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1 March 2002
[Federal Register: March 1, 2002 (Volume 67, Number 41)]
[Notices]
[Page 9429-9431]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01mr02-26]
========================================================================
Notices
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains documents other than rules
or proposed rules that are applicable to the public. Notices of hearings
and investigations, committee meetings, agency decisions and rulings,
delegations of authority, filing of petitions and applications and agency
statements of organization and functions are examples of documents
appearing in this section.
========================================================================
[[Page 9429]]
ADVISORY COUNCIL ON HISTORIC PRESERVATION
Exemption Regarding Historic Preservation Review Process for
Projects Involving Historic Natural Gas Pipelines
AGENCY: Advisory Council on Historic Preservation.
ACTION: Notice of intent to issue exemption regarding historic natural
gas pipelines.
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SUMMARY: The Advisory Council on Historic Preservation has
preliminarily approved an exemption that would relieve Federal agencies
from the requirement of taking into account the effects of their
undertakings on historic natural gas pipelines. The public is invited
to comment on the exemption before it goes into effect. Unless the
Council withdraws its preliminary approval after considering such
comments, the exemption will go into effect on April 5, 2002.
DATES: Submit comments on or before March 22, 2002.
ADDRESSES: Address all comments concerning this exemption to Javier
Marques, Office of General Counsel, Advisory Council on Historic
Preservation, 1100 Pennsylvania Avenue, NW., Suite 809, Washington, DC
20004. Fax (202) 606-8672. You may submit electronic comments to:
achppreservation@aol.com.
FOR FURTHER INFORMATION CONTACT: Javier Marques, 202-606-8503.
SUPPLEMENTARY INFORMATION: Section 106 of the National Historic
Preservation Act, 16 U.S.C. 470f, requires Federal agencies to consider
the effects of their undertakings on historic properties and provide
the Advisory Council on Historic Preservation (``Council'') a
reasonable opportunity to comment with regard to such undertakings. The
Council 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'').
The National Historic Preservation Act (``Act'') authorizes the
Council, with the concurrence of the National Park Service, 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 detail the process for the approval of such exemptions. 36
CFR 800.14(c).
In accordance with the Section 106 regulations, the Council may
approve an exemption for an undertaking if it finds that: (1) The
potential effects of the undertaking upon historic properties are
foreseeable and likely to be minimal or not adverse; and (2) the
exemption is consistent with the purpose of the Act.
The Federal Energy Regulatory Commission (``Commission'') has
proposed an exemption regarding the effects of undertakings on historic
natural gas pipelines. The Council has preliminarily approved that
exemption, pending the results of the public comment opportunity
provided through this notice. The full text of the exemption can be
found at the end of this notice. Unless the Council decides (prior to
April 5, 2002, and based on the results of this final round of public
comments) to withdraw its preliminary approval, the exemption will go
into effect on April 5, 2002.
I. Background
On October 19, 2001, the Council published for public comment in
the Federal Register a Draft Program Comment Regarding Historic
Preservation Review Process for Projects Involving Historic Natural Gas
Pipelines which was intended to streamline the historic preservation
review process for projects involving natural gas pipelines (66 FR
53198). That draft Program Comment proposed an alternative way for the
Commission to address its responsibilities under Section 106 with
regard to effects on natural gas pipelines and related facilities when
authorizing projects under section 7 of the Natural Gas Act (NGA) by
either applicants pursuant to 18 CFR part 157, subpart A, or
certificate holders pursuant to 18 CFR part 157, Subpart F, and 18 CFR
part 284 of the regulations of the Commission.
The draft Program Comment was meant to apply only to those
undertakings affecting natural gas pipelines determined to be eligible
for the National Register of Historic Places (``National Register'') by
the applicant/certificate holder and the respective State Historic
Preservation Office (``SHPO''). When the applicant or certificate
holder implemented a level and type of documentation agreeable to the
applicant/certificate holder and the SHPO, and deposited that record in
an appropriate repository, the project could not then be found to have
an effect upon the characteristics that make the pipeline eligible for
inclusion in the National Register.
The Commission noted on its review of this Program Comment that it
``provide(d) guidance and a basic mechanism for section 106 compliance
that could make more complex and time consuming processes
unnecessary.'' Indeed, the Council developed the Program Comment to
respond directly to the delays in project review under the blanket
certificate procedures when there was an effect to a historic natural
gas pipeline. The Commission supported that objective, and the
Council's efforts to keep them involved throughout the initiative.
After the Council and the Commission staff had reviewed the public
comments on that proposal, the Commission proposed that the Council use
the Exempted Categories alternatives pursuant to 36 CFR 800.14(c) to
streamline the historic preservation review process for historic
natural gas pipelines.
Based on a number of factors discussed below, the Council believes
that using the Exempted Categories program alternative offers a more
focused, practical, predictable, and elegant way to address section 106
review for projects involving natural gas pipelines. In addition,
comments from the affected industry reflected a preference for such an
approach as opposed to the Program Comment alternative.
