Notice of Approval of Exemption for Indigenous-Knowledge Informed Activities by Native Hawaiian Organizations, 88791-88798 [2024-25984]

Agencies

• Historic Preservation, Advisory Council

[Federal Register Volume 89, Number 217 (Friday, November 8, 2024)]
[Notices]
[Pages 88791-88798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-25984]


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ADVISORY COUNCIL ON HISTORIC PRESERVATION


Notice of Approval of Exemption for Indigenous-Knowledge Informed 
Activities by Native Hawaiian Organizations

AGENCY: Advisory Council on Historic Preservation.

ACTION: Notice.

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SUMMARY: The Advisory Council on Historic Preservation (ACHP) has 
approved an exemption that would relieve Federal agencies from the 
historic preservation review requirements under Section 106 of the 
National Historic Preservation Act regarding the effects of various 
undertakings in Hawaii that are proposed or directed by a Native 
Hawaiian Organization (NHO), or substantially led, designed, or managed 
by an NHO, informed by Indigenous Knowledge of that NHO, and related to 
traditional cultural practices of Native Hawaiians.

DATES: The exemption went into effect on October 18, 2024.

FOR FURTHER INFORMATION CONTACT: William Dancing Feather, (202) 517-
0195, [email protected].

SUPPLEMENTARY INFORMATION: Section 106 of the National Historic 
Preservation Act, 54 U.S.C. 306108 (Section 106 and NHPA), requires 
Federal agencies to consider the effects of projects they carry out, 
license/permit/approve, or assist (undertakings) on historic 
properties, and provide the Advisory Council on Historic Preservation 
(ACHP) a reasonable opportunity to comment with regard to such 
undertakings. Historic properties are those properties that are listed 
in the National Register of Historic Places (National Register) or 
eligible for such listing.
    The NHPA authorizes the ACHP to promulgate regulations for 
exempting undertakings from any or all of the requirements of Section 
106. 54 U.S.C. 304108(c). The section 106 regulations, found at 36 CFR 
part 800, detail the process for the approval of such exemptions at 36 
CFR 800.14(c).
    After following that process, on October 18, 2024, the ACHP 
membership, by a vote of 17 in favor, none against, and three 
abstentions, approved the exemption reproduced at the end of this 
notice.

I. Background

    The ACHP acknowledges that Native knowledge and expertise are 
crucial to a full understanding of historic properties that must be 
recognized in the Section 106 review process. Accordingly, the ACHP 
published the 2021 Traditional Knowledge and the Section 106 Process: 
Information for Federal Agencies and Other Participants document to 
keep Federal agencies apprised of their duty to incorporate traditional 
knowledge in Section 106 decisions. Most recently, in March 2024, the 
ACHP adopted a Policy Statement on Indigenous Knowledge and Historic 
Preservation calling for the respectful integration of Indigenous 
Knowledge at all levels of the Section 106 review process. In 
particular, Principle 3 of this policy describes ``Indigenous 
Knowledge'' for purposes of Section 106 to include, but is not limited 
to, the ``experiences, insights, and knowledge held by Indian Tribes 
and NHOs that can assist Federal agencies in identifying, evaluating, 
assessing, and resolving adverse effects to historic properties that 
may be of religious and cultural significance to them.'' Moreover, 
Principle 4 of the policy explains that section 106 agreement documents 
and program alternatives that relate to historic properties of 
religious and cultural significance to an Indian Tribe or NHO should 
recognize Indigenous Knowledge in informed decision making.

II. Exemption Criteria

    As mentioned, exemptions are a program alternative under 36 CFR 
800.14(c) which may be proposed by a Federal agency or by the ACHP. 
Exempted categories must meet the following three criteria: (i) the 
actions within the program or category would otherwise qualify as 
``undertakings'' as defined in Sec.  800.16; (ii) the potential effects 
of the undertakings within the program or category upon historic 
properties are foreseeable and likely to be minimal or not adverse; and 
(iii) the exemption of the program or category is consistent with the 
purposes of the NHPA.
    The actions covered by the exemption are undertakings. The ACHP 
identified that certain Federal agencies reviewing undertakings 
involving NHOs, specifically those utilizing Indigenous Knowledge, were 
experiencing challenges in meeting section 106 requirements despite 
clear compliance with the broad goals and outlines of Federal historic 
preservation policy. Examples of such projects have included, in the 
past, Federal grant activities to NHOs, such as grants for agricultural 
restoration in He[revaps]eia and maintenance activities at Ulup[omacr] 
Heiau in Kailua, and select Federal land management actions.
    The exemption applies to certain types of undertakings to be 
carried out, licensed, permitted, or assisted by Federal agencies that 
are (1) proposed, directed, or authorized by an NHO, or substantially 
led, designed, or managed by an NHO, (2) informed by Indigenous 
Knowledge of that NHO, (3) related to traditional cultural practices of 
Native Hawaiians, and (4) preceded by the submission of an attestation 
statement by the NHO to the relevant Federal agency. The types of 
activities that are included are landscaping practices; agricultural 
practices; rehabilitation, preservation, restoration, or reconstruction 
of water features and systems, including fishponds, historic pathways, 
sacred and traditional sites, traditional Native Hawaiian buildings and 
structures, properties of religious and cultural significance to NHOs; 
installation of interpretative signage; and transfer of Federal 
property or interest in Federal property to an NHO.
    The undertaking's potential effects are likely to be minimal or not 
adverse. In considering the likely potential effects of the 
undertakings informed by NHOs on historic properties, the ACHP Chair 
and staff met with many representatives of NHOs, Federal agencies, the 
Hawai[revaps]i State Historic Preservation Office, and other 
preservation partners. In addition, the ACHP conducted public 
engagement and consultation as further described below.
    Based on this input and input from ACHP members, the likely effects 
of the exempted undertakings on historic properties (including those 
not of religious and cultural significance to NHOs), would be minimal 
or not adverse, as such effects are defined in 36 CFR 800.16(i) and 
800.5 respectively. The exemption includes several safeguards to limit 
the covered undertakings' effects to those that are minimal or not 
adverse, including: the requirements that covered activities include 
only those informed by Indigenous Knowledge of the NHO and related to 
the traditional cultural practices of Native Hawaiians; a requirement 
that the NHO attest to its involvement in the undertaking and the 
undertaking's relationship to Native Hawaiian cultural practice; a 
carefully prescribed list of covered activities, each tied to 
Indigenous Knowledge of the NHO and traditional cultural

