Exemption Regarding Historic Preservation Review Process for Effects to the Interstate Highway System, 11928-11931 [05-4739]

Agencies

• Advisory Council on Historic Preservation
• Historic Preservation, Advisory Council

[Federal Register Volume 70, Number 46 (Thursday, March 10, 2005)]
[Notices]
[Pages 11928-11931]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-4739]


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Federal Register / Vol. 70, No. 46 / Thursday, March 10, 2005 / 
Notices

[[Page 11928]]



ADVISORY COUNCIL ON HISTORIC PRESERVATION


Exemption Regarding Historic Preservation Review Process for 
Effects to the Interstate Highway System

AGENCY: Advisory Council on Historic Preservation.

ACTION: Approval of exemption regarding the Interstate Highway System.

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SUMMARY: The Advisory Council on Historic Preservation has approved an 
exemption that would relieve Federal agencies from the requirement of 
taking into account the effects of their undertakings on the Interstate 
Highway System, except with regard to certain individual elements or 
structures that are part of the system. The proposed exemption was 
published in the Federal Register on December 29, 2004 with a 30 day 
period for public comment. Minor revisions were made in response to 
these comments.

DATES: The exemption goes into effect on March 10, 2005.

FOR FURTHER INFORMATION CONTACT: Carol Legard, (202) 606-8522.

SUPPLEMENTARY INFORMATION: Section 106 of the National Historic 
Preservation Act, 16 U.S.C. 470f (``Section 106''), requires Federal 
agencies to take into account the effects of their undertakings on 
historic properties and provide the Advisory Council on Historic 
Preservation (``ACHP'') a reasonable opportunity to comment with regard 
to such undertakings. Historic properties are those that are listed on 
the National Register of Historic Places (``National Register'') or 
eligible for such listing.
    The National Historic Preservation Act (``NHPA'') authorizes the 
ACHP to promulgate regulations for exempting undertakings ``from any or 
all of the requirements of'' the Act. 16 U.S.C. 470v. The Section 106 
regulations, found at 36 CFR part 800, detail the process for the 
approval of such exemptions. 36 CFR 800.14(c).
    In accordance with the Section 106 regulations, the ACHP may 
approve an exemption for an undertaking if it finds that: (i) the 
actions within the program or category would otherwise qualify as 
``undertakings'' as defined in 36 CFR 800.16; (ii) the potential 
effects of the undertakings within the program or category upon 
historic properties are foreseeable and likely to be minimal or not 
adverse; and (iii) exemption of the program or category is consistent 
with the purposes of the NHPA.

I. Background

    Since the year 2001, when parts of the Interstate Highway System 
were first suggested as potentially eligible for inclusion in the 
National Register, the Federal Highway Administration (``FHWA'') has 
been considering how best to address the historic preservation 
implications of managing the Dwight D. Eisenhower National System of 
Interstate and Defense Highways (``Interstate System''). FHWA and State 
Departments of Transportation (``State DOTs'') were concerned that 
without appropriate provisions in place, such National Register 
eligibility determinations could present an inordinate administrative 
burden under the provisions of Section 106 of the NHPA and Section 4(f) 
of the Department of Transportation Act, 23 U.S.C. 138 and 49 U.S.C. 
303 (``Section 4(f)'').
    FHWA initially worked with an ad hoc task force of key stakeholders 
to develop a strategy to address the historic preservation issues. All 
agreed that a nationally coordinated approach was needed. The FHWA, in 
consultation with the ACHP and the National Conference of State 
Historic Preservation Officers (``NCSHPO''), determined that this 
nationwide approach should acknowledge the importance of the Interstate 
System in American history, but also recognize that ongoing 
maintenance, improvements, and upgrades are necessary to allow the 
system to continue to serve the transportation needs of the nation. 
ACHP and FHWA initially developed a draft Programmatic Agreement 
(``PA''), but a number of FHWA divisions and the American Association 
of State Highway and Transportation Officials (``AASHTO'') objected to 
the approach taken in the PA, in part due to the statement in that 
document that the entire 46,700 mile long Interstate Highway System 
would be treated as if it was eligible for inclusion in the National 
Register. Many divisions were also concerned with the expectation that 
each State would be responsible for identifying sections of the 
Interstate System within that State having national (as opposed to 
State or local) significance and then requiring consideration of such 
sections under Section 106. In light of these concerns, and the passage 
of a bill prohibiting FHWA from pursuing the proposed PA, an 
administrative exemption was determined to be the most appropriate 
approach to resolving all parties' concerns.
    The ACHP published the proposed exemption in the Federal Register 
for public comment. 69 FR 77979-77981 (December 29, 2004). After 
considering all public comments, and making revisions accordingly, the 
ACHP approved the final exemption on February 18, 2005. The text of 
that final exemption can be found at the end of this notice.

