.
Comments on Section IX (Withdrawal): The majority of the commenters
noted that the parameters for withdrawal were too limited.
Comments on Section X (Reports and Meetings): Some commenters noted
that the annual report requirements appear to add a significant burden
while other commenters stated that it appeared the reports may lack
sufficient information to fully understand how federal agencies would
be implementing the terms of the Program Comment. Many commenters
requested that the report template be developed prior to the issuance
of the Program Comment and asked that more clarity about reports from
entities with delegated authority be added. Commenters asked for public
notification about the availability of reports and timing of meetings.
Comments on Section XI (Definitions): Many commenters expressed
concern that some definitions were too broad. Commenters noted that
``repair'' and ``replacement'' should remain distinct. Commenters
highlighted the definitions for ``independent utility'' and
``undertaking'' as still needing additional refinement. They also
expressed a desire for the definitions to more closely align with
industry standards, such as ``secondary spaces'' instead of ``non-
primary fa[ccedil]ade''. Commenters raised concern regarding the
definition and utilization of ``previously disturbed'' to remove
consultation requirements.
Comments on Appendix A: Commenters stated that many of the
activities listed could result in adverse effects to historic
properties, yet the Program Comment lacked specificity about how
federal agencies would ensure that adverse effects were resolved. More
specifically, commenters noted potential visual effects, effects to
historic districts, and effects caused by ground disturbance as
particular concerns. Commenters asked for more conditions, qualifiers,
and limitations to clarify what types of activities would fall within
categories requiring no review. Actions that included installation of
new features, removal of features, and activities requiring ground
disturbance were noted as needing additional conditions and
clarifications. Commenters questioned the manner in which the term
``previously disturbed'' was utilized as a qualifier to indicate that
no further review was needed, and many commenters noted that
``previously disturbed'' does not indicate the absence of historic
properties. Additionally, many commenters noted that the Program
Comment was unclear about who makes the decision about whether a
specific activity meets the conditions and limitations described in
this appendix. Commenters further noted that the transportation
activities did not seem to fit into the Program Comment.
Comments on Appendix B: Overall, commenters found this appendix
difficult to follow. Many commenters stated that creating a parallel
process to Section 106 would not result in streamlined reviews.
Commenters noted that roles and responsibilities were unclear between
SHPO staff and agency qualified professionals in addition to lacking
clear delegation authorities. Many commenters asked how decisions
regarding energy efficiencies and reductions would be made during the
process. Commenters highlighted a variety of industry standards and
policies that this appendix appeared to not align with, including
eligibility criteria for the National Register of Historic Places, the
Secretary of the Interior's Standards for the Treatment of Historic
Properties, the Department of the Interior's and the ACHP's Indigenous
Knowledge policies, and various documentation standards. In particular,
comments focused on the determination of eligibility process within
this appendix. Commenters asked a number of clarifying questions
highlighting how the process lacked consultation requirements with
those who hold special expertise regarding certain historic properties
as well as standard documentation and evaluation requirements.
Commenters also noted that the Program Comment did not consider
cumulative effects, a process for assessing adverse effects, and
mitigation measures. Ground disturbance was a major concern, with
commenters reiterating that previous ground disturbance does not
necessarily imply a lack of historic properties. Further, commenters
noted that transportation activities, due to the scale, nuance, and
existing agreements, should not be included in this Program Comment.
ACHP Response to Comments in Final Version of the Program Comment
Concerns Raised by Indian Tribes: The final version of the Program
Comment responds to a variety of concerns raised by Indian Tribes,
which include concerns about the potential for ground disturbance, the
process for dealing with undertakings that may have adverse effects,
the need for greater specificity about consultation
[[Page 14533]]
requirements and procedures, issues related to inadvertent discoveries,
the need for notification to and involvement from Indian Tribes and
THPOs at various points in the Program Comment, the inclusion of
references to other areas of law, deletion of a proposed ``qualified
authority'' definition, and the duration of the Program Comment, among
others. Specifically, the Program Comment was significantly revised to
do the following:
<bullet> Eliminate from inclusion in the Program Comment any
undertakings for which a federal agency knows or believes there is any
likelihood of encountering historic properties in which an Indian Tribe
or Native Hawaiian Organization may have an interest. (Section II.E.4.)
<bullet> Eliminate from Appendices A and B a number of undertakings
with the potential to cause ground disturbance; add ``above ground''
language to confirm that certain elements may only be included in a
covered undertaking if above ground; and recategorize undertakings to
require heightened review if they have any potential to cause ground
disturbance.
<bullet> Increase the buffer area for inadvertent discoveries of
human remains or certain Native American cultural properties from 50
feet to ``no less than 100 feet, or within a buffer area previously
agreed upon by an Indian Tribe and the federal agency, whichever is
greater''. (Section V.B.)
<bullet> Refine the definition of ``previously disturbed ground''
to require certain considerations by federal agencies before ground may
be considered previously disturbed. (Section XI.)
<bullet> Establish two types of determinations, Type A
Determination and Type B Determination, that lay out clear steps for
assessing the impact of certain ground-related activities. (Appendix B)
<bullet> Establish a process by which the ACHP members may choose
to expeditiously delete a category of undertakings or impose
conditions, exclusions, or requirements (including mitigation measures)
on a category of undertakings that, when completed in accordance with
the Program Comment, has resulted in a pattern of adverse effects.
(Section VIII.C.)
<bullet> Require federal agencies to notify the National
Association of Tribal Historic Preservation Officers (NATHPO) of its
intent to utilize the Program Comment; require additional direct
notification to relevant Indian Tribes and Native Hawaiian
Organizations if less than national geographic scope; and require the
ACHP to post all notices submitted by federal agencies. (Section
III.A.2.)
<bullet> Require federal agencies to notify relevant Indian Tribes
and Native Hawaiian Organizations in the case of a dispute. (Section
VI.)
<bullet> Clarify consultation-related obligations, including
eliminating inconsistent language, adding specifics regarding
identifying Indian Tribes and Native Hawaiian Organizations with
interests in the undertaking, requiring federal agencies to recognize
any request by an Indian Tribe or Native Hawaiian Organization to be a
consulting party, and setting forth consultation protocols. (Section
III.B., Appendix B)
<bullet> Increase the type of activities for which Indian Tribes
may be compensated for participation in this Program Comment. (Section
IV.)
<bullet> Provide specific protocols for notification and
documentation, prohibited activities, and incorporation of Indigenous
Knowledge in the case of an inadvertent discovery. (Section V.A.)
<bullet> Update or include reference to state burial laws, Tribal
ordinances, and NAGPRA. (Section V.B.)
<bullet> Increase federal agency reporting requirements, including
increased frequency and more specific content required; and require
that these reports be made public on the ACHP website. (Section X.A.)
<bullet> Require more frequent meetings and training by the ACHP
(also discussed below). (Section X.)
<bullet> Invite Indian Tribes, Native Hawaiian Organizations, and
THPOs to provide comments about the Program Comment at any time.
(Section X.B.)
<bullet> Delete the definition and concept of ``qualified
authority'' and incorporate Indigenous Knowledge elsewhere in the
document.
<bullet> Reduce the proposed duration of the Program Comment to 10
years. (Sections VII., VIII.)
In addition, the Program Comment now omits reference to all
activities related to bridges.
Legality of a Program Comment and Role of the SHPO: Several
concerns were raised regarding the legality of the use of program
comments in general, this Program Comment in particular, and the
required involvement of SHPOs in program comments. The final draft of
the Program Comment includes strengthened provisions for the
involvement by, notification of, and reliance on SHPOs' opinions on a
number of matters. In addition, SHPOs are invited to provide feedback
at any time on the use of the Program Comment. In the second round of
comments, a letter appended to the National Conference of State
Historic Preservation Officers' (NCSHPO) submission suggested, among
other things, that the process for developing this Program Comment
should have followed the process for an exemption. The ACHP Office of
General Counsel advised that a program comment is an acceptable choice
of program alternative to use for the categories of covered
undertakings, noting that many existing program comments involve
undertakings like the ones covered in the Program Comment (including
undertakings with no potential for adverse effects, undertakings with
some potential for adverse effects, and undertakings requiring the
satisfaction of certain conditions, exclusions, or requirements). The
nature of activities covered by the Program Comment differs from
activities that would be covered by an exemption. The intent in the
Program Comment was to recognize the work already done or conditions
imposed on covered undertakings to avoid or minimize adverse effects.
Additionally, language was added to the Program Comment in Section
VIII.C. to clarify that some listed undertakings may have unintended
adverse effects on historic properties and to provide a process for the
ACHP members to act more expeditiously to remove these activities from
Appendix A or Appendix B, and consider mitigation measures if
appropriate.
Format and Complexity: In response to comments received about the
format and complexity of the first draft of the Program Comment, the
Program Comment was simplified. Rather than six appendices covering
overlapping items that were dependent on resource type and use, the
Program Comment was reduced to two appendices. Additionally, the
``certain conditions, exclusions, or requirements'' previously required
for the first draft's appendices part-2 activities have been simplified
into seven specific processes for determinations (Types A-G) that are
detailed in Appendix B.
Effect on Other Applicable Laws and Existing Agreements: In
response to comments received about the effect of the Program Comment
on other applicable laws and existing agreements, Section II was
updated to clarify the Program Comment's application, including an
explanation that the Program Comment does not change applicable laws or
regulations related to the federal rehabilitation tax credit or local
historic preservation reviews. Additionally, the Program Comment was
revised to clarify that for undertakings covered by existing Section
106 memoranda of agreement or programmatic agreements, a federal agency
must follow those terms, and the
[[Page 14534]]
Program Comment in no way supersedes those existing agreements.
Finally, the Program Comment now clarifies the relationship between it
and other program comments.
Segmentation: In response to concerns about potential segmentation
of undertakings, the Program Comment was revised to clarify that if an
undertaking includes activities not in Appendix A or Appendix B, the
whole undertaking must be submitted to relevant Indian Tribes, Native
Hawaiian Organizations, SHPOs, THPOs, and other consulting parties
through the ordinary Section 106 process, with the submission
indicating which activities are covered in this Program Comment and
requesting review of only noncovered activities.
Determinations of Eligibility: In response to comments about the
absence of determinations of eligibility to the National Register of
Historic Places, a determination of eligibility continues to not be
required for the use of the Program Comment. A Type C Determination,
however, requires federal agencies to determine that a building is not
eligible for the National Register of Historic Places. Type D-G
Determinations require treating buildings as if they were eligible for
the sake of such determinations.
Unanticipated Discoveries: In response to comments about
unanticipated discoveries, Section V.B. was updated to include detailed
processes for federal agencies to follow in the event of an
unanticipated discovery. Additionally, for the unanticipated discovery
of human remains or Native American funerary objects, sacred objects,
or items of cultural patrimony, the 50-foot perimeter was increased to
be ``no less than 100 feet, or within a buffer area previously agreed
upon by an Indian Tribe and the federal agency, whichever is greater''.
Dispute Resolution Procedures: In response to comments received
requesting clarification about the dispute resolution process, Section
VI of the Program Comment now requires additional notice to consulting
parties (including Indian Tribes, THPOs, SHPOs, and Native Hawaiian
Organizations, and other consulting parties) and further articulates
federal agency obligations, including the need to respond to any
comments received by the ACHP.
Duration: In response to comments received about the duration of
the Program Comment, the Program Comment now has an initial 10-year
duration, half of the originally proposed 20 years.
Amendments: In response to comments concerned about the unilateral
ability of the ACHP chairman to indefinitely extend the Program
Comment, the Program Comment now permits the chairman of the ACHP to
extend the duration of the Program Comment for only a single five-year
period.
