[Federal Register Volume 64, Number 95 (Tuesday, May 18, 1999)]
[Rules and Regulations]
[Pages 27044-27084]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-12054]
[[Page 27043]]
_______________________________________________________________________
Part II
Advisory Council on
Historic Preservation
_______________________________________________________________________
36 CFR Part 800
Protection of Historic Properties; Recommended Approach for
Consultation on Recovery of Significant Information From Archaeological
Sites; Final Rule and Notice
Federal Register / Vol. 64, No. 95 / Tuesday, May 18, 1999 / Rules
and Regulations
[[Page 27044]]
ADVISORY COUNCIL ON HISTORIC PRESERVATION
36 CFR Part 800
RIN 3010-AA04
Protection of Historic Properties
AGENCY: Advisory Council on Historic Preservation.
ACTION: Final rule; revision of current regulations.
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SUMMARY: The Advisory Council on Historic Preservation is publishing
its final rule, replacing the previous regulations in order to
implement the 1992 amendments to the National Historic Preservation Act
(NHPA) and to improve and streamline the regulations in accordance with
the Administration's reinventing government initiatives and public
comment. The final rule modifies the process by which Federal agencies
consider the effects of their undertakings on historic properties and
provide the Council with a reasonable opportunity to comment with
regard to such undertakings, as required by section 106 of the NHPA.
The Council has sought to better balance the interests and concerns of
various users of the Section 106 process, including Federal agencies,
State Historic Preservation Officers (SHPOs), Tribal Historic
Preservation Officer (THPOs), Native Americans and Native Hawaiians,
industry and the public. After engaging in extensive consultation
through more than four years, the Council has developed this final
rule.
DATES: This final rule is effective June 17, 1999.
FOR FURTHER INFORMATION CONTACT: If you have questions about the
regulations, please call Frances Gilmore or Paulette Washington at the
regulations hotline (202) 606-8508, or e-mail us at regs@achp.gov. When
calling or sending e-mail, please state your name, affiliation and
nature of your question, so your call or e-mail can then be routed to
the correct staff person. Information materials about the new
regulations will be posted on our web site (http://www.achp.gov) as
they are developed.
SUPPLEMENTARY INFORMATION: The information that follows has been
divided into eight sections. The first one provides background
information introducing the agency and summarizing the history of the
rulemaking process. The second section provides a general summary of
the comments received in response to the September 1996 notice of
proposed rulemaking. The third section summarizes consultations that
took place with Native Americans. Such summary is included in the
preamble of these regulations to reflect the fact that regulations
incorporate the 1992 amendments to the NHPA which had a large impact on
the role of Native Americans on the section 106 process.
The September 1996 notice of proposed rulemaking highlighted six
issues on which the Council particularly wanted to received comments.
The fourth section summarizes those comments, and generally reflects
the Council reaction to them. The fifth section relates, section by
section, the Council's response in these new regulations to the
comments received. The sixth section highlights the major changes to
the section 106 process that these new regulations implement. The
seventh section provides a description of the meaning and intent behind
specific sections of the new regulations. Finally, the eight section
provides the impact analysis section, which addresses various legal
requirements, including the Regulatory Flexibility Act, the Paperwork
Reduction Act, the National Environmental Policy Act, the Unfunded
Mandates Act, the Congressional Review Act and various relevant
Executive Orders.
I. Background
The Advisory Council on Historic Preservation (Council) is the
major policy advisor to the Government in the field of historic
preservation. Twenty members make up the Council. The President
appoints four members of the general public, one Native American or
Native Hawaiian, four historic preservation experts, and one governor
and one mayor. The Secretary of the Interior and the Secretary of
Agriculture, four other Federal agency heads designated by the
President, the Architect of the Capitol, the chairman of the National
Trust for Historic Preservation and the president of the National
Conference of State Historic Preservation Officers complete the
membership. The diverse make-up of the Council provided a broad base of
experience and viewpoints from which the Council drew in developing
these regulations.
These sections set forth the revised section 106 process. Section
106 of the National Historic Preservation Act of 1966, as amended, 16
U.S.C. 470f (NHPA), 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.
In October, 1992, Pub. L. 102-575 amended the NHPA and affected the
way section 106 review is carried out. The Council thereafter began its
efforts to amend its regulations accordingly. Additionally, as part of
the Administration's National Performance Review and overall
streamlining efforts, the Council undertook a review of its regulatory
process to identify potential changes that could improve the operation
of the section 106 process an conform it to the principles of the
Administration. The Council commenced an information-gathering effort
to assess the existing section 106 process and to identify desirable
changes.
As a part of these efforts, the Council sent a questionnaire to
1,200 users of the Section 106 process, including Federal agencies,
State Historic Preservation Officers (SHPOs), State and local
governments, applicants for Federal assistance, Indian tribes,
preservation groups, contractors involved in the process, and members
of the public. The questionnaires sought opinions on the existing
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 Task
Force comprised of Council members representing the Department of
Transportation, the National Conference of State Historic Preservation
Officers, the National Trust of Historic Preservation, the Council's
Native American representative, an expert member and the chairman. The
Council member representing the Department of the Interior was later
added to the Task Force. This diverse, special Council member Task
Force worked closely with the Council staff, reviewing comments and
numerous drafts of the regulations.
The Task Force adopted the following principles and attempted to
craft regulations to reflect them: (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 reviews required by other statutes; (4) Section 106
enforcement efforts should be increased, and specific remedies should
be provided for failure to comply; and (5) the public should be granted
expanded
[[Page 27045]]
opportunities for involvement in the Section 106 process. These
principles have guided the regulatory reform effort.
The Council drafted proposed regulations, seeking to meet the
stated findings and objectives adopted by the Task Force. On October 3,
1994, the Council published those draft proposed regulations on the
Federal Register and sought public comment, on a notice of proposed
rulemaking (59 FR 50396). The notice provided for a 60 day public
comment period, and a 30 day extension of that period for Indian tribes
who requested it. The Council received approximately 370 comments on
the October 1994 proposal. Generally, commenters supported the overall
goals and direction adopted by the Task Force, but found that the
proposed regulations failed to implement the stated goals.
Particularly, many commenters disagreed with the role of the Council as
arbiter of disputes over application of the regulations, the public
appeals process, and provisions dealing with enforcement.
At a Council membership meeting in February, 1995, the Council
decided to continue its dialogue with major user groups of the section
106 process in an effort to resolve these concerns. The Council
membership also reaffirmed the objective of reducing regulatory burdens
on Federal agencies and SHPOs and focusing the review process on
important historic preservation issues. The Council solicited the views
of users of the Section 106 process once again by convening separate
focus groups with local governments, industry representatives, Native
Americans and Federal agency officials in early 1995. As a result of
these meetings, and after considering the views of commenters, the
Council drafted a substantially revised proposal and circulated the
draft informally in July, 1995 to those who had commented on the
October, 1994, notice of proposed rulemaking. The Council received
approximately 80 comments on the informally distributed draft.
Generally, the commenters found the July, 1995, draft to be an
improvement on the October, 1994, proposal. Again, however, Federal
agencies noted that the Council did not go far enough in removing
itself from routine cases and in bringing finality to the process.
Federal agencies also remained concerned that the public participation
provisions were too open-ended and inadequately defined the roles and
rights of participants in the process. Federal agencies also considered
the National Environmental Policy Act (NEPA) integration section to be
a step forward, but submitted that its substitution provisions should
be extended to environmental assessments as well as environmental
impact statements and, overall, could provide better integration of
NHPA and NEPA. In contrast, the majority of SHPOs did not want the
Council to remove itself further from the Section 106 process and did
not want the NEPA integration section to be extended to environmental
assessments. The National Conference of State Historic Preservation
Officers, as well as many of its member SHPOs, supported the public
participation process as set forth in the July, 1995, draft, but sought
clarification on the roles and responsibilities of Federal agencies
under section 106. Although industry commenters deemed the July, 1995,
draft a vast improvement over the 1994 proposal, they remained
concerned with the appeals procedures and found the process too
burdensome. Industry also remained concerned about the public
participation provisions.
In accordance with the general approach described above, after
reviewing the comments on the October, 1994, proposal, and in response
to agency downsizing and restructuring, the Council substantially
changed its proposal. The new proposed regulations were published on
the Federal Register on a second notice of proposed rulemaking on
September 13, 1996 (61 FR 48580). Again, the notice provided for a 60
day public comment period, and a 30 day extension of that period for
Indian tribes who requested it. The notice highlighted six specific
issues to focus commenters' review on what the Council believed to be
the most critical issues of concern. The six issues were: public
participation, local government involvement, Council review of agency
findings, time frames, and alternate procedures. The Council received
221 comments. Most commenters focused on the six issues listed above. A
summary of the comment received in response to the September, 1996,
notice is presented below, under its own section (See Section II of the
preamble, below).
On November 12, 1996, reauthorization legislation for the Council
was signed into law. It directed the Council, within 18 months, to
submit a report to Congress containing an analysis of alternatives for
modifying the regulatory process under Section 106 and section 110(f)
of the NHPA, and ``alternatives for future promulgation and oversight
of regulations for implementation of Section 106 of the (NHPA).'' The
report was submitted to Congress in May, 1998. In summary, the report
concluded that the basic implementation of the Section 106 process was
sound, though it certainly merited continuing improvement. It also
stated that some improvements sought in the rulemaking process should
result in more thoughtful and efficient decisionmaking and better
protection of significant historic properties. It noted that only a
small number of the thousands of projects and programs considered under
the Section 106 process each year were problematic or controversial,
and that those should continue to receive an appropriate level of
attention and public debate even while the Council worked to improve
the planning and review process to forestall or minimize potential
disputes of this nature that could arise in the future. The Council
also reaffirmed its commitment to ensuring that it would continue to
develop program and operational enhancements that promote the
effectiveness, consistency, and coordination of other public policies
and programs with the purposes Congress articulated in the NHPA.
Through the process of considering public comments, the Council
formulated a draft regulation on June 5, 1997. During August and
September of 1997, the Council conducted consultations with Indian
tribes regarding the June, 1997, draft regulations. These special
consultations were held to respond to tribal concerns about prior
insufficient consultation, to meet Administration directives regarding
government-to-government consultation with Indian tribes and to
recognize the special role given Indian tribes in the 1991 NHPA
amendments. A summary of these consultations is provided under Section
II, below.
After further, careful consideration of all public comments and the
results of its tribal consultations, the Council revised the June,
1997, draft regulations. On October 24, 1997, the Council membership
approved this draft of the regulations. On November 20, 1997, the
Council submitted its draft regulations to the OMB Office of
Information and Regulatory Affairs for their required review. This
review involved numerous interagency meetings over the course of 15
months and resulted in certain changes in the October, 1997, draft to
meet agency concerns.
At its business meeting on February 12, 1999, the Council formally
adopted the draft of the regulations resulting from the OMB review
process. Previously, the Council Chairman and the Regulations Task
Force, in response to concerns raised by certain commenters, carefully
considered whether the final regulation should be published once more
for public comment. They determined that the changes made in response
to public
[[Page 27046]]
comment and interagency review did not make substantial changes in the
section 106 process as presented for public comment in September, 1996,
and were rather the Council's reasonable response to and incorporation
of suggested refinements that emerged from the public review process.
After the Council's Regulations Task Force adopted final technical
and editorial changes to the regulations, and the preamble was
finalized, this preamble and regulation were submitted to the OMB for
final review, and then to the Federal Register for publication.
II. General Summary of Comments From the September, 1996, Notice of
Proposed Rulemaking
Following is a summary of the major issues raised in the comments
received in response to the notice of proposed rulemaking in September
1996. These comments led to the drafting of the proposed regulations
that were then handed to the OMB Office of Information and Regulatory
Affairs for their required review. Note that the terms ``most'' or ``a
majority'' or other like phrases on the particular issue discussed.
Please refer to Section V of this preamble for a discussion on the
Council's response to the comments received.
A. Federal Agencies (35 Comments, Including Those From Field Offices
and Regions)
General
A majority of agencies found that the regulations proposed on the
September 1996 notice of proposed rulemaking (``September 1996 draft'')
either streamlined the existing regulatory process or were an
improvement over the proposal on the October 1994 notice of proposed
rulemaking (``October 1995 draft''). Nevertheless, almost all suggested
further changes.
Council Role
Most agencies were pleased with the general approach of deferring
to Federal agency-SHPO decision making. Some felt that the Council did
not go far enough in removing itself from the process. Others did not
see the value in filing Memoranda of Agreement (MOAs) with the Council.
One agency expressed its concern that the deference to agency-SHPO
decision making would create inconsistencies and delays and would leave
SHPOs subject to political pressure.
In addressing the Council's role in the 106 process, some agencies
recognized and supported the Council's right to intervene in a case on
its own initiative, while others opposed this provision. Specifically,
some agencies expressed problems with the Council's right to intervene
when projects involve tribal lands and whenever the SHPO fails to
respond to an agency. On the Council's role in agencies' alternate
procedures, most agencies opined that the Council approval should not
be required for such procedures, although one agency found this role
for the Council to be appropriate. Related to the Council's role, a
number of agencies objected to the appeals process as set forth in the
provision relating to the Council review of section 106 compliance,
finding that it was too open-ended and inappropriately allowed the
Council to enter the process after decisions had been made. Other
agencies liked that appeals process, while one agency found it too
restrictive. A few agencies viewed the Council as exceeding its
authority in general in the regulations.
Public Involvement
The issue of public involvement was one of concern to agencies.
Most agencies found that there were too many opportunities for the
public to become involved. Specifically, agencies were concerned that
the public could protest late in the process. Some agencies believed
that existing agency procedures could better address public
involvement, that guidelines on the goal of public involvement would be
more appropriate than regulations, and that public involvement
requirements should be lessened for minor projects. Agencies also
expressed concern about the description of various participants in the
process and their corresponding rights and responsibilities. Several
agencies also took issue with the requirement that agencies consult
with traditional cultural authorities because of the difficulty in
identifying them.
NEPA Coordination
Several agencies found the goal of NEPA coordination beneficial,
but did not find that the NEPA coordination section achieved its goal.
Agencies found the section inconsistent with NEPA, particularly where
agencies prepare an Environmental Assessment (EA), because of the
public involvement and documentation requirements in the Council's
regulations. Some agencies found the section helpful.
Time Frames
The issue of time frames for the different steps of the 106 process
was also raised by agencies, with some suggesting that additional time
frames were needed to make the process more efficient. Other agencies
found the time frames appropriate as proposed. One agency objected to
the suspension of the process where the Council or SHPO determines
there is inadequate documentation.
Other Issues
Agencies favorably noted the new provisions on phased compliance
and consideration of the magnitude of the undertaking and nature of
property and effects. Agencies also liked the section on alternative
means of satisfying 106, but some noted that the same result could be
achieved through Programmatic Agreements (PAs). Agencies also expressed
concern over the requirements that agency heads document decisions
involving terminations, finding it inappropriate to elevate such
decisions.
B. SHPOs (45 Comments, Including Those From Deputies and Staff)
General
Overall, the majority of SHPOs were satisfied with the direction of
the proposed regulations or believed that the Council had made
substantial progress in achieving streamlined regulations.
Council Role
An overwhelming concern of SHPOs was the proposal that the
Secretary of the Interior decide disputes over consistency of agency
procedures with section 106. Almost all SHPOs found that the Council
should determine consistency. The majority of the SHPOs found that
Council's role and criteria for involvement appropriate, although many
noted that the regulations should clarify that the SHPO could directly
seek the Council's involvement in a case. Some noted that the Council
should be required to participate when asked by a SHPO.
Public Involvement
Most SHPOs supported the public participation provision, although
some were still concerned that the public would be precluded from the
process and would not have a real opportunity to provide input. The
delineation of the roles and rights of participants was also viewed as
somewhat confusing, according to several SHPOs. Some SHPOs found that
the proposal could preclude the public from meaningful participation in
the process. Several SHPOs also noted that Federal agencies should be
required to consult with SHPOs when identifying interested parties.
With respect to the public's right to appeal agency decisions under the
provision regarding Council review
[[Page 27047]]
of Section 106 compliance, a number of SHPOs commented that appeals
should not be restricted to members of the public who participated in
the process. Further, several SHPOs found that the public appeal
section set too high of a standard on the public in making a case for
an appeal.
Alternative Procedures
With regard to program alternatives, SHPOs were supportive of the
proposal, but many suggested that the National Conference of State
Historic Preservation Officers (NCSHPO), individual SHPOs, and the
public participate in the development of standard treatments,
alternative agency procedures and categorical exemptions. SHPOs also
overwhelmingly expressed the opinion that NCSHPO be given the right to
terminate nationwide Programmatic Agreements. A number of SHPOs
commented that they found the bridge replacement standard treatment as
proposed in Section 800.5 of the September 1996 version to be
inappropriate.
Time Frames
The most common concern of almost all SHPOs was the 15-day deadline
for a finding of no historic properties affected. SHPOs believed this
was an unreasonable short turn-around time for them to make a proper
determination. With the exception of the 15-day deadline, most SHPOs
found the time frames appropriate. Some noted that the different time
periods were confusing and suggested adding time frames wherever the
regulations referred to the phrase ``timely manner.''
C. Industry (24 Comments)
General
The majority of industry commenters stated that the September 1996
draft was substantially improved over either the existing regulations
or the October 1994 draft. However, all commenters offered suggestions
for further amending the regulations. Several other commenters,
primarily associated with the mining industry, noted that while the
September 1996 draft was an improvement, changes were still necessary
to make the proposal acceptable. The question of the Council
overstepping its authority was the primary concern of industry.
Council Role
The mining industry and several other commenters were concerned
that the Council had overstepped its statutory mandate in the existing
regulations and those proposed. They found that the regulations allowed
the Council to ``second guess'' Federal agency decisions, particularly
in the appeals section regarding Council review of section 106
compliance. Some commenters recognized that the proposed regulations
provided a more limited role for the Council and, therefore, supported
this change. Most industry commenters found that the Federal agency,
not the Council, should decide whether agency procedure were consistent
with section 106.
Public Involvement
The role of participants in the process, particularly the public
and applicants was a major issue of concern for the industry.
Generally, many commenters found the roles poorly defined and
confusing. Several commenters suggested the regulations delineate and
limit participants entitled to partly status and those entitled to
notice status. Many commenters liked the enhanced role of applicants,
but some suggested that applicants deserved equal status with principal
parties. On the role of the public in appeals of agency decisions (in
the provision regarding Council review of section 106 compliance), some
commenters noted approvingly that appeals were limited to parties who
had participated in the process. However, most commenters on the issue
wanted the appeals process further limited to parties that met legal
standing requirements. Industry commenters, primarily from the mining
industry, viewed public participation as too open-ended and lacking
finality.
NEPA Coordination
Industry commenters approved of the concept of NEPA coordination,
but found that the proposed regulations would not reduce burdens
because the NEPA documents still have to meet the Council's criteria.
Alternative Procedures
Almost all industry commenters approved of the concept of standard
treatments, categorical exemptions, PAs, and alternate procedures.
Time Frames
On the issue of time frames, commenters suggested inserting
deadlines at each step in the process, including consultation, and
found references to the words ``timely'' or ``before'' too vague and
unworkable.
Other Issues
Several industry commenters viewed the requirement to consult with
traditional cultural authorities as burdensome. Generally, industry
found that the regulations provided too much ``special treatment'' for
Native Americans. Industry commenters were also interested in having
the regulations address the question of agency jurisdiction on non-
Federal lands.
D. Indian Tribes (28 Comments)
General
Tribes overall were dissatisfied with the direction of the
regulations.
Council Role
Tribes were troubled by the Council's removal from routine case
review and found that the proposed regulations did not provide a
balanced process. However, several tribes stated that the Council
should participate on projects on tribal lands only if requested by the
tribe.
Public Involvement
Tribes found the public appeals provision in the section regarding
Council review of section 106 compliance to be too restrictive. They
also suggested that the regulations clarify that Federal agencies must
solicit the views of Indian tribes as members of the public, as well as
consult on a government-to-government basis.
NEPA Coordination
Tribes viewed the NEPA coordination provision as troublesome
because sensitive tribal information gathered in fulfilling the
Council's criteria would be included in an Environmental Impact
Statement (EIS) and thus available for public distribution.
Alternative Procedures
Tribes wanted to be included in the development of standard
treatments, categorical exemptions, PAs and alternate agency
procedures. Tribes were most concerned about the standard treatment for
archaeology as proposed in Sec. 800.5 of the September 1996 version,
finding it discouraged consideration of the broader values of a site.
Other Issues
Tribes were most concerned with the identification and evaluation
of historic properties, including properties to which they attach
religious and cultural significance. They were concerned that Federal
agencies' identification efforts would be incomplete and that agencies
would make ``no historic properties affected'' determinations without
prior consultation with the tribes. They also found that the standard
treatment provision covering data recovery for archaeological sites a
proposed in Sec. 800.5 of the September 1996 version, encouraged
evaluation of sites only for
[[Page 27048]]
criterion D of the National Register and discouraged consideration of
the broader range of values of the site. The relationship between
tribal and SHPO responsibilities was also of concern to tribes. When
undertakings were on tribal lands, tribes did not want SHPO
involvement. When undertakings were on non-tribal lands, but affected
properties to which they attach religious and cultural significance or
other historic properties of tribal concern, then tribes wanted equal
status with SHPOs and NCSHPO in the process. Tribes also suggested that
the regulations require determinations of eligibility from the Keeper
where tribes disputed an agency decision on eligibility.
E. Local Governments (11 Comments)
General
Local governments were supportive of the concept of allowing
agencies and SHPOs to conclude the 106 process without Council review.
Council Role
Local government commenters overall found the proposed role of the
Council appropriate, but expressed concern about the loss of the
Council as a balancing force in the process.
Public Involvement
The public participation requirements were viewed as redundant with
NEPA. The National Association for County Community and Economic
Development opposed the requirement to consult with tribes on non-
tribal lands.
Alternative Procedures
Local governments supported the use of standard treatments, but
wanted more flexible application of the Secretary's Standards for
Rehabilitation. Some were concerned about the standard treatment for
bridge replacements as proposed in Sec. 800.5 of the September 1996
version.
F. Preservation Organizations (21 Comments)
General
Presevation organizations were most concerned about the diminished
role of the Council as set forth in the general framework of the
proposed regulations. They also viewed the public participation
provisions as preventing meaningful public involvement.
Council Role
Preservation organizations opposed the decreased role of the
Council in the 106 process, finding that it displaced the check and
balance system of the process in place at the time. They also
considered the proposal as placing too many constraints on the
Council's ability to review agency findings. The Council's withdrawal
from commenting on standard treatments under the section on the
assessment of adverse effects was also of great concern to
preservationists. On the issue of the Council's role in determining
consistency of agency procedures, the few groups that commented found
that the Council should make the determination.
Public Involvement
The public's role in the process as proposed was of great concern
to preservation organizations. They found the public participation
provisions confusing, complicated, and circumscribed, leaving the
public with no meaningful role in the 106 process. The proposal,
according to preservation organizations, would increase litigation,
last minute appeals and Council foreclosures.
NEPA Coordination
Preservation organizations supported the concept of compliance
coordination with NEPA, but found that the September 1996 draft did not
go far enough to protect preservation interests.