II. Exemption Concept

    The final exemption releases all Federal agencies from the Section 
106 requirement of having to take into account the effects of their 
undertakings on the Interstate System, except for a limited number of 
individual elements associated with the system. The exemption embodies 
the view that the Interstate System is historically important, but only 
certain particularly important elements of that system, as noted below, 
warrant consideration. Such elements would still be considered under 
Section 106. The exemption takes no position on the eligibility of the 
Interstate System as a whole.
    The Interstate System elements that will still be considered under 
Section 106 are limited to certain defined elements, such as historic 
bridges, tunnels, and rest areas, that: (a) Are at least 50 years old, 
possess national significance, and meet the National Register 
eligibility criteria (36 CFR part 63); (b) are less than 50 years old, 
possess national significance, meet the National Register eligibility 
criteria, and are of exceptional importance; or (c) were listed in the 
National Register, or

[[Page 11929]]

determined eligible for the National Register by the Keeper pursuant to 
36 CFR part 63, prior to the effective date of the exemption. FHWA, at 
the headquarters level, in consultation with stakeholders in each 
State, will make the determination of which elements of the system meet 
these criteria. Additionally, FHWA may include properties of State or 
local significance, so long as they meet the National Register 
eligibility criteria, were constructed prior to 1956, and were later 
incorporated into the Interstate System.
    The exemption requires FHWA to designate, by June 30, 2006, 
individual elements of the Interstate System that will continue being 
considered under Section 106. That date marks the 50 year anniversary 
of the legislation authorizing the system. FHWA Headquarters will be 
responsible for completing the necessary consultation and analysis to 
identify these elements. Prior to the completion of this study and 
publication of the list of designated elements by FHWA headquarters, 
FHWA Divisions may assume that an affected section of the Interstate 
System is not eligible for inclusion in the National Register unless: 
(1) it is already listed, or has been determined eligible for listing, 
in the National Register (such a determination would be one done either 
by the Keeper of the National Register or through consensus of the FHWA 
and the relevant State Historic Preservation Officer (``SHPO'')); or 
(2) in FHWA's estimation, it is likely to meet the criteria established 
in Section III of the exemption.
    The exemption concerns only the effects of Federal undertakings on 
the Interstate System. It does not alter the Section 106 review 
obligations regarding any non-Interstate System historic properties 
that may be affected by an undertaking. Each Federal agency remains 
responsible for complying with Section 106 regarding effects of its 
undertakings on historic properties that are not components of the 
Interstate System. For example, Federal agencies must still comply with 
Section 106 regarding archaeological sites that may be affected by 
ground disturbing activities and historic properties of religious and 
cultural significance to Indian tribes that may be affected.
    This exemption supercedes the requirements for review and 
consultation contained in any existing Programmatic Agreement executed 
pursuant to the Section 106 regulations with regard only to the 
consideration of effects to elements of the Interstate System.

III. Exemption Criteria

    Pursuant to 36 CFR 800.14(c)(1), Section 106 exemptions must meet 
certain criteria. Only actions that qualify as undertakings, as defined 
in 36 CFR 800.16, may be considered for exemption, and the exemption 
itself must be consistent with the purposes of NHPA. Furthermore, in 
order to be considered exempted, the potential effects on historic 
properties of those undertakings should be ``foreseeable and likely to 
be minimal or not adverse.'' The ACHP believes that the proposed 
exemption meets these conditions.
    Federal funding, permits, or approvals for actions required for 
maintenance, alterations, or improvements to the Interstate System meet 
the definition of ``undertaking.'' See 36 CFR 800.16(y). The exemption 
is also consistent with the purposes of the NHPA. Among other things, 
the NHPA establishes as the policy of the Government to ``use measures 
* * * to foster conditions under which our modern society and our 
prehistoric and historic resources can exist in productive harmony and 
fulfill the social, economic, and other requirements of present and 
future generations'' and to ``encourage the public and private 
preservation and utilization of all usable elements of the Nation's 
historic built environment.'' 16 U.S.C. 470-1(1) and (5). By 
facilitating the ongoing maintenance, improvements, and upgrades to the 
Interstate System that ensure the system can continue being utilized 
for its purposes, and providing for consideration of particularly 
important, historic elements of the system, the exemption is consistent 
with the expressed purposes of the NHPA.
    The Interstate System is comprised of approximately 46,700 miles of 
roadway forming a web across the intercontinental United States. The 
scale of this system and its attendant impact to the social, 
commercial, and transportation history of the second half of the 
twentieth century make the construction of this system an extremely 
important event in American history. The integrity of the system 
depends on continuing maintenance and upgrades so that it can continue 
to move traffic efficiently across great distances. While actions 
carried out by Federal agencies to maintain or improve the Interstate 
System will, over time, alter various segments of the system, such 
changes are considered to be ``minimal or not adverse'' when viewing 
the system as a whole. Moreover, the exemption does not apply to 
certain historically important elements of the system. By excluding 
these elements from the exemption, the ACHP and FHWA ensure that the 
important, character-defining features of the Interstate System are 
considered through the normal Section 106 review process.