Withdrawal: To increase transparency with regard to any withdrawal
of the Program Comment by ACHP membership, the ACHP is now required to
notify SHPOs, THPOS, Indian Tribes, and Native Hawaiian Organizations
if the Program Comment is withdrawn.
Reporting: In response to comments requesting greater transparency
and specificity in federal reporting requirements, the timing of
federal agency reports was adjusted to better reflect federal agency
reporting cycles. The content of reports is now more specific and
includes the articulation of any significant issues or disputes.
Additionally, the Program Comment requires the ACHP to develop a
template for collecting information about the use of the Program
Comment to facilitate reporting and transparency, to summarize annual
agency reports for the ACHP members and others, to deliver reports
orally and in writing, and to provide recommendations for amendments.
Annual Meetings: In response to comments seeking greater
opportunities to learn about the effectiveness and utility of the
Program Comment, the Program Comment requires annual meetings.
Invitation to Comment: In response to comments seeking
opportunities to provide feedback, the Program Comment now states an
explicit invitation that any Indian Tribe, Native Hawaiian
Organization, SHPO, THPO, consulting party, or member of the public may
submit written comments to the ACHP regarding the overall effectiveness
of the Program Comment. Such comments must be taken into consideration
during the development of the ACHP's annual reports on the Program
Comment.
Assistance and Training: In response to requests for ACHP guidance
and training, Section X.E. now outlines case-specific technical
assistance and training the ACHP will provide on the use of the Program
Comment.
Definitions: Broadly, definitions were adjusted to better conform
to existing regulations or guidance and to provide additional detail.
In places, definitions were added or removed to reflect changes in the
rest of the document or to make the appendices more concise.
Concerns Related to the Appendices of the Program Comment
Use of Qualified Authorities and Qualified Professionals: In
response to confusion about the term and use of ``qualified
authorities,'' it was removed from the Program Comment. However, the
reliance upon qualified professionals and holders of Indigenous
Knowledge was articulated and expanded, particularly in the procedures
established by Type A-G Determinations. Additionally, it was specified
that a qualified professional must have expertise in the specific area
of study in which they are opining.
Minimal Adverse Effect: In response to comments about the phrase
and use of ``minimal adverse effect,'' it was removed from the Program
Comment.
The Nature of Type A-G Determinations: In response to comments
about the nature of and appropriate party to make a ``determination,''
the Program Comment now clearly states that federal agencies make
determinations pursuant to information or statements provided to or
obtained by the federal agencies. Additionally, it was further
clarified that for undertakings that cannot obtain a necessary
determination, full Section 106 procedures must be followed pursuant to
36 CFR 800.3 through 800.7 or 36 CFR 800.8(c), or another applicable
agreement or program alternative. In addition, Section III.A.4. was
added to indicate that agency officials were to be the individuals
making key decisions for the federal agencies.
Character-defining: In response to comments about ``character-
defining features,'' Type E and Type F Determinations offer a
consistent approach for determining if a feature is ``character-
defining.'' Further, federal agencies may rely on ``context studies''
for Type E and Type F determinations concerning historic properties
that share similar histories and designs.
Ground Disturbance: See changes referenced above in response to
concerns raised by Tribal commenters.
Other Activities: In response to confusion about including ``other
activities'' in the Program Comment, activities that do not normally
require a review under Section 106 are now identified in a single,
consolidated section in Appendix A.
Nearness and Adjacencies: In response to comments that the Program
Comment would be applied too broadly from a land-use perspective, the
Program Comment no longer uses the words ``near'' or ``adjacent to'' to
[[Page 14535]]
describe proximity to a specific land use (e.g., housing) or buildings.
Windows, Doors, Siding, and Other Exterior Features: As suggested
by commenters, Type D Determinations provide a framework for
determining if the replacement of a window, door, or siding is
appropriate. Type E also provides a consistent approach for determining
if an exterior feature is ``character-defining'' and what is or is not
a ``nonsignificant'' fa[ccedil]ade, recognizing that some commenters
called for the use of the term ``secondary'' fa[ccedil]ade.
Building Interiors: As suggested by commenters, Type E
Determinations provide a framework for determining if an element of a
building interior is ``character-defining'' or in a ``primary space.''
To reduce the potential for duplication noticed by some commenters, the
Program Comment no longer has separate appendices for interior
activities for buildings whose primary purpose is residential versus
other uses. Additionally, the Program Comment clarifies that interior
rehabilitations can take place within housing units and within upper
stories of certain spaces of buildings.
Content of Final Draft: As is the nature of any public process, a
number of comments were not integrated in the final Program Comment.
Comments to abandon the development of the Program Comment were not
heeded. As stated above, the Program Comment is intended to promote
actions that advance historic preservation goals, including the reuse
of historic materials and buildings and the upgrading of infrastructure
in historic neighborhoods. It also advances the goals of the ACHP's
2023 Policy Statements. Further, the development of this Program
Comment followed applicable statutory and regulatory requirements.
While the transportation-related activities were significantly trimmed,
a limited number remain in the Program Comment given the lack of
consistent treatment of certain covered activities in existing Section
106 programmatic agreements, the fact that not all states have
programmatic agreements, and the need to continue to harmonize reviews
of these activities in light of significant federal investments.
Comments to shorten the duration to five years, or even one year, were
not heeded because of the need to provide a reasonable amount of time
for the Program Comment to be operationalized across federal agencies.
However, the annual meeting and reporting requirements, along with the
amendments and withdrawal provisions, will help with providing
opportunities to assess the effectiveness of the Program Comment and
adjust as needed. Comments to remove the ``other activities'' found in
Section 6 of Appendix A as not undertakings were not heeded because the
ACHP heard from commenters and the ACHP members that such activities
were sometimes incorrectly considered undertakings and subjected to the
full Section 106 review process.
V. Text of the Program Comment
The full text of the program comment, with various typographical
and grammatical errors corrected, is provided below.
Program Comment on Certain Housing, Building, and Transportation
Undertakings
This Program Comment was issued by the Advisory Council on Historic
Preservation (ACHP) on December 20, 2024, on its own initiative
pursuant to 36 CFR 800.14(e), and went into effect on that date. It
provides all federal agencies with an alternative way to comply with
their responsibilities under Section 106 of the National Historic
Preservation Act, 54 U.S.C. 306108, and its implementing regulations,
36 CFR part 800 (Section 106), regarding the effects of certain
housing-related, building-related, and alternative transportation
infrastructure-related undertakings.
I. Introduction
A. Background
The National Historic Preservation Act calls for ``us[ing] 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. The development of this Program
Comment responds to this call and is driven by the need to harmonize
policies and procedures for the preservation of our nation's historic
places with other efforts designed to produce and rehabilitate
affordable, accessible, energy-efficient, and hazard-free housing; to
reduce energy use and associated costs, improve resilience against
natural hazards, and provide alternative transportation options--needs
that have received high levels of attention from Congress, as well as
state, local, and Tribal governments and private parties.
B. Prior ACHP Action
The ACHP's statutory duties under the National Historic
Preservation Act include advising the President, Congress, and state
and local governments on historic preservation policy issues and
overseeing the Section 106 process. The ACHP has performed these
statutory duties in the areas covered by this Program Comment.
In its advising capacity, the ACHP issued its first policy
statement on affordable housing in 1995. It updated this policy
statement in 2006, and again in 2023 by broadening the scope to cover
all housing. The Housing and Historic Preservation Policy Statement
states that Section 106 reviews must ``be grounded in a flexible yet
consistent approach to ensure that housing can be developed
expeditiously while still preserving the historic qualities of affected
historic properties.'' Also in 2023, the ACHP advised on energy use and
cost, resilience, and historic preservation through its Climate Change
and Historic Preservation Policy Statement. It urges action on building
reuse and energy-and-emissions-saving retrofits of older and historic
buildings (including enhanced electrification and increased energy
efficiency standards). It also supports expediting Section 106 review
of alternative transportation projects.
In its oversight of the Section 106 process, the ACHP has issued or
participated in a variety of program alternatives to create tailored
review processes for certain programs and undertakings relevant to this
Program Comment. At the request of Department of Defense, for example,
the ACHP has issued six program comments specifically related to
housing, which cover housing developed under specific congressionally
appropriated programs, housing constructed during specific eras, and
housing designed and built with similar form, style, and materials. The
ACHP has also recently been a signatory to several statewide
programmatic agreements with the Department of Housing and Urban
Development related to projects and programs subject to 24 CFR parts 50
and 58.
With regard to building rehabilitation, the ACHP has issued several
program comments, along with an exemption for the General Services
Administration's routine operations and maintenance. The ACHP has also
signed a Department of Energy Prototype Programmatic Agreement for
weatherization activities and a Nationwide Programmatic Agreement
Regarding Climate Resiliency and Sustainability Undertakings on
Department of Homeland Security Owned Facilities, which cover a broad
range of energy efficiency, water efficiency, and resilience-related
undertakings.
[[Page 14536]]
With regard to transportation alternatives, the ACHP has issued two
program comments specifically related to transportation projects (both
related to rail infrastructure), along with a government-wide exemption
for certain electric vehicle supply equipment (EVSE). In addition, the
ACHP has been a signatory to statewide programmatic agreements with the
Federal Highway Administration, State Historic Preservation Offices,
Indian Tribes, and state departments of transportation, covering a
range of transportation-related activities.
This Program Comment is guided in part by the mechanisms,
provisions, and approaches in prior program alternatives that are most
consistent with the ACHP's recently adopted Housing Policy Statement
and Climate Change Policy Statement. In expanding beyond the scope of
these prior program alternatives, this Program Comment offers an
alternative approach for Section 106 review across the federal
government for certain undertakings, equipping federal agencies to more
effectively and efficiently preserve and protect the nation's historic
resources while addressing other critical policy needs.
C. Goals
This Program Comment aims to promote actions that, consistent with
the National Historic Preservation Act, 54 U.S.C. 300101(1), advance
historic preservation goals including the reuse of historic materials
and buildings and the upgrading of infrastructure in historic
neighborhoods, and to harmonize historic preservation goals with the
nation's pressing needs to expand access to housing, improve
resilience, and offer transportation alternatives.
Every day, federal agencies meet these needs by proposing to carry
out, permit, license, fund, assist, or approve undertakings that have
the potential to affect historic properties, and when they do, they
must comply with Section 106 of the National Historic Preservation Act.
Recognizing the extent, and in some cases the increasing extent, of
federal action in the housing, building, and transportation sectors,
and the volume and repetitive nature of such action, the ACHP has
issued this Program Comment to offer efficiencies in reviewing these
covered undertakings. In doing so, this Program Comment enables federal
agencies to focus on preservation and consultation for other
undertakings with greater potential for adverse effects on historic
properties. This Program Comment also aims to leverage existing
investments in existing buildings and other built infrastructure by
facilitating reuse and thereby avoiding the need for new construction
and for costly new construction materials.
Ultimately, this Program Comment aims to benefit the people who
live in the housing, work in the buildings, and move using the
transportation infrastructure projects being carried out, permitted,
licensed, funded, assisted, or approved by federal agencies by creating
review efficiencies that deliver these projects more quickly and
efficiently.
II. Scope
A. Overall Effect
This Program Comment provides an alternative way for federal
agencies to comply with their Section 106 responsibility to take into
account the effects on historic properties of their covered
undertakings. The issuance of this Program Comment at the ACHP's own
initiative provides the ACHP a reasonable opportunity to comment
regarding the covered undertakings.
B. Effect on Other Applicable Laws and Regulations
This Program Comment does not modify, preempt, or replace any other
federal laws or regulations (including those related to the federal
rehabilitation tax credit), or any applicable state, local, or Tribal
laws or regulations (including local historic preservation review or
zoning ordinances, building codes, or permitting requirements).
