Common use of NHPA Clause in Contracts

NHPA. The issuance of an enhancement of survival permit for a CCAA pursuant to section 10(a)(1)(A) of the Act is as an “undertaking” subject to the requirements of Section 106 of the National Historic Preservation Act (NHPA). Section 106 of the NHPA and its implementing regulations at 36 CFR 800, require Federal agencies to take into account the effects of their undertakings on historic properties and cultural resources and afford the Advisory Council on Historic Preservation a reasonable opportunity to comment on such undertakings through consultation with the appropriate State Historic Preservation Officers (SHPO). Historic and cultural resources can include historic properties, archaeological sites and resources, and other cultural resources (e.g., historic districts, historic and prehistoric landscapes, Native American sites, etc.). Compliance with section 106 of the NHPA can be achieved in a variety of ways that depend on the type, extent, and complexity of activities that are proposed for authorization by the enhancement of survival permit. Compliance may be as simple as conducting a search of the SHPO’s archaeological site files to determine if known historic and/or cultural resources are located within the area of potential effects on the enrolled property or as involved as the property owner or Service hiring someone to conduct surveys. In all cases, the steps taken in the NHPA compliance process must be documented either in the CCAA or in the administrative record. Service staff should contact their Regional Historic Preservation Officer (RHPO), a Service staff archaeologist, and then the RHPO (or designee since not all regions have RHPO’s) can contact the SHPO so that the Service can determine the appropriate level of NHPA compliance for CCAAs that are in development. Compliance with NHPA is a necessary component of CCAA development and discussions with the RHPO or staff archaeologist, should be initiated early in the CCAA development process. i(d) Public Notification/Confidentiality As described in 50 CFR 17.22 and 17.32, we must publish a notice in the Federal Register of each application for an enhancement of survival permit. In that notice, we invite the submission of written data, views, or comments regarding the permit application. It is also our policy to make every CCAA available for public review and comment as part of this evaluation process. Some property owners may resist the idea of their names being made public during the public comment period, and some property owners will be unwilling to proceed with a CCAA after learning about this requirement. Yet, the Service should make every effort to help property owners see the benefits of developing a CCAA, including the potential conservation benefits that will be achieved and the assurances that they will receive. Field Offices can provide property owners with example CCAAs that have been completed elsewhere and put property owners in contact with other property owners who have already signed CCAAs, which may assist in making hesitant property owners feel more comfortable about the public notification and comment process. It is important that property owners understand that public notification is required prior to the Service’s issuance of the requested permit. The Service will make the draft CCAA, the Service’s draft NEPA document, and the property owner’s permit application available to the public during the public comment period and will provide copies of these documents to any person who requests them. The Service’s compliance with the public notification process may mean that the property owner’s name, the location of the enrolled property, or other related information may be published in the Federal Register NOA and/or released directly to the persons who request the information. The Service will, however, protect a property owner’s private information to the extent allowed by law by withholding certain information from persons who request the information. The Service can only withhold the information to the extent allowed or required by the Freedom of Information Act (FOIA) or Privacy Act. In general, information that describes what has been agreed to by the parties to the CCAA is available to the public, while information about the property owner may be protected to the extent that the information is not essential to the validity of the CCAA. In order to withhold from FOIA release information such as the property owner’s name, the location of the enrolled property, or proprietary business data, the Service must, prior to withholding the information, receive notification from the property owner (applicant) requesting that the information be withheld and make a written determination that the privacy needs of the property owner (applicant) outweigh the information needs of the public. This determination must be maintained by the Service as part of the administrative record. Nevertheless, the Service will not release confidential, proprietary, or individual privacy information which is protected under FOIA or the Privacy Act. If the permit applicant is an individual (i.e., not a company or other institution), his or her date of birth, social security number, and other personal information must be blocked out or otherwise removed, or redacted in accordance with the Privacy Act and FOIA from any application or related information that is provided to the public. (See Appendix 7 and visit the Services’ website at ▇▇▇.▇▇▇▇.▇▇▇.▇▇▇ for more information on FOIA and the Privacy Act.)