[Federal Register Volume 59, Number 190 (Monday, October 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24357]
[[Page Unknown]]
[Federal Register: October 3, 1994]
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Part VI
Advisory Council on Historic Preservation
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36 CFR Part 800
Protection of Historic Properties; Proposed Rule
ADVISORY COUNCIL ON HISTORIC PRESERVATION
36 CFR Part 800
Protection of Historic Properties
Agency: Advisory Council on Historic Preservation.
Action: Notice of proposed rulemaking; revision of current regulations.
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Summary: The Advisory Council on Historic Preservation (Council) is
proposing changes to its regulations in order to implement the 1992
amendments to the National Historic Preservation Act and to improve the
Section 106 process, by which Federal agencies consider the effects of
their undertakings on historic properties. The proposed changes seek to
balance the interests and concerns of various users of the Section 106
process, including Federal agencies, State Historic Preservation
Officers (SHPOs), Native Americans and Native Hawaiians, and the
public. The revised regulations also respond to the new Section 110
provisions in the 1992 amendments which require Federal agencies to
establish historic preservation programs.
Dates: Comments must be received on or before December 2, 1994. In
recognition of the unique trust and treaty relationships between the
United States Government and Indian tribes, their enhanced role in the
Section 106 process as directed by the National Historic Preservation
Act amendments of 1992, and the possibility that some tribes will need
more than 60 days to provide comments, the Council will provide on
request an additional 30 days for an Indian tribe to submit comments. A
representative of the tribal government must file such request with the
Council no later than December 2, 1994.
Addresses: Comments should be addressed to the Executive Director,
Advisory Council on Historic Preservation, 1100 Pennsylvania Avenue,
Suite 809, Washington, DC 20004. Fax 202-606-8647.
For Further Information Contact: Stephanie Woronowicz, Information
Assistant, Advisory Council on Historic Preservation, 1100 Pennsylvania
Avenue, Suite 809, Washington, DC 20004 (202) 606-8503.
Supplementary Information:
I. Background
Section 106 of the National Historic Preservation Act of 1966, as
amended, 16 U.S.C. Sec. 470f, requires Federal agencies to take into
account the effect of their undertakings on properties included in or
eligible for inclusion in the National Register of Historic Places and
to afford the Council a reasonable opportunity to comment on such
undertakings. Public Law 102-575 was enacted in October, 1992, and
contains amendments to the National Historic Preservation Act which
affect the way Section 106 review is carried out under the Council's
regulations. Furthermore, as part of the Administration's National
Performance Review, the Council undertook a review of the current
regulatory process to identify potential changes that could improve the
operation of the Section 106 process and conform it to the principles
of this Administration. The Council commenced an information-gathering
effort to assess the current Section 106 process and to identify
desirable changes.
As a part of this effort, the Council sent a questionnaire to 1,200
users of the Section 106 process, including Federal agencies, SHPOs,
State and local governments, applicants for Federal assistance, Native
Americans, preservation groups, contractors involved in the process,
and members of the public. The questionnaires sought opinions on the
current regulatory process and ideas for enhancing the process. The
Council received over 400 responses. After analyzing the responses and
holding several meetings with Federal Preservation Officers and SHPOs,
the Council staff presented its preliminary findings to a special
Council member Task Force comprised of the Department of
Transportation, the National Conference of State Historic Preservation
Officers, the National Trust for Historic Preservation, Native American
representative William Tallbull, expert member Jane Davidson, and
Council chairman Cathryn Buford Slater.
The key findings presented to and adopted by the Regulations Task
Force were the following: (1) Federal agencies and SHPOs should be
given greater authority to conclude Section 106 review; (2) the Council
should spend more time monitoring program trends and overall
performance of Federal agencies and SHPOs and less time reviewing
individual cases or participating in case-specific consultation; (3)
Section 106 review requirements should be integrated with environmental
review required by other statutes; (4) enforcement of Section 106
should be increased and specific remedies should be provided for
failure to comply; and (5) there should be expanded opportunities for
public involvement in the Section 106 process.
II. Summary of Regulatory Changes
Consistent with the findings adopted by the Council Regulations
Task Force, the Council proposes to revise its regulations as follows:
Subpart A--Background and Policy
This Subpart adds a new section describing the goals of the
consultation process (Section 800.1(b)) and clarifying the roles of
participants in the Section 106 process, particularly those of Native
Americans and Native Hawaiians (Section 800.1(e)) as required by the
1992 NHPA amendments. The provision regarding Native American and
Native Hawaiian participation provides detailed guidance on how Federal
agency officials consult with Native American and Native Hawaiian
organizations that attach religious and cultural significance to
historic properties that may be affected by an undertaking (Section
800.1(e)(5)). The section on participants in the Section 106 process
also elaborates on the role and rights of the public to participate in
the process (Section 800.6(e)(6)). In order to encourage consideration
of historic properties as early in the planning stages as possible, the
regulations specifically set forth a section on timing (Section
800.6(c)).
Subpart A also adds new definitions and revises current definitions
to conform to the 1992 NHPA amendments and to clarify terms which have
raised questions during the implementation of the Section 106 process
(Section 800.2). New definitions include: agency, anticipatory
demolition, approval of the expenditure of funds, comment, conditional
no adverse effect agreement, consultation, Council membership,
foreclosure, head of the agency, memorandum of agreement, Native
Hawaiian, Native Hawaiian organization, notice of violation,
traditional community, and traditional cultural authority. Revised
definitions include: agency official, area of potential effects,
historic property, Indian tribe, interested (party) person, Indian
(tribal) lands, and undertaking. The definition of undertaking has been
changed to accord with the intent of the statutory definition provided
in the 1992 NHPA amendments.
Subpart B--Federal Procedures to Implement Section 106
The Council has added new provisions to assist agencies in meeting
their responsibilities under the statutory requirement in Section
110(a)(2) of the 1992 NHPA amendments which requires agencies to
develop preservation programs and to ensure that the agencies'
procedures for compliance with Section 106 are consistent with the
Council's procedures (Sections 800.3-800.6). The provisions implement
the principle that agency procedures establishing a preservation
program must be consistent with the Council's regulations by providing
standards for consistency (Section 800.4) and processes through which
the Council can evaluate whether these standards have been met (Section
800.5 and 800.6).
Subpart C--The Section 106 Process
The heart of the Section 106 process is in Subpart C. The
provisions in this Subpart have changed to allow for more agency-SHPO
decisionmaking without Council involvement. To offset the Council's
removal from routine cases, this Subpart gives the Council the
authority to resolve disputes between Federal agencies and SHPOs and to
monitor agency performance and provides an expanded opportunity for the
public to request the Council to intervene in particular cases.
Section 800.7(a-e) sets forth the steps that an agency official
must go through prior to the identification of historic properties.
These provisions emphasize the need for early planning and
coordination, both with reviews under other authorities and with other
individuals and organizations, prior to the initiation of the
identification stage. The identification and evaluation stages (Section
800.8) remain essentially the same as the present regulations, except
that the regulation adds a provision allowing for Council review of
agency decisions made during the identification and evaluation stages
(Section 800.8(e)). As a supplement to Section 800.8, a non-binding
Appendix has been added to provide additional clarification on the
identification process and the establishment of the area of potential
effects.
The revised regulations eliminate the determination of effect step
(and the existing Criteria of Effect) currently in the Section 106
process and allow an agency to apply the criteria of adverse effect
directly after completing the identification stage (Section 800.9(a)).
An agency is no longer required to notify the Council of a finding of
no adverse effect, but the Council may review such a finding if
requested or if the Council deems it appropriate (Section 800.9(d)).
The revised regulations also eliminate the exceptions to a finding of
adverse effect and incorporate those exceptions into a new provision
allowing for conditional no adverse effect agreements (Section
800.9(b)(2)). The intent of the addition of the conditional no adverse
effect agreement provision is to allow agencies and SHPOs flexibility
in reaching routine agreements while maintaining agency accountability.
It formally recognizes a practice that has already become widespread
under the current regulations.
In order to resolve adverse effects more efficiently, the revised
regulations provide more autonomy to the SHPO and the Federal agency.
The revised regulations establish a method for resolution of adverse
effects without the Council's participation, changing the current two-
party Memorandum of Agreement process (Sections 800.10(a)(1) and
800.10(c)(1)). Under this provision, if the Council elects not to
participate in the negotiation, the agency and the SHPO may execute a
Memorandum of Agreement which is sent to the Council, but need not be
executed by the Council (Section 800.10(c)(1)). The revised regulations
also clarify the use, force and effect of a Memorandum of Agreement and
its provisions (Section 800.10(d)).
If a Memorandum of Agreement cannot be reached during two-party
consultation, the parties must seek the Council's participation and
enter three-party consultation before terminating negotiations. If a
Memorandum of Agreement cannot be reached, the revised regulations set
forth more detailed provisions on termination of negotiations and
Council comments (Section 800.11)). With regard to Council comments,
the new regulations require that the head of the agency respond to the
Council's comments in accordance with Section 110(l) of the NHPA.
In responding to comments made by respondents to the Council's
survey of Section 106 users and in order to balance the Council's
removal from routine Section 106 cases, the revised regulations
establish a new section on agency monitoring and compliance (Section
800.12). This section provides for the review of an agency official's
findings, providing more detail than the review procedures contained in
the current regulations at Section 800.6(e). The monitoring and
compliance section also includes a new provision for the issuance of a
notice of violation to an agency which has violated or, in the case of
a preliminary notice of violation, is about to violate the requirements
of the NHPA. In response to the 1992 amendments which added Section
110(k), the Council has established procedures addressing anticipatory
demolition.
Subpart D--Alternative Procedures
This Subpart provides options for complying with the requirements
of Section 106 other than those set forth in Subpart C. Its purpose is
to encourage agencies to integrate the Section 106 process into their
internal planning procedures. Section 800.16 of the revised regulations
explains that counterpart procedures, as described in Sections 800.4
and 800.5(a), Programmatic Agreements, as described in Section
800.5(b), provide alternative means of compliance. In accordance with
Section 101(d)(5) of the NHPA, the Council has added a new provision to
establish a process by which an Indian tribe may substitute its tribal
historic preservation regulations for the Council's regulations for
review of undertakings on tribal lands (Section 800.17). The Council
has also attempted to address the unique situations created by
disasters or emergencies and has revised its emergency regulations to
emphasize the need for the development of agency counterpart procedures
which establish a plan for considering historic properties during
responses to disasters and emergencies. The revised emergency
regulations delete reference to 36 CFR Part 78 in order to encourage
agencies to develop their own procedures for dealing with disasters.
The Council has limited the applicability of the regulations to natural
disasters or emergencies declared by the President or by an Agency
Official.
Subpart E--Coordination With Other Authorities
As an expansion and revision of the current regulations regarding
agency coordination, requested by surveyed users, the revised
regulations establish more detailed guidance on coordination with the
National Environmental Policy Act and indicate other relevant statutes
where coordination is desirable (Section 800.19).
III. Issues Deserving Special Attention From Commenters
In the development of these revisions, the Council determined that
several issues warranted special attention from commenters. These
issues fall into three categories: (1) areas of particular concern to
the Council on which the views of users and the public are particularly
solicited; (2) provisions that could be drafted in one or more
alternative ways and views are sought on the best alternative; and (3)
questions about actions that could be taken to improve the functioning
of the Section 106 process, but that would not be specifically included
in the regulations. The Council invites commenters to give these issues
special consideration and provide views for its use.
1. Agency Implementing Procedures
Section 110(a)(2)(E)(i) of the NHPA requires that each Federal
agency have procedures for compliance with Section 106 that are
consistent with the Council's regulations. The Secretary of the
Interior, acting through the Director of the National Park Service, and
the Council share oversight for this provision, since the Secretary is
charged with providing guidance on implementing Section 110
responsibilities. The Council wishes to encourage Federal agencies to
develop such procedures to adapt the Section 106 process to their
particular needs and to better integrate Section 106 into their regular
planning processes. Subpart B of the revised regulations sets forth
criteria for evaluating consistency; outlines a process for Council
review of such procedures; and defines the consequences of a Council
finding regarding consistency. Does the proposed process meet the need
for agency program oversight? Are there ways the regulations could
better encourage Federal agencies to adopt the required procedures in a
timely manner? Are there better alternatives to the proposed
consistency standards and review process? Are the criteria appropriate
to meet the objective on achieving internal Federal agency procedures
that effectively implement Section 106?
2. Exemption of Certain Undertakings From the Section 106 Process
As part of the development of agency procedures to implement
Section 106, the proposed regulations include a new provision that will
allow agencies to waive the Section 106 review for categories of
undertakings which generally would not have an effect on historic
properties. Since the use of categorical exclusions has been a major
component of the NEPA process, there is the potential that this
provision may be confusing. Further, approval of such a listing may
incorrectly infer that the exemption of a class of undertakings means
that an included undertaking could never result in adverse effect to
historic properties. Should the procedures for categorical exemptions
be included in the revised regulations? Should they be further
distinguished from NEPA categorical exclusions to avoid confusion? Are
the criteria for categorical exemptions too broad or too narrow? Should
parties other than the agency and the Council be able to require
individual Section 106 reviews for undertakings previously listed as
categorical exclusions?
3. Regulation Versus Guidance
When surveyed, users of the current Section 106 regulations
generally requested more specificity and guidance on various provisions
of the regulations. The revised regulations respond to that concern.
Are the regulatory provisions sufficiently detailed or have they become
too specific? Where should any changes be made? Should some existing
material or additional material be set forth in appendices to the
regulations or in separate, subsequently issued guidance documents?
4. Public Participation
The proposed regulations rely heavily on increased access for the
public to the Section 106 process to offset the Council's reduced role
in individual cases. These enhanced opportunities for public
involvement anticipate both a greater public role in shaping decisions
regarding the treatment of effects on historic properties and a more
active watchdog function for the public to ensure that procedures are
followed and decisions are made properly. Conversely, expanded public
participation can impose burdens on Federal planning processes and
adequate opportunities for public input often require that extra
efforts and time be expended by Federal officials. The revised
regulations attempt to strike a balance between these two extremes,
with an emphasis on public access to the process. Has this balance been
struck effectively? Are there specific places where public notification
or participation should be strengthened or reduced? Should the
regulations be more specific on public participation or should
additional guidance be provided in less formal channels, such as
guidance documents?
5. Role of Certain Interested Parties
The proposed regulations seek to clarify and enhance the
involvement of individuals and organizations that have significant
interests in the negotiating process designed to avoid or minimize
adverse effects (See Section 800.10(b)(1)). One such group is owners of
properties affected by the undertaking and whose interests may be
impacted by decisions made in the Section 106 process regarding the
avoidance or mitigation of the undertaking's adverse effects on
historic properties. The proposed regulations allow all owners of
affected properties to participate in negotiations for a Memorandum of
Agreement, provided that the Council can limit participation to a
representative if the number of owners desiring to participate becomes
unwieldy. Is this a reasonable balance of access and procedural
efficiency? Should only owners of historic properties be given this
status? How broadly should ``affected'' be defined?
6. Substitution of State and Local Review Processes for These
Regulations.
The current regulations allow a Certified Local Government (CLG),
as established under Section 101(c)(1) of the NHPA, to assume the role
of the State Historic Preservation Officer (SHPO) in the Section 106
review when the Council, SHPO, and local government are in agreement.