Alternative Procedures
Commenters were supportive of the concept of alternative
procedures, but wanted provisions to explicitly ensure that the public
participate in their development and implementation.
Time Frames
Commenters strongly opposed the 15-day deadline for SHPO review of
a ``no historic properties affected'' finding, as not giving SHPOs
adequate time to conduct such review.
Other Issues
Preservation organizations were opposed to the standard treatments
as proposed in Sec. 800.5 of the September 1996 draft, finding that the
public, tribes and Council would have little or no role in projects
involving bridges or archeology. The Sec. 800.5 standard treatment for
archeology, according to the commenters, would encourage agencies only
to consider criterion D and, thus, to not properly consider other
values.
G. General Public (14 Comments)
General
There were no significant trends in the comments from the general
public. Individuals raised particular concerns based on their own
interests and experience. Several commenters noted that, overall, the
regulations appeared to be too complex. Three commenters expressed
concern that the regulations could affect their rights as private
landowners.
Council Role
A few commenters found that the removal of the Council from routine
cases would create too much pressure and work for SHPOs.
Public Involvement
Several comments found that the proposed public participation
provision failed to provide sufficient opportunities for public
involvement.
Alternate Procedures
A few commenters expressed concern about the standard treatment for
bridge replacements and archaeological sites as proposed in Sec. 800.5
of the September 1996 version.
H. Experts/Consultants (33 Comments)
Council Role
Most commenters found that the proposal did not provide enough
opportunities for Council involvement in the process. Commenters
expressed concern that the proposal did not set forth an adequate check
and balance system, leaving SHPOs subject to political pressure.
Several experts suggested that the regulations focus more on
substantive outcomes and less on removing the Council from the process.
Public Involvement
Experts and consultants found that the terms and procedures in the
proposal were too complicated and vague and would, thus, discourage
meaningful public involvement. Commenters found the delineation of
participants too confusing. Overall, commenters noted that the proposal
provided few opportunities for public participation and gave the
Federal agencies to much control over public involvement.
NEPA Coordination
Experts and consultants found the NEPA coordination section to be
inadequate, since they believed it did not go far enough in allowing
use of NEPA for 106 purposes.
Alternative Procedures
Experts and consultants expressed concern about the standard
treatment for archaeology as proposed in Sec. 800.5 of the September
1996 version, finding it would encourage sites to be evaluated as
significant only for the data they contain. A few commenters found the
[[Page 27049]]
proposed bridge replacement standard treatment problematic.
III. Summary of Native American Consultations
As stated before, these regulations seek, among other things, to
incorporate the 1992 amendments to the NHPA. Such amendments include
important changes that significantly alter the role of Indian tribes in
the 106 process. The Council members decided that before submitting a
draft proposed regulation to the OMB for the mandatory review,
additional input should be sought from Native Americans. The meetings
focused on obtaining comments on the June 5, 1997 draft of the revised
regulations (See Section I of the preamble, above). Each meeting of the
four meetings was two days long. A total of eight days were spent
discussing various aspects and concerns with tribal representatives.
The tenor of each meeting varied but all of the meetings proved
productive. The attendees in Seattle were few but, as a result, the
discussion was detailed. At Leech Lake Reservation, where the land base
is shared by both the Forest Service and the Leech Lake Tribe,
discussion focused on land jurisdictions and authorities. The meeting
in Albuquerque solicited highly constructive suggestion due to the
participants' extensive Section 106 experience. The Washington, DC
meeting had the greatest number of participants from tribes and legal
firms representing tribes.
The format of each meeting was consistent for all four meetings.
The Executive Director briefed the group on the administrative
structure of the Council, the existing steps of the regulation revision
process and the proposed changes. The floor was then opened for
discussion and recommendations. Some participants handed in written
comments as well. The Native American/Native Hawaiian Council Member,
Mr. Raynard Soon, attended the Seattle meeting and had the opportunity
to convey his interest and listen to other Native American concerns.
This summary is presented in three sections of primary concerns
that were stated at every meeting. The primary issues clearly became
the focus points of the discussions as almost every participant
reiterated in similar form the same concerns. They are presented in the
following manner: (1) General overall comments and observations, (2)
comments on sections pertaining to the Section 106 process on tribal
lands, and (3) comments pertaining to the section 106 process off
tribal lands.
General Comments
General observations in all of the meetings included the concern
that the Council did not give the Native Americans adequate time to
consult with them on the proposed regulations. The time constraint of
potential adoption of the revised regulations at the October, 1997,
Council meeting, before submission to OMB for review, was consistently
questioned by many participants. The overriding sentiment was that the
time frame was not adequate. Many tribal representatives explained that
they had to take the information back to their Tribal Councils to
receive directions and comments.
The proposed June 5, 1997 draft of the regulations was perceived by
tribes as being heavily weighted toward the SHPO interest. Requests
were made to take the state-oriented bias out of the draft. At every
meeting, suggestions were made to change the ``SHPO'' citation to
``SHPO/THPO'' (Tribal Historic Preservation Office) or simply HPO
(Historic Preservation Officer). There was consistency in the
recommendation that even if tribes have not assumed SHPO duties, as
delegated by the National Park Service (NPS) in accord with section
101(d)(2) of the NHPA, that the tribe or Native Hawaiian Organization
should still be consulted if places of religious and cultural
significance would be affected by a federal undertaking.
It became apparent that the word ``consultation'' is interpreted
differently by Indians and non-Indians. In general, American Indian
participants believed that the word implies a ``give-and-take''
dialogue, not just listening or recording their concerns. From the
tribal perspective, consultation is more closely aligned with the
process of negotiation. The tribes described that consultation means
working toward a consensus. For non-Indians, consultation has another
meaning: if the tribe had been contacted, attended the meetings, and
had the opportunity to discuss its views with the agency, then the
tribes had been consulted regardless of the outcome. For the majority
of the American Indian participants, this kind of exchange did not
represent adequate or effective consultation.
Where the proposed regulatory process addressed the requirements of
Federal involvement regarding the places of religious and cultural
significance to Native Americans, participants were adamant that they
be involved in the process of decision making for an acceptable
outcome. Requests were repeated to insert clear procedures within the
regulations regarding `'adequate consultation.'' The stated preference
of the American Indian participants was a clear definition in the
regulations so that all parties in the section 106 process would
perform what the tribes saw as adequate consultation.
On-Tribal Lands
The issues consistently raised for tribal lands reflected the
underlying issue of a tribal nation's sovereignty. The primary concern
was the ability of a SHPO to make or agree to a decision by a federal
agency on tribal lands when there was no THPO. Tribal representatives
explained why this was a problem for tribal governments and why the
regulatory process under the June, 1997, draft regulations that enabled
a State to have overriding decision-making authority on tribal lands,
questioned their sovereign status. By delegating the authority vested
in the Council by the NHPA for commenting on Determinations of No
Adverse Effect and Adverse Effect, the proposed regulations effectively
shifted the authority from a federal agency (the Council) to a State on
tribal lands when there was no THPO. This shift of delegation from
Federal to State clearly presented legal jurisdiction issues from the
tribes' perspectives. Participants in the meetings maintained that,
regardless of whether the tribe had formally assumed SHPO duties, the
State did not have the jurisdictional authority to have final oversight
for a federal undertaking on tribal lands.
Off-Tribal Lands
There are several issues that were raised in each meeting for those
Federal undertakings that would affect religious and culturally
significant places located off tribal lands. Much of the time was spent
discussing American Indian involvement in the process on ancestral
lands, ceded lands, fee lands and other types of land titles. A
consensus of tribal representatives maintained that sovereignty, treaty
rights, trust responsibility and government-to-government status
entitled the tribes to a role in the process that was greater than the
other ``consulting parties'' or general public as defined in the draft
proposal.
The discussion surrounding the identification, evaluation
determination of effect and potential mitigation proposals for
properties to which the tribes attach religious and cultural
significance resulted in recommendations that tribes should be involved
early in the process and required signatories to a Memorandum
[[Page 27050]]
of Agreement, or at least have the ability to concur or object to the
part of a project or plan that will affect an area of tribal or Native
American interest.
IV. Summary of Comments Received Regarding the Six Issues Specially
Raised in the September 1996 Notice of Proposed Rulemaking
On the preamble of the proposed regulations published for public
comment on the Federal Register on September 1996, the Council
presented six issues that it believed, based on comments received,
deserved special attention from the commenters. What follows is a
discussion of the commenters' response to these six issues and the
Council's general reaction to them. For a discussion on the Council's
response to comments, please refer to Section V of the preamble.
Finally, please note that these issues are stated in the same
language as presented in the published preamble to the September 1996
draft.
1. Public Participation
The goal of the regulatory requirement that Federal agencies
inform and involve the public in the section 106 process is to
ensure that the public has a reasonable opportunity to provide its
views on a project. The Council has attempted to give the public an
adequate chance to voice its concerns to Federal decisionmakers
while recognizing legitimate concerns about avoiding unnecessary
procedural burdens and delays and protecting the privacy of non-
governmental parties involved in the section 106 process. How can
the regulations be enhanced to provide for meaningful public
involvement in a timely and effective fashion?
Summary of comments: Federal agencies were still concerned about
the role of the public in the process. Agencies believed that the roles
and responsibilities of various participants were unclear. They still
found that the public could delay a project by using the 106 process.
Most SHPOs supported the public participation provision, although some
still found the role of the public as set forth on the September 1996
draft to be unclear. Several SHPOs found the public appeals provision
too restrictive. Local governments found the public participation
provisions excessive and duplicative of NEPA, noting that the public
involvement requirements would discourage local governments from
seeking Federal monies for projects. Tribes found the public appeals
provisions to be too restrictive. In addition, they wanted the
regulations to clarify that agencies must consult with the general
populace of tribes as members of the public. The role of the public was
a major concern of the industry. Their comments viewed the public
participation provisions as unclear and excessive. They wanted to
further limit the public's right to appeal agency decisions. Many
specific comments were received from all categories of commenters that
were critical of the clarity and timing of public participation
provisions.
Council general reaction: The public participation provisions
needed a thorough overhaul with the objective of making them clearer,
achieving earlier effective public involvement and providing better
public access to the Council when it was not involved in a case. The
Council thought that the provisions should be redrafted to achieve
these goals, while honoring the Council's original policy of
encouraging the use of agency public participation procedures, reducing
duplication of effort and having clear points of involvement and points
of closure for the Section 106 process. The Council believed that the
question of public participation could be effectively addressed by
careful examination of the provisions, following the preceding
principles, rather than adopting some significant departure from the
Council's original objectives in this area.
2. Local Governments
Several agencies see an enhanced role for certified local
governments in the section 106 process and find that the regulations
do not go far enough in providing for their involvement. The
definition of ``Head of the agency'' provides that the head of a
local government shall be considered the head of the agency where it
has been delegated responsibility for section 106 compliance. How
can we better incorporate local governments into the process without
confusing the regulations?
Summary of comments: Federal agencies were not concerned with this
issue overall, but those that commented found the local government role
appropriate as proposed. HUD wanted the regulations to set forth an
enhanced role for local governments. Some SHPOs felt that Certified
Local Governments (CLGs) should be given recognition in the procedures,
although others found the role appropriate as set forth in the proposed
regulations. Some SHPOs noted that increased CLG involvement would
bring a lack of consistency to the regulations, others noted CLGs may
not be equipped to handle compliance. Local governments did not
question their role in the process as set forth in the regulations,
although they expressed general concern about SHPOs having too much
power in the process. Tribes were not concerned about this issue.
Industry was for the most part not concerned about this issue, although
those that did comment found the level of local government involvement
appropriate as drafted.
Council general reaction: Based on these comments, the Council
believed that no major changes should be made in the role of local
government. We suggested continuing to work with HUD to determine if
there are specific amendments that could be made to advance their
interest in enhancing the role of local governments while remaining
consistent with overall direction of the regulations and avoiding
further complicating the regulations. It is intended to pursue this in
the development of local government program alternatives (Sec. 800.15),
which as been reserved for future issuance.
3. Council Involvement
In this proposal, the Council has removed itself from review of
no adverse effect determinations and routine Memoranda of Agreement
with the intent of deferring to agency-SHPO decisionmaking as a
general rule. At the same time, as the Federal agency assigned to
review the policies and programs of Federal agencies on historic
preservation matters, the Council has retained the right to enter
the consultative process on its own motion or when requested by the
Agency Official. The regulations set forth in 800.6 several criteria
which indicate when an Agency Official must invite the Council to
become involved in the consultation. They also set a general
standard for when the Council will enter the process without a
request. The Council intends on exercising its right to enter the
process sparingly. Are the criteria set forth in Sec. 800.6(a)(1)(i)
workable? Can the regulations better define when the Council will
intervene on its own initiative?
Summary of comments: Federal agencies like the general approach of
deference to agency-SHPO decisionmaking, although some found that the
Council did not go far enough in removing itself from the process or
did not see the value in filing MOAs with the Council. Most agencies
recognized the Council's right to intervene in a case on its own
initiative, although some opposed this provision. SHPOs were satisfied
overall with the Council's role in the process, although many SHPOs
noted that they should have the right to go directly to the Council to
seek Council intervention in a case. Local governments were concerned
that the level of Council involvement may be too low and believed the
SHPO would gain too much control under this proposal. Tribes were
greatly concerned about the Council's removal from routine case review
and found that the September 1996 draft failed to achieve a balance of
power in the section 106 process.
[[Page 27051]]
Industry suggested the direction of removal of the Council from routine
cases, but still found the Council had too must authority in the
process to intervene and second-guess agency decisions. Preservation
consultants expressed concern over possible abuses by agencies and
SHPOs without adequate checks and balances.
Council general reaction: This was a critical point of the
regulations and one that raised a lot of concern from a variety of
sources. We believed that the basic principle of deferring to Federal
agency-SHPO decisions was valid, but that the draft needed to better
define when and how the Council would get involved. The Council did not
believe in a policy change, but rather a refinement of the published
provisions to clarify the Council's role and how parties invoked our
involvement, responding to the specific comments. In particular, the
involvement of the Council when undertakings affected Indian tribes and
their interests needed to be expanded, as did the SHPO's right to
directly request Council involvement. Changes made to address this
issue had to be closely coordinated with those dealing with Council
review of agency findings.
4. Council Review of Agency Findings
Section 800.9 provides for Council review of agency findings
where the Council has not participated in the consultative process
pursuant to Sec. 800.6. The Council's right to review agency
findings is limited to whether the agency followed the appropriate
procedures when making an eligibility determination under
Sec. 800.4(c)(2), a no historic properties present or affected
finding under Sec. 800.4(d), or a no adverse effect finding or
resolution by standard treatment under Sec. 800.5(c). The right to
review is also limited by the requirement that the request be made
prior to the agency approval of the expenditure of funds or the
issuance of a license, permit or other approval. The Council has 10
days to decide if the request warrants Council review and 30 days to
decide the merits of the case. The Council finds that the above
review process strikes a balance between allowing review of
procedurally deficient agency decisions and limiting review to
situations that could not have been corrected earlier in the
process. Some Federal agencies find that the review process in
Sec. 800.9 provides the Council too much authority to second guess
agency decisions and promotes a lack of finality to the process. How
can the regulations accommodate the Council's concerns and those of
other Federal agencies?
Summary of comments: Federal Agencies were divided in commenting on
the appeals provision in the proposal. Some found that the September
1996 draft provisions were too open-ended and allowed the Council to
enter the process after decisions had been made. Others liked the
appeal procedures. SHPOS found the appeals provision satisfactory with
respect to the Council's role. Local governments did not express
concern over the Council's role in appeals over agency decisions.
Tribes found the appeals provision too restrictive in general. Industry
still was dissatisfied with the appeals section, finding it would
create delays and allow review of agency decisions too late in a
project's development. Industry maintained that the Council was
overstepping its authority in this section by reviewing agency
decisions. Comments from individuals and preservation organizations
expressed concern that the appeals provisions were too restrictive and
needed to be expanded.
Council general reaction: The Council believed that ready access to
the Council was an essential counterbalance to the removal of the
Council from routine case involvement. This access must be effective
for a broad range of parties in the Section 106 process while
maintaining a system that has definite points of closure for agencies
and applicants. The September 1996 draft formulation was too
restrictive and the regulation should be revised to provide a wider
range of parties with more time to bring issues to the Council.
However, this process must continue to have effective protections
against groundless claims and potential for process abuse.
5. Time Frames
Throughout the regulations, time frames are set for reviews
conducted by SHPOs and the Council. Generally, they allow thirty
days for responding to agency requests, although some are shorter.
These have been established in an effort to balance the need for an
expeditious process for Federal agencies and applicants with the
recognition of the need for adequate time to evaluate submissions
(as well as the limits on resources available in SHPO offices and at
the Council to respond within the specified time). Do the time
frames achieve this balance or should specific ones be increased or
decreased?
Summary of comments: All groups of commenters noted that vague
references to ``timely'' or ``before'' should be replaced with specific
time frames. Federal agencies suggested adding time frames for each
step in the process. SHPOs overwhelmingly expressed concern about the
15-day deadline for a ``no historic properties affected''
determination, finding the period of time too short. SHPOs also noted
that the different time periods listed in the September 1996 draft
would foster confusion. Local governments stated that the overall
process was too time consuming. Tribes did not express concern about
the issue. Industry is most concerned about time frames, finding the
different time frames too confusing. They find the 45 days for Council
comment, 30 days for review of an EA and 15 days for SHPO review of a
``no historic properties affected'' finding to be too long. Overall,
they found the process could be tightened up and made more predictable
by adding more time frames. Preservation organizations expressed
concern about time frames being too short, particularly the 15-day
provision.
Council general reaction: The concern for the 15-day limit on SHPO
responses was valid and that to fail to address it would pace an
unreasonable burden on SHPOs. It was decided that the entire assemblage
of specified time frames should be carefully examined for clarity,
specificity and consistency. The 15-day limit in question was changed
to 30 days, which is the general standard for review in the entire
regulation.
6. Alternate Procedures
The proposed regulations allow Federal agencies to substitute
their own procedures for those contained in subpart B. Section
110(a)(2)(E) of the Act requires that procedures implementing
section 106, including these substitute procedures, be consistent
with the Council's regulations. The proposed regulations charge the
Secretary [of the Interior] with making final determinations on
consistency. This is based on the Secretary's primary responsibility
for implementing section 110. Alternatively, the Council, as the
agency charged to section 211 of the Act with issuing the
regulations to guide the implementation of section 106, could make
such a determination. A third option is allowing the Federal agency
itself to make a determination of consistency. Is the proposed
approach the best solution?
Summary of comments: Almost all Federal agencies found that they
should make the determination on consistency of agency procedures with
section 106. All SHPOs found that the Council should make the
determination as to consistency and viewed the Secretary of Interior's
role as final arbiter to be inappropriate. Local governments did not
express concern on this issue. Tribes view the Council as a protector
of their interests and view the Council as a check against agency
decisionmaking. Industry overwhelmingly finds that the Federal agency
should determine consistency of agency procedures. Preservation
organizations were generally silent on this point.
Council general reaction: The Council believed that the proper
entity to determine consistency was the Council membership and changed
the regulation accordingly. Among other things, the Council has the
statutory responsibility
[[Page 27052]]
to oversee the section 106 process, the internal experience and
expertise to make such evaluations, and the diversity of membership to
ensure that a balanced perspective is brought to final determinations
regarding consistency.
V. Response to Comments
This section of the preamble relates, section by section, how the
Council responded to comments from the public regarding these
regulations.
Section 800.1
There were few comments on Sec. 800.1. One comment stated that the
goal of consultation was inappropriately described in the September
1996 notice of proposed rulemaking draft (``September 1996 draft'') as
avoiding or minimizing adverse effect on historic properties. The
comment found this language to be inconsistent with the procedural
nature of section 106 of the NHPA. The Council agreed and therefore
modified the Sec. 800.1(a) of the regulation in response to this
comment by adding that the goal is to ``seek ways to avoid, minimize or
mitigate any adverse effects on historic properties.''
Another comment expressed concern about the reference in the
September 1996 draft to other guidelines, policies and procedures
issued by other agencies. The Council and the OMB were acutely aware of
such concerns and carefully crafted the language in Sec. 800.1(b) to
make it clear that such references in these regulations do not
implement those policies, procedures or guidelines as regulations.
Section 800.1(c) of the September 1996 draft explained the
different methods of complying with these regulations. One comment
found that, rather than showing the flexibility of the regulations,
this subsection gave the impression that the regulations were
inflexible. The Council decided to delete this subsection as redundant,
unnecessary, and confusing.
The ``Timing'' section of the September 1996 draft is now in
Sec. 800.1(c). One comment noted that while this section allows
nondestructive project planning activities before completing compliance
with section 106, it would be nonsensical to include the proviso that
such actions cannot restrict subsequent consideration of alternatives
to avoid, minimize or mitigate adverse effects. The Council, however,
decided that this provision should remain since the Council believes
that the section 106 process should not be circumvented by the early
foreclosure of mitigating options.
Several other comments noted that including field investigations as
nondestructive planning activities could open the door to actions that
could actually alter the character of historic properties, thereby
circumscribing the 106 process. The Council deleted the reference to
field investigations in the final regulation. The Council believes that
such investigations could sometimes, depending on the particular
project, constitute non-destructive planning. However, for the reasons
stated above, the Council believed that the blanket statement in the
September 1996 draft should be deleted.
Another comment suggested that a Federal agency notify the SHPO if
phased compliance is anticipated. However, the Council believed this
could only be a marginally beneficial practice, and did not want to
further lengthen the process by adding another notification requirement
to its regulations.
Section 800.2
The September 1996 draft created various categories of participants
in the Section 106 process: Principal parties, consulting parties,
affected parties, the public and the interested public. Many comments
stated that the proposed ``classes'' of parties were confusing and
inappropriate, and that they unfairly designated status to certain
parties while excluding others. In response to these comments, the
final regulation eliminates these categories of parties. Instead, the
final regulation creates one group of parties, known as ``consulting
parties'' which includes the SHPO/THPO, certain Indian tribes and
Native Hawaiian organizations, local governments, applicants, and
additional consulting parties with a demonstrated legal or economic
relationship to the undertaking or affected properties, or concern with
the undertaking's effects on historic properties. The rights and
responsibilities of the Federal agency, the Council and the public are
identified separately throughout the regulation and are not placed in a
group or category. The Council believes this eliminates confusion and
clarifies the roles of the different parties.
Section 800.2(a)(2) of the final regulation sets forth the concept
of a lead Federal agency. One comment stated that Federal agencies
should be required to select a lead agency where multiple Federal
agencies are involved in a project. The Council rejected this
suggestion as it deemed it appropriate for Federal agencies to maintain
sole discretion in deciding whether to select a lead agency to
represent multiple agencies throughout the section 106 process. The
Council believes Federal agencies are in a better position to determine
whether selecting a lead agency would facilitate the 106 process on a
particular undertaking.
Section 800.2(a)(4) was added to respond to concerns raised about
the nature of consultation in the section 106 process. It incorporates
provisions taken from other sections of the regulations.
Responding to concerns that there were no limitations in the
Council's decision to enter the 106 process, with the possibility of
added delays, the Council added Sec. 800.2(b)(1) defining the
circumstances under which it would enter the Section 106 process.
Specific criteria guiding Council decisions to enter are found in a new
Appendix A.
