# Billing Code 4310-70

**DEPARTMENT OF THE INTERIOR**

# **National Park Service**

**36 CFR Part 61**

**RIN 1024-AC79**

## Procedures for State, Tribal and Local Government Historic Preservation Programs

**AGENCY:** National Park Service

**ACTION:** Proposed Rule

**SUMMARY:** The National Park Service (NPS) proposes to establish the
requirements for an Indian Tribe to assume the duties as State Historic
Preservation Officer (SHPO) pursuant to §101(d)(2) of the National
Historic Preservation Act (NHPA). The 1992 amendments to the NHPA
include a provision that enables a Tribe to assume any or all of the
duties of a SHPO on tribal lands. The proposed rule establishes the
formal process by which a Tribe may secure the Secretary of the
Interior's (Secretary) approval to assume SHPO duties on tribal land.

**DATES:** The NPS will accept written comments through December 10,
2002. The NPS will hold public meetings on September 20, 2002, at 9:00
a.m. in Albuquerque, New Mexico; on September 18, 2002, at 9:00 a.m. in
Phoenix, Arizona; on September 16, 2002, 9:00 a.m. in Reno, Nevada; on
September 13, 2002, at 9:00 a.m. in Seattle, Washington; on October 4,
2002, at 10:00 a.m. in Oklahoma City, Oklahoma; on October 9, 2002, at
9:00 a.m. in Lac du Flambeau, Wisconsin; on October 22, 2002, at 9:00
a.m. in Washington, D.C.; on September 11, 2002, at 9:00 a.m. in Polson,
Montana; and on October 2, 2002 at 9:00 a.m. in Fort Yates, North
Dakota, to present the proposed rule and to receive oral comments.

**ADDRESSES:** Comments should be address to: Chief, Heritage
Preservation Services Division, National Center for Cultural Resources,
National Park Service, 1849 C Street, N.W., NC 330, Washington, DC
20240; Attention: H. Bryan Mitchell. You may hand carry your comments or
send them by overnight mail to 800 North Capitol Street, N.W., Suite
330, Washington, D. C. 20002. Fax: (202) 343-3921. Email:
Bryan_Mitchell@nps.gov. The public meetings noted above will be at the
Indian Pueblo Cultural Center, Inc. (Antelope Room) 2401 12^th^ Street,
NW, in Albuquerque, New Mexico; Intertribal Council of Arizona, El
Encanto Building, Suite 130, 2214 North Central Avenue, in Phoenix,
Arizona; University of Nevada at Reno, Continuing Education Bldg. --
Room 109, 1041 North Virginia Street, in Reno, Nevada; Daybreak Star
Indian Cultural Center (Lounge Room), Discovery Park, 34^th^ Avenue West
and West Government Way, in Seattle, Washington; Shepherd Mall, Suite
65, NW 23^rd^ Street and Villa, in Oklahoma City, Oklahoma; Lake of the
Torches Resort Hotel (3^rd^ Floor Conference Room), 510 Old Abe Road, in
Lac du Flambeau, Wisconsin; Department of the Interior (Room 7000-B)
1849 C Street, NW, in Washington, D.C.; KwaTaqNuk Resort Hotel (Charlo
Room), 303 U.S. Highway 93 East, in Polson, Montana; and Prairie Knights
Casino and Lodge (Prairie View Room), 7932 Highway 24, in Fort Yates,
North Dakota.

**FOR FURTHER INFORMATION CONTACT:** H. Bryan Mitchell, National Park
Service, 1849 C Street, N.W. (NC 330), Washington, DC 20240. Telephone:
(202) 343-9558. Fax: (202) 343-3921. Email: Bryan_Mitchell@nps.gov.

SUPPLEMENTARY INFORMATION:

## Background

The NPS has promulgated 36 CFR Part 61 pursuant to the NHPA (16 U.S.C.
470 [et]{.underline} [seq]{.underline}.) that implemented the national
historic preservation program as a partnership among Federal, State,
Tribal, and local governments, non-profit organizations, and private
individuals. The NHPA also created the mechanism for funding this
partnership, the Historic Preservation Fund. This partnership promotes
and carries out the preservation of irreplaceable historic and
archeological resources that provide the foundation of the Nation's
heritage. Through this partnership the vital legacy of cultural,
educational, aesthetic, inspirational, and economic benefits of our
historical patrimony will be maintained and enriched for future
generations of Americans. 36 CFR Part 61 provides the regulatory
framework for voluntary participation by State, Tribal, and local
governments in the national historic preservation program. The
Secretary, operating through the Director of the National Park Service
(Director), administers these programs

.

The specific objects of this proposed rule are §§ 61.8 and 61.9 of 36
CFR Part 61. These two sections, which the NPS reserved for future
development in the recent overall revision of Part 61 (published for
effect in the Federal Register on March 9, 1999), are specific to tribal
participation in the national historic preservation program. Where a
Tribe assumes responsibilities on tribal lands pursuant to this section
of the NHPA, the SHPO does not have responsibility for those functions,
except in those cases where a non-tribal land owner requests the State's
participation in addition to the Tribe's. Prior to the enactment of the
1992 amendments, the NHPA included no provision by which a Tribe could
formally assume these duties in the national program. Issuance of these
two sections will complete the revision of Part 61 in response to the
1992 amendments to the NHPA.

Federally recognized Tribes that exercise governmental jurisdiction over
tribal lands are eligible for this program. The NHPA defines tribal
lands as all lands within the exterior boundaries of any Indian
reservation and all dependent Indian communities

(16 U.S.C. 470w).

As of the date of publication of this proposed regulation, the Secretary
has already approved 31 Tribes to assume SHPO duties pursuant to
§101(d)(2) of the NHPA. In the absence of a regulation specifically
implementing that new section of the NHPA, the NPS has reviewed tribal
proposals to date in accordance with and in reliance upon the existing
statutory and regulatory requirements for SHPOs. The NPS has based this
review process on the broad requirements that ensure a certain level of
quality, consistency, and public participation in the delivery of the
national program. The current review process has demonstrated the need
for rules that establish a formal assumption process for Tribes and that
respond more specifically to those values and needs of Tribes that are
distinct from those of the States. Further, §101(d)(2) of the NHPA,
itself, specifically anticipates that the NPS will promulgate
regulations that are specific to tribal assumption of SHPO duties.

**Section by Section Analysis**

[§ 61.8 Tribal Programs.]{.underline}

Taken as a whole, the section includes the process by which a Tribe can
gain approval from the Secretary, acting through the Director, to assume
SHPO duties on tribal lands. This section affirms that a Tribe must meet
existing broad requirements for level of quality, consistency, and
public participation in order to be deemed fully capable of assuming
SHPO duties. However, an important purpose of this section is to
distinguish tribal participation in the national program from state
participation in the national program, where such distinctions are
appropriate and consistent with the purposes of the NHPA. The section:

• provides the necessary guidance for what a Tribe must include in a
proposal;

• establishes deadlines by which the NPS must respond to a tribal
proposal;

> • implements the provisions of §101(d)(1)(B) of the NHPA that allow
> for waivers and modifications of the requirements of the NHPA, in
> order to accommodate tribal values and the cultural setting of tribal
> heritage preservation goals and objectives;
>
> • provides a process by which a Tribe can request review by the
> Director of any decision to disapprove a tribal proposal or to deny a
> tribal request for a waiver or modification of requirements, or of any
> failure to act within certain deadlines; and
>
> • establishes the process for periodic review by the NPS of approved
> tribal programs, in accordance with §101(d)( 2) and §101(b)(2) of the
> NHPA.