The proposed regulations delete this provision, in the interest of
avoiding too many variations on the Section 106 process and resultant
confusion. Should the current role of CLGs be maintained? Should it be
expanded to allow review procedures established under local law and
administered by a CLG to substitute for the Council's regulations?
Should the regulations require Federal agencies to routinely consult
with CLGs in addition to or in lieu of consultation with SHPOs? The
current regulations allow State review systems to substitute for the
Federal process under certain circumstances. The revised regulations
delete this. Should it be retained and, if so, should it be modified
from its current form?
7. Role of the Federal Preservation Officer
Section 110(c) of the NHPA requires Federal agencies to designate
an official to be responsible for coordinating the agency's activities
under the NHPA. However, the position and function of the Federal
Preservation Officer (FPO) vary widely from agency to agency and the
revised regulations are currently silent on the issue. Given the key
role the NHPA intends for the FPO to play as a central agency-wide
coordinator, should the Section 106 regulations define a role for the
FPO? If so, should it be with regard to all individual project review,
terminations where Council member comment is sought (Section 800.11),
the development of agency procedures (Subpart B) or something else?
8. Disputes Over Application of the Regulations
When surveyed, users reported a serious shortcoming in the current
regulations with the lack of any process to resolve disputes over when
Section 106 applies and over the various determinations made in the
Section 106 process. The proposed regulations authorize the Council to
do this at several points. These include whether an action is an
``undertaking'' (Section 800.7(a)), what the area of potential effects
is (Section 800.8(a)), whether historic properties are present (Section
800.8(e)) and whether documentation to support agency determinations is
adequate (Section 800.14(f)). Such determinations would be legally
binding for purposes of Section 106. Alternatives to Council resolution
include giving the Federal agency the authority to make these
determinations, referring the matter to a third party such as the
Office of Management and Budget or the Justice Department or continuing
the current situation where the absence of a recognized administrative
decisionmaker leaves resolution to the Federal courts, but only if a
formal legal challenge is made. Is the proposed system the best
alternative?
9. Reviews and Appeals
There are several points in the current Section 106 regulations
which provide an opportunity for Council review of agency decisions and
for public appeals to the Council. The proposed regulations expand the
right to appeal Federal agency decisions to the Council by giving the
public a broad right to request review of an agency decision, although
the Council may determine that the request is not timely. (See Section
800.12(a)(1).) This expanded appeal process is intended to serve as a
balance for the Council's withdrawal from regular involvement in
agency-SHPO decisions in the Section 106 process. While the regulation
(Section 800.12(a)(1)) allows an agency to go forward with an
undertaking while the Council conducts its review, the open-endedness
of the appeals process diminishes the finality of Section 106
compliance for Federal agencies. Is the appeals mechanism as proposed
an effective means to balance the Council's reduced role in the review
of individual undertakings? Should it be broader or narrower? Could the
provision be revised to give a greater degree of finality to the
process and also afford the public fair access to the Council?
10. Notice of Violation
The proposed regulations authorize the Council to issue a
preliminary or final notice of violation when the Council determines
that a Federal agency has acted in violation of Section 106 or the
Council's regulations. (See Section 800.12(d).) Under the current
regulations, the Council may inform an agency when it finds the agency
in violation, or in danger of violation, of Section 106 and the
Council's regulations, but such action lacks any official sanction
under the regulations and is viewed as purely advisory. The concept of
a formal notice of violation, adapted from other Federal environmental
protection processes, is in response to widespread concern that the
current regulations lack effective means of enforcement. Is the
proposed notice of violation an appropriate method? Are there other
techniques or actions within the Council's legal authority to achieve
this objective? Would the presence of stronger enforcement tools
encourage the fulfillment of Section 106 responsibilities?
11. Treatment of Archeological Resources
The revised regulations continue the policy of the current
regulations with regard to providing expedited review for undertakings
with effects limited to archeological resources. The current process
allows such cases to be processed as No Adverse Effect Determinations,
provided that the values of the resource are limited to scientific data
and that data will be recovered in manner consistent with the Secretary
of the Interiors standards and guidelines. The revised regulations
would essentially continue this exception, but as a Conditional No
Adverse Effect Agreement. The regulations further clarify that such
treatment is not available if there is the potential for human remains
to be affected or traditional cultural values are present. Should this
approach be pursued or should undertakings that threaten to destroy
archeological resources, regardless of the presence of human remains or
traditional cultural values, be considered to have an adverse effect
and processed according to Section 800.10?
12. Coordination With the National Environmental Policy Act
An identified shortcoming in the current Section 106 regulations is
the limited guidance provided for coordination between Section 106
reviews and those conducted under the National Environmental Policy Act
(NEPA). The revised regulations contain expanded provisions (Section
800.19). Is the content sufficient? Are there specific areas that
warrant more or less detail? Should similar guidance be provided for
other related laws, such as Section 4(f) of the Department of
Transportation Act?
13. Use of Information Technology
The rapid advances in information technology and the widespread
access of Federal agencies and other Section 106 participants to it
offers opportunities to improve Section 106 case processing. Electronic
filing of certain agency notices and determinations with the Council is
one example. Are there specific places in the process where this kind
of innovation should be encouraged? Do the regulations need to be
modified to facilitate the use of contemporary information technology?
Should formats for electronic submission of information be specified in
the regulations or related guidance documents?
IV. Impact Analysis
A. The Regulatory Flexibility Act
The proposed rules will not have a significant economic impact on a
substantial number of small entities. The Council's regulations, in
their current and revised form, only impose obligations on Federal
agencies. If a Federal agency is legally authorized and chooses to
delegate its responsibility to local governments, then that Federal
agency must determine whether or not its delegation will have a
significant economic impact on a substantial number of small entities.
B. The Paperwork Reduction Act
The proposed rules do not impose reporting requirements or the
collection of information as defined in the Paperwork Reduction Act.
C. The National Environmental Policy Act
Pursuant to 36 CFR Part 805, National Environmental Policy Act
Implementation Procedures, the Council has determined that an
Environmental Impact Statement is not required.
D. Executive Order 12866
The Council is exempt from compliance with Executive Order 12866
pursuant to a memorandum issued by the Office of Information and
Regulatory Affairs on October 12, 1993. Although the Council is exempt
from compliance, the Council has complied with the principles set forth
in the Order by identifying problems in our regulatory process and
seeking to modify our regulations in order to establish a more
efficient and practical regulatory framework. The Council has sought
the views of the public, including State, local and tribal entities,
through the use of focus group meetings, questionnaires and
solicitation of informal advice. Furthermore, the Council has
voluntarily submitted this regulation to the Office of Management and
Budget for review in accordance with the Executive Order.
E. Executive Order 12875
The Council is exempt from compliance with the documentation
requirements set forth in Executive Order 12875. However, the Council
has adhered to the principles embodied in the Order. The proposed
regulations, like the current regulations, do not mandate State, local
and tribal governments to participate in the Section 106 process, but
rather, mandate Federal agencies to inform and request the involvement
of such sectors. The State, tribal or local governments have the option
of declining to participate in the process. Thus, the regulations do
not impose unfunded mandates. Moreover, the Historic Preservation Fund
makes monies available to States that participate in the Section 106
process. The Council's proposed regulations impose obligations on
Federal agencies and do not delegate responsibilities to the States. If
a Federal agency chooses to delegate its responsibilities, then the
requirements of the Order must be addressed by that agency. State,
local and tribal representatives have been an integral part of the
development of the proposed rules as members of the Council's
Regulations Task Force, as participants in focus groups, and as
respondents to the Council's questionnaire. The proposed regulations
provide a flexible process which includes various alternative
procedures, including categorical exemptions, programmatic agreements
and development of counterpart procedures to comply with the
requirements of Section 106.
F. Executive Order 12898
The Council is not required to comply with this Order.
Nevertheless, the regulations implementing Section 106 do not pose
environmental risks, but rather, seek to avoid adverse effects on
historic properties in all areas of the United States.
G. Memorandum Concerning Government-to-Government Relations with Native
American Tribal Governments
The Council has fully complied with this Memorandum. A Native
American representative serves as a member of the Council and as a
member of the Council's Regulations Task Force. The proposed
regulations enhance the opportunity for Native American involvement in
the Section 106 process and clarify the obligation of Federal agencies
to consult with Native Americans, fulfilling the objectives of the 1992
NHPA amendments.
List of Subjects in 36 CFR Part 800
Administrative practice and procedure, Historic preservation,
Indians, Intergovernmental relations.
Dated: September 26, 1994
Robert D. Bush,
Executive Director.
Title 36, Chapter VIII is amended by revising Part 800 to read as
follows:
PART 800--PROTECTION OF HISTORIC AND CULTURAL PROPERTIES
Sec.
Subpart A--Background and Policy
800.1 Purposes and participants.
800.2 Definitions.
Subpart B--Federal Procedures to Implement Section 106
800.3 Qualifying procedures.
800.4 Standards for evaluating consistency.
800.5 Counterpart procedures, programmatic agreements and exempted
categories.
800.6 Council review of agency procedures.
Subpart C--The Section 106 Process
800.7 Initiation of the Section 106 process.
800.8 Identification of historic properties.
800.9 Assessment of effects.
800.10 Resolution of adverse effects.
800.11 Failure to resolve adverse effects.
800.12 Monitoring and compliance.
800.13 Special requirements for protecting National Historic
Landmarks.
800.14 Documentation requirements.
800.15 Properties discovered after approval or during
implementation of an undertaking.
Subpart D--Alternative Procedures
800.16 Federal agency program alternatives.
800.17 Tribal program alternatives.
800.18 Emergency situations.
Subpart E--Coordination With Other Authorities
800.19 Coordination with other authorities.
Appendix A to Part 800-Identifying Historic Properties in
Coordination With Other Planning Needs
Authority: 16 U.S.C. 470a(d)(2), 470a(d)(6), 470f, 470h-2(a)(2),
470h-2(f), 470h-2(k), 470h-2(l), 470s and 470w.
Subpart A--Background and Policy
Sec. 800.1 Purposes and participants.
(a) Purposes of the Section 106 process. Section 106 requires
Federal agencies to take into account the effects of their undertakings
on historic properties and afford the Council a reasonable opportunity
to comment on such undertakings. This part defines the manner in which
Federal agencies meet both of these statutory responsibilities through
the Section 106 process. The Section 106 process seeks to accommodate
historic preservation concerns with the needs of Federal undertakings.
It is designed to identify potential conflicts between the two and to
resolve such conflicts through consultation among the Agency Official,
the State Historic Preservation Officer, the Council, and other
interested parties during the early stages of planning. By following
the steps set forth in this part to assess the effects of an
undertaking on historic properties and either resolving those effects
through negotiated agreements or obtaining and considering the formal
written comments of the Council membership, Federal agencies evidence
that they have taken into account the effects of their undertakings on
historic properties and have afforded the Council its reasonable
opportunity to comment.
(b) Consultation under this part. The fundamental principle of the
Section 106 process is the identification and resolution of
preservation issues in the planning of a Federal undertaking through an
open and ongoing exchange of factual information and opinion between
the Agency Official and those agencies, organizations, and individuals
with an interest in the undertaking's effects on historic properties.
This principle is embodied in the concept of consultation, which means
the process of seeking, discussing, and considering in good faith the
views of other participants in the Section 106 process. Section
110(a)(2)(E) of the Act requires that agency procedures for compliance
with Section 106 provide a process for the identification and
evaluation of historic properties for listing in the National Register
and the development and implementation of agreements, in consultation
with State Historic Preservation Officers, local governments, Indian
tribes, Native Hawaiian organizations, and the interested public, as
appropriate, regarding the means by which adverse effects on such
properties will be considered. The goal of the consultation process is
to seek ways to avoid or minimize the adverse effects of an undertaking
on historic properties. The agency should first seek ways to avoid the
adverse effects of an undertaking, and where avoidance cannot
reasonably or practicably be achieved, should seek ways to minimize
those effects. Destruction of historic properties should always be a
last resort. Consultation commences at the earliest stages of planning
between the Agency Official and the State Historic Preservation Officer
and continues through the identification of historic properties, the
assessment of the undertaking's effects and negotiation to resolve
adverse effects, with the addition of other parties at various points
and the ongoing opportunity for participation of the public.
Consultation in the Section 106 process normally results in agreed upon
outcomes and decisions. In the event that there is disagreement, this
part provides that the Council will resolve disputes over the
application of these regulations and specific findings under them. In
the event that consultation fails to result in resolution of an
undertaking's adverse effects, the head of the agency retains final
decisionmaking authority for the undertaking after obtaining and
considering the formal written comments of the Council membership.
(c) Timing. Section 106 requires the Agency Official to complete
the Section 106 process prior to the approval of the expenditure of any
Federal funds on the undertaking or prior to the issuance of any
license or permit. This does not bar an Agency Official from expending
funds on, or authorizing, nondestructive project planning activities
preparatory to an undertaking before complying with Section 106,
provided that such expenditures or activities do not restrict the
consideration of alternatives to avoid or mitigate adverse effects on
historic properties. The Agency Official shall ensure that the Section
106 process is initiated early in the planning stages of the
undertaking, when the widest feasible range of alternatives is open for
consideration. The Agency Official shall establish a schedule for
completing the Section 106 process that is consistent with the planning
schedule for the undertaking, the conduct of reviews required under
other authorities (See Sec. 800.20), and the final approval of the
undertaking.
(d) Relation of the Section 106 process to agency preservation
programs under Section 110. Section 110(a) of the Act requires a
Federal agency to establish a preservation program for the
identification, evaluation, and nomination of historic properties to
the National Register and the protection of such properties. Agency
procedures for compliance with Section 106 are a required element of
such a program. Section 110 further requires that agency Section 106
procedures be consistent with this part. Subpart B of this part sets
forth standards and procedures for determining consistency. The Council
encourages agencies to develop their Section 110 procedures as soon as
possible. Unless or until an agency has formally adopted its procedures
and completed the process for substitution, including Council review
(Sec. 800.3(c)), this part governs the actions taken by an agency to
take into account the effects of a proposed undertaking on historic
properties and afford the Council a reasonable opportunity to comment
in accordance with Section 106 of the Act.
(e) Participants in the Section 106 process.--(1) Agency Official.
The Agency Official with jurisdiction over an undertaking has legal
responsibility for complying with Section 106. It is the Agency
Official's responsibility to determine whether the agency's proposed
action is an undertaking; establish an undertaking's area of potential
effect; identify and evaluate potentially affected historic properties;
assess an undertaking's likely effect upon them; seek and consider
alternatives to avoid or reduce any adverse effects upon historic
properties; decide upon an appropriate resolution of adverse effects;
and afford the Council its comment opportunity.
(i) Assistance by non-Federal parties. The Agency Official may use
the services of grantees, applicants, consultants, or designees to
prepare the necessary information and analyses, but remains legally
responsible for Section 106 compliance, including all determinations
charged to the Agency Official under this part. If any document or
study is prepared by a consultant or contractor for purposes of
compliance with Section 106 and this part, the Agency Official shall
furnish guidance and shall independently evaluate the document prior to
its approval, taking responsibility for its scope and contents.