[[Page 88792]]

practice of Native Hawaiians; and careful limits on the types of 
materials, construction techniques, and activities of the covered 
activities.
    Overall, the exemption aims to exempt those activities that are 
themselves cultural preservation. By the terms of the exemption, these 
are activities for the preservation, restoration, rehabilitation, 
reconstruction, repair, maintenance, and stabilization of historic 
properties of significance to NHOs, utilizing their expert Indigenous 
Knowledge about such properties. Deference to an NHO's understanding of 
their own cultural preservation activities is consistent with the 
formal position of the ACHP as expressed in its Policy Statement on 
Indigenous Knowledge and Historic Preservation which states that 
Federal agencies should ``recognize and defer to Tribal or NHO 
interpretation of the property's significance and integrity. Members of 
the preservation community are not the experts on what constitutes 
Indigenous Knowledge or how it should be utilized to identify or 
evaluate the eligibility of a property that may be of religious and 
cultural significance to an Indian Tribe or NHO.''
    The exemption does not apply to demolition or removal of properties 
listed or known to be eligible for listing on the National Register of 
Historic Places, unless the demolition or removal decision has 
previously completed review pursuant to Section 106; the construction 
of new buildings or structures not expressly allowed in the covered 
activities section; the treatment or disposition of burial sites, human 
remains, and funerary objects in a manner contrary to the ACHP Policy 
Statement on Burial Sites, Human Remains, and Funerary Objects; agency 
decisions to provide or retract permission to access agency owned or 
controlled land; and undertakings known by a Federal agency or the 
relevant NHO to be contrary to or limiting of the Indigenous Knowledge-
informed traditional cultural practice of another NHO or to demolish or 
remove properties on or eligible for the National Register of Historic 
Places. Moreover, the exemption includes language, similar to that in 
other exemptions, where Federal agencies remain responsible for 
considering the effects of undertakings on historic properties other 
than those directly addressed by the activities covered by the 
exemption.
    In sum, the ACHP consulted with and took into account the views of 
stakeholders--including Federal and State officials, NHOs, historic 
preservation organizations, and individuals--to identify a limited set 
of undertakings whose potential effects upon historic properties are 
foreseeable and likely to be minimal or not adverse and where exemption 
of the undertakings would be consistent with the purposes of the NHPA. 
The exemption includes several safeguards to limit the covered 
undertakings' effects to those that are minimal or not adverse, 
including: the requirements that covered activities include only those 
informed by Indigenous Knowledge of the NHO and related to the 
traditional cultural practices of Native Hawaiians; a requirement that 
the NHO attest to its involvement in the undertaking and its 
relationship to the property, and the undertaking's relationship to 
Native Hawaiian cultural practice; a carefully prescribed list of 
covered activities, each tied to Indigenous Knowledge of the NHO and 
traditional cultural practice of Native Hawaiians; and careful limits 
on the types of materials, construction techniques, and activities of 
the covered activities.
    The exemption is consistent with the purposes of the NHPA. Among 
other things, the NHPA establishes as the policy of the government to 
``provide leadership in the preservation of the historic property of 
the United States and . . . in the administration of the national 
preservation program'', to ``administer federally owned, administered, 
or controlled historic property in the spirit of stewardship for the 
inspiration and benefit of present and future generations'', and to 
``contribute to the preservation of nonfederally owned historic 
property in a spirit of stewardship for the inspiration and benefit of 
present and future generations.'' 54 U.S.C. 30101(2), (3), (4).
    The exemption aligns with the requirements of the NHPA reflecting 
an effort to promote historic preservation by enabling types of 
restoration and rehabilitation projects that are essentially 
preservation activities. This effort also aligns with ACHP's work over 
the course of three decades to expand the participation of NHOs in the 
historic preservation review process under Section 106 and its 
implementing regulations. In 1992, Congress amended the NHPA to clarify 
that properties of religious and cultural importance to NHOs may be 
eligible for listing in the National Register of Historic Places and 
that Federal agencies, in carrying out their Section 106 
responsibilities, must consult with any NHO that attaches religious and 
cultural significance to historic properties that may be affected by an 
undertaking. The ACHP incorporated the provisions in the Section 106 
regulations, 36 CFR part 800, ``Protection of Historic Properties.''
    The ACHP in 2008 adopted the ACHP Policy Statement on the ACHP's 
interaction with Native Hawaiian Organizations. This policy set forth 
the ACHP's commitments to ensure that NHOs are fully included and 
allowed the opportunity to effectively participate in the Federal 
historic preservation program. The policy also set forth the ACHP's 
consideration of Native Hawaiian values, such as a deep love and 
understanding of the land and a respect for the powerful forces of 
nature, and its recognition of the significant contribution Native 
Hawaiians make towards the enrichment of this nation. In 2010, 
President Obama announced U.S. support for the United Nations 
Declaration on the Rights of Indigenous Peoples and in 2013 the ACHP 
became the first agency to formally adopt its intent with the ACHP Plan 
to Support the U.N. Declaration on the Rights of Indigenous Peoples 
(Declaration). The plan calls for the ACHP to incorporate the 
principles and aspirations of the Declaration into its work regarding 
Native Hawaiian historic preservation issues.
    In 2021, the ACHP published the guidance document entitled 
Traditional Knowledge and the Section 106 Process: Information for 
Federal Agencies and Other Participants to help inform Federal agencies 
of their obligation to incorporate traditional knowledge in the Section 
106 decision making and noting the ACHP's position that Native 
knowledge and expertise is essential to a full understanding of 
historic properties that must be considered in the Section 106 review 
process. In 2022, the White House Office of Science and Technology 
Policy and the Council on Environmental Quality issued government-wide 
Guidance for Federal Departments and Agencies on Indigenous Knowledge.
    To further elaborate on this guidance, and advance and encourage 
the use and integration of Indigenous Knowledge in the Section 106 
process, in 2024 the ACHP adopted the ACHP Policy Statement on 
Indigenous Knowledge and Historic Preservation. The policy includes 
principles that should be applied by Federal agencies, State and local 
governments, and nongovernmental institutions, including private 
contractors, to advance the integration of Indigenous Knowledge into 
historic preservation decision making. Principle 3 of that policy 
states:
    For purposes of Section 106, the term ``Indigenous Knowledge'' 
includes, but is not limited to, the experiences, insights, and 
knowledge held by Indian