[(a) What is the purpose of the section?]{.underline}

This paragraph makes clear that the procedures and requirements set out
in §61.8 apply only to tribal assumption of SHPO responsibilities in the
national historic preservation program. The procedures and requirements
of this rule do not apply to tribal historic preservation programs and
activities that are created and carried out solely pursuant to tribal
ordinances.

For example, if a Tribe assumes the responsibility for nominating
properties to the National Register of Historic Places, the Tribe must
follow the National Register's nomination procedures, and it must use
the National Register's evaluation criteria to assess the significance
of the property being nominated. On the other hand, if the Tribe
proposes to establish and maintain its own tribal register -- either
instead of or in addition to nominating properties to the National
Register -- the Tribe may establish whatever procedures and evaluation
criteria it feels best meet the Tribe's needs. If a Tribe chooses only
to establish and maintain a tribal register, then the responsibility for
nominating properties to the National Register remains with the SHPO.

In another example, if a Tribe assumes the SHPO's responsibility for
commenting on the possible effects of proposed Federal undertakings, the
Tribe must carry out that responsibility in accordance with the
regulations (36 CFR 800) of the Advisory Council on Historic
Preservation. The Tribe's authority within that arena is set out in that
regulation. On the other hand, if a Tribe adopts an ordinance requiring
tribal approval and a permit for activities on tribal land that may
affect historic or cultural resources, the terms of that ordinance are
set out by the Tribe to meet its own needs. The two processes are
separate and do not substitute for each other.

[(b)What policies govern tribal participation in the national historic
preservation program?]{.underline}

The statements of policy affirm that:

61. tribal assumption of SHPO duties is a governmental function and so
    is a part of the government-to-government relationship between the
    United States and Indian Tribes;

62. tribal participation will strengthen the national historic
    preservation program \[16 U.S.C. 470-1(2)\]; and

> \(3\) the program should encourage and facilitate tribal participation
> \[16 U.S.C. 470-1(d)(1)(A)\];

[(c) How will the NPS implement these policies in carrying out the
procedures and requirements for tribal assumption of SHPO
duties?]{.underline}

The NPS will administer this rule in a manner sufficiently flexible to
respond to the varying scopes of tribal programs and to tribal values
while remaining consistent with the intent and purposes of the NHPA.

[(d) What terms do I need to know?]{.underline}

The NHPA defines most of the terms used in this rule. Those definitions
are not repeated here. This paragraph defines one very important term
not defined elsewhere: "tribal traditional cultural authority." The
definition affirms two important ideas for the purposes of this program.
First, the only test for determining that someone is a tribal
traditional cultural authority is whether the Tribe recognizes that
person as such. Second, the NPS attributes the same professional
standing and credibility to a tribal traditional cultural authority as
he or she does to an individual who meets the Secretary of the
Interior's Professional Qualifications Standards. This equivalent
standing does not mean that a tribal traditional cultural authority is
necessarily qualified to assess the archeological, historical, or
architectural significance of a site. Likewise, a professionally
qualified archeologist, historian, or architectural historian is not
necessarily competent to assess the traditional cultural significance of
that same site. The NPS recognizes each of these individuals as
competent within a specific sphere of knowledge.

[(e) How does our Tribe seek approval to assume SHPO
functions?]{.underline}

This paragraph reiterates the NHPA's three fundamental procedural
requirements that a Tribe must meet when it proposes to assume SHPO
duties on tribal lands:

\(1\) submit an appropriate resolution from the Tribe's chief governing
authority;

> \(2\) duly designate a Tribal Historic Preservation Officer (THPO) who
> will be responsible for carrying out these duties; and
>
> \(3\) submit a Program Plan that describes how the Tribe will carry
> out the duties it proposes to assume.

[(f) What are the general requirements for our Tribe's Program
Plan?]{.underline}

This paragraph establishes the basic framework for a Program Plan. It
refers to the SHPO functions as they are set out in the NHPA and calls
on a Tribe to indicate in its Program Plan which functions the Tribe
will assume and which ones it will not assume. The paragraph also makes
clear that a Tribe must include in its Program Plan sufficient
descriptive information on the Tribe's current historic preservation
activities and on how the Tribe will carry out the functions it proposes
to assume, so that the NPS can determine whether the Tribe is, in the
words of the NHPA, "fully capable" of carrying out the functions it
proposes to assume.

The paragraph also indicates that a Tribe may, at its discretion,
include other materials in its Program Plan, such as a request for a
waiver or modification of requirements, a request for technical
assistance, and any other background information the Tribe wishes to
include.

[(g) What are the specific elements that must be in a Tribal Program
Plan?]{.underline}

This paragraph provides more detailed guidance on the descriptive
information a Tribe must provide in its Program Plan. The NPS bases the
required information directly on existing statutory and regulatory
requirements for SHPO duties. The Tribe must demonstrate its familiarity
with those requirements and describe how it will meet them, so that the
NPS can determine, pursuant to §101(d)(2)(D)(i) of the NHPA, whether the
Tribe is "fully capable of carrying out the functions specified in the
plan." However, the paragraph also modifies some of the requirements
imposed on States, in order to take into account tribal values and to
recognize that tribal programs may vary in scope from state programs.

The paragraph is divided into two parts. The first part concerns
information about the Tribe's overall program:

> \(a\) Information on how the Tribe will include professionally
> qualified individuals in its program;
>
> \(b\) Information on how the Tribe will include an adequate and
> qualified review board in its program; and
>
> \(c\) Information on how the Tribe will provide for adequate public
> participation in its program.

Two examples of how these overall requirements are modified for Tribes
are:

> \(1\) The NHPA requires an SHPO to employ or appoint "such
> professionally qualified staff as may be necessary . . ." Existing
> regulations (36 CFR 61.4) require that such State staff include a
> professionally qualified architectural historian, a professionally
> qualified historian, and a professionally qualified archeologist. The
> Secretary recognizes that unique cultural settings, smaller workloads,
> more limited program scopes, and limited funding may make such
> full-time staffing requirements both unnecessary and infeasible for a
> Tribe. Therefore, this proposed rule offers a Tribe greater
> flexibility to arrange for access to professionally qualified
> individuals as necessary to meet the specific needs of a Tribe's
> program.
>
> \(2\) The NHPA requires SHPO programs to include "an adequate and
> qualified" review board to review National Register nominations and to
> provide general programmatic advice to the SHPO. Existing regulations
> (36 CFR 61.4) require that a majority of the members of such State
> boards meet the Secretary's Professional Qualifications Standards.
> However, the Secretary recognizes that, like many local historic
> preservation programs that the Secretary has certified, Tribes may not
> have access to professionally qualified individuals who are locally
> available and willing to serve on the board. Further, the Secretary
> recognizes that the nature and scope of THPO programs may be such that
> they are better served by board members who are traditional cultural
> authorities, elders, and others experienced in the preservation of
> tribal culture. Therefore, this proposed rule only requires that
> tribal review board members be interested and experienced in historic
> preservation and/or tribal culture, in order for the board to be
> deemed "adequate and qualified."

The second part of the paragraph concerns information on the specific
SHPO functions the Tribe may assume, with emphasis on the following
three functions:

\(a\) the National Register nomination process;

\(b\) consultation with Federal agencies pursuant to §106 of the NHPA;
and

> \(c\) review of proposals for rehabilitation of historic properties
> that may qualify for Federal tax credits.

