[Federal Register Volume 78, Number 36 (Friday, February 22, 2013)]
[Pages 12336-12337]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-04138]



Draft Program Comment for Extending the Duration of Programmatic 
Agreements Based on the Department of Energy Prototype Programmatic 
Agreement for Its Weatherization Assistance Program, State Energy 
Program, and Energy Efficiency and Conservation Block Grant

AGENCY: Advisory Council on Historic Preservation.

ACTION: Notice of Intent to Issue Program Comments for Extending the 
Duration of Programmatic Agreements based on the Department of Energy 
(DOE) Prototype Programmatic Agreement for its Weatherization 
Assistance Program (WAP), State Energy Program (SEP), and Energy 
Efficiency and Conservation Block Grant (EECBG).


SUMMARY: The Advisory Council on Historic Preservation (ACHP) is 
considering issuing a Program Comment for the DOE that would continue 
its program of tailored compliance with Section 106 of the National 
Historic Preservation Act for the Office of Weatherization and 
Intergovernmental Programs Weatherization Related Grant Programs: WAP, 
SEP, and EECBG. The ACHP seeks public input on the proposed Program 

DATES: Submit comments on or before 5:00 p.m. EST, March 1, 2013.

ADDRESSES: Address all comments concerning this proposed Program 
Comment to Lee Webb, Office of Federal Agency Programs, Advisory 
Council on Historic Preservation, 1100 Pennsylvania Avenue, NW., Suite 
803, Washington, DC 20004. You may also submit comments via fax at 
(202) 606-8647 or via electronic mail at [email protected].

[email protected].

SUPPLEMENTARY INFORMATION: Section 106 of the National Historic 
Preservation Act requires federal agencies to consider the effects of 
their undertakings on historic properties and to provide the ACHP a 
reasonable opportunity to comment with regard to such undertakings. The 
ACHP has issued the regulations that set forth the process through 
which Federal agencies comply with these duties. Those regulations are 
codified under 36 CFR part 800 (Section 106 regulations).
    Under Section 800.14(e) of those regulations, agencies can request 
the ACHP to provide a ``Program Comment'' on a particular category of 
undertakings in lieu of conducting individual reviews of each 
individual undertaking under such category, as set forth in 36 CFR 
800.4 through 800.7. An agency can meet its Section 106 
responsibilities with regard to the effects of particular aspects of 
those undertakings by taking into account ACHP's Program Comment and 
following the steps set forth in that comment.

I. Background

    The DOE's Office of Weatherization and Intergovernmental Programs 
(OWIP) provides financial assistance to state agency applicants for 
three weatherization related grant programs: WAP, SEP, and EEBG. DOE 
has determined that activities carried out by these funded programs 
constitute undertakings with the potential to affect historic 
properties. Therefore, DOE must comply with Section 106 and its 
implementing regulations for these undertakings.
    The ACHP and DOE began a partnership in August 2009 to explore 
possible program alternatives to tailor the Section 106 process for 
these undertakings in anticipation of the dramatic increase in project 
funding as a result of American Recovery and Reinvestment Act. DOE, in 
consultation with the ACHP and the National Conference of State 
Historic Preservation Officers, developed a prototype Programmatic 
Agreement (PA) to cover three weatherization related grant programs and 
to create efficiencies in the administration of these OWIP grants: WAP, 
SEP, and EECBG. The prototype PA identifies a category of routine 
undertakings with limited potential to affect historic properties and 
exempts them from further review. The ACHP's Chairman designated the 
prototype PA on February 8, 2010. Under the terms of the prototype PA, 
DOE, the SHPO, and the relevant state agency receiving OWIP grants can 
execute subsequent

[[Page 12337]]

