Chapter 9 . Historic and Archeological Preservation

Topics on this page: 9.1 Policy | 9.2 Administrative Requirements | 9.3 Guidance and Information | 9.4 Reporting

9.1 Policy

It is the policy of Department Health and Human Services (HHS) Divisions whose activities may affect a historic or cultural asset of the United States, will comply with "The Secretary of the Interior's Guidelines and Standards for Historic Preservation Programs" in order that all HHS activities will be carried out in compliance with the National Historic Preservation Act (NHPA) of 1966, as amended and other related laws and Executive Orders. For HHS grants that affect historic properties please see HHS Grants Policy Administration Manual.

9.1.1 Preserve America

Executive Order 13287, "Preserve America," which was signed by the President on March 3, 2003, established Federal policy to provide leadership in preserving America's heritage by actively advancing the protection, enhancement, and contemporary use of the historic properties owned by the Federal Government, and by promoting intergovernmental cooperation and partnerships for the preservation and use of historic properties.

The Executive Order directs Federal agencies to improve their knowledge about, and management of, historic resources in their care. It also encourages agencies to seek partnerships with state, tribal, and local governments, and the private sector to make more efficient and informed use of these resources for economic development and other recognized public benefits.

9.1.2 Federal Mandates

Relevant statutes and regulations include but are not limited to:

9.2 Administrative Requirements

This section describes the administrative requirements regarding responsibilities within HHS for historic and archeological preservation.

9.2.1 Responsibilities

The Secretary of Health and Human Services has designated the Director for Program Support Center (PSC) as the HHS senior policy level official to have policy oversight responsibility for the agency's historic preservation program. The PSC Director has further designated a qualified subordinate employee to serve as the agency's Federal Preservation Officer in accordance with Section 110(c) of the NHPA. The Federal Preservation Officer is qualified consistent with guidelines established by the Secretary of the Interior for that position and has access to adequate expertise and support to carry out the duties of the position.

The following describes the roles of the parties involved in the NHPA Section 106 and Section 110 processes.

Federal Preservation Officer

Section 110 of NHPA requires that HHS designate a qualified official to develop Departmental policies and resolving disagreements regarding OPDIV's preservation activities under NHPA.
OPDIV Federal Preservation coordinator

A delegated authority to carry out the requirements of preservation activities under federal mandates listed in 2.2.2 Administrative Requirements as it relates to their assigned OPDIV.
Agency Official

Per 36 CFR Part 800 Subpart A, the agency official has approval authority for the undertaking as a result of Section 106 compliance and commit the Federal agency to any obligation it may assume in the implementation of a program alternative. The agency official may be a State, local, or tribal government official who has been delegated legal responsibility with Section 106 in accordance with law.
1. HHS STAFFDIVS do not have an agency official because STAFFDIVs do not have the delegated authority from the Administrator of the General Services Administration associated with real estate acquisition as indicated in FMR § 102-73.5
State Historic Preservation Officer

State Historic Preservation Officers (SHPOs) administer the national historic preservation program at the State level, review National Register of Historic Places nominations, maintain data on historic properties that have been identified but not yet nominated, and consult with the OPDIV during the Section 106 review. SHPOs are designated by the Governor of their respective State or territory. The OPDIV seeks the views of the SHPO when identifying historic properties. The OPDIV also consults with SHPOs when developing Memorandums of Agreements (MOA).
Tribal Historic Preservation Officer

Tribal Historic Preservation Officers (THPOs) are officially designated by a federally recognized Indian tribe to direct a program approved by the National Park Service in which the THPO must have assumed the some or all the functions of State Historic Preservation Officers on Tribal lands. This program was made possible by provisions of Section 101(d)(2) of the NHPA.
The Advisory Council on Historic Preservation

The Advisory Council on Historic Preservation (Council) is responsible for commenting to the Agency Official on an undertaking that affects historic properties. The Council is an independent federal agency, established under NHPA.
Department of the Interior/National Park Service

The National Park Service (NPS) has no specifically stipulated role in the Section 106 process, but it performs a variety of pertinent functions, including the following: functions as a major land-managing agency; acts as a steward for historic areas in the National Park System; administers the Historic Preservation Fund grants- in-aid program, National Historic Landmarks program, Historic American Buildings Survey/Historic American Engineering Record (HABS/HAER), and the Certified Local Governments program; maintains the National Register of Historic Places; provides technical information and guidance; specifies standards for preservation-related activities that are often referenced in Section 106 agreement documents; and reviews State historic programs.
Keeper of the Register

The Keeper of the Register (Keeper) is an employee of the NPS and makes the final determination of eligibility for inclusion into the Register.