(ii) Multiple agencies involved in an undertaking. If more than one
Federal agency is involved in an undertaking, each agency has the
responsibility for compliance with Section 106 and this part. The
Council and the Federal agencies, in consultation with the Council, may
mutually agree to designate a lead Federal agency. The lead Federal
agency shall identify the appropriate official to serve as Agency
Official for the purposes of this part. Assumption of lead agency
status carries with it the responsibility to act on behalf of all
participating Federal agencies during Section 106 review, addressing
their collective responsibilities under Section 106 and this part.
Designation of one agency as lead Federal agency does not abrogate the
other Federal agencies' responsibilities to participate in the
negotiation process if the Council deems it necessary, and to comply
with the requirements of Section 106 and this part.
(2) State Historic Preservation Officer. The State Historic
Preservation Officer coordinates State participation in the
implementation of the National Historic Preservation Act and is a key
participant in the Section 106 process. The role of the State Historic
Preservation Officer is to consult with and assist the Agency Official
in identifying historic properties, assessing effects upon them, and
considering and deciding upon the resolution of adverse effects. The
State Historic Preservation Officer reflects the interests of the State
and its citizens in the preservation of their cultural heritage and
helps the Agency Official identify parties interested in an
undertaking, effects upon historic properties, and alternatives that
may avoid or reduce adverse effects upon historic properties.
(3) Council. The Council is responsible for promulgating
regulations to implement Section 106 in its entirety, consulting with
and commenting to the Agency Official on an undertaking that affects
historic properties, interpreting this part, and generally overseeing
the operation of the Section 106 process. The Council may participate
at any point in the Section 106 process at its own initiative.
(4) Interested parties. (i) Interested parties are those
individuals and organizations that are identified by the Agency
Official or who indicate to the Agency Official, the State Historic
Preservation Officer or the Council in accordance with this part their
concern with the effects of an undertaking on historic properties. If
the State Historic Preservation Officer or the Council receive
notification from interested parties, they shall notify the Agency
Official. This part requires that particular interested parties be
invited to participate in the Section 106 process under certain
circumstances. In addition, whenever the Agency Official, the State
Historic Preservation Officer, and the Council, if participating, agree
that active participation of an interested party will advance the
objectives of Section 106, they may invite that party to participate.
Anyone who wishes to participate in the Section 106 process as an
interested party should notify the Agency Official in writing and make
the State Historic Preservation Officer and the Council aware of that
request.
(ii) Interested parties may include:
(A) Local governments. Local governments are encouraged to take an
active role in the Section 106 process when undertakings affect
historic properties within their jurisdiction. When a local government
has legal responsibility for Section 106 compliance under programs such
as the Community Development Block Grant Program, participation as the
Agency Official is required. When no such legal responsibility exists,
units of local government may request to participate in the Section 106
process.
(B) Applicants for Federal assistance, permits, and licenses. When
the undertaking is proposed by an applicant for Federal assistance or
for a Federal permit or license, the applicant may participate in the
Section 106 process in the manner prescribed in this part.
(C) Owners of affected properties. Individuals or organizations
that own property that may be affected by an undertaking may request to
participate. Qualifying property is not limited to historic property,
but may include any real property affected directly or indirectly by
the undertaking.
(D) Other individuals and organizations that have notified the
Agency Official of their concern about the effects of the undertaking
on historic properties.
(5) Indian tribes and Native Hawaiian organizations. (i) Section
101(d)(6)(B) of the Act requires the Agency Official to consult with
any Indian tribe or Native Hawaiian organization that attaches
religious and cultural significance to historic properties that may be
affected by an undertaking. To meet this responsibility, the Agency
Official, at the outset of the Section 106 process, shall identify
Indian tribes and Native Hawaiian organizations likely to have such
interests and notify them of their opportunity to participate in the
Section 106 process. The Agency Official shall provide for Indian tribe
and Native Hawaiian participation in accordance with guidance issued by
the National Park Service and the following principles:
(A) Consultation shall be designed to identify the Indian tribe's
or Native Hawaiian organization's general concerns and interests
regarding historic properties, and to seek their assistance in
identifying historic properties and assessing effects on such
properties. The Agency Official shall commence consultation through the
Indian tribe's or Native Hawaiian organization's governing body and
also include traditional cultural authorities and members of
traditional communities where appropriate.
(B) To the extent feasible, consultation shall be initiated prior
to any other public involvement procedures, in order to identify and
resolve possible concerns about the confidentiality of information on
historic properties. If the Indian tribe or the Native Hawaiian
organization requests confidentiality, the Agency Official shall use
the authority of Section 304 of the Act to protect the confidentiality
of information about historic properties.
(C) Consultation shall be carried out in a manner that respects the
cultural values, modes of communication, and systems of interaction
used by the Indian tribe or Native Hawaiian organization. The Agency
Official shall be sensitive both in choosing a culturally appropriate
manner of communication and in timing a request for views from Indian
tribes and Native Hawaiian organizations. The Agency Official shall
initiate efforts to obtain such views early enough in the planning
process, if necessary prior to other public involvement, to allow
adequate time for responses and discussion of relevant preservation and
traditional cultural issues.
(D) Consultation shall include an Indian tribe that does not reside
in the vicinity of the undertaking when the Indian tribe has an
interest in historic properties affected by the undertaking and has
notified the Agency Official of that interest.
(ii) When an Indian tribe has assumed the functions of a State
Historic Preservation Officer in the Section 106 process with respect
to tribal lands under Section 101(d)(2)(C) of the Act, the Agency
Official shall consult with the Indian tribe in accordance with the
plan prepared by the tribe pursuant to that section. The Agency
Official need not consult with the State Historic Preservation Officer
except:
(A) To the extent such consultation is stipulated in the plan
pursuant to Section 101(d)(2)(D)(ii) of the Act;
(B) With regard to effects on historic properties located on non-
tribal lands; or
(C) When the State Historic Preservation Officer requests to
participate in consultation as an interested party.
(6) The public. The Council values the views of the public on
historic preservation questions and encourages maximum public
participation in the Section 106 process. This part defines specific
points in the process where the Agency Official is required to provide
the public with information concerning an undertaking and its effects
on historic properties and to provide opportunities for public comment
and input. The public may also provide its views at other points in the
process and the Agency Official should consider those views in
decisionmaking. This part also identifies specific opportunities for
the public to seek Council review of an Agency Official's findings
under this part. Members of the public should become familiar with
these points for involvement in order to maximize their participation
in the Section 106 process. The Agency Official's efforts to seek and
consider the views of the public shall reflect the nature and
complexity of the undertaking and its effects on historic properties.
(i) The public may provide its views to the Agency Official, the
State Historic Preservation Officer, the Council, and interested
parties during the determination of the area of potential effects
(Sec. 800.8(a)(1)), the assessment of the need for specific actions to
identify historic properties (Sec. 800.8 (b)), the evaluation of
historic significance (Sec. 800.8(c)), the assessment of effects
(Sec. 800.9(a)), the resolution of adverse effects (Sec. 800.10), and
the preparation of Council comments (Sec. 800.11(b)). The relevant
sections of this part provide details on how the public participates.
(ii) The public may examine findings made by an Agency Official
during the Section 106 process along with the documentation supporting
such findings and responses provided by the State Historic Preservation
Officer or the Council. These include the Agency Official's decision
regarding whether an action is an undertaking (Sec. 800.7(a)), the
Agency Official's finding as to the area of potential effects
(Sec. 800.8(a)(1)), the Agency Official's evaluation of a property's
historic significance (Sec. 800.8(c)), the Agency Official's finding
regarding the presence of historic properties (Sec. 800.8(d)), the
Agency Official's finding regarding the undertaking's effect on
historic properties (Sec. 800.9), and any Memorandum of Agreement
executed to resolve adverse effects (Sec. 800.10(c)). Any member of the
public may request the Council to review any of the preceding findings.
(iii) Members of the public may request to participate in the
Section 106 process as interested parties in accordance with
Sec. 800.1(e)(4)(iv). The request should be made early in the Section
106 process and in writing to the Agency Official. Copies of the
request should be provided to the appropriate State Historic
Preservation Officer and the Council.
(iv) When issuing notice to the public in accordance with this
part, an Agency Official shall adequately inform the public of historic
preservation issues in order to elicit public views on such issues that
can then be considered and resolved in decisionmaking. The Agency
Official shall determine appropriate channels for providing notice,
considering the nature of the affected public and culturally
appropriate communication.
(v) Agencies should use their established public participation
procedures when they meet the public involvement requirements set forth
in this part.
Sec. 800.2 Definitions.
(a) Act means the National Historic Preservation Act of 1966, as
amended, 16 U.S.C. 470-470w-6.
(b) Agency means agency as defined in 5 U.S.C. 551.
(c) Agency Official means the Federal agency head or a designee
with legal authority over a specific undertaking, including any State,
local, or tribal government official who has been delegated legal
responsibility for compliance with Section 106 in accordance with law.
(d) Anticipatory Demolition means an action of an applicant who,
with intent to avoid the requirements of Section 106, has intentionally
significantly adversely affected a historic property to which an agency
grant of a loan, loan guarantee, permit, license, or other assistance
relates, or an inaction of an applicant who, having the legal power to
prevent it, allowed such a significant adverse effect to occur.
(e) Approval of the expenditure of funds means any final agency
decision approving the eligibility of an undertaking for Federal funds
or financial assistance, including any agency decision that may be
subject to an administrative appeal or rehearing procedure and
conditional decisions subject to reevaluation by the agency.
(f) Area of potential effects means the geographic area or areas
within which an undertaking may directly or indirectly cause changes,
whether beneficial or adverse, to the character or use of historic
properties, if any such properties exist. The area of potential effects
is not limited to land under Federal jurisdiction or control or land
within a Federal construction, right-of-way, or permit area. (See
Appendix A of this part for further discussion).
(g) Comment means the findings and recommendations of the Council
membership formally provided in writing to the head of a Federal agency
under Section 106.
(h) Conditional No Adverse Effect Agreement means an agreement
between an Agency Official and a State Historic Preservation Officer
that an undertaking will have no adverse effect, because the
undertaking is being conducted in accordance with specified conditions.
(i) Consultation means the good faith process of seeking,
discussing, and considering the views of other participants in the
Section 106 process as set forth in Sec. 800.1(b).
(j) Council means the Advisory Council on Historic Preservation or
a Council member or employee designated to act for the Council.
(k) Council membership means the full membership of the Council or
a subgroup of members, numbering not less than three, appointed by the
Chairman to carry out specific responsibilities under this part.
(l) Foreclosure means the action or inaction of a Federal agency
which precludes the Agency Official from obtaining, considering and
acting on the Council's comments on the full range of measures to avoid
or minimize the adverse effects in accordance with Sec. 800.12(b).
(m) Head of the agency means the chief official of the agency
responsible for all aspects of the agency's actions. If a State, local
or tribal government has been delegated responsibility for compliance
with Section 106, the head of that unit of government shall be
considered the head of the agency.
(n) Historic property means any prehistoric or historic district,
site, building, structure, or object included in, or eligible for
inclusion in, the National Register of Historic Places maintained by
the Secretary of the Interior. For the purposes of this part, this term
includes but is not limited to, artifacts, records, and remains that
are related to and located within such properties. The term further
includes properties of traditional religious and cultural importance to
an Indian tribe or Native Hawaiian organization which meet the criteria
for inclusion in the National Register of Historic Places. The term
``eligible for inclusion in the National Register'' includes both
properties formally determined as such in accordance with regulations
of the Secretary of the Interior and all other properties that meet
National Register listing criteria.
(o) Indian tribe means an Indian tribe, band, nation, or other
organized group or community, including a Native village, Regional
Corporation or Village Corporation, as those terms are defined in
Section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602),
which is recognized as eligible for the special programs and services
provided by the United States to Indians because of their status as
Indians.
(p) Interested party means any individual or organization that has
indicated to the Agency Official, State Historic Preservation Officer
or Council its concern with the effects of an undertaking on historic
properties.
(q) Local government means a city, county, parish, township,
municipality, borough, or other general purpose political subdivision
of a State.
(r) Memorandum of Agreement means the document that records the
terms and conditions which have been agreed upon to resolve the adverse
effects of an undertaking upon historic properties.
(s) National Historic Landmark means a historic property that the
Secretary of the Interior has designated a National Historic Landmark.
(t) National Register means the National Register of Historic
Places maintained by the Secretary of the Interior.
(u) National Register Criteria means the criteria established by
the Secretary of the Interior for use in evaluating the eligibility of
properties for the National Register (36 CFR Part 60).
(v) Native Hawaiian means any individual who is a descendant of the
aboriginal people who, prior to 1778, occupied and exercised
sovereignty in the area that now constitutes the State of Hawaii.
(w) Native Hawaiian organization means any organization which
serves and represents the interests of Native Hawaiians; has as a
primary and stated purpose the provision of services to Native
Hawaiians; and has demonstrated expertise in aspects of historic
preservation that are significant to Native Hawaiians.
(x) Notice of Violation means a notification from the Council of
its finding in accordance with Sec. 800.12(d) that an Agency Official
has failed to comply with Section 106 and this part.
(y) Secretary means the Secretary of the Interior.
(z) State Historic Preservation Officer means the official
appointed or designated pursuant to Section 101(b)(1) of the Act to
administer the State historic preservation program or a representative
designated to act for the State Historic Preservation Officer.
(aa) Traditional community means the members of a recognizable
ethnic group who continue to live according to beliefs and traditions
passed down from previous generations.
(bb) Traditional cultural authority means an individual or a group
of individuals in an Indian tribe, Native Hawaiian organization, or
other social or ethnic group who is recognized by members of the group
as knowledgeable in the group's traditional history and cultural
practices.
(cc) Tribal lands means all lands within the exterior boundaries of
any Indian reservation and all dependent Indian communities.
(dd) Undertaking means any project, activity, or program under the
direct or indirect jurisdiction of a Federal agency that can result in
changes in the character or use of historic properties, if any such
historic properties are located in the area of potential effects. It
includes any project, activity, or program that is carried out by or on
behalf of the agency; is financed in whole or in part with Federal
financial assistance; requires a Federal permit, license or approval,
including agency authority to disapprove or veto the project, activity,
or program; or is subject to State or local regulation administered
pursuant to a delegation or approval by a Federal agency. Undertakings
include new and continuing projects, technical assistance pertaining to
a specific site and related to the provision of Federal financial
assistance, activities, or programs, renewals or reapprovals of such
assistance, activities, or programs, and any of their elements not
previously considered under Section 106.
Subpart B--Federal Procedures to Implement Section 106
Sec. 800.3 Qualifying procedures.
(a) Purpose. Section 110(a)(2) of the Act directs each Federal
agency to establish a preservation program for the identification of
historic properties, their evaluation and nomination to the National
Register, and their protection. Section 110(a)(2)(E) of the Act
requires that each Federal agency preservation program ensures that the
agency's procedures for compliance with Section 106 are consistent with
the Council's regulations; provides a process for the identification
and evaluation of historic properties for listing in the National
Register and for developing and implementing of agreements, in
consultation with State Historic Preservation Officers, local
governments, Indian tribes, Native Hawaiian organizations, and the
interested public, as appropriate, regarding the means by which adverse
effects on such properties will be considered; and provides for the
disposition of Native American cultural items from Federal or tribal
land in a manner consistent with Section 3(c) of the Native American
Graves Protection and Repatriation Act (25 U.S.C. 3001-3013). This
subpart sets forth standards for making agency procedures consistent
with the Council's regulations and establishes the process by which the
Council will evaluate such procedures. This subpart sets forth
standards for evaluating
(b) Definition of procedure. For the purposes of this subpart, any
formal statement of agency policy or process that deals with the
implementation of Section 106 shall be considered a procedure. Included
are formal regulations and other procedures that are agency-wide in
scope or pertain to a specific program, organizational unit, or
geographical area.