The required information for these three functions makes clear that a
Tribe that assumes any or all of these three functions must carry them
out in a manner that is consistent with existing regulations applicable
to SHPOs. However, the paragraph also makes clear that a Tribe that
finds these existing regulations to be contrary to tribal values may
seek and receive a waiver or modification of those regulations from the
Secretary.

\(h\) How does our Tribe obtain a waiver or modification of the
requirements of the NHPA or of this rule?

This paragraph implements the provision of §101(d)(1) of the NHPA that
allows for waivers and modifications of existing legal requirements
applicable to SHPOs in order to take into account tribal values and to
conform to the cultural setting of tribal heritage goals and objectives.
A Tribe may include such a waiver or modification request as a part of
its Program Plan. While the NPS neither requires nor expects that a
Tribe include or divulge any information that is sensitive or culturally
inappropriate for the Tribe, the Tribe must explain why a waiver or
modification is appropriate, and it must propose a specific alternative.

\(i\) How will the NPS consult with us on our proposed Program Plan?

This paragraph makes clear that, when the NPS receives a proposed
Program Plan from a Tribe, it will consult with the Tribe in an effort
to clarify any ambiguities and remedy any deficiencies in that Plan. The
paragraph also establishes deadlines by which the NPS must:

\(a\) acknowledge receipt of a Tribe's Program Plan;

\(b\) notify a Tribe of any ambiguities or apparent deficiencies in its
Program Plan;

> \(c\) notify a Tribe of any ambiguities or apparent deficiencies
> remaining in its Program Plan following consultation with the NPS.

[(j) Will the NPS consult with anyone else about our proposed Program
Plan?]{.underline}

This paragraph makes clear that the NHPA requires NPS to consult with
the appropriate SHPO(s), any other Tribes whose traditional homelands
may be affected, and, if you are assuming responsibilities pursuant to
§106, the Advisory Council on Historic Preservation. The paragraph
establishes a deadline by which NPS must contact these other consulting
parties, as well as a deadline by which the consulting parties must
return any comments to NPS.

\(k\) On what basis will the Secretary review our proposed Program Plan?

This paragraph makes clear that the NPS must decide to approve or not to
approve a Tribe's Program Plan based on the statutory test of whether
the Tribe is "fully capable" of carrying out the SHPO functions it
proposes to assume. The paragraph binds the NPS to determine whether the
Tribe is fully capable based on whether the Tribe has met the
requirements set out in §61.8(f) through §61.8(i) of this rule.

The paragraph also affirms that, in any case where a Tribe has requested
a waiver or modification of existing requirements applicable to SHPOs,
the NPS will approve that request upon finding that such a waiver or
modification is feasible, necessary to accommodate tribal values, and
consistent with the purposes of the NHPA.

[(l) How will the NPS make a decision on our Program Plan?]{.underline}

Item (1) of this paragraph requires the NPS to provide the Tribe with a
written finding as to whether the Tribe is fully capable of carrying out
its proposed duties and whether the NPS has approved any requested
waivers or modifications.

Item (2) indicates that the finding must include an explanation for the
NPS' decisions, a description of the necessary steps to correct any
deficiencies that resulted in denial of the Tribe's request, an offer of
technical assistance as appropriate, and a notice of the Tribe's right
to request the Director's review of certain adverse decisions or
actions.

Items (3) and (4) establish that the NPS may approve a Tribe's entire
plan, disapprove the entire plan, or approve parts of the plan and
disapprove other parts. The basis for partial approval of a plan by the
NPS and/or partial assumption of duties by the Tribe is §101(d)(2) of
the NHPA, which provides that, "A tribe may assume *all or any part* of
the functions of a State Historic Preservation Officer. . .\[emphasis
added\]"

Item (5) makes clear that a Tribe that assumes only a portion of the
SHPO duties at first may at any subsequent time assume any or all of the
remaining duties upon approval by the NPS. Any Tribe that wants in the
long term to assume all SHPO duties but feels that it should take on
those duties gradually or in phases may do so.

\(m\) How can we obtain a review of a negative decision by the NPS?

This paragraph establishes a clear process by which a Tribe can request
the Director to review any decision that disapproved in whole or in part
the Tribe's proposal to assume SHPO duties, any decision to deny the
Tribe's request for a waiver or modification of requirements, or any
failure to act by the deadlines established by this rule. The paragraph
indicates what a Tribe should include in its request to the Director,
and it establishes a 60-day deadline for making such a request. The
paragraph calls for a meeting between the Tribe and the Director if the
Tribe requests such a meeting, or if the Director believes that a
meeting would be helpful. The paragraph requires that the Director's
decision be in writing and that it include an explanation for the
Director's action. Finally the paragraph requires the Director to act
within 60 days of receiving the Tribe's request.

\(n\) May a Tribe that assumes SHPO functions obtain relevant materials
from the SHPO?

Existing survey inventories and archives of the SHPOs often include
significant information on sites within the boundaries of Indian
reservations, as well as on aboriginal lands now outside the
reservation. A Tribe that assumes SHPO duties needs that information
very much, not only so that it can build upon rather than duplicate
previous work carried out pursuant to the NHPA, but also so that it can
effectively and efficiently work with the Federal agencies that consult
with the Tribe pursuant to the NHPA.

A few of the Tribes that have already assumed SHPO duties have reported
some difficulties in acquiring copies of SHPO records. Those tribes have
requested that the NPS require SHPOs to turn over their original records
to the Tribes at no cost to the Tribes.

The NPS cannot require SHPOs to divest their archives of these official
state records. In addition, the SHPOs will have a continuing need to
refer to those records for their own planning purposes. The NPS also
cannot require that an SHPO bear all the costs of making duplicate
records for a Tribe.

On the other hand, the NPS recognizes the critical importance of these
records for THPOs. This paragraph affirms that the State, if the Tribe
requests, must provide the Tribe with original records or legible
duplicates for sites on tribal lands or on a Tribe's aboriginal lands.
While a State may charge the Tribe a fee not to exceed actual costs for
transferring or duplicating materials, the NPS encourages the States to
give whatever assistance they can to a Tribe that is assuming SHPO
duties, so that the Tribe can obtain the necessary records quickly at
the lowest possible cost.

\(o\) How does the NPS review the performance of a Tribe that has
assumed SHPO functions?

§101(d)(2) of the NHPA says that a tribe may assume SHPO duties "in
accordance with" §101 (b)(2) of the NHPA. This latter section requires
periodic review, not less often than once every 4 years, of each SHPO
program to ensure that it remains consistent with the NHPA. 36 CFR 61.4
establishes the basic procedure by which the NPS carries out this review
of state programs.

Accordingly, paragraph 61.8(o) of this rule establishes a basic process
for review of each THPO program that is identical to the procedure for
review of SHPO programs as set out in 36 CFR 61.4

The principal features of the review process are:

1\. It is collegial;

2\. It focuses on identifying both strengths and weaknesses;

3\. It provides a Tribe with a reasonable opportunity to correct any
problems;

> 4\. It allows a Tribe to request a review by the Director of any
> findings or required actions; and
>
> 5\. It results in a formal continuation of a Tribe's approved status,
> or, where major deficiencies remain uncorrected, in a revocation of
> approved status and suspension of any financial assistance.