9.2.2 Procedures

Building Preservation Partnerships

The following procedures apply to Executive Order 13287, Preserve America. When carrying out its mission activities, each OPDIV, where consistent with its mission and governing authorities, and where appropriate, shall seek partnerships with state and local governments, Indian tribes, and the private sector to promote local economic development and vitality using historic properties in a manner that contributes to the long-term preservation and productive use of those properties. Each OPDIV shall examine its policies, procedures, and capabilities to ensure that its actions encourage, support, and foster public-private initiatives and investment in the use, reuse, and rehabilitation of historic properties, to the extent such support is not inconsistent with other provisions of law, the Secretary of the Interior's Standards for Archeology and Historic Preservation, or essential Departmental and HHS Division mission requirements.
Improving HHS Planning and Accountability

Accurate information on the state of HHS owned historic properties is essential to achieving the goals of this order and to promoting community economic development through local partnerships. Each HHS OPDIV with real property management responsibilities shall prepare an assessment of the status of its inventory of historic properties required by section 110(a)(2) of the NHPA (16 USC 470h- 2(a)(2)), the general condition and management needs of such properties, and the steps underway or planned to meet those management needs. The assessment shall also include an evaluation of the suitability of the OPDIV's types of historic properties to contribute to community economic development initiatives taking into account HHS OPDIV mission needs, public access considerations, and the long-term preservation of the historic properties. The first status reports required by EO 13287, were due to the Chairman of the Advisory Council on Historic Preservation (Council) and the Secretary of the Interior by September 30, 2005. Follow-up reports are due every third year thereafter.
Improving Federal Stewardship of Historic Properties

Each OPDIV shall ensure that the management of historic properties in its ownership is conducted in a manner that promotes the long-term preservation and use of those properties as Federal assets and, where consistent with OPDIV missions, governing law, and the nature of the properties, contributes to the local community and its economy.
1. HHS OPDIVs must solicit information from their consulting parties to carry out their responsibilities under historic and cultural preservation laws and regulations through an OPDIV's public notification processes.
2. If required, then HHS OPDIVs must not perform an undertaking that could alter, destroy, or modify an historic or cultural property until they have consulted with SHPO/THPO and the Advisory Council. HHS OPDIVs must minimize all adverse impacts of their undertaking on historic or cultural properties to the extent that is feasible to do so. HHS OPDIVs must follow the specific guidance on the protection of historic and cultural properties in 36 CFR part 800.
3. HHS OPDIVs must assume historic preservation responsibilities for real property assets under their custody and control.
4. If an HHS Division occupying space in buildings under the custody and control of another Federal agencies, then the HHS Division must obtain approval to alter and modify the space from the agency having custody and control of the building per FMR 102-78.55.
5. Where consistent with OPDIV missions and the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation, and where appropriate, agencies shall cooperate with communities to increase opportunities for public benefit from, and access to, federally owned historic properties.
National Register Criteria for Eligible Properties

