Tuesday, September 22, 2015

What's Happened to the Update of National Register Bulletin 38?

I've been getting questions about the status of the National Park Service's update of National Register Bulletin 38, the "Guidelines for the Identification and Documentation of Traditional Cultural Properties" that the late Pat Parker and I authored back in the late 1980s (published 1990, See http://www.nps.gov/nr/publications/bulletins/nrb38/). I'm asked both because I'm sort of identified with "TCPs," have written a good bit about them, and have been working with the National Park Service (NPS) on the update -- which I know seems to many to have vanished into a black hole.

For the official word on the Bulletin's status, you'll have to ask NPS, but here's what I can tell you:

1. The decision to update the bulletin was taken by NPS leadership several years ago, allegedly in response to complaints from federal agencies and State Historic Preservation Officers (SHPOs) about its supposed ambiguities and inconsistency with other National Register guidance. NPS solicited public comments and held several public meetings around the country about the Bulletin; it also consulted specifically with Indian tribes and Native Hawaiian groups, and sought comments from agencies and SHPOs. It got a LOT of comments -- though strangely, very few from SHPOs and agencies. Many were from tribes and other indigenous groups. Many said not to change the Bulletin; others offered general and sometimes quite specific recommendations.

2. NPS contracted with me to assist in analyzing the comments and drafting an update. It soon became apparent both to NPS's review personnel and to me that although the Bulletin certainly needed updating (We've learned a bit in the last 25 years), most of the comments didn't relate to the language of the Bulletin per se. Instead, they related to how it's used, particularly in the context of project review under Section 106 of the National Historic Preservation Act (NHPA). Though many of the comments seemed very much on-point, they couldn't be addressed in the Bulletin as such, or within NPS's legal authorities.

3. So we proposed to the Advisory Council on Historic Preservation (ACHP) that it collaborate with us in producing a companion set of "frequently asked questions" (FAQs) about TCPs and how they should be addressed under Section 106 and related planning authorities. The ACHP agreed, and for several months we consulted quite comfortably. We didn't always agree -- quite the contrary -- but we always worked things out and arrived at language that most of those consulting at NPS and ACHP, seemingly, could live with -- as could I. 

4. This consultation produced complete drafts of both the Bulletin and the FAQs, which went from me to NPS and ACHP for final review last year about this time, preparatory to going out for comment.

5. Whereupon the ACHP staff took it upon itself, without telling me or, as far as I know, anyone at NPS, to redraft the FAQs. The changes reduced their clarity, dropped out a number of things, reduced the FAQ's intelligibility, and made them far more bureaucratic and weasel-wordy than they had been as drafted. To add insult to injury, the ACHP staff refused to say who had made the changes and why, and refused to sit down with NPS and me -- or at least with me -- to consult about the matter. They would negotiate henceforth only based on their draft.

6. Efforts by NPS -- and I give great credit here to Paul Louther, who is patiently overseeing the rework effort -- to bring the ACHP staff to the table on a more reasonable, colllegial basis were unavailing. Efforts by the ACHP's own Chairman, Wayne Donaldson, to resolve the issue similarly went nowhere.

So, for the last year the rework of Bulletin 38 has been stalled, and as of today it remains so. I encourage those who want to see the Bulletin brought up to date, and who would appreciate clarification about how TCPs can be addressed under Section 106 (and related authorities), to contact the ACHP (jfowler@achp.gov ) and encourage its staff to return to the table to work on and from the draft they were presented last year, and to behave like adult professionals rather than childish tyrants.


Too Afraid to Speak Publicly said...

Hello Tom,

I think that your point would be illustrated if you wrote what you meant. How are the ACHP childish tyrants? Your post doesn't describe their behavior. Unless, not consulting with you qualifies.

I admire your work and wish that I could be as outspoken. Thanks for the status update.

Anonymous said...

Thanks for updating everyone.

Can anyone explain why the term Traditional Cultural Property (TCP) has never been codified in regulation ? The term does not appear anywhere in the regs - not in the 800 regs, not in the NR regs - yet it is used somewhere, every day of the week, as if it were a codified term. An NPS bulletin is nice, as is ACHP guidance. But neither of those agencies have ever seen fit to put "TCP" into unambiguous, regulatory circulation. Why not ? The only codified term we have is "property of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization" - this is the statutory terminology, which ironically, almost never gets used. We once used it in a draft MOA, and the SHPO actually asked why we were using a made-up term, instead of the "proper" term (TCP) that they assumed was in the regs. How does this happen ? Yes, I know the difference between TCP and the statutory term in the NHPA (1992 amendment). Why have neither been codified in regulation ?

Anonymous said...

I wish I could read the original language. Will there ever be a time when that will be possible?

Anonymous said...

Will there be a time at the end of this process when we will be able to read the original draft and compare it to the final document?

Thomas F King said...

Too Afraid -- Yes, they're petty tyrants because they're two chickenshit to sit down with the National Park Service and its contractor, who happens to be the original author of the bulletin, and argue their case; instead they just say "Here is is, folks, our way or the highway." That's petty, that's tyrannical, that's arrogant, and it's deeply anti-collegial.

Anonymous, you don't see TCP in regulation for the same reason you seldom see "boat" or "Queen Anne Cottage" or "Adena mound" in regulation. A TCP is simply a kind of place, like a boat or a cottage or a mound, that may or may not be eligible for the National Register. So just as we don't need to codify the eligibility of a boat, a cottage, or a mound, we don't need to codify the eligibility of TCPs. Plus, of course, most of the regulations were issued before "TCP" became a term of art.

Chron, if it's the original Bull 38 language you want to see, that's available on the Web; just google National Register Bulletin 38. If you want to see the draft of the revision and FAQs before the ACHP got its pothooks on it, yup, you'll have an opportunity, though probably not an official one.