(c) Substitution of agency procedures for Council regulations. An
agency procedure may substitute for the Council's regulations or any
part thereof if it is formally approved by the Council membership as a
counterpart procedure or executed through a Programmatic Agreement in
accordance with Sec. 800.5. Agency procedures to augment, explain, or
an agency without Council membership approval, but the Council
membership reserves the right to determine that such a procedure, or
any part thereof, is inconsistent with the Council's regulations. If an
agency develops a procedure that is not proposed as a counterpart
procedure, the agency may follow such procedure to adapt the specific
requirements of Subpart C of this part to its programs, provided that
the agency's procedure is consistent with the Council's regulations.
Agency procedures found by the Council membership to be inconsistent
with the Council's regulations are invalid for compliance with Section
106 of the Act to the extent that they are found inconsistent.
Sec. 800.4 Standards for evaluating consistency.
(a) Consistency with the Council's regulations. The Council
membership will consider agency procedures to be consistent with the
Council's regulations for Section 106 when the agency procedures
include the following provisions:
(1) Initiation of the Section 106 process early in the planning and
development of the agency's undertakings, coordinated with specific
reference to the particular requirements of each agency program, so
that identification and evaluation of historic properties, assessment
of effects, and resolution of adverse effects occurs before
irreversible commitments are made to preferred alternatives that limit
the consideration of options which can avoid or reduce such effects;
(2) Use of threshold terms, such as ``undertaking'' and ``area of
potential effects,'' that conform to the definitions and standards set
forth in the Council's regulations;
(3) Provision for timely and informed consultation involving State
Historic Preservation Officers, the Council, and interested parties in
the identification and evaluation of historic properties, assessment of
effects, and resolution of adverse effects;
(4) Adequate opportunity for State Historic Preservation Officers,
the Council, interested parties, and the public to obtain information
on proposed undertakings and to make their views known to Agency
Officials so that those views can be effectively considered in the
planning of undertakings;
(5) Access to and use of appropriate professional expertise at each
step of the Section 106 process, consistent with standards and
guidelines promulgated by the Secretary under Section 112 of the Act;
(6) Integration of planning and decisionmaking with normal agency
administrative processes and other government-wide requirements to the
maximum extent possible, including provisions for considering the needs
of State, local, and tribal environmental and historic preservation
laws and regulations, with appropriate timing of decision points and
actions;
(7) Identification of appropriate officers of the agency to fulfill
the duties of the Agency Official in the Section 106 process and proper
delineation and communication of the roles and responsibilities of
applicants, grantees, and permittees;
(8) Use of culturally appropriate means of communication with
Native American and Native Hawaiian communities and individuals, with
sensitivity to the confidentiality of information related to historic
properties significant to those parties;
(9) A review and reporting system for Section 106 compliance that
is integrated into established internal agency environmental audit
systems to ensure adequate quality control and promote procedural
efficiency;
(10) Provision for adequate safeguards against foreclosure and
anticipatory demolition;
(11) Use of procedures that place no greater burden of
consultation, coordination, or record keeping on State Historic
Preservation Officers, Indian tribes, and Native Hawaiian organizations
and interested parties than this part;
(12) Mechanisms to ensure that agency staff, cooperating agencies
and organizations, contractors, applicants, permit holders, and others
are trained in the use of the procedures; and
(13) Provision for State Historic Preservation Officers, Indian
Tribes, and Native Hawaiian organizations, and potentially interested
parties to be notified of the procedures and kept informed about their
implementation.
(b) Consistency with Section 3(c) of Native American Graves
Protection and Repatriation Act. The Council membership will consider
agency procedures for compliance with Section 106 to also meet the
requirement that they provide for disposition of Native American
cultural items in a manner consistent with Section 3(c) of the Native
American Graves Protection and Repatriation Act when the agency
procedures include the following provisions:
(1) A policy encouraging coordination between actions taken subject
to Section 106 and the Native American Graves Protection and
Repatriation Act compliance;
(2) Early consultation with appropriate Indian tribes or Native
Hawaiian organizations when planning undertakings subject to Section
106 on Federal or tribal lands, which may result in the intentional
excavation and removal of Native American cultural items subject to the
Native American Graves Protection and Repatriation Act;
(3) Mechanisms to obtain and evidence the consent of the
appropriate Indian tribe or Native Hawaiian organization to the
intentional excavation and removal of such items from tribal lands when
proposed as part of an undertaking or as a mitigation measure pursuant
to Section 106; and
(4) Mechanisms to ensure appropriate disposition of any such items
intentionally excavated and removed from Federal or tribal lands
consistent with the ownership and right of control provisions in
Sections 3(a) and 3(b) of the Native American Graves Protection and
Repatriation Act.
Sec. 800.5 Counterpart procedures, programmatic agreements and
exempted categories.
(a) Counterpart procedures. An agency, in consultation with the
Council, may develop counterpart procedures to substitute for all of
Subpart C of this part. To qualify as counterpart procedures the
Council must determine that the procedures are consistent with the
Council's regulations in accordance with Sec. 800.4 and approve the
procedures prior to publication in the Federal Register. Counterpart
procedures substitute for the Council's regulations for the purposes of
the agency's compliance with Section 106, except that where an Indian
tribe has entered into an agreement with the Council pursuant to
Sec. 800.17, the agency shall follow tribal historic preservation
regulations in lieu of the agency's procedures.
(b) Programmatic Agreements. At the request of the appropriate
Agency Official, the Council and the Agency Official may negotiate a
Programmatic Agreement to govern the implementation of a particular
program.
(1) The negotiation shall involve State Historic Preservation
Officers, Indian tribes and Native Hawaiian organizations, other
Federal agencies, and other interested parties as appropriate.
(2) The Agency Official shall arrange for public notice and
involvement appropriate to the subject matter and the scope of the
program. Views from the public will be invited and considered during
the negotiation of the Programmatic Agreement.
(3) A Programmatic Agreement shall meet the requirements for
consistency with the Council's regulations as set forth in Sec. 800.4.
The Programmatic Agreement shall result in specific internal agency
procedures that shall be issued in accordance with the agency's
procedures and policies.
(4) Compliance with the procedures established by an approved
Programmatic Agreement satisfies the agency's Section 106
responsibilities for all individual undertakings covered by the
agreement until it expires or is terminated.
(5) The Agency Official shall publish notice of an approved
Programmatic Agreement in the Federal Register and make the agency
procedures implementing the Programmatic Agreement readily available to
the Council, State Historic Preservation Officers, and the public.
(6) If the Council determines that the terms of a Programmatic
Agreement are not carried out, or if such an agreement is terminated,
the Agency Official shall comply with Subpart C of this part with
regard to individual undertakings covered by the agreement.
(c) Exempted categories--(1) Criteria for establishing. When an
agency has in place a preservation program meeting the requirements of
Section 110(a) of the Act, or when an agency is developing a procedure
to implement Section 106 in accordance with this subpart, an Agency
Official may propose a category of agency undertakings that may be
exempted from review under the provisions of this part, if the category
meets all of the following criteria:
(i) The action would otherwise qualify as an undertaking in
accordance with Sec. 800.2(dd);
(ii) The potential effects of the undertakings within the category
upon historic properties are foreseeable and do not by their nature
have the potential to result in changes to the character or use of
historic properties;
(iii) The agency's procedures establish the category of
undertakings as a categorical exclusion under the National
Environmental Policy Act, if applicable, consistent with the provisions
of 40 CFR 1508.4;
(iv) The agency's procedures provide that the exempted category
will not be applicable if the Agency Official, the SHPO, the Tribal
Preservation Officer, if participating, or the Council determines that
the normally exempted excluded undertaking may have an adverse effect.
(2) Council review of proposed exempted categories. The Council
membership shall review a request for an exemption that is supported by
documentation demonstrating that the criteria of Sec. 800.5(c)(1) have
been met. Unless further information is requested by the Council, it
shall approve or reject the proposed exemption within 30 days of its
submission. If the Council fails to respond within 30 days of a request
for an exemption which is supported by adequate documentation, then the
requested exemption becomes effective.
(3) Effect. Any undertaking that falls within the exempted category
approved by the Council shall require no further review pursuant to
this part, unless the Agency Official, Council, State Historic
Preservation Officer, or Tribal Preservation Officer, if participating,
determines that there are circumstances under which the normally
excluded undertaking may have an adverse effect upon historic
properties.
Sec. 800.6 Council review of agency procedures.
(a) Initiation of review. When requested by the appropriate officer
of a Federal agency or the Secretary pursuant to Section 110(a)(2)(E)
of the Act, the Council shall review a procedure for consistency with
the Council's regulations. An agency request shall be accompanied by
the full text of the procedure and the information necessary to
evaluate the programs and organizational structure of the agency as
they are affected by the procedure.
(1) The Council may request additional information necessary to
complete its review of the procedure. The Council may also undertake
review of an agency's procedures under this section upon its own
initiative. The agency shall provide such procedures to the Council
when requested.
(2) When reviewing a procedure to evaluate consistency with the
Council's regulations, the Council shall also consult with the
Secretary, and may provide the agency head and the Secretary with its
views on the consistency of the procedure with the disposition
requirements of Section 3(c) of the Native American Graves Protection
and Repatriation Act.
(b) Council finding of consistency. The Council membership shall
make a finding as to the consistency of the procedure with the
Council's regulations based on the criteria set forth in Sec. 800.4.
The Council shall provide its finding in writing to the officer of the
agency who made the request and the head of the agency.
(c) Approval of counterpart procedures. If the Council membership
finds the procedure consistent, the agency may request the Council
membership to approve the procedure as a counterpart procedure to
substitute for the provisions of Subpart C of this part. Counterpart
procedures must meet the requirements of Secs. 800.4 and 800.5.
(d) Council finding of inconsistency. If the Council membership
finds the procedure inconsistent with the Council's regulations, the
Council shall notify the officer of the agency who made the request,
the head of the agency, and the Secretary. The notice shall identify
the specific provisions that are inconsistent and include any
recommendations that the Council may have to make the procedure
consistent and suitable for approval as a counterpart procedure.
(1) In the event that an agency procedure is found to be
inconsistent with the Council's regulations, the agency shall follow
the provisions of the Council's regulations with regard to the
inconsistent provisions.
(2) The Council membership's decision as to the consistency of an
agency's procedures shall be determinative, in accordance with Section
211 of the Act.
Subpart C--The Section 106 Process
Sec. 800.7 Initiation of the section 106 process.
The procedure in this subpart guides Agency Officials, State
Historic Preservation Officers, and the Council in the conduct of the
Section 106 process. Alternative methods of meeting Section 106
obligations are found in Subpart B of this part, ``Federal Procedures
to Implement Section 106,'' and Subpart D of this part, ``Alternative
Procedures.'' These include Counterpart Procedures, Programmatic
Agreements, and Exempted Categories (Sec. 800.5) and Tribal Program
Alternatives (Sec. 800.17).
(a) Establish undertaking. In accordance with the definition set
forth in Sec. 800.2(dd) and with consideration for any categorical
exclusions previously established pursuant to Sec. 800.11, the Agency
Official shall decide whether an undertaking exists for the purposes of
Section 106. If anyone disagrees with the Agency Official's decision
and notifies the Council, the Council shall review the decision in
accordance with Sec. 800.12(a).
(b) Coordinate with other reviews. The Agency Official shall
establish a schedule for carrying out the steps of the Section 106
process that considers the overall planning and approval schedule for
the undertaking and effective coordination with reviews required under
other authorities including, but not limited to, the National
Environmental Policy Act, the Native American Graves Protection and
Repatriation Act, the American Indian Religious Freedom Act, the
Archeological Resources Protection Act and agency specific legislation,
such as Section 4(f) of the Department of Transportation Act. Further
information regarding coordination of the Section 106 process with
those authorities is found in Subpart E of this part.
(c) Plan for public participation. The Agency Official shall
commence planning for informing and involving the public in the conduct
of the specific steps of the Section 106 process. The Agency Official
should seek to identify parties who may be concerned about the effects
on historic properties, and to determine the issues that may be
involved in dealing with such properties. The Agency Official should
consider the likely complexity of preservation issues and the possible
extent of public controversy, the nature of the potential effects of
the undertaking upon historic properties, the suitability of using
established public involvement procedures used by the agency to comply
with the National Environmental Policy Act and related authorities, and
the overall planning and approval schedule for the undertaking. Where
an Agency Official determines that it is appropriate, or the State
Historic Preservation Officer or the Council so request, the Agency
Official shall establish a specific plan for public involvement and
make it available to the State Historic Preservation Officer, the
Council, interested parties, and the public at large. The Agency
Official must reconsider the needs for public participation as the
Section 106 process proceeds.
(d) Initiate consultation with the State Historic Preservation
Officer. The Agency Official shall determine the appropriate State
Historic Preservation Officer or Officers to be involved in the Section
106 process and proceed to consult in accordance with Secs. 800.8-
800.10.
(1) If the State Historic Preservation Officer declines in writing
to participate in the Section 106 process, the Agency Official shall
consult with the Council, without the State Historic Preservation
Officer, to complete the Section 106 process.
(2) If the State Historic Preservation Officer does not respond
within 30 days of receipt to a written request for participation at any
step in Sec. 800.8, the Agency Official may assume that the State
Historic Preservation Officer concurs in the Agency Official's finding.
The Agency Official may consult with the Council to complete the
Section 106 process, in lieu of further efforts to obtain a response
from the State Historic Preservation Officer.
(3) If the State Historic Preservation Officer does not respond
within 30 days of receipt to a written request for participation at any
step in Secs. 800.9 or 800.10, the Agency Official may not assume such
action to indicate the concurrence of the State Historic Preservation
Officer with the Agency Official's position. The Agency Official may
consult with the Council to complete the Section 106 process, in lieu
of further efforts to obtain a response from the State Historic
Preservation Officer.
(e) Identify Indian tribes and Native Hawaiian organizations. As
early as possible in planning the undertaking, the Agency Official
shall initiate consultation with any Indian tribe or Native Hawaiian
organization that the Agency Official has reason to believe might
attach religious and cultural significance to historic properties in
the area of potential effects, or cause such contact to be initiated by
an applicant for Federal assistance or permission. Such consultation
should be designed to identify the tribe's or organization's general
concerns and interests regarding historic properties, and to seek the
tribe's or organization's assistance in identifying historic properties
and assessing effects on such properties. Consultation should be
carried out in a manner consistent with Sec. 800.1(e)(5) and continue
in the same manner when identifying historic properties, assessing
effects, and resolving adverse effects.
Sec. 800.8 Identification of historic properties.
(a) Determine scope of identification efforts. At the earliest
feasible stage in planning any undertaking, coordinated with the
preparation of any Environmental Assessment or Environmental Impact
Statement under the National Environmental Policy Act, and in
consultation with the State Historic Preservation Officer, the Agency
Official shall:
(1) Define the area of potential effects, using the definition set
forth in Sec. 800.2(f);
(2) Review existing information on historic properties potentially
affected by the undertaking, including any data concerning the
likelihood that unidentified historic properties exist in the area of
potential effects; and
(3) Seek information from local governments, Indian tribes, Native
Hawaiian organizations, traditional cultural authorities, other
organizations, and interested parties likely to have knowledge of, or
concerns with, historic properties in the area and should seek to
identify the issues that may be involved in dealing with historic
properties in the planning process.