C. Effect on Existing Agreements
1. Overall Effect
A federal agency that already has an executed Section 106
memorandum of agreement (MOA) or programmatic agreement (PA) in effect
that addresses covered undertakings must follow the terms of those MOAs
or PAs to the extent those MOAs or PAs address the undertakings covered
by this Program Comment. A federal agency whose undertakings are
covered by another program comment currently in effect may elect to
follow the terms of that program comment, or utilize this Program
Comment after notice of its intent to follow this Program Comment per
Section III.A.2. of this Program Comment, for undertakings covered by
both program comments. This Program Comment does not in any way
supersede, replace, or change the terms of existing MOAs or PAs, or
other program comments.
2. Amendment or Termination of MOAs and PAs
Federal agencies may pursue amendments to existing MOAs or PAs per
their stipulations to incorporate, in whole or in part, the terms of
this Program Comment. Federal agencies may also consider terminating
such MOAs or PAs per their stipulations and follow this Program Comment
to satisfy their Section 106 responsibility for the covered
undertakings.
If a federal agency elects to amend or terminate an MOA or PA, and
if the applicable amendment or termination provision of such MOA or PA
does not require consultation with relevant Indian Tribe(s), Native
Hawaiian Organization(s), SHPO(s), THPO(s), or consulting parties, the
ACHP strongly recommends that the federal agency meaningfully consult
with such parties in considering any such amendment or termination.
If a federal agency elects to terminate an MOA or PA, and if the
applicable termination provision of such MOA or PA does not require
notice to the ACHP of such termination, the federal agency must provide
written notice to the ACHP of such termination and provide notice of
its intent to follow this Program Comment per Section III.A.2. of this
Program Comment.
A federal agency need not amend or terminate an existing MOA or PA
if the MOA or PA addresses undertakings similar to, but distinct from,
the undertakings covered by this Program Comment.
3. Amendment of Existing Program Comments
Federal agencies may propose to the ACHP amendments to existing
program comments following the amendment provisions in those program
comments, and the ACHP may consider any amendments to incorporate, in
whole or in part, the terms of this Program Comment.
D. Application on Tribal Lands
This Program Comment does not apply to undertakings located on
Tribal lands, or to undertakings that may affect historic properties
located on Tribal lands, unless the Tribal Historic Preservation
Officer (THPO) or a designated representative of the Indian Tribe has
provided prior written notification to the executive director of the
ACHP that the Tribe allows the use of the Program Comment on the
Tribe's lands. Indian Tribes can agree to such use of the Program
Comment by issuing an authorization for such use in a format
substantially similar to the format
[[Page 14537]]
contained in Appendix C to this Program Comment, and by submitting the
completed authorization to the executive director of the ACHP. This
Program Comment is applicable on the Tribal lands identified in such
authorization on the date of receipt of the authorization by the
executive director of the ACHP, who must ensure notice of such
authorization is included on the website of the ACHP within 30 days of
the ACHP's receipt. The THPO or designated representative of the Indian
Tribe may terminate the Indian Tribe's authorization to use this
Program Comment by notifying the executive director of the ACHP in
writing. Such a termination will be limited to the Program Comment's
applicability to undertakings that would occur on or affect historic
properties on the Tribal lands under the jurisdiction of the Indian
Tribe.
E. Undertakings Not Covered and Exceptions
A federal agency must follow the Section 106 review process under
36 CFR 800.3 through 800.7 or 36 CFR 800.8(c), or another applicable
agreement or program alternative, if:
1. The federal agency elects, for any reason, not to utilize this
Program Comment for an undertaking.
2. The undertaking is not listed in the Appendices to this Program
Comment.
3. The undertaking would occur on or have the potential to affect
the following historic properties:
a. Any National Monument, National Historic Site, National Historic
Trail, National Historical Park, National Military Park, National
Battlefield, National Battlefield Park, National Battlefield Site,
National Lakeshore, or National Seashore.
b. Any site, object, building, or structure individually designated
as a National Historic Landmark or found within the boundaries of a
National Historic Landmark district.
c. Sites of religious and cultural significance to Indian Tribes
and Native Hawaiian Organizations, including but not limited to Tribal
identified sacred sites and sites identified by Indigenous Knowledge of
Indian Tribes or Native Hawaiian Organizations.
4. The federal agency knows, has reason to believe, or has been
informed that there may be any likelihood of encountering historic
properties in which an Indian Tribe or Native Hawaiian Organization may
have an interest.
III. Alternative Compliance Approaches
A. Available Alternative Compliance Approaches and Federal Agency Use
1. Available Alternative Compliance Approaches
This Program Comment authorizes alternative compliance approaches
for covered undertakings, as follows:
a. For undertakings set forth in Appendix A of this Program
Comment, a federal agency has no further Section 106 review
requirements regarding the undertaking, other than keeping a record of
its determinations to use Appendix A of this Program Comment.
b. For undertakings set forth in Appendix B of this Program
Comment, a federal agency has no further Section 106 review
requirements regarding the undertaking if the federal agency (i)
satisfies the conditions, exclusions, or requirements prescribed in
Appendix B, and (ii) documents, as part of its administrative record
and for any reports required by Section X of this Program Comment, the
manner in which it has satisfied such conditions, exclusions, or
requirements.
2. Federal Agency Notice of Alternative Compliance Approaches
Prior to using this Program Comment, a federal agency must provide
a written notification to the ACHP, the National Conference of State
Historic Preservation Officers, and the National Association of Tribal
Historic Preservation Officers of its decision to use this Program
Comment, including an identification of the geographic scope (national,
state, or otherwise) in which it will use the Program Comment. Where
the geographic scope is less than national, the federal agency must
also notify any relevant Indian Tribe(s), Native Hawaiian
Organization(s), SHPO(s), THPO(s), and representative(s) of local
government(s). The ACHP must make available on its website any such
notices submitted by federal agencies to the ACHP pursuant to this
Section.
3. Identifying a Covered Undertaking Subject to This Program Comment
When an undertaking includes multiple activities, including any
undertaking or undertakings listed in Appendix A or Appendix B as well
as nonlisted activities, the federal agency shall submit the entire
undertaking for review under 36 CFR 800.3 to 800.7 to the relevant
Indian Tribes, Native Hawaiian Organizations, SHPO(s), THPO(s), and
other consulting parties, as applicable. The federal agency shall
include with the submittal a description of the undertaking or
undertakings that are listed in Appendix A or Appendix B and note the
federal agency's reliance on this Program Comment for those select
undertakings, and request review only of the nonlisted activities.
4. Federal Agency Determinations
Federal agency determinations made in accordance with this Program
Comment must be made by the head of the federal agency or another
federal agency official delegated legal responsibility for compliance
with Section 106 of the National Historic Preservation Act and having
jurisdiction and approval authority over an undertaking. When taking
action, including making determinations, pursuant to this Program
Comment, such person must comply with the provisions in 36 CFR 800.2.
B. Consultation With Indian Tribes and Native Hawaiian Organizations
The United States government has a unique legal and political
relationship with Indian Tribes as set forth in the Constitution of the
United States, treaties, statutes, court decisions, and Executive
Orders. The United States recognizes the right of Indian Tribes to
self-governance. Tribes exercise inherent sovereign powers over their
members and territories.
1. Consultation-Related Obligations
Prior to engaging in any undertaking for which this Program Comment
requires a Type B Determination in accordance with Appendix B of this
Program Comment, a federal agency must make a reasonable and good faith
effort to identify any Indian Tribes or Native Hawaiian Organizations
that might attach religious and cultural significance to historic
properties in the area of potential effects and invite them to be
consulting parties. The federal agency's effort to identify potentially
interested Indian Tribes and Native Hawaiian Organizations should be
informed by, but not limited to the following: the knowledge and
expertise of federal agency staff; historic maps; information gathered
from previous consultations pursuant to Section 106 or Section 110
(subject to Section III.B.4. of this Program Comment); databases of
Indian Tribes and Native Hawaiian Organizations where accessible and
appropriate; the Bureau of Indian Affairs Tribal Leader List; U.S.
Department of the Interior Native Hawaiian Organization List; the
National Park Service Tribal Historic Preservation Program contact
database; National Association of Tribal Historic Preservation
Officers; the U.S.
[[Page 14538]]
Department of Housing and Urban Development Tribal Directory Assistance
Tool; State Historic Preservation Officer (SHPO) databases; and other
resources. Such Indian Tribe or Native Hawaiian Organization that
requests in writing to be a consulting party shall be one.
The federal agency's consultation effort should be informed by and
be conducted in accordance with the National Historic Preservation Act;
the ACHP Policy Statement on Indigenous Knowledge and Historic
Preservation; and the ACHP Policy Statement on Burial Sites, Human
Remains, and Funerary Objects, including, but not limited to,
recognizing the special expertise of holders of Indigenous Knowledge.
The federal agency must defer to the identification by an Indian Tribe
or Native Hawaiian Organization of certain individual or individuals as
holders of the Indigenous Knowledge of the Indian Tribe or Native
Hawaiian Organization in light of their expertise (including but not
limited to Indigenous Knowledge-based expertise) in identification,
evaluation, assessment of effects, and treatment of effects to historic
properties of religious and cultural significance to the Indian Tribe
or to Native Hawaiians.
The federal agency must gather information to identify whether any
historic properties of religious and cultural significance to such
Indian Tribes or Native Hawaiian Organizations are included in such
area of potential effects in accordance with the protocols in 36 CFR
800.4(a)(4) and must use this information to assess whether the
undertaking could result in an effect on any such historic properties.
2. Finding of Potential Effect on Certain Properties
Should the federal agency determine through consultation with
Indian Tribes or Native Hawaiian Organizations or otherwise that a
proposed undertaking covered in this Program Comment could result in an
effect on a historic property with traditional religious and cultural
significance to an Indian Tribe or Native Hawaiian Organization,
including but not limited to a Tribal identified sacred site or a site
identified by Indigenous Knowledge of Indian Tribes or Native Hawaiian
Organizations, the federal agency will not use this Program Comment and
must instead follow the Section 106 review process under 36 CFR 800.3
through 800.7, or 36 CFR 800.8(c), or another applicable agreement or
program alternative.
3. Confidentiality-Related Obligations
Consistent with 36 CFR 800.4(a)(4) and the ACHP Policy Statement on
Indigenous Knowledge and Historic Preservation, federal agencies should
consider information regarding historic properties with traditional
religious and cultural significance to Indian Tribes or Native Hawaiian
Organizations, Tribal identified sacred sites, and Indigenous Knowledge
shared with the federal agency by Indian Tribes or Native Hawaiian
Organizations as sensitive, unless otherwise indicated by the Indian
Tribe or Native Hawaiian Organization. Federal agencies should clearly
inform Indian Tribes and Native Hawaiian Organizations of any
limitations on the agency's ability to keep sensitive information
confidential. Federal agencies must keep sensitive information provided
by Indian Tribes or Native Hawaiian Organizations confidential to the
extent authorized by applicable federal laws, such as Section 304 of
the National Historic Preservation Act, or by applicable state and
local laws. Federal agencies are encouraged to use best practices on
confidentiality delineated in the 2023 Interagency Best Practices Guide
for Federal Agencies Regarding Tribal and Native Hawaiian Sacred Sites
when implementing this Program Comment, including when maintaining
records of correspondence related to consultation under this Section.
Federal agencies must also adhere to confidentiality requirements for
other resources covered by Section 304 of the National Historic
Preservation Act.
4. Opportunities for Outreach
Nothing in this Program Comment shall be construed to preclude or
discourage early outreach by project proponents, applicants, state or
local government entities, or other nonfederal entities to Indian
Tribes or Native Hawaiian Organizations prior to the initiation of an
undertaking.
C. The Use of Qualified Professionals
Except where explicitly stated, undertakings covered by this
Program Comment do not require the use of a qualified professional.