Section 800.2(c)(6) provides for ``additional consulting parties''
to be added to the consultation process. Some comments sought more
detail in the regulation on the nature and extent of such parties' role
in the process and how such parties are designated as consulting
parties. The Council decided to provide such information in guidance
material rather than in the regulation. The Council also points out
that Sec. 800.3(f) provides some detail on how additional consulting
parties may be added.
Other comments expressed concern, believing that consulting party
status should be given only to those individuals or entities with a
``real'' interest in the undertaking. Among other things, the concern
was that, without somehow limiting this group of participants, the 106
process would be severely slowed down, increasing the economic and time
costs of compliance without adequate justification. The Council
responded to this concern by adding language stating that those with a
``demonstrated interest in the undertaking may participate * * * due to
the nature of their legal or economic relation to the undertaking or
affected properties, or their concern with the undertaking's effects on
historic properties.'' The involvement of private property owners is
contemplated by this language. In response to several comments, the
Council deleted the language in the September 1996 draft which allowed
Agency Officials to limit participation of owners of real property to
organizations representing such owners. The Council agreed that the
limitation could unfairly restrain property owner participation by
virtually requiring they organize before being allowed to participate
in the 106 process.
[[Page 27053]]
Section 800.3
This section changed minimally from the September 1996 draft. The
Council simplified the language in subsection (a). One comment noted
that the regulation provided no guidance as to how a Federal agency
determines if an undertaking ``has the potential to affect historic
properties.'' The comment acknowledged that the existing regulations
also did not provide specific criteria for such a determination. The
Council decided that due to the broad differences among undertakings
which would make such guidance too lengthy, this issue will be more
appropriately addressed in supplementary guidance material to Federal
agencies.
With regard to subsection (b), several comments stated that the
Council exceeded its authority by requiring coordination of the section
106 process with reviews under other authorities. The Council maintains
that coordination with other environmental reviews is extremely
beneficial in achieving the best outcome under section 106. In response
to comments questioning the Council's authority to mandate
coordination, however, the Council made such coordination
discretionary.
Subsection (c) in the September 1996 draft was moved to subsection
(e) of the final rule. It was also amended to remove superfluous
language in response to comments. It now requires the Agency Official
to consult with the SHPO/THPO in planning for public involvement, in
recognition of the inherent, specialized knowledge that such local
entities possess regarding local parties which could have an interest
on historic properties.
Subsection (c) of the final rule pertains to identification of the
appropriate SHPO/THPO. It also includes general rules regarding
consultation with the SHPO/THPO. The substance of this subsection was
formally contained in subsection (d) of the September 1996 draft,
although it has been amended to respond to comments. During the
consultation meetings with Indian tribes, and as reflected in Indian
tribe written comments, tribes expressed the concern that the role of
tribal historic preservation officers who had assumed the role of state
historic preservation officers under section 101 (d) (2) of the NHPA
was not adequately addressed in the regulations. Because THPOs that
have formally assumed SHPO duties on tribal lands act in lieu of SHPOs,
many tribal comments suggested referencing ``SHPO/THPO.'' By using this
reference, Federal agencies will be reminded that they must not only
determine if their actions are on or will affect historic properties on
tribal land, but they also must determine whether or not the tribe's
THPO has formally assumed the role of SHPO. This change is a
clarification of the language in Sec. 800.12(B) of the September 1996
draft which set forth the rights of Indian tribes when undertakings are
on tribal lands. That subsection addressed what would happen if an
Indian tribe did not formally assume the responsibilities of the SHPO,
but did not explain the role of the THPO vis-a-vis the SHPO where
formal assumption did occur under 101(d)(2) of the NHPA.
With regard to the role of the THPO that has formally assumed the
SHPO's role on tribal land, and responding to concerns that certain
rights of property owners given by the NHPA could be overlooked or
disregarded, the Council added a reference to the statutory language in
section 101(d)(2)(D)(iii) of the NHPA, which authorizes certain
property owners on tribal lands to request SHPO participation.
The September 1996 draft included in its subsection (d)(1),
language directing Federal agencies to consult with the Council ``if
the State Historic Preservation Officer declines in writing to
participate in the Section 106 process * * *.'' This language was
deleted from the final rule in response to comments made, particularly
during the OMB inter-agency review, that such language in the
regulation appeared to condone SHPO refusal to participate in the 106
process as long as it was done in writing. Language referring to SHPO
failure to respond was retained, but amended in response to comments.
Many comments disapproved of the language ``in a timely manner,'' as
vague and confusing. The Council intended this language to refer back
to the periods of time specified in the regulation for SHPO response.
However, to avoid confusion and to also respond to other comments
requesting definite time periods, the Council deleted the language and
specified a 30 day response time. Additionally, in response to Federal
agency comments asking for certainty and finality to the process, the
Council included language on the regulation stating that the Federal
agency could either proceed to the next step in the process or consult
with the Council if the SHPO fails to respond. In response to SHPO
concerns of being permanently left out of the rest of the 106, process,
the Council allowed for SHPO re-entry into the process. However, in
response to concerns about the need to cut down on delays and providing
for timing certainty in the process, the final regulations do not
provide for reconsideration of previous findings or determinations that
the SHPO failed to review.
Subsection (d) of the final rule contains language similar to that
of Sec. 800.12(b) of the September 1996 draft. However, the intent of
the language has been clarified in response to tribal comments that the
Council must make it clear that the Indian tribe's consent is necessary
when on tribal lands, whether or not the THPO has formally assumed the
SHPO's responsibilities.
Subsections (e) and (f) of the final rule contain similar language
to that of subsection (c) and (e) in the September 1996 draft. In
response to various comments that asked for clarity regarding
participation and showed concern that participants could be left out of
the process, the Council made it clear, under Secs. 800.2(c)(5) and
800.3(f)(1), that applicants must be invited to be consulting parties.
The September 1996 draft stated that Agency Officials ``shall
identify'' Indian tribes or Native Hawaiian organizations that might
attach religious and cultural significance to historic properties in
the area of potential effects. The language was changed so that Agency
Officials ``shall make a reasonable and good faith effort'' to identify
such tribes. This change was strongly requested by Federal agencies
during the OMB review process, on the basis that there would be an
inherent, extreme difficulty in identifying all such tribes when there
is no clear guidance or list showing such tribes for each property in
the entire United States that could be affected by an undertaking.
After discussions with OMB, the Council acceded to the change,
believing it strikes an adequate balance, consistent with the statute,
between the need to consult such tribes and the practical concerns of
identifying them. The Council, however, notes its understanding that a
Federal agency is not making ``a reasonable and good faith effort'' to
identify Indian tribes under this subsection if it possesses knowledge,
through communication from Indian tribes or otherwise, that a
particular Indian tribe attaches religious and cultural significance to
a property to be affected by an undertaking, but still fails to
identify such tribe in the 106 process. Such a lack of a reasonable and
good faith effort would be contrary to the requirements of the NHPA.
Subsection (g) of the final rule contains language that was
formally in subsection (d)(3). It was moved as a separate subsection to
highlight the opportunity for expediting consultation. Language was
added to clarify when
[[Page 27054]]
multiple steps in the process could be condensed, further streamlining
the 106 process.
Section 800.4
The substance of Sec. 800.4(a) changed minimally from the September
1996 draft. The first sentence in subsection (a) was deleted as it was
determined to be redundant with the coordination subsection in
Sec. 800.3. The Federal agency responsibilities during the scoping of
identification efforts also remained largely unchanged, except that
reference to the documentation requirement for area of potential
effects was added here. The duty to document the area of potential
effects was listed in Sec. 800.12 in the September 1996 draft and was
added in Sec. 800.3 to emphasize the significance of this step. The
Council plans to provide further guidance on development of the area of
potential effect to address comments seeking assistance in defining the
area of potential effect. Some comments questioned the duty to consult
with the SHPO/THPO during the determination of the area of potential
effect. Consultation with the SHPO/THPO at this critical decision
making point has always been viewed as an important part of the
process. The Council decided to retain the duty to consult with the
SHPO/THPO since the Council believes that SHPO/THPOs have special
expertise as to the historic areas in their jurisdiction and the
idiosyncracies of such areas, and can greatly assist the Agency
Official, using such expertise, in determining an accurate area of
potential effects. Nevertheless, it is noted that the Federal agency is
ultimately responsible for making the final determination about the
area of potential effect (i.e., the concurrence of the SHPO/THPO in
such determination is not required).
One comment noted that, under the existing regulations, the public
was not involved early in the identification efforts. Section
800.4(a)(3) requires that Federal agencies seek information from
individuals or organizations likely to have knowledge of or concerns
with historic properties in the area. This is an avenue for early
public involvement.
Subsection (b) sets the standards for a Federal agency's
identification of historic properties. This subsection was modified
minimally to address several comments. In response to tribal concerns,
the requirement to consult with Indian tribes and Native Hawaiian
organizations that attach religious and cultural significance to
properties was moved to this part of the regulations. The substantive
requirement had been set forth under Sec. 800.12(c)(1) of the September
1996 draft. In response to tribal concerns regarding the need for
adequate safeguards for sensitive information, the Council added a
sentence requiring Federal agencies to consider ``confidentiality
concerns'' of Indian tribes and Native Hawaiian organizations.
The final rule also tied the ``reasonable and good faith effort''
standard to examples listed in subsection (b)(1). Council guidance will
be developed to elaborate on the use of the various methods of
identification depending on the facts of each undertaking to respond to
those comments seeking clarification. One comment noted that the
regulations should provide a mechanism for disputes over what
constitutes a ``reasonable and good faith effort.'' Section 800.2(b)(2)
of the final rule sets forth that the Council can provide advice and
assistance in resolution of disputes during the process.
The concept of ``phased identification'' was well received in the
comments. The final rule, under Sec. 800.4(b)(2), clarifies the
applicability of phased identification. It also expands the notion of
phasing to the evaluation step in the process, as suggested by several
comments.
Section 800.4(b)(3) of the September 1996 draft, regarding the use
of contractors by Agency Officials, was moved to Sec. 800.2(a)(3) of
the final rule.
With regard to the evaluation of historic properties, one comment
stated the importance of allowing consensus determinations on
eligibility whereby Federal agencies assume eligibility for the
National Register without conducting a full evaluation, thus expediting
the section 106 process. The Council provided for consensus
determinations in subsection (c)(2) of the final rule and in the
September 1996 draft in (c)(2).
In response to tribal comments about the importance of
Sec. 800.12(c)(1) of the September 1996 draft regarding determinations
of eligibility, the Council incorporated language from that section
into Sec. 800.4(c)(2) of the final rule. In response to strong tribal
concerns about the treatment of properties to which they attach
religious and cultural significance and concerns that they would not be
properly evaluated by those that do not attach such significance to the
properties, the Council amended the regulatory language to provide an
avenue for tribes that disagree with eligibility determinations
regarding such properties to ask the Council to request the Federal
agency to obtain a determination of eligibility.
Many SHPO comments strongly expressed concern about the 15-day
review period in subsection (d) of the September 1996 draft, finding it
too short for an adequate review of a determination of ``no historic
properties affected.'' In light of the sometimes limited resources and
workloads of the SHPOs and the fact that the complexity of some
determinations require more time for an adequate review, the Council
agreed and extended the time for SHPO response to 30 days. The Council
believes that the need for proper evaluation of this determination and
the danger that an improper evaluation could result in damage to
historic properties outweighs the interests of expediting the process
by 15 days.
Section 800.5
Subsection (a)(1) changed only in that it incorporated the duty to
consult with Indian tribes and Native Hawaiian organizations, that was
found in Sec. 800.12(c)(1) of the September 1996 draft. Other minor
wording changes were made in response to comments to clarify that there
is no new notice and comment requirement at this step. Thus, the words
``which have been'' were added to the last sentence. References to the
term ``interested public'' were deleted, as such a category of
participants was dropped, as described above.
With regard to subsection (a)(1), some comments took issue with the
last sentence which contains the concept of indirect effects as not
being included in the regulations to be superseded. The Council has
always considered that ``effect'' as contained in the statutory
language of Section 106 includes both direct and indirect effects.
Therefore, it specified that in regulatory language, thereby retaining
the requirement that indirect effects be considered by Federal agencies
during section 106 process, as it similarly is during the NEPA process.
The wording of some of the examples of adverse effects in
subsection (a)(2) was modified from the September 1996 draft to clarify
the intent and application in response to comments.
Subsection (a)(3) was eliminated in the final rule, but the concept
of avoidance as justifying a no adverse effect determination is
incorporated into subsection (b). The subsection (a)(3) of the final
rule expands upon the phasing of identification and evaluation efforts
to include phasing of the application of adverse effect criteria under
certain circumstances. Comments observed that such flexibility at this
step in the process was essential if a Federal agency opted for phasing
at the earlier identification and evaluation stages.
[[Page 27055]]
Subsection (a)(4), the standard treatment provision, in the
September 1996 draft was completely removed from this section in the
regulation. The standard treatment option is still contained generally
in Sec. 800.14(d) of the final rule. The Council removed the Standard
Treatments on subsection (a)(4) because it believes that all such
treatments should be arrived at through specific consultation about
them, as provided under the final rule's Sec. 800.14(d). This does not
change their availability as a streamlining device under the
regulations.
With regard to review of ``no adverse effect'' determinations, the
final rule was amended to acknowledge that, although the Council will
not review ``no adverse effect'' determinations as a routine matter,
there may be certain circumstances where the Council will intervene and
review the finding, even where there is SHPO/THPO agreement with the
Federal agency. This would likely happen when a consulting party
disagrees with the Agency Official's determination or when the Council,
guided by the criteria in appendix A, decides that it should review the
determination. Subsection (c)(1) of the final rule acknowledges this by
adding the language ``Unless the Council is reviewing the finding
pursuant to Sec. 800.5(c)(3) * * *.'' This was added in response to
comments made by Indian tribes and preservation organizations that
articulated the importance of the Council retaining its authority to
overturn no adverse effect determinations.
Subsection (c)(2) of the final rule also amended the language,
formerly in subsection (b)(2), that provided for disagreements between
the SHPO and the Federal agency. The Council deleted the language
requiring Federal agencies to ``consider the effect adverse'' if the
SHPO/THPO disagreed with a no adverse effect finding. In the last
sentence of (c)(2), the Council also changed the word ``may'' in the
September 1996 draft to ``shall'' in the final rule, in response to
several comments. Federal agency comments and others suggested giving
the Federal agency the option of going back to the SHPO/THPO to resolve
the disagreement or requesting Council review. Most Federal agencies,
however, did not want the Council's position to be binding on the
Federal agency, but merely advisory. The Council considered this
concern, but rejected it as the Council maintains it has the right to
interpret the correct application of its regulations. If an agency
incorrectly applied the criteria of adverse effect, the Council viewed
this as a misapplication of its procedures. In response to comments
which found it problematic that there was no time limit for Council
review of no adverse effect determinations, the Council set a 15 day
review period for such reviews in subsection (c)(3) and added language
stating that the Agency Official could assume Council concurrence with
the finding if the Council had not responded within that time frame.
Subsection (d) of Sec. 800.5 of the final rule contains the
language that was formerly in subsection (c) of the September 1996
draft. The first sentence of (d)(1) has been modified to remove
notification requirements, but to make information available upon
request. The notification requirement was moved to subsection (c) of
the final rule. This was done in response to comments about the
importance of early involvement of consulting parties.
Section 800.6
Subsection (a)(1) was modified to clarify that whenever an adverse
effect determination was made, the Council was to receive notification,
whether or not its participation was being requested. Several comments
noted that this was not clear in the language of the September 1996
draft. The criteria for requesting Council involvement was also
modified by moving (a)(1)(i)(D) to (a)(1)(ii) so that the parties
listed in the provision could directly request Council involvement
rather than going through the Federal agency. This was suggested by
several comments as a more efficient, streamlined method to request
Council intervention. The Council deleted the reference to its right to
enter the process on its own initiative as was mentioned in the
September 1996 draft at subsection (a)(1)(ii). Nevertheless, the
Council maintains that right in the final rule pursuant to
Sec. 800.2(b)(1) and the Criteria in Appendix A.
Subsection (a)(2) of the final rule sets forth the duty to involve
and invite, as appropriate, other individuals or entities to be
consulting parties. This subsection changed minimally from the
September 1996 draft, except that the sentence allowing the Council to
serve as arbiter of disputes over consulting party status was removed
in response to negative comments from Federal agencies that believed
such Council involvement was inconsistent with its authority.
Subsection (a)(3) of the final rule was amended by adding the
proviso that disclosure of information was subject to the
confidentiality provision in the regulation. This was added in response
to Federal agency concerns about disclosure of proprietary information
regarding private property owners and archeological sites, as well as
Indian tribe concerns about disclosure of sensitive information
regarding properties of traditional religious and cultural importance.
Subsection (a)(4) of the final rule was also amended by adding
language on confidentiality for the reasons stated above.
Language was also added, in response to Federal agency comments, to
elaborate on the factors that Federal agencies should consider when
determining the appropriate way to involve members of the public.
Additionally, in response to Federal agency comments concerned with
duplicate efforts, particularly during the inter-agency review, the
Council added a new sentence to acknowledge that earlier public
involvement conducted by Federal agencies may, in certain circumstances
affect the level of public notice and involvement at the resolution of
adverse effect stage. For example, if all relevant information is
provided at earlier stages in the process in such a way that a wide
audience is reached, and no new information is available at that stage
in the process that would assist in the resolution of adverse effects,
then a new public notice may not be warranted.
Reference to section 304 of the NHPA was added in the final rule,
under subsection (a)(5), in response to strong concerns expressed by
Indian tribes regarding disclosure of sensitive information.
The subsection on resolution without the Council, Sec. 800.6(b)(1),
was amended in response to several comments questioning the meaning of
the term ``file'' as used in the September 1996 draft. The term
``file'' was changed to ``submit,'' and the documentation requirement
was added to ensure that the Council had the information that it needed
if it were to review the Memorandum of Agreement, as suggested by some
comments. Language was added in Sec. 800.6(b)(1)(iii) that the Council
would notify the head of an agency when the Council decided to enter
the section 106 process. This was in response to comments in the
interagency review process and was intended to ensure that policy-level
officials in the agency were aware of cases that warranted Council
involvement. The last sentence in Sec. 800.6(b)(1)(v) was added to
explain the outcome if the Council decides not to join the consultation
despite the request to do so.
Subsection (b)(2) was changed so that the phrase ``avoid or
minimize the adverse effects'' was changed to ``seek
[[Page 27056]]
ways to avoid, minimize or mitigate the adverse effects.'' This change
was made in response to comments, in order to more appropriately
reflect the essence of consultation behind the 106 process.
The final rule clarifies the status and rights of parties involved
in the development of a Memorandum of Agreement as set forth in
subsection (c). Many comments had found the treatment of these issues
section in the September 1996 draft to be confusing. The Council
redrafted the subsection by first moving the provision describing the
legal effect of a Memorandum of Agreement to the beginning of the
subsection. This was formerly in subsection (c)(5) of the September
1996 draft. Under Sec. 800.6(c)(1) of the final rule, the Council also
separated out the various signatories for different kind of agreements,
adding a reference to the fact that the Council and the Federal agency
can enter into a Memorandum of Agreement under Sec. 800.7(a)(2). The
final rule adds a new category of parties that may or should be invited
to become signatories to the agreement as listed in subsections
(c)(2)(i) and (ii); these parties will have the rights of signatories
if they choose to sign the agreement after being invited. Subsection
(c)(2)(iii) clarifies the outcome of such parties' refusal to sign the
agreement. Another category of parties, different from signatories or
those invited to become signatories, is concurring parties as set forth
in subsection (c)(3). The remaining subsection on Memoranda of
Agreement remained essentially the same except that, in response to
comments, subsections (6) and (9) regarding subsequent discoveries were
added.
Section 800.7
There were few comments on Sec. 800.7. The Council made minimal
changes to this section. In subsection (a), the Council added a
sentence requiring the party terminating consultation to notify the
consulting parties and to state in writing the reasons for terminating.
This was done to ensure that termination was grounded in sound reasons
and that other parties had full understanding of the basis for
termination. The requirement that the head of the agency or an
Assistant Secretary or other officer with major department-wide or
agency- wide responsibility request Council comment when the Federal
agency terminates was criticized in several comments that believed it
was burdensome, unnecessary or beyond the authority of the Council. The
Council retained the requirement for several reasons. First, section
110(1) of the NHPA, which was added in the 1992 amendments to require
this. That section requires that the head of such agency ``shall
document any decision made pursuant to section 106'' where the Federal
agency has not entered into a Memorandum of Agreement regarding
undertakings which adversely affect historic properties. Second, as a
matter of protocol, since the Council members, many of whom are
Presidential appointees and include the heads of six Federal agencies,
are responsible for commenting on a termination, the Council determined
that it was appropriate for the request to be made at that level.
Subsection (a)(3) was added in response to tribe comment and in
recognition of an Indian tribe's sovereign status with regard to its
tribal lands. The requirement that a tribe must be a signatory to any
agreement negotiated pursuant to Sec. 800.6 was contained in the last
sentence of Sec. 800.12(b)(3) of the September 1996 draft.
Subsection (a)(4) was amended by giving the Council the option to
avoid termination by going to the Federal agency Federal Preservation
Officer to attempt resolution of issues. This option was suggested by
several Federal agencies.
Subsection (b) was added to allow the Council to provide advisory
comments even when a Memorandum of Agreement has been signed. This
provision will give the Council the flexibility to agree to certain
Memoranda of Agreement, but to supplement its signature with additional
comments. This was suggested in one comment, and was determined by the
Council to be a valuable vehicle for issuing advisory opinions to
assist Federal agencies in their 106 compliance efforts.
In subsection (c)(3) the Council added the Federal Preservation
Officer (FPO) as a recipient of a copy of the Council comments. This
should assist the FPO in his/her agency-wide management of section 106
compliance.
Subsection (c)(4) pertaining to Federal agency response to Council
comments was changed by adding the requirement that the agency head
prepare a summary of the decision. This was added to ensure that the
decision received adequate consideration by the agency head and,
therefore, was properly documented, as required by section 110(1).
Section 800.8
This section of the regulations responds to the desire to
streamline the 106 process and to coordinate it with the National
Environmental Policy Act (NEPA) process. As stated before, most
commenters approved of the concept of NEPA coordination. However, many
believed it did not streamline the process enough. The Council believes
it has streamlined coordination with the NEPA process to the largest
extent possible without unduly sacrificing the key components of the
section 106 process. The standards by which NEPA coordination must be
conducted reflect our understanding of such key components that could
not be sacrificed without failing the letter and spirit of Section 106.
In response to a concern that a finding of adverse effect could
incorrectly be thought as automatically triggering a requirement to
produce an Environmental Impact Statement (EIS), the Council added the
last sentence of Sec. 800.8(a)(1) of the final regulation to make it
clear that adverse effects on historic properties do not, by
themselves, necessarily trigger an EIS requirement. However, they may
be of such magnitude or combine with other environmental impacts to
warrant preparation of an EIS. This is determined by the Federal agency
in accordance with its NEPA procedures and applicable NEPA case law.
