49–006 

109TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 109–641 

NATIONAL HISTORIC PRESERVATION ACT AMENDMENTS 

OF 2006 

SEPTEMBER 6, 2006.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. POMBO, from the Committee on Resources, 

submitted the following 

R E P O R T 

[To accompany H.R. 5861] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Resources, to whom was referred the bill 

(H.R. 5861) to amend the National Historic Preservation Act, and 

for other purposes, having considered the same, report favorably 

thereon with an amendment and recommend that the bill as 

amended do pass. 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘National Historic Preservation Act Amendments of 

2006’’. 

SEC. 2. STATE HISTORIC PRESERVATION OFFICER RESPONSIBILITIES. 

Section 101(b) of the National Historic Preservation Act (16 U.S.C. 470a(b)) is 

amended by adding at the end the following: 

‘‘(7) The State Historic Preservation Officer shall have no authority to require an 

applicant for Federal assistance, permit, or license to identify historic properties 

outside the undertaking’s area of potential effects as determined by the Federal 

agency in accordance with regulations implementing section 106. 

‘‘(8) If the State Historic Preservation Officer or Tribal Historic Preservation Officer fails to respond within 30 days after an adequately documented finding of ‘no 

historic properties affected’ or ‘no adverse effect’ as provided in the regulations implementing section 106, the Federal agency may assume that the State Historic 

Preservation Officer or Tribal Historic Preservation Officer has no objection to the 

finding.’’. 

SEC. 3. ADDITIONAL CRITERIA FOR CERTIFICATION OF LOCAL GOVERNMENTS TO CARRY 

OUT NATIONAL HISTORIC PRESERVATION ACT. 

Section 101(c)(1) of the National Historic Preservation Act (16 U.S.C. 470a(c)(1)) 

is amended— 

(1) by striking ‘‘and’’ at the end of subparagraph (D); 

(2) by redesignating subparagraph (E) as subparagraph (F); 


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(3) by inserting after subparagraph (D) the following new subparagraph: 

‘‘(E) agrees that it shall not use any eligibility determination regarding the 

inclusion of any property or District on the National Register to initiate local 

regulatory requirements unless the entity provides full due process protection 

to the owner or owners of the property or District through a hearing process; 

and’’; and 

(4) in the matter below the subparagraphs, by striking ‘‘through (E)’’ and inserting ‘‘through (F)’’. 

SEC. 4. HISTORIC PRESERVATION FUND. 

Section 108 of the National Historic Preservation Act (16 U.S.C. 470h) is amended 

by striking ‘‘2005’’ and inserting ‘‘2015’’. 

SEC. 5. ADVISORY COUNCIL ON HISTORIC PRESERVATION. 

(a) MEMBERSHIP.—Section 201 of the National Historic Preservation Act (16 

U.S.C. 470i) is amended—

(1) in subsection (a)(4), by striking ‘‘four’’ and inserting ‘‘seven’’; 

(2) in subsection (b), by striking ‘‘(5) and (6)’’ and inserting ‘‘paragraph (6)’’; 

and 

(3) in subsection (f), by striking ‘‘Nine’’ and inserting ‘‘Eleven’’. 

(b) FINANCIAL AND ADMINISTRATIVE SERVICES.—Section 205(f) of such Act (16 

U.S.C. 470m(f)) is amended to read as follows: 

‘‘(f) Financial and administrative services (including those related to budgeting, 

accounting, financial reporting, personnel and procurement) shall be provided the 

Council by the Department of the Interior or, at the discretion of the Council, such 

other agency or private entity that reaches an agreement with the Council, for 

which payments shall be made from funds of the Council in such amounts as may 

be agreed upon by the Chairman of the Council and the head of the agency or, in 

the case of a private entity, the authorized representative of the private entity that 

will provide the services. When a Federal agency affords such services, the regulations of that agency for the collection of indebtedness of personnel resulting from 

erroneous payments, prescribed under section 5514(b) of title 5, United States Code, 

shall apply to the collection of erroneous payments made to or on behalf of a Council 

employee, and regulations of that agency for the administrative control of funds 

under sections 1513(d) and 1514 of title 31, United States Code, shall apply to appropriations of the Council. The Council shall not be required to prescribe such regulations.’’. 