When the federal agency engages a qualified professional, the type of
qualified professional must be appropriate to the circumstances. As an
example, determinations regarding architectural resources and
structures must be made by a qualified professional meeting such
professional standards for historic architecture or architectural
history established by the Secretary of the Interior.
IV. Assistance to Consulting Parties
This Program Comment does not require a federal agency to pay any
consulting party for providing its views or comments in response to 36
CFR part 800 responsibilities, including invitations to consult in a
Section 106 review; to respond to the proposed area of potential
effects, scope of identification efforts, eligibility findings,
assessment of effects; or to consult to seek ways to resolve any
adverse effects or to develop a memorandum of agreement or programmatic
agreement to conclude the Section 106 review. If, however, a federal
agency asks an Indian Tribe, Native Hawaiian Organization, or any
consulting party to do more than the activities listed in the preceding
sentence in connection with this Program Comment, the federal agency or
its applicant, grantee, or permittee, if applicable, must enter into an
appropriate arrangement to provide the Indian Tribe, Native Hawaiian
Organization, or consulting party reasonable payment for such services,
if and to the fullest extent the federal agency has the ability to
enter into such an arrangement and pursuant to its statutory
authorities and regulations. Examples of services include requests to
do the following:
A. Conduct an archaeological, ethnographic, or other inventory or
field survey to identify historic properties that may be affected by
the undertaking.
B. Perform a records check on behalf of the federal agency.
C. Conduct research or analysis to perform preliminary assessments
of eligibility to the National Register or to make recommendations
about eligibility to the federal agency and thereby inform the federal
agency's determination of eligibility.
D. Conduct research or analysis to assess the potential effects of
the undertaking on historic properties and thereby inform the federal
agency's determination of effects.
E. Carry out additional research or monitor ground disturbing
activities.
F. Curate artifacts or records recovered or made as part of
historic property identification, or evaluation.
G. Design or develop a specific plan or specifications for an
undertaking that would meet the Secretary of the Interior's Standards
for Rehabilitation or otherwise avoid, or minimize effects to historic
properties.
H. Monitor ground disturbing activities or federal agency treatment
of unanticipated discoveries.
A request during consultation by an Indian Tribe or Native Hawaiian
[[Page 14539]]
Organization to conduct such services itself does not preclude
reasonable payment for services simply because the request was made
during consultation. A federal agency or its applicant, grantee, or
permittee, if applicable, must consider entering into an arrangement,
in accordance with this Section, with any Indian Tribe or Native
Hawaiian Organization making such a request.
V. Unanticipated Discoveries
A. Immediate Response Requirements
If previously unidentified historic properties or unanticipated
effects, including, but not limited to, visual, audible, atmospheric,
and cumulative effects, to historic properties are discovered during
implementation of the undertaking, the federal agency must immediately
halt all activity that could affect the discovery and institute interim
measures to protect the discovery from looting, vandalism, weather, and
other threats. The federal agency must then follow the procedures set
forth in 36 CFR 800.13(b) or the following processes:
1. Notification and Documentation
Within 48 hours of the discovery, the federal agency must notify
any relevant Indian Tribe(s), Native Hawaiian Organization(s), SHPO(s),
and THPO(s), and any identified consulting parties, of the inadvertent
discovery. It must also document in writing the condition of the items
from visual inspection, and any detailed information that may benefit
the recovery plan and decision-making process.
The federal agency must determine within five business days of the
original notification, in consultation with the relevant Indian
Tribe(s), Native Hawaiian Organization(s), SHPO(s), or THPO(s), and any
identified consulting parties, whether the unanticipated or post-review
discovery is eligible for the National Register of Historic Places, or
has been identified by an Indian Tribe as a historic property, and to
determine the contents of a discovery plan, including ways to minimize,
avoid, or mitigate adverse effects and appropriate methods of
identification, transport, and storage of materials.
2. Prohibited Activities
The federal agency must prevent photographs, videos, sketches,
renderings, materials, records, or social media posts identifying or
discussing human remains or material objects associated with burial
contexts, unless the federal agency obtains consent from relevant
Indian Tribe(s), Native Hawaiian Organization(s), or other descendants.
The federal agency must take special care to ensure that details,
location and photographs of artifacts, funerary objects, and human
remains associated with burial contexts are not provided to the public.
3. Incorporation of Indigenous Knowledge
For sites with potential religious and cultural significance to
Indian Tribes or Native Hawaiian Organizations, the federal agency must
request, and incorporate, if provided, the special expertise of Tribes
or Native Hawaiian Organizations and the information provided by
designated holders of Indigenous Knowledge in accordance with the ACHP
Policy Statement on Indigenous Knowledge and Historic Preservation. For
sites involving burial sites, human remains, or funerary objects, the
federal agency must follow these procedures and be guided by the ACHP
Policy Statement on Burial Sites, Human Remains, and Funerary Objects.
B. Response to the Discovery of Human Remains or Native American
Funerary Objects, Sacred Objects, or Items of Cultural Patrimony
The federal agency must ensure that in the event human remains or
Native American funerary objects, sacred objects, or items of cultural
patrimony are discovered during implementation of an undertaking, all
work within no less than 100 feet of the discovery, or within a buffer
area previously agreed upon by an Indian Tribe and the federal agency,
whichever is greater, must cease. In addition, the area must be
secured, and the federal agency's authorized official, any known and
potentially affiliated Indian Tribe or Native Hawaiian Organization,
local law enforcement, and coroner/medical examiner in accordance with
any applicable state statute(s) must be immediately contacted. The
federal agency must be guided by the principles within the ACHP Policy
Statement on Burial Sites, Human Remains, and Funerary Objects. The
federal agency will comply with applicable state burial laws, including
where such laws apply to land that is not federal or Tribal land, and
applicable ordinances of Indian Tribes. The federal agency will also
comply with Section 3 of the Native American Graves Protection and
Repatriation Act and its implementing regulations, 43 CFR part 10, in
regard to any Native American human remains, funerary objects, sacred
objects, or items of cultural patrimony found on federal or Tribal land
or otherwise subject to that statute.
VI. Dispute Resolution
Any person may file a dispute over the implementation of this
Program Comment or its use for any particular undertaking, by filing a
notice with the relevant federal agency, including the federal agency's
Federal Preservation Officer, with a copy to any consulting parties
involved in the undertaking and any relevant Indian Tribes, THPO(s),
SHPO(s), and Native Hawaiian Organizations. Objecting parties may
include, but are not limited to, Indian Tribes, THPO(s), SHPO(s),
Native Hawaiian Organizations, local governments, preservation
organizations, owners of historic properties, and members of the
public. The federal agency must consult with the objecting party to
resolve the dispute for not more than 60 days. Any disputes over the
evaluation of unanticipated discoveries must be resolved in accordance
with the requirements of 36 CFR 800.4(c)(2) and Section V of this
Program Comment, as appropriate.
Should resolution not be reached within 60 days, the federal agency
must forward to the ACHP all documentation relevant to the objection,
including the federal agency's proposed resolution if any, request the
ACHP to provide within 30 days its written comments to resolve the
dispute, and take the ACHP's comments into account before making a
decision regarding its approach to complying with Section 106. The
federal agency must respond to the ACHP's written comments and must
notify the objecting party, any consulting parties previously notified
of the dispute, and any relevant THPO(s) or SHPO(s) regarding its
decision as to compliance with Section 106 for an undertaking that is
the subject of a dispute. The federal agency's decision regarding the
resolution will be final. Following the issuance of its final decision
in writing, the federal agency may authorize the action subject to
dispute hereunder to proceed in accordance with the terms of that
decision.
The ACHP must monitor such disputes to identify patterns or common
issues in the use of this Program Comment, and from time to time, the
executive director of the ACHP may issue advisory opinions about the
use of this Program Comment to guide federal agencies.
VII. Duration
This Program Comment will remain in effect from the date of
adoption by the ACHP through December 31, 2034, unless prior to that
time the ACHP
[[Page 14540]]
withdraws the Program Comment in accordance with Section IX of this
Program Comment. On any date during the six-month period preceding the
expiration date, the ACHP chairman may amend the Program Comment to
extend its duration in accordance with Section VIII.A. of this Program
Comment. If an Indian Tribe authorizes the use of this Program Comment
on its Tribal lands in accordance with Section II.D. of this Program
Comment, such authorization will be in effect from the date of the
issuance of the authorization until the termination of such
authorization by the Indian Tribe or the expiration or withdrawal of
this Program Comment, whichever is earlier.
VIII. Amendment
The ACHP may amend this Program Comment after consulting with
federal agencies and other parties as it deems appropriate and as set
forth below.
A. Amendment by the Chairman, ACHP
The chairman of the ACHP, after at least 30 days' notice to the
rest of the ACHP membership and federal agencies, and after publication
on the ACHP website of the chairman's written explanation (which shall
take into account ACHP reports and federal agency reports required by
this Program Comment and any comments received from Indian Tribes,
Native Hawaiian Organizations, and others), may amend this Program
Comment to extend its duration one time for five additional years. The
ACHP must notify federal agencies, SHPOs, THPOs, Indian Tribes, and
Native Hawaiian Organizations and publish notice in the Federal
Register regarding such amendment within 30 days after its issuance.
B. Amendment by the Executive Director, ACHP
The executive director of the ACHP, after notice to the ACHP
membership and other federal agencies may amend this Program Comment to
adjust due dates and make corrections of grammatical and typographical
errors. The ACHP must notify federal agencies and publish notice in the
Federal Register regarding such amendments within 30 days after their
issuance.
C. Amendment by the ACHP Membership
Through federal agency reports, comments received by the ACHP, ACHP
staff analysis, or otherwise, the ACHP may come to learn the
application of this Program Comment to a particular category of
undertakings listed in Appendix A or Appendix B has resulted in a
pattern of adverse effects on historic properties. Upon notification of
any such pattern, the ACHP chairman, in consultation with the ACHP
executive director, may convene a meeting of the ACHP membership or may
include in an ACHP business meeting agenda the opportunity for the ACHP
executive director to present all available information, in writing and
orally, regarding the category of undertakings and the types and
frequency of such adverse effects and to make specific recommendations
about the category to the membership. At or within a reasonable time
after such presentation, the ACHP chairman, in consultation with the
executive director, may call for a vote by ACHP members to amend this
Program Comment with regard to the category of undertakings as follows.
If the category of undertakings is listed in Appendix A, members may
consider an amendment to either delete the category or move the
category to Appendix B with appropriate conditions, exclusions, or
requirements (including mitigation measures). If the category of
undertakings is listed in Appendix B, members may consider an amendment
to delete the category or to modify the conditions, exclusions, or
requirements (including mitigation measures) on the category. Any such
amendment will be subject to approval by a majority of ACHP members
present and voting. The ACHP must notify federal agencies and publish
notice in the Federal Register regarding such amendments within 30 days
after their issuance.
D. All Other Amendments
Amendments to this Program Comment not covered by Sections VIII.A.
or VIII.B. of this Program Comment will be subject to ACHP membership
approval in accordance with the applicable voting provisions in the
ACHP Operating Procedures, as amended from time to time.
IX. Withdrawal
If the ACHP determines that the consideration of historic
properties is not being carried out in a manner consistent with this
Program Comment, the ACHP may withdraw this Program Comment. The
chairman of the ACHP must then notify federal agencies, SHPOs, THPOs,
Indian Tribes, and Native Hawaiian Organizations and publish notice in
the Federal Register regarding withdrawal of the Program Comment within
30 days of the decision to withdraw. If this Program Comment is
withdrawn, federal agencies must comply with the Section 106 review
process under 36 CFR 800.3 through 800.7, or 36 CFR 800.8(c), or
another applicable agreement or program alternative for individual
undertakings covered by this Program Comment.