Tribal comments showed a concern that sensitive information would
be published on the Environmental Impact Statement (EIS), and therefore
be available for public distribution. The Council notes that
Sec. 800.8(c)(1)(iii) states that tribes must be consulted in the
preparation of NEPA documents. The Council believes that the
confidentiality concerns of the tribes could be addressed in these
consultations. Moreover, Sec. 800.8(c)(1)(ii) states that
identification and effects determinations must be consistent with
Secs. 800.4 and 800.5, and that such sections address confidentiality
concerns. Tribes could object to a NEPA coordination that is not
consistent with this and other standards.
Certain comments cited a concern that Sec. 800.8 could allow too
many inappropriate reasons to prolong or repeat consultation. The
Council has limited objections to the NEPA coordination on two bases:
(a) That it does not meet the standards listed under subsection (c)(1),
or (b) that substantive treatment of effects on historic properties on
the NEPA documents are inadequate. The Council will review such
objections within 30 days.
Comments from Federal agencies indicated that subsection (c)(5)
inappropriately implied that the Agency Official would retain
responsibility for measures in a Record of Decision (ROD) or Finding of
No Significant Impact (FONSI) when another party may
[[Page 27057]]
actually carry those out. The Council therefore agreed to change the
language to: ``if the Agency Official fails to ensure that the measures
* * * are carried out * * *'' (the language used to state that the
Agency Official ``fails to carry out the measure * * *'').
Section 800.9
Many comments found the review procedures set forth in
Sec. 800.9(a) of the September 1996 draft to be problematic. Comments
found this subsection to be a backdoor, and unauthorized, appeals
process that created a lack of finality to the 106 process. Comments
also noted that the right to appeal to the Council was too limited, as
only certain individuals who had participated in the process could make
an appeal under subsection (a). Based on the strong adverse sentiment
to this provision, the Council completely redrafted this subsection.
The new subsection (a) succinctly and simply states that the Council
can render its advisory opinion at any time in the 106 process
regarding any compliance matters. Federal agencies are required to
consider the Council's advisory opinion in reaching a decision on the
matter. With this change, the Council believes it is responding to the
concerns expressed in the comments about an elaborate appeals process.
The change also addresses the concern that the Council was exceeding
its authority as an advisory body, since the final rule acknowledges
that the Council will issue advisory opinions.
Subsection (b) was changed in response to a comment which
questioned the provision in the September 1996 draft that required the
Council chairman to send a foreclosure finding to the head of an
agency. The wording implied that the foreclosure decision was that of
the Chairman, rather than the Council at large. It was always the
intention that the decision was that of the Council at large so as to,
among other things, reflect the diversity of the whole Council. The
final rule merely deletes the reference to the Chairman.
Several comments sought more direction with regard to intentional
adverse effects of applicants in subsection (c). The final rule, like
the notice of proposed rulemaking, tracks the language in section
110(k) of the NHPA. Additionally, in response to comments, the Council
set forth a procedure describing how it would consult with Federal
agencies that make a preliminary determination that circumstances may
justify granting assistance to the applicant. The section 110
Guidelines provide substantive guidance on this subject.
Subsection (d) provides for periodic reviews of how participants
fulfill their responsibilities under section 106. Some comments
questioned the Council's authority for such reviews, even in light of
section 203 of the NHPA. The Council maintains the position that
sections 202 and 203 of the NHPA clearly provide for the collection of
information from Federal agencies regarding the section 106 process and
for the Council to make recommendations to Federal agencies on
improving compliance. In response to comments, nevertheless, the
Council removed the reference to Council ``oversight'' from the final
rule in subsection (d)(1).
Subsection (d)(2) of the September 1996 draft was deleted as
unnecessary and confusing in that it introduced the concept of
``professional peer review'' without explanation. The Council
determined that reference to this term was hot appropriate or
beneficial. The final rule's subsection (d)(2) contains the provision
on improving the operation of section 106. This subsection remained
largely unchanged, except that the last sentence was added to
acknowledge the Council's authority under section 202(a)(6) of the NHPA
to review Federal agency preservation programs and to make
recommendations to improve their effectiveness.
Section 800.10
This section received few comments. One comment questioned the use
of the phrase ``directly and adversely'' in subsection (a), finding it
implied that indirect effects were hot considered under this
subsection. The Council retained the ``directly and adversely''
language of the September 1996 draft because it tracks the statutory
language in the NHPA.
Another comment noted that it would be more appropriate to mandate
that the National Park Service, instead of the Council, be involved in
consultation over National Historic Landmarks. The regulations include
a requirement that the Secretary of the Interior receive notice and an
invitation to participate in such consultations and, thus, the Council
has provided for involvement of the Secretary of the Interior whenever
the Secretary wants to enter the consultation. The Council chose not to
mandate the Secretary's participation.
The final rule contains a few other minor changes to rephrase
headings and wording of subsections.
Section 800.11
The type of documents required to be submitted at various stages in
the 106 process remained, for the most part, the same as presented in
the September 1996 draft. Subsection (a) on adequacy of documentation
and subsection (c) on confidentiality, were changed to respond to
comments.
With regard to subsection (a), one comment questioned the use of
the term ``factual and logical'' basis in the first sentence. The
Council deleted this language as unnecessary. Also in response to a
comment, the Council added language requiring the Council or SHPO/THPO
to notify the Federal agency with the specific information needs to
meet the documentation standards. This should expedite the process and
assist the Federal agency in fulfilling its documentation requirements.
The Council had added specific language giving it the authority to
resolve disputes over whether documentation standards are met. Some
comments disagreed with the language in the September 1996 draft giving
the Council or the SHPO/THPO the authority to determine the adequacy of
documentation. Comments suggested requiring the Federal agency to
consider the Council or SHPO views and supplement the record as the
Agency Official determined it as necessary. The Council disagreed with
these comments because it viewed the adequacy of documentation as an
essential function for which the Council is able to provide its
expertise. Council resolution of disputes over documentation would
maintain consistency of documentation among Federal agencies.
Additionally, the authority of the SHPO/THPO to notify Federal agencies
that documentation is insufficient is necessary so that SHPOs/THPOs
have the information hat they need to respond to Federal agency
determinations. Nevertheless, in light of strong opposition from
commenters who were worried that, as written in the September 1996
draft, subsection (a) would cause unending delays in the section 106
process, the Council acceded to eliminating the language suspending
relevant time periods until specified information was submitted. In
addition, the Council relegated its role to one of ``reviewing,'' as
opposed to ``resolving,'' document disputes.
Comments questioned the language under Sec. 800.11(a) suspending
the time periods when inadequate documentation is submitted, arguing
that such provision would result in long delays. Another comment
questioned
[[Page 27058]]
the meaning of ``suspended'', querying whether the SHPO/THPO would
receive an additional 30 days after receipt of adequate documentation,
or merely the remaining days left from when the SHPO/THPO notified the
Federal agency that the documentation was inadequate. In order to
alleviate concerns of delays in the process, the Council acceded to
removing the suspension of time language. Nevertheless, Federal
agencies must note that this does not lessen their obligation to meet
applicable documentation standards, and that, not meeting such
obligations could ultimately result in foreclosure or otherwise open
their Section 106 compliance to challenge.
Subsection (c) containing the confidentiality provision, was
modified by tracking the statutory language, almost verbatim, from
section 304 of the NHPA rather than paraphrasing the main portion of
the provision as was done in the September 1996 draft. This was done to
more accurately describe the Federal agency responsibilities. At the
end of subsection (c)(2), the Council added two sentences describing
how it would consult with the Secretary on the withholding and release
of information. This was added in response to various comments,
particularly those of tribes who are concerned about the release of
information of sacred sites. Subsection (c)(3) was added in response to
comments made by Federal agencies and others about privacy concerns of
applicants. It acknowledges that other laws or agency program
requirements may limit access to information.
Minor additions and changes to enhance the clarity of the
documentation requirements are made. Additionally, subsections (e) and
(f) of the September 1996 draft were consolidated as they contained
essentially the same material. In subsections (f) and (g)(4), the
Council added ``any substantive revisions or additions to the
documentation provided the Council pursuant to Sec. 800.6(a)(1)'' in
order to facilitate and expedite the review of information.
Section 800.12
As discussed above, former Sec. 800.12 of the September 1996 draft
contained the consultation requirements regarding Indian tribes and
Native Hawaiian organizations. The provisions in that past section have
been interspersed and incorporated into the relevant sections and
subsections of the final rule for ease of reference to those reading
the regulations, eliminating the need to flip back and forth between
other sections of the regulations and this one. This reorganization was
also done in response to tribal concerns that the separate section did
not facilitate integration of Indian tribes and Native Hawaiian
organizations into the routine process. For the most part, the
incorporation of those provisions into the other sections used existing
language. Changes that were made in response to comments are noted at
the specific section.
Section 800.12 of the final rule contains the provisions on
emergency situations, formerly under Sec. 800.13 of the September 1996
draft. The final rule incorporates several changes suggested by the
comments. First, the Council deleted the reference to an ``Agency
Official'' declaring a disaster or emergency, since it was pointed out
that Agency Officials, as defined by the Council's regulations, do not
have such authority, nor was it appropriate for the Council to grant
them such authority. Second, in subsection (b), language was also added
that had erroneously been left out, to acknowledge that the provision
extended to other ``immediate threat(s) to life or property.'' Third,
the duty to consult with Indian tribes and Native Hawaiian
organizations has been incorporated in response to tribal comments
holding that this is mandated by the 1992 amendments to the NHPA.
One comment stated that demolition and repair operations should be
exempt from section 106 when the following principles are at stake:
Protection of lives, compliance with building codes, protection for
property, maintenance of public health and safety, restoration of vital
community services, or evaluation of post disaster engineering reports.
The Council recognized many of these principles but believes it has
struck the proper balance between the need to carry out the section 106
process and the need for expediency created by emergency situations.
The last sentence of Sec. 800.12 provides an exemption from section 106
compliance for immediate rescue and salvage operations conducted to
preserve life or property, since the Council believed that emergency
expediency in those situations outweighed section 106 process to such
an extend that an exemption was warranted.
Section 800.13
This section, formerly found under Sec. 800.14 of the September
1996 draft, was revised by the Council to simplify its provisions and
to respond to various comments. Subsection (a)(1) was added in the
final rule to highlight the benefit of planning for subsequent
discoveries in Programmatic Agreements. Subsection (a)(2) contains
language that was in the September 1996 draft, except that mention of
standard treatments containing provisions for subsequent discoveries
was deleted as it was deemed inappropriate to include treatment for
subsequent discoveries in standard treatments.
Subsection (b) was also changed by adding ``or if construction on
an approved undertaking has not commenced,'' as the Council realized
that such a circumstance would also provide the opportunity for
consultation. Subsection (b)(2) was amended in response to comments
that indicated it was not clear, as drafted in the September 1996
draft, that the SHPO/THPO or the Indian tribe or Native Hawaiian
organization that attaches religious and cultural significance to the
affected property have to agree that the property is of value solely
for its scientific, prehistoric, history or archaeological data before
the Archaeological and Historic Preservation Act could be used in lieu
of Section 106. Subsection (b)(3) was changed minimally to clarify the
intent that the SHPO/THPO, the Indian tribe or Native Hawaiian
organization and the Council have 48 hours in which to respond to a
notification of an inadvertent discovery.
Subsection (d) was added as a result of comments made during the
tribal consultation meetings and in deference to tribal sovereignty
with regard to actions on tribal lands.
Section 800.14
This section was formerly found under Sec. 800.15 of the September
1996 draft. It provides for new options for agencies to pursue in
streamlining their section 106 compliance activities and incorporates
the practice, under the regulations activities and incorporates the
practice, under the regulations to be superseded, of developing
Programmatic Agreements to facilitate coordination between Section 106
and an agency's particular program.
Regarding subsection (a), most of the Federal agency and industry
commenters believed that the Federal agencies should be the ones
determining the procedural consistency of program alternatives with
Council regulations. Most SHPOs and Indian tribes believed the Council
should make such consistency determinations. In the end, the Council
opted to make the consistency determinations. The Council believes it
has the internal experience and expertise to make such evaluations.
Also, the diversity of its membership ensures that a balanced
perspective is brought to final determinations regarding consistency.
[[Page 27059]]
Section 211 of the NHPA states that the Council ``is authorized to
promulgate such rules and regulations as it deems necessary to govern
implementation of section 106 * * * in its entirety.'' Section
110(a)(2) of the NHPA states that the ``(Federal agency historic
preservation) program(s) shall ensure * * * that the agency's
procedures for compliance with section 106 * * * are consistent with
regulations issued by the Council * * *'' (emphasis added). It must be
understood, among other things and upon closer examination, that
section 110 of the NHPA does not specifically provide for Federal
agencies to substitute their programs for the Section 106 regulations
promulgated by the Council. Through Sec. 800.14(a) of the new
regulations, the Council is allowing for such substitution, believing
this may help agencies in their section 106 compliance. However, the
Council will not allow such substitution if the agency procedures are
inconsistent with the Council's 106 regulations. The Council, in its
expertise, holds that its regulations correctly implement section 106,
and that it would therefore be inimical to its mandate and contrary to
the spirit and letter of section 100(a)(2)(E) of the NHPA, for the
Council to allow inconsistent procedures to substitute the Council's
section 106 regulations.
The last sentence under subsection (a)(4) was added during the OMB
review process to allay concerns that 101(d)(5) agreements would be
entered into without the knowledge and opportunity to comment of
Federal agencies.
Subsection (b) is intended to retain the concept of Programmatic
Agreements as in the superseded regulations, but with more clarity
regarding required signatures, termination, and public participation.
Programmatic Agreements should facilitate and streamline the Section
106 process regarding complex project situations or multiple
undertakings.
Subsection (c) sets forth the process for exempting certain
programs or categories of undertakings from the section 106 process.
This is based on section 214 of the NHPA.
Subsection (f) was added in response to tribal comments that there
needed to be specific requirements for Federal agencies to consult with
Indian tribes during the preparation of program alternatives. The
content follows the policies that have guided tribal consultation
throughout the revisions of the regulation.
Section 800.15
This section was formerly under Sec. 800.16 of the September 1996
draft. It is presently reserved for future use. The Council will
proceed with the review of tribal applications for substitution of
tribal regulations for the Council's section 106 regulations on tribal
lands, pursuant to section 101(d)(5) of the Act, on the basis of
informal procedures. With regard to State agreements, the Council will
keep in effect any currently valid State agreements until revised
procedures for State agreements take effect or until the agreement is
otherwise terminated.
Section 800.16
Few comments were received on the definitions and no substantial
changes were made. There were some comments on the definition of
``undertaking,'' requesting clarification of its scope. That has been
done in the Section-by Section analysis (Section VII).
VI. Summary of Major Changes From the Regulations Being Superseded
The revised section 106 regulations will significantly modify the
process under the regulations to be superseded, introducing new
streamlining while incorporating statutory changes mandated by the 1992
amendments to the NHPA. This section of the preamble highlights the
major revisions in the process. Although there are many other
refinements and improvements that cumulatively improve the operation of
the section 106 process, they are not detailed here.
Major Changes
Greater deference to Federal agency-SHPO \1\ decisionmaking. The
Council will no longer review routine decisions agreed to by the
Federal agency and the SHPO/THPO (adverse effect findings and most
Memoranda of Agreement), recognizing that the capability of these
parties to do effective preservation planning has grown substantially
since the process was last revised in 1986.
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\1\ The revised regulations extend to Tribal Historic
Preservation Officers (THPO) the same role on tribal lands as the
SHPO has in the section 106 process. Accordingly, this summary of
changes refers to ``SHPO/THPO'' when the responsibilities for the
SHPO and the THPO (with regard to tribal lands) are the same.
---------------------------------------------------------------------------
More focused Council involvement. The Council will focus its
attention on those situations where its expertise and national
perspective can enhance the consideration of historic preservation
issues. Criteria accompanying the regulation specify that the Council
may enter the section 106 process when an undertaking has substantial
impacts on important historic properties, presents important questions
of policy or interpretation, has the potential for presenting
compliance problems, or presents issues of concern to Indian tribes or
Native Hawaiian organizations.
Better definition of participants' roles. The primary
responsibility of the Federal agency for section 106 decisions is
emphasized, while the advisory roles of the Council and the SHPO/THPO
are clarified. The roles of other participants are more clearly
defined, particularly Indian tribes, local governments and applicants,
who may participate as ``consulting parties.'' Certain individuals and
organizations may also be entitled to be consulting parties, based on
the nature of their relation to an undertaking and its effects on
historic properties. Others may request to be involved. The exclusive
role of the Federal agency to make the ultimate decision on the
undertaking is stressed and the advisory roles of the other parties is
clearly stated.
Native American roles defined and strengthened. The 1992 NHPA
amendments placed major emphasis on the role of Indian tribes and other
Native Americans. The revisions incorporate specific provisions for
involving tribes when actions occur on tribal lands and for consulting
with Indian tribes and Native Hawaiian organizations, as required by
the NHPA, throughout the process. The revisions embody the principle
that Indian tribes should have the same extent of involvement when
actions occur on tribal lands as the SHPO does for actions within the
States; this includes the ability to agree to decisions regarding
significance of historic properties, effects to them and treatment of
those effects, including signing Memoranda of Agreement. Off tribal
lands, Federal agencies must consult the appropriate tribe or Native
Hawaiian organization. The provisions recognize Federal agency
obligations to consider properties to which the tribes attach religious
and cultural significance in project planning. Provision is also made
for the involvement of the Tribal Historic Preservation Officer in lieu
of the SHPO for undertaking on tribal lands when that official has
assumed the responsibilities of the SHPO in accordance with section
101(d) (2) of the NHPA.
Role of applicants recognized. The revisions acknowledge the direct
interests of applicants for Federal assistance or approval and specify
greater opportunities for active participation in the section 106
process as consulting parties. Applicants are permitted to initiate and
pursue the steps of the process, while the Federal agency remains
responsible for final decisions regarding historic properties.
[[Page 27060]]
Early compliance encouraged. Provisions have been added to
encourage agencies to initiate compliance with the Section 106 process
early in project planning and to begin consultation with the SHPO/THPO
and others at that early stage. This should promote early agency
consideration of historic properties in project planning and prevent
late recognition of an agency's legal responsibilities that often cause
delay or compliance problems.
Coordination with other reviews advanced. Agencies are encouraged
to integrate Section 106 review with that required under the National
Environmental Policy Act and related laws. Specific provisions that
make identification and evaluation, public participation and
documentation requirements more flexible facilitate this and will
streamline reviews, allowing agencies to use information and analyses
prepared for one law to be used to meet the requirements of another.
Use of NEPA compliance to meet Section 106 requirements authorized.
Agencies are authorized to use the preparation of Environmental Impact
Statements and Environmental Assessments under the National
Environmental Policy Act to meet section 106 needs in lieu of following
the specified Council process. This is expected to be a major
opportunity for agencies with well-developed NEPA processes to simplify
concurrent reviews, reduce costs to applicants and avoid redundant
paperwork.
New techniques introduced to deal with marginal or routine cases.
Federal agencies may seek exemptions from Section 106 or advisory
comments on an entire program. Also, the Council may establish standard
methods of treating recurring situations. This will allow agencies to
save both time and resources that would otherwise be committed to
legally-mandated reviews.
Public participation clarified. Opportunities for public
involvement in the section 106 process are simplified and more clearly
defined, with encouragement for Federal agencies to use their
established public involvement procedures where appropriate.
Clarification in this area will reduce controversy over the adequacy of
an agency's efforts to involve the public.
Alternate Federal agency procedures flexed. The provisions allowing
Federal agencies to substitute their internal procedures for the
Council's section 106 regulations no longer require that the agency
procedures be formal rules or regulations. This will make it easier for
agencies to tailor the section 106 process to their needs. Approval of
such substitute procedures is linked to requirements of section
110(a)(2)(E) of the NHPA.
Procedural Streamlining
The following section details changes in the basic Section 106
process. It demonstrates the technical alteration to the process to
carry out the changes described previously.
``No effect'' step simplified. To ``no historic properties'' and
``no effect'' determinations of the regulations being superseded are
combined into a single ``no historic properties affected'' finding. The
separate ``effect'' determination of the regulations being superseded
is dropped and the agency moves directly to assessing adverse effects
when it appears historic properties may be affected.
Identification and evaluation of historic properties made more
flexible. The revised regulation introduces the concepts of phased
identification and relating the level of identification to the nature
of the undertaking and its likely impacts on historic properties. These
concepts are important to effective NEPA coordination and will
encourage more cost-effective approaches to survey and identification,
as agencies will be able to make preliminary decisions on alternative
locations or alignments without having to conduct the more intensive
identification efforts necessary to deal with the final design and
siting of a project.
Adverse effect criteria and exceptions revamped. The criteria are
revised to better define when projects have adverse effects on historic
properties. The ``exceptions'' to the criteria concerning
rehabilitation of historic properties meeting the Secretary's Standards
and transfer of Federal properties with preservation restrictions have
been incorporated into the adverse effect criteria of the new
regulations and expanded. Previously, much archaeological data recovery
qualified for No Adverse Effect treatment when appropriate data
recovery was undertaken. Such cases now will be treated as adverse
effects (as the destruction of other historic properties), but other
changes to the process will speed completion of the section 106
process.
Council review of No Adverse Effect determinations eliminated. The
requirement that the Council review all No Adverse Effect
determinations is replaced by SHPO/THPO review and concurrence.
Consulting parties are authorized to ask the Council to review such a
determination if the request is made in a timely manner.
Failure of Federal agency-SHPO/THPO consultation leads to Council
involvement. If an agency and the SHPO/THPO failed to reach a solution
to deal with adverse effects, the process required the Federal agency
to seek the formal comments of the Council. The revised process
requires the agency to invite the Council to join the consultation and
help the parties reach resolution. Termination and comment would follow
only if further consultation was not successful. This should result in
more negotiated solutions, which are more efficient and usually provide
better results.
Council comment provision reflects 1992 NHPA amendments. Council
comments must be considered by the head of the Federal agency receiving
them, as required by section 110(1) of NHPA.
Review of agency findings clarified. Recognizing that the Council's
views on Federal agency actions to comply with section 106 are only
advisory, a new provision allows anyone at anytime to seek the
Council's opinion on agency findings and decisions under section 106.
There is no obligation to delay agency action while the council
conducts this review.
Emergency and post-review discoveries situations revised. Greater
emphasis is placed on planning for unanticipated events and more
flexible responses are allowed.
Council monitoring of overall Section 106 performance enhanced. The
new regulations will shift the emphasis of Council review from
individual cases to assessments of the overall quality of a Federal
agency's or SHPO/THPO's performance in the section 106 process. The
obligation of section 203 of the NHPA for agencies to provide project
information to the Council is included. Also, provisions are made for
closer Council review of cases where a participant has been found to
have shortcomings in complying with section 106.
VII. Description of Meaning and Intent of Specific Sections
The following information clarifies the meaning and intent behind
particular sections of the regulations.
Subpart A--Purposes and Participants
Section 800.1(b)
This sections makes clear that references in the section 106
regulations are not intended to give any additional authority to
implementing guidelines, policies or procedures issued by any other
Federal agency. Where such provisions are cited, they are simply to
[[Page 27061]]
assist users in finding related guidance, which is non-binding, or
requirements of related laws, which may be mandatory depending on the
particular law itself.