In accordance with 36 CFR 60.4, HHS OPDIVs must evaluate a property's eligibility for listing in the National Register. HHS OPDIVs with all properties eligible under their control to be nominated to the National Register.
Eligibility Determinations
1. HHS OPDIVs, in consultation with the SHPO (or, in the event the Secretary of the Interior has determined that a specific Indian Tribe(s) may assume the functions of the State Historic Preservation Officer with respect to tribal lands on which the property is located, the THPO), shall apply the National Register Criteria for Eligibility to each property to determine if the property(ies) is (are) eligible for the National Register of Historic Places (NRHP).
2. Where a federally recognized Indian tribe has not assumed the responsibilities of the SHPO on tribal lands, consultation with the Indian tribe regarding actions occurring on such tribe's lands or effects on such tribal lands shall be in addition to and on the same basis as consultation with the SHPO.
  1. If the SHPO/THPO fails to respond within 30 days of receipt of a request for review of a determination of eligibility, then the Agency Official may either proceed to the next step in the process based on the finding or determination or consult with the Council in lieu of the SHPO/THPO.
  2. If the designated HHS agency official determines any of the National Register criteria are met and the SHPO/THPO agrees, then the property shall be considered eligible for the National Register.
  3. If the Agency Official determines the criteria are not met and the SHPO/THPO agrees, then the property shall be considered not eligible.
  4. If the OPDIV and the SHPO/THPO do not agree, or if the Council or the Secretary of the Interior (Secretary) so request, then the OPDIV Federal Preservation Coordinator shall submit a Nomination Form to the Department of the Interior requesting the Keeper of the National Register (Keeper) to decide concerning eligibility.
  5. If an Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to a property off tribal lands does not agree with the OPDIV Federal Preservation Coordinator's determination of eligibility, then it may ask the Council to request the Agency Official to obtain a determination of eligibility.
  6. In the event a request for NRHP eligibility determination is submitted to the Keeper, no action may be taken until the Keeper responds or until 45 days have passed, whichever occurs first. Consultation with the Council can be conducted simultaneously.
  7. If the Keeper finds the property ineligible for the NRHP, then the cultural identification process is complete.
Determination of Effect On Historic Properties
1. OPDIV Federal Preservation Coordinator will decide whether an historic property is affected and potential effect of an undertaking on an historic property.
2. The effects on historic properties are no adverse affected adverse affected.
  1. A finding of no historic property affected or no adverse effect on an historic property requires SHPO/THPO notification and making documentation available for inspection prior to approving an undertaking.
  2. Any disagreement within the 30-day review period with the no historic property affected on an historic property determination requires consultation with the SHPO and the Council to resolve disagreement in accordance with 36 CFR § 800.5(c)(2)(i).
3. A finding of an adverse effect will require a memorandum of agreement (MOA) with the SHPO. The MOA usually will have stipulations that the agency agrees to accomplish to mitigate the adverse effect(s) on historic property. The OPDIV will coordinate the Section 106 process between the SHPO, the Advisory Council and the HHS. The OPDIV Federal Preservation Coordinator will negotiate and execute (within his or her authority) memorandums of agreements with the SHPO and the Council.
  1. Any project that adversely affects HHS historic property must be designed in accordance with the Secretary of the Interior's Rehabilitation Guidelines.
  2. Note that all projects in the National Capital Region that are required to be reviewed by the National Capital Planning Commission must have a determination of effect on historic property and the SHPO must have concurred with the determination before the Commission will act on the project.
Historic Reviews

A historic review is an examination and analysis of potential effects on the property, which might occur because of a proposed HHS construction action. A historic property may be affected whenever one or more of the following changes occur:
1. Physical characteristics are altered such as by re-grading of site, provision of handicapped access, changing any significant features of the property, remodeling, renovating, restoring, rehabilitating, repairing or any maintenance of the property that is not consistent with the Secretary's standards for treatment of historic properties and/or demolition of any buildings or any portion of the property(ies).
2. The physical setting is altered such as extensive changes to nearby districts, sites, or buildings.
3. The property is moved.
4. The use of the property is changed.
5. The level of activity occurring at the property changes.
6. The property becomes neglected, which causes its deterioration.
7. The transferor sale of property out of federal ownership.
Archeological Data
1. Construction Contract Specifications - HHS construction contracts involving excavation should include appropriate specifications to avoid excess claims in the event notification and recovery procedures associated with archeological data are required.
2. Application for Permit – If a planned construction is on public and Indian lands, then HHS OPDIVs must apply to the Secretary of Interior Federal Land Manager for a permit to excavate or remove any archeological resources per 16 U.SC. Ch. 1B § 470cc.
3. Notification - If continuing with the planned construction will bring about the irretrievable loss of significant archeological, historic, or prehistoric data, the HHS OPDIV shall inform the Secretary of the Interior.
  1. If the Secretary does not respond within 60 days, then the review is complete.
  2. If the Secretary offers to pay for the recovery of the data, then they shall have at least six months to affect recovery.

9.3 Guidance and Information

OPDIVs should be developing reporting systems to fulfill the assessment and reporting requirements of subsections 3(a)-(c) of EO 13287.To assist agencies, the Council, in consultation with the Secretary of the Interior, has prepared advisory historic preservation program guidelines for agencies to use at their discretion.