(b) Locate historic properties. Based on the information gathered
under Sec. 800.8(a) and the State Historic Preservation Officer's
opinion on further actions to identify historic properties that may be
affected, the Agency Official shall determine the need for further
actions, such as field surveys, modeling, informant interviews and
ethnographic studies, to identify historic properties. The Agency
Official shall make a reasonable and good faith effort to identify
historic properties that may be affected by the undertaking and gather
sufficient information to evaluate the eligibility of these properties
for the National Register. Efforts to identify historic properties
shall follow applicable standards and guidelines established by the
Secretary and conform to the agency's program to meet the requirements
of Section 110(a)(2) of the Act.
(c) Evaluate historic significance.--(1) Apply National Register
Criteria. In consultation with the State Historic Preservation Officer
and following the Secretary's Standards and Guidelines for Evaluation,
the Agency Official shall apply the National Register Criteria to
properties that may be affected by the undertaking and that have not
been previously evaluated for National Register eligibility. The
passage of time, changing perceptions of significance, or incomplete
prior evaluations may require reevaluation of properties previously
determined eligible or ineligible.
(2) Agree that a property is eligible. If the Agency Official and
the State Historic Preservation Officer agree that a property is
eligible under the criteria, the property shall be considered eligible
for the National Register for Section 106 purposes.
(3) Agree that a property is not eligible. If the Agency Official
and the State Historic Preservation Officer agree that the criteria are
not met, the property shall be considered not eligible for the National
Register for Section 106 purposes, subject to any appeal or petition
under 36 CFR part 60.
(4) Resolve questions on eligibility. If the Agency Official and
the State Historic Preservation Officer do not agree, or if the Council
or the Secretary so request, the Agency Official shall obtain a
determination of eligibility from the Secretary pursuant to the
applicable National Park Service regulations.
(d) Results of identification and evaluation.--(1) No historic
properties found. If the Agency Official determines in accordance with
Sec. 800.8 (a) through (c) that there are no historic properties within
the area of potential effects, the Agency Official shall provide
documentation of this finding as set forth in Sec. 800.14(a) to the
State Historic Preservation Officer. The Agency Official shall notify
known interested parties and make the documentation available for
public inspection. Unless the Council determines otherwise in
accordance with Sec. 800.12(a), the Agency Official has completed the
Section 106 process.
(2) Historic properties found. If there are historic properties
that the undertaking may affect, the Agency Official shall notify known
interested parties and assess effects in accordance with Sec. 800.9.
(e) Council review of agency findings. If anyone disagrees with the
Agency Official's finding regarding the presence of historic
properties, including the determination of the area of potential
effects, the Agency Official's efforts to locate historic properties,
or the evaluation of historic significance, and notifies the Council,
the Council shall review the finding in accordance with Sec. 800.12(a).
The Council shall refer questions relating to National Register
eligibility to the Secretary for resolution and the Agency Official
shall provide relevant documentation to assist the Secretary's review.
Sec. 800.9 Assessment of effects.
(a) Apply criteria of adverse effect. In consultation with the
State Historic Preservation Officer, the Agency Official shall apply
the criteria of adverse effect set forth at Sec. 800.9(a)(1) to
historic properties within the area of potential effects, giving
consideration to the views concerning such effects provided by
interested parties and the public, if any. The Agency Official shall
also consult with any Indian tribe or Native Hawaiian organization that
attaches religious and cultural significance to historic properties
within the area of potential effects.
(1) Criteria of adverse effect. An undertaking is considered to
have an adverse effect when it may alter characteristics of a historic
property that may qualify the property for inclusion in the National
Register in a manner that may diminish the integrity of the property's
location, design, setting, materials, workmanship, feeling, or
association. Adverse effects may be direct or indirect. Direct effects
are caused by the undertaking and occur at the same time and place.
Indirect effects include those caused by the undertaking that are later
in time or farther removed in distance, but are still reasonably
foreseeable. For the purpose of determining adverse effect, alteration
to features of a property's location, setting, or use may be relevant,
depending on the property's significant characteristics, and should be
considered.
(2) Examples of adverse effects. Adverse effects on historic
properties include, but are not limited to:
(i) Physical destruction, damage, or alteration of all or part of
the property;
(ii) Isolation of the property, from or alteration of, the
character of the property's setting when that character contributes to
the property's qualification for the National Register;
(iii) Introduction of visual, audible, or atmospheric elements that
are out of character with the property or alter its setting;
(iv) Neglect of a property which may result in its deterioration or
destruction; and
(v) Transfer, lease, or sale of property under the jurisdiction or
control of a Federal agency.
(b) Request State Historic Preservation Officer concurrence. If the
Agency Official believes the effect will not be adverse or proposes to
carry out the undertaking in accordance with a Conditional No Adverse
Effect Agreement that meets the requirements of Sec. 800.9(b)(2), the
Agency Official shall submit the proposed finding or agreement with
adequate documentation to the State Historic Preservation Officer for
review and concurrence.
(1) State Historic Preservation Officer response to a submitted
finding of no adverse effect. (i) If the State Historic Preservation
Officer concurs with the Agency Official's finding, the Agency Official
may proceed and shall carry out the undertaking in accordance with
Sec. 800.9(c)(1).
(ii) If the State Historic Preservation Officer fails to respond
within 30 days of receipt of the finding, the Agency Official may
proceed and shall carry out the undertaking in accordance with
Sec. 800.9(c) .
(iii) If the State Historic Preservation Officer objects and does
not propose terms for a Conditional No Adverse Effect Agreement, or the
Agency Official does not agree to execute such an agreement, than the
effect shall be considered adverse. The State Historic Preservation
Officer shall specify the its reasons for objecting to a finding of no
adverse effect.
(2) Conditional No Adverse Effect Agreement. If the Agency Official
proposes to carry out the undertaking in accordance with the
requirements of paragraph (b)(2), or the State Historic Preservation
Officer objects to the Agency Official's finding of no adverse effect
but proposes terms for such agreement, the Agency Official and the
State Historic Preservation Officer may execute a Conditional No
Adverse Effect Agreement that meets the criteria of
Sec. 800.9(b)(2)(i).
(i) A Conditional No Adverse Effect Agreement may be executed when:
(A) The historic property is of significance only for its potential
contribution to archeological, historical, or architectural research,
is not of value for other public uses including onsite interpretation
and adaptive use, and when its significance can be substantially
preserved through the conduct of appropriate research or recordation,
provided that such research or recordation is conducted in accordance
with a plan that meets applicable professional standards and guidelines
and has been reviewed by the State Historic Preservation Officer prior
to implementation of the plan; or
(B) The undertaking is limited to rehabilitation of buildings and
structures and will be conducted in a manner that preserves the
historical and architectural value of affected historic property in
accordance with plans and specifications that conform to the
Secretary's ``Standards for Rehabilitation and Guidelines for
Rehabilitating Historic Buildings'' and that have been reviewed by the
State Historic Preservation Officer prior to implementation; or
(C) The undertaking is limited to the transfer, lease, or sale of a
historic property, and adequate restrictions or conditions, legally
enforceable within the State, are included to ensure preservation of
the property's significant historic features; or
(D) The Agency Official agrees to modify the undertaking in such a
way as to avoid any adverse effects; or
(E) The undertaking meets other conditions specified by the Council
in accordance with a notice that is published in the Federal Register.
(ii) Where the potential exists for the discovery of human remains
or cultural items, as defined in the Native American Graves Protection
and Repatriation Act, during the implementation of the undertaking, the
Agency Official shall consult with Indian tribes, Native Hawaiian
organizations, or other concerned descendant individuals and
communities in developing the Conditional No Adverse Effect Agreement.
(A) If it is known that human remains or cultural items as defined
in the Native American Graves Protection and Repatriation Act are
present, a Conditional No Adverse Effect Agreement may not be executed.
(B) If it is not known that human remains or cultural items as
defined in the Native American Graves Protection and Repatriation Act
are present, then a Conditional No Adverse Effect Agreement may be
executed, but shall contain adequate provisions for consultation with
Indian tribes, Native Hawaiian organizations, or other concerned
descendant individuals and communities in the event of discovery.
(iii) The Agency Official and the State Historic Preservation
Officer shall execute a Conditional No Adverse Effect Agreement that
specifies the conditions which qualify the undertaking for such
treatment. The Agency Official shall file the Conditional No Adverse
Effect Agreement with the Council prior to approval of the undertaking
and carry out the undertaking in accordance with the agreement.
(iv) Unless anyone requests, the Council shall not review
individual Conditional No Adverse Effect Agreements, but may elect to
review specific ones at its discretion in accordance with
Sec. 800.12(e)(1) .
(v) For the purposes of this part, the Conditional No Adverse
Effect Agreement shall be considered a Memorandum of Agreement in
accordance with Sec. 800.10(d) and shall govern the undertaking and all
of its parts in accordance with Section 110(l) of the Act. Effects
covered by the Conditional No Adverse Effect Agreement shall be
considered not to be adverse under this part.
(c) Results of assessment.--(1) No adverse effect found. A finding
of no adverse effect in which the State Historic Preservation Officer
has concurred, failed to respond, or has executed a Conditional No
Adverse Effect Agreement in accordance with Sec. 800.9(b) shall be
final, unless the Council determines otherwise in accordance with
Sec. 800.12(a). Implementation of the undertaking in accordance with
the finding as documented, or in accordance with a Conditional No
Adverse Effect Agreement, evidences that the Agency Official has
complied with Section 106 and this part. The Agency Official shall
maintain a record of the finding or the Conditional No Adverse Effect
Agreement, notify all known interested parties, and make the record
available for public review before approving the undertaking. Failure
to carry out the undertaking in accordance with a finding of no adverse
effect or a Conditional No Adverse Effect Agreement requires the Agency
Official to reopen the Section 106 process.
(2) Adverse effect found. If an adverse effect is found in
accordance with this section, the Agency Official shall consult further
to resolve the adverse effect pursuant to Sec. 800.10.
(d) Council review of findings. If anyone requests, the Council
shall review in accordance with Sec. 800.12(a) a finding made by an
Agency Official under Sec. 800.9(a) or (b).
Sec. 800.10 Resolution of adverse effects.
(a) Determine method. If an adverse effect on historic properties
is found, the Agency Official shall consult further with the State
Historic Preservation Officer to determine the appropriate method for
resolving the adverse effect of the undertaking.
(1) Resolution with the State Historic Preservation Officer. If the
undertaking and its effects on historic properties do not involve
National Historic Landmarks, the preservation issues are not complex,
and there is no public controversy over preservation issues, the Agency
Official may follow Sec. 800.10(c)(1).
(2) Resolution with the State Historic Preservation Officer and the
Council. If the undertaking and its effects on historic properties
involve National Historic Landmarks, the preservation issues are
complex, or there is public controversy over preservation issues, the
Agency Official shall follow Sec. 800.10(c)(2).
(b) Initiate negotiation. The Agency Official shall use the
selected method to develop and evaluate acceptable alternatives or
modifications to the undertaking, including avoiding and minimizing
adverse effects on historic properties. In consultation with the State
Historic Preservation Officer, the Agency Official shall initiate
negotiation by involving interested parties, providing documentation,
and involving the public.
(1) Involve interested parties. The Agency Official shall notify
interested parties and invite them to participate in the negotiation as
follows:
(i) An Indian tribe or Native Hawaiian organization that attaches
religious and cultural significance to historic properties within the
area of potential effects must be invited to participate in any
negotiation.
(ii) An Indian tribe with jurisdiction over tribal lands affected
by the undertaking must be invited to participate in any negotiation.
(iii) The Agency Official shall notify the following interested
parties who may participate in the negotiation by notifying the Agency
Official:
(A) The head of a local government when the undertaking may affect
historic properties within the local government's jurisdiction;
(B) Units of local government with an interest in the undertaking
and its effects on historic properties;
(C) Applicants for, or holders of, grants, permits, or licenses;
(D) Owners of affected properties, provided that participation may
be limited to organizations representing the interests of affected
property owners if the Council determines it is necessary;
(E) Traditional cultural authorities and traditional communities
with an interest in the undertaking and its effects on historic
properties of traditional cultural and religious importance; and
(F) Other interested parties as jointly determined appropriate by
the Agency Official, the State Historic Preservation Officer, and the
Council, if participating.
(2) Provide documentation. The Agency Official shall provide each
of the parties to the negotiation with the documentation set forth in
Sec. 800.14(c) and such other documentation as may be developed in the
course of negotiation to resolve adverse effects.
(3) Involve the public. The Agency Official shall provide
information to the public and an adequate opportunity for members of
the public to express their views on resolving adverse effects of the
undertaking. The Agency Official shall use appropriate mechanisms to
ensure that the full range of the public's views is represented in the
negotiation. The Agency Official, the State Historic Preservation
Officer, or the Council may meet with members of the public or conduct
a public information meeting for this purpose.
(c) Resolve adverse effects.--(1) Resolution with the State
Historic Preservation Officer. (i) When the Agency Official determines
that the nature of the undertaking and its effects do not warrant
Council participation in the consultation in accordance with
Sec. 800.10(a)(2), the Agency Official shall notify the Council by
providing the documentation set forth in Sec. 800.14(c).
(ii) The Council shall notify the Agency Official of its intention
to participate in the negotiation within 30 days of receiving the
notice. If the Council elects to participate, the Agency Official shall
proceed in accordance with Sec. 800.10(c)(2). Failure of the Council to
notify the Agency Official within the 30 day time period shall not
preclude the Council joining the negotiation process at any later
point.
(iii) If the Council does not elect to participate, the Agency
Official shall negotiate with the State Historic Preservation Officer
and interested parties to seek ways to avoid or reduce the adverse
effects by negotiating acceptable alternatives or modifications to the
undertaking as proposed.
(iv) If the Agency Official and the State Historic Preservation
Officer agree on how the adverse effects will be resolved, they shall
execute a Memorandum of Agreement. The Agency Official shall submit the
Memorandum of Agreement to the Council with the documentation set forth
in Sec. 800.14(d) for review.
(v) The Council shall have 30 days from the receipt of an
adequately documented Memorandum of Agreement to review it. Unless the
Council objects to the Memorandum of Agreement before this review
period ends, the Memorandum of Agreement shall become final. The
Council may object when it determines that further negotiation is
necessary in accordance with Sec. 800.10(c)(2) because the Agency
Official failed to notify the Council pursuant to Sec. 800.10(c)(1)(i);
interested parties were not adequately involved; the Memorandum of
Agreement contains serious technical or substantive flaws; or public
controversy exists.
(vi) If the Agency Official and the State Historic Preservation
Officer are unable to agree on the terms of a Memorandum of Agreement,
the Agency Official or the State Historic Preservation Officer shall
request the Council to join the consultation. Consultation shall
proceed in accordance with Sec. 800.10(c)(2).