[[Page 88793]]

Tribes and NHOs that can assist Federal agencies in identifying, 
evaluating, assessing, and resolving adverse effects to historic 
properties that may be of religious and cultural significance to them. 
While the NHPA directs Federal agencies to make the final decisions in 
the Section 106 review, the law also directs agencies to consult with 
Indian Tribes and NHOs in carrying out the review process. Deference 
can and should be provided to the expertise of designated 
representatives about Indigenous Knowledge that is provided to inform 
decision making in the Section 106 process. A reasonable and good faith 
effort includes the responsibility that Federal agencies, consistent 
with 36 CFR 800.2(c)(2)(ii)(A), consider Indigenous Knowledge in a 
successive and cumulative manner throughout the four-step Section 106 
process.
    Principle 4 of that policy states: ``Section 106 agreement 
documents and program alternatives that relate to or include the 
identification of, assessment of effects to, or resolution of adverse 
effects to historic properties of religious and cultural significance 
to an Indian Tribe or NHO should include language or stipulations that 
address the role of Indigenous Knowledge in informed decision making 
and how designated representatives would be involved in any ongoing 
reviews or consultation.''
    This exemption constitutes a Section 106 program alternative that 
is designed to advance the recognition of Indigenous Knowledge in 
informed decision making by Federal agencies and to advance the ACHP's 
application of these and other principles within the ACHP Policy 
Statement on Indigenous Knowledge and Historic Preservation and prior 
relevant ACHP documents and statements.
    The exemption is restricted to only specific activities undertaken 
with or by NHOs, and to those projects that benefit historic 
preservation and cultural perpetuation by reconstructing, interpreting, 
restoring, rehabilitating, and preserving historic properties 
significant to NHOs. Further, this exemption offers NHOs engaged with 
Federal agencies the ability to identify the appropriate paradigm, 
cultural methods, and practices in which proposed undertakings would be 
carried out in order to support the cultural perpetuation goals of NHOs 
as well as meeting the policy principles within the ACHP's Policy 
Statement on Indigenous Knowledge. Accordingly, the proposed exemption 
meets the final criterion for an exemption.

III. Summary of Consultation and Public Participation

    In accordance with 36 CFR 800.14(c)(2), public participation 
regarding exemptions must be arranged on a level appropriate to the 
subject and scope of the exemption. The exemption is not a nationwide 
action and would only have effect within the State of Hawai[revaps]i. 
The AHCP determined that consultation requirements of Executive Order 
13175 were not triggered for the development of this exemption as there 
are no Indian Tribes with a government-to-government relationship 
located within, nor have interests in Hawaii.
    In mid-April 2024, Chair Bronin met with representatives of NHOs 
while visiting several historic sites on Oahu with leaders from the 
State of Hawaii Office of Hawaiian Affairs, Historic Hawai[revaps]i 
Foundation, and the Department of the Interior (DOI) Office of Native 
Hawaiian Relations. Chair Bronin and former ACHP Member Reno Franklin 
further met with numerous Native Hawaiians on Maui, including the 
Cultural Monitor of Federal Emergency Management Agency (FEMA) recovery 
efforts in Lahaina. During these meetings, Chair Bronin and Member 
Franklin heard comments about improving the Section 106 process for 
certain undertakings involving one or more NHOs that propose or direct, 
or substantially lead, design, or manage such undertakings. The NHOs 
identified issues related to unnecessary delays and expenses associated 
with Federal historic preservation reviews of Native Hawaiian cultural 
practices, and potential interference by non-Indigenous authorities in 
Indigenous Knowledge-informed activities. In addition, there was 
concern that Section 106 reviews of any proposed reconstruction and 
restoration of traditional Native Hawaiian sites in and around Lahaina 
could delay or thwart the implementation of such undertakings.
    In mid-May, Chair Bronin announced her intent to draft an exemption 
at the ACHP Tribal and Indigenous Peoples Committee meeting with the 
stated support of Chairman Franklin and creation of a proposed working 
group consisting of Vice Chair Jordan Tannenbaum and representatives of 
the Department of Homeland Security (DHS), the Department of Defense 
(DOD), the DOI, the National Trust for Historic Preservation (NTHP), 
and the National Association of Tribal Historic Preservation Officers 
(NATHPO).
    After circulating a draft of the exemption to the above-referenced 
working group on May 16, 2024, Chair Bronin met with the NATHPO and 
NTHP. Based on these meetings and exchanges among the working group, 
Chair Bronin addressed comments and incorporated feedback into the 
draft. On May 22, the Office of Tribal and Indigenous Peoples 
distributed to the ACHP's NHO 106 contacts listserv a notice of intent 
to propose an exemption, including a link to the ACHP's web page 
explaining the proposal, notification of two NHO consultations and one 
public meeting on the proposal, and a notice that written comments 
would be taken until July 7. After Chair Bronin met with Hawai[revaps]i 
State Historic Preservation Officer Dawn Chang on May 28 to discuss the 
draft exemption, the draft of the exemption consolidating all 
preliminary input was posted on the ACHP website.
    The ACHP and Chair Bronin promoted the proposal and opportunities 
for public engagement and NHO consultation on social media, including 
LinkedIn, X, and Facebook. Chair Bronin further published an op-ed in 
Hawai[revaps]i's largest newspaper, the Honolulu Star-Advertiser 
(circulation 107,191), describing the proposed exemption, explaining 
its history and rationale, and inviting public comment with a link to 
the ACHP web page. This newspaper piece was promoted by Chair Bronin 
and the ACHP on the above-referenced social media platforms.
    On May 31, 2024, a second notice of the proposed exemption was 
distributed to the ACHP's NHO listserv, restating key information in 
the May 22 notice and pointing out that the final draft of the proposed 
NHO Exemption had been posted on the ACHP website. Chair Bronin further 
explained the proposed exemption while urging feedback and ACHP 
engagement in a webinar of the American Planning Association Division 
on Urban Design and Historic Preservation on May 22. More than 1,000 
people registered for this event. On June 12, Chair Bronin led a public 
engagement meeting about the proposed exemption with participating 
members including representatives of Federal agencies, the State of 
Hawai[revaps]i State Historic Preservation Division, and members of the 
general public. Chair Bronin addressed comments and questions from 
participants, including several representatives of the SHPO, Federal 
agencies, and cultural resources practitioners.
    The ACHP developed and executed a plan to consult with Native 
Hawaiian Organizations. The plan included the conduct of two NHO 
consultations organized by the ACHP and directly facilitated by Chair 
Bronin. On June 14,

