Part 12: Laws Governing National Historic Preservation Programs

List of National Register Bulletins

Historic Sites Act of 1935
Public Law 74-292

This act establishes as national policy the preservation for public use of historic resources by giving the Secretary of the Interior the power to make historic surveys to document, evaluate, acquire, and preserve archeological and historic sites across the country. It led to the eventual establishment within the National Park Service of the Historic Sites Survey, the Historic American Buildings Survey, and the Historic American Engineering Record.

National Historic Preservation Act of 1966
Public Law 89-665 16 U.S.C. 470-470m.

This act authorizes the Secretary of the Interior to expand and maintain a National Register of districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, engineering, and culture, of National, State, and local significance, and to grant funds to States for the purpose of undertaking comprehensive statewide historic surveys and preparing statewide plans for historic preservation. It establishes a program for matching grants-in-aid to the States for the preservation, acquisition, and development of National Register properties and provides funding to the National Trust for Historic Preservation to implement its programs. The Advisory Council on Historic Preservation was established through this act to advise the President and Congress on matters relating to historic preservation and to comment on federally licensed, funded, or executed undertakings affecting National Register properties. Under section 106, Federal agencies are required to take into account the effect of their proposed undertakings on properties listed in or eligible for inclusion in the National Register before the expenditure of Federal funds or the issuance of any licenses, and to allow the Advisory Council a reasonable opportunity to comment. This act was amended significantly by the National Historic Preservation Act Amendments of 1980.

National Historic Preservation Act Amendments of 1980
Public Law 96-515 December 12, 1980

These amendments continue existing National Register programs, require public and local government participation in the nomination process, and prohibit listing of properties if the private property owner objects. The amendments specifically authorize the National Historic Landmarks program, strengthen the role of State programs, establish statutory authority for existing elements of programs (such as SHPOs, review boards, and public participation), and establish statutory responsibilities for Federal agencies to manage federally owned historic properties, surveys and nominations, recording of buildings to be lost, appointment of agency preservation officers, leasing of historic Federal buildings, and increased sensitivity of Federal programs to meeting preservation objectives. A process was created for States to develop Certified Local Government (CLG) programs. SHPOs are required to subgrant 10% of the State's annual appropriation from the Historic Preservation Fund to CLGs.

The amendments require the Department of the Interior to develop standards for the preservation of Federally owned or controlled historic properties and regulations for ensuring that Federally owned or controlled archeological collections are deposited in institutions with adequate long-term curatorial capability. They allow Federal agencies to waive the 1% limitation on data recovery authorized by the Archeological and Historic Preservation Act of 1974. They authorize the Secretary of the Interior to direct U.S. participation in the World Heritage Convention and establish procedures for nomination of World Heritage properties. A 30-day review period for Senate and House Committee review of Interior regulations is provided.

The amendments authorize Federal courts to award attorneys' fees and costs in suits. Membership of the Advisory Council on Historic Preservation is changed and the Council is given additional authority to review Federal programs and recommend improvements and to educate government agencies, organizations, and the public concerning Council activities. The new provisions authorize a system for exemption of programs from Section 106 when impacts are negligible and require procedures for participation of local governments in the Section 106 process. They require Federal agencies to consult with the Council regarding contracts to manage historic properties and to seek Council comments on actions affecting nationally significant properties.

National Historic Preservation Act Amendments of 1992
Public Law 102-575 October 30, 1992

The amendments established a major new program area for American Indian tribes and Native Hawaiian groups. It requires that NPS establish a Tribal program, foster communication and cooperation with Tribes, and waive or modify provisions to conform to Tribal cultural setting and related factors. It provides for tribes to assume SHPO duties under specified conditions. It authorizes the Secretary to administer a grant program to assist Tribes assuming the responsibilities of SHPOs and to provide direct grants to Indian Tribes and Native Hawaiian organizations.

The amendments created the National Center for Preservation Technology and Training (NCPTT) within the Department of Interior, located at Northwestern State University at Natchitoches, Louisiana. The NCPTT was authorized to coordinate and assist research, technology transfer, and training.

Amendment to the Land and Water Conservation Fund Act of 1965
Public Law 94-422 16 U.S.C. 4601-4 1976

This act allows the Secretary of the Interior, at his discretion, to increase the maximum percentage of Federal funding from 50% to 70% for statewide historic preservation plans, surveys, and project plans as allowed under the National Historic Preservation Act of 1966. It establishes a Historic Preservation Fund to carry out the provisions of this act and establishes the Advisory Council on Historic Preservation as an independent agency. Section 106 of the National Historic Preservation Act is amended to direct Federal agencies to take into account in the planning process properties eligible for inclusion in the National Register, as well as those already listed.

Laws Governing National Historic Landmarks

Historic Sites Acts of 1935 - See above.

National Historic Preservation Act of 1966, as amended - See above.