(c) AUTHORIZATION OF APPROPRIATIONS.—Section 212(a) of the Act (16 U.S.C. 

470t(a)) is amended by striking ‘‘for purposes of this title not to exceed $4,000,000 

in each fiscal year 1997 through 2005’’ and inserting ‘‘such amounts as may be necessary to carry out this title’’. 

SEC. 6. EFFECTIVENESS OF FEDERAL GRANT AND ASSISTANCE PROGRAMS IN MEETING PURPOSES AND POLICIES OF THE NATIONAL HISTORIC PRESERVATION ACT. 

The National Historic Preservation Act is amended by inserting after section 215 

(16 U.S.C. 470v–1) the following new section: 

‘‘SEC. 216. EFFECTIVENESS OF FEDERAL GRANT AND ASSISTANCE PROGRAMS. 

‘‘(a) COOPERATIVE AGREEMENTS.—The Council may enter into a cooperative agreement with any Federal agency that administers a grant or assistance program for 

the purpose of improving the effectiveness of the administration of such program in 

meeting the purposes and policies of this Act. Such cooperative agreements may include provisions that modify the selection criteria for a grant or assistance program 

to further the purposes of this Act or that allow the Council to participate in the 

selection of recipients, if such provisions are not inconsistent with the statutory authorization and purpose of the grant or assistance program. 

‘‘(b) REVIEW OF GRANT AND ASSISTANCE PROGRAMS.—The council may—

‘‘(1) review the operation of any Federal grant or assistance program to evaluate the effectiveness of such program in meeting the purposes and policies of 

this Act; 

‘‘(2) make recommendations to the head of the Federal agency that administers such program to further the consistency of the program with the purposes 

and policies of this Act and to improve its effectiveness in carrying out those 

purposes and policies; and 

‘‘(3) make recommendations to the President and the Congress regarding the 

effectiveness of Federal grant and assistance programs in meeting the purposes 

and policies of this Act, including recommendations with regard to appropriate 

funding levels.’’. 


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PURPOSE OF THE BILL

The purpose of H.R. 5861 is to amend the National Historic Preservation Act. 

BACKGROUND AND NEED FOR LEGISLATION

In April 2004, the Subcommittee on National Parks conducted a 

hearing on a draft bill that would have, among other things, limited the definition of ‘‘historic’’ under Section 106 of the National 

Historic Preservation Act (NHPA) to those sites and buildings listed on the National Register or those determined eligible by the Secretary of the Interior. Under the NHPA, an historic property is defined as sites, buildings, and other objects on the National Register 

of Historic Places or those ‘‘eligible for inclusion on the National 

Register.’’ The draft also would have required a certified local government under the NHPA that utilizes a determination of eligibility for inclusion on the National Register to initiate local regulatory requirements to provide full due process to persons who object to a determination of eligibility on property they own. 

Following the April 2004 hearing, Subcommittee staff continued 

to work with John Nau, Chairman of the Advisory Council on Historic Preservation, as well as the National Conference of State Historic Preservation Officers, the tribal community, the business community, the archeologists, and other preservation organizations to 

develop language to address issues raised in and since the 2004 

hearing. One of the goals for the Committee has been to reduce the 

burden (both time and money) that has been unnecessarily placed 

on an applicant under the Section 106 process. 

Discussions concluded with the introduction of H.R. 5861, which 

makes the following changes to the NHPA: (1) extends expenditures from the Historic Preservation Fund from 2005 to 2015 for 

state and tribal preservation activities; (2) reauthorizes and improves the administration of the Advisory Council on Historic Preservation; (3) requires a certified local government under the NHPA 

that utilizes a determination of eligibility to initiate local regulatory requirements to also provide full due process to property 

owners who object to a determination of eligibility on their property; and (4) amends Section 106 of the NHPA to require that a 

State Historic Preservation Officer/Tribal Historic Preservation Officer respond to a Section 106 application within 30 days of a ‘‘no 

adverse effects’’ finding and prohibits a State Historic Preservation 

Officer from requiring a federal agency and/or applicant to identify 

properties outside the identified area of potential effects as determined by the agency. The bill is designed to protect applicants from 

being required to fund surveys and other studies to identify historic 

properties beyond the area in which the undertaking may reasonably be expected to affect those historic properties. Section 106 of 

the NHPA requires that a federal agency take into account if a federal undertaking (i.e., a proposed activity involving federal dollars, 

a federal permit or license) will have an effect on any district, site, 

building, structure, or object that is included in or eligible for inclusion in the National Register of Historic Place. 