X. Reports, Meetings, and Guidance
A. Federal Agency Reports
1. Timing of Reports
The federal agencies that use this Program Comment must provide
annual reports to the ACHP regarding the use of this Program Comment
during the previous fiscal year reporting period, ending September 30
annually, to the ACHP, as provided in this Section. Annual reports are
due on December 31 of each year, starting December 31, 2025.
2. Delivery of Reports
For any reporting required by this Section, federal agencies whose
legal responsibility to comply with Section 106 has been delegated to
other entities or assumed by other entities in accordance with federal
law but who maintain a reporting mechanism for some or all such
entities must provide reports to the ACHP on behalf of those entities
for which such data is available. Other entities to whom legal
responsibility for compliance with Section 106 has been delegated or
other entities that have assumed such responsibility must directly
submit reports to the ACHP in accordance with this Section, using their
own reporting mechanisms. In any report required by this Section, the
ACHP encourages federal agencies to also propose for the ACHP's
consideration amendments and refinements to this Program Comment based
on their experience implementing it.
3. Content of Reports
In any report required by this Section, each federal agency must do
the following:
a. Identify the number of times the federal agency has utilized
this Program Comment for undertakings covered by Appendix A;
b. For any undertakings covered by Appendix B, include: the address
or, if no address is available, the location of the undertaking;
information about the manner or extent to which the agency satisfied
the conditions, exclusions, and requirements to proceed with such
undertakings; the names and any institutional affiliations of any
qualified professionals, SHPOs, or THPOs who contributed to written
determinations required by this Program Comment; and a list of relevant
Indian Tribes and Native Hawaiian Organizations with which consultation
on such undertaking occurred;
[[Page 14541]]
c. Identify any significant issues (including disputes) that may
have arisen while implementing the Program Comment, and their
resolution;
d. Assess the overall effectiveness of the Program Comment;
e. List any entities to which the federal agency has delegated
legal responsibility for compliance with Section 106 in accordance with
federal law, and any entities that have assumed such responsibility in
accordance with federal law, whose undertakings are included in the
report.
4. Template for Reports
Within two months of the adoption of this Program Comment, the ACHP
must develop a template for federal agencies to collect information
about any undertakings covered by Appendix B. The ACHP must also
endeavor to create an online reporting and tracking system for
individual undertakings covered by this Program Comment.
5. Publication of Reports
The ACHP must make available on its website any annual reports
submitted by federal agencies to the ACHP pursuant to this Section
within 30 days of receipt.
B. Invitation To Provide Comment
At any time, any Indian Tribe, Native Hawaiian Organization, SHPO,
THPO, consulting party, or member of the public may submit written
comments to the ACHP regarding the overall effectiveness of the Program
Comment in meeting its intent and regarding suggestions for amendments
and refinements to this Program Comment. The ACHP must provide and
maintain instructions for submission of written comments on its
website. The ACHP must consider such written comments when drafting any
reports required by Section X.D. of this Program Comment.
C. Annual Meetings
By March 31, 2026, and annually for the duration of this Program
Comment, the ACHP must schedule an annual meeting and invite federal
agencies, Indian Tribes, SHPOs, THPOs, Native Hawaiian Organizations,
ACHP members, consulting parties, and others it deems appropriate, to
discuss implementation of the Program Comment. At the meeting,
attendees will have an opportunity to provide their views on the
overall effectiveness of the Program Comment in meeting its intent and
purpose. Such views may inform decisions such as those regarding
amendments to the Program Comment. Annual meetings may take place in-
person, by phone, virtually using electronic meeting platforms, or any
combination of such means.
D. ACHP Reports and Recommendations for Amendments
At any time, but at least once during the initial three-year period
during which this Program Comment is being used, and every three years
thereafter, ACHP staff must provide at an ACHP business meeting a
written and oral summary of information received from federal agency
reports, annual meetings, comments provided pursuant to Section X.B. of
this Program Comment, or other sources about the utility of this
Program Comment and make any recommendations for amendments. The ACHP
must make such written summary of information and such recommendations
available to the public through posting on the ACHP website within 30
days of such meeting.
E. ACHP Guidance on the Use of This Program Comment
1. Request for ACHP Advisory Opinions
A federal agency may seek an advisory written opinion from the ACHP
as to whether it may appropriately utilize this Program Comment for an
undertaking by forwarding to the ACHP all documentation relevant to the
undertaking, requesting the ACHP to provide within 30 days its written
comments, and taking the ACHP's comments into account before making a
decision as to whether to utilize this Program Comment for such an
undertaking.
2. Training Materials and Meetings
In addition to issuance of advisory opinions in accordance with the
preceding section, the ACHP will produce an e-learning course providing
an overview of the application, interpretation, and requirements of
this Program Comment and may produce other relevant training materials.
XI. Definitions
For purposes of this Program Comment, the following definitions
apply, and beginning in Section II of this Program Comment, such words
were italicized for convenience in earlier drafts:
Abatement means acting or actions to eliminate, lessen, reduce,
remove, or encapsulate.
Accessibility improvement means a physical, constructed work, such
as a ramp or a railing, that addresses the requirements of the
Americans with Disabilities Act, Architectural Barriers Act
Accessibility Standards, or Uniform Federal Accessibility Standards.
Adverse effect, as provided in 36 CFR 800.5(a)(1), means an action
that may alter, directly or indirectly, any of the characteristics of a
historic property that qualify the property for inclusion in the
National Register of Historic Places in a manner that would diminish
the integrity of the property's location, design, setting, materials,
workmanship, feeling, or association; and it includes reasonably
foreseeable effects caused by the undertaking that may occur later in
time, be farther removed in distance or be cumulative.
Alternative transportation infrastructure means a building or
structure (including rail infrastructure) used for pedestrian, bicycle,
micromobility vehicle, and transit purposes.
Area of potential effects, as provided in 36 CFR 800.16(d), means
the geographic area or areas within which an undertaking may directly
or indirectly cause alterations in the character or use of historic
properties, if any such properties exist, and is influenced by the
scale and nature of an undertaking and may be different for different
kinds of effects caused by the undertaking.
Bicycle lane means a portion of a roadway that has been designated
by striping, signage, pavement markings, flex posts, or other physical
separation for the exclusive use by and increased safety of bicyclists
or users of micromobility vehicles.
Bicycle locker means a device or structure for storing personal or
shared bicycles and micromobility vehicles, that may have a cover and
enclosure to protect the bicycles and micromobility vehicles from
weather or theft and is not intended for human occupancy.
Bicycle parking means a designated area to store a bicycle, whether
personal or shared, including, but not limited to, bicycle racks,
bicycle lockers, bicycle shelters, and dedicated docks and kiosks used
in a shared system for bicycles or micromobility vehicles.
Bicycle rack means a rack for a personal or shared bicycle or
micromobility vehicle.
Bicycle rail means a traffic control device that provides a
protective barrier between motor vehicle travel lanes and bicycle
lanes.
Bicycle shelter means a canopy structure above a bicycle rack for a
personal or shared bicycle or micromobility vehicle that provides
partial weather protection of the rack and bicycles or micromobility
vehicles.
Bulb out means feature that extends the line of the curb into the
traveled way, reducing the width of the street,
[[Page 14542]]
also known as curb extensions or bump-outs.
Building means a constructed work created principally to shelter
any form of human activity, including, but not limited, to mobile and
manufactured homes and alternative transportation facilities that are
buildings.
Building energy control system means a mechanical system enabling a
building occupant to manage or monitor energy use and all components of
such system, including, but not limited to, programmable thermostats,
digital outdoor reset controls, occupancy sensors, Underwriters
Laboratories-listed energy management systems or building automation
systems, demand response and virtual power plant technologies, smoke
and carbon monoxide detectors, and related technologies.
Building safety system means fire alarm, fire suppression, and
security systems and equipment.
Character-defining feature means an element of a historic property
that demonstrates or includes the characteristics of a historic
property that qualify the historic property for inclusion in the
National Register of Historic Places, including elements that
contribute to the historic property's overall shape, style, design,
setting, and decorative details.
Clean energy technologies means solar energy systems, wind energy
systems, battery energy storage systems, geothermal systems, and
microgrids serving a building or buildings, or serving alternative
transportation infrastructure.
Community solar system means a solar photovoltaic installation with
up to 5 megawatts nameplate capacity and delivering at least 50 percent
of the power generated from the system to buildings within the same
utility territory as the facility.
Cool pavement means paving materials that reflect more solar
energy, enhance water evaporation, or have been otherwise modified to
remain cooler than conventional pavements.
Contributing property, as provided in National Register Bulletin
16A, ``How to Complete the National Register Registration Form,'' means
a building, structure, object, or site, as applicable, within the
boundaries of a historic district that adds to the historic
associations, historic architectural qualities, or archaeological
values for which a property is significant because it was present
during the period of significance, relates to the documented
significance of the property, and possesses historic integrity or is
capable of yielding important information about the period; or it
independently meets the criteria for the National Register of Historic
Places.
Day means calendar day, taking place from one midnight to the
following midnight.
Economic feasibility means the viability, suitability, and
practicality of a proposed undertaking in light of a range of
considerations, including, but not limited to, estimated construction
costs (including, but not limited to, the cost of building materials
and labor), estimated operational costs, material availability and life
cycle, available budget, and the long-term sustainability of the
undertaking.
Effect, as provided in 36 CFR 800.5(a)(1) and 800.16(i), means a
direct, indirect, reasonably foreseeable, or cumulative impact or
alteration to the characteristics of a historic property qualifying it
for inclusion in or eligibility for the National Register of Historic
Places.
Electrification means the replacement or conversion of an energy-
consuming device or system from nonelectric sources of energy to
electricity; or the replacement or conversion of an inefficient
electric appliance to an efficient electric appliance.
Electric vehicle supply equipment or 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
electric vehicle.
EVSE criteria means: (1) taking 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) using reversible, minimally invasive, nonpermanent
techniques to affix the infrastructure; (3) minimizing ground
disturbance to the maximum extent possible, and ensure that it does not
exceed previous levels of documented ground disturbance; (4) using the
lowest profile equipment reasonably available that provides the
necessary charging capacity; (5) placing the EVSE in a minimally
visibly intrusive area; and (6) using colors complementary to
surrounding environment, where possible.
Federal agency means an agency as defined by 5 U.S.C. 551(1), and
for purposes of this Program Comment, the term federal agency includes
state, local, or Tribal governments that have been delegated or assumed
legal responsibility for compliance with Section 106 pursuant to
federal statutory authority such as that under the provisions of the
Housing and Community Development Act of 1974 at 42 U.S.C. 5304(g).
Flex post means flexible bollards or delineators used to separate
motor vehicle traffic from a bicycle lane and designed to withstand
being hit or run over by motor vehicles.
Green infrastructure means the range of measures that use plant or
soil systems, permeable ground surface materials, stormwater harvest
and reuse, or landscaping to store, infiltrate, and evapotranspirate
stormwater and reduce flows to sewer systems or to surface waters,
including, but not limited to, rain gardens, bioswales, bioretention
facilities, and other ecosystem services and nature-based solutions
used to treat stormwater as close to the source as possible and improve
resiliency.
Ground disturbance means any activity that moves, compacts, alters,
displaces, or penetrates the ground surface of any soils.
Ground surface material means any hard material typically used to
cover soils for transportation purposes, including but not limited to
asphalt, concrete, pavers, cobblestones, Belgian blocks, bricks, gravel
surface or base, or wood.
Hazardous material means lead, lead-containing material (including,
but not limited to, lead-based paint), asbestos, asbestos-containing
material (including, but not limited to, floor tile, plaster,
insulation, glazing putty, roofing material, and flashing material),
radon, and other similar materials detrimental to human health and
safety.