(2) Resolution with Council participation. (i) When the Agency
Official determines that Council involvement is warranted in accordance
with Sec. 800.10(a)(2), when the Council notifies the Agency Official
in accordance with Sec. 800.10(c)(1)(ii), or when the Agency Official,
the State Historic Preservation Officer, or the Council so requests,
the Agency Official shall consult with the State Historic Preservation
Officer and the Council to avoid or reduce the adverse effects by
negotiating acceptable alternatives or modifications to the undertaking
as proposed. The Agency Official shall invite interested parties to
participate in the negotiation in accordance with Sec. 800.10(b)(1). If
the Agency Official, the State Historic Preservation Officer, and the
Council agree on how the adverse effects will be resolved, they shall
execute a Memorandum of Agreement.
(ii) When negotiation is being conducted in accordance with
Sec. 800.10(c)(1), the Agency Official, the State Historic Preservation
Officer, or any interested party may request the Council to
participate. The Council shall determine if it will participate and
notify the requestor of its decision within 30 days of the request. The
Council may participate at any point in the Section 106 process without
such a request. If the Council decides to participate, negotiation
shall be conducted in accordance with Sec. 800.10(c)(2).
(d) Memorandum of Agreement--(1) Signatories. The signatories have
the sole authority to execute, amend, or terminate the agreement. The
Agency Official and the State Historic Preservation Officer are the
signatories to a Memorandum of Agreement executed pursuant to
Sec. 800.10(c)(1). The Agency Official, the State Historic Preservation
Officer, and the Council are the signatories to a Memorandum of
Agreement executed pursuant to Sec. 800.10(c)(2). When an Indian tribe
or Native Hawaiian organization has participated in the negotiation,
the Agency Official shall invite the governing body of the Indian tribe
or the Native Hawaiian organization to concur in any Memorandum of
Agreement. Other interested parties may be invited by the signatories
to concur in the agreement, but their concurrence is not necessary for
the Memorandum of Agreement to take effect. When exercising its
authorities under Sec. 800.10(c)(1)(v), the Council will consider any
objection to execution of such an agreement raised by an Indian tribe,
Native Hawaiian organization, or other interested party.
(2) Use of a Memorandum of Agreement for special situations. (i) A
Memorandum of Agreement may govern more than one individual
undertaking, a large or complex project, or certain situations that do
not fall within the normal process of individual project review. These
include situations:
(A) When effects on historic properties are similar and repetitive
or are multi-State or regional in scope;
(B) When effects on historic properties cannot be fully determined
prior to approval;
(C) When non-Federal parties are delegated major decisionmaking
responsibilities; or
(D) Where routine management activities are undertaken at Federal
installations, facilities, or other land-management units.
(ii) Such a Memorandum of Agreement shall be developed in the same
manner as other Memoranda of Agreement under Sec. 800.10, except that
if negotiation pertains to a large project involving several
undertakings and the parties fail to reach agreement, then the Agency
Official shall Comply with Secs. 800.8-800.10 for each individual
undertaking.
(3) Duration and reports on implementation. Any Memorandum of
Agreement completed in accordance with this part shall include a
provision for monitoring of, and reporting on, the implementation of
the terms of the agreement. Reports shall be provided to the State
Historic Preservation Officer and the Council, and be made available to
other interested parties and for public inspection. A Memorandum of
Agreement shall also include provisions for termination or
reconsideration of terms if the undertaking has not been implemented
within a specified period of time.
(4) Effect. A Memorandum of Agreement that has been executed
pursuant to this part evidences the Agency Official's compliance with
Section 106 and this part and shall govern the undertaking and all of
its parts, in accordance with Section 110(l) of the Act. The Agency
Official must conform to and carry out the terms of the Memorandum of
Agreement to satisfy the requirements of Section 106 and this part.
(5) Amendments. The Agency Official, the State Historic
Preservation Officer, and the Council may agree to amend a Memorandum
of Agreement executed in accordance with Sec. 800.10(c)(2) and to
execute an amended Memorandum of Agreement. The Agency Official and the
State Historic Preservation Officer may agree to amend a Memorandum of
Agreement executed in accordance with Sec. 800.10(c)(1) and execute an
amended Memorandum of Agreement, which shall be filed with the Council
and take effect unless the Council objects within 30 days of receipt.
Failure to agree on amendments leaves the existing Memorandum of
Agreement in effect, provided that the Council may terminate any
Memorandum of Agreement and comment to the head of the agency on the
undertaking in accordance with Sec. 800.11(b).
(6) Termination. If one of the signatories determines that the
terms of a Memorandum of Agreement cannot be carried out, the Agency
Official, the State Historic Preservation Officer and the Council,
where appropriate, shall consult to seek amendment of the agreement in
accordance with Sec. 800.10(c)(5). If the Memorandum of Agreement is
not amended, any of the signatories may terminate the agreement. In
that event, the Agency Official shall seek the comments of the Council
in accordance with Sec. 800.11(b).
Sec. 800.11 Failure to resolve adverse effects.
(a) Termination of negotiation--(1) Finding negotiation
unproductive. After participating in consultation to avoid or minimize
the adverse effects by negotiating acceptable alternatives or
modifications to the undertaking as proposed, the Agency Official, the
State Historic Preservation Officer, or the Council may determine that
further negotiation will not be productive and terminate negotiation.
If negotiation is terminated, the head of the agency or an Assistant
Secretary or an officer having major department-wide or agency-wide
responsibilities shall then request the Council's comments.
(2) Documentation requirements. The official requesting Council
comment shall submit the documentation set forth in Sec. 800.14(e) with
the request for Council comments and notify other participants in the
consultation of the request.
(b) Comments by the Council--(1) Preparation. The Council shall
prepare its comments with an adequate opportunity for the Agency
Official, the State Historic Preservation Officer, interested parties,
and the public to provide their views on the adverse effects of the
undertaking and offer any alternatives or modifications to resolve
those effects. The Agency Official shall make a good faith effort to
provide additional information available concerning the undertaking,
its effects, and possible alternatives or modifications, and shall
assist the Council in arranging an onsite inspection and an opportunity
for public participation when requested by the Council. The Agency
Official shall assist the Council to ensure that any Indian tribe or
Native Hawaiian organization is afforded a reasonable opportunity to
make its views known during the formulation of Council comments.
(2) Timing. The Council shall transmit its comments within 45 days
of receipt of a properly documented request from the head of the
agency, unless otherwise agreed to by the Agency Official.
(3) Transmittal. The Council shall provide its comments to the head
of the agency requesting comment with copies to the State Historic
Preservation Officer, interested parties, and others as appropriate.
(4) Response to Council comment. When the Council has commented
pursuant to this paragraph (b), the head of the agency shall consider
the Council's comments in reaching a final decision on the proposed
undertaking. The head of the agency may not delegate his or her
responsibilities pursuant to this paragraph. The head of the agency
shall document any decision made pursuant to Section 106 by:
(i) Preparing a record of the decision and the rationale for the
decision made by the head of the agency, evidencing the consideration
given to the Council's comments;
(ii) Providing that record to the Council prior to the approval of
the undertaking;
(iii) Notifying known interested parties of the decision;
(iv) Providing a copy of the record of decision to all interested
parties who participated in the negotiation process; and
(v) Notifying the public and making the record available for public
inspection.
Sec. 800.12 Monitoring and compliance.
(a) Review of Agency Official findings--(1) Timeliness. The Council
shall consider a request for review of an Agency Official's finding
under this part at any time, regardless of the status of the
undertaking in the planning and approval process. The Council may
determine that a request for review is not timely and decline to
consider the substance of the request. The Council shall deem a request
for review timely if it determines that an opportunity exists to
influence the effects of an undertaking on historic properties,
provided that such a determination shall not preclude the Council from
subsequently determining that an agency has foreclosed the Council's
opportunity to comment pursuant to Sec. 800.12(b).
(2) Council review. The Council shall review the substance of a
request for review and provide its conclusions to the Agency Official,
the State Historic Preservation Officer, and the requesting party
within 30 days. The Council shall reach a determination on the finding
that is presented for review and may also advise the Agency Official of
appropriate steps to take in light of the Council's determination.
(3) Agency Official responsibilities. The Agency Official shall
take all measures to avoid adverse effects to historic properties while
the Council is reviewing the finding. The Agency Official is not
required to delay approval of the undertaking prior to a request for
review being filed or during the Council's review of such request, but
should recognize that a Council determination may require the Agency
Official to reconsider actions previously taken in the Section 106
process. In response to the Council's determination, the Agency
Official shall take the appropriate steps specified in this part.
(4) Council initiation of review. The Council may review any Agency
Official finding made under this part on its own initiative. Such
review shall proceed as though a request to the Council has been made.
(5) Effect of the Council's determination. In accordance with
Section 211 of the Act, the Council's determination on the finding
shall be conclusive for the purposes of Section 106 and this part.
(b) Foreclosure of the Council's opportunity to comment.--(1)
Notice to Agency Official. The Council membership may inform the head
of an agency that an Agency Official has taken an action that has
precluded the Agency Official from completing the requirements of
Section 106 in accordance with this part and thereby foreclosed the
Council's opportunity to comment. The Council shall notify the Agency
Official that it is considering a finding of foreclosure and afford the
Agency Official 30 days to provide information for the Council's
consideration as to whether the agency has foreclosed the Council's
opportunity to comment.
(2) Consideration of foreclosure. After providing notice to the
Agency Official, the Council membership shall make a final
determination as to foreclosure. If the Council membership determines
that the Agency Official has foreclosed the Council's opportunity to
comment, the Council shall transmit its determination to the head of
the agency as a Notice of Violation.
(c) Anticipatory demolition. Section 110(k) of the Act specifies
that an agency shall not grant a loan, loan guarantee, permit, license,
or other assistance to an applicant who, with intent to avoid the
requirements of Section 106, has intentionally significantly adversely
affected a historic property to which the grant would relate, or to an
applicant who allowed such significant adverse effect to occur and had
the legal power to prevent its occurrence. If, after consultation with
the Council, the agency determines that circumstances justify granting
such assistance, despite the adverse effect created or permitted by the
applicant, the agency may allow the grant.
(1) Information for the Council. If the Council is apprised of or
has reason to believe that anticipatory demolition has occurred, it
shall request information from the Agency Official regarding the
applicant's action, including, but not limited to:
(i) The actual effect on historic properties, evaluated in the
context of the Criteria of Adverse Effect set forth in
Sec. 800.9(a)(1);
(ii) Any actions, if any, taken by the Agency Official with respect
to the applicant, the undertaking, or the historic properties;
(iii) Any notification given to the applicant regarding the Section
106 process and any other information relating to the applicant's
knowledge of the requirements of Section 106 and this part;
(iv) The degree of control of the applicant over the action causing
adverse effects;
(v) Any other information bearing on the applicant's intent
regarding the action causing the adverse effects; and
(vi) Any comments provided by the State Historic Preservation
Officer and any interested parties.
(2) Council views on anticipatory demolition. Based on the
information provided by the Agency Official and any other information
provided to the Council, the Council shall advise the Agency Official
of its views regarding whether the applicant has engaged in
anticipatory demolition.
(3) Agency determination. The Agency Official shall consider the
views of the Council in reaching its determination regarding
anticipatory demolition. The Agency Official may independently
determine that anticipatory demolition has occurred, without seeking
the views of the Council.
(4) Denial of assistance. If the Agency Official determines that
anticipatory demolition has occurred, the Agency Official shall not
grant a loan, loan guarantee, permit, license, or other assistance to
the applicant, unless after consultation with the Council, the Agency
Official determines that circumstances justify granting such assistance
despite the adverse effect created or permitted by the applicant. In
that case, the Agency Official may grant the assistance.
(5) Consideration of circumstances justifying granting assistance.
When consulting with the Council regarding circumstances that would
justify granting the assistance, the Agency Official shall provide the
Council with:
(i) The basis for its determination that anticipatory demolition
had occurred;
(ii) The Agency Official's assessment of the severity of the damage
to historic properties, the significance of the historic properties,
the opportunities for mitigation, and the availability of other
remedial actions;
(iii) Any information regarding mitigating circumstances or other
justification for granting the assistance; and
(iv) Any views or information provided to the Agency Official by
the applicant.
(6) Agency determination regarding justifying circumstances. The
Council shall provide the Agency Official with its written views
regarding justifying circumstances. If, after consulting with the
Council, the Agency Official determines that circumstances justify
granting the assistance, despite the adverse effect, the Agency
Official shall notify the Council, the State Historic Preservation
Officer and interested parties of its decision and provide
documentation on the basis of its finding.
(7) Review of undertaking. If the Agency Official decides to grant
the assistance, the Agency Official shall complete the Section 106
process for the undertaking in accordance with Secs. 800.7 through
800.11.
(d) Notice of Violation.--(1) Basis for notice. If the Council
membership determines that the actions of an Agency Official constitute
a violation of Section 106 of the Act or this part, the Council may
issue a Notice of Violation to the Agency Official and the head of the
agency advising that the agency has failed to meet the requirements of
Federal law. The Council membership may determine that a violation of
Section 106 has occurred under the following circumstances:
(i) An Agency Official has proceeded with the planning and approval
of an undertaking without adequate compliance with Section 106 of the
Act and this part;
(ii) An Agency Official or an applicant has failed to carry out the
terms of a no adverse effect determination, a Conditional No Adverse
Effect Agreement, a Memorandum of Agreement, a Programmatic Agreement,
or a counterpart regulation, or failed to comply with a process or
requirement originating under such document;
(iii) An Agency Official has taken or sanctioned an action that has
resulted in adverse effects to a historic property, including
demolition by neglect, prior to completion of the Section 106 process;
or
(iv) An Agency Official has foreclosed the Council's opportunity to
comment.
(2) Procedure. The Council shall issue a preliminary Notice of
Violation to an Agency Official when it believes that a violation of
Section 106 or this part has occurred or is about to occur. The
preliminary Notice of Violation shall apprise the Agency Official of
the basis for the Council's action and request the views of the Agency
Official on the issue. The Council membership may, at its discretion,
decide to issue a final Notice of Violation to the Agency Official. The
final Notice of Violation shall indicate the specific reasons for the
Council membership's finding and shall also be provided to the head of
the agency.
(3) Effect. A Notice of Violation issued by the Council constitutes
the opinion of the Council membership that an Agency Official has acted
in violation of Section 106 of the Act and this part.
(e) Reporting.--(1) Reports of agency performance. The Council may
review the performance of agencies and other parties under this part
and report its findings to the agency Federal Preservation Officer, the
head of the agency, the Office of Management and Budget, the Department
of Justice, and the Congress, as it deems appropriate.
(2) Remedial actions. When the Council determines that an agency
has failed to meet its Section 106 obligations in a manner consistent
with this part, the Council may notify the appropriate Agency Official
that the Council will participate in specific steps of the Section 106
process for review of the agency's undertakings.
Sec. 800.13 Special requirements for protecting National Historic
Landmarks.
Section 110(f) of the Act requires that the Agency Official, to the
maximum extent possible, undertake such planning and actions as may be
necessary to minimize harm to any National Historic Landmark that may
be directly and adversely affected by an undertaking. When commenting
on such undertakings, the Council shall use the process set forth in
Secs. 800.7 through 800.11 and give special consideration to protecting
National Historic Landmarks as follows:
(a) Resolution of adverse effects. Any negotiation to resolve
adverse effects conducted under Sec. 800.10 shall include the Council;
(b) Involvement of the Secretary. The Council shall notify the
Secretary of negotiations involving National Historic Landmarks and may
request a report from the Secretary under Section 213 of the Act to
assist in the negotiation; and
(c) Report of outcome. The Council shall report the outcome of the
Section 106 process, including its comments or any Memoranda of
Agreement, to the President, the Congress, the Secretary, and the head
of the agency responsible for the undertaking.