[[Page 88794]]

Chair Bronin led a first NHO consultation meeting with a second meeting 
on June 27. At the first consultation meeting, representatives of NHOs 
were in attendance. At the second consultation meeting, representatives 
of NHOs were again in attendance.
    At both meetings, attendees expressed support for the intent and 
overall content of the exemption and raised specific suggestions about 
covered activities to include in the list (including, among others, 
fencing to protect cultural sites, climate change-related adaptation 
measures, and new construction of traditional structures such as hale 
and h[amacr]lau wa[revaps]a), urged that there be safeguards (such as 
public notice or reporting) on the exemption, and that the exemption 
provide for documentation that the NHO proponent meets the definition 
of an NHO (pursuant to NHPA and 36 CFR 800.16(s)(1)). In addition, 
attendees asked that undertakings known to have the potential to 
infringe on the Indigenous Knowledge-informed cultural practice by 
other NHOs not be included in the scope of the exemption and asked for 
clarification about the applicability of other State and Federal laws. 
Chair Bronin addressed comments and questions from the attendees, and 
those unable to attend had the opportunity to contact staff through a 
dedicated email address monitored by staff to guarantee a timely 
response.
    The first consultation period closed on July 7. Chair Bronin and 
ACHP staff reviewed the comments and questions from NHOs and the 
general public and made adjustments to create a second draft of the 
exemption.
    ACHP members discussed the public comments and preliminary version 
of the second draft at the ACHP Tribal and Indigenous Peoples Committee 
meeting on July 11 and at the ACHP Business Meeting on July 18. Members 
discussed a timeline for a second round of consultation on a second 
draft, and an updated draft was posted to the ACHP website.
    On August 15, Chair Bronin led a third NHO consultation meeting. 
Representatives of NHOs were in attendance.
    At this meeting, certain individuals expressed general support for 
the exemption, stating that it would simplify the process for 
restoration and preservation activities. Many participants shared that 
it would be helpful in Lahaina specifically, with others remarking it 
had broader utility. A few participants asked for more specific details 
about exactly which organizations could use this exemption, and flagged 
concern that agency contractors are also reflected on the DOI NHO list 
or otherwise may meet the criteria. Some participants expressed a 
concern that the exemption would allow actors who do not properly 
represent Native Hawaiian communities or lineal descendants in an area 
to take advantage of the exemption, while others noted that recent ACHP 
changes to the draft exemption may address these concerns. A few 
participants flagged a desire for public information about ongoing use 
of the exemption and public notice about the use of application of the 
exemption before it is applied, so that lineal descendants are aware of 
its use on properties of significance to their family and communities 
and can raise a dispute if needed. Some individuals requested 
additional outreach to consult on the proposed exemption. Chair Bronin 
again responded to comments and questions from the attendees and 
encouraged the submission of written comments.
    The second consultation period closed on August 26. Chair Bronin 
and ACHP staff reviewed the comments and made adjustments to create a 
third draft of the exemption to be considered by ACHP members. Members 
of the ACHP-Initiated Program Alternatives Forum Committee held a 
meeting on September 5 to discuss a preliminary third draft. Members 
provided additional feedback between that discussion and September 25.
    Chair Bronin and staff revised the proposed exemption extensively 
as a result of consultation. Below is a summary of how Chair Bronin and 
staff integrated suggestions or considered them in the revisions.
    Comments from members of the public, State and Federal agencies, 
and NHOs covered a range of topics, including: strengthening 
protections for historic and cultural properties not involved with a 
covered undertaking; requesting additional consultation and outreach; 
addressing several issues related to NHO connections to properties at 
issue and NHO capacity; refining the scope of covered activities and 
excluded activities; confirming Federal agency responsibilities; adding 
notice to the public, periodic reporting, and reviews; and several 
minor suggestions. In response to these comments, the ACHP revised the 
exemption to more clearly define the range of actions that can occur 
using the exemption and added additional detail to the conditions under 
which an undertaking may fall within the scope of this exemption.
    Several comments suggested strengthening the provisions in the 
exemption to clarify how historic and cultural properties not involved 
with a covered undertaking would be protected against adverse effects. 
In response, the ACHP revised the exemption to: require a statement by 
an NHO participating in the exemption that explains the NHO's 
connection to the property and its members' current or ancestors' prior 
relationship to the property, as well as a statement that the NHO knows 
of no other NHO's traditional cultural practice being infringed upon 
and that no other properties on or eligible for the National Register 
will be potentially demolished, removed, or modified in a manner that 
adversely affects character-defining features; indicate that the 
Federal agency remains responsible for identification and considering 
the effects of the covered activities on other surrounding sites; and 
explicitly exclude from the exemption undertakings known by the agency 
or NHO to be contrary to or limiting of another NHO's traditional 
cultural practice. Such provisions were added to other existing 
protections, including the explicit exclusion from the exemption the 
demolition or removal of properties listed or known to be eligible for 
the National Register.
    Several comments queried how NHOs identified by a Federal agency 
might be asked to demonstrate their connection to a particular historic 
property at issue. Revisions to the NHO attestation provisions in 
section II refine the types of connections that must be attested to, 
including statements about the property's ongoing or prior traditional 
cultural practices related to the property and about the prior 
connections (including activities, support, and relationships) between 
key individual decision-makers and members of the NHO and the Native 
Hawaiian community and individuals known to have ancestral connections 
to the property. In addition, as a threshold matter, it was noted that 
some NHOs may not have the capacity to directly manage a project, 
though they could nonetheless propose, direct, or authorize such a 
project. Thus, the provision in the exemption originally requiring both 
direct project management and proposal, direction, or authorization 
were combined to allow for a broader range of NHOs to participate in 
this exemption. This change was made in the first sentence of section 
III.
    Many comments addressed the list of covered activities in section 
III. The draft exemption was revised to include several Native Hawaiian 
terms and to identify more precisely certain activities, as well as 
revised to acknowledge the description of