Section 800.1(c)
The purpose of this section is to emphasize the flexibility an
Agency Official has in carrying out the steps of the section 106
process, while acknowledging that early initiation of the process is
essential and that actions taken to meet the procedural requirements
must not restrict the effective consideration of alternatives related
to historic preservation issues in later stages of the process.
Section 800.2(a)
The term ``Agency Official'' is intended to include those Federal
officials who have the effective decision making authority for an
undertaking. This means the ability to agree to such actions as may be
necessary to comply with section 106 and to ensure that any commitments
made as a result of the section 106 process are indeed carried out.
This authority and the legal responsibilities under section 106 may be
assumed by non-federal officials only when there is clear authority for
such an arrangement under Federal law, such as under certain programs
administered by the Department of Housing and Urban Development. This
subsection indicates that the Federal Agency must ensure that the
Agency Official ``takes * * * financial responsibility for section 106
compliance * * *.'' This phrase is not to be construed as prohibiting
Federal agencies from passing certain section 106 compliance costs to
applicants. Such a construction of the regulation would contravene
section 110(g) of the NHPA and 16 U.S.C. 469c-2. The intent behind the
reference to ``financial responsibility'' in the regulation is, as
stated above, to ensure that the Agency Official has the effective
decision making authority for an undertaking.
Section 800.2(a)(1)
This reference to the Secretary's professional standards is
intended to remind Federal agencies that this independent but related
provision of the Act may affect their compliance with section 106.
Section 800.2(a)(2)
This provision allows, but does not require, Federal agencies to
designate a lead agency for section 106 compliance purposes. The lead
agency carries out the duties of the Agency Official for all aspects of
the undertaking. The other Federal agencies may assist the lead agency
as they mutually agree. When compliance is completed, the other Federal
agencies may use the outcome to document their own compliance with
section 106 and must implement any provisions that apply to them. This
provision does not prohibit an agency to independently pursue
compliance with section 106 for its obligations under section 106,
although this should be carefully coordinated with the lead agency. A
lead agency can sign the Memorandum of Agreement for other agencies, so
long as that is part of the agreement among the agencies for creating
the lead agency arrangement. It should also be clear in the Memorandum
of Agreement.
Section 800.2(a)(3)
While a Federal agency may rely on applicants or contractors to
prepare necessary materials and assessments for section 106 purposes,
the Agency Official must personally and independently make the findings
and determinations required under these regulations. This includes
assuming the responsibility for ensuring that work done by others meets
applicable Federal requirements.
Section 800.2(a)(4)
This section sets forth the general concepts of consultation. It
identifies the duty of Federal agencies to consult with other parties
at various steps in the section 106 process and acknowledges that
consultation varies depending on a variety of factors. It also
encourages agencies to coordinate section 106 consultation with that
required under other Federal laws and to use existing agency processes
to promote efficiency.
Section 800.2(b)
The Council will generally not review the determinations and
decisions reached in accordance with these regulations by the Agency
Official and appropriate consulting parties and not participate in the
review of most section 106 cases. However, because the statutory
obligation of the Federal agency is to afford the Council a reasonable
opportunity to comment on its undertaking's effects upon historic
properties, the Council will oversee the section 106 process and
formally become a party in individual consultations when it determines
there are sufficient grounds to do so. These are set forth in appendix
A. The Council also will provide participants in the section 106
process with its advice and guidance in order to facilitate completion
of the section 106 review. Except as specifically noted in these
regulations, this advice and guidance is non-binding.
Section 800.2(c)
This section sets a standard for involving various consulting
parties. The objective is to provide parties with an effective
opportunity to participate in the section 106 process, relative to the
interest they have to the historic preservation issues at hand.
Section 800.2(c)(1)
This section recognizes the central role of the SHPO in working
with the Agency Official on section 106 compliance in most cases. It
also delineates the manner in which the SHPO may get involved in the
section 106 process when a THPO has assumed SHPO functions on tribal
lands.
Section 800.2(c)(2)
The role of THPO was created in the 1992 amendments to the Act.
This section tracks the statutory provision relating to THPO assumption
of the SHPO's section 106 role on tribal lands. In such circumstances,
the THPO substitutes for the SHPO and the SHPO participates in the
section 106 process only as specified in Sec. 800.2(c)(1) or as a
member of the public. This section also specifies that in those
instances where an undertaking occurs on or affects properties on
tribal land and a THPO has not officially assumed the SHPO's section
106 responsibilities on those lands, the Agency Official still consults
with the SHPO, but also consults with a representative designated by
the Indian tribe. Such designation is made in accordance with tribal
law and procedures. However, if the tribe has not designated such a
representative, the Agency Official would consult with the tribe's
chief elected official, such as the tribal chairman. For ease of
reference in the regulation and because such designated tribal
representative has the same rights and responsibilities under these
regulations as a THPO that has assumed the SHPO's responsibilities, the
term ``THPO'' has been defined as including the designated tribal
representative.
Section 800.2(c)(3)
This section embodies the statutory requirement for Federal
agencies to consult with Indian tribes and Native Hawaiian
organizations throughout the section 106 process when they attach
religious and cultural significance to historic properties that may be
affected by an undertaking. It is intended to promote continuing and
effective consultation with those parties throughout the section 106
process.
[[Page 27062]]
Such consultation is intended to be conducted in a manner that is fully
cognizant of the legal rights of Indian tribes and that is sensitive to
their cultural traditions and practices.
Section 800.2(c)(3)(i)
This subsection has two main purposes. First, it emphasizes the
importance of involving Indian tribes and Native Hawaiian organizations
early and fully at all stages of the section 106 process. Second,
Federal agencies should solicit tribal views in a manner that is
sensitive to the governmental structures of the tribes, recognizing
that confidentiality and communication issues may require Federal
agencies to allow more time for the exchange of information. Also, this
section states that the Agency Official must make a ``reasonable and
good faith effort'' to identify interested tribes and Native Hawaiian
organizations. This means that the Agency Official may have to look
beyond reservations and tribal lands in the project's vicinity to seek
information on tribes that had been historically located in the area,
but are no longer there.
Section 800.2(c)(3)(ii)
This subsection was added to make clear that nothing in these
regulations can, or is intended to, modify any rights that Indian
tribes maintain through treaties, sovereign status, or other legal
bases.
Section 800.2(c)(3)(iii)
This subsection emphasizes the need to consult with Indian tribes
on a government-to-government basis. The Agency Official must consult
with the appropriate tribal representative, who must be selected or
designated by the tribe to speak on behalf of the tribe. Matters of
protocol are important to Indian tribes. Indian tribes and Native
Hawaiian organizations may be reluctant to share information about
properties to which they attach religious and cultural significance.
Federal agencies must recognize this and be willing to identify
historic properties without compromising concerns about
confidentiality. The Agency Official should also be sensitive to the
internal workings of a tribe and allow the time necessary for the
tribal decision making process to operate.
Section 800.2(c)(3)(iv)
This subsection reminds Federal agencies of the statutory duty to
consult with Indian tribes and Native Hawaiian organizations whether or
not the undertaking or its effects occur on tribal land. Agencies
should be particularly sensitive to identifying areas of traditional
association with tribes or a Native Hawaiian organization, where
properties to which they attach religious and cultural significance may
be found.
Section 800.2(c)(3)(v)
Some Federal agencies have or may want to develop special working
relationships with Indian tribes or Native Hawaiian organizations to
provide specific arrangements for how they will adhere to the steps in
the section 106 process and enhance the participation of tribes and
Native Hawaiian organizations. Such agreements are not mandatory; they
may be negotiated at the discretion of Federal agencies. The agreements
cannot diminish the rights set forth in the regulations for other
parties, such as the SHPO, without that party's express consent.
Section 800.2(c)(3)(vi)
The signature of tribes is required where a Memorandum of Agreement
concerns tribal lands. However, if a tribe has not formally assumed the
SHPO's responsibilities under section 101(d)(2) the tribe may waive its
signature rights at its discretion. This will allow tribes the
flexibility of allowing agreements to go forward regarding tribal land,
but without condoning the agreement with their signature.
Section 800.2(c)(4)
Affected local governments must be given consulting party status if
they so request. Under Sec. 800.3(f)(1), Agency Officials are required
to invite such local governments to be consulting parties. This
subsection provides for that status and also reminds Federal agencies
that some local governments may act as the Agency Official when they
have assumed section 106 legal responsibilities, such as under certain
programs administered by the Department of Housing and Urban
Development.
Section 800.2(c)(5)
Applicants for Federal assistance or for a Federal permit, license
or other approval are entitled to be consulting parties. Under section
800.3(f)(1), Agency Officials are required to invite them to be
consulting parties. Also, Federal agencies have the legal
responsibility to comply with section 106 of the NHPA. In fulfilling
their responsibilities, Federal agencies sometimes choose to rely on
applicants for permits, approvals or assistance to begin the section
106 process. The intent was to allow applicants to contact SHPOs and
other consulting parties, but agencies must be mindful of their
government-to-government consultation responsibilities when dealing
with Indian tribes. If a Federal agency implements its section 106
responsibilities in this way, the Federal agency remains legally
responsible for the determinations. Applicants that may assume
responsibilities under a Memorandum of Agreement must be consulting
parties in the process leading to the agreement.
Section 800.2(c)(6)
This section allows for the possibility that other individuals or
entities may have a demonstrated special interest in an undertaking and
that Federal agencies and SHPO/THPOs should consider the involvement of
such individuals or entities as consulting parties. This might include
property owners directly affected by the undertaking, non-profit
organizations with a direct interest in the issues or affected
businesses. Under Sec. 800.3(f)(3), upon written request and in
consultation with the SHPO/THPO and any Indian tribe upon whose tribal
lands an undertaking occurs or affects historic properties, an Agency
Official may allow certain individuals under Sec. 800.2(c)(6) to become
consulting parties.
Section 800.2(d)(1)
Public involvement is a critical aspect of the 106 process. This
section is intended to set forth a standard that Federal agencies must
adhere to as they go through the Section 106 process. The type of
public involvement will depend upon various factors, including but not
limited to, the nature of the undertaking, the potential impact, the
historic property, and the likely interest of the public.
Confidentiality concerns include those specified in section 304 of the
Act and legitimate concerns about proprietary information, business
plans and privacy of property owners.
Section 800.2(d)(2)
This subsection is intended to set the notice standard. Notice,
with sufficient information to allow meaningful comments, must be
provided to the public so that the public can express its views during
the various stages and decision making points of the process.
Section 800.2(d)(3)
It is intended that Federal agencies have flexibility in how they
involve the public, including the use of NEPA and other agency planning
processes, as long as opportunities for such public involvement are
adequate and
[[Page 27063]]
consistent with subpart A of the regulations.
Subpart B--The Section 106 Process
Section 800.3
This new section is intended to encourage Federal agencies to
integrate the section 106 process into agency planning at its earliest
stages.
Section 800.3(a)
The determination of whether or not an undertaking exists is the
Agency Official's determination. The Council may render advice on the
existence of an undertaking, but ultimately this remains a Federal
agency decision.
Section 800.3(a)(1)
This section explains that if there is an undertaking, but there is
no potential that the undertaking will have an effect on an historic
property, then the agency is finished with its section 106 obligations.
There is no consultation requirement for this decision.
Section 800.2(a) (2)
This is a reminder to Federal agencies that adherence to the
standard 106 process in subpart B is inappropriate where the
undertaking is governed by a program alternative established pursuant
to Sec. 800.14.
Section 800.3(b)
This section does not impose a mandatory requirement on Federal
agencies. It emphasizes the benefit of coordinating compliance with
related statutes so as to enhance efficiency and avoid duplication of
efforts, but the decision is up to the Agency Official. Agencies are
encouraged to use the information gathered for these other processes to
meet section 106 needs, but the information must meet the standards in
these regulations.
Section 800.3(c)
This sets forth the responsibility to properly identify the
appropriate SHPO or THPO that must be consulted. If the undertaking is
on or affects historic properties on tribal lands, then the agency must
determine what tribe is involved and whether the tribe has assumed the
SHPO's responsibilities for section 106 under section 101(d) (2) of the
Act. A list of such tribes is available from the National Park Service.
Section 800.3(c) (1)
This section reiterates that the THPO may assume the role of the
SHPO on tribal land and tracks the language of the Act in specifying
how certain owners of property on tribal lands can request SHPO
involvement in a Section 106 case in addition to the THPO.
Section 800.3(c) (2)
This section is the State counterpart to Federal lead agencies and
has the same effect. It allows a group of SHPOs to agree to delegate
their authority under these regulations for a specific undertaking to
one SHPO.
Section 800.3(c) (3)
This section reinforces the notion that the conduct of consultation
may vary depending on the agency's planning process, the nature of the
undertaking and the nature of its effects.
Section 800.3(c) (4)
This section makes it clear that failure of an SHPO/THPO to respond
within the time frames set by the regulation permit the agency to
assume concurrence with the finding or to consult about the finding or
determination with the Council in the SHPO/THPO's absence. It also
makes clear that subsequent involvement by the SHPO/THPO is not
precluded, but the SHPO/THPO cannot reopen a finding or determination
that it failed to respond to earlier.
Section 800.3(d)
This section specifies that, on tribal lands, the Agency Official
consults with both the Indian tribe and the SHPO when the tribe has not
formally assumed the responsibilities of the SHPO under section 101(d)
(2) of the Act. It also allows the section 106 process to be completed
even when the SHPO has decided not to participate in the process, and
for the SHPO and an Indian tribe to develop tailored agreements for
SHPO participation in reviewing undertaking on the tribe's lands.
Section 800.3(e)
This section requires the Agency Official to decide early how and
when to involve the public in the section 106 process. It does not
require a formal ``plan,'' although that might be appropriate depending
upon the scale of the undertaking and the magnitude of its effects on
historic properties.
Section 800.3(f)
This is a particularly important section, as it requires the Agency
Official at an early stage of the section 106 process to consult with
the SHPO/THPO to identify those organizations and individuals that will
have the right to be consulting parties under the terms of the
regulations. These include local government, Indian tribes and Native
Hawaiian organizations and applicants for Federal assistance or
permits, especially those who may assume a responsibility under a
Memorandum of Agreement (see Sec. 800.6(c)(2)(ii)). Others may request
to be consulting parties, but that decision is up to the Agency
Official.
Section 800.3(g)
This section makes it clear that an Agency Official can combine
individual steps in the section 106 process with the consent of the
SHPO/THPO. Doing so must protect the opportunity of the public and
consulting parties to participate fully in the Section 106 process as
envisioned in Section 800.2.
Section 800.4(a)
This section sets forth the consultative requirements involved in
the scoping efforts at the beginning stages of the identification
process. The Agency Official must consult with the SHPO/THPO in
fulfilling the steps in subsections (1) through (4). This section
emphasizes the need to consult with the SHPO/THPO at all steps in the
scoping process It also highlights the need to seek information from
Indian tribes and Native Hawaiian organizations with regard to
properties to which they attach religious and cultural significance,
while being sensitive to confidentiality concerns. Where Federal
agencies are engaged in an action that is on or may affect ancestral,
aboriginal or ceded lands, Federal agencies must consult with Indian
tribes and Native Hawaiian organizations with regard to properties of
traditional religious and cultural significance on such lands.
Section 800.4(b)
This section sets out the steps an Agency Official must follow to
identify historic properties. It is close to the section 106 process
under the regulations to be superseded, with increased flexibility of
timing and greater involvement of Indian tribes and Native Hawaiian
organizations in accordance with the 1992 amendments to the Act.
Section 800.4(b)(1)
This section on level of effort required during the identification
processes has been added to allow for flexibility. It sets the standard
of a reasonable and good faith effort on behalf of the agency to
identify properties and provides that the level of effort in the
identification process depends on numerous factors including, among
others listed, the nature of the undertaking and its corresponding
potential effects on historic properties.
[[Page 27064]]
Section 800.4(b)(2)
This new section is also intended to provide Federal agencies with
flexibility when several alternatives are under consideration and the
nature of the undertaking and its potential scope and effect has
therefore not yet been completely defined. The section also allows for
deferral of final identification and evaluation if provided for in an
agreement with the SHPO/THPO or other circumstances. Under this phased
alternative, Agency Officials are required to follow up with full
identification and evaluation once project alternatives have been
refined or access has been gained to previously restricted areas. Any
further deferral of final identification would complicate the process
and jeopardize an adequate assessment of effects and resolution of
adverse effects.
Section 800.4(c)
This section sets out the process for determining the National
Register eligibility of properties not previously evaluated for
historic significance. It follows closely the regulations to be
superseded.
Section 800.4(c)(1)
This section sets out the process for eligibility determinations in
much the same way as the regulations to be superseded, but requires
Federal agencies to acknowledge the special expertise of Indian tribes
and Native Hawaiian organizations when assessing the eligibility of a
property to which they attach religious and cultural significance. If
either objects to a determination of eligibility, they may seek the
Council to have the matter referred to the Keeper. The Council retains
discretion on whether or not to submit such referral.
Section 800.4(c)(2)
This section remains largely unchanged from the regulations to be
superseded except that it provides that if an Indian tribe or Native
Hawaiian organization disagrees with a determination of eligibility
involving a property to which it attaches religious and cultural
significance, then the tribe can ask the Council to request that the
Agency Official obtain a determination of eligibility. The Council
retains the discretion as to whether or not it should make the request
of the Agency Official. This section was intended to provide a way to
ensure appropriate determinations regarding properties, located off
tribal lands, to which tribes attach religious and cultural
significance.
Section 800.4(d)
This section now combines the ``No Historic Properties'' and ``No
Effect'' findings of the regulations to be superseded.
Section 800.4(d)(1)
This section describes the closure point in the Section 106 process
where no historic properties are found or no effects on historic
properties are found. Consulting parties must be specifically notified
of the determination, but members of the public need not receive direct
notification; the Federal agency must place its documentation in a
public file prior to approving the undertaking, and provide access to
the information when requested by the public. Once the consulting
parties are notified, the SHPO/THPO has 30 days to object to the
determination. The Council may also object on its own initiative within
the time period. Lack of such objection within the 30 day period means
that the agency need not take further steps in the section 106 process.
Section 800.4(d)(2)
This section requires that the Federal agency proceed to the
adverse effect determination step where it finds that historic
properties may be affected or the SHPO/THPO or Council objects to a no
historic properties affected finding. The agency must notify all
consulting parties.
Section 800.5
This section is similar to the provisions for assessing adverse
affects under the regulations to be superseded, but the role of the
Council is significantly altered and a role is provided for Indian
tribes, Native Hawaiian organizations and other consulting parties.
Section 800.5(a)
This section has been minimally changed except that it provides for
Indian tribe and Native Hawaiian organization consultation where
properties to which they attach religious and cultural significance are
involved. This section also requires the Agency Official to consider
the views of consulting parties and the public that have already been
provided to the Federal agency.
Section 800.5(a)(1)
This section has important changes from the regulations to be
superseded. It combines the effect criteria and adverse effect criteria
as defined in the regulation to be superseded. This section has also
been modified to codify the practice of the Council in considering both
direct and indirect effects in making an adverse effect determination.
This section allows for consideration of effects on the qualifying
characteristics of a historic property that may not have been part of
the property's original eligibility evaluation. The last sentence in
this section is intended to amplify the indirect effects concept,
similar to the NEPA regulations, which calls for consideration of such
effects when they are reasonably foreseeable effects.
Section 800.5(a)(2)(i)
This section contains the minor change of deleting the word
``alteration''. The alteration adverse effect concept is retained in
the next subsection.
Section 800.5(a)(2)(ii)
The list of examples of adverse effects has been modified by
eliminating the exceptions to the adverse effect criteria. However, if
a property is restored, rehabilitated, repaired, maintained,
stabilized, remediated or otherwise changed in accordance with the
Secretary's standards, then it will not be considered an adverse
effect.
Section 800.5(a)(2)(iii)
This subsection, along with Sec. 800.5(a)(2)(I), would encompass
recovery of archeological data as an adverse effect, even if conducted
in accordance with the Secretary's standards. This change from the
regulations to be superseded acknowledges the reality that destruction
of a site and recovery of its information and artifacts is adverse. It
is intended that by eliminating data recovery as an exception to the
adverse effect criteria, Federal agencies will be more inclined to
pursue other forms of mitigation, including avoidance and preservation
in place, to protect archeological sites. The Council is publishing for
comment concurrent with this regulation a proposal to deal with
recovery of archeological data as a standard treatment in accordance
with Sec. 800.14. It is the Council's intent to retain an expedited
format for resolution and reaching agreements where values other than
scientific research are not involved.
Section 800.5(a)(2)(iv)
This section was changed to more closely track the National
Register criteria regarding the relation of alterations to a property's
use or setting to the significance of the property.
[[Page 27065]]
Section 800.5(a)(2)(v)
This section was changed to more closely track the language of the
National Register criteria as it pertains to the property's integrity.
Section 800.5(a)(2)(vi)
This section was modified to acknowledge that where properties of
religious and cultural significance to Indian tribes or Native Hawaiian
organizations are involved, neglect and deterioration may be recognized
as qualities of those properties and thus may not necessarily
constitute an adverse effect.
Section 800.5(a)(2)(vii)
If a property is transferred leased or sold out of Federal
ownership with proper preservation restrictions, then it will not be
considered an adverse effect as in the regulations to be superseded.
Transfer between Federal agencies is not an adverse effect per se; the
purpose of the transfer should be evaluated for potential adverse
effects, so that they can be considered before the transfer takes
place.
Section 800.5(a)(3)
This section is intended to allow flexibility in Federal agency
decision making processes and to recognize that phasing of adverse
effect determinations, like identification and evaluation, is
appropriate in certain planning and approval circumstances, such as the
development of linear projects where major corridors are first assessed
and then specific route alignment decisions are made subsequently.
Section 800.5(b)
This section has been modified to allow SHPO/THPO's the ability to
suggest changes in a project or impose conditions so that adverse
effects can be avoided and thus result in a no adverse effect
determination. It is also written to emphasize that a finding of no
adverse effect is only a proposal when the Agency Official submits it
to the SHPO/THPO for review. This provision also acknowledges that the
practice of ``conditional No Adverse Effect determinations'' is
acceptable.
Section 800.5(c)
The Council will cease reviewing no adverse effect determinations
on a routine basis. The Council will intervene and review no adverse
effect determinations if it deems it appropriate based on the criteria
listed in appendix A or if the SHPO/THPO or another consulting party
and the Federal agency disagree on the finding and the agency cannot
resolve the disagreement. The SHPO/THPO and any consulting party
wishing to disagree to the finding must do so within the 30-day review
period. If Indian tribes or Native Hawaiian organizations disagree with
the finding, they can request the Council's review directly, but this
must be done within the 30 day review period. If a SHPO/THPO fails to
respond to an Agency Official finding within the 30 day review period,
then the Agency Official can consider that to be SHPO/THPO agreement
with the finding. When a finding is submitted to the Council, it will
have 15 days for review; if it fails to respond within the 15 days,
then the Agency Official may assume Council concurrence with the
finding. When it reviews no adverse effect determinations, the Council
will limit its review to whether or not the criteria have been
correctly applied. The Council's determination is binding.
Section 800.5(d)
Agencies must retain records of their findings of no adverse effect
and make them available to the public. This means that the public
should be given access to the information, subject to FOIA and other
statutory limits on disclosure such as section 304 of the NHPA, when
they so request. Failure of the agency to carry out the undertaking in
accordance with the finding requires the Agency Official to reopen the
Section 106 process and determine whether the altered course of action
constitutes an adverse effect. A finding of adverse effect requires
further consultation on ways to resolve it.