High friction surface treatment means application of very high-
quality aggregate to pavement using a polymer binder to restore or
maintain pavement friction.
Historic building means a building included in, or eligible for
inclusion in, the National Register of Historic Places, as an
individually listed property or as a contributing property to a
historic district.
Historic building material means building material used in the
construction of a historic building and installed during the period of
significance, and any pre-existing in-kind replacement of same.
Historic district, as provided in 36 CFR 60.3(d), means a
geographically definable area, urban or rural, possessing a significant
concentration, linkage, or continuity of historic sites, buildings,
structures, or objects united by past events or aesthetically by plan
or physical development.
Historic property, as provided in 36 CFR 800.16(l), means any
prehistoric or
[[Page 14543]]
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 traditional religious and
cultural significance to an Indian Tribe or Native Hawaiian
Organization that meet the National Register of Historic Places
criteria.
Housing means any building containing or proposed to contain one or
more dwelling units, including, but not limited to, multi-unit
apartment buildings, single-family homes, administrative and employee
dwelling units, and recreation residences, in a variety of building
types and configurations, including, but not limited to, buildings
served by an elevator or elevators, ``walk-up'' buildings, rowhouses,
semi-detached homes, mobile and manufactured homes, barracks, and
freestanding homes.
Indian Tribe, as provided in 36 CFR 800.16(m), means an Indian
tribe, band, nation, or other organized group or community, including a
native village, regional corporation, or village corporation, as those
terms are defined in Section 3 of the Alaska Native Claims Settlement
Act (43 U.S.C. 1602), which is recognized as eligible for the special
programs and services provided by the United States to Indians because
of their status as Indians.
In-kind building materials means new building materials that are
identical to historic building materials in all possible respects,
including in composition, design, color, texture, size, dimension, and
other physical and visual properties.
In-kind replacement means replacement of historic building
materials with in-kind building materials or replacement of other
existing materials, elements, or equipment with new materials,
elements, or equipment that are physically and visually similar in all
possible respects.
Installation means the action or process of placing or re-placing
something, including, but not limited to, materials, mechanical systems
and components, appliances, and equipment, or of being installed, in a
particular location.
Maintenance means activities required to maintain in an operational
state, or to bring back to operating condition.
Mechanical system means any heating, cooling, indoor air quality,
ventilation, dehumidification, air conditioning, plumbing, or
electrical system, and the individual elements and components of each
system, including, but not limited to, heat pumps, electric furnaces
and boilers, vented space heaters, electric heat systems, electronic
ignition devices, central air conditioners, window air conditioners,
evaporative coolers, condensers, compressors, heat exchangers, air
exchangers, ventilation systems, waste heat recovery devices
(including, but not limited to, desuperheater water heaters, condensing
heat exchangers, heat pump and water heating heat recovery systems, and
other energy recovery equipment), adjustable speed drives, duct and
pipe systems (including, but not limited to, return ducts, diffusers,
registers, air filters, and thermostatic radiator controls),
refrigeration lines, and building energy control systems.
Micromobility vehicle means small, lightweight vehicles such as e-
bicycles and scooters, which can be human-powered or electronic,
privately owned or shared, and operate at low to moderate speeds of
approximately 15 to 30 miles per hour.
National Historic Landmark, as provided in 36 CFR 800.16(p), means
a historic property that the Secretary of the Interior has designated a
National Historic Landmark.
Native Hawaiian, as provided in 36 CFR 800.16(s)(2), means 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.
Native Hawaiian Organization, as provided in 36 CFR 800.16(s)(1),
means 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.
Nonsignificant fa[ccedil]ade means any exterior fa[ccedil]ade of a
building which does not contribute to the historic significance of the
building.
Permeable ground surface materials means permeable pavement,
permeable pavers, porous flexible pavement, or other material or system
that provides a hard surface, while allowing water to flow through to
the underlying soils instead of into the storm sewer.
Potentially historic ground surface materials means any ground
surface materials that are 45 years or older, including, but not
limited to, those comprised of pavers, cobblestones, Belgian blocks,
bricks, or wood and those involving earthworks or roofs of structures
entirely underground.
Previously disturbed ground means, in the determination of the
federal agency and in consideration of the vertical and horizontal
dimensions of as-built drawings and plans, available information about
original construction and installation techniques (including the use or
presence of fill), and available surveys: soils not likely to possess
intact and distinct soil horizons and have a reduced likelihood of
possessing historic properties within their original depositional
contexts in the area and to the depth to be excavated, including
previously disturbed right-of-way, and does not mean areas that have
been shallowly disturbed (such as via plowing) and does not mean areas
in which the previous disturbance occurred sufficiently long ago to
allow for subsequent deposit of cultural resources that are now more
than 45 years old (such as historic urban deposits).
Previously disturbed right-of-way means areas where previous
construction or other activities have physically altered soils within
the three-dimensional area of potential effects to the point where
there is likely no potential for a historically significant property to
remain, including, but not limited to the following: the entire curb-
to-curb roadway, existing sidewalks, existing drains, and parking
areas, including, but not limited to, the prepared substrate
constructed to support the infrastructure down to undisturbed or intact
soil or subsoil.
Primary space means lobby, ceremonial room, ground-floor hallway
(unless primarily used for utility purposes), and any other public
space containing a concentration of character-defining features and
located in a historic building.
Qualified professional means a person who meets the relevant
standards for the appropriate corresponding discipline outlined in the
Secretary of the Interior's Professional Qualifications Standards, as
amended and annotated.
Rail infrastructure means structures, buildings, land, and
equipment used for rail travel, including, but not limited to, both the
infrastructure that is in the rail right-of-way (such as ballast, ties,
tracks, bridges, and tunnels) and the infrastructure that is adjacent
to the right-of-way such as signs, signals, mileposts, or switches.
Recognized design manual means one of the following transportation
manuals: Federal Highway Administration Manual on Uniform Traffic
Control Devices, American Association of State Highway and
Transportation Officials A
[[Page 14544]]
Policy on Geometric Design of Highways and Streets, National
Association of City Transportation Officials (NACTO) Urban Street
Design Guide, NACTO Urban Bikeway Design Guide, NACTO Transit Street
Design Guide, NACTO Bike Share Station Siting Guide, or NACTO Urban
Street Stormwater.
Records check means a search of relevant and available Indian
Tribe, SHPO, THPO, Native Hawaiian Organization, local preservation or
planning office, and federal agency files, records, inventories, and
databases, and other sources recommended by such parties, for
information about whether historic properties, including, but not
limited to, properties with traditional religious and cultural
significance to one or more Indian Tribes or Native Hawaiian
Organizations, are known to exist within an area of potential effects.
Repair means fix or mend obsolete, broken, damaged, or deteriorated
features, elements, materials, and systems.
Replacement means substitution of new material, element, or
equipment for an existing material, element, or equipment, including
in-kind replacement and including substitution requiring a change in
composition, design, color, texture, size, dimension, location, or
configuration in order to improve the function and condition of the
material, element, or equipment or the broader system of which the
material, element, or equipment is a part.
Resilience means the ability to prepare for threats and hazards,
adapt to changing conditions, and withstand and recover rapidly from
adverse conditions and disruptions.
Right-of-way means land developed or designated for the public
passage of people using any mode of transportation, including transit.
Solar energy system means any addition, alteration, or improvement
which is designed to utilize solar energy either of the active type
based on mechanically forced energy transfer or of the passive type
based on convective, conductive, or radiant energy transfer, or some
combination of these types to reduce the energy requirements of that
structure from other energy sources, including, but not limited to,
solar hot water equipment, community solar systems, and solar
photovoltaic equipment and all components.
State Historic Preservation Officer, or SHPO, as provided in 36 CFR
800.16(v), means the official appointed or designated pursuant to
Section 101(b)(1) of the National Historic Preservation Act (54 U.S.C.
302301(1)) to administer the state historic preservation program or a
representative designated to act for such official.
Technical feasibility means the viability, suitability, and
practicality of a proposed undertaking in light of a range of
considerations, including, but not limited to, health, safety, energy
efficiency, resilience, durability of materials, and sound professional
judgment (including, but not limited to, architectural, archaeological,
or engineering judgment).
Transit means mass transportation by a conveyance (including, but
not limited to, a bus, railcar, locomotive, trolley car, or light rail
vehicle) that provides regular and continuing general or special
transportation to the public, but does not include school bus, charter,
or sightseeing transportation.
Transit shelter means a canopy structure or other structure open to
the elements on at least one side, which provides partial weather
protection for users of transit, such as those provided at city bus
stops or along rail platforms.
Tribal Historic Preservation Officer, or THPO, as provided in 36
CFR 800.16(w), means the Tribal official appointed by the Indian
Tribe's chief governing authority or designated by a Tribal ordinance
or preservation program who has assumed the responsibilities of the
SHPO for purposes of Section 106 compliance on Tribal lands in
accordance with Section 101(d)(2) of the National Historic Preservation
Act (54 U.S.C. 302702).
Tribal lands, as provided in 36 CFR 800.16(x), means all lands
within the exterior boundaries of any Indian reservation and all
dependent Indian communities.
Undertaking, as provided in 36 CFR 800.16(y), means a project,
activity, or program funded in whole or in part under the direct or
indirect jurisdiction of a federal agency, including those carried out
by or on behalf of a federal agency; those carried out with federal
financial assistance; and those requiring a federal permit, license, or
approval.
Appendix A: Undertakings Not Requiring Further Review
1. Site Work
The following undertakings do not require further Section 106
review:
a. Maintenance or repair of any of the following existing
elements, provided such activity is limited to previously disturbed
ground or creates no new ground disturbance:
i. Concrete and asphalt ground surfaces such as streets, parking
areas, driveways, alleys, ramps, sidewalks, and walkways, including
repaving, restriping, replacing such surfaces with permeable ground
surface materials, sealing (including installation of slurry seals,
overlays, and seal coatings), filling, milling, grinding, grooving,
and reducing surface size, but not changing vertical alignment,
penetrating the ground beneath the lowest depth of the existing
ground surface materials, or expanding surface size.
ii. Park, playground, and sports equipment such as platforms,
guardrails, handrails, climbers, ramps, stairways, ladders, balance
beams, fitness equipment, rings, rolls, un-mechanized merry-go-
rounds, seesaws, slides, swings, netting, basketball hoops, drinking
fountains, and ground surface materials.
iii. Fencing.
iv. Wayfinding, address, and identification signage.
v. Lighting, such as building-mounted lighting and freestanding
lighting in parking areas, along driveways or walkways, or in
landscape elements (such as planted beds), or in park and playground
areas, and including, but not limited to, relamping and rewiring.
vi. Water features, such as decorative fountains, including, but
not limited to, replumbing.
vii. Curbs, gutters, steps, ramps, and retaining walls.
viii. Above-ground utilities, including overhead wires, anchors,
crossarms, transformers, monopole utility structures placed in augur
holes, and other miscellaneous hardware.
ix. Below-ground utilities, including underground water, sewer,
natural gas, electric, telecommunications, drainage improvements,
septic systems, and leaching systems, within 10 feet of a building.
x. Bulb outs, crosswalks (including, but not limited to, raised
crosswalks across roadways and raised intersections), traffic
calming devices (including, but not limited to, speed humps and
speed tables), or islands (including, but not limited to, pedestrian
islands and corner islands to separate or protect bicycles).
xi. High friction surface treatments, cool pavements, permeable
ground surface materials, and rumble strips.
xii. Green infrastructure, sprinkler heads, irrigation lines,
and gray water systems.
xiii. Benches, tables, and freestanding planters.
xiv. Vault toilets.
b. Any of the following landscaping, grounds, and water
management activities, provided such activity is limited to
previously disturbed ground or creates no new ground disturbance:
i. Fertilizing, pruning, trimming, mowing, deadheading, weeding,
sheering, feeding, seeding, reseeding, mulching, aerating, and
maintaining, as applicable, grass, shrubs, other plants, and trees.
ii. Planting of grass, shrubs, and other plants, and
xeriscaping.
iii. Replacement of a tree in, or within 10 feet of, its
existing location.
iv. Removal of grass, shrubs, brush, leaves, other plants,
invasive species, dead plant and tree material, and diseased or
hazardous trees.
v. Removal of rocks, litter, and debris by hand or using small
equipment, but not rocks arranged in a rock wall or other man-made
feature.