IV. Public Participation

    In accordance with 36 CFR 800.14(c)(2), public participation 
regarding exemptions must be arranged on a level commensurate with the 
subject and scope of the exemption. In order to meet this requirement, 
an earlier draft was published for public comment in the Federal 
Register on December 29, 2004 (69 FR 77979-77981). The ACHP has worked 
closely with FHWA in the development of this exemption and both the 
ACHP and FHWA consulted with SHPOs, all FHWA Divisions, State DOTs, 
AASHTO, NCSHPO, and the National Trust for Historic Preservation.
    Neither the ACHP nor the FHWA have engaged in consultation with 
Indian tribes and Native Hawaiian organizations pursuant to 36 CFR 
800.14(c)(4), since the exemption is limited to effects on the 
Interstate System itself, which does not qualify as a historic property 
of cultural and religious significance to such tribes and 
organizations. Moreover, the exemption will not apply on tribal lands.

V. Response to Public Comment

    In response to publication of the draft exemption in the Federal 
Register, the ACHP received comments from 33 individuals and 
organizations. Of these, 26 expressed support for the proposed 
exemption (some offering constructive comments) and five opposed it. 
Two others offered comments without expressing either support or 
opposition.
    Comments in support of the exemption were received from 18 State 
DOTs, AASHTO, the American Council of Engineering Companies, the 
American Cultural Resource Associates, the American Road and 
Transportation Builders Association, NCSHPO, the Society for American 
Archaeology, the Western Association of State Highway and 
Transportation Officials, and regional staff of the U.S. Forest 
Service.
    Comments opposing the proposed exemption were received from 
regional staff of two Federal agencies (National Park Service and 
Federal Wildlife Service), the staff of two SHPOs (from Florida and 
Virginia), and two State DOTs (from Virginia and West Virginia). 
Objections to the exemption and the ACHP's responses are summarized 
below:
    1. There was a concern by one comment that the exemption did not

[[Page 11930]]