Laws Governing the Federal Archeology Program

Antiquities Act of 1906
Public Law 59-209 16 U.S.C. 431-33

This act authorizes the President to designate historic and natural resources of national significance located on federally owned or controlled lands as national monuments. It provides for the protection of all historic and prehistoric ruins and objects of antiquity located on Federal lands by providing criminal sanctions against excavation, injury, or destruction of such antiquities without the permission of the Secretary of the department having jurisdiction over such resources. The Secretaries of the Interior, Agriculture, and Defense are authorized to issue permits for archeological investigations on lands under their control to recognized educational and scientific institutions for the purpose of systematically and professionally gathering data of scientific value.

The Archeological and Historic Preservation Act of 1974
Public Law 93-291 16 U.S.C. 469a

This act calls for the preservation of historic and archeological data that would otherwise be lost as a result of Federal construction or other federally licensed or assisted activities. It authorizes the Secretary of the Interior, or the agency itself, to undertake recovery, protection, and preservation of such data. When Federal agencies find that their undertakings may cause irreparable damage to archeological resources, the agencies shall notify the Secretary of the Interior, in writing, of the situation. The agencies involved may undertake recovery and preservation with their own project funds, or they may request the Secretary of the Interior to undertake preservation measures. Archeological salvage or recording by the Historic American Buildings Survey or the Historic American Engineering Record are among the alternatives available to the Secretary. This act presents two innovations over previous law: 1) previously, only dams were covered, now all Federal projects are; and 2) up to 1% of project funds may be used for this purpose. This act was amended by the National Historic Preservation Act Amendments of 1980.

Archaeological Resources Protection Act of 1979
Public Law 96-96 October 31, 1979

This act protects archaeological resources on public lands and Indian lands. It establishes a permit application procedure for the excavation and removal of archaeological resources located on these lands, and provides for criminal penalties for the excavation, removal, damage, sale, exchange, purchase, or transportation of these archaeological properties unless such activity is pursuant to a permit issued under authority of the act. It also establishes rewards for information leading to convictions under the act and authorizes the issuance of regulations for the exchange and ultimate disposition of archeological resources removed from public and Indian lands or recovered under the Reservoir Salvage Act.

Archeological Resources Protection Act Amendments of 1988
Public Law 100-555 and 100-588

These amendments strengthened the Archeological Resources Protection Act by lowering the limit of felony violation of the Act to $500 worth of damage to archeological sites and prohibiting the attempt to damage a site. They also require that Federal agencies develop public awareness programs, prepare plans and schedules for surveying land under their jurisdiction, and develop documents for reporting suspected violations of the Act.

Abandoned Shipwreck Act of 1987
Public Law 100-298. April 28, 1988

In this law the United States asserts title to any abandoned shipwreck that is embedded in submerged lands of a State, embedded in coralline formations protected by a State on submerged lands of a State, or on submerged lands of a State and is included in or determined eligible for inclusion in the National Register. The title of the United States to these shipwrecks is transferred to the State in whose submerged lands the shipwreck is located, except for shipwrecks in or on public lands of the United States and Indian lands. The Act also requires the Department of the Interior to issue guidelines for use by the States and Federal agencies in developing legislation and regulations to carry out their responsibilities under the Act. The Act makes the Law of Finds and the Law of Salvage inapplicable to shipwrecks subject to the Act.

Native American Graves Protection and Repatriation Act of 1990
Public Law 101-601 25 USC 3001-3013

The Native American Graves Protection and Repatriation Act (NAGPRA) describes the rights of Native American lineal descendants, Indian tribes, and Native Hawaiian organizations with respect to human remains, funerary objects, sacred objects, and objects of cultural patrimony with which they can demonstrate lineal descent or cultural affiliation. NAGPRA affirms the right of such individuals or groups to decide disposition or take possession of such items. The law requires Federal agencies and museums receiving Federal funds to inventory holdings of such remains and objects, and work with Indian tribes and Native Hawaiian organizations to reach agreements on the repatriation or other disposition of these remains and objects. Once lineal descent or cultural affiliation has been established, and in some cases the right of possession also has been demonstrated, lineal descendants, affiliated Indian tribes, or affiliated Native Hawaiian organizations generally make the final determination about the disposition of cultural items.

NAGPRA also protects Native American burial sites and controls the removal of human remains, funerary objects, sacred objects, and items of cultural patrimony on Federal and tribal lands. Many historic or prehistoric artifacts, however, may remain in Federal or museum ownership. For example, pottery, stone tools, and metal artifacts not from burial sites are not covered by NAGPRA. The law stipulates that illegal trafficking in human remains and cultural items may result in criminal penalties.

Laws Governing Federal Preservation Tax Incentives

Section 47 of the Internal Revenue Code of 1986, (Certified Rehabilitations)

Section 170(h) of the Internal Revenue Code of 1986, (Qualified Conservation Contributions)

Since 1976, the Internal Revenue Code has contained incentives to stimulate investment in income-producing historic buildings. Currently the Internal Revenue Code provides for a 20% investment tax credit for the substantial rehabilitation of historic buildings for depreciable uses such as for commercial, industrial, or rental residential purposes, and a 10% tax credit for the substantial rehabilitation for nonresidential purposes of buildings built before 1936. There is no investment tax credit for owner-occupied residences. The preservation tax incentives are available for any qualified project that the Secretary of the Interior designates a certified rehabilitation of a certified historic structure.