II. Exemption Concept
The exemption would release all Federal agencies from the Section
106 requirement of having to consider the effects of their undertakings
on historic natural gas pipelines. Historic natural gas pipelines are
defined as those natural gas pipelines that meet the criteria for
listing on the National Register of Historic Places.
[[Page 9430]]
A public comment stated that the Act never intended pipelines to be
eligible for the National Register. The Council disagrees. The Act
specifically states that the National Register is composed of
``districts, sites, buildings, structures, and objects significant in
American history, architecture, archaeology, engineering and culture.''
16 U.S.C. 470a(a)(1)(a) (emphasis added). This statement does not
explicitly exclude pipelines from consideration, but rather, it
acknowledges that a variety of types of properties could be significant
to American engineering. As one of type of property which can be
eligible for inclusion in the National Register, a structure is defined
as one ``made up of interdependent and interrelated parts in a definite
pattern of organization [and] constructed by man it is often an
engineering project large in scale.'' 36 CFR 60.3(p). Again, such a
definition appears to be intentionally broad so as to embrace a variety
of different structures, which arguably include natural gas pipelines.
The exemption would apply unconditionally for all undertakings
except for those that entail the abandonment of a historic natural gas
pipeline. The sole condition for those cases would be that the historic
natural gas pipeline gets documented prior to abandonment. The
documentation requirements are enumerated in the exemption document, as
opposed to being subject to negotiations with SHPOs or others.
Public comments raised a concern that the earlier, proposed Program
Comment only applied to the Commission and did not bind other Federal
agencies whose lands the pipeline may cross. It was argued that such
other Federal agencies could insist on a different, and possibly
higher, process and documentation standard for pipelines crossing their
lands. The comments also mentioned that unless the approach to historic
natural gas pipelines was uniformly applicable to all Federal agencies,
the benefit of the approach would be negated if any Federal land
manager elected to impose a new or different standards. In response to
this comment, the exemption now applies to all Federal agencies. The
Council believes this makes sense since the approach is based on the
type of resource involved (i.e., natural gas pipelines), and such
resources are the same no matter what Federal agency is confronted with
an undertaking affecting them.
Some of the public comments also expressed a concern that disputes
over eligibility and documentation issues under the earlier, proposed
Program Comment would result in serious project delays. The Council
agreed that such disputes could be time consuming, and therefore
drafted the exemption in a way that will alleviate those concerns by:
(1) Limiting the documentation requirement to only one type of pipeline
activity (i.e., abandonment); (2) establishing a single, definitive
documentation standard for such abandonments; and (3) clarifying that
once a pipeline was documented, future undertakings would not have to
consider effects to that pipeline. Since the exemption unconditionally
applies to all activities other than abandonment, eligibility can only
become an issue for abandonments.
Finally, the exemption would not apply on tribal land. Such
application would require substantial and lengthy tribal consultation.
36 CFR 800.14(c)(4) and 800.14(f). It is our understanding from
discussions with the Commission staff that, due to tribal sovereignty
issues, pipeline projects through tribal lands are handled through
separate agreements with the tribes. Moreover, the Council believes
that such particularized consultation is not warranted since it is not
aware of any natural gas pipeline that would be of religious and
cultural significance to tribes, regardless of its location.
On a more general note, a public comment criticized the earlier,
proposed Program Comment by stating that it was not binding on the SHPO
and, therefore, could be disregarded. This is incorrect. The Council is
the only entity with the authority to enact regulations implementing
Section 106 (16 U.S.C. 470s) and to provide exemptions from compliance
with Section 106 (16 U.S.C. 470v). An exemption or program comment
approved by the Council defines the legal requirements of section 106
and, as such, cannot be disregarded by SHPOs.
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 Council believes that the proposed
exemption meets these conditions.
In considering this proposition, it is important to recognize that
neither the Commission nor any other Federal agency regulates all of
the activities which might affect historic natural gas pipelines.
Because physically deteriorated or obsolete facilities are specifically
excluded by regulation from section 7(c) of the NGA, pursuant to 18 CFR
part 2.55, most repair and maintenance of historic pipelines will not
need Commission authorization prior to implementation. As a result, the
integrity of an historic natural gas pipeline is likely to vary
considerably over its full extent. Although these maintenance
activities may result in the loss of some historic fabric, these
changes allow the continued safe operation of the historic property as
a pipeline and, as such, serve to protect the use of the property.
The Council also believes that evaluation of the integrity of the
pipeline as a historic property and the effect of any of these
undertakings must be considered within the context of the totality of
the historic natural gas pipeline, particularly when the historic
significance of natural gas pipelines lies in both their engineering
characteristics (Criterion C of the National Register) and their
relationship to events (Criterion A of the National Register). From
that perspective, for example, a 12 inch diameter tap inserted into a
1,000 mile pipeline is of minor consequences for the whole historic
property, especially when the property exhibits considerable redundance
and uniformity in form over its entire extent.