[[Page 88795]]

Indigenous Knowledge. A comment suggesting that undertakings with the 
potential to affect ``properties with religious and cultural 
significance to NHOs'' was an overly broad category of actions to 
include in the proposed exemption, and this comment resulted in the 
deletion of that provision given that other activities in the section 
were described in greater detail. Commenters suggested that the 
provision on new construction be narrowed, and specific buildings and 
structures identified (or excluded); that provision was modified to 
include hale, h[amacr]lau wa[revaps]a, and boundary structures in 
response to specific suggestions. Several NHOs and a State agency 
suggested that minor adaptations to the covered activities to respond 
to climate change, pollution, and invasive species be expressly 
allowed. A provision on this was included. Language on natural habitat 
conservation practices, fishing, and aquaculture was also added, 
reflecting the agency's stated commitment to advancing the fact that 
natural resources are cultural resources.
    Commenters had questions and suggestions about activities not to be 
covered by the exemption. In response, the ACHP clarified that Federal 
agency decisions regarding land access, undertakings known to be 
contrary to or limiting of NHO or Native Hawaiian cultural practices, 
undertakings outside the State of Hawai[revaps]i, undertakings 
conducted during emergency situations, and National Historic Landmarks 
were not covered by the exemption.
    Commenters wanted clearer language confirming Federal agency 
responsibilities for Section 106 compliance. New language in section II 
clarifies that the exemption may only be applied after a Federal agency 
identifies an NHO for participation in an undertaking, and only after 
the Federal agency initiates any necessary consultation. A new section 
V confirms that Federal agencies remain responsible for Section 106 
compliance and for considering the effects of undertakings on historic 
properties other than those directly addressed by covered activities. 
It also provides clarity regarding dispute resolution if a Federal 
agency learns of an unexpected conflict after it decides to use the 
exemption.
    Commenters from the Federal Government and NHOs suggested public 
notice, periodic reporting, and reviews to assess the effectiveness of 
the exemption. To address these comments, the ACHP added a 
recommendation for public notice to the State of Hawai[revaps]i or a 
newspaper of statewide circulation in section II. In addition, the ACHP 
added section X, which includes annual reporting by Federal agencies 
that use the exemption and biannual reporting for a subsequent period. 
It also requires the ACHP to schedule a meeting with Federal agencies 
that used the exemption, representatives of the State Historic 
Preservation Office, NHOs, Federal preservation officers, and others.
    During the second round of consultation, comments recommended that 
the ACHP consider additional consultation with Native Hawaiian 
Organizations to address difficulty of attending consultations during 
working hours and to raise awareness about the proposed exemption and 
encourage questions and discussions about it. The ACHP did not foresee 
additional substantive concerns would be raised during additional 
consultation sessions that had not been responded to during the course 
of consultation.
    Public comments also included a range of typographical and 
similarly minor suggestions, such as including a reference to Chapter 
6(E) of the Hawaii Revised Statutes in section VI. The ACHP largely 
incorporated these suggestions. In addition, commenters suggested the 
inclusion of definitions from the Secretary of the Interior Standards 
for the Treatment of Historic Properties, and section XI now includes 
these. Finally, it was suggested that a reference to the provision in 
the policy statement promoting consultation with and deference for 
descendant communities in the ACHP Policy Statement on Burial Sites, 
Human Remains, and Funerary Objects be included; such a reference was 
added.
    The ACHP declined to include several suggestions. Several NHOs 
suggested that the provision on new buildings and structures be 
expanded to include various support facilities, such as offices and 
housing. The ACHP declined to expand the provision on new buildings and 
structures in this manner, because the potential adverse effects of 
these buildings and structures could not be readily ascertained, and 
similarly declined to include a suggestion by a Federal agency to add 
wildland fire management. At least two comments requested there be an 
appeals process to the ACHP of agency determinations. The ACHP declined 
to include an appeals process into this exemption. The exemption, as a 
type of program alternative, removes the requirement for Section 106 
review for specified undertakings; therefore, it is not the appropriate 
administrative vehicle to provide for a dispute resolution process. 
Each Federal agency should consult meaningfully with NHOs in proposing 
and developing undertakings that may be subject to this exemption. In 
doing so, each agency should utilize, and update as needed, its own NHO 
consultation policy and procedures. Should conflicts arise in 
determining whether use of the exemption is appropriate, the agency 
should work to resolve that conflict in accordance with its 
consultation policy and procedures prior to utilizing the exemption. 
The ACHP also declined to include reference to blood quantum in the 
definition of Native Hawaiian, instead retaining the definition of 
Native Hawaiian in the NHPA. And finally, the ACHP declined to include 
reference to NAGPRA, as requested by one commentator, to avoid 
conflating statutory regimes.
    A comment also requested a definite end date for the exemption. The 
ACHP declined to include an end date, noting that according to section 
VII of the exemption, the ACHP membership may terminate the exemption 
at any time. Another commenter suggested that the definition for NHO 
should refer specifically to, and allow NHOs listed on, the DOI list. 
Because NHOs and others requested that the DOI list not be referenced 
or used to qualify organizations for use of this exemption, the ACHP 
decided to maintain the definition of NHO as in the NHPA regulations 
and to add additional requests for the NHO in section II of the 
exemption, on attestation.