\(p\) What is the effect of this rule on tribal sovereignty, treaty
rights, and other tribal rights?

This paragraph affirms that nothing in this rule is intended to modify
tribal sovereignty or to preempt any treaty rights or other rights in
any way.

\(q\) What is the effect of this rule on Tribes previously approved to
assume SHPO functions?

This paragraph "grandfathers" those Tribes that have been approved to
assume SHPO duties prior to the effective date of this rule, so that
they retain their approved status without reapplying to the NPS for
approval.

§ 61.9 Grants to tribal programs.

\(a\) Are Tribes that have assumed SHPO functions eligible for financial
assistance to carry out those functions?

Item (1) of this paragraph affirms that a Tribe that is approved to
assume SHPO duties is eligible to receive financial assistance from the
Historic Preservation Fund (HPF), just as SHPOs are eligible to receive
financial assistance from the HPF.

Item (2) establishes the first day of the Federal fiscal year
(October 1) as the deadline by which a tribal program must have been
approved in order to be eligible for financial assistance in any given
fiscal year. This deadline is important and necessary for two reasons:

> 1\. The number of Tribes participating in this program is growing and
> will continue to grow for the foreseeable future. A Tribe may submit a
> program plan to the NPS for approval at any time during the year.
>
> 2\. The NPS provides annual financial assistance to approved Tribes
> based on an apportionment formula very soon after Congress
> appropriates the funds. Each approved Tribe needs to know as early as
> possible what its funding level will be for the year. The Tribe also
> needs access to its funds as early in the fiscal year as possible to
> meet ongoing costs. Already-approved Tribes would suffer unfairly, if
> apportionment were delayed in order to wait for possible additional
> Tribes.

§ 61.9(b) What requirements govern the financial assistance for Tribes
that have assumed SHPO functions?

This paragraph affirms that the various departmental and government-wide
requirements for receiving and spending Federal grant-in-aid money apply
to the funds a Tribe receives through this program. This paragraph also
affirms the provisions of §101(e)(5) of the NHPA that the matching-share
requirements normally attached to the HPF may be modified for Tribes.

**Drafting Information**

The primary author of this rule is H. Bryan Mitchell, Heritage
Preservation Services, National Center for Cultural Resources, National
Park Service.

**COMPLIANCE WITH LAWS, EXECUTIVE ORDERS AND DEPARTMENT POLICY**

**Regulatory Planning and Review (Executive Orders 12866).**

This document is not a significant rule and is not subject to review by
the Office of Management and Budget under Executive Order 12866.

\(1\) This rule will not have an effect of \$100 million or more on the
economy. It will not adversely affect in a material way the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities. The
proposed rule provides the framework for the voluntary participation of
individual Indian tribes in the national historic preservation program.
Current grant funding available to participating tribes is under \$5
million nationwide.

> \(2\) This rule will not create a serious inconsistency or otherwise
> interfere with an action taken or planned by another agency. This rule
> establishes the formal relationship between the NPS and participating
> tribes. Consultation between Federal agencies and Indian tribes
> concerning Federal undertakings on tribal lands is already required by
> §110 of the NHPA and by the regulations (36 CFR Part 800) of the
> Advisory Council on Historic Preservation.
>
> \(3\) This rule does not alter any existing budgetary effects or
> entitlements, grants, user fees, or loan programs or the rights or
> obligations of their recipients. This rule does make clear that Indian
> tribes that choose to participate in the national historic
> preservation program are eligible for additional grant funding from
> the Historic Preservation Fund to assist the tribe in carrying out the
> activities of that program. The rule establishes an annual deadline by
> which a tribe must be approved in order to be eligible for the next
> funding cycle; it also affirms that various government-wide and
> departmental requirements apply to grants received by participating
> tribes.
>
> \(4\) This rule does not raise novel legal or policy issues. The
> programmatic requirements established by this proposed rule for tribes
> that choose to participate in the program are consistent with the
> broad programmatic requirements that have been in place for states for
> over 25 years. At the same time, the proposed rule recognizes the
> differences in scope, workload, and program emphasis that exist
> between states and tribes, as well as among tribes.

**Regulatory Flexibility Act.**

The Department of the Interior certifies that this document will not
have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). As
noted above, the proposed rule only establishes procedures and
requirements for Indian tribes that voluntarily choose to participate in
the national historic preservation program. Total grant funding
available for participating tribes is less than \$5 million annually.

**Small Business Regulatory Enforcement Fairness Act (SBREFA).**

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act. This rule:

a\. Does not have an annual effect on the economy of \$100 million or
more. As noted above, the proposed rule only establishes procedures and
requirements for Indian tribes that voluntarily choose to participate in
the national historic preservation program. Total grant funding
available for participating tribes is less than \$5 million annually.
The proposed rule establishes no new requirements for small businesses.

> b\. Will not cause a major increase in costs or prices for consumers,
> individual industries, Federal, State, or local government agencies,
> or geographic regions. Federal agencies are already required by §110
> of the NHPA and by the regulations (36 CFR Part 800) of the Advisory
> Council on Historic Preservation to consult with Indian tribes
> concerning proposed Federal undertakings. Where a tribe has assumed
> SHPO functions pursuant to this proposed rule, the costs to Federal
> agencies may actually be reduced in some cases, because consultation
> with the SHPO in addition to the tribe would no longer be required.
>
> c\. Does not have significant adverse effects on competition,
> employment, investment, productivity, innovation, or the ability of
> U.S.-based enterprises to compete with foreign-based enterprises. The
> proposed rule establishes the procedures and requirements for any
> Indian tribe that chooses to enter into a formal relationship with the
> Secretary in which the tribe carries out the national historic
> preservation program on tribal lands.

**Unfunded Mandates Reform Act.**

This rule does not impose an unfunded mandate on State, local, or tribal
governments or the private sector of more than \$100 million per year.
The rule does not have a significant or unique effect on State, local,
or tribal governments, or the private sector. Tribal assumption of SHPO
duties pursuant to the NHPA and this proposed rule is completely at the
discretion of individual tribal governments with jurisdiction over
tribal lands, so that no mandate of any kind arises from this proposed
rule. In addition, the proposed rule creates no significant or unique
effect on any unit of government.

**Takings (Executive Order 12630).**

In accordance with Executive Order 12630, the rule does not have
significant takings implications. The rule creates administrative
procedures for the organization of Tribal historic preservation offices.
This rule does not affect private property owners.

The SHPO duties a tribe may assume pursuant to the NHPA and this
proposed rule do not include any responsibilities or activities that
affect property rights protected by the Constitution or that pose any
risk of being a compensable taking. A takings implication assessment is
not required.

**Federalism (Executive Order 13132).**

In accordance with Executive Order 13132, the rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment. Tribal participation in the national program is
voluntary. Nonetheless, the NPS has consulted with participating tribes
in drafting this proposed rule. This proposed rule has evolved directly
from a draft prepared by the participating tribes and provided to the
NPS in July, 1997. Later in the drafting process the NPS met with the
participating tribes in October, 1998 to discuss the draft at that
point. The NPS also solicited written comments from the participating
tribes following that meeting but received none. While the proposed rule
has undergone a series of editorial refinements since the 1998 meeting,
it remains substantively the same. The proposed rule has no significant
effect on states' abilities to make their own decisions. Where a tribe
is approved by the NPS to assume SHPO functions on tribal lands, the
state no longer has those responsibilities on tribal lands. However, the
level of SHPO activity on tribal lands is relatively small and consists
of providing technical assistance requested by tribes and consulting
with Federal agencies on the potential impacts of their undertakings.
Allowing tribes to assume SHPO functions with regard to tribal lands is
mandated by the NHPA and not created by this proposed rule. The NHPA
also calls for promulgation of regulations to implement the mandate, so
that there is no alternative to publishing the proposed rule. A
Federalism Assessment is not required.