meet all of the criteria for an exemption. In particular, that reviewer 
commented that the proposed exemption failed to meet the criterion that 
the effects be ``foreseeable and likely to be minimal or not adverse.'' 
The reviewer argued that such effects should not be evaluated on the 
basis of impacts on the entire 46,700 mile-long Interstate System, 
since this was beyond the experiential scale of the property. The ACHP 
disagrees. The ACHP recognizes the Interstate System as a 
transportation system of exceptional importance based on its scale and 
attendant impact to social, commercial, and transportation history in 
the United States. The Interstate System has been evolving since its 
inception as it has been constructed, expanded, and upgraded to serve 
the transportation needs of the nation and, therefore, its integrity 
lies in its location, feeling, and association which are rooted in the 
connectivity of the system as a whole. Continuing maintenance, 
improvements, and upgrades will, by and large, maintain the 
characteristics that define the Interstate System. Furthermore, as 
already explained above, the exemption (in Section III) allows for the 
Section 106 consideration of historically significant elements of the 
system. Also, Section III(b) of the exemption allows States and local 
governments an opportunity to identify other elements of the system 
that have significance at the State or local level that were 
constructed prior to 1956 and later incorporated into the Interstate 
System.
    2. Several parties expressed concern about the process for 
designating individual elements requiring Section 106 review. Comments 
included statements that the exemption provides insufficient time for 
FHWA to complete the work, that a context study should be completed 
prior to designating elements to be excluded from the exemption, that a 
context and a list of designated elements should be made available to 
other Federal agencies, and that the process for SHPO and public 
involvement should be detailed in the exemption. A comment also 
suggested that FHWA lacks the necessary expertise to identify 
individual elements that should be excluded from the exemption.
    In response to these comments, the ACHP revised Section II to 
require FHWA to publish the list of designated elements on its Web 
site, and included the Web site location in the final exemption. FHWA 
headquarters is confident that it will be able, with the use of 
qualified consultants, to complete the designation of excluded elements 
by the June 30, 2006 deadline. A context study for the Interstate 
System has already been completed, and FHWA will soon make it available 
to the public as part of its obligation under Section IV of the 
exemption to recognize, interpret, and commemorate the public historic 
of the Interstate System. State DOTs, FHWA Division staff and SHPOs 
will be consulted from each State and will be given an opportunity to 
identify additional parties (e.g., historic highway organizations) that 
should be consulted. FHWA will also consult with the ACHP, the National 
Trust for Historic Preservation, and the Keeper of the National 
Register in determining which elements should be excluded from the 
exemption. The identification of elements will be based on this 
consultation and existing information, rather than on a comprehensive 
survey of the system, and should be manageable in the time allotted. 
The intent of Section II of the exemption is to create a process that 
provides a national perspective and consistency in the application of 
the criteria. It was also intended to allow FHWA to designate elements 
of the system that will require further consideration in a cooperative 
and efficient manner, without placing the burden for this analysis on 
State DOTs and SHPOs. This effort will be conducted by a qualified 
consultant under the supervision of FHWA headquarters staff with 
expertise in historic preservation.
    3. Concerns were also expressed about the individual elements to be 
excluded from the exemption (Section III of the exemption). Some 
objected that the exemption does not protect elements of the Interstate 
System of State or local significance, except for those already listed 
or determined eligible by the Keeper of the National Register. Concerns 
were also expressed about the protection of historic landscapes, 
viewsheds, and pristine segments of the Interstate System. Issues 
regarding protecting elements of State or local significance are 
addressed in the response to the first concern listed above.
    In developing Section III of the exemption, the goal was to focus 
review and consultation on a limited number of important elements of 
the system, and thus freeing up FHWA and State DOTs from the burden of 
documenting and evaluating segments of Interstate highways in their 
State that lack distinction. In developing this exemption, FHWA and the 
ACHP agreed that the designation of excluded elements would not be 
restricted to bridges, tunnels, and rest stops. Rather, significant 
designed landscapes that include Interstate Highways, even those less 
than 50 years old but of exceptional significance, might be included on 
the list. Moreover, viewsheds will be considered under Section 106 
where they relate to another historic property affected by the 
undertaking, such as a National Register eligible traditional cultural 
property, or a historic district, but Federal agencies will not need to 
consider the viewshed as it relates to the historic values of the 
Interstate System itself, except where the relevant element of the 
system has been designated for exclusion under Section II.
    Another comment offered a different perspective on this issue, 
expressing concern that the excluded elements are likely to be 
designated National Historic Landmarks (NHLs), thus adding an 
additional layer of process beyond that afforded most National Register 
properties. Neither the ACHP nor FHWA propose to nominate any of the 
designated properties as NHLs, nor has such a designation been proposed 
by any other party consulted in the development of this exemption. 
There is no ``added'' layer of review or separate review process 
required for NHLs or properties of national significance. The already 
existing requirements regarding NHLs, in Section 110(f) of the NHPA, 16 
U.S.C. 470h-2(f), and Section 800.10 of the Section 106 regulations, 
remain the same.
    4. Based on the comments received, it became clear that several 
reviewers read Section III of the proposed exemption to limit 
exclusions to bridges, tunnels, and rest areas. As noted above, this 
was not the ACHP's intent. To correct this, Section III(b) of the 
exemption has been revised to clarify that certain elements, ``such 
as'' bridges, tunnels, and rest areas, may be excluded from the 
exemption, but that the exclusions will not necessarily be limited to 
those three types of features or properties.
    5. Finally, concerns were expressed about the longevity of the 
exemption. Several parties recommended that the exemption provide for 
the periodic review and update of the list of individual elements 
excluded from the exemption or for periodic review of implementation of 
the exemption by federal agencies. A specific provision for monitoring 
or periodic review has not been included. Certainly, the ACHP will need 
to periodically consider the effectiveness of the exemption and whether 
it continues to meet the purposes of Section 106, and the ACHP has the 
unilateral authority to terminate the exemption if it finds that it 
does not meet those purposes. Two comments recommended that ACHP not be 
able to unilaterally terminate the exemption. However, the Section 106 
regulations

[[Page 11931]]

are clear regarding this matter: ``The Council may terminate an 
exemption at the request of the agency official or when the Council 
determines that the exemption no longer meets the criteria of paragraph 
(c)(1) of this section.'' 36 CFR 800.14(c)(7). The ACHP would not, 
however, terminate the exemption without first consulting FHWA.