Sec. 800.14 Documentation requirements.
(a) Finding of no historic properties. The required documentation
is:
(1) A description of the undertaking, including photographs, maps,
and drawings, as necessary;
(2) A description of the undertaking's area of potential effects;
(3) A description of the efforts used to identify historic
properties; and
(4) The basis for determining that no historic properties are
present.
(b) Finding of no adverse effect. The purpose of this documentation
is to provide sufficient information to explain how the Agency Official
reached the finding of no adverse effect, along with the basis for any
Conditional No Adverse Effect Agreement. The required documentation is:
(1) A description of the undertaking and its area of potential
effects, including photographs, maps, and drawings, as necessary;
(2) A description of historic properties that may be affected by
the undertaking;
(3) A description of the efforts used to identify historic
properties;
(4) A statement of how and why the Criteria of Adverse Effect were
found inapplicable; and
(5) The views of affected local governments, Indian tribes, Native
Hawaiian organizations, Federal agencies, and the public, if any were
provided, as well as a description of the means employed to solicit
those views.
(c) Finding of adverse effect and notification to the Council of
resolution with the State Historic Preservation Officer. The required
documentation is:
(1) A description of the undertaking and its area of potential
effects, including photographs, maps, and drawings, as necessary;
(2) A description of the affected historic properties, with
information on the significant characteristics of each property;
(3) A description of the efforts to identify historic properties;
(4) A description of the undertaking's effects on historic
properties; and
(5) A description of anticipated public interest and measures to
ensure public involvement.
(d) Memorandum of Agreement. When a memorandum is submitted to the
Council for review in accordance with Sec. 800.10(c)(1)(iii), the
documentation, in addition to that specified in Sec. 800.14(c), shall
also include a description and evaluation of any proposed mitigation
measures or alternatives that were considered to avoid or minimize the
undertaking's effects and a summary of the views of any interested
parties and the public.
(e) Requests for comment when negotiation is terminated. The
purpose of this documentation is to provide the Council with sufficient
information to make an independent review of the undertaking's effects
on historic properties as the basis for informed and meaningful
comments to the Agency Official. The required documentation is:
(1) A description of the undertaking, with photographs, maps, and
drawings, as necessary;
(2) A description of the efforts to identify historic properties;
(3) A description of the affected historic properties, with
information on the significant characteristics of each property;
(4) A description of the effects of the undertaking on historic
properties and the basis for the determinations;
(5) A description and evaluation of any alternatives or mitigation
measures that the Agency Official proposes to resolve the undertaking's
adverse effects;
(6) A description of any alternatives or mitigation measures that
were considered but not chosen, and the reasons for their rejection;
(7) Documentation of consultation with the State Historic
Preservation Officer regarding the identification and evaluation of
historic properties, assessment of effect, and any consideration of
alternatives or mitigation measures;
(8) A description of the Agency Official's efforts to obtain and
consider the views of affected local governments, Indian tribes, Native
Hawaiian organizations, and other interested parties;
(9) The planning and approval schedule for the undertaking;
(10) Copies or summaries of any views submitted to the Agency
Official concerning the effects of the undertaking on historic
properties and alternatives to reduce or avoid those effects; and
(11) Any additional available information specifically requested by
the Council.
(f) Adequacy of documentation. The Council shall determine the
adequacy of documentation prepared to meet the requirements of this
part. If the Council determines that documentation is inadequate, the
running of the time period specified at the relevant section of this
part shall be suspended until adequate documentation is submitted.
Sec. 800.15 Properties discovered after approval or during
implementation of an undertaking.
(a) Planning for discoveries. When the Agency Official's
identification efforts in accordance with Sec. 800.8 indicate that
historic properties are likely to be discovered during implementation
of an undertaking, the Agency Official is encouraged to develop a plan
for the resolution of any adverse effects upon such properties if
discovered. The plan should be incorporated into any Memorandum of
Agreement executed for the undertaking.
(b) When properties are discovered--(1) If a plan exists. When an
Agency Official has completed the Section 106 process and prepared a
plan in accordance with Sec. 800.15(a), the Agency Official shall
satisfy the requirements of Section 106 concerning properties
discovered during implementation of an undertaking by following the
plan.
(2) If no plan exists. When an Agency Official has completed the
Section 106 process without preparing a plan in accordance with
Sec. 800.15(a) and finds after beginning to carry out the undertaking
that the undertaking will have an adverse effect upon a previously
unidentified historic property, or adversely affect a known historic
property in an unanticipated manner, the Agency Official shall resolve
the adverse effects by:
(i) Consulting pursuant to Sec. 800.10;
(ii) Consulting pursuant to Sec. 800.15(c); or
(iii) Complying with the Archeological and Historic Preservation
Act, 16 U.S.C. 469(a)-(c) and implementing regulations, instead of this
part, if the property is principally of archeological significance and
subject to the requirements of that Act. When the Agency Official
elects to follow this paragraph (b)(2)(iii), the Agency Official shall
consult with the State Historic Preservation Officer on the actions
proposed and provide the Council with a report on the actions after
they are completed.
(c) Expedited consultation. When an Agency Official elects to
follow this paragraph (c), the Agency Official shall notify the State
Historic Preservation Officer and the Council at the earliest possible
time, describe the actions proposed to resolve the adverse effects, and
request the views of the Council and the State Historic Preservation
Officer on the proposed actions. The Council and the State Historic
Preservation Officer shall provide an interim response to the Agency
Official within 48 hours of the request and a final response to the
Agency Official within 30 days of the request.
(d) Other considerations--(1) Eligibility of properties. When a
newly discovered property has not previously been included in or
determined eligible for the National Register, the Agency Official may
assume the property to be eligible for purposes of Section 106.
(2) Discoveries on tribal or Federal land. When a discovery occurs
and compliance with this section is necessary on tribal or Federal
lands, the Agency Official shall consult with the Indian tribe or other
appropriate parties during implementation of this section's
requirements and comply with the Native American Graves Protection and
Repatriation Act as required.
(3) Agency responsibilities during resolution of issues involving
newly discovered properties. Section 106 and this part do not require
the Agency Official to stop work on the undertaking. Depending on the
nature of the property and the undertaking's adverse effects on it, the
Agency Official shall make reasonable efforts to avoid or minimize harm
to the property until the requirements of this section are met. If the
provisions of Native American Graves Protection and Repatriation Act
are applicable, the Agency Official must comply with requirements of
the Native American Graves Protection and Repatriation Act and may be
required to cease the activity in the area of the discovery.
Subpart D--Alternative Procedures
Sec. 800.16 Federal agency program alternatives.
(a) Counterpart procedures. An agency may develop counterpart
procedures to substitute for Subpart B of this part. Sections 800.4 and
800.5(a) govern the development of counterpart procedures.
(b) Programmatic Agreements. A Programmatic Agreement may be used
to fulfill an agency's Section 106 responsibilities for certain
activities or programs that would otherwise require numerous individual
requests for comments. Programmatic Agreements for programs shall be
developed in accordance with Sec. 800.5(b).
Sec. 800.17 Tribal program alternatives.
(a) Application. An Indian tribe may enter into an agreement with
the Council to substitute tribal historic preservation regulations for
the Council's regulations for the review of undertakings on tribal
lands.
(b) Request for Council approval. An Indian tribe shall request the
Council to approve the substitution of tribal historic preservation
regulations. The request shall be accompanied by a copy of the tribal
regulations, a list of potential interested parties and the Indian
tribe's comparison of the consideration afforded historic properties
under its regulations and the Council's regulations.
(c) Consultation. The Council shall consult with the requesting
Indian tribe, the appropriate State Historic Preservation Officer or
Officers, the Secretary and any interested parties who so request. The
requesting Indian tribe shall provide the information submitted in
accordance with Sec. 800.17(b) to interested parties as determined by
the Council. The Council shall provide notice to Federal agencies and
consider any comments received.
(d) Approval. If the Council determines that the tribal historic
preservation regulations will afford historic properties consideration
equivalent to that afforded by the Council's regulations, the Council
shall execute an agreement with the requesting Indian tribe to that
effect.
(e) Effect. After an agreement is executed, an Agency Official with
jurisdiction over an undertaking carried out on tribal lands covered by
the agreement shall follow the approved tribal historic preservation
regulations in lieu of the Council's regulations.
(f) Amendment and termination. Either the Indian tribe or the
Council may seek an amendment to the agreement, which shall take effect
upon agreement of both parties. The agreement may be terminated at any
time by the Indian tribe and by the Council after it finds that the
operation of the tribal regulations do not afford historic properties
consideration equivalent to the Council's regulations.
Sec. 800.18 Emergency situations.
(a) Counterpart procedures. Prior to a disaster or emergency, the
Agency Official should develop a plan for taking historic properties
into account during operations which respond to a disaster or emergency
declared by the President or Agency Official. At the request of the
Agency Official, the Council will assist in the development of such a
plan. The plan shall be submitted to the Council for approval and, if
approved, shall govern the agency's historic preservation
responsibilities during any disaster or emergency.
(b) Alternatives to counterpart procedures. When an Agency Official
proposes an emergency undertaking as an essential and immediate
response to a disaster or emergency declared by the President, and the
agency has not developed counterpart procedures pursuant to paragraph
(a) of this section, the Agency Official may satisfy Section 106 by:
(1) Following a State Disaster Plan which contains a historic
preservation component that has been approved by the Council; or
(2) If there is no State Disaster Plan which contains a historic
preservation component that has been approved by the Council and if the
Agency Official determines that circumstances permit, notifying the
Council and the appropriate State Historic Preservation Officer prior
to the undertaking and affording them an opportunity to comment within
seven days of notification.
(c) Local governments statutorily delegated responsibility for
Section 106 compliance. For the purposes of activities assisted under
Title I of the Housing and Community Development Act of 1974, as
amended, or any other statute which delegates Section 106 compliance
responsibilities, Secs. 800.18 (a) and (b) also apply to an imminent
threat to public health or safety as a result of a natural disaster or
emergency declared by a local government's chief executive officer or
legislative body, provided that if the Council or State Historic
Preservation Officer objects within 7 days, the Agency Official shall
comply with Secs. 800.7 through 800.10.
(d) Applicability. Paragraph (b)(2) of this section applies only to
undertakings that will be implemented within 30 days after the disaster
or emergency has been initially and formally declared by the President.
An agency may seek renewals of the 30 day period by requesting a
renewal from the Council prior to the completion of the 30 days.
Subpart E--Coordination With Other Authorities.
Sec. 800.19 Coordination with other authorities.
(a) Purpose and scope. The requirements of Section 106 of the
National Historic Preservation Act are independent of other
environmental review and protection, historic preservation, and
resource management authorities. As such, compliance with one does not
substitute for compliance with the other. To promote program
effectiveness and efficiency, Agency Officials are encouraged to
coordinate and, where appropriate, integrate the requirements of
Section 106 and this part with the requirements of other environmental
review and protection, historic preservation, and resource management
authorities to the maximum extent feasible. Neither Section 106 or this
part require that Federal agencies comply with these related
authorities, nor do they supersede any regulations that have been
issued to govern any related authorities.
(b) Related authorities. Authorities that should be considered for
coordination with Section 106 compliance include, but are not limited
to, the following:
(1) Other authorities that require agencies to identify, evaluate,
and consider effects on historic properties through planning processes
(e.g., National Environmental Policy Act; American Indian Religious
Freedom Act; Federal Land Policy and Management Act; National Forest
Management Act; and Department of Transportation Act, Section 4(f));
and
(2) Other authorities that require agencies to establish mechanisms
for protection and disposition of historic properties (e.g., Native
American Graves Protection and Repatriation Act; Archeological
Resources Protection Act; Abandoned Shipwrecks Act; and Archeological
and Historic Preservation Act).
(c) Coordination with specific authorities--(1) National
Environmental Policy Act (NEPA).--The Agency Official should coordinate
the identification, evaluation, assessment, and resolution of adverse
effect steps of Subpart C of this part with NEPA requirements, so that
determinations reached under the Section 106 process are accurately
reflected in the Agency Official's decision- making process for the
proposed undertaking.
(i) During the preparation of preliminary environmental
investigations and studies (and the scoping process where applicable),
the Agency Official should ensure that information is explicitly sought
on the presence of historic properties and the nature of any effects
upon them. This information is sought to be consistent with the spirit
of NEPA to identify, avoid, minimize, and lastly to mitigate
unavoidable adverse environmental effects.
(ii) The Agency Official is encouraged to coordinate the public
participation requirements of the EIS process with those of the Section
106 process to eliminate duplication and maximize public knowledge and
understanding of the undertaking and its effects upon historic
properties, provided that the use of the NEPA public participation
process shall not abrogate the public involvement rights afforded in
the Council's regulations.
(iii) An undertaking considered to be categorically excluded from
review under NEPA in accordance with agency procedures may require
review under Section 106 (See Sec. 800.5(c)(3)).
(iv) When the Agency Official prepares an Environmental Assessment
(EA) or Draft Environmental Impact Statement (DEIS) to meet NEPA
requirements, the EA or DEIS should document the steps taken to comply
with Section 106 and reflect the method by which the Agency Official
concluded the Section 106 process.
(A) The Agency Official should complete the identification and
evaluation of potentially affected historic properties and the
assessment of effects on such properties as set forth in Subpart C of
this part prior to circulating or making the EA or DEIS available for
comment. The Agency Official may include the resolution of adverse
effects, if that step has been completed prior to circulation of the
Draft EIS.
(B) The Agency Official should complete the Section 106 process for
affected historic properties so that the revised EA or Final EIS will
document the conclusion of the Section 106 process, including any no
adverse effect determinations, Memoranda of Agreement or Council
comments.
(C) The Agency Official may use an EA or Draft EIS to meet the
information requirements of Subpart C of this part, provided that the
document contains the information specified in Sec. 800.14 as
appropriate.
(D) The Agency Official should ensure that the Finding of No
Significant Impact or Record of Decision incorporates any applicable
mitigation measures related to effects on historic properties.
(v) Further guidance on coordination with NEPA is contained in
Appendix A of this part.
(2) American Indian Religious Freedom Act (AIRFA). An Agency
Official planning or reviewing an undertaking which may affect Native
Americans' exercise of their religion, including access to religious
sites, should initiate consultation with such groups as early as
possible in planning. Such consultation should be carried out in a
manner that is sensitive to the cultural values of the concerned group,
and may be combined with consultation under Section 106. Where the
undertaking may affect historic properties that possess traditional
religious and cultural importance, Subpart C of this part sets forth
the process for consulting with Native Americans to meet the
requirements of Section 106.
(3) Federal Land Policy and Management Act and National Forest
Management Act. Agencies planning or reviewing undertakings on Federal
lands should integrate the public notification, identification,
evaluation, assessment of effects and resolution of adverse effects
under Section 106 with the land-use planning requirements of these
authorities.
