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Notice

Clarification of Exemption Regarding Historic Preservation Review Process for Projects Involving Historic Natural Gas Pipelines

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Information about this document as published in the Federal Register.

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AGENCY:

Advisory Council on Historic Preservation.

ACTION:

Notice of clarification of exemption regarding historic natural gas pipelines.

SUMMARY:

The Advisory Council on Historic Preservation clarifies its exemption from historic preservation review for projects involving historic natural gas pipelines by answering five questions that were posed after the exemption went into effect.

DATES:

The exemption went into effect on April 5, 2002.

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FOR FURTHER INFORMATION CONTACT:

Address all questions about this clarification to Javier Marques, Office of General Counsel, Advisory Council on Historic Preservation, 1100 Pennsylvania Ave., NW., Suite 809, Washington,DC 20004. Telephone: 202-606-8503. Facsimile: 202-606-8672. E-mail: jmarques@achp.gov.

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SUPPLEMENTARY INFORMATION:

On April 5, 2002, the Advisory Council on Historic Preservation (“Council”) published in the Federal Register a Notice of Exemption Regarding Historic Preservation Review Process for Projects Involving Historic Natural Gas Pipelines (67 FR 16364). Since then, several questions regarding the interpretation and application of the exemption have been brought to the Council's attention. The purpose of this notice is to provide answers to those questions and to clarify the exemption. The following information constitutes the Council's formal views on the interpretation and application of the exemption and should be considered by all parties when taking actions under the exemption.

There are cases where the applicant, a Federal agency and a State Historic Preservation Officer (SHPO) have completed the section 106 process for a Federal action concerning a historic natural gas pipeline prior to the effective date of the exemption. Does the exemption supersede agreements that have been previously executed under Section 106?

Unless otherwise agreed to by the parties, the exemption will supersede any Memorandum of Agreement (MOA) in existence when the exemption went into effect. Note, however, that the exemption only applies to the effects of an action on historic natural gas pipelines. Accordingly, those portions of an MOA that deal with impacts on other historic properties remain in effect. If the agreement was a Programmatic Agreement (PA) developed in accordance with the Council's Section 106 regulations, the provisions of the PA remain applicable. See provision III of the exemption.

Some abandonments filed under section 7(b) of the Federal Natural Gas Act do not involve taking a historic pipeline permanently out of service or do not remove facilities from interstate commerce. Do these situations trigger the exception to the exemption that would require the applicant to meet the documentation standards contained in the exemption?

No. If the pipeline facilities will remain in operation and in interstate service, and therefore subject to subsequent Federal jurisdiction, the applicant for a section 7(b) abandonment is not required to comply with the documentation standards. For abandonments that would take facilities out of service permanently, or that would involve the sale of the facilities to a new owner who would remove the facilities from use in interstate commerce, the required documentation would be a condition for the abandonment.

If only a portion of a historic pipeline facility is proposed for abandonment, must the applicant meet the documentation requirements for the entire facility?

No. Only the portion proposed for abandonment must be documented before the Federal approval is granted. However, as the documentation for the segment to be abandoned may well include much of the information needed should future segments be abandoned, applicants may wish to consider providing documentation for other segments, up to and including the entire pipeline facility, to eliminate the need for a subsequent documentation effort should another segment or the entire pipeline facility be proposed for abandonment in the future.

What is the timing for completion of the documentation requirements specified in the exception to the exemption?

The documentation requirements can be completed at any time prior to the formal Federal action approving the abandonment. Given that the time period for the Federal agency to review the proposed action is usually several months, it is anticipated that there will be sufficient time to complete the requirements so that processing of the Federal approval will not be delayed. Subject to their individual legal authorities, Federal agencies may condition their approval of the abandonment on satisfactory completion of the documentation requirements, after which the abandonment would take effect. Applicants are encouraged to undertake preparation of the documentation as soon as the abandonment process is initiated in order to avoid any subsequent delays.

If the applicant pursues the process laid out in the exemption and the opinion of the SHPO is sought regarding the eligibility of the pipeline facilities for the National Register of Historic Places, is there a time limit within which the SHPO must respond?

Yes. While the concurrence of the SHPO must be sought in reaching a determination of eligibility (36 CFR 800.4(c)(2)), the Council's regulations (36 CFR 800.3(c)(4)) authorize the Federal agency official to proceed to the next step in the process based on the proposed determination if the SHPO fails to respond within 30 days of receipt of a request for review of the determination. This means also that, where an applicant has taken the lead in establishing the eligibility of a historic pipeline facility for the National Register, the same 30-day limit applies for the SHPO response.

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Authority: 16 U.S.C. 470v; 36 CFR 800.14(c).

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Dated: April 22, 2002.

John M. Fowler,

Executive Director.

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[FR Doc. 02-10259 Filed 4-25-02; 8:45 am]

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