**Civil Justice Reform (Executive Order 12988).**

In accordance with Executive Order 12988, the Office of the Solicitor
has determined that this rule does not unduly burden the judicial system
and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

**Paperwork Reduction Act**

The Office of Management and Budget has approved the collection of
information contained in this rule under 44 U.S.C. 3507 [et
seq.]{.underline} and has assigned clearance number 1024-0038. The
information collected is part of the process for reviewing the
procedures and programs of State, Tribal, and local governments
participating in the national historic preservation program and the
Historic Preservation Fund grant program. The NPS will use the
information to evaluate those programs and procedures for consistency
with the National Historic Preservation Act of 1966, as amended, and
compliance with government-wide grant requirements. Participating State,
Tribal, and local governments must respond in order to obtain a benefit
under these programs. Note that a Federal agency may not conduct or
sponsor, nor must a person respond to, a collection of information
unless it displays a currently valid OMB control number. The NPS
provides no assurance of confidentiality to respondents with the
exception for the information concerning the location of some properties
included in government historic preservation property inventories.
Pursuant to Section 304 of the National Historic Preservation Act of
1966, as amended, the NPS tightly controls the release of information,
when such release could have the potential of damaging those qualities
that make a property historic or of vital cultural or religious
significance.

We estimate the public reporting burden for the collection of this
information averages 14.06 hours per response, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the collection
of information. Send comments regarding this burden estimate or any
other aspect of this collection of information, including suggestions
for reducing the burden to Ms. Diane M. Cooke, Information Collection
Officer, National Park Service, 1849 C Street NW, MS 3317, Washington,
D. C. 20240 and to the Office of Management and Budget, Office of
Information and Regulatory Affairs, Attention: Desk Officer for the
Department of the Interior (1024-0038), Washington, D. C. 20503.

**National Environmental Policy Act.**

This rule does not constitute a major Federal action significantly
affecting the quality of the human environment.

## Government-to-Government Relationship with Tribes

In accordance with the Executive Order 13175 "Consultation and
Coordination with Indian Tribal Governments" (65 CFR 67249) and
President's memorandum of April 29, 1994, "Government to Government
Relations with Native American Tribal Governments" (59 FR 22951) and 512
DM 2:

We have evaluated the possible effects on federally recognized Indian
tribes. The proposed rule does not, in and of itself, have any effect on
tribal trust resources, as contemplated by 512 DM 2. However, the
proposed rule is of particular concern to those tribes. The proposed
rule formalizes the process established by the National Historic
Preservation Act, whereby a tribe can voluntarily choose to assume
certain responsibilities pursuant to that Act. If a tribe chooses not to
assume those duties and therefore takes no action to request approval to
do so, this proposed rule has no effect upon the tribe. There is no
consequence to the tribe that chooses not to assume these duties. Even
where a tribe does choose to assume these responsibilities in accordance
with this proposed rule, the tribe is assuming responsibilities
previously assigned to a State Historic Preservation Officer, not to an
agency of the Federal government, so that the trust relationship between
the tribe and the Federal government is unaltered. The overall policy
goal of this proposed rule and of §101(d)(2) of the National Historic
Preservation Act is the enhancement of tribes' abilities to identify,
evaluate, and protect those cultural and historic resources that are of
particular importance to the tribes.

**Clarity of this regulation.**

Executive Order 12866 requires each agency to write regulations that are
easy to understand. We invite your comments on how to make this rule
easier to understand, including answers to questions such as the
following: (1) Are the requirements in the rule clearly stated? (2) Does
the rule contain technical language or jargon that interferes with its
clarity? (3) Does the format of the rule (grouping and order of
sections, use of headings, paragraphing, etc.) aid or reduce its
clarity? (4) Would the rule be easier to understand if it were divided
into more (but shorter) paragraphs? (A \"paragraph\" title is
underlined, is preceded by a letter in parentheses, and is written as a
question; for example, [**(a) What is the purpose of this
section**?]{.underline}) (5) Is the description of the rule in the
"Supplementary Information" section of the preamble helpful in
understanding the proposed rule? What else could we do to make the rule
easier to understand?

Send a copy of any comments that concern how we could make this rule
easier to understand to: Office of Regulatory Affairs, Department of the
Interior, Room 7229, 1849 C Street NW, Washington, D. C. 20240.

**Public Comment Solicitation**

If you wish to comment, you may submit your comments by any one of
several methods. You may mail comments to Heritage Preservation
Services, National Center for Cultural Resources, National Park Service,
1849 C Street, NW (NC 330), Washington, D. C. 20240 You may also comment
via the internet by sending your comments to the following e-mail
address: Bryan_Mitchell@nps.gov. Please include "Attn: RIN 1024-AC79"
and your name and return address in your message. In addition, any
interested person will have the opportunity to make oral comments at one
of the public meetings noted at the beginning of this rulemaking.
Finally, you may hand-deliver comments to Heritage Preservation
Services, National Center for Cultural Resources, National Park Service,
800 North Capitol Street, Room 330, Washington, D. C.. Our practice is
to make comments, including names and home addresses or respondents,
available for public review during regular business hours. Individual
respondents may request that we withhold their name or home address from
the rulemaking record, which we will honor to the extent allowable by
law. If you wish us to withhold your name and/or address, you must state
this prominently at the beginning of your comment. However, we will not
consider anonymous comments. We will make all submissions from
organizations or businesses, and from individuals identifying themselves
as representatives or officials of organizations or businesses,
available for public inspection in their entirety.

### List of Subjects in 36 CFR Part 61 

Grant programs-natural resources, Historic preservation, Indians-tribal
government, and Reporting and recordkeeping requirements.

We propose to amend 36 CFR Part 61 as set forth below:

**PART 61 - - PROCEDURES FOR STATE, TRIBAL, AND LOCAL GOVERNMENT
HISTORIC PRESERVATION PROGRAMS**

Sec.