IV. Text of Exemption

    The full text of the approved exemption is reproduced below:

Exemption for Indigenous-Knowledge Informed Activities by Native 
Hawaiian Organizations

Section I. Exemption From Section 106
    Except as noted in Section IV, all federal agencies are exempt from 
the Section 106 requirements of taking into account the effects of 
undertakings identified in Section III.
Section II. Applicability and Initiation of Exemption
    a. Applicability.
    This exemption applies only to undertakings identified in Section 
III that take place in the state of Hawai[revaps]i. This exemption 
applies to undertakings where, prior to [date of adoption], the 
relevant federal agency has not yet made a final decision about 
carrying out, licensing, or assisting the undertaking, as applicable.
    b. Prior Decision to Identify an NHO.
    The exemption is not intended to guide the federal agency in 
actually identifying a Native Hawaiian

[[Page 88796]]

Organization (NHO) for participation in a covered undertaking. It is 
anticipated that the federal agency will have already made this 
identification, pursuant to its own processes consistent with 36 CFR 
800.2, and only after that identification will consider whether to use 
this exemption. Such a process may include the federal agency 
initiation of consultation with the NHOs known to have an interest in 
the property or properties that are the subject of the proposed 
undertaking to determine whether the proposed undertaking will be 
contrary to or limiting of the Indigenous Knowledge-informed 
traditional cultural practice of an NHO. The federal agency shall not 
proceed with the use of this exemption if it determines that such a 
conflict is likely to occur.
    c. Submission of Formal Statement by an NHO.
    After the federal agency identifies an NHO that will be proposing 
or directing, or substantially leading, designing, or managing the 
relevant undertaking, but before a federal agency may use this 
exemption, the federal agency must request and receive from the 
identified NHO a formal statement detailing how such activities meet 
the terms of this exemption. Such a formal statement must include, 
subject to Section IX of this exemption:
    i. An attestation that the entity meets the definition of an NHO in 
the NHPA, including expertise in aspects of historic preservation that 
are significant to Native Hawaiians, which the federal agency should 
consider in light of the ACHP Policy Statement on Indigenous Knowledge 
and Historic Preservation;
    ii. A description of the NHO's proposal, direction, leadership, 
design, or management vis-[agrave]-vis the covered activities;
    iii. A description of the extent to which the covered activities 
are informed by the Indigenous Knowledge of the NHO;
    iv. A statement identifying the property upon which the covered 
activities are proposed to occur as a property of religious and 
cultural significance to the NHO and explaining the NHO's ongoing or 
prior traditional cultural practices related to the property;
    v. An explanation of current or prior connections (including 
activities, support, and relationships), if any, between (i) key 
individual decision-makers and members of the NHO and (ii) the Native 
Hawaiian community and individuals known to have ancestral connections 
to the property;
    vi. A statement indicating that, to the best of the knowledge of 
the NHO and its authorized representative (i) no other NHO has asserted 
or would likely assert that the covered activities are or would be 
contrary to or limiting of the Indigenous Knowledge-informed 
traditional cultural practice of another NHO and (ii) the activities 
will not lead to demolition or removal of properties listed or known to 
be eligible for listing on the National Register of Historic Places, 
unless the demolition or removal decision was previously completed 
during a review pursuant to Section 106;
    vii. A statement identifying the individual (such as a chair, 
executive director, president, or other person) who is authorized to 
represent and submit on behalf of the NHO; and
    viii. A signature or other attribution by the above-mentioned 
authorized representative.
    As a federal agency may identify more than one NHO that will 
propose or direct, or substantially lead, design, or manage the covered 
activities, this statement must be submitted by each such NHO.
    d. Federal Agency Review and Documentation.
    The federal preservation officer of the federal agency, or another 
agency staff member with experience in historic preservation or Native 
Hawaiian issues, shall review the formal statement from the NHO and 
advise the lead agency official on the agency decision as to whether to 
proceed with the use of this exemption. The lead agency official shall 
document the agency decision to apply the exemption to an undertaking 
and shall maintain the formal statement as part of the administrative 
record.
    e. Federal Agency Notice.
    The federal agency is encouraged to submit notice of its decision 
and invite public comment for a thirty-day period, to (1) the State of 
Hawaii Office of Planning and Sustainable Development Environmental 
Review Program for publication to ``Environmental Notice''; (2) a 
newspaper of statewide circulation; or (3) any publication with similar 
purpose or scope if the aforementioned publications cease to exist. 
Such submission should include the name of the NHO proposing, 
directing, or substantially leading, designing, or managing the 
undertaking, a reasonable description of the proposed undertaking(s), a 
description of the property sufficient for identification purposes, and 
a mechanism for contacting the federal agency.
    f. Federal Agency Discretion.
    Nothing in this exemption shall be interpreted to require a federal 
agency to permit, license, fund, or provide other assistance to any 
covered activities.
Section III. Covered Activities
    This exemption applies to the following categories of undertakings 
when they are (1) proposed or directed by an NHO, or substantially led, 
designed, or managed by an NHO, (2) informed by Indigenous Knowledge of 
that NHO, (3) related to traditional cultural practices of Native 
Hawaiians, and (4) preceded by the submission of the statement 
described in Section II by the NHO to the relevant federal agency:
    a. Conduct of landscaping practices or activities, including but 
not limited to arboreal practices, invasive species removal, and other 
landscape maintenance, reestablishment, or facilitation.
    b. Conduct of agricultural or aquacultural practices or activities, 
including but not limited to planting and crop rotation, harvesting, 
native species propagation, soil management, and fishing.
    c. Conduct of species conservation and habitat conservation and 
management activities that are necessary to perpetuate traditional 
Native Hawaiian cultural practices.
    d. Rehabilitation, preservation, restoration, or reconstruction of 
any the following:
    i. Water features and systems, including but not limited to 
fishponds (loko i[revaps]a) and other traditional aquaculture.
    ii. Lo[revaps]i kalo and agricultural terraces.
    iii. Historic pathways using natural materials, including gravel 
and other rock, sand, mulch, and wood.
    iv. Sacred and traditional sites and objects including but not 
limited to heiau, burial sites, shrines, ahu, and similar sites and 
objects.
    v. Traditional Native Hawaiian buildings and structures built and 
designed primarily by Native Hawaiians, and using traditional 
techniques and primarily natural materials.
    e. New construction, using traditional Native Hawaiian techniques 
and primarily natural materials, of the following, to the extent such 
new construction is for the express purpose of maintaining or 
reestablishing traditional cultural or religious practices informed by 
Indigenous Knowledge:
    i. Hale.
    ii. H[amacr]lau wa[revaps]a.
    iii. Fencing, walls, natural buffer zones, flood mitigation, and 
other boundary techniques to protect religious and traditional sites or 
burial sites, within the NHO-defined boundary area of the property of 
religious and cultural significance to the NHO.
    f. Minor adaptations to the elevation and dimension of buildings, 
structures,