9.3.1 Applicability

Historic Preservation - Each proposed HHS construction action must be reviewed to determine whether it will affect a property that is on or may be eligible for the NRHP. This determination must be made by the HHS OPDIV. It is recommended that such determinations be made as early as possible in the planning and budgeting process.
Archaeological Data Recovery – If an OPDIV determines after coordinating with consulting party that an archeological survey of the site and reasonable portion of the surrounding Area of Potential Effect (typically 15-30 meters beyond the site's boundaries) is needed, then the survey should be undertaken as early as possible in the planning process.
1. Since, heavy construction equipment used in excavation, grading or site preparation work could destroy the construction site's soil stratigraphy as well as affect the significant objects or artifacts themselves, the OPDIV must determine whether and an archaeological survey is required.
  1. If required, the archaeological survey must be performed before construction activity begins to understand the context of significant objects or artifacts that might be present.
  2. It is the responsibility of the HHS OPDIV involved to include specifications for identification and contextual analysis recovery of artifacts.
  3. Construction shall stop in the event a possible cultural material is encountered while a qualified archaeologist conducts a site visit and assesses the find.
  4. Construction can begin when all cultural work from the qualified archaeologist complete Potential for time delays and extra costs associated with artifact recovery should be considered.
2. Native American Graves Protection and Repatriation Act: These regulations develop a systematic process for determining the rights of lineal descendants and Indian tribes and Native Hawaiian organizations to certain Native American human remains, funerary objects, sacred objects, or objects of cultural patrimony with which they are affiliated. These regulations also pertain to the identification and appropriate disposition of human remains, funerary objects, sacred objects, or objects of cultural patrimony that are:
  1. In Federal possession or control;
  2. In the possession or control of any institution or State or local government receiving Federal funds; or
  3. Excavated intentionally or discovered inadvertently on Federal or tribal lands. See 43 CFR 10.4 for guidance.

9.3.2 Promoting Preservation through Heritage Tourism

Where consistent with OPDIV missions and governing law, and where appropriate, OPDIVs shall use historic properties in their ownership in conjunction with state, tribal, and local tourism programs to foster viable economic partnerships, including, but not limited to, cooperation and coordination with tourism officials and others with interests in the properties.

9.3.3 Leasing in Historic Properties

In accordance with EO 13006, HHS OPDIVs that have mission requirements to locate in an urban area must first give consideration to space in historic buildings and districts inside central business areas. HHS OPDIVs may provide a price preference of up to 10 percent to space in historic buildings and districts in accordance to §102-73.120 and §102-73.125 of the Facility Management Regulations.

9.3.4 Historic Preservation Responsibilities during Disposal

HHS OPDIVs have the following responsibilities regarding historic property disposals:

To the extent practicable, establish and implement alternative for historic properties, including adaptive use, that are not needed for current or projected HHS OPDIV purposes and report through GSA's Report of Property Excess (ROE) Portal and complete GSA's Excess Real Property Due Diligence Checklist.
Review all proposed excess actions to identify any properties listed in or eligible for listing in the National Register. HHS OPDIVs must not perform disposal actions that could result in the alteration, destruction, or modification of an historic or cultural property until HHS OPDIVs have consulted with the SHPO, THPO, and the Advisory Council.
HHS OPDIVs must not accept property declared excess by another Federal agency nor act as agent for transfer or sale of such properties until the holding agency provides evidence that the Federal agency has met its National Historic Preservation responsibilities described through GSA's Office of Real Property Utilization and Disposal site.

9.4 Reporting

Each OPDIV with real property management responsibilities are responsible for reporting third year since September 30, 2005 on its progress in identifying, protecting, and using historic properties in its ownership. The report must be provided to PSC mailbox by March 31 on the year a report is due, which is responsible for consolidating the reports and sending to the Council.

9.4.1 Topic Areas

The main topic areas to be addressed in the reporting requirements are the following:

What types of historic properties does the OPDIV own or manage and how is this information collected and maintained?
How does the OPDIV characterize the distribution and general condition of these properties?
What reporting mechanisms and systems are used by the OPDIV for carrying out its resource management responsibilities?
How is the OPDIV fulfilling its historic preservation program responsibilities under Section 110 of NHPA?
How is the OPDIV complying with Section 111 of NHPA when historic properties are transferred, leased, or sold?
Does the OPDIV have programs and policies that help it to identify historic preservation opportunities and promote preservation through partnerships?
How would the OPDIV characterize its overall progress in meeting its property management and stewardship responsibilities since filing its last Executive Order 13287, Section 3 Report?

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