1.  Authorization.

2.  Definitions.

3.  Implementation of this part.

4.  State programs.

5.  Grants to State programs.

6.  Certified local government programs.

7.  Subgrants to certified local governments.

8.  Tribal programs.

9.  Grants to tribal programs.

10. Waiver.

11. Information Collection.

```{=html}
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1.  The authority citation for Part 61 continues to read as follows:

    Authority: 16 U.S.C. 470 et seq.

2.  Add § 61.8 to read as follows:

> \(a\) [What is the purpose of this section?]{.underline} This section
> sets out procedures and requirements for the assumption by Indian
> Tribes of any or all functions of a State Historic Preservation
> Officer (SHPO) with respect to tribal lands, in accordance with
> §§101(b)(2) and (b)(3) of the NHPA. A Tribe that has assumed any or
> all functions of an SHPO in accordance with the NHPA shall have the
> same authority and discretion accorded to an SHPO by the NHPA for the
> purpose of carrying out those functions.
>
> \(b\) [What policies govern tribal participation in the national
> historic preservation program?]{.underline}
>
> \(1\) Congress has recognized that the national historic preservation
> program will be strengthened by providing Indian Tribes with the
> opportunity to become full partners in the program.
>
> \(2\) Our program and regulations should assist Indian Tribes in
> expanding and accelerating their historic preservation programs to
> protect their historic properties.
>
> \(3\) The program to assist Tribes in their preservation activities
> shall ensure that tribal values are taken into account to the extent
> feasible.
>
> \(4\) Qualified tribes are encouraged to assume all or any part of the
> functions of a SHPO and to plan, conduct, and administer programs,
> functions, services and activities for which they have assumed
> responsibility.
>
> \(5\) An Indian Tribe has an inherent legal right to
> self-determination and the distinctive rights that flow from its
> inherent sovereignty. Assuming responsibility for functions in
> accordance with the NHPA and this regulation is an exercise of the
> government-to-government relationship between the United States and
> the Indian tribes.
>
> \(6\) To the extent feasible, the National Park Service (NPS) will
> construe these rules so as to facilitate tribal assumption of
> functions pursuant to the NHPA.
>
> \(c\) [How will the NPS implement these policies in carrying out the
> procedures and requirements for tribal assumption of SHPO
> duties?]{.underline}
>
> \(1\) The NPS will consult with each Indian Tribe proposing to assume
> SHPO duties on a government-to-government basis, in a manner
> respectful of tribal sovereignty, and with the aim of building an
> effective working relationship between the two governments.

\(2\) In accordance with §101(d)(1)(B) of the NHPA, the NPS will
recognize the need for flexibility, in order to respond to the varying
scopes of tribal historic preservation programs, and in order to
accommodate tribal values and the cultural setting of tribal heritage
preservation goals and objectives.

> \(d\) [What terms do I need to know?]{.underline} For the purposes of
> this section:
>
> \(1\) [Tribal traditional cultural authority]{.underline} means any
> individual recognized as such by an Indian Tribe. For the purposes of
> this regulation, a tribal traditional cultural authority has standing
> equivalent to that of an individual who meets the Secretary of the
> Interior's Professional Qualifications Standards. For example, in
> determining the overall historic significance of a property or site, a
> tribal traditional cultural authority's assessment of the traditional
> cultural value of that property or site has the same standing as a
> professionally qualified archeologist's assessment of the
> archeological value of that property.
>
> \(e\) [How does our Tribe seek approval to assume SHPO
> functions?]{.underline} A Tribe that seeks to assume SHPO functions
> must do three things:
>
> \(1\) Submit a resolution to the NPS from the Tribe\'s chief governing
> authority requesting the assumption of SHPO functions by the Tribe;
>
> \(2\) Designate a Tribal Historic Preservation Officer (THPO), through
> appointment by the Tribe\'s chief governing authority or as a tribal
> ordinance may otherwise provide, who shall be responsible for
> administering the tribal historic preservation program; and
>
> \(3\) Submit a Tribal Historic Preservation Program Plan (hereinafter
> the Program Plan) to the NPS.
>
> \(f\) [What are the general requirements for Tribal Program
> Plans?]{.underline}
>
> \(1\) When submitting a Tribal Program Plan for review and approval,
>
> you must include the following in your Program Plan:
>
> \(i\) A clear list of the SHPO functions set out in § 101(b)(3) of the
> NHPA that you propose to assume.
>
> \(ii\) Sufficient descriptive information on your current historic
> preservation program or activities and on the individual functions you
> propose to assume to allow the NPS to determine whether you are fully
> capable of carrying out the functions you propose to assume (see
> paragraph 61.8(g) of this part for further guidance on this
> requirement).
>
> \(iii\) A clear list of the SHPO functions, if any, that you propose
> will remain the responsibility of the SHPO.
>
> \(2\) You may include the following in your Program Plan:
>
> \(i\) A request for any waiver or modification of the requirements of
> the NHPA or of this rule that you believe is necessary to accommodate
> tribal values or the cultural setting of tribal heritage preservation
> goals and objectives (see paragraph 61.8(h) of this part for further
> guidance).
>
> \(ii\) Any additional information you believe will assist the NPS in
> determining that you are fully capable of carrying out the functions
> you propose to assume.
>
> \(iii\) A request for any technical assistance you believe would
> benefit the Tribe in carrying out the functions you propose to assume.
>
> \(g\) [What are the specific elements that must be in a Tribal Program
> Plan?]{.underline}
>
> \(1\) In describing the overall assumption of SHPO functions set out
> in your Program Plan, your Program Plan must include:
>
> \(i\) Information on how the THPO will employ or appoint such
> professionally qualified individuals as may be necessary for carrying
> out those functions the Tribe proposes to assume. Such employment or
> appointment must be through establishment of full or part-time staff
> positions, or through other arrangements suitable to the workload of
> the THPO and to the scope of the tribal program. A professionally
> qualified individual meets the Secretary of the Interior's
> Professional Qualifications Standards or is recognized by the Tribe as
> a traditional cultural authority.
>
> \(ii\) Information on how the THPO will include an adequate and
> qualified tribal historic preservation review board in the operations
> of the tribal historic preservation program. The THPO appoints such a
> board, unless tribal ordinance or the Tribe's chief governing
> authority provides for another appointment process. Members of the
> board must have sufficient interest and experience in historic
> preservation and/or tribal culture to provide the THPO with meaningful
> advice. The board's duties include providing general advice and
> guidance to the THPO, reviewing appropriate documentation submitted to
> the NPS in connection with the Historic Preservation Fund, reviewing
> National Register nominations where the Tribe has assumed
> responsibility for that nomination process, and such other duties as
> may be appropriate.
>
> \(iii\) Information on how the THPO will provide for adequate
> participation in the historic preservation program by Tribal
> traditional cultural authorities, representatives of other Tribes
> whose traditional lands are under the jurisdiction of the Tribe, and
> the interested public. At a minimum, adequate participation of the
> interested public means that, no less frequently than annually, the
> THPO solicits and considers comments on the goals and activities of
> the tribal historic preservation program. The THPO solicits these
> comments through means such as locally publishing a notice, holding an
> open meeting, or some other process consistent with the routine
> procedures of the tribal government.
>
> \(iv\) An affirmation that on tribal land that is neither owned by a
> member of the Tribe nor held in trust by the Secretary for the benefit
> of the Tribe, at the request of the owner of such land, the State
> Historic Preservation Officer, in addition to the Tribal Historic
> Preservation Officer, may exercise the historic preservation
>
> responsibilities in accordance with paragraphs 101(b)(2) and (b)(3) of
> the NHPA.

\(2\) In setting out each of the duties in §101(b)(3) of the NHPA that