Section 800.6
The process for resolving adverse effects has been changed to
reflect the altered role of the Council and the consulting parties.
Section 800.6(a)(1)
When adverse effects are found, the consultation must continue
among the Federal agency, SHPO/THPO and consulting parties to attempt
to resolve them. The Agency Official must notify the Council when
adverse effects are found and should invite the Council to participate
in the consultation when the circumstances in Sec. 800.6(a)(1)(I) (A)-
(C) exist. A consulting party may also request the Council to join the
consultation. The Council will decide on its participation within 15
days of receipt of a request, basing its decision on the criteria set
forth in appendix A. Whenever the Council decides to join the
consultation, it must notify the Agency Official and the consulting
parties. It must also advise the head of the Federal agency of its
decision to participate. This is intended to keep the policy level of
the Federal agency apprised of those cases that the Council has
determined present issues significant enough to warrant its
involvement.
Section 800.6(a)(2)
This section allows for the entry of new consulting parties if the
agency and the SHPO/THPO (and the Council, if participating) agree. If
they do not agree, it is desirable for them to seek the Council's
opinion on the involvement of the consulting party. Any party,
including applicants, licensees or permittees, that may have
responsibilities under a Memorandum of Agreement must be invited to
participate as consulting parties in reaching the agreement.
Section 800.6(a)(3)
This section specifies the Agency Official's obligation to provide
project documentation to all consulting parties at the beginning of the
consultation to resolve adverse effects. Particular note should be made
of the reference to the confidentiality provisions.
Section 800.6(a)(4)
The Federal agency must provide an opportunity for members of the
public to express their views on an undertaking. The provision embodies
the principles of flexibility, relating the agency effort to various
aspects of the undertaking and its effects upon historic properties.
The Federal agency must provide them with notice such that the public
has enough time and information to meaningfully comment. If all
relevant information was provided at earlier stages in the process in
such a way that a wide audience was reached, and no new information is
available at this stage in the process that would assist in the
resolution of adverse effects, then a new public notice may not be
warranted. However, this presumes that the public had the opportunity
to make its views known on ways to resolve the adverse effects.
Section 800.6(a)(5)
Although it is in the interest of the public to have as much
information as possible in order to provide meaningful comments, this
section acknowledges that information may be withheld in accordance
with Section 304 of the NHPA. Particular attention is given to the
confidentiality concerns of Indian tribes and Native Hawaiian
organizations.
[[Page 27066]]
Section 800.6(b)
If the Council is not a part of the consultation, then a copy of
the Memorandum of Agreement must be sent to the Council so that the
Council can include it in its files to have an understanding of a
Federal agency's implementation of section 106. This does not provide
the Council an opportunity to reopen the specific case, but may form
the basis for other actions or advice related to an agency's overall
performance in the Section 106 process.
Section 800.6(b)(1)
When resolving adverse effects without the Council, the Agency
Official consults with the SHPO/THPO and other consulting parties to
develop a Memorandum of Agreement. If this is achieved, the agreement
is executed between the Agency Official and the SHPO/THPO and filed
with required documentation with the Council. This filing is the formal
conclusion of the Section 106 process and must occur before the
undertaking is approved. Standard treatments adopted by the Council may
set expedited ways for competing memoranda of agreement in certain
circumstances.
Section 800.6(b)(2)
When the Council is involved, the consultation proceeds in the same
manner, but the agreement of the Agency Official, the SHPO/THPO and the
Council is required for a Memorandum of Agreement.
Section 800.6(c)
This section details the provisions relating to Memoranda of
Agreement. This document evidences an agency's compliance with section
106 and the agency is obligated to follow its terms. Failure to do so
requires the Agency Official to reopen the Section 106 process and
bring it to suitable closure as prescribed in the regulations. The
reference to section 110(1) of the Act is intended to conform the
streamlining provisions of these regulations with current statutory
requirements, pending amendment of that section.
Section 800.6(c)(1)
This section sets forth the rights of signatories to an agreement
and identifies who is required to sign the agreement under specific
circumstances. The term ``signatory'' has a special meaning as
described in this section, which is the ability to terminate or agree
to amend the Memorandum of Agreement. The term does not include others
who sign the agreement as concurring parties.
Section 800.6(c)(2)
Certain parties may be invited to be signatories in addition to
those specified in Sec. 800.6(c)(1). They include individuals and
organizations that should, but do not have to, sign agreements. It is
particularly desirable to have parties who assume obligations under the
agreement become formal signatories. However, once invited signatories
sign MOAs, they have the same rights to terminate or amend the MOA as
the other signatories.
Section 800.6(c)(3)
Other parties may be invited to concur in agreements. They do not
have the rights to amend or terminate an MOA. Their signature simply
shows that they are familiar with the terms of the agreement and do not
object to it.
Sections 800.6(c)(4)-(9)
These sections set forth specific features of a Memorandum of
Agreement and the way it can be terminated or amended.
Section 800.7
This section specifies what happens when the consulting parties
cannot reach agreement. Usually when consultation is terminated, the
Council renders advisory comments to the head of the agency, which must
be considered when the final agency decision on the undertaking is
made.
Section 800.7(a)(1)
This section requires that the head of the agency or an Assistant
Secretary or officer with major department-wide or agency-wide
responsibilities must request Council comments when the Agency Official
terminates consultation. This requirement was added because section
110(1) of the NHPA requires heads of agencies to document their
decision when an agreement has not been reached under section 106. If
the agency head is responsible for documenting the decision, it is
appropriate that the same individual request the Council's comments.
Section 800.7(a)(2)
This section allows the Council and the Agency Official to conclude
the section 106 process with a Memorandum of Agreement between them if
the SHPO terminates consultation.
Section 800.7(a)(3)
If a THPO terminates consultation, there can be no agreement with
regard to undertakings that are on or affect properties on tribal lands
and the Council will issue formal comments. This provision respects the
tribe's unique sovereign status with regard to its lands.
Section 800.7(a)(4)
This section governs cases where the Council terminates
consultation. In that case, the Council has the duty to notify all
consulting parties prior to commenting. The role given to the Federal
Preservation Officer is new and is intended to fulfill the NHPA's goal
of having a central official in each agency to coordinate and
facilitate the agency's involvement in the national historic
preservation program.
Section 800.7(b)
This section allows the Council to provide advisory comments even
though it has signed a Memorandum of Agreement. It is intended to give
the Council the flexibility to provide comments even where it has
agreed to sign an MOA. Such comments might elaborate upon particular
matters or provide suggestions to Federal agencies for future
undertakings.
Section 800.7(c)
This section gives the Council 45 days to provide its comments to
the head of the agency for a response by the agency head. When
submitting its comments, the Council will also provide the comments to
the Federal Preservation Officer, among others, for information
purposes.
Section 800.7(c)(4)
This section specifies what it means to ``document the agency
head's decision'' as required by section 110(1) when the Council issues
its comment to the agency head.
Section 800.8
This major new section guides how Federal agencies can coordinate
the section 106 process with NEPA compliance. It is intended to allow
compliance with section 106 to be incorporated into the NEPA
documentation process while preserving the legal requirements of each
statute.
Section 800.8(a)(1)
This section encourage agencies to coordinate NEPA and section 106
compliance early in the planning process. It emphasizes that impacts on
historic properties should be considered when an agency makes
evaluations of its NEPA obligations, but makes clear that an adverse
effect finding does not automatically trigger preparation of an EIS.
[[Page 27067]]
Section 800.8(a)(2)
This section encourages consulting parties in the section 106
process to be prepared to consult with the Agency Official early in the
NEPA process.
Section 800.8(a)(3)
This section encourages agencies to include historic preservation
issues in the development of various NEPA assessments and documents.
This is essential for effective coordination between the two processes.
It is intended to discourage agencies from postponing consideration of
historic properties under NEPA until later initiation of the section
106 process.
Section 800.8(b)
this section notes that a project, activity or program that falls
within a NEPA categorical exclusion may still require section 106
review. An exclusion from NEPA does not necessarily mean that section
106 does not apply.
Section 800.8(c)
This section offers Federal agencies an opportunity for major
procedural streamlining when NEPA and section 106 both apply to a
project. It allows the agency, when specific standards are met, to
substitute preparation of an EA or an EIS for the specific steps of the
Section 106 process set out in these regulations.
Section 800.8(c)(1)
This section lists the standards that must be adhered to when
developing NEPA documents that are intended to incorporate 106
compliance. They are intended to ensure that the objectives of the
section 106 process are being met even though the specific steps of the
process are not being followed.
Section 800.8(c)(2)
This section provides for Council and consulting party review of
the agency's environmental document within NEPA's public comment review
time frame. Consulting parties and the Council may object prior to or
within this time frame to adequacy of the document.
Section 800.8(c)(3)
If there is an objection to the NEPA document, the Council has 30
days to state whether or not it agrees with the objection. If the
Council agrees with the objection, the Agency Official must complete
the Section 106 process through development of a Memorandum of
Agreement or obtaining formal Council comment (Sec. 800.6-7). If it
does not, then the Agency Official can complete its review under
Sec. 800.8.
Section 800.8(c)(4)
This subsection explains how Agency Officials using NEPA
coordination must finalize their section 106 compliance for those cases
where an adverse effect is found. The FONSI or ROD, as appropriate must
document the proposed mitigation measures. In addition, a binding
commitment with the proposed measures must be adopted. In the case of a
FONSI, the binding commitment must be in the form of an MOA, drafted in
accordance with Sec. 800.6(c). Although the regulations do not send
Agency Officials back to Sec. 800.6(b) (regarding consultation towards
an MOA), Agency Officials are reminded of the standards they must still
follow under Sec. 800.8(c)(1), and specifically the mitigation
measures' consultation under Sec. 800.8(c)(1)(v). In the case of an
EIS, although a Memorandum of Agreement under Sec. 800.6(c) is not
required, an appropriate binding commitment must still be adopted.
Finally, the subsection also clarifies the Agency Official's obligation
to ensure that its approval of the undertaking is conditioned
accordingly.
Section 800.8(c)(5)
This section requires Federal agencies to supplement their NEPA
documents or abide by Secs. 800.3 through 800.6 in the event of a
change in the proposed undertaking that alters the undertaking's impact
on historic properties.
Section 800.9
This section delineates the methods the Council will use to oversee
the operation of the section 106 process. The Council draws upon its
general advisory powers and specific provisions of the NHPA to conduct
these actions.
Section 800.9(a)
This section emphasizes the right of the Council to provide advice
at any time in the process on matters related to the section 106
process. Federal agencies should consider the Council's views, but need
not adhere to them, unless specifically provided for in the regulation.
Section 800.9(b)
A foreclosure means that an agency has gone forward with an
undertaking to such an extent that the Council can not provide
meaningful comments. A finding of foreclosure by the Council means that
the Council has determined that the Federal agency has not fulfilled
its section 106 responsibilities with regard to the undertaking. Such a
finding does not trigger any specific action, but represents the
opinion of the Council as the agency charged by statute with issuing
the regulations that implement section 106.
Section 800.9(c)
This section reiterates the requirements of section 110(k) of the
Act added in 1992. It also provides a process by which the Council will
comment if the Federal agency decides that circumstances may justify
granting the assistance. If after considering the comments, the Federal
agency does decide to grant the assistance, then the Federal agency
must comply with section 106 for any historic properties that still may
be affected. This does not require duplication of consultation that may
have already taken place with the Council in the course of addressing
110(k), but is intended to ensure that the agency has meaningful
consultation with the Council as to mitigating adverse effects if the
agency decides to proceed with approving the undertaking.
Section 800.9(d)
As the Council reduces its involvement in routine cases it will be
focusing its efforts more and more on agency programs and overall
compliance with the section 106 process. The NHPA authorizes the
Council to obtain information from Federal agencies and make
recommendations on improving operation of the section 106 process. If
the Council finds that an agency or a SHPO/THPO has not carried out its
section 106 responsibilities properly, it may enter the section 106
process on an individual case basis to make improvement. The Council
may also review agency operations and performance and make specific
recommendations for improvement under section 202(a)(6) of the Act.
Section 800.10
This section provides a process for how Federal agencies must
afford the Council a reasonable opportunity to comment on historic
landmarks. It is largely unchanged from the process under the
regulations to be superseded.
Section 800.11
This section sets forth the requirements for documentation at
various steps in the section 106 process. It has been amended to make
documentation requirements clearer and to promote agency use of
documentation prepared for other planning requirements.
[[Page 27068]]
Section 800.11(a)
The section allows for the phasing of documentation requirements
when an agency is conducting phased identification and evaluation. The
Council can advise on the resolution of disputes over adherence to
documentation standards. However, the ultimate responsibility for the
compiling adequate documentation rests with the agency. During the
consideration of any disputes over documentation, the process is not
formally suspended. However, agencies should resolve significant
disputes before going forward too far in the Section 106 process in
order to avoid subsequent delays.
Section 800.11(b)
This section was added primarily to allow for the use of documents
prepared for NEPA or other agency planning processes to fulfill this
provision as long as those documents meet the standards in this
section.
Section 800.11(c)
This section is intended to protect the rights of private property
owners with regard to proprietary information, and Indian tribes and
Native Hawaiian organizations with regard to properties to which they
attach religious and cultural significance. This section emphasizes
that the regulations are subject to any other Federal statutes which
protect certain kinds of information from full public disclosure. The
role of the Secretary and the process of consultation with the Council
are based on the statutory requirements of section 304 of the Act.
Section 800.11(d)-(f)
These sections specify the documentation standards for various
findings or actions in the section 106 process. They are incrementally
more detailed as the historic preservation issues become more
substantial or complex. Each is intended to provide basic information
so that a third-party reviewer can understand the basis for an agency's
finding or proposed decision.
Section 800.12
This section on emergency situations contains some minor changes
from the process under the regulations to be superseded, but generally
follows the existing approach.
Section 800.12(a)
This section encourages Federal agencies to develop procedures
describing how the Federal agency will take into account historic
properties during certain emergency operations, including imminent
threats to life or property. The nature of the consultation required in
developing such procedures will vary, depending upon the extent of
actions covered by the procedures. The procedures must be approved by
the Council if they are to substitute for Subpart B.
Section 800.12(b)
If there are no agency procedures for taking historic properties
into account during emergencies, then the Federal agency may either
follow a previously-developed Programmatic Agreement or notify the
Council, SHPO/THPO and, where appropriate, an Indian tribe or native
Hawaiian organization concerned with potentially affected resources. If
possible, the Federal agency should provide these parties 7 days to
comment.
Section 800.12(c)
This section permits a local government that has assumed section
106 responsibilities to use the provisions of Sec. 800.12(a) and (b).
However, if the Council or an SHPO/THPO objects, the local government
must follow the normal section 106 process.
Section 800.12(d)
A Federal agency may use the provisions in Sec. 800.12 only for 30
days after an emergency or disaster has been declared, unless an
extension is sought.
Section 800.13
This section follows closely the process under the regulations to
be superseded for dealing with resources discovered after Section 106
review has been completed.
Section 800.13(a)
This section emphasizes the utility of developing Programmatic
Agreements to deal with discoveries of historic properties which may
occur during implementation of an undertaking. If there is no
Programmatic Agreement to deal with discoveries, and the Agency
Official determines that other historic properties are likely to be
discovered, then a plan for how discoveries will be addressed must be
included in a no adverse effect finding or a Memorandum of Agreement.
Section 800.13(b)(1)
This section states the procedures that must be followed when
construction has not yet occurred or an undertaking has not yet been
approved. Because a Federal agency has more flexibility at this stage,
adherence to the consultative process as set forth in Sec. 800.6 is
appropriate.
Section 800.13(b)(2)
This section provides that where an archeological site has been
discovered and where the Agency Official, SHPO/THPO and any appropriate
Indian tribe or Native Hawaiian organization agree that it is of value
solely for the data that it contains, the Agency Official can comply
with the Archeological and Historic Preservation Act instead of the
procedures in this subpart.
Section 800.13(b)(3)
This section sets forth the procedures that must be followed when
the undertaking has been approved and construction has commenced.
Development of actions to resolve adverse effects and notification to
the SHPO/THPO and the council within 48 hours of the discovery are
required. Comments from those parties are encouraged and the agency
must report the actions it ended up taking to deal with the discovery.
Section 800.13(c)
This section allows an agency to make an expedited field judgment
regarding eligibility of properties discover during construction.
Section 800.13(d)
This new section requires an agency to comply with tribal
procedures when a discovery is on tribal land and obtain concurrence of
the tribe, unless it has previously developed a process under
Sec. 800.13(a).
Subpart C--Program Alternatives
Section 800.14
This section lays out a variety of alternative methods for Federal
agencies to meet their Section 106 obligations. While some are based on
existing techniques in the regulations to be superseded, a number are
newly-introduced to allow agencies to tailor the Section 106 process to
their needs.
Section 800.14(a)
Alternate procedures are a major streamlining measure that allows
tailoring of the Section 106 process to Agency programs and
decisionmaking processes. The procedures would substitute in whole or
in part for the Council's section 106 regulations. As procedures, they
would include formal Agency regulations, but would also include
departmental or Agency procedures that do not go through the formal
rulemaking process. Procedures must be developed in consultation with
various parties as set forth in the
[[Page 27069]]
regulations. The public must have an opportunity to comment on
Alternate procedures. If the Council determines that they are
consistent with its regulations, the alternate procedures may
substitute for the Council's regulations. In reviewing alternate
procedures for consistency, the Council will not require detailed
adherence to every specific step of the process found under the
Council's regulations. The Council, however, will look for procedures
that afford historic properties consideration equivalent to that
afforded by the Council's regulations and that meet the requirements of
section 110(a)(2)(E) of the Act. If an Indian tribe has substituted its
procedures for the Council's regulations pursuant to section 101(d)(5)
of the NHPA, then the Federal agency must follow the tribe's substitute
regulations for undertakings on tribal lands.
Section 800.14(b)
This section is intended to retain the concept of Programmatic
Agreements as in the regulations to be superseded, but to add more
clarity about their use and the processes for creating them. The
circumstances under which a Programmatic Agreement is appropriate are
specified. The section places Programmatic Agreements into two general
categories: Those covering agency programs and those covering complex
or multiple undertakings. The section on Agency programs makes clear
that the President of NCSHPO must sign a nationwide agreement when
NCSHPO has participated in the consultation. If a Programmatic
Agreement concerns a particular region, then the signature of the
affected SHPSs/THPOs is required. An individual SHPO/THPO can terminate
its participation in a regional Programmatic Agreement, but the
agreement will remain in effect for the other states in the region.
Only NCSHPO can terminate a nationwide Programmatic Agreement on behalf
of the individual SHPOs. Language is included to recognize tribal
sovereignty while providing flexibility to Federal agencies and tribes
when developing Programmatic Agreements. While it does not prohibit the
other parties from executing a Programmatic Agreement, the language
does limit the effect of the agreement to non-tribal lands unless the
tribe executes it. However, the language also authorizes multiple
Indian tribes to designate a representative tribe or tribal
organization to participate in consultation and sign a Programmatic
Agreement on their behalf. Requirements for public involvement and
notice are included. The section on complex or multiple undertakings
ties back to Sec. 800.6 for the process of creating such programmatic
agreements.
Section 800.14(c)
Exemptions are intended to remove from section 106 compliance those
undertakings that have foreseeable effects on historic properties which
are likely to be minimal. Section 214 of the NPHA gives the Council the
authority to allow for such exemptions. This section sets forth the
criteria, drawn from the statute, for exemptions and a process for
obtaining (and terminating) an exemption.
Section 800.14(d)
Standard treatments provide a streamlined process by which the
Council can establish certain acceptable practices for dealing with a
category of undertakings, effects, historic properties, or treatment
options. A standard treatment may modify the application of the normal
Section 106 process under certain circumstances or simplify the steps
or requirements of the regulations. This section sets forth the process
for establishing a standard treatment and terminating it.
Section 800.14(e)
Program comments are intended to give the Council the flexibility
to issue comments on a Federal program or class of undertakings rather
than comment on such undertakings on a case-by-case basis. This section
sets forth the process for issuing such comments and withdrawing them.
The Federal agency is obligated to consider, but not necessarily
follow, the Council's comments. If it does not, the Council may
withdraw the comment, in which case the agency continues to comply with
section 106 on a case-by-case basis.
Section 800.14(f)
The requirement for consultation program alternatives with Indian
tribes and Native Hawaiian organizations is provided for in this
section. It is an overlay on each of the Federal program alternatives
set forth in Secs. 800.14(a)-(e). It provides for government-to-
government consultation with Indian tribes. The Council and the Federal
agency will consider the views of the Indian tribes and Native Hawaiian
organizations in making a decision on a program alternative.
Section 800.15. Tribal, State and Local Program Alternatives
This section is presently reserved for future use. The Council will
proceed with the review of tribal applications for substitution of
tribal regulations for the Council's section 106 regulations on tribal
lands, pursuant to section 101(d)(5) of the Act, on the basis of
informal procedures. With regard to State agreements, the Council will
keep in effect any currently valid State agreements until revised
procedures for State agreements take effect or until the agreement is
otherwise terminated.
Section 800.16 Definitions
This section includes new definitions to respond to identified
needs for clarification and to reflect statutory amendments.
The definition of ``Agency'' was added for ease of reference. It
tracks the statutory definition in the NHPA.
The definition of ``approval of the expenditure of funds'' was
added to clarify the intent of this statutory language as it appears in
section 106 of the NHPA. This definition addresses the timing of
section 106 compliance. A Federal agency must take into account the
effects of its actions and provide the Council a reasonable opportunity
to comment before the Agency decides to authorize funds, not just
before the release of those funds. The intent of this provision is to
emphasize the necessitate for compliance with section 106 early in the
decision making process.
The definition of ``area of potential effects'' has been clarified
by adding the second sentence which acknowledges that the determination
of the area potential effects is often subjective and depends on the
nature and scale of the undertaking and the associated effects.
The definition of ``comment'' was added to make it clear that the
term referred to the formal comments of the Council members.
The definition of ``consultation'' was added to describe the nature
and goals of this critical aspect of the section 106 review process.
``Day'' was added to clarify the running of time periods.
``Effect'' was added to the definition section. Even though the
``no effect'' step has been eliminated in the final rule, the concept
of an undertaking's effect is still a part of the ``historic properties
affected'' determination.
``Foreclosure'' is a term that has always been a part of the
section 106 process, but has not been defined in the regulations. The
terms was added to the definition section to describe the finding that
is made by the Council when an Agency action precludes the Council from
its reasonable opportunity to comment on an undertaking.
``Head of the Agency'' was added in light of the 1992 amendments in
section 110(1) that require that the head of an
[[Page 27070]]
Agency document decisions where a Memorandum of Agreement has not been
reached for an undertaking.
``Historic property'' has been expanded to include properties of
traditional religious and cultural importance in accordance with
section 101(d)(6)(A) of the NHPA as amended in 1992.
``Indian tribe'' has been redefined exactly as in section 301(4) of
the statute.
``Native Hawaiian organization'' is defined exactly as in section
301(17) of the statute.
``Tribal Historic Preservation Officer'' is intended to include the
tribal official who has formally assumed the SHPO's responsibilities.
