Proposed Rule Changes for the National Register of Historic Places

Proposed Rule Changes for the National Register of Historic Places

On March 1, 2019, the National Park Service published in the Federal Register several proposed rule changes to the existing regulations that govern the National Register of Historic Places.

The National Park Service is seeking comment on these proposed rule changes.  Comments on the proposed rule must be received by 11:59 p.m. EST on April 30, 2019.

According to the Federal Register:

The National Park Service proposes to revise regulations governing the listing of properties in the National Register of Historic Places. The proposed changes would implement the 2016 Amendments to the National Historic Preservation Act, extend the timeline for the Keeper to respond to appeals, and ensure that if the owners of a majority of the land area in a proposed historic district object to listing, the proposed district will not be listed over their objection. The rule would also make several minor, non-substantive changes to existing regulations.

These proposed rules cover three broad areas:

1. property owner involvement in the National Register process,
2. nominations involving federal properties, and
3. the nomination appeals process

Proposed rule changes affecting owner involvement in the National Register process include:

1. The proposed rule would revise 36 CFR 60.6 and 10 to provide that a property shall not be listed in the National Register if objections are received from either (i) a majority of the land owners, as existing regulations provide; or (ii) owners of a majority of the land area of the property.

NOTE: Paragraph (g) of 36 CFR Part 60.6 currently states, in part, “Each owner of private property in a district has one vote regardless of how many properties or what part of one property that party owns and regardless of whether the property contributes to the significance of the district.”

2. The NPS seeks comment on whether it should remove the requirement that objecting property owners submit notarized statements certifying that they are the sole or partial owner of the property in order to submit an objection.

3. The proposed rule would also revise 36 CFR 60.6(g) to clarify that if the SHPO receives information that calls into question the accuracy of the owner or objector count, it is the SHPO’s duty to exercise due diligence to ensure the accuracy of the owner and objector count prior to submitting a nomination to the Keeper.

Proposed rule changes affecting the designation of federally owned properties include:

1. The proposed rule would revise the regulations governing the process for nominations by SHPOs in 36 CFR 60.6, nominations directly by Federal agencies in 36 CFR 60.9, and concurrent State and Federal nominations in 36 CFR 60.10, all to be consistent with 54 U.S.C. 302104(c).

2. The proposed rule would remove regulatory provisions that are inconsistent with the establishment by Congress of an exclusive process for the nomination of properties directly by Federal agencies.

3. The rule would remove paragraph (y) in section 60.6 that provides an alternative process for the FPO to forward nominations of federal property to the Keeper that were originally submitted by a SHPO.

4. The rule would remove a provision in paragraph (h) of section 60.9 that provides for the automatic listing of nominated Federal property within 45 days of receipt by the Keeper unless the Keeper disapproves the nomination or an appeal is filed. The proposed rule would also revise the regulations governing the publication of notice in the Federal Register in 36 CFR 60.13 to be consistent with the notice requirements in 54 U.S.C. 302104(c).

5. The proposed rule would revise paragraphs (a) and (c) of 36 CFR 63.4 in response to the 2016 Amendments. The rule would revise paragraph (a) to clarify that the Keeper will not make eligibility determinations for properties if the Keeper returns the nomination to the Federal agency for technical or professional revision, or because of procedural requirements.

NOTE: Regarding item number five above, the Federal Register for the proposed rules states, “the NPS believes this change is required by the 2016 Amendments because nominations can only be accepted by the Keeper if all procedural requirements have been met, including that the nomination is technically and professionally correct and sufficient. If a nomination is not accepted by the Keeper, the Keeper cannot make an eligibility determination.”

6. The proposed rule would revise paragraph (c) to clarify that the Keeper may only determine the eligibility of properties for listing in the National Register after consultation with and a request from the appropriate SHPO and concerned Federal agency, if any.

NOTE: Paragraph (c) of 36 CFR 63.4 allows the Keeper to make eligibility determinations for properties that have not been nominated if necessary to assist in the protection of historic resources.

7. The proposed rule would clarify that the Keeper cannot hear an appeal of a Federal agency’s failure to nominate a property unless all of the conditions precedent listed in 54 U.S.C. 302104(c) are met, including a requirement that the FPO forwards the nomination to the Keeper. If all of the criteria are not satisfied, the nomination is not properly before the Secretary and therefore the Secretary does not have jurisdiction to hear an appeal under 54 U.S.C. 302104(d)(2).

Proposed rule changes affecting the appeals process include:

1. The proposed rule would extend the timeline for the Keeper to respond to the appellant and the applicable SHPO or FPO from 45 days to 60 days. The rule would also allow the Keeper to extend the initial 60-day period for an additional 30 days, upon the request of the appellant or the applicable SHPO or FPO.

Additional comment requested by NPS

1. Paragraph (i) of section 60.9 allows any person or organization to petition the Keeper during the nomination process to accept or reject the nomination of a property by a FPO. Similarly, paragraph (t) of section 60.6 allows any person or organization to petition the Keeper during the nomination process to accept or reject the nomination of a property by a SHPO. The NPS seeks comment on whether these provisions are redundant with the requirement in section 60.13 that the NPS publish notice in the Federal Register asking for public comment on the significance of properties nominated for listing in the National Register.

How to comment:

You may submit comments, identified by Regulation Identifier Number (RIN) 1024-AE49, by either of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Mail to: National Register of Historic Places, National Park Service, 1849 C Street NW, MS 7228, Washington, DC 20240.
• Instructions: Comments will not be accepted by fax, email, or in any way other than those specified above. All submissions received must include the words “National Park Service” or “NPS” and must include the docket number or RIN (1024-AE49) for this rulemaking. Comments received may be posted without change to http://www.regulations.gov, including any personal information provided.
• Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov and search for the RIN (1024-AE49).

Further information:

Joy Beasley, Acting Associate Director, Cultural Resources Partnerships and Science & Keeper of the National Register of Historic Places, NPS (WASO), (202) 354-6991, joy_beasley@nps.gov.

Federal Register posting for the proposed rules: https://www.federalregister.gov/documents/2019/03/01/2019-03658/national-register-of-historic-places

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State Historic Preservation Office
Michigan State Housing Development Authority
735 E. Michigan Ave | PO Box 30044
Lansing, MI 48909
www.Michigan.gov/SHPO