The Committee recognizes the importance of tribal historic preservation in the national historic preservation framework articulated in the NHPA. Under NHPA, tribes are increasingly choosing 


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to establish Tribal Historic Preservation Officer programs through 

agreements with the National Park Service. However, despite the 

increased tribal interest in participating actively in the national 

historic preservation framework by establishing Tribal Historic 

Preservation Offices, funding to support these important programs 

in Indian Country has remained stagnant and is being shared by 

a steadily increasing number of tribes. The Committee understands 

that at current funding levels, Tribal Historic Preservation Officers 

simply lack the resources and capacity to respond to all requests 

for comments in the Section 106 process in a timely fashion. The 

Committee urges the National Park Service to request funding for 

Tribal Historic Preservation Officers through the Historic Preservation Fund at a level sufficient to ensure that all Tribal Historic 

Preservation Officers have the resources necessary to build capacity to efficiently consider and process Section 106 clearance requests so that tribes have a fair opportunity to participate in the 

national historic preservation framework in a meaningful way. 

In terms of Section 2 of the bill, the Committee does not believe, 

nor is it its intention to (1) preempt existing programmatic or national programmatic agreements for an area of potential effects developed under Section 106 of the Act, or interfere in the development of future agreements; or (2) limit the obligations of a federal 

agency under the Section 106 regulations to take into account effects on historic properties if historic properties are discovered or 

unanticipated effects on historic properties are found after completion of the Section 106 process. Finally, the Committee expects the 

National Park Service will certify that all current and future certified local governments under the NHPA comply with the due 

process requirement in Section 3 of this bill. 

COMMITTEE ACTION

H.R. 5861 was introduced on July 20, 2006, by Congressman 

Stevan Pearce (R–NM). The bill was referred to the Committee on 

Resources. On July 26, 2006, the Full Resources Committee met to 

consider the bill. Congressman Pearce offered an amendment in the 

nature of a substitute that changed the section to be amend in the 

National Historic Preservation Act to better reflect the changes for 

the State Historic Preservation Officers in the Section 106 process, 

and modified the authorization for appropriations for the Advisory 

Council on Historic Preservation to improve long-term planning in 

Council programs. The amendment was adopted by unanimous consent. The bill as amended was then ordered favorably reported to 

the House of Representatives by unanimous consent. 

CONSTITUTIONAL AUTHORITY STATEMENT

Article I, section 8, clause 3 of the Constitution of the United 

States grants Congress the authority to enact this bill. 

COMPLIANCE WITH HOUSE RULE XIII 

1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the Rules of 

the House of Representatives requires an estimate and a comparison by the Committee of the costs which would be incurred in carrying out this bill. However, clause 3(d)(3)(B) of that rule provides 

that this requirement does not apply when the Committee has inVerDate Aug 31 2005 02:06 Sep 09, 2006 Jkt 049006 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\HR641.XXX HR641

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cluded in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974. 

2. Congressional Budget Act. As required by clause 3(c)(2) of rule 

XIII of the Rules of the House of Representatives and section 

308(a) of the Congressional Budget Act of 1974, this bill does not 

contain any new budget authority, spending authority, credit authority, or an increase or decrease in revenues or tax expenditures. 

3. General Performance Goals and Objectives. As required by 

clause 3(c)(4) of rule XIII, the general performance goal or objective 

of this bill is to amend the National Historic Preservation Act, and 

for other purposes. 