With abandonment, although a portion of the historic pipeline will
cease to function as such, it usually remains in place. Moreover, for
reasons of safety and because they are buried resources, historic
natural gas pipelines cannot be experienced by the public during their
productive life. Accordingly, we believe that potential effects of
abandonment can be adequately minimized through documentation of the
historic pipeline. This approach is also in keeping with the earlier,
draft Program Comment. Working with Commission staff, the Council has
established a standard for documenting historic natural gas pipelines
that would apply under the exemption whenever there is an abandonment.
As the comments on the Council's Program Comment indicate, setting a
standard is needed because it would largely eliminate the possibility
for disagreement between applicants or certificate holders, and SHPOs
regarding the appropriate level and type of documentation.
IV. Public Participation
In accordance with 36 CFR 800.14(c)(2), public participation must
[[Page 9431]]
be arranged on a level commensurate with the subject and scope of the
exemption. Since the proposed exemption was derived from, and is
consistent with, the approach taken in the earlier, proposed Program
Comment, the Council believes that the public participation requirement
has been met through the extensive comment period already provided for
that Program Comment. The Council only received a limited number of
comments on the draft Program Comment. Those comments were shared, and
discussed, with the Commission staff. As requested, that comment period
was extended until December 9, 2001. Nevertheless, such extension only
yielded one additional comment, for an overall total of 9 public
comments. Likewise, although the Council made a special effort to
notify SHPOs about the proposed Program Comment, comments from only
three States, Arizona, Iowa, and Wyoming, were received. One of those
comments was that the State had ``no comment'' on the proposal.
Moreover, through this notice the Council is submitting the draft
exemption for one last round of public comment.
Neither the Council nor the Commission have engaged in the
particularized consultation with Indian tribes and Native Hawaiian
organizations, pursuant to 36 CFR 800.14(c)(4), since such consultation
does not seem to be warranted. As stated above, the proposed exemption
would not apply on tribal lands. The Council also believes that the
proposed exemption will have no consequences for historic properties of
religious and cultural significance, regardless of location, to any
Indian tribe or Native Hawaiian organizations since it is limited to
effects on only historic natural gas pipelines.
V. Text of the Exemption
The full text of the proposed program comment is reproduced below.
Section 106 Exemption Regarding Effects to Historic Natural Gas
Pipelines
I. Exemption Regarding Effects to Historic Natural Gas Pipelines
Except as noted on Section II, all Federal agencies are exempt from
the Section 106 requirement of taking into account the effects of their
undertakings on historic natural gas pipelines.
II. Abandonment of Historic Natural Gas Pipelines
Abandonment of a historic natural gas pipelines, in part or in
whole, will qualify for the exemption under Section I, provided that
the Federal agency or its applicant has documented the historic natural
gas pipeline by:
(a) Completing a determination of eligibility for the pipeline as a
whole, which identifies contributing and non-contributing components of
the pipeline, using standard information required on a National
Register nomination form. The documentation must be prepared by an
individual meeting the Secretary of the Interior's Professional
Qualification Standards (48 FR 44738-9). The documentation must include
the following components:
(i) A brief history of construction of hte line with a bibliogrpahy
recording the primary and secondary sources that were used;
(ii) Documentation through as-built drawings, historical
photographs or, 35 mm photographs, as approriate, of representative
examples of significant features associated with the line;
(iii) A map of the historic property set at an appropriate scale;
and
(iv) An annotated bibliography of other primary and secondary
sources identified during research; and
(b) Placing the documentation in an appropriate repository,
accessible to the general public, in each State crossed by the
pipeline, and filing the documentation with the relevant State Historic
Preservation Officer(s).
When the abandonment involved only a section of the historic
natural gas pipeline, Federal agencies or application handling
subsequent abandonment of other sections of the historic natural gas
pipeline will not have to repeat the documentation requirements set
forth above.
III. Existing Agreements
This exemption is not intended to amend, invalidate or otherwise
modify Section 106 Programmatic Agreements (PAs) in existence at the
time this exemption goes into effect. Parties to such PAs may amend
them according to their terms.
IV. Tribal Lands
This exemption does not apply to those portions of undertakings
that take place on tribal lands.
V. Definitions
(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; those
requiring a Federal permit, license or approval; and those subject to
State or local regulation administered pursuant to a delegation or
approval by a Federal agency.
(c) Historic natural gas pipelines means means natural gas
pipelines, and their appurtenant facilities, that are listed, or
eligible for listing, on the National Register of Historic Places.
(d) Tribal lands means all lands within the exterior boundaries of
any Indian reservation and all dependent Indian communities.
Authority: 16 U.S.C. 470v; 36 CFR 800.14(c).
Dated: February 25, 2002.
John M. Fowler,
Executive Director.
[FR Doc. 02-4867 Filed 2-28-02; 8:45 am]
BILLING CODE 4310-10-M