[[Page 88797]]

and sites recognized by the NHO as a property of religious and cultural 
significance to it; minor relocations of any buildings, structures, and 
sites within the NHO-defined boundary area of the property of religious 
and cultural significance to the NHO; or minor adaptations to any of 
the landscaping or agricultural practices and activities, related to 
any of the covered activities enumerated in Section III, subsections a 
through e, where such adaptations are necessary to mitigate the impact 
of sea level rise, increased precipitation, erosion, wildfire, 
pollution, and invasive species, and notwithstanding any requirements 
as to location contained in the definitions of rehabilitation, 
preservation, restoration, or reconstruction.
    g. Installation of interpretive signage related to any of the 
covered activities enumerated in Section III, subsections a through f.
    h. The lease, provision of an easement, or other limited transfer 
of property rights in federal property to a NHO, or the grant of a 
nonpossessory interest in real property to a NHO, for use of the 
property solely to carry out any of the covered activities enumerated 
in Section III, subsections a through g or for education, outreach, and 
planning related to the covered activities.
    While the preceding categories of action have been identified as 
appropriate activities for this exemption, nothing in this section 
should be construed as to suggest that practices not herein contained 
are not in line with traditional practices informed by Indigenous 
Knowledge, but rather that the preceding categories of action are 
expressly eligible for this particular exemption.
Section IV. Activities Not Covered and Exceptions
    This exemption shall not cover any activities not identified in 
Section III, nor activities involving:
    a. Demolition, removal, or modifications that adversely affect 
character-defining features of properties listed or known to be 
eligible for listing on the National Register of Historic Places, 
unless the demolition, removal, or modification decision was previously 
completed during a review pursuant to Section 106.
    b. The construction of new buildings or structures not enumerated 
in Section III.e.
    c. The treatment or disposition of burial sites, human remains, and 
funerary objects in a manner contrary to the ACHP Policy Statement on 
Burial Sites, Human Remains, and Funerary Objects, including but not 
limited to the provisions in that policy statement requiring 
consultation with and deference for descendant communities.
    d. Components of an undertaking beyond those listed in Section III, 
meaning that a federal agency may follow the terms of this exemption 
for a covered activity that is a component of a larger undertaking, but 
must follow other applicable Section 106 procedures or agreements for 
any other components of such larger undertaking.
    e. Federal agency decisions to provide or retract permission to 
access agency owned or controlled land, except as outlined in Section 
III.h.
    f. Undertakings known by a federal agency or the relevant NHO to be 
contrary to or limiting of the Indigenous Knowledge-informed 
traditional cultural practice of one or more other NHO, or Native 
Hawaiian traditional cultural practice more generally, which cannot be 
resolved through consultation and dispute resolution processes 
referenced in Section V of this exemption.
    g. Undertakings conducted during emergency situations and subject 
to 36 CFR 800.12.
    h. Undertakings that may affect any site, object, building, or 
structure individually designated as National Historic Landmarks or 
designated as a contributing property to a National Historic Landmark 
district.
Section V. Federal Agency Responsibilities
    The federal agency will remain responsible for Section 106 
compliance with regard to any activities not covered by this exemption, 
including appropriate identification, scoping, evaluation, and 
consultation activities, among others.
    Each federal agency remains responsible for considering the effects 
of undertakings on historic properties other than those directly 
addressed by the activities covered by this exemption (such as historic 
properties adjacent to, on, or intermingled with the property upon 
which the covered properties are proposed to occur or archaeological 
sites that may lie within undisturbed areas) in accordance with subpart 
B of the Section 106 regulations or according to an applicable program 
alternative executed pursuant to 36 CFR 800.14.
    This exemption is anticipated to be utilized in good faith by 
agencies and NHOs without knowledge of potential conflicts with or 
potential adverse effects on other historic properties (including 
traditional cultural properties) listed on or eligible for the National 
Register, the Indigenous-Knowledge informed traditional cultural 
practice of one or more NHOs, or Native Hawaiian traditional cultural 
practice more generally, and as noted in Sections IV(a) and IV(f) of 
this exemption, any such knowledge would bar the use of this exemption.
    If a federal agency learns of an unexpected conflict or dispute 
after it decides to use this exemption, the federal agency will make a 
reasonable and good faith effort to resolve the conflict or dispute in 
accordance with its consultation policies and procedures (including its 
NHO consultation policies and procedures) or in accordance with 
procedures specifically adopted in relation to this exemption. Federal 
agencies are encouraged to develop and utilize procedures that are 
respectful of NHOs' rights to maintain, control, protect and develop 
their traditional cultural heritage, Indigenous Knowledge, intellectual 
property, traditional cultural expressions, sciences, and technologies, 
and that reflect the principles contained in the 2013 ACHP guidance, 
``Section 106 and the U.N. Declaration on the Rights of Indigenous 
Peoples: General Information and Guidance.''
Section VI. Existing Agreements, Property Rights, and State and Local 
Reviews
    This exemption does not amend, invalidate, or otherwise modify 
Section 106 agreements in existence at the time this exemption goes 
into effect, provided, however, that federal agencies are strongly 
encouraged to use the applicable amendment provisions of Section 106 
Memoranda of Agreement, Programmatic Agreements, or agreements executed 
with NHOs in accordance with 36 CFR 800(c)(2)(ii)(E) executed prior to 
[date of adoption] for undertakings that would otherwise be covered by 
this exemption, to consider making such agreements consistent with this 
exemption. This exemption does not modify or supersede existing 
property rights, including access rights. This exemption does not 
modify, preempt, or replace any other federal laws, or any applicable 
state or local laws or regulations, including but not limited to Hawaii 
Revised Statutes, Title 1, Chapter 6E, Historic Preservation.
Section VII. Termination
    The ACHP may terminate this exemption in accordance with 36 CFR 
800.14(c)(7) if it determines that the purposes of Section 106 are not 
adequately met.
Section VIII. Amendments
    This exemption may be amended by the ACHP membership. Such