the Tribe proposes to assume, your Program Plan must include a
description of how the Tribe will carry out each of those duties, and a
description of how those duties are related to the Tribe's current
historic preservation program or activities. If the Tribe proposes to
assume responsibility for administering the National Register nomination
process, for advising and assisting in the evaluation of proposals for
rehabilitation of historic properties that may qualify for Federal tax
credits, and/or for consulting with Federal agencies pursuant to §106 of
the NHPA, your Program Plan must include the following:

> \(i\) Information on the process the Tribe proposes for considering
> and submitting such nominations where the Tribe proposes to assume
> responsibility for submitting nominations to the National Register of
> Historic Places. The Tribe's process must be consistent with the
> National Register process set out in 36 CFR 60 as it applies to State
> Historic Preservation Officers. The THPO must ensure that the tribal
> historic preservation review board has access to advice from
> appropriately qualified individuals in accordance with (g)(1)(i) of
> this paragraph in carrying out its responsibilities for reviewing
> National Register nominations. In the event that the process in 36 CFR
> 60 is incompatible with tribal values and/or cultural preservation
> goals and objectives, the Tribe may propose an alternative process
> that provides at a minimum for review of nominations by professionally
> qualified individuals, review of nominations by a qualified advisory
> board or other independent, qualified entity, and reasonable
> opportunity for public comment on nominations before they are
> submitted to the National Register (see paragraph 61.8(h) of this part
> on waivers and modifications of requirements).
>
> \(ii\) Information on the Tribe\'s process for reviewing such projects
> and submitting them to the NPS where the Tribe proposes to assume
> responsibility for advising and assisting in the evaluation of
> proposals for rehabilitation of historic properties that may qualify
> for Federal tax credits or other Federal assistance. The Tribe\'s
> process must be consistent with the process set out in 36 CFR 67 as it
> applies to State Historic Preservation Officers. In the event that the
> process in 36 CFR 67 is incompatible with tribal values and/or
> cultural preservation goals and objectives, the Tribe may propose an
> alternative process that provides at a minimum for professional review
> and timely submission of project documentation to the NPS in a manner
> that is consistent with the overall purposes of 36 CFR 67 (see
> paragraph 61.8(h) of this part on waivers and modifications of
> requirements).
>
> \(iii\) Information that indicates how the Tribe will carry out this
> responsibility in accordance with the regulations of the Advisory
> Council on Historic Preservation at 36 CFR 800, or in accordance with
> alternate tribal procedures that have been specifically approved by
> the Council pursuant to §101(d)(5) of the NHPA where the Tribe
> proposes to assume responsibility for consulting with Federal agencies
> for the purposes of §106 of the NHPA.
>
> \(h\) [How does our Tribe obtain a waiver or modification of the
> requirements of the NHPA or of this rule?]{.underline}

\(1\) If, in preparing your Program Plan, you determine that the
requirements of the NHPA and/or of this regulation that are applicable
to SHPOs are incompatible with tribal values or with the cultural
setting of your tribal heritage goals and objectives, you may include as
a part of your Program Plan a request that the NPS waive or modify those
requirements in order to conform to tribal values and/or the cultural
setting of tribal heritage preservation goals and objectives.

> \(2\) Your request must include:
>
> \(i\) An explanation of the inconsistency between the pertinent
> requirements and tribal values and/or the cultural setting of tribal
> heritage preservation goals and objectives.
>
> \(ii\) The specific remedy or alternate tribal procedures you propose.

\(3\) Nothing in this paragraph authorizes the waiver or modification of
the duties and responsibilities of the Secretary.

> \(i\) [How will the NPS consult with us on our proposed Program
> Plan?]{.underline}

\(1\) Within 21 days of receipt, the NPS will notify you in writing that
it has received your proposal. In accordance with § 101(d)(2) of the
NHPA and paragraph 61.8(g) of this part, a complete proposal includes
the formal resolution from the Tribe's chief governing authority, the
official designation of a Tribal Historic Preservation Officer, and the
Program Plan. If your proposal is incomplete, the NPS will indicate
which parts are missing. The consultation process set out below will
begin upon receipt of the missing parts.

> \(2\) Within 45 days of receipt of a complete proposal, the NPS will
> notify the Tribal Historic Preservation Officer, or other
> representative specifically designated by the Tribe, in writing of any
> ambiguities or apparent deficiencies that remain in the proposal and
> indicate how those ambiguities or apparent deficiencies may be
> remedied. Within 30 days of receipt of a written response from the
> Tribe, the NPS will notify the Tribe in writing whether or not the
> ambiguities or apparent deficiencies have been remedied.
>
> \(j\) [Will the NPS consult with anyone else about our proposed
> Program Plan?]{.underline}
>
> \(1\) Unless the Tribe notifies the NPS that it wishes to have
> additional time to revise its proposal, within 21 days of completion
> of the consultation process in paragraph 61.8(i) of this part, the
> NPS, pursuant to § 101(d)(2)(D) of the NHPA, will provide copies of
> the Tribe's proposal, including any revisions, to the appropriate
> SHPO(s), to any other Tribes whose tribal or aboriginal lands may be
> affected by the conduct of the tribal historic preservation program
> and, if the Tribe proposes to assume Section 106 responsibilities, to
> the Advisory Council on Historic Preservation.
>
> \(2\) The SHPO(s), other Tribes, and the Advisory Council will have 30
> days in which to provide written comments to the NPS on the Tribe's
> proposal.
>
> \(k\) [On what basis will the Secretary review our proposed Program
> Plan?]{.underline}

\(1\) Following the consultation process set out above, the NPS must
review the Program Plan in accordance with § 101(d)(2)(E) of the NHPA.
That review must determine:

> \(i\) Whether the Tribe's chief governing authority has requested to
> assume SHPO functions.
>
> \(ii\) Whether the Tribe has duly designated a THPO to carry out the
> functions assumed by the Tribe.
>
> \(iii\) Whether the Tribe has submitted a Program Plan that
> demonstrates that the Tribe is fully capable of carrying out the
> functions it proposes to assume in accordance with the requirements of
> the NHPA and of this regulation.

\(2\) Where the Program Plan includes a request for waiver or
modification of requirements in accordance with paragraph 61.8(h) of
this part, the NPS will review the Tribe's request as a part of its
review of the Tribe's Program Plan, pursuant to §101(d)(1)(B) of the
NHPA. Upon finding that a waiver or modification of the requirements of
the NHPA is consistent with the purposes of the NHPA, feasible, and
necessary to accommodate tribal values and/or the cultural setting of
tribal heritage preservation goals and objectives, the NPS will waive or
modify such requirements.

> \(l\) [How will the NPS make a decision on our Program
> Plan?]{.underline}

\(1\) Within 30 days of completion of the consultation process set forth
above, the NPS must send to the Tribal Historic Preservation Officer or
other designated representative of the Tribe a written finding as to:

> \(i\) Whether or not the Tribe is fully capable of carrying out the
> functions specified in the proposed program plan, including any
> modifications to that plan as were mutually agreed upon by the NPS and
> the Tribe pursuant to the consultation process set forth above; and
>
> \(ii\) Whether any requested waivers or modifications have been
> approved.

\(2\) The written finding must:

> \(i\) Explain the basis for finding that the Tribe is or is not fully
> capable of carrying out a function or functions. The explanation for
> any finding that the Tribe is not fully capable must include a
> reference to the specific requirements(s) of this rule and/or of the
> NHPA that the Tribe has failed to meet.
>
> \(ii\) Explain the basis for approving or denying any requested waiver
> or modification.
>
> \(iii\) Describe the steps the Tribe can take to correct any
> deficiency the NPS has identified as the basis for a finding that the
> Tribe is not fully capable of carrying out a function or functions.
>
> \(iv\) Identify the technical assistance available to the Tribe to
