Action Alert - NPS Seeks Comments on Proposed Changes to National Register of Historic Places

Supplementary Information

Background

The National Historic Preservation Act (NHPA), enacted in 1966, declared a national policy to preserve significant historic sites, districts, buildings, structures, and objects “for the inspiration and benefit of the people of the United States.” 54 U.S.C. 302101. It has been amended several times since 1966, with the most substantive amendments in 1980 and 1992.

The NHPA authorized the Secretary of the Interior (Secretary) to “expand and maintain a National Register of Historic Places composed of districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, engineering, and culture.” 54 U.S.C. 302101. This authority is delegated by the NHPA to the Director of the National Park Service (NPS) and has been further delegated to the Keeper of the National Register (Keeper). 54 U.S.C. 300316; 36 CFR 60.3(f). The National Register is the official list of the Nation's historic places worthy of preservation. As of November 26, 2018, a total of 94,364 properties (i.e., districts, buildings, structures, sites, and objects) were listed in the National Register. The Keeper processes an average of 1,619 National Register actions annually that are submitted by States, Tribes, and Federal agencies.

The NHPA directed the NPS to promulgate regulations for “nominating properties for inclusion on, and removal from, the National Register” and for “notifying the owner of a property, any appropriate local governments, and the general public, when the property is being considered for inclusion on the National Register. . .” 54 U.S.C. 302103(2).

The State Historic Preservation Officer (SHPO) for the state in which a property is located “is responsible for identifying and nominating eligible properties to the National Register” (36 CFR 60.6(a)), and for ascertaining whether the property owner of an individual property or a majority of private property owners within a proposed district object to listing a property in the National Register. 36 CFR 60.6(g). Each Federal agency is required by the NHPA to designate a qualified official to be the agency's Federal Preservation Officer (FPO). 54 U.S.C. 306104. FPOs are responsible for nominating properties under the jurisdiction or control of the Federal agency. Pursuant to the 1992 Amendments to the NHPA, Tribal Historic Preservation Officers (THPOs) can assume nomination responsibilities on tribal land, including nominating eligible properties for listing in the National Register.

Prior to submitting a nomination involving privately owned property to the Keeper, SHPOs are required to notify private property owners that a nomination of their property is being considered or, in the case of a historic district, that their property is within a district considered for nomination. Any private property owner who objects to a nomination is required to submit a notarized statement to the SHPO certifying that the party is the sole or partial owner of the private property and objects to the listing. 36 CFR 60.6(g). The objections are treated as votes against listing the property. NPS regulations state that—in the case of districts that are nominated—each owner of private property in that 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. 36 CFR 60.6(g). The SHPO is responsible for determining whether a majority of owners have objected, 36 CFR 60.6(g), though objections may also be submitted to the Keeper after a property has been nominated and prior to listing. 36 CFR 60.6(r). If a majority of owners object to listing, the property cannot be listed, but the Keeper is required to determine whether or not it is eligible for listing in the National Register. 54 U.S.C. 302105(b)-(c); 36 CFR 60.6(g) and (n).

The section of the NHPA that authorizes the Secretary to establish criteria for properties to be included in the National Register and to promulgate regulations requires “consultation with national historical and archeological associations.” 54 U.S.C. 302103. This applies to the promulgation of regulations regarding: Nominations of properties for inclusion in the National Register; removing properties from the National Register; considering appeals; making eligibility determinations; and owner notification. 54 U.S.C. 302103. After publication of the proposed rule, the NPS will consult with SHPOs, FPOs, the National Trust for Historic Preservation, and other national historical and archeological associations.

Proposed Rule

This rule proposes several changes to the regulations governing the listing of properties in the National Register of Historic Places. One group of changes would implement the 2016 Amendments to the NHPA. ⁽¹⁾ Another group of changes would 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 extend the timeline for the Keeper to respond to appeals of the failure of a nominating authority to nominate a property for inclusion in the National Register. Finally, the rule would make a number of minor, non-substantive changes.