[[Page 88798]]

amendments must be consistent with the criteria at 36 CFR 800.14(c)(1) 
and preceded by consultation appropriate to the scope of the 
amendments.
Section IX. Confidential Information
    Nothing in the terms of this exemption shall be construed to 
require the disclosure of confidential information or sensitive 
information, or the publication of Indigenous Knowledge. Federal 
agencies shall follow the guidance contained in the ACHP 2016 
Frequently Asked Questions on Protecting Sensitive Information about 
Historic Properties Under Section 304 of the National Historic 
Preservation Act, as applicable, and shall comply with applicable laws 
regarding the protection and dissemination of records.
Section X. Reports and Evaluations
    For five years after the date of the adoption of this exemption, 
the federal agencies that use this exemption will provide a report to 
the ACHP for the previous reporting year, ending September 30 annually, 
then every two years for six additional years. Each agency's report 
will provide a brief summary of the locations and nature of covered 
activities, any significant issues that arose while implementing the 
exemption, the manner in which such issues were addressed, and 
suggestions to avoid such issues in the future. Federal agencies are 
invited to include an assessment of the overall effectiveness of the 
exemption in meeting its intent in this report. Reports are due on or 
before December 31 of each year, starting December 31, 2025 annually 
through December 31, 2029, and then biannually on or before December 
31, 2031 through December 31, 2035.
    Within ninety days of each report due date, the ACHP will schedule 
a meeting with the federal agencies that used the exemption during the 
relevant reporting year or biennium, as applicable, and invite 
representatives of the State of Hawaii Historic Preservation Division, 
NHOs, federal preservation officers, and others it deems appropriate, 
to discuss implementation of the exemption. The meetings shall provide 
an opportunity for attendees to provide their views on the overall 
effectiveness of the exemption in meeting its intent and may inform 
decisions such as those regarding amendments to the exemption. The 
meetings may take place in-person, by phone, virtually using electronic 
meeting platforms, or any combination of such means.
Section XI. Definitions and Descriptions
    For purposes of this Exemption, the following definitions apply:
    a. Agency: As provided by 5 U.S.C. 551, including state, local, or 
tribal government officials who have been delegated legal 
responsibility for compliance with Section 106 in accordance with 
federal law.
    b. Effect: As provided in 36 CFR 800.5(a)(1) and 800.16(i), means a 
direct, indirect, reasonably foreseeable, or cumulative alteration to 
the characteristics of a historic property qualifying it for inclusion 
in or eligibility for the National Register of Historic Places.
    c. Historic property: As provided in 36 CFR 800.16(l), any 
prehistoric or historic district, site, building, structure, or object 
included in, or eligible for inclusion in, the National Register of 
Historic Places maintained by the Secretary of the Interior. It 
includes artifacts, records, and remains that are related to and 
located within such properties, and it includes properties of religious 
and cultural significance to an Indian Tribe or NHO that meet the 
National Register of Historic Places criteria.
    d. Native Hawaiian: As provided in 36 CFR 800(16)(s)(2), any 
individual who is a descendant of the aboriginal people who, prior to 
1778, occupied and exercised sovereignty in the area that now 
constitutes the state of Hawaii.
    e. Native Hawaiian Organization (NHO): As provided in 36 CFR 
800(16)(s)(1), any organization which serves and represents the 
interests of Native Hawaiians; has as a primary and stated purpose the 
provision of services to Native Hawaiians; and has demonstrated 
expertise in aspects of historic preservation that are significant to 
Native Hawaiians.
    f. Undertaking: As provided in 36 CFR 800(16)(y), a project, 
activity, or program funded in whole or in part under the direct or 
indirect jurisdiction of a Federal agency, including those carried out 
by or on behalf of a federal agency; those carried out with federal 
financial assistance; and those requiring a Federal permit, license or 
approval.
    This exemption uses the definitions for the following words found 
in 36 CFR 68.2, and for convenience these definitions are provided 
here:
    g. Preservation: The act or process of applying measures necessary 
to sustain the existing form, integrity and materials of an historic 
property. Work, including preliminary measures to protect and stabilize 
the property, generally focuses upon the ongoing maintenance and repair 
of historic materials and features rather than extensive replacement 
and new construction.
    h. Rehabilitation: The act or process of making possible an 
efficient compatible use for a property through repair, alterations and 
additions while preserving those portions or features that convey its 
historical, cultural or architectural values.
    i. Restoration: The act or process of accurately depicting the 
form, features and character of a property as it appeared at a 
particular period of time by means of the removal of features from 
other periods in its history and reconstruction of missing features 
from the restoration period. The limited and sensitive upgrading of 
mechanical, electrical and plumbing systems and other code-required 
work to make properties functional is appropriate within a restoration 
project.
    j. Reconstruction: The act or process of depicting, by means of new 
construction, the form, features and detailing of a non-surviving site, 
landscape, building, structure or object for the purpose of replicating 
its appearance at a specific period of time and in its historic 
location.
    Native Hawaiian terms in this exemption, including ahu, hale, 
h[amacr]lau wa[revaps]a, heiau, loko i[revaps]a, and lo[revaps]i kalo, 
shall be interpreted in a manner consistent with accepted understanding 
of these terms by Native Hawaiians, as informed by any NHO using this 
exemption.
    A description of Indigenous Knowledge to be used in guiding 
application of this exemption is set forth in the ACHP Policy Statement 
on Indigenous Knowledge and Historic Preservation.

(END OF DOCUMENT)

(Authority: 36 CFR 800.14(c))

    Dated: November 4, 2024.
Javier Marqu[eacute]s,
General Counsel.
[FR Doc. 2024-25984 Filed 11-7-24; 8:45 am]
BILLING CODE 4310-K6-P