(4) Native American Graves Protection and Repatriation Act
(NAGPRA). Agencies planning or reviewing undertakings on Federal or
tribal lands which may result in the intentional removal or inadvertent
discovery of Native American cultural items as defined in NAGPRA are
encouraged to combine necessary consultation and agreement with Indian
tribes and Native Hawaiian organizations with the provisions of Subpart
C of this part.
(5) Archeological Resources Protection Act (ARPA). Agencies
planning or reviewing undertakings on public or Indian lands which may
involve excavation or removal of archeological resources subject to
protection under ARPA should coordinate the permit application and
permit review process with consultation under Section 106. The
information used for ARPA permit issuance may be used as documentation
for review under Section 106. If the only Federal involvement is
issuance of an ARPA permit, compliance with Section 106 is not
required.
(6) Section 4(f) of the Department of Transportation Act. A
Department of Transportation agency planning an undertaking that may
require the use of a historic site is encouraged to integrate the
activities required under this Part with activities that may be
performed to support determinations under Section 4(f) of the
Department of Transportation Act, with respect to such site.
Appendix A to Part 800--Identifying Historic Properties in Coordination
With Other Planning Needs
This Appendix offers guidance on implementing 36 CFR Part 800. It
is designed to supplement and explain the regulations, but is not
binding on Federal agencies.
(a) Overall timing and coordination.
(1) The Section 106 process should be used during the planning
process to progressively narrow resource concerns and issues requiring
resolution about historic properties and historic preservation.
Ultimately, the objective is to resolve outstanding conflicts between
proposed undertakings and their effects on historic properties, and to
make available an appropriate level of information to decisionmakers so
that they can ``take into account'' the effects of those undertakings
on historic properties when the conflicts are not completely resolved.
Consequently, the process will be most effective when planning, review,
consultation, and decisionmaking steps are explicitly linked to the
nature and scope of the undertaking as well as to other relevant
planning and program requirements to the maximum extent possible.
(2) The Agency Official should establish a procedure and schedule
for completing the Section 106 process that is consistent with the
planning approach and approval schedule for the undertaking.
(3) The Agency Official should begin the Section 106 process and
integrate it with other planning needs at the earliest possible time,
when the widest feasible range of alternatives is open for
consideration. The process should be fully coordinated with actions and
preparation of documents necessary to comply with the National
Environmental Policy Act (NEPA) and other environmental and planning
requirements. This will help to ensure that planning and decisions
fully reflect historic preservation issues and cultural values and
concerns, maximize program and budgetary efficiency, and head off
potential conflicts later in the process that could lead to delays and
litigation.
(b) Early planning. At the earliest feasible stage in planning any
undertaking, in conjunction with the preparation of any Environmental
Assessment (EA) or Draft Environmental Impact Statement (DEIS) under
the National Environmental Policy Act (NEPA), and in consultation with
the State Historic Preservation Officer where appropriate, the Agency
Official should:
(1) Establish the nature of the proposed undertaking. Does it deal
principally with operation of a program with a variety of public policy
objectives, management or maintenance of resources and resource types,
or planning and approval of a specific project? What is the extent of
public investment in the undertaking? Will the effects of the
undertaking be widespread or localized?
(2) Determine what decisions need to be made about the proposed
undertaking, and who needs to make them. Does the Agency Official for a
single agency have jurisdiction and control over the undertaking, or is
that jurisdiction shared with other agencies? At what level will
decisions be made within the agency? If there are other Federal
agencies involved, who will be the lead Federal agency, and how will
responsibilities be apportioned? Is all or part of the undertaking on
tribal or State lands, and subject to other legal requirements?
(3) Determine the range of likely historic preservation issues that
may need to be considered. What is the extent of knowledge of historic
properties that may be affected? Are effects likely to be detrimental
or beneficial? Is public interest or controversy likely? What are the
program and fiscal consequences of these issues in relation to the
planning, approval, and implementation of the undertaking?
(4) Decide what legal responsibilities, policy objectives, and
performance standards need to be satisfied in the planning and
execution of the proposed undertaking. What other statutory, policy,
fiscal, or timing requirements apply that may affect consultation and
decisions under Section 106? What legal or practical constraints may
affect the planning and execution of the proposed undertaking, such as
access for identification of historic properties?
(5) Establish how to identify and consult with others who may have
a legal responsibility or a likely interest in the proposed
undertaking, and what those responsibilities or interests might be. To
what extent should other branches within the lead Federal agency be
consulted? Other Federal, State, or local government agencies and
organizations? Can the State Historic Preservation Officer help
identify other parties with an interest in or information about local
historic preservation values and concerns?
(6) Establish the area of potential effects of each alternative
under consideration, including the likelihood of direct, indirect, and
cumulative effects on historic properties.
(i) The area of potential effects:
(A) should be broadly and prospectively defined, but with a logical
linkage to reasonably foreseeable potential effects that various
alternatives for the particular type of undertaking could have;
(B) should consider possible direct, indirect, and cumulative
effects on the physical characteristics, contextual environment, use,
or long-term preservation of properties that help qualify them for
inclusion in the National Register, recognizing that:
(I) direct effects are caused by the undertaking and occur at the
same time and place;
(II) indirect effects include those caused by the undertaking that
are later in time or farther removed in distance, but are still
reasonably foreseeable;
(III) cumulative effects refer to the incremental effect of an
action when added to other past, present, and reasonably foreseeable
future actions regardless of what entity (Federal or non-Federal) or
person undertake such other actions;
(C) should not be defined on the basis of land ownership or control
and may include Federal and non-Federal land;
(D) may include geographic areas subject to indirect effects that
are outside of ``permit areas'' or construction ``footprints;''
(E) should include alternative locations for elements of the
undertaking, locations where the undertaking may result in disturbance
of the ground, locations from which elements of the undertaking may be
visible (if that is important in regard to the property's
significance), and locations where the undertaking may result in
changes in land use, public access, traffic patterns, and similar
indirect effects; and
(F) to the extent feasible, should consider potential cumulative
effects resulting from incremental impacts of the undertaking which,
when added to other past, present, and reasonably foreseeable future
actions, may result in adverse effects on historic properties.
(ii) Programmatic actions. For undertakings involving the potential
effects of a program on historic properties and historic and cultural
values, the area of potential effects should consider the nature of the
program as well as the nature of historic property types most likely to
be affected by it. Planning information should be developed from
knowledge of existing historic resources, interviews with persons with
special expertise or knowledge, and modeling to anticipate the full
range of historic properties involved and likely effects attributable
to the program. For example, a program to replace or rehabilitate
bridges throughout a State needs to consider not only likely bridge
locations and the direct effects of abandonment in place, demolition or
dismantling, relocation, rehabilitation work, on those bridges, but
also any associated archaeological sites which could be damaged or
destroyed with ground disturbing activities such as construction
equipment storage, abutment repair, pavement approach reconstruction,
or bank stabilization; any nearby or surrounding historic districts
whose character would be altered by replacement, new construction, or
changes in historic access patterns; and historic traditional use areas
peculiar to the region (such as fish weirs or traps) that may be
located in the stream itself at or near a new bridge location.
(iii) Management and maintenance areas. For undertakings involving
the potential effects of land-use planning or maintenance practices for
specific management units, such as a national park, national forest,
military installation, Federal office complex, or similar discrete
area, the area of potential effects should consider land uses,
associated management needs, and the range of potential uses of
historic properties, as well as the nature of maintenance requirements
on particular historic property types. A planning document should
establish procedures to satisfy Section 110 requirements which, among
other things, provide for long-term protection, enhancement, management
and use of historic properties and early consultation with Native
Americans and other interested parties. For example, a military
installation resource management plan needs to consider separate use
zones (cantonment or built-up area, vehicular or infantry training
areas, firing ranges and impact area, airfields, hazardous or toxic
materials storage areas, high security vs. public access areas, and
other special use areas). The range of uses and possible effects of
actions in each zone on historic structures, archaeological sites,
traditional cultural properties, and other types of resources will vary
considerably, as will the agency's long-term management responsibility
for and procedures for dealing with those properties under Section 110
and other statutes.
(iv) Project areas. For undertakings involving the potential
effects of a specific federally-supported, -assisted, or -permitted
action or series of actions such as new construction, rehabilitation,
or transfer out of Federal ownership, agencies should at a minimum
distinguish between two groups of undertakings. The first includes
relatively simple, small-scale undertakings affecting limited land area
and a small number of resources. The second includes more complex
undertakings affecting large land areas, multiple resources, and
involving complex jurisdictional matters or other potential points of
controversy. The area of potential effects for an undertaking subject
to preparation of an environmental impact statement under NEPA, defined
as a ``major Federal action significantly affecting the quality of the
human environment,'' may necessarily involve numerous alternative
locations or project designs, and will thus affect the level of effort
necessary to identify historic properties subject to effect (see 36 CFR
Sec. 800.8 and Appendix 1.C. below).
(c) Scope of identification of historic properties subject to
effect. Following determination of the area of potential effects
appropriate to the undertaking, and coordinated with the preparation of
any Environmental Assessment (EA) or Draft Environmental Impact
Statement (DEIS) under NEPA:
(1) The Agency Official should determine whether the area of
potential effects has been surveyed or otherwise inspected to identify
historic properties, and review available information to decide:
(i) the likelihood that historic properties exist within areas
subject to effect, and their characteristics, numbers, and probable
significance;
(ii) the likelihood that such properties retain their historic,
cultural, and/or architectural integrity, given what is known about
historic and recent modification of land or structures in the area; and
(iii) the nature and severity of effects reasonably expectable as a
result of the type of undertaking involved, including both effects that
will occur as the immediate result of the undertaking, or near the site
of a specific undertaking, and those that may occur at a later time or
greater distance, provided the latter are reasonably foreseeable.
(2) The Agency Official should collect available information,
determine whether the undertaking involves a programmatic action, a
land management area, or a specific project, and carry out further
identification by making a reasonable and good faith effort to identify
historic properties within the area of potential effects, with
reference to the nature of the undertaking, its likely effects, and the
extent of available information on historic properties.
(i) In order to provide a reliable basis for a ``reasonable and
good faith effort'' to identify historic properties subject to effect,
agencies should:
(A) Consult with the SHPO, local governments, Indian tribes, Native
Hawaiian organizations, and other Native American groups and
traditional cultural authorities, community organizations, academic
institutions, and others with knowledge of or concerns with history,
culture, historic preservation issues, and specific historic properties
that may be affected;
(B) Consult existing registers of historic properties, including
but not limited to the National Register of Historic Places and State
and local registers, reports of prior historic property surveys, and
knowledgeable projections of historic property distributions;
(C) Review other existing information on historic properties
potentially affected by the undertaking, including any data concerning
the likelihood that unidentified historic properties exist in the area
of potential effect, and relevant background information sources on
each areas history, prehistory, architecture, sociocultural
characteristics, and cultural geography as appropriate.
(D) Determine to what extent available information provides a
reliable basis for decisionmaking consistent with Section 106
requirements and 36 CFR Part 800, and determine the need for additional
investigations given the number of alternatives under consideration,
the scale of the undertaking, the nature and severity of likely
effects, the accessibility of each area of potential effect, and
similar factors.
(ii) Programmatic actions. For undertakings involving the potential
effects of a program on historic properties and historic and cultural
values, the identification of historic preservation issues and historic
properties subject to effect should include agreement with other
consulting parties on a process for ongoing identification and
evaluation of properties. This may include administrative modifications
to or adaptation of the standard portions of the Section 106 process
contained in the Council's regulations in Sec. 800.8, and may
categorize types of resources that will be subject to varying
identification and evaluation methodologies. For example, a
programmatic undertaking to maintain, modernize, selectively staff, and
partially abandon fire observation towers in national forests
nationwide could involve a long-term plan to use historic records to
identify and evaluate historically significant types of towers against
agreed-upon criteria.
(iii) Management and maintenance areas. For undertakings involving
the potential effects of land-use planning or maintenance practices for
specific management units, such as a national park, national forest,
military installation, Federal office complex, or similar discrete
area, the identification of historic properties subject to effect
should involve incorporation of the process into a standard operating
procedure for a General Management Plan, Historic Preservation Plan,
Land Use and Resource Management Plan, or similar comprehensive
planning tool with an appropriate national, regional, or statewide
context to evaluate the historic significance of identified resources.
For example, ongoing management activities for a Bureau of Land
Management district should include a continuing program of sample field
survey, predictive modelling, and regional evaluation criteria, tied to
other resource management needs and operating procedures for mineral
exploration, range and timber management, road construction, fire
control, and recreation programs. (Such a program is also required
under Section 110 of NHPA).
(iv) Project areas. For undertakings involving the potential
effects of a specific action or series of actions such as new
construction, a decision needs to be made whether the project is large-
scale and complex, or small-scale and less complex.
(A) For large-scale projects, particularly those covering a very
large area or numerous alternative locations for the undertaking, the
purpose of initial identification efforts is to collect and review
existing information and records in order to consider the likelihood
that historic properties will be adversely affected in choosing a
preferred alternative for the undertaking. Draft EAs, DEISs and other
environmental and planning documents should, at a minimum, reflect this
level of information. A less intensive investigation (which may include
development and testing of a ``predictive model'' to indicate where
historic properties exist or are likely to exist) will be sufficient
until one or more principal or preferred alternatives is identified.
(B) For small-scale projects, and for the principal or preferred
alternatives of large-scale projects, the agency should determine the
extent to which available information provides a reliable basis for
decisionmaking, and then consult with the SHPO and others to consider
the need for more detailed and site-specific identification, including
intensive field survey(s). The agency should follow up by completing
identification and ``gather sufficient information to evaluate the
eligibility of [identified] properties for the National Register''
(Sec. 800.8(b)).
(d) Coordinate identification with NEPA and other land and resource
management planning requirements. (1) The magnitude of effects, both
detrimental and beneficial, on historic properties and historic and
cultural values should be projected and analyzed in adequate detail so
they can be compared to other environmental, economic, and technical
analyses and projections for various project alternatives. The
projected number and character of historic properties and the likely
effects of each alternative on buildings, neighborhoods, land use,
socioeconomics, cultural values, and other relevant natural and
cultural characteristics of the environment should be taken into
account. Historic preservation documents and appropriate analyses, at
least of a preliminary nature, should be circulated and reviewed at the
same time as other planning documents, such as Eas and DEISs, land
management plans, engineering general design memoranda, and
transportation Section 4(f) analyses.
(2) Appropriate alternatives to recommended courses of action for
any undertaking which involves alternatives that may adversely affect
historic properties should be studied, developed, and described.
(3) Situations where actions are planned by private applicants or
other non-Federal entities before Federal involvement should be
adequately provided for, so that:
(i) Policies are established and staff designated to advise
potential applicants of studies or other information foreseeably
required for later Federal action and Section 106 compliance,
consistent with Section 110(k);
(ii) The Federal Agency consults with appropriate State and local
agencies, Indian tribes, Native Hawaiian organizations, and with
interested private persons and organizations to ensure that the
concerns of other parties can be addressed before any irretrievable or
irreversible commitment to the project is made; and
(iii) The Federal Agency commences the Section 106 process at the
earliest possible time so that by the time an EA, Finding of No
Significant Impact, or Final EIS and Record of Decision under NEPA is
issued, historic properties have been identified, effects determined,
and this information is incorporated with the consideration of
alternatives for any necessary resolution through negotiation with
other parties.
[FR Doc. 94-24357 Filed 9-30-94; 8:45 am]
BILLING CODE 4310-10-P