VI. Text of the Exemption

    The full text of the final exemption is reproduced below:

Section 106 Exemption Regarding Effects to the Interstate Highway 
System

I. Exemption From Section 106 Requirements

    Except as noted in Sections II and III, all Federal agencies are 
exempt from the Section 106 requirement of taking into account the 
effects of their undertakings on the Interstate Highway System.
    This exemption concerns solely the effects of Federal undertakings 
on the Interstate Highway System. Each Federal agency remains 
responsible for considering the effects of its undertakings on other 
historic properties that are not components of the Interstate Highway 
System (e.g., adjacent historic properties or archaeological sites that 
may lie within undisturbed areas of the right of way) in accordance 
with subpart B of the Section 106 regulations or according to an 
applicable program alternative executed pursuant to 36 CFR 800.14.

II. Process for Designating Individual Elements Requiring Section 106 
Review

    By June 30, 2006, the Federal Highway Administration shall 
designate individual elements of the Interstate System that are to be 
excluded from this exemption. FHWA will publish the list of such 
designated elements on its Web site (https://environment.fhwa.dot.gov/
histpres/index.htm). The Federal Highway Administration headquarters 
shall make the designations, following consultation with the relevant 
State Transportation Agencies, Federal Highway Administration 
Divisions, State Historic Preservation Officers, the Advisory Council 
on Historic Preservation, and the public. The Federal Highway 
Administration headquarters may, as needed, consult the Keeper of the 
National Register to resolve questions or disagreements about the 
National Register eligibility of certain elements.

III. Individual Elements Excluded From Exemption

    (a) The following elements of the Interstate Highway System shall 
be excluded from the scope of this exemption, and therefore shall 
require Section 106 review:
    (i) Elements that are at least 50 years old, possess national 
significance, and meet the National Register eligibility criteria (36 
CFR part 63), as determined pursuant to Section II;
    (ii) Elements that are less than 50 years old, possess national 
significance, meet the National Register eligibility criteria, and are 
of exceptional importance (and therefore meet criteria consideration G 
for properties that have achieved significance within the last fifty 
years), as determined pursuant to Section II; and
    (iii) Elements that were listed in the National Register, or 
determined eligible for the National Register by the Keeper pursuant to 
36 CFR part 63, prior to the effective date of this exemption.
    (b) The following elements of the Interstate Highway System may be 
excluded from the exemption, at the discretion of the Federal Highway 
Administration: Elements such as bridges, tunnels, and rest areas so 
long as they were constructed prior to June 30, 1956, were later 
incorporated into the Interstate Highway System, possess State or local 
significance, and meet the National Register eligibility criteria, as 
determined pursuant to Section II.

IV. Interpretation and Commemoration

    The Federal Highway Administration will recognize, interpret, and 
commemorate the public history of the Interstate Highway System as it 
shaped the latter half of the twentieth century. Available for broad 
public use, this effort shall include the completion of a popular 
publication and/or development of a Web site providing information and 
educational material about the Interstate Highway System and its role 
in American history.

V. Potential for Termination

    The Advisory Council on Historic Preservation may terminate this 
exemption in accordance with 36 CFR 800.14(c)(7) if it determines that 
the purposes of Section 106 are not being adequately met.

VI. Definitions

    The following definitions shall apply to this exemption:
    (a) ``Section 106'' means Section 106 of the National Historic 
Preservation Act, 16 U.S.C. 470f, and its implementing regulations, 
found under 36 CFR part 800.
    (b) ``Undertaking'' 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.
    (c) ``Interstate Highway System'' shall be defined as the Dwight D. 
Eisenhower National System of Interstate and Defense Highways as set 
forth in 23 U.S.C. 103(c), that being commonly understood to be the 
facilities within the rights-of-way of those highways carrying the 
official Interstate System shield, including but not limited to the 
road bed, engineering features, bridges, tunnels, rest stops, 
interchanges, off-ramps, and on-ramps.

    Authority: 16 U.S.C. 470v; 36 CFR 800.14(c).

    Dated: March 7, 2005.
Don Klima,
Acting Executive Director.
[FR Doc. 05-4739 Filed 3-9-05; 8:45 am]
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