agreements without ACHP involvement. Execution of an agreement pursuant 
to the prototype PA presumes that DOE will conduct its government-to-
government consultation responsibilities with federal recognized Indian 
tribes and its Section 106 consultation requirements with Native 
Hawaiian organizations. If DOE is notified that a particular 
undertaking may result in an adverse effect on historic properties of 
religious and cultural significance to Indian tribes or Native Hawaiian 
organizations, DOE must invite such Indian tribes or Native Hawaiian 
organizations to participate in consultation for the affected project.
    Since its designation, DOE has used the prototype PA to 
successfully negotiate and execute 44 programmatic agreements with 
SHPOs and state agencies receiving DOE OWIP grants. DOE's direct 
recipients may use the executed state agreement developed under the 
prototype PA as well. The ACHP provided guidance and technical 
assistance to DOE Project Officers and SHPOs during the negotiation and 
subsequent implementation of the agreements, for example, assisting in 
the determination of appropriate treatments and mitigation for 
individual projects that resulted in adverse effects.
    In the past year, DOE and the ACHP have discussed how to extend and 
build upon the program established by the prototype PA. As part of this 
effort, the ACHP, with DOE's participation, hosted a series of 
listening sessions for SHPOs. The ACHP will also provide an opportunity 
for SHPOs, tribes, Native Hawaiian organizations, and state agencies an 
opportunity to comment. The 44 agreements executed under the prototype 
PA have different expiration dates. Several of the agreements will 
expire in mid-March 2013. While the prototype PA originally proposed a 
three year duration clause for these agreements, it is now DOE's and 
the ACHP's intention that these agreements should extend beyond this 
three year term.
    This Program Comment proposes to extend the duration of the 
existing 44 agreements executed under the prototype PA until December 
31, 2020, and provide the same duration period for any future 
agreements that may be executed under the prototype PA. Nothing in this 
Program Comment would alter or modify any other provisions of the 
prototype PA or the 44 agreements, including the ability of the parties 
to amend or terminate an executed agreement prior to the expiration 

II. Expected Benefits

    As a result of the partnership with ACHP and the development and 
the administration of the prototype PA, DOE established internal and 
external training; recognized best management practices; and utilized 
DOE guidance and directives to ensure that the DOE weatherization 
programs were properly implemented in compliance with Section 106. The 
prototype PA established review efficiencies and protocols which 
allowed for the grant programs to expedite the weatherization efforts 
of the homes of many low income individuals across the country, as well 
as assisted communities in funding energy efficiency, renewable energy, 
and weatherization projects for public buildings such as schools and 
courthouses. Due to the success of the prototype PA for DOE's 
weatherization programs, other departments within DOE have sought 
ACHP's and OWIP staff's guidance and direction for meeting their 
historic preservation compliance responsibilities.
    The proposed Program Comment would build upon and extend the 
success of the prototype PA and continue the DOE's program of tailored, 
efficient compliance with Section 106. Once the public comments 
resulting from this notice are considered, and edits are incorporated 
as deemed appropriate, the ACHP will decide whether to issue the 
Program Comment. The ACHP expects to make that decision in mid-March 

III. Text of the Proposed Program Comment

    The following is the text of the proposed Program Comment:

I. Establishment and Authority

    This Program Comment was issued by the ACHP on March 2013 pursuant 
to 36 CFR 800.14(e).

II. Date of Effect

    This Program Comment went into effect on March 2013.

III. Use of this Program Comment to Extend the Duration of the Existing 
Agreements Executed under the DOE Prototype PA and for New Agreements 
Executed pursuant to the Prototype PA

    The DOE may continue, through December 31, 2020, complying with its 
responsibilities under Section 106 of the National Historic 
Preservation Act for its Weatherization Assistance Program (WAP), State 
Energy Program (SEP), and Energy Efficiency and Conservation Block 
Grant (EECBG) in the relevant States using the 44 agreements currently 
executed, and those to be executed, under the ``Prototype Programmatic 
Agreement between the United States Department of Energy, the State 
Energy Office and the State Historic Preservation Office regarding 
EECBG, SEP and WAP Undertakings,'' designated by the ACHP on February 
8, 2010, regardless of the duration clause of those agreements. 
However, if any of those agreements gets terminated under its own 
terms, DOE may no longer use it to comply with its Section 106 
responsibilities in the relevant State. This will provide continuity in 
the Section 106 review for those undertakings covered by the existing 
and any new agreements executed under the prototype PA. This Program 
Comment does not alter or modify any provisions of the prototype PA or 
the 44 executed agreements other than their duration clauses.

IV. Amendment

    The ACHP may amend this Program Comment after consulting with DOE, 
NCSHPO, and other parties as appropriate, and publishing notice in the 
Federal Register to that effect.

V. Sunset Clause

    This Program Comment will terminate on December 31, 2020, unless it 
is amended to extend the period in which it is in effect.

VI. Termination

    The ACHP may terminate this Program Comment by publication of a 
notice in the Federal Register thirty (30) days before the termination 
takes effect.

    Authority:  36 CFR 800.14(e).

    Dated: February 19, 2013.
John M. Fowler,
Executive Director.
[FR Doc. 2013-04138 Filed 2-21-13; 8:45 am]