4. Congressional Budget Office Cost Estimate. Under clause 

3(c)(3) of rule XIII of the Rules of the House of Representatives and 

section 403 of the Congressional Budget Act of 1974, the Committee has received the following cost estimate for this bill from the 

Director of the Congressional Budget Office: 

H.R. 5861—National Historic Preservation Act Amendments of 2006 

Summary: H.R. 5861 would extend the authority to make annual 

deposits of $150 million to the Historic Preservation Fund (HPF) 

through fiscal year 2015. Authority to make those deposits of receipts earned from oil and gas development on the Outer Continental Shelf into the HPF expired at the end of fiscal year 2005. 

The National Park Service (NPS) uses amounts appropriated from 

the HPF for grants to state, local, and tribal governments, nonprofit organizations, and other entities. 

The bill also would authorize the appropriation of necessary 

amounts for each year to the Advisory Council on Historic Preservation (ACHP). Authority for this funding—at a specific annual 

level of $4 million—also expired at the end of 2005. Appropriations 

to ACHP are derived from the general fund of the U.S. Treasury. 

Assuming appropriation of the amounts deposited into the HPF 

each year, and assuming appropriation of the amounts estimated 

to be necessary for ACHP, CBO estimates that implementing H.R. 

5861 would cost about $500 million over the 2007–2011 period. Enacting this legislation would not affect direct spending or revenues. 

H.R. 5861 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA). 

Local governments might incur some costs as a result of new requirements included in this bill, but those costs would result from 

their participation in a voluntary federal program. 

Estimated cost to the Federal Government: The estimated budgetary impact of H.R. 5861 is shown in the following table. The costs 

of this legislation fall within budget function 300 (natural resources 

and environment). 

By fiscal year, in millions of dollars— 

2006 2007 2008 2009 2010 2011 

SPENDING SUBJECT TO APPROPRIATION 

Spending Under Current Law for Historic Preservation: 

Budget Authority 1 ....................................... 77 0 0 0 0 0 

Estimated Outlays ....................................... 79 52 26 14 7 3 


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By fiscal year, in millions of dollars—

2006 2007 2008 2009 2010 2011 

Proposed Changes: 

Spending of Deposits to HPF: 

Estimated Authorization Level ............ 0 150 150 150 150 150 

Estimated Outlays ....................................... 0 37 70 95 120 150 

Advisory Council on Historic Preservation: 

Estimated Authorization Level ............ 0 5 5 5 6 6 

Estimated Outlays .............................. 0 5 5 5 6 6 

Spending Under H.R. 5861 for Historic Preservation: 

Estimated Authorization Level ..................... 77 155 155 155 156 156 

Estimated Outlays ....................................... 79 94 101 114 133 159 

1 The 2006 level is the amount appropriated for that year, including $72 million to the NPS from the HPF and nearly $5 million to ACHP. 

Basis of estimate: For this estimate, CBO assumes that H.R. 

5861 will be enacted by the start of fiscal year 2007 and that the 

entire $150 million that would be transferred to the HPF each year 

under the bill will be appropriated in full beginning in that year. 

Annual deposits to the HPF have been at the $150 million level 

since 1980, but the amounts typically appropriated from the fund 

have been substantially lower. CBO expects that more than doubling the size of the historic preservation program (from the recent 

appropriation level of a little over $70 million a year) would initially lead to delays in processing grants and in raising funds for 

nonfederal matching shares. As a result, outlays would likely lag 

behind appropriations significantly over the next few years. 

The estimated authorization levels for ACHP operations are 

based on the current appropriation of nearly $5 million for 2006, 

adjusted annually for anticipated inflation. Outlay estimates are 

based on historical spending patterns for these activities. 

Other provisions of H.R. 5861, which would amend the National 

Historic Preservation Act, would have no significant impact on the 

federal budget. 

Intergovernmental and private-sector impact: H.R. 5861 contains 

no intergovernmental or private-sector mandates as defined in 

UMRA. Local governments might incur some costs as a result of 

new requirements included in this bill, but those costs would result 

from their participation in a voluntary federal program. State, 

local, and tribal governments would benefit from federal funds authorized by the bill. 