[[Page 14545]]
vi. Removal of small conifers growing between mature trees.
vii. Removal of sediment, silt, and debris from man-made
drainage facilities, including retention and detention basins,
ponds, ditches, canals, and sumps.
c. Test borings, soil sampling, well drilling, or perc tests
less than eight inches in diameter.
d. Installation or removal of temporary construction-related
structures, including, but not limited to, scaffolding, barriers,
screening, sediment-capture devices, fences, protective walkways,
signage, office trailers, cofferdams, and restrooms, provided such
activity is limited to previously disturbed ground or creates no new
ground disturbance and that such activity does not damage any
existing building or structure.
e. Elevation of the ground surface within previously disturbed
right-of-way by up to 18 inches to maintain, create, or connect
alternative transportation infrastructure, or to facilitate boarding
and disembarking at transit facilities, provided such activity is
limited to previously disturbed ground or creates no new ground
disturbance.
f. Removal of a deteriorated or damaged mobile or manufactured
home or other temporary building or structure, not including removal
of foundations.
2. Work on a Building Exterior
The following undertakings do not require further Section 106
review when conducted on the exterior of a building:
a. Maintenance or repair of any of the following existing
elements:
i. Doors, including, but not limited to, insulated exterior
doors and basement bulkhead doors.
ii. Windows, including, but not limited to, storm windows,
glazing treatments, window jambs, window sills, solar screens,
awnings, and window louvers.
iii. Siding.
b. Maintenance or repair of any of the following existing
elements, or in-kind replacement of any above-ground components of
any of the following existing elements:
i. Mechanical systems.
ii. Building safety systems.
iii. Canopies, awnings, and solar shades.
iv. Roofing, including, but not limited to, cladding and
sheeting, flashing, gutters, soffits, downspouts, eaves, parapets,
and reflective or energy efficient coating; fasteners and ties to
attach roofing to structural elements; white roofs or cool roofs on
flat roofs; and green, sod, or grass roofs on flat roofs.
v. Accessibility improvements.
vi. Clean energy technologies.
vii. Elevator system equipment.
viii. Hardware, such as dead bolts, door hinges, latches and
locks, window latches, locks and hinges and door peepholes.
ix. Foundations and foundation vents.
x. Chimneys.
xi. Vents, including, but not limited to, continuous ridge vents
covered with ridge shingles or boards, roof vents, bath and kitchen
vents, soffit vents, or frieze board vents.
xii. Energy and water metering devices.
xiii. Building-mounted utility infrastructure, including, but
not limited to, wires and anchors.
xiv. Installation of stanchions, fasteners, or tracks for flood
shields.
c. Replacement or installation of any of the following elements:
i. Above-ground elements of an accessibility improvement, if
installed with methods that do not irreversibly damage historic
building materials.
ii. Above-ground elements of a radon mitigation system, if any
pipe used in a radon mitigation system and visible from the building
exterior has a diameter of no more than four inches and is painted
or colored to match or complement the color of the building
exterior.
iii. Building-mounted solar energy system if such system is
installed with methods that do not irreversibly damage historic
building materials, sits within eight inches of the roof, and has a
profile that matches the roof profiles (such as pitched or hip
roofs) or if on a flat roof has a profile with a slope not exceeding
20 percent.
d. Any of the following maintenance or repair activities:
i. Caulking, weatherstripping, reglazing of windows,
installation of door sweeps, and other air infiltration control
measures on windows and doors.
ii. Repointing of mortar joints with mortar matching in
composition, joint profile, color, hardness, and texture of existing
mortar.
iii. Removal of exterior paint or graffiti using nondestructive
means, limited to hand scraping, low-pressure water wash of less
than 500 psi, heat plates, hot air guns, and chemical paint removal
and not including sandblasting of masonry more than 45 years old.
e. Application of paint or stain on previously painted or
previously stained exterior surfaces, provided that no historic
decorative paint schemes or colors (such as graining, stenciling,
marbling) will be covered and provided that for masonry more than 45
years old, there will be no use of nontraditional or historically
inappropriate masonry coatings, including painting of previously
unpainted historic masonry, masonry consolidants, and waterproof or
water-repellant coatings.
f. Abatement of hazardous materials, including the maintenance,
repair, replacement or installation of equipment or materials
necessary to abate hazardous materials, where effects of the
abatement are not visible on the building exterior, and the
abatement either is limited to previously disturbed ground or
creates no new ground disturbance.
3. Work on a Building Interior
The following undertakings do not require further Section 106
review when conducted entirely in the interior of a building:
a. Maintenance or repair of any of the following existing
elements:
i. Walls, ceilings, and flooring.
ii. Doors.
iii. Light fixtures.
iv. Elevator system equipment.
v. Hardware, such as dead bolts, door hinges, latches and locks,
window latches, locks and hinges and door peepholes.
vi. Chimneys.
vii. Skylights, atria, courtyards, or lightwells.
b. Maintenance, repair, or in-kind replacement of any of the
following existing elements:
i. Mechanical systems.
ii. Building safety systems.
iii. Light bulbs, ballasts, exit signs, HID fixtures, and
lighting technologies such as dimmable ballasts, day lighting
controls, and occupant-controlled dimming.
iv. Battery energy storage systems.
v. Thermal insulation, other than closed cell spray foam, in or
around walls, floors, ceilings, attics, crawl spaces, mechanical
systems, and foundations, where such insulation can be installed and
removed without damaging exterior walls, and where such insulation
will not cause condensation that could damage exterior walls--even
if such insulation increases interior wall thickness.
vi. Accessibility improvements.
vii. Foundations and foundation vents.
viii. Energy and water metering devices.
c. Maintenance, repair, replacement, installation, or removal of
household or kitchen appliances, where such appliances are Energy
Star rated, or replace existing appliances with appliances with
equivalent or higher Energy Star ratings, or replace existing
nonelectric appliances with electric appliances.
d. Replacement, installation, or removal of interior walls,
ceilings, flooring, doors, light fixtures, hardware, mechanical
systems, building safety systems, thermal insulation, or
accessibility improvements within an individual housing unit or in
areas on upper floors that are not lobbies and not ceremonial rooms.
e. Caulking, weather-stripping, and other air infiltration
control measures in and around bypasses, penetrations, ducts, and
mechanical systems.
f. Application of paint or stain on previously painted or
previously stained interior surfaces, provided that no decorative
paint schemes or colors (such as graining, stenciling, or marbling)
will be painted or stained.
g. Abatement of hazardous materials, including the maintenance,
repair, replacement or installation of equipment or materials
necessary to abate hazardous materials, where effects of the
abatement are not visible from the building interior or are only
visible from within an individual housing unit and not otherwise
visible from the building interior.
4. Work Involving Transportation Fixtures and Equipment
The following undertakings do not require further Section 106
review, provided they are located entirely within the previously
disturbed right-of-way and they follow the specifications of a
recognized design manual (if and to the extent covered in any such
manual):
a. Maintenance, repair, replacement, installation, or removal of
the following elements:
i. Bicycle racks or dedicated docks or kiosks used in a shared
system for bicycles or micromobility vehicles.
[[Page 14546]]
ii. Bicycle rails.
iii. Flex posts.
iv. Concrete or stone blocks affixed to the ground by their
weight.
v. Marks on the ground surface for visibility and delineation,
including, but not limited to, striping for bicycle lanes,
thermoplastic striping and paint, painted sidewalk extensions,
sidewalk stencils, marks for bicycle parking, and paint in zones of
potential conflict between bicyclists and motor vehicle drivers.
vi. Detectable warnings on or before a curb, entry point,
crosswalk, or accessible facility.
b. Maintenance or repair of any of the following existing
elements, or in-kind replacement or removal of any above-ground
components of any of the following elements:
i. Signs, signals, traffic control devices, or signalization,
including, but not limited to, any such elements that are
accessibility improvements.
ii. Cameras, masts, wiring, and other equipment and fixtures
used for automatic traffic enforcement, tolling, monitoring of motor
vehicle traffic, or security purposes.
iii. Tracks, including, but not limited to, ballasts and ties.
iv. Clean energy technologies supporting alternative
transportation infrastructure.
v. Signal bridges.
vi. Transformers, breakers, switches, and other electrical
components.
vii. Catenary systems supporting alternative transportation
infrastructure.
c. Maintenance or repair of the following existing elements, or
in-kind replacement or removal of any above-ground components of the
following elements:
i. Bollards.
ii. Ticket dispensing structures, fee collection structures, or
interpretive wayside exhibit structures.
iii. Transit shelters, bicycle lockers, or bicycle shelters.
5. Other Activities
The following activities lack any potential to cause adverse
effects and therefore do not require further Section 106 review:
a. Energy audits, life cycle analyses, energy performance
modeling, and retrocommissioning studies.
b. Feasibility studies related to energy efficiency
improvements, electrification, improvements incorporating clean
energy technologies, and other topics relating to building energy
use.
c. Leasing, refinancing, acquisition, or purchase by the federal
agency or by another entity receiving federal financial assistance
(such as a state, Tribal, or local government; or joint venture;
railroad commission; compact authority; port authority; transit
agency or authority; private company; or other project sponsor), of:
buildings, energy efficiency or electrification materials or
equipment, clean energy technologies, railway rights-of-way for the
maintenance, development, or expansion of rail-to-trail pathways or
passenger rail service, and fleets of bicycles, micromobility
vehicles, hybrid or electric vehicles, or electric locomotives,
provided that any changes in use or access, or any physical actions
related to such activities must separately undergo Section 106
review if and as required, and pursuant to the standard review
process or to applicable agreements or program alternatives.
d. Direct home mortgages or mortgage guarantees for homeowners.
e. Transfer, lease, or sale of a federal government-owned
building or alternative transportation infrastructure from one
federal agency to another federal agency, provided that any changes
in use or access, or any physical actions related to such
activities, must separately undergo Section 106 review if and as
required, and pursuant to the standard review process or to
applicable agreements or program alternatives.
f. A decision to limit motor vehicle access to, through, or on
streets that remain available for walking, bicycling, micromobility
vehicle, or transit uses, including, but not limited to, ``play
streets,'' ``school streets,'' ``safe route to school'' streets,
``open streets,'' tolling, or congestion pricing, provided that any
changes in use or access, or any physical actions related to such
activities, must separately undergo Section 106 review if and as
required, and pursuant to the standard review process or to
applicable agreements or program alternatives.
g. Maintenance, repair, replacement, and installation of
electric vehicle supply equipment satisfying the EVSE criteria.
h. Treatment for pests, rodents, insects, and termites that does
not visibly alter or obscure the structural, architectural, or
decorative features of a building.
