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THE CONGRESSIONAL CHALLENGE

February 16, 1995
Congress of the United States
House of Representatives
Washington, D.C. 20515

Mr. Robert D. Bush
Executive Director
Advisory Council on Historic Preservation
The Old Post Office Building
1100 Pennsylvania Avenue, Suite 809
Washington, D.C. 20004

Dear Mr. Bush:

A number of our constituents have contacted us regarding your recently issued proposed rules on protection of historic properties. After careful review of that proposed rule, their comments, and recently enacted amendments to the National Historic Preservation Act, it is our conclusion that this proposed rule should be withdrawn, rewritten and re-issued in draft for additional public comment. Simply stated, it is unacceptable to us that any agency would propose burdensome new regulations on our already over-regulated society, particularly when these regulations exceed the authority of the underlying statute.

The statement in your Impact Analysis that "The Council's regulations in their current and revised form only impose obligations on federal agencies" leads us to wonder if you really understand the scope and effect of your own regulations. Compliance with the National Historic Preservation Act is already costing both government and the private sector tens of millions of dollars annually. The cumulative impact of your proposed rule, including such newly articulated policies as requiring that destruction of historic properties always be the "last resort" is that the cost of compliance will increase substantially. Under your proposed regulations, federal agencies will have every incentive to pass increased costs on to an already overburdened private sector and little incentive to reduce overall regulation costs.

Time and time again, whether it be implementation of the Endangered Species Act, Clean Water Act, or a myriad of other environmental laws, we have seen federal agencies extend the scope and effect of the law through the regulatory process. The American public and Congress will no longer tolerate such action by federal agencies. Aspects of your proposed rule which violate this principle, such as the redefinition of the area of potential effects, must be revised.

Two other aspects of your proposed regulations, which are particularly troublesome, are the open-ended timeframes and unlimited public standing. While it is a concept largely foreign to more federal regulatory agencies, time is money to the private sector. The lack of discrete timeframes for many aspects of your proposed rule and the opportunity for reopeners at almost any point (even after the conclusion of the 106 process) must be addressed. Similarly, the open invitation for anyone, at virtually any time in the process, to become an obstructionist for the cost of a 32-cent stamp must be changed. Public involvement is necessary and appropriate, but it must be limited in a fashion similar to that provided in the National Environmental Policy Act where input is sought at the outset and at a single point in time prior to final decision-making. Private parties with some level of standing with respect to a particular proposal should be offered an increased, though still structured, opportunity for input.

By way of further background, we point out to you that at a January 11 hearing before the Interior Subcommittee on Appropriations, several private institutions advocated elimination of all funding for the Advisory Council on Historic Preservation. We are not yet convinced that such action is appropriate, since we believe there is every opportunity for the Advisory Council to return to its role as a facilitator in the implementation of the Historic Preservation Act, rather than another layer of federal bureaucracy sitting in judgment over federal agencies and the private sector. Toward that end, we request that no later than 60 days from the date and receipt of this letter you transmit, to the Chairman of the House National Parks, Forests, and Lands Subcommittee, amendments which will reduce the regulatory burden of the Act, ensure protection of private property, and ensure that the efforts of the federal government are focused on the most important historic properties in the country.

We appreciate your attention to our comments and look forward to working with you toward a resolution.

Sincerely,

James V. Hansen
Wayne Allard
Barbara F. Vucanovich


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