Previous CBO estimate: On March 16, 2006, CBO transmitted a 

cost estimate for S. 1378, the National Historic Preservation Act 

Amendments Act of 2006, as ordered reported by the Senate Committee on Energy and Natural Resources on March 8, 2006. The 

two versions of the legislation are very similar, and their estimated 

costs are identical. 

Estimate prepared by: Federal costs: Deborah Reis; Impact on 

state, local, and tribal governments: Marjorie Miller; Impact on the 

private sector: Paige Piper/Bach. 

Estimate approved by: Robert A. Sunshine, Assistant Director for 

Budget Analysis. 

COMPLIANCE WITH PUBLIC LAW 104–4 

This bill contains no unfunded mandates. 


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PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

This bill is not intended to preempt any State, local or tribal law. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, 

existing law in which no change is proposed is shown in roman): 

NATIONAL HISTORIC PRESERVATION ACT 

* * * * * * * 

TITLE I 

SEC. 101. (a) * * * 

(b)(1) * * * 

* * * * * * * 

(7) The State Historic Preservation Officer shall have no authority 

to require an applicant for Federal assistance, permit, or license to 

identify historic properties outside the undertaking’s area of potential effects as determined by the Federal agency in accordance with 

regulations implementing section 106. 

(8) If the State Historic Preservation Officer or Tribal Historic 

Preservation Officer fails to respond within 30 days after an adequately documented finding of ‘‘no historic properties affected’’ or 

‘‘no adverse effect’’ as provided in the regulations implementing section 106, the Federal agency may assume that the State Historic 

Preservation Officer or Tribal Historic Preservation Officer has no 

objection to the finding. 

(c)(1) Any State program approved under this section shall provide a mechanism for the certification by the State Historic Preservation Officer of local governments to carry out the purposes of this 

Act and provide for the transfer in accordance with section 103(c), 

of a portion of the grants received by the States under this Act, to 

such local governments. Any local government shall be certified to 

participate under the provisions of this section if the applicable 

State Historic Preservation Officer, and the Secretary, certifies that 

the local government—

(A) * * * 

* * * * * * * 

(D) provides for adequate public participation in the local 

historic preservation program, including the process of recommending properties for nomination to the National Register; 

øand¿ 

(E) agrees that it shall not use any eligibility determination 

regarding the inclusion of any property or District on the National Register to initiate local regulatory requirements unless 

the entity provides full due process protection to the owner or 

owners of the property or District through a hearing process; 

and 

ø(E)¿ (F) satisfactorily performs the responsibilities delegated to it under this Act. 


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Where there is no approved State program, a local government may 

be certified by the Secretary if he determines that such local government meets the requirements of subparagraphs (A) through 

ø(E)¿ (F); and in any such case the Secretary may make grants-inaid to the local government for purposes of this section. 

* * * * * * * 

SEC. 108. To carry out the provisions of this Act, there is hereby 

established the Historic Preservation Fund (hereafter referred to as 

the ‘‘fund’’) in the Treasury of the United States. There shall be covered into such fund $24,400,000 for fiscal year 1977, $100,000,000 for fiscal year 1978, $100,000,000 for fiscal year 

1979, $150,000,000 for fiscal year 1980, and $150,000,000 for fiscal 

year 1981 and $150,000,000 for each of fiscal years 1982 through 

ø2005¿ 2015, from revenues due and payable to the United States 

under the Outer Continental Shelf Lands Act (67 Stat. 462, 469), 

as amended (43 U.S.C. 1338), and/or under the Act of June 4, 1920 

(41 Stat. 813), as amended (30 U.S.C. 191), notwithstanding any 

provision of law that such proceeds shall be credited to miscellaneous receipts of the Treasury. Such moneys shall be used only to 

carry out the purposes of this Act and shall be available for expenditure only when appropriated by the Congress. Any moneys 

not appropriated shall remain available in the fund until appropriated for said purposes: That appropriations made pursuant to 

this paragraph may be made without fiscal year limitation. 