Appendix B: Undertakings Not Requiring Further Review After the
Satisfaction of Conditions, Exclusions, or Requirements
1. Written Determinations
Certain undertakings listed in this Appendix B, due to their
nature and potential effects, require a federal agency to make a
written determination before the federal agency may proceed with the
undertaking. Applicable review processes and criteria for each type
of determination are outlined below. After making any such
determination, the federal agency shall include the determination
and relevant documents (such as SHPO and THPO comments, completed
surveys, or context studies, as applicable) forming the basis of
such determination in its administrative record. If the federal
agency cannot make a written determination required by this Appendix
B to proceed with the undertaking, the federal agency must follow
the Section 106 review process under 36 CFR 800.3 through 800.7 or
36 CFR 800.8(c), or another applicable agreement or program
alternative.
a. Type A Determination for Certain Activities
A Type A Determination requires the federal agency to determine
that the undertaking is limited to previously disturbed ground,
creates no new ground disturbance, or will have no adverse effects
on any historic property based on a written statement from a
qualified professional meeting the professional standards for
archaeology established by the Secretary of the Interior, or from
the relevant SHPO or the relevant THPO.
b. Type B Determination for Certain Activities
A Type B Determination requires the federal agency to identify
the area of potential effects in accordance with 36 CFR 800.4 and to
determine that the undertaking will have no adverse effects on any
historic properties within the area of potential effects: (a) after
(i) consultation with Indian Tribes and Native Hawaiian
Organizations in accordance with Section III.B. of this Program
Comment and (ii) receipt of a written statement that the
undertakings will have no adverse effects on any historic property
from either a qualified professional meeting the applicable
professional standards established by the Secretary of the Interior
or from the relevant SHPO or THPO; or (b) after completion of or
receipt of a field survey of the area of potential effects completed
within the past 10 years, where such survey is acceptable to current
state or Tribal standards and, if applicable, has been subject to
consultation with Indian Tribes and Native Hawaiian Organizations,
without such consultation or survey identifying any historic
properties in the area of potential effects.
c. Type C Determination of Historic Building Status
A Type C Determination applies to buildings 45 or more years old
and requires the federal agency to make a written determination that
such a building is not a historic building on the basis of either:
(a) a records check for prior determinations of historic building
status; or (b) in lieu of a records check or if the records check
yields no information about the subject property, the receipt of a
written statement from a qualified professional meeting the
professional standards for historic architecture, history, or
architectural history established by the Secretary of the Interior
or the relevant SHPO that such building is not a historic building.
In making such a determination, the federal agency should be aware
that buildings less than 50 years old may still possess
``exceptional significance'' in accordance with the National
Register of Historic Places criteria. If a building is less than 45
years old, then a Type C Determination is not required.
d. Type D Determination for Window, Door, and Siding Replacements
A Type D Determination applies to undertakings involving the
replacement of a window, door, or siding of a historic building or
of a building that has not received a Type C determination. A Type D
Determination requires that the federal agency make a written
determination: (a) after receipt of a written statement from a
qualified professional meeting the applicable professional standards
established by the Secretary of the Interior or the SHPO that any
replacement window, door, or siding is an in-kind building material;
or (b) after the federal agency makes a Type G Determination and
determines that the replacement of a window or windows, door or
doors, or siding as
[[Page 14547]]
applicable, will reduce energy use intensity, carbon use intensity,
and/or total carbon emissions of the building when both embodied and
operational carbon are calculated over a 40-year life cycle for
replacement versus retrofit of the existing element.
e. Type E Determination for Character-Defining Features and Non-
Significant Fa[ccedil]ades
A Type E Determination applies to historic buildings and
buildings 45 or more years old. A Type E Determination requires that
the federal agency make a written determination that a proposed
action will not affect a character-defining feature of the building
fa[ccedil]ade or that the effects of a proposed action will be
limited to a non-significant fa[ccedil]ade, after receipt of a
written statement indicating as much from a qualified professional
meeting the applicable professional standards established by the
Secretary of the Interior or from the relevant SHPO. In making such
a statement for a building 45 or more years old but not deemed to be
a historic building, the individual making the statement must apply
identical standards to such building as if it were a historic
building. If a building is less than 45 years old or a Type C
Determination has been made, then a Type E Determination is not
required. If a federal agency has developed a context study or other
survey for a particular type of historic building, and that study or
survey identifies typical character-defining features or non-
significant fa[ccedil]ades for such historic buildings, the federal
agency may rely on that study or survey in determining whether
particular features are character-defining features or non-
significant fa[ccedil]ades.
f. Type F Determination for Character-Defining Features and Primary
Spaces
A Type F Determination applies to historic buildings and
buildings 45 or more years old. A Type F Determination requires that
the federal agency make a written determination that a proposed
action will not affect a primary space at all, or will not have
adverse effects on a character-defining feature in a primary space,
after receipt of a written statement indicating as much from a
qualified professional meeting the applicable professional standards
established by the Secretary of the Interior or from the relevant
SHPO. In making such a statement for a building 45 or more years old
but not deemed to be a historic building, the individual making the
statement must apply identical standards to such building as if it
were a historic building, and all lobbies, ceremonial rooms, and
ground-floor hallways (unless primarily used for utility purposes)
shall automatically be deemed primary spaces. If a building is less
than 45 years old or a Type C Determination has been made, then a
Type F Determination is not required. If a federal agency has
developed a context study or other survey for a particular type of
historic building, and that study or survey identifies typical
character-defining features or primary spaces for such historic
buildings, the federal agency may rely on that study or survey in
determining whether particular features are character-defining
features or primary spaces.
g. Type G Determination for Substitute Building Material
Replacements
A Type G Determination applies to undertakings involving the
replacement of historic building materials with substitute building
materials. A Type G Determination requires that the federal agency
make a written determination--on the basis of a written statement
from either a qualified professional meeting the applicable
professional standards established by the Secretary of the Interior
or from the relevant SHPO--that the substitute building material is
appropriate based on the following factors: (a) the character of
existing historic building materials in terms of condition, design,
material properties, performance (including, but not limited to,
insulation and air sealing value), safety, and presence of hazards
such as lead-based paint, asbestos, or other hazardous materials;
(b) the technical feasibility and economic feasibility of repairing
or replacing the historic building materials; and (c) the
suitability of available substitute building materials, with
attention to composition, design, color, texture, size, dimension,
and other physical and visual properties.
h. State Historic Preservation Officer and Tribal Historic
Preservation Officer Reviews
When a federal agency elects to request a statement from a SHPO
or THPO pursuant to this Appendix B, the SHPO shall have 30 days to
review and respond to an adequately documented request by a federal
agency for a statement pursuant to this Section. If the SHPO or THPO
requests additional, missing information in order to make its
statement, the SHPO shall have 30 days from receipt of the
additional information to respond. If the SHPO or THPO does not
respond within 30 days of receipt of the request or the amended
request, as applicable, then the statement shall be deemed to have
been made. If the SHPO or THPO declines to make the requested
statement, then the federal agency must either obtain the requested
statement from a qualified professional as prescribed above or must
follow the Section 106 review process under 36 CFR 800.3 through
800.7 or 36 CFR 800.8(c), or another applicable agreement or program
alternative.
2. Site Work
The following undertakings do not require further Section 106
review after the satisfaction of the following conditions,
exclusions, or requirements:
a. Replacement of any element listed in Appendix A, Section
1.a., after a Type A Determination has been made.
b. Removal of any element listed in Appendix A, Section 1.a.,
after a Type B Determination has been made.
c. Installation of any element on the same lot as a building or
within an existing right-of-way and listed in Appendix A, Section
1.a., after a Type B Determination has been made.
d. Planting a tree (other than replacing a tree per Appendix A,
Section 1.b.iii.), after a Type A Determination has been made.
e. Test borings, soil sampling, well drilling, or perc tests
more than eight inches in diameter, after a Type B Determination has
been made.
f. Any of the undertakings listed in Appendix A, Sections 1.d.,
1.e. or 1.f. that have the potential for new ground disturbance,
after a Type B Determination has been made.
g. Removal of oil tanks, septic tanks, or hazardous materials,
provided such activity is limited to previously disturbed ground or
creates no new ground disturbance, after a Type B Determination has
been made.
3. Work on a Building Exterior
The following undertakings do not require further Section 106
review, when conducted on the exterior of a building, after the
satisfaction of the following conditions, exclusions, or
requirements:
a. Replacement, installation, or removal of any of the elements
listed in Appendix A, Section 2.a., after a Type C or Type D
Determination has been made.
b. Replacement, installation, or removal of any of the elements
(whether above-ground or below-ground) listed in Appendix A, Section
2.b., if a Type C or Type E Determination has been made; provided,
however, that replacement, installation, or removal of an
accessibility improvement or solar energy system as set forth in
Appendix A, Section 2.c., may be made without a Type C or Type E
Determination.
c. Abatement of hazardous materials where effects of the
abatement may be visible from the building exterior, if a Type C or
Type E Determination has been made.
d. Abatement of hazardous materials where effects of the
abatement have the potential for new ground disturbance, after a
Type B Determination has been made.
4. Work on a Building Interior
The following undertakings do not require further Section 106
review, when conducted entirely in the interior of a building, after
the satisfaction of the following conditions, exclusions, or
requirements:
a. Replacement, installation, or removal of any of the elements
listed in Appendix A, Section 3.a. or Section 3.b., after a Type C
or Type F Determination has been made; provided, however, that
replacements or installations set forth in Appendix A, Section 3.d.,
may be made without a Type C or Type F Determination.
b. Abatement of hazardous materials where effects of the
abatement may be visible from the building interior (other than from
the interior of an individual housing unit), after a Type C or Type
F Determination has been made.
5. Work Involving Transportation Fixtures and Equipment
The following undertakings do not require further Section 106
review, provided they are located entirely within the previously
disturbed right-of-way and they follow the specifications of a
recognized design manual (if and to the extent covered in any such
manual), after the satisfaction of the following conditions,
exclusions, or requirements:
a. Replacement or removal of any of the elements listed in
Appendix A, Section 4.b., but if replacement is other than in-kind
replacement of exclusively above-ground elements or removal involves
below-ground
[[Page 14548]]
elements or otherwise causes ground disturbance, only after a Type B
Determination has been made.
b. Installation of signs, signals, traffic control devices, or
signalization supporting alternative transportation infrastructure,
or installation of any of the elements (whether above-ground or
below-ground) listed in Appendix A, Section 4.b.ii., after a Type B
Determination has been made.
c. Installation of clean energy technologies supporting
alternative transportation infrastructure, after a Type B
Determination has been made.
d. Installation of any of the following elements after a Type A
Determination has been made:
i. Bollards no taller than 48 inches and no larger in diameter
than 12 inches.
ii. Ticket dispensing structures, fee collection structures, or
interpretive wayside exhibit structures, 6 feet or less in height
and 3 square feet or less in horizontal cross-section area, in
addition to height or cross-section needed to incorporate solar
power into such structures.
iii. Transit shelters, bicycle lockers, or bicycle shelters with
a combined dimension (length plus width plus height) less than 30
linear feet and with advertising space no greater than 24 square
feet visible at any one time.
Appendix C: Format for Authorization by an Indian Tribe for Use of This
Program Comment on Its Tribal Lands
On behalf of [NAME OF INDIAN TRIBE] and as a duly authorized
representative of such Tribe, I authorize federal agencies to
utilize the Program Comment on the Tribal Lands of the [NAME OF
INDIAN TRIBE]. This authorization is in effect until the withdrawal
or termination of the Program Comment or on the date of receipt by
the Executive Director of the Advisory Council on Historic
Preservation that [NAME OF INDIAN TRIBE] has rescinded its
authorization, which it may do at any time. For further information,
please contact: [Tribal Contact; Name and Contact Information].
Signed by:
[Signature]
Name:
Title:
Date:
Acknowledged and accepted by the ACHP:
[Signature--leave blank]
Name:
Title:
Date:
(END OF DOCUMENT)
Authority: 36 CFR 800.14(e).
Dated: March 25, 2025.
Kelly Y. Fanizzo,
Deputy General Counsel.
[FR Doc. 2025-05438 Filed 4-1-25; 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.