The Internal Revenue Code also permits income and estate tax deductions for charitable contributions of partial interests in historic property. Generally, the donations of a qualified real property interest to preserve a historically important land area or a certified historic structure meets the test of a charitable contribution for conservation purposes. For purposes of the charitable contribution provisions only, a certified historic structure need not be depreciable to qualify, may be a structure other than a building, and may also be a remnant of a building, such as a facade, if that is all that remains, and may include the land area on which it is located.

Other Major Federal Historic Preservation Laws

The Department of Transportation Act of 1966
Public Law 89-670 23 U.S.C. 138 - "4(f)"

This act directs the Secretary of Transportation not to approve any program or project that requires the use of land from a historic site of national, State, or local significance as determined by Federal, State, or local officials having jurisdiction thereof unless 1) there is no feasible and prudent alternative to the use of such land, and 2) such program includes all possible planning to minimize harm to such historic property. This means that the Federal Highway Administration, the Federal Aviation Administration, the Urban Mass Transportation Administration, and the U.S. Coast Guard must consider the potential effect of their projects on historic resources whether or not the historic resource affected is listed in or determined to be eligible for the National Register.

National Environmental Policy Act of 1969
Public Law 91-190 42 U.S.C. 4321 et. seq. (1970)

Under this act Federal agencies are obligated to consider the environmental costs of their projects as part of the Federal planning process. For major Federal actions significantly affecting the quality of the human environment, Federal agencies are to prepare an environmental impact statement. The Department of the Interior and the Advisory Council on Historic Preservation comment on environmental impact statements to evaluate impact on historic resources.

Surplus Real Property Act, 1972 Amendment to the Federal Property and Administrative Services Act of 1949
Public Law 92-362 40 U.S.C. 484 (k) (3)

This act authorizes the General Services Administration to convey approved surplus Federal property to any State agency or municipality free of charge, provided that the property is used as a historic monument for the benefit of the public. To qualify for this provision, the structure must be included in or eligible for inclusion in the National Register. Such free use is also applicable to revenue-producing properties if the income in excess of rehabilitation or maintenance costs is used for public historic preservation, park, or recreation purposes, and if the proposed income-producing use of the structure is compatible with historic monument purposes as approved by the Secretary of the Interior. It includes recapture provisions under which the property would revert to the Federal Government should it be used for purposes incompatible with the objective of preserving historic monuments.

Regulations Implementing the National Historic Preservation Act

36 CFR Part 60 - National Register of Historic Places.

36 CFR Part 61 - Procedures for Approved State and Local Government Historic Preservation Programs.

36 CFR Part 63 - Determinations of Eligibility for Inclusion in the National Register of Historic Places.

36 CFR Part 68 - The Secretary of the Interior's Standards for the Treatment of Historic Properties.

36 CFR Part 73 - World Heritage Convention.

36 CFR Part 78 - Waiver of Federal Agency Responsibilities under Section 110 of the National Historic Preservation Act, as amended.

36 CFR Part 800 - Protection of Historic Properties (Advisory Council on Historic Preservation).

Regulations Governing National Historic Landmarks

36 CFR Part 65 - National Historic Landmarks Program.

Regulations Governing the Federal Archeology Program

43 CFR Part 3 - Preservation of American Antiquities.

43 CFR Part 7 - Protection of Archaeological Resources.

36 CFR Part 79 - Curation of Federally Owned and Administered Archeological Collections.

Regulations Governing Federal Preservation Tax Incentives

36 CFR Part 67 - Historic Preservation Certifications.

26 CFR Parts 1 and 602 - Investment Tax Credit for Qualified Rehabilitation Expenditures (Internal Revenue Service).

26 CFR Parts 1, 20, 25, and 602 - Income Taxes: Qualified Conservation Contributions (Internal Revenue Service).

Regulations Governing Other Major Federal Historic Preservation Programs

23 CFR Part 771 - Environmental Impact and Related Procedures (Department of Transportation, Federal Highway Administration).

40 CFR Parts 1500-1517 - Regulations of the Council of Environmental Quality.

41 CFR Part 101-17 - Assignment and Utilization of Space (General Services Administration, Public Buildings Service).

41 CFR Part 101-20 - Management of Buildings and Grounds (General Services Administration, Public Buildings Service).

Historic Preservation Standards and Guidelines

Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation

The Secretary of the Interior's Standards for the Treatment of Historic Properties, with Guidelines for Applying the Standards.

Standards for Historic Vessel Preservation Projects with Guidelines for Applying the Standards.

Guidelines for Federal Agency Responsibilities, Under Section 110 of the National Historic Preservation Act, as amended.

Abandoned Shipwreck Guidelines.