It also includes, for ease of reference, the designated representative
of a tribe that has not assumed SHPO responsibilities when an
undertaking occurs on or affects historic properties on its tribal
lands; this inclusive interpretation of THPO was added so that it would
be clear that whenever an Agency undertaking is on or affects historic
properties on tribal lands, the tribe's approval and signature on an
agreement is required, unless they specifically waive their rights.
``Tribal lands'' is defined exactly as in section 301(14) of the
statute.
``Undertaking'' is defined exactly as in section 301(7) of the
statute. The Agency Official is responsible, in accordance with
Sec. 800.3(a), for making the determination as to whether a proposed
Federal action is an undertaking. As appropriate, an agency should
examine the nature of its Federal involvement taking into consideration
factors such as the degree of Federal agency control or discretion; the
type of Federal involvement or link to the action; and whether or not
the action could move forward without Federal involvement. An agency
should seek the advice of the Council when uncertain about whether or
not its action falls within the definition of an undertaking. The pre-
existing regulatory definition of undertaking included new and
continuing projects, activities, or programs and any of their elements
not previously considered under section 106. It is intended that the
new definition includes such aspects of a project, activity, or program
as undertakings.
Appendix A. Criteria for Council Involvement in Reviewing Individual
Section 106 Cases
This appendix sets forth the criteria that will guide Council
decisions to enter certain section 106 cases, as provided in the new
regulations. As Sec. 800.2(b)(1) states, the Council will document that
the criteria have been met and notify the parties to the section 106
process as process as required. Council involvement in section 106
cases is not automatic once a criterion has been met. The Council
retains discretion as to whether or not to enter such a case. Likewise,
it is not essential that all criteria be met. The point of the criteria
is to ensure that the Council has made a thoughtful decision to enter
the section 106 process and to give agencies, SHPOs/THPOs and other
section 106 participants a clear understanding of the kind of cases
that warrant Council involvement.
VIII. Impact Analysis
The Regulatory Flexibility Act
The Council certifies that the final rule will not have a
significant economic impact on a substantial number of small entities.
Although some comment on the rule as proposed questioned the validity
of such certification, the rule in its proposed and final versions
imposes mandatory responsibilities on only Federal agencies. As set
forth in section 106 of the NHPA, the duties to take into account the
effect of an undertaking on historic resources and to afford the
Council a reasonable opportunity to comment on that undertaking are
Federal agency duties. Indirect effects on small entities, if any,
created in the course of a Federal agency's compliance with section 106
of the NHPA, must be considered and evaluated by that Federal agency.
The Paperwork Reduction Act
The final regulations do not impose reporting or recordkeeping
requirements or the collection of information as defined in the
Paperwork Reduction Act.
The National Environmental Policy Act
In accordance with 36 CFR part 805, the Council initiated the NEPA
compliance process for the Council's regulations implementing section
106 of the NHPA prior to publication of the draft regulations in the
Federal Register on September 13, 1996. On August 12, 1997, through a
notice of availability on the Federal Register, the Council sought
public comment on its Environmental Assessment and preliminary Finding
of No Significant Impact. The Council has considered such comments, and
has confirmed its finding of no significant impact on the human
environment. A notice of availability of the Environmental Assessment
and Finding of No Significant Impact has been published on the Federal
Register.
Executive Orders 12866 and 12875
The Council is exempt from compliance with Executive Order 12866
pursuant to implementing guidance issued by the Office of Management
and Budget's Office of Information and Regulatory Affairs in a
memorandum dated October 12, 1993. The Council also is exempt from the
documentation requirements of Executive Order 12875 pursuant to
implementing guidance issued by the same OMB office in a memorandum
dated January 11, 1994. Although exempt, the Council has adhered to the
principles in both orders by involving and consulting with State,
local, and tribal entities, members of the public, and industry groups
in the development of these regulations and throughout the rulemaking
process, as discussed above in the Background section. The regulations
to not mandate State, local, or tribal governments to participate in
the Section 106 process. Instead, State, local, and tribal governments
may decline to participate. State Historic Preservation Officers do
advise and assist Federal agencies, as appropriate, as part of their
duties under section 101(b)(3)(E) of the NHPA, as a condition of their
Federal grant assistance. In addition, in accordance with Executive
Order 12875, the regulations include several flexible approaches to
consideration of historic properties in Federal agency decision making.
The regulations promote flexibility and cost effective compliance by
providing for alternate procedures, categorical exemptions, standard
treatments, program comments, and programmatic agreements.
The Unfunded Mandates Reform Act of 1995
The final regulations implementing section 106 of the NHPA do not
impose annual costs of $100 million or more, will not significantly or
uniquely affect small governments, and are not a significant Federal
intergovernmental mandate. The Council thus has no obligations under
sections 202, 203, 204 and 205 of the Unfunded Mandates Reform Act.
Executive Order 12898
The final regulations implementing section 106 of the NHPA do not
cause adverse human health or environmental effects, but, instead, seek
to avoid adverse effects on historic properties throughout the United
States. The participation and consultation process established by these
regulations seeks to ensure public participation--including by minority
and low-income populations and communities--by those
[[Page 27071]]
whose cultural heritage, or whose interest in historic properties, may
be affected by proposed Federal undertakings. The section 106 process
is a means of access for minority and low-income populations to
participate in Federal decisions or actions that may affect such
resources as historically significant neighborhoods, buildings, and
traditional cultural properties. The Council considers environmental
justice issues in reviewing analysis of alternatives and mitigation
options particularly when section 106 compliance is coordinated with
NEPA compliance. Guidance and training is being developed to assist
public understanding and use of these regulations.
Memorandum Concerning Government-to-Government Relations With Native
American Tribal Governments
The Council has fully complied with this Memorandum. A Native
American representative served on the Council and was a member of the
Council's Regulations Task Force. The 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.
Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The council will submit a report containing this rule
and other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2). This rule will be
effective June 17, 1999.
List of Subjects in 36 CFR Part 800
Administrative practice and procedure, Historic preservation,
Indians, Inter-governmental relations.
For the reasons discussed in the preamble, the Advisory Council on
Historic Preservation amends Title 36, Chapter VIII by revising part
800 to read as follows:
PART 800--PROTECTION OF HISTORIC PROPERTIES
Subpart A--Purposes and Participants
Sec.
800.1 Purposes.
800.2 Participants in the section 106 process.
Subpart B--The Section 106 Process
800.3. Initiation of the section 106 process.
800.4. Identification of historic properties.
800.5 Assessment of adverse effects.
800.6 Resolution of adverse effects.
800.7 Failure to resolve adverse effects.
800.8 Coordination with the National Environmental Policy Act.
800.9 Council review of section 106 compliance.
800.10 Special requirements for protecting National Historic
Landmarks.
800.11 Documentation standards.
800.12 Emergency situations.
800.13 Post-review discoveries.
Subpart C--Program Alternatives
800.14 Federal agency program alternatives.
800.15 Tribal, State and Local Program Alternatives. [Reserved]
800.16 Definitions.
Appendix A--Criteria for Council Involvement in Reviewing Individual
Section 106 Cases
Authority: 16 U.S.C. 470s.
Subpart A--Purposes and Participants
Sec. 800.1 Purposes.
(a) Purposes of the section 106 process. Section 106 of the
National Historic Preservation Act 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. The procedures in this part define how Federal agencies
meet these statutory responsibilities. The section 106 process seeks to
accommodate historic preservation concerns with the needs of Federal
undertakings through consultation among the Agency Official and other
parties with an interest in the effects of the undertaking on historic
properties, commencing at the early stages of project planning. The
goal of consultation is to identify historic properties potentially
affected by the undertaking, assess its effects and seek ways to avoid,
minimize or mitigate any adverse effects on historic properties.
(b) Relation to other provisions of the Act. Section 106 is related
to other provisions of the Act designed to further the national policy
of historic preservation. References to those provisions are included
in this part of identify circumstances where they may affect actions
taken to meet section 106 requirements. Such provisions may have their
own implementing regulations or guidelines and are not intended to be
implemented by the procedures in this part except insofar as they
relate to the section 106 process. Guidelines, policies and procedures
issued by other agencies, including the Secretary, have been cited in
this part for ease of access and are not incorporated by reference.
(c) Timing. The Agency Official must 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.'' This does
not prohibit Agency Official from conducting or authorizing
nondestructive project planning activities before completing compliance
with Section 106, provided that such actions do not restrict the
subsequent consideration of alternatives to avoid, minimize or mitigate
the undertaking's adverse effects on historic properties. The Agency
Official shall ensure that the section 106 process is initiated early
in the undertaking's planning, so that a broad range of alternatives
may be considered during the planning process for the undertaking.
Sec. 800.2 Participants in section 106 process.
(a) Agency Official. It is the statutory obligation of the Federal
agency to fulfill the requirements of section 106 and to ensure that an
Agency Official with jurisdiction over an undertaking takes legal and
financial responsibility for section 106 compliance in accordance with
subpart B of this part. The Agency Official has approval authority for
the undertaking and can commit the Federal agency to take appropriate
action for a specific undertaking as a result of section 106
compliance. For the purposes of subpart C of this part, the Agency
Official has the authority to commit the Federal agency to any
obligation it may assume in the implementation of a program
alternative. The Agency Official may be a State, local, or tribal
government official who has been delegated legal responsibility for
compliance with section 106 in accordance with Federal law.
(1) Professional standards. Section 112(a)(1)(A) of the Act
requires each Federal agency responsible for the protection of historic
resources, including archeological resources, to ensure that all
actions taken by employees or contractors of the agency shall meet
professional standards under regulations developed by the Secretary.
(2) Lead Federal agency. If more than one Federal agency is
involved in an undertaking, some or all the agencies may designate a
lead Federal agency,
[[Page 27072]]
which shall identify the appropriate official to serve as the Agency
Official who shall act on their behalf, fulfilling their collective
responsibilities under section 106. Those Federal agencies that do not
designate a lead Federal agency remain individually responsible for
their compliance with this part.
(3) Use of contractors. Consistent with applicable conflict of
interest laws, the Agency Official may use the services of applicants,
consultants, or designees to prepare information, analyses and
recommendations under this part. The Agency Official remains legally
responsible for all required findings and determinations. If a document
or study is prepared by a non-Federal party, the Agency Official is
responsible for ensuring that its content meets applicable standards
and guidelines.
(4) Consultation. The Agency Official shall involve the consulting
parties described in Sec. 800.2(c) in findings and determinations made
during the section 106 process. The Agency Official should plan
consultations appropriate to the scale of the undertaking and the scope
of Federal involvement and coordinated with other requirements of other
statutes, as applicable, such as 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. The Council encourages
the Agency Official to use to the extent possible existing agency
procedures and mechanisms to fulfill the consultation requirements of
this part.
(b) Council. The Council issues regulations to implement section
106, provides guidance and advice on the application of the procedures
in this part, and generally oversees the operation of the section 106
process. The Council also consults with and comments to Agency
Officials on individual undertakings and programs that affect historic
properties.
(1) Council entry into the section 106 process. When the Council
determines that its involvement is necessary to ensure that the
purposes of section 106 and the Act are met, the Council may enter the
section 106 process. Criteria guiding Council decisions to enter the
section 106 process are found in appendix A to this part. The Council
will document that the criteria have been met and notify the parties to
the section 106 process as required by this part.
(2) Council assistance. Participants in the section 106 process may
seek advice, guidance and assistance from the Council on the
application of this part to specific undertakings, including the
resolution of disagreements, whether or not the Council is formally
involved in the review of the undertaking. If questions arise regarding
the conduct of the section 106 process, participants are encouraged to
obtain the Council's advice on completing the process.
(c) Consulting parties. The following parties have consultative
roles in the section 106 process.
(1) State Historic Preservation Officer. (i) The State Historic
Preservation Officer (SHPO) reflects the interests of the State and its
citizens in the preservation of their cultural heritage. In accordance
with section 101(b)(3) of the Act, the SHPO advises and assists Federal
agencies in carrying out their section 106 responsibilities.
(ii) If an Indian tribe has assumed the functions of the SHPO in
the section 106 process for undertakings on tribal lands, the SHPO
shall participate as a consulting party if the undertaking takes place
on tribal lands but affects historic properties off tribal lands, if
requested in accordance with Sec. 800.3(c)(1), or if the Indian tribe
agrees to include the SHPO pursuant to Sec. 800.3(f)(3).
(2) Tribal Historic Preservation Officer. (i) The Tribal Historic
Preservation Officer (THPO) appointed or designated in accordance with
the Act is the official representative of an Indian tribe for the
purposes of section 106. If an Indian tribe has assumed the
responsibilities of the SHPO for section 106 on tribal lands under
section 101(d)(2) of the Act, the Agency Official shall consult with
the THPO in lieu of the SHPO regarding undertakings occurring on or
affecting historic properties on tribal lands.
(ii) If an Indian tribe has not assumed the responsibilities of the
SHPO for section 106 on tribal lands under section 101(d)(2) of the
Act, the Agency Official shall consult with a representative designated
by such Indian tribe in addition to the SHPO regarding undertakings
occurring on or affecting historic properties on its tribal lands. For
the purposes of subpart B of this part, such tribal representative
shall be included in the term ``THPO.''
(3) Indian tribes and Native Hawaiian organizations. 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. Such Indian tribe or Native Hawaiian
organization shall be a consulting party.
(i) The Agency Official shall ensure that consultation in the
section 106 process provides the Indian tribe or Native Hawaiian
organization a reasonable opportunity to identify its concerns about
historic properties, advise on the identification and evaluation of
historic properties, including those of traditional religious and
cultural importance, articulate its views on the undertaking's effects
on such properties, and participate in the resolution of adverse
effects. It is the responsibility of the Agency Official to make a
reasonable and good faith effort to identify Indian tribes and Native
Hawaiian organizations that shall be consulted in the section 106
process. Consultation should commence early in the planning process, in
order to identify and discuss relevant preservation issues and resolve
concerns about the confidentiality of information on historic
properties.
(ii) The Federal government has a unique legal relationship with
Indian tribes set forth in the Constitution of the United States,
treaties, statutes, and court decisions. Consultation with Indian
tribes should be conducted in a sensitive manner respectful of tribal
sovereignty. Nothing in this part is intended to alter, amend, repeal,
interpret or modify tribal sovereignty, any treaty rights, or other
rights of an Indian tribe, or to preempt, modify or limit the exercise
of any such rights.
(iii) Consultation with an Indian tribe must recognize the
government-to-government relationship between the Federal government
and Indian tribes. The Agency Official shall consult with
representatives designated or identified by the tribal government or
the governing body of a Native Hawaiian organization. Consultation with
Indian tribes and Native Hawaiian organizations should be conducted in
a manner sensitive to the concerns and needs of the Indian tribe or
Native Hawaiian organization.
(iv) When Indian tribes and Native Hawaiian organizations attach
religious and cultural significance to historic properties off tribal
lands, section 101(d)(6)(B) of the Act requires Federal agencies to
consult with such Indian tribes and Native Hawaiian organizations in
the section 106 process. Federal agencies should be aware that
frequently historic properties of religious and cultural significance
are located on ancestral, aboriginal or ceded lands of Indian tribes
and Native Hawaiian organizations and should consider that when
complying with the procedures in this part.
(v) An Indian tribe or a Native Hawaiian organization may enter
into an agreement with an Agency Official that specifies how they will
carry out
[[Page 27073]]
responsibilities under this part, including concerns over the
confidentiality of information. An agreement may cover all aspects of
tribal participation in the section 106 process, provided that no
modification may be made in the roles of other parties to the section
106 process without their consent. An agreement may grant the Indian
tribe or Native Hawaiian organization additional rights to participate
or concur in agency decisions in the section 106 process beyond those
specified in subpart B of this part. The Agency Official shall provide
a copy of any such agreement to the Council and the appropriate SHPOs.
(vi) An Indian tribe that has not assumed the responsibilities of
the SHPO for section 106 on tribal lands under section 101(d)(2) of the
Act may notify the Agency Official in writing that it is waiving its
rights under Sec. 800.6(c)(1) to execute a Memorandum of Agreement.
(4) Representatives of local governments. A representative of a
local government with jurisdiction over the area in which the effects
of an undertaking may occur is entitled to participate as a consulting
party. Under other provisions of Federal law, the local government may
be authorized to act as the Agency Official for purposes of section
106.
(5) Applicants for Federal assistance, permits, licenses and other
approvals. An applicant for Federal assistance or for a Federal permit,
license or other approval is entitled to participate as a consulting
party as defined in this part. The Agency Official may authorize an
applicant to initiate consultation with the SHPO/THPO and others, but
remains legally responsible for all findings and determinations charged
to the Agency Official. The Agency Official shall notify the SHPO/THPO
and other consulting parties when an applicant is so authorized.
(6) Additional consulting parties. Certain individuals and
organizations with a demonstrated interest in the undertaking may
participate as consulting parties due to the nature of their legal or
economic relation to the undertaking or affected properties, or their
concern with the undertaking's effects on historic properties.
(d) The public.--(1) Nature of involvement. The views of the public
are essential to informed Federal decisionmaking in the section 106
process. The Agency Official shall seek and consider the views of the
public in a manner that reflects the nature and complexity of the
undertaking and its effects on historic properties, the likely interest
of the public in the effects on historic properties, confidentiality
concerns of private individuals and businesses, and the relationship of
the Federal involvement to the undertaking.
(2) Providing notice and information. The Agency Official must,
except where appropriate to protect confidentiality concerns of
affected parties, provide the public with information about an
undertaking and its effects on historic properties and seek public
comment and input. Members of the public may also provide views on
their own initiative for the Agency Official to consider in
decisionmaking.
(3) Use of agency procedures. The Agency Official may use the
agency's procedures for public involvement under the National
Environmental Policy Act or other program requirements in lieu of
public involvement requirements in subpart B of this part, if they
provide adequate opportunities for public involvement consistent with
this subpart.
Subpart B--The Section 106 Process
Sec. 800.3 Initiation of the section 106 process.
(a) Establish undertaking. The Agency Official shall determine
whether the proposed Federal action is an undertaking as defined in
Sec. 800.16(y) and, if so, whether it is a type of activity that has
the potential to cause effects on historic properties.
(1) No potential to cause effects. If the undertaking does not have
the potential to cause effects on historic properties, the Agency
Official has no further obligations under section 106 or this part.
(2) Program alternatives. If the review of the undertaking is
governed by a Federal agency program alternative established under
Sec. 800.14 or a Programmatic Agreement in existence before the
effective date of these regulations, the Agency Official shall follow
the program alternative.
(b) Coordinate with other reviews. The Agency Official should
coordinate the steps of the section 106 process, as appropriate, with
the overall planning schedule for the undertaking and with any reviews
required under other authorities such as the National Environmental
Policy Act, the Native American Graves Protection and Repatriation Act,
the American Indian Religious Freedom Act, the Archaeological Resources
Protection Act and agency-specific legislation, such as section 4(f) of
the Department of Transportation Act. Where consistent with the
procedures in this subpart, the Agency Official may use information
developed for other reviews under Federal, State or tribal law to meet
the requirements of section 106.
(c) Identify the appropriate SHPO and/or THPO. As part of its
initial planning, the Agency Official shall determine the appropriate
SHPO or SHPOs to be involved in the section 106 process. The Agency
Official shall also determine whether the undertaking may occur on or
affect historic properties on any tribal lands and, if so, whether a
THPO has assumed the duties of the SHPO. The Agency Official shall then
initiate consultation with the appropriate Officer or Officers.
(1) Tribal assumption of SHPO responsibilities. Where an Indian
tribe has assumed the section 106 responsibilities of the SHPO on
tribal lands pursuant to section 101(d)(2) of the Act, consultation for
undertakings occurring on tribal land or for effects on tribal land is
with the THPO for the Indian tribe in lieu of the SHPO. Section
101(d)(2)(D)(iii) of the Act authorizes owners of properties on tribal
lands which are neither owned by a member of the tribe nor held in
trust by the Secretary for the benefit of the tribe to request the SHPO
to participate in the section 106 process in addition to the THPO.
(2) Undertakings involving more than one State. If more than one
State is involved in an undertaking, the involved SHPOs may agree to
designate a lead SHPO to act on their behalf in the section 106
process, including taking actions that would conclude the section 106
process under this subpart.
(3) Conducting consultation. The Agency Official should consult
with the SHPO/THPO in a manner appropriate to the agency planning
process for the undertaking and to the nature of the undertaking and
its effects on historic properties.
(4) Failure of the SHPO/THPO to respond. If the SHPO/THPO fails to
respond within 30 days of receipt of a request for review of a finding
or determination, the Agency Official may either proceed to the next
step in the process based on the finding or determination or consult
with the Council in lieu of the SHPO/THPO. If the SHPO/THPO re-enters
the section 106 process, the Agency Official shall continue the
consultation without being required to reconsider previous findings or
determinations.
(d) Consultation on tribal lands. Where the Indian tribe has not
assumed the responsibilities of the SHPO on tribal lands, consultation
with the Indian tribe regarding undertakings occurring on such tribe's
lands or effects on such tribal lands shall be in addition
[[Page 27074]]
to and on the same basis as consultation with the SHPO. If the SHPO has
withdrawn from the process, the Agency Official may complete the
section 106 process with the Indian tribe and the Council, as
appropriate. An Indian tribe may enter into an agreement with a SHPO or
SHPOs specifying the SHPO's participation in the section 106 process
for undertakings occurring on or affecting historic properties on
tribal lands.
(e) Plan to involve the public. In consultation with the SHPO/THPO,
the Agency Official shall plan for involving the public in the section
106 process. The Agency Official shall identify the appropriate points
for seeking public input and for notifying the public of proposed
actions, consistent with Sec. 800.2(d).
(f) Identify other consulting parties. In consultation with the
SHPO/THPO, the Agency Official shall identify any other parties
entitled to be consulting parties and invite them to participate as
such in the section 106 process. The Agency Official may invite others
to participate as consulting parties as the section 106 process moves
forward.
(1) Involving local governments and applicants. The Agency Official
shall invite any local governments or applicants that are entitled to
be consulting parties under Sec. 800.2(c).
(2) Involving Indian tribes and Native Hawaiian organizations. The
Agency Official shall make a reasonable and good faith effort to
identify any Indian tribes or Native Hawaiian organizations that might
attach religious and cultural significance to historic properties in
the area of potential effects and invite them to be consulting parties.
Such Indian tribe or Native Hawaiian organization that requests in
writing to be a consulting party shall be one.
(3) Requests to be consulting parties. The Agency Official shall
consider all written requests of individuals and organizations to
participate as consulting parties and, in consultation with the SHPO/
THPO and any Indian tribe upon whose tribal lands an undertaking occurs
or affects historic properties, determine which should be consulting
parties.
(g) Expediting consultation. A consultation by the Agency Official
with the SHPO/THPO and other consulting parties may address multiple
steps in Secs. 800.3-800.6 where the Agency Official and the SHPO/THPO
agree it is appropriate as long as the consulting parties and the
public have an adequate opportunity to express their views as provided
in Sec. 800.2(d).
Sec. 800.4 Identification of historic properties.