> correct any noted deficiency.
>
> \(v\) Clearly specify the Tribe\'s right to request a review of the
> decision by the Director and provide appropriate information on the
> procedure for filing such a request in accordance with paragraph (m)
> of this part.
>
> \(3\) If the NPS finds that the Tribe is fully capable of carrying out
> the functions specified in the program plan, including any mutually
> agreed upon modifications to the plan, the NPS must approve the
> program plan as it may have been modified and transmit the approved
> plan to the Tribe.

\(4\) If the NPS finds that the Tribe is not fully capable of carrying
out the functions specified in the program proposal as it may have been
modified by mutual agreement between the NPS and the Tribe, the NPS will
either:

> \(i\) Approve the tribal program plan in part for those portions that
> the Tribe is fully capable of carrying out; disapprove those portions
> of the program plan for which the Tribe is not fully capable of
> carrying out the function(s); and transmit to the Tribe the approved
> portions of the program plan; or
>
> \(ii\) Disapprove the entire program plan.
>
> \(5\) In any case where a Tribe initially assumes only a portion of
> the responsibilities of §101(b)(3) of the NHPA, the Tribe may at any
> subsequent time request approval to assume any or all of the remaining
> responsibilities in accordance with this rule.
>
> \(m\) [How can we obtain a review of a negative decision by the
> NPS?]{.underline}

\(1\) You may request a review by the Director of:

> \(i\) Any decision to disapprove in whole or in part your Program Plan
> to assume any or all of the functions of an SHPO.
>
> \(ii\) Any decision to deny your request for a waiver or modification
> of requirements.
>
> \(iii\) Any failure to act within the deadlines specified by this
> rule.

\(2\) You must make your request to the Director within 60 days of the
adverse decision or missed deadline. Your request must be in writing,
must come from the Tribe's chief governing authority, and must include:

> \(i\) A statement of the decision to be reviewed by the Director.
>
> \(ii\) A statement of the issues involved in the request for review.
>
> \(iii\) An explanation of why the Tribe believes the decision is
> wrong.
>
> \(iv\) Any appropriate supporting documentation.

\(3\) If the chief governing authority of your Tribe asks for a meeting
with the Director to discuss its request, or, if the Director on his or
her own initiative desires such a meeting, the Director will convene a
meeting with the designated representatives of the Tribe.

\(4\) The Director must either meet with the Tribe's representatives or
issue a decision in writing within 60 days of receipt of the Tribe's
request. In any case where the Director and the Tribe's representatives
have met in accordance with paragraph (3) of this paragraph, the
Director must issue a decision in writing either within 60 days of
receipt of the Tribe's request or within 30 days of the meeting,
whichever is later. The Director and the Tribe may agree to extend these
deadlines for reasons of mutual convenience or to allow for additional
efforts to resolve the disagreement between the Tribe and the NPS. The
Director's decision may affirm or overrule the previous decision, either
in whole or in part. The Director must base his or her decision on the
relevant provisions of this rule and/or of the NHPA and must include an
explanation that refers specifically to those provisions. The Director's
decision is the final administrative decision on the appeal. No person
shall be considered to have exhausted administrative remedies with
respect to the decision described in this part until the Director has
issued a final administrative decision pursuant to this section.

> \(n\) [May a Tribe that assumes SHPO functions obtain relevant
> materials from the SHPO?]{.underline}
>
> \(1\) Upon formal assumption of SHPO responsibilities, a Tribe is
> entitled to receive from the affected SHPO(s) those records, data,
> maps, and reports, or legible copies thereof, that pertain to sites on
> tribal land, as well as to those sites on the Tribe's aboriginal lands
> to which the Tribe attaches religious and cultural significance.
>
> \(2\) The NPS will foster communication and cooperation between the
> Tribe and the affected SHPO(s) to ensure that the Tribe receives the
> information necessary to carry out its responsibilities.
>
> \(3\) The SHPO may charge the Tribe a fee not to exceed the actual
> cost of transferring or duplicating the materials.
>
> \(o\) [How does the NPS review the performance of a Tribe that has
> assumed SHPO duties?]{.underline}
>
> \(1\) Pursuant to §101(b)(2) and §101(d)(2) of the NHPA, the NPS
> periodically will evaluate each tribal program for consistency with
> the NHPA and with the Tribe's approved program plan. The review will
> occur at least once every four years. The NPS may use on-site and/or
> off-site inquiries to perform such evaluation. The review will provide
> the Tribe with written findings and analyses that highlight program
> strengths and weaknesses.
>
> \(2\) To the greatest extent feasible the review will be a collegial
> process that involves both the NPS and the Tribe in a mutual
> evaluation and assessment of the program. The NPS will approve the
> Tribe's program if the NPS determines that it continues to meet the
> program requirements of the NHPA and of this regulation.
>
> \(3\) Each Tribe with a program determined to be consistent with the
> NHPA will receive timely written notice from the NPS that its approved
> status is continued.
>
> \(4\) Any Tribe found to have major program aspects not consistent
> with the NHPA or with its approved program plan will receive timely
> written notice of deficiencies from the NPS, along with the required
> actions for correcting them. Unless circumstances warrant immediate
> action, the NPS will defer making a decision on program approval for a
> specified period to allow the Tribe to correct deficiencies or present
> a justifiable plan and timetable for correcting deficiencies. During
> this period the Tribe may request that the Director review any
> findings and required actions.

\(5\) A Tribe that successfully resolves deficiencies will receive
timely written notice from the NPS of continued approved status. Once
the NPS renews a Tribe's approved status, the NPS generally will not
review that Tribe's program again until the next regular evaluation
period, although the NPS may conduct evaluations more often if the NPS
deems it necessary.

\(6\) A Tribe with deficiencies that warrant immediate action or that
remain after the expiration of the period specified pursuant to
paragraph (4) of this section will receive notice from the NPS that its
approved status is revoked. The NPS will then initiate financial
suspension and other actions in accordance with applicable regulatory
requirements and applicable related guidance issued by the Secretary.

> \(p\) [What is the effect of this rule on tribal sovereignty, treaty
> rights, and other tribal rights?]{.underline}
>
> Nothing in these regulations is intended to alter, amend, repeal,
> interpret, or modify tribal sovereignty, or to preempt treaty rights,
> or other rights of an Indian Tribe, or modify or limit the exercise of
> such rights.
>
> \(q\) [What is the effect of this rule on Tribes previously approved
> to assume SHPO functions?]{.underline}
>
> Any Tribal Historic Preservation Program approved prior to the
> effective date of these regulations:
>
> \(1\) Retains that status in accordance with the terms of the
> previously executed Memorandum of Agreement, and
>
> \(2\) May, at the Tribe\'s request, modify its existing agreement in
> accordance with these regulations.

3\. Add § 61.9 to read as follows:

> \(a\) [Are Tribes that have assumed SHPO functions eligible for
> financial assistance to carry out those functions?]{.underline}

\(1\) Each Tribe with an approved tribal program is eligible for
grants-in-aid from the Historic Preservation Fund.

\(2\) A Tribe must have an approved program not later than the first day
of the Federal fiscal year (October 1), in order to be eligible for a
grant-in-aid during that same fiscal year.

> \(b\) [What requirements govern the financial assistance for Tribes
> that have assumed SHPO functions?]{.underline}
>
> \(1\) The HPF will administer HPF grants-in-aid in accordance with the
> NHPA, OMB Circular A-133, and 43 CFR 12, and related guidance issued
> by the Secretary. Pursuant to §101(e)(5) of the NHPA, the Secretary
> may modify matching fund requirements for Tribes.
>
> \(2\) Failure by a Tribe to meet the applicable requirements will be
> cause for comment and appropriate action by the NPS.

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Craig Manson Date

Assistant Secretary

Fish and Wildlife and Parks