PROPOSED RULE CHANGES TO THE NATIONAL REGISTER ANNOUNCED
The Michigan Historic Preservation Network (MHPN) has reviewed the proposed rule changes and provides the following analysis.
The proposed rule changes are in two categories:
(1) changes that would affect nominations for Federal properties (either individually or as part of larger nominations that may include non-Federal properties as well) and
(2) general changes that would affect all nominations.
The effect of the proposed rules would be that the intention of the NHPA is undermined, and the default position through these proposed changes becomes no listing/ no determination of eligibility instead of the current default position of protecting historic resources.
(1) REGARDING FEDERAL PROPERTIES
The NHPA requires that each Federal agency locate, inventory, and nominate all of their properties that appear to qualify for the National Register. Currently, the Federal Preservation Officer for an agency nominates a Federal property, submits the nomination to the SHPO for comment, and, if there is no comment in 45 days, the Federal Preservation Officer can forward the nomination to the Keeper of the National Register. The Keeper will post the nomination for public notice in the Federal Register, and, if there are no objections or technical issues with the nomination, the property will be listed in the National Register in 45 days. The proposed rules would change this process and would remove the language that the Federal property will be listed in 45 days from receipt, barring objections or technical issues with the nomination. The effect of removing this language will be that Federal agencies will likely not take the final step of listing their Federal properties on the National Register—Federal properties will be inventoried but not ultimately listed, undermining the intent of the NHPA.
Further, currently, State Historic Preservation Offices (SHPOs) can nominate Federal property, but, under the proposed rule, only the Federal agency could nominate Federal property. Additionally, current regulations state that the Keeper of the National Register will make eligibility determinations on properties nominated by Federal agencies prior to returning those nominations for technical or professional revision or due to procedural requirements, if enough information exists to make the determination. Currently, too, the Keeper can consult with the State Historic Preservation Officer and the concerned Federal agency and can determine eligibility without a specific request from the Federal agency. The proposed rules would require that if a nomination were to be returned for technical or professional revisions, the Keeper cannot make an eligibility determination, and the Keeper would not be able to make an eligibility determination unless the Federal agency requests it.
In total, the effect of these proposed rule changes would be that Federal properties would likely not get listed on the National Register because it will be left to the Federal agencies to finish the process, and Keeper determinations of eligibility for the National Register will be more difficult to get—impossible if the Federal agency doesn’t request the determination.
(2) NOMINATIONS IN GENERAL
Currently, State Historic Preservation Officers (SHPOs) notify owners of private property in a proposed National Register district of a pending nomination. The property owners can submit notarized letters in objection to the proposed district. The SHPO keeps track of those objections, counting one vote of objection per property owner in the proposed district. If the majority of property owners object to the listing, the listing will not go forward. Under the proposed rule, that system of tallying owner objections will still be allowed, but also, if owners of a majority of the land AREA of the property in the proposed district object, the listing cannot go forward. Under the proposed rule, both methods of tallying majority of owner objection will be allowed.
MHPN is concerned about this alternative form of tallying majority owner objection for several reasons. This proposed system gives large landowners in a district (even of non-contributing properties like parking lots) more voice in the listing process than other property owners, even if theirs are contributing properties in the proposed district and even if they’d really like the district to be listed. Listing on the National Register for commercial properties can give those properties access to the Federal Historic Tax Credit—a credit for up to 20% of their rehabilitation project’s costs back to the owners as a Federal tax credit. In some cases, getting listed makes a big difference—it can determine whether a property will be rehabilitated or not. In many National Register-eligible, disadvantaged communities, large numbers of properties are held by absentee landlords and out-of-town speculators, while advocates for the National Register district are single property-owners who are hoping that the District will begin a period of revitalization in their community. MHPN believes that it is unfair for those large landholders to have an outsized influence over their single-property neighbors. Additionally, to require the SHPO to validate that ownership and calculate ownership share, both for a district overall and in properties with multiple owners like a condominium development, would be a huge administrative burden for SHPOs. If these new rules were adopted, MHPN believes that it could become very difficult to list districts on the National Register at all.
Lastly, the proposed rule would eliminate requiring owners to notarize their objections. MHPN sees no reason for this change. In Michigan alone, there are over 127,000 notaries, there are notaries in every county, and there are even mobile notaries if that service is needed. In Calumet (Keweenaw County), for example, all of the employees in the County Clerk’s office are notaries and the cost is only $5 to get a document notarized. It does not seem likely that this requirement is a barrier to property owners participating in this process, and it seems likely that the requirement might guard against forgeries by those who strongly oppose the proposed listing.
MHPN believes that the proposed rule undermines the intention of the NHPA and could have a devastating impact on National Register nominations and on the communities that seek National Register recognition.
To submit comments, please visit https://www.federalregister.gov/documents/2019/03/01/2019-03658/national-register-of-historic-places . We would also suggest that you contact your Federal legislators. More information about legislators is available at https://www.govtrack.us/congress/members , and a sample letter is available at www.mhpn.org .