* * * * * * * 

TITLE II 

SEC. 201. (a) There is established as an independent agency of 

the United States Government an Advisory Council on Historic 

Preservation which shall be composed of the following members: 

(1) * * * 

* * * * * * * 

(4) the Secretary of Agriculture and the heads of øfour¿ 

seven other agencies of the United States (other than the Department of the Interior) the activities of which affect historic 

preservation, designated by the President; 

* * * * * * * 

(b) Each member of the Council specified in paragraphs (2) 

through (8) (other than ø(5) and (6)¿ paragraph (6)) of subsection 

(a) may designate another officer of his department, agency, or organization to serve on the Council in his stead, except that, in the 

case of paragraphs (2) and (4), no such officer other than an Assistant Secretary or an officer having major department-wide or agency-wide responsibilities may be so designated. 

* * * * * * * 

(f) øNine¿ Eleven members of the Council shall constitute a 

quorum. 

* * * * * * * 

SEC. 205. (a) * * * 

* * * * * * * 


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ø(f) Financial and administrative (including those related to 

budgeting, accounting, financial reporting, personnel and procurement) shall be provided the Council by the Department of the Interior, for which payments shall be made in advance, or by reimbursement, from funds of the Council in such amounts as may be 

agreed upon by the Chairman of the Council and the Secretary of 

the Interior: Provided, That the regulations of the Department of 

the Interior for the collection of indebtedness of personnel resulting 

from erroneous payments (5 U.S.C. 46e) shall apply to the collection of erroneous payments made to or on behalf of a Council employee, and regulations of said Secretary for the administrative 

control of funds (31 U.S.C. 665(g)) shall apply to appropriations of 

the Council: And provided further, That the Council shall not be required to prescribe such regulations.¿ 

(f) Financial and administrative services (including those related 

to budgeting, accounting, financial reporting, personnel and procurement) shall be provided the Council by the Department of the 

Interior or, at the discretion of the Council, such other agency or 

private entity that reaches an agreement with the Council, for which 

payments shall be made from funds of the Council in such amounts 

as may be agreed upon by the Chairman of the Council and the 

head of the agency or, in the case of a private entity, the authorized 

representative of the private entity that will provide the services. 

When a Federal agency affords such services, the regulations of that 

agency for the collection of indebtedness of personnel resulting from 

erroneous payments, prescribed under section 5514(b) of title 5, 

United States Code, shall apply to the collection of erroneous payments made to or on behalf of a Council employee, and regulations 

of that agency for the administrative control of funds under sections 

1513(d) and 1514 of title 31, United States Code, shall apply to appropriations of the Council. The Council shall not be required to 

prescribe such regulations. 

* * * * * * * 

SEC. 212. (a) The Council shall submit its budget annually as a 

related agency of the Department of the Interior. There are authorized to be appropriated øfor the purposes of this title not to exceed 

$4,000,000 in each fiscal year 1997 through 2005¿ such amounts as 

may be necessary to carry out this title. 

* * * * * * * 

SEC. 216. EFFECTIVENESS OF FEDERAL GRANT AND ASSISTANCE PROGRAMS 

(a) COOPERATIVE AGREEMENTS.—The Council may enter into a cooperative agreement with any Federal agency that administers a 

grant or assistance program for the purpose of improving the effectiveness of the administration of such program in meeting the purposes and policies of this Act. Such cooperative agreements may include provisions that modify the selection criteria for a grant or assistance program to further the purposes of this Act or that allow 

the Council to participate in the selection of recipients, if such provisions are not inconsistent with the statutory authorization and purpose of the grant or assistance program. 

(b) REVIEW OF GRANT AND ASSISTANCE PROGRAMS.—The council 

may—


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(1) review the operation of any Federal grant or assistance 

program to evaluate the effectiveness of such program in meeting the purposes and policies of this Act; 

(2) make recommendations to the head of the Federal agency 

that administers such program to further the consistency of the 

program with the purposes and policies of this Act and to improve its effectiveness in carrying out those purposes and policies; and 

(3) make recommendations to the President and the Congress 

regarding the effectiveness of Federal grant and assistance programs in meeting the purposes and policies of this Act, including recommendations with regard to appropriate funding levels. 

* * * * * * * 

Æ 


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