(a) Determine scope of identification efforts. The Agency Official
shall consult with the SHPO/THPO to:
(1) Determine and document the area of potential effects, as
defined in Sec. 800.16(d);
(2) Review existing information on historic properties within the
area of potential effects, including any data concerning possible
historic properties not yet identified;
(3) Seek information, as appropriate, from consulting parties, and
other individuals and organizations likely to have knowledge of, or
concerns with, historic properties in the area, and identify issues
relating to the undertaking's potential effects on historic properties;
and
(4) Gather information from any Indian tribe or Native Hawaiian
organization identified pursuant to Sec. 800.3(f) to assist in
identifying properties, including those located off tribal lands, which
may be of religious and cultural significance to them and may be
eligible for the National Register, recognizing that an Indian tribe or
native Hawaiian organization may be reluctant to divulge specific
information regarding the location, nature, and activities associated
with such sites. The Agency Official should address concerns raised
about confidentiality pursuant to Sec. 800.11(c).
(b) Identify historic properties. Based on the information gathered
under Sec. 800.4(a), and in consultation with the SHPO/THPO and any
Indian tribe or native Hawaiian organization that might attach
religious and cultural significance to properties within the area of
potential effects, the Agency Official shall take the steps necessary
to identify historic properties within the area of potential effects.
(1) Level of effort. The Agency Official shall make a reasonable
and good faith effort to carry out appropriate identification efforts,
which may include background research, consultation, oral history
interviews, sample field investigation, and field survey. The Agency
Official shall take into account past planning, research and studies,
the magnitude and nature of the undertaking and the degree of Federal
involvement, the nature and extent of potential effects on historic
properties, and the likely nature and location of historic properties
within the area of potential effects. The Secretary's Standards and
Guidelines for Identification provide guidance on this subject. The
Agency Official should also consider other applicable professional,
State, tribal and local laws, standards and guidelines. The Agency
Official shall take into account any confidentiality concerns raised by
Indian tribes or Native Hawaiian organizations during the
identification process.
(2) Phased identification and evaluation. Where alternatives under
consideration consist of corridors or large land areas, or where access
to properties is restricted, the Agency Official may use a phased
process to conduct identification and evaluation efforts. The Agency
Official may also defer final identification and evaluation of historic
properties if it is specifically provided for in a Memorandum of
Agreement executed pursuant to Sec. 800.6, a Programmatic Agreement
executed pursuant to Sec. 800.14(b), or the documents used by an Agency
Official to comply with the National Environmental Policy Act pursuant
to Sec. 800.8. The process should establish the likely presence of
historic properties within the area of potential effects for each
alternative or inaccessible area through background research,
consultation and an appropriate level of field investigation, taking
into account the number of alternatives under consideration, the
magnitude of the undertaking and its likely effects, and the views of
the SHPO/THPO and any other consulting parties. As specific aspects or
locations of an alternative are refined or access is gained, the Agency
Official shall proceed with the identification and evaluation of
historic properties in accordance with Secs. 800.4(b)(1) and (c).
(c) Evaluate historic significance.--(1) Apply National Register
Criteria. In consultation with the SHPO/THPO and any Indian tribe or
Native Hawaiian organization that attaches religious and cultural
significance to identified properties and guided by the Secretary's
Standards and Guidelines for Evaluation, the Agency Official shall
apply the National Register Criteria (36 CFR part 63) to properties
identified within the area of potential effects that have not been
previously evaluated for National Register eligibility. The passage of
time, changing perceptions of significance, or incomplete prior
evaluations may require the Agency Official to reevaluate properties
previously determined eligible or ineligible. The Agency Official shall
acknowledge that Indian tribes and Native Hawaiian organizations
possess special expertise in assessing the eligibility of historic
properties that may possess religious and cultural significance to
them.
(2) Determine whether a property is eligible. If the Agency
Official determines any of the National Register
[[Page 27075]]
Criteria are met and the SHPO/THPO agrees, the property shall be
considered eligible for the National Register for section 106 purposes.
If the Agency Official determines the criteria are not met and the
SHPO/THPO agrees, the property shall be considered not eligible. If the
Agency Official and the SHPO/THPO 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 36 CFR part
63. If an Indian tribe or Native Hawaiian organization that attaches
religious and cultural significance to a property off tribal lands does
not agree, it may ask the Council to request the Agency Official to
obtain a determination of eligibility.
(d) Results of identification and evaluation.--(1) No historic
properties affected. If the Agency Official finds that either there are
no historic properties present or there are historic properties present
but the undertaking will have no effect upon them as defined in
Sec. 800.16(i), the Agency Official shall provide documentation of this
finding as set forth in Sec. 800.11(d) to the SHPO/THPO. The Agency
Official shall notify all consulting parties, including Indian tribes
and Native Hawaiian organizations, and make the documentation available
for public inspection prior to approving the undertaking. If the SHPO/
THPO, or the Council if it has entered the section 106 process, does
not object within 30 days of receipt of an adequately documented
finding, the Agency Official's responsibilities under section 106 are
fulfilled.
(2) Historic properties affected. If the Agency Official finds that
there are historic properties which may be affected by the undertaking
or the SHPO/THPO or the Council objects to the Agency Official's
finding under Sec. 800.4(d)(1), the Agency Official shall notify all
consulting parties, including Indian tribes or Native Hawaiian
organizations, invite their views on the effects and assess adverse
effects, if any, in accordance with Sec. 800.5.
Sec. 800.5 Assessment of adverse effects.
(a) Apply criteria of adverse effect. In consultation with the
SHPO/THPO and any Indian tribe or Native Hawaiian organization that
attaches religious and cultural significance to identified historic
properties, the Agency Official shall apply the criteria of adverse
effect to historic properties within the area of potential effects. The
Agency Official shall consider any views concerning such effects which
have been provided by consulting parties and the public.
(1) Criteria of adverse effect. An adverse effect is found when an
undertaking may alter, directly or indirectly, and of the
characteristics of a historic property that qualify the property for
inclusion in the National Register in a manner that would diminish the
integrity of the property's location, design, setting, materials,
workmanship, feeling, or association. Consideration shall be given to
all qualifying characteristics of a historic property, including those
that may have been identified subsequent to the original evaluation of
the property's eligibility for the National Register. Adverse effects
may include reasonably foreseeable effects caused by the undertaking
that may occur later in time, be farther removed in distance or be
cumulative.
(2) Examples of adverse effects. Adverse effects on historic
properties include, but are not limited to:
(i) Physical destruction of or damage to all or part of the
property;
(ii) Alteration of a property, including restoration,
rehabilitation, repair, maintenance, stabilization, hazardous material
remediation and provision of handicapped access, that is not consistent
with the Secretary's Standards for the Treatment of Historic Properties
(36 CFR part 68) and applicable guidelines;
(iii) Removal of the property from its historic location;
(iv) Change of the character of the property's use or of physical
features within the property's setting that contribute to its historic
significance;
(v) Introduction of visual, atmospheric or audible elements that
diminish the integrity of the property's significant historic features;
(vi) Neglect of a property which causes its deterioration, except
where such neglect and deterioration are recognized qualities of a
property of religious and cultural significance to an Indian tribe or
Native Hawaiian organization; and
(vii) Transfer, lease, or sale of property out of Federal ownership
or control without adequate and legally enforceable restrictions or
conditions to ensure long-term preservation of the property's historic
significance.
(3) Phased application of criteria. Where alternatives under
consideration consist of corridors or large land areas, or where access
to properties is restricted, the Agency Official may use a phased
process in applying the criteria of adverse effect consistent with
phased identification and evaluation efforts conducted pursuant to
Sec. 800.4(b)(2).
(b) Finding of no adverse effect. The Agency Official, in
consultation with the SHPO/THPO, may propose a finding of no adverse
effect when the undertaking's effects do not meet the criteria of
Sec. 800.5(a)(1) or the undertaking is modified or conditions are
imposed, such as the subsequent review of plans for rehabilitation by
the SHPO/THPO to ensure consistency with the Secretary's Standards for
the Treatment of Historic Properties (36 CFR part 68) and applicable
guidelines, to avoid adverse effects.
(c) Consulting party review. If the Agency Official proposes a
finding of no adverse effect, the Agency Official shall notify all
consulting parties of the finding and provide them with the
documentation specified in Sec. 800.11(e). The SHPO/THPO shall have 30
days from receipt to review the finding.
(1) Agreement with finding. Unless the Council is reviewing the
finding pursuant to Sec. 800.5(c)(3), the Agency Official may proceed
if the SHPO/THPO agrees with the finding. The Agency Official shall
carry out the undertaking in accordance with Sec. 800.5(d)(1). Failure
of the SHPO/THPO to respond within 30 days from receipt of the finding
shall be considered agreement of the SHPO/THPO with the finding.
(2) Disagreement with finding. (i) If the SHPO/THPO or any
consulting party disagrees within the 30-day review period, it shall
specify the reasons for disagreeing with the finding. The Agency
Official shall either consult with the party to resolve the
disagreement, or request the Council to review the finding pursuant to
Sec. 800.5(c)(3).
(ii) The Agency Official should seek the concurrence of any Indian
tribe or Native Hawaiian organization that has made known to the Agency
Official that it attaches religious and cultural significance to a
historic property subject to the finding. If such Indian tribe or
Native Hawaiian organization disagrees with the finding, it may within
the 30-day review period specify the reasons for disagreeing with the
finding and request the Council to review the finding pursuant to
Sec. 800.5(c)(3).
(iii) If the Council on its own initiative so requests within the
30-day review period, the Agency Official shall submit the finding,
along with the documentation specified in Sec. 800.11(e), for review
pursuant to Sec. 800.5(c)(3). A Council decision to make such a request
shall be guided by the criteria in appendix A to this part.
(3) Council review of findings. When a finding is submitted to the
Council pursuant to Sec. 800.5(c)(2), the Agency Official shall include
the documentation specified in Sec. 800.11(e). The Council shall review
the finding and notify the
[[Page 27076]]
Agency Official of its determination as to whether the adverse effect
criteria have been correctly applied within 15 days of receiving the
documented finding from the Agency Official. The Council shall specify
the basis for its determination. The Agency Official shall proceed in
accordance with the Council's determination. If the Council does not
respond within 15 days of the receipt of the finding, the Agency
Official may assume concurrence with the Agency Official's findings and
proceed accordingly.
(d) Results of assessment.--(1) No adverse effect. The Agency
Official shall maintain a record of the finding and provide information
on the finding to the public on request, consistent with the
confidentiality provisions of Sec. 800.11(c). Implementation of the
undertaking in accordance with the finding as documented fulfills the
Agency Official's responsibilities under section 106 and this part. If
the Agency Official will not conduct the undertaking as proposed in the
finding, the Agency Official shall reopen consultation under
Sec. 800.5(a).
(2) Adverse effect. If an adverse effect is found, the Agency
Official shall consult further to resolve the adverse effect pursuant
to Sec. 800.6.
Sec. 800.6 Resolution of adverse effects.
(a) Continue consultation. The Agency Official shall consult with
the SHPO/THPO and other consulting parties, including Indian tribes and
Native Hawaiian organizations, to develop and evaluate alternatives or
modifications to the undertaking that could avoid, minimize or mitigate
adverse effects on historic properties.
(1) Notify the Council and determine Council participation. The
Agency Official shall notify the Council of the adverse effect finding
by providing the documentation specified in Sec. 800.11(e).
(i) The notice shall invite the Council to participate in the
consultation when:
(A) The Agency Official wants the Council to participate;
(B) The undertaking has an adverse effect upon a National Historic
Landmark; or
(C) A Programmatic Agreement under Sec. 800.14(b) will be prepared;
(ii) The SHPO/THPO, an Indian tribe or Native Hawaiian
organization, or any other consulting party may at any time
independently request the Council to participate in the consultation.
(iii) The Council shall advise the Agency Official and all
consulting parties whether it will participate within 15 days of
receipt of notice or other request. Prior to entering the process, the
Council shall provide written notice to the Agency Official and the
consulting parties that its decision to participate meets the criteria
set forth in appendix A to this part. The Council shall also advise the
head of the agency of its decision to enter the process. Consultation
with Council participation is conducted in accordance with
Sec. 800.6(b)(2). (iv) If the Council does not join the consultation,
the Agency Official shall proceed with consultation in accordance with
Sec. 800.6(b) (1).
(2) Involve consulting parties. In addition to the consulting
parties identified under Sec. 800.3(f), the Agency Official, the SHPO/
THPO and the Council, if participating, may agree to invite other
individuals or organizations to become consulting parties. The Agency
Official shall invite any individual or organization that will assume a
specific role or responsibility in a Memorandum of Agreement to
participate as a consulting party.
(3) Provide documentation. The Agency Official shall provide to all
consulting parties the documentation specified in Sec. 800.11(e),
subject to the confidentiality provisions of Sec. 800.11(c), and such
other documentation as may be developed during the consultation to
resolve adverse effects.
(4) Involve the public. The Agency Official shall make information
available to the public, including the documentation specified in
Sec. 800.11(e), subject to the confidentiality provisions of
Sec. 800.11(c). The Agency Official shall provide an opportunity for
members of the public to express their views on resolving adverse
effects of the undertaking. The Agency Official should use appropriate
mechanisms, taking into account the magnitude of the undertaking and
the nature of its effects upon historic properties, the likely effects
on historic properties, and the relationship of the Federal involvement
to the undertaking to ensure that the public's views are considered in
the consultation. The Agency Official should also consider the extent
of notice and information concerning historic preservation issues
afforded the public at earlier steps in the Section 106 process to
determine the appropriate level of public involvement when resolving
adverse effects so that the standards of Sec. 800.2(d) are met.
(5) Restrictions on disclosure of information. Section 304 of the
Act and other authorities may limit the disclosure of information under
Secs. 800.6(a)(3) and (4). If an Indian tribe or Native Hawaiian
organization objects to the disclosure of information or if the Agency
Official believes that there are other reasons to withhold information,
the Agency Official shall comply with Sec. 800.11(c) regarding the
disclosure of such information.
(b) Resolve adverse effects--(1) Resolution without the Council.
(i) The Agency Official shall consult with the SHPO/THPO and other
consulting parties to seek ways to avoid, minimize or mitigate the
adverse effects.
(ii) The Agency Official may use standard treatments established by
the Council under Sec. 800.14(d) as a basis for a Memorandum of
Agreement.
(iii) If the Council decides to join the consultation, the Agency
Official shall follow Sec. 800.6(b)(2).
(iv) If the Agency Official and the SHPO/THPO agree on how the
adverse effects will be resolved, they shall execute a Memorandum of
Agreement. The Agency Official must submit a copy of the executed
Memorandum of Agreement, along with the documentation specified in
Sec. 800.11(f), to the Council prior to approving the undertaking in
order to meet the requirements of section 106 and this subpart.
(v) If the Agency Official, and the SHPO/THPO fail to agree on the
terms of a Memorandum of Agreement, the Agency Official shall request
the Council to join the consultation and provide the Council with the
documentation set forth in Sec. 800.11(g). If the Council decides to
join the consultation, the Agency Official shall proceed in accordance
with Sec. 800.6(b)(2). If the Council decides not to join the
consultation, the Council will notify the agency and proceed to comment
in accordance with Sec. 800.7(c).
(2) Resolution with Council participation. If the Council decides
to participate in the consultation, the Agency Official shall consult
with the SHPO/THPO, the Council, and other consulting parties,
including Indian tribes and Native Hawaiian organizations under
Sec. 800.2(c)(3), to seek ways to avoid, minimize or mitigate the
adverse effects. If the Agency Official, the SHPO/THPO, and the Council
agree on how the adverse effects will be resolved, they shall execute a
Memorandum of Agreement.
(c) Memorandum of Agreement. A Memorandum of Agreement executed and
implemented pursuant to this section evidences the Agency Official's
compliance with section 106 and this part and shall govern the
undertaking and all of its parts. A Memorandum of Agreement executed
pursuant to Sec. 800.6(b)(1) that is filed with the Council shall be
considered to be an agreement with the Council for the purposes of
Section 110(1) of the Act. The Agency Official shall ensure that
[[Page 27077]]
the undertaking is carried out in accordance with the Memorandum of
Agreement.
(1) Signatories. The signatories have sole authority to execute,
amend or terminate the agreement in accordance with this subpart.
(i) The Agency Official and the SHPO/THPO are the signatories to a
Memorandum of Agreement executed pursuant to Sec. 800.6(b)(1).
(ii) The Agency Official, the SHPO/THPO, and the Council are the
signatories to a Memorandum of Agreement executed pursuant to
Sec. 800.6(b)(2).
(iii) The Agency Official and the Council are signatories to a
Memorandum of Agreement executed pursuant to Sec. 800.7(a)(2).
(2) Invited signatories. (i) The Agency Official may invite an
Indian tribe or Native Hawaiian organization that attaches religious
and cultural significance to historic properties located off tribal
lands to be a signatory to a Memorandum of Agreement concerning such
properties.
(ii) The signatories should invite any party that assumes a
responsibility under a Memorandum of Agreement to be a signatory.
(iii) The refusal of any party invited to become a signatory to a
Memorandum of Agreement pursuant to Sec. 800.6(c)(2)(i) or (ii) does
not invalidate the Memorandum of Agreement.
(3) Concurrence by others. The Agency Official may invite all
consulting parties to concur in the Memorandum of Agreement. The
signatories may agree to invite others to concur. The refusal of any
party invited to concur in the Memorandum of Agreement does not
invalidate the Memorandum of Agreement.
(4) Reports on implementation. Where the signatories agree it is
appropriate, a Memorandum of Agreement shall include a provision for
monitoring and reporting on its implementation.
(5) Duration. A Memorandum of Agreement shall include provisions
for termination and for reconsideration of terms if the undertaking has
not been implemented within a specified time.
(6) Discoveries. Where the signatories agree it is appropriate, a
Memorandum of Agreement shall include provisions to deal with the
subsequent discovery or identification of additional historic
properties affected by the undertaking.
(7) Amendments. The signatories to a Memorandum of Agreement may
amend it. If the Council was not a signatory to the original agreement
and the signatories execute an amended agreement, the Agency Official
shall file it with the Council.
(8) Termination. If any signatory determines that the terms of a
Memorandum of Agreement cannot be carried out, the signatories shall
consult to seek amendment of the agreement. If the agreement is not
amended, any signatory may terminate it. The Agency Official shall
either execute a Memorandum of Agreement with signatories under
Sec. 800.6(c)(1) or request the comments of the council under
Sec. 800.7(a).
(9) Copies. The Agency Official shall provide each consulting party
with a copy of any Memorandum of Agreement executed pursuant to this
subpart.
Sec. 800.7 Failure to resolve adverse effects.
(a) Termination of consultation. After consulting to resolve
adverse effects pursuant to Sec. 800.6(b)(2), the Agency Official the
SHPO/THPO, or the Council may determine that further consultation will
not be productive and terminate consultation. Any party that terminates
consultation shall notify the other consulting parties and provide them
the reasons for terminating in writing.
(1) If the Agency Official terminates consultation, the head of the
agency or an Assistant Secretary or other officer with major
department-wide or agency-wide responsibilities shall request that the
Council comment pursuant to Sec. 800.7(c) and shall notify all
consulting parties of the request.
(2) If the SHPO terminates consultation, the Agency Official and
the Council may execute a Memorandum of Agreement without the SHPO's
involvement.
(3) If a THPO terminates consultation regarding an undertaking
occurring on or affecting historic properties on its tribal lands, the
Council shall comment pursuant to Sec. 800.7(c).
(4) If the Council terminates consultation, the Council shall
notify the Agency Official, the agency's Federal Preservation Officer
and all consulting parties of the termination and comment under
Sec. 800.7(c). The Council may consult with the agency's Federal
Preservation Officer prior to terminating consultation to seek to
resolve issues concerning the undertaking and its effects on historic
properties.
(b) Comments without termination. The Council may determine that it
is appropriate to provide additional advisory comments upon an
undertaking for which a Memorandum of Agreement will be executed. The
Council shall provide them to the Agency Official when it executes the
Memorandum of Agreement.
(c) Comments by the Council.--(1) Preparation. The Council shall
provide an opportunity for the Agency Official, all consulting parties,
and the public to provide their views within the time frame for
developing its comments. Upon request of the Council, the Agency
Official shall provide additional existing information concerning the
undertaking and assist the Council in arranging an onsite inspection
and an opportunity for public participation.
(2) Timing. The Council shall transmit its comments within 45 days
of receipt of a request under Secs. 800.7(a) (1) or (3) or
Sec. 800.8(c)(3), or termination by the Council under
Sec. 800.6(b)(1)(v) or Sec. 800.7(a)(4), 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 Agency Official,
the agency's Federal Preservation Officer, all consulting parties, and
others as appropriate.
(4) Response to Council comment. The head of the agency shall take
into account the Council's comments in reaching a final decision on the
undertaking. Section 110(1) of the Act directs that the head of the
agency shall document this decision and may not delegate his or her
responsibilities pursuant to section 106. Documenting the agency head's
decision shall include:
(i) Preparing a summary of the decision that contains the rationale
for the decision and evidence of consideration of the Council's
comments and providing it to the Council prior to approval of the
undertaking;
(ii) Providing a copy of the summary to all consulting parties; and
(iii) Notifying the public and making the record available for
public inspection.
Sec. 800.8 Cooordination with the National Environmental Policy Act.
(a) General principles.--(1) Early coordination. Federal agencies
are encouraged to coordinate compliance with section 106 and the
procedures in this part with any steps taken to meet the requirements
of the National Environmental Policy Act (NEPA). Agencies should
consider their Section 106 responsibilities as early as possible in the
NEPA process, and plan their public participation, analysis, and review
in such a way that they can meet the purposes and requirements of both
statutes in a timely and efficient manner. The determination of whether
an undertaking is a ``major Federal action significantly affecting the
quality of the human environment,'' and therefore requires preparation
of an
[[Page 27078]]
Environmental Impact Statement (EIS) under NEPA, should include
consideration of the undertaking's likely effects on historic
properties. A finding of adverse effect on a historic property does not
necessarily require an EIS under NEPA.
(2) Consulting party rules. SHPO/THPOs, Indian tribes and Native
Hawaiian organizations, other consulting parties, and organizations and
individuals who may be concerned with the possible effects of an agency
action on historic properties should be prepared to consult with
agencies early in the NEPA process, when the purpose of and need for
the proposed action as well as the widest possible range of
alternatives are under consideration.
(3) Inclusion of historic preservation issues. Agency Officials
should ensure that preparation of an Environmental Assessment (EA) and
Finding of No Significant Impact (FONSI) and an EIS and Record of
Decision (ROD) includes appropriate scoping, identification of historic
properties, assessment of effects upon them, and consultation leading
to resolution of any adverse effects.
(b) Actions categorically excluded under NEPA. If a project,
activity or program is categorically excluded from NEPA review under an
agency's NEPA procedures, the Agency Official shall determine if it
still qualifies as an undertaking requiring review under section 106
pursuant to Sec. 800.3(a). If so, the Agency Official shall proceed
with Section 106 review in accordance with the procedures in this
subpart.
(c) Use of the NEPA process for section 106 purposes. An Agency
Official may use the process and documentation required for the
preparation of an EA/FONSI or an EIS/ROD to comply with section 106 in
lieu of the procedures set forth in Secs. 800.3 through 800.6 if the
Agency Official has notified in advance the SHPO/THPO and the Council
that it intends to do so and the following standards are met.
(1) Standards for developing environmental documents to comply with
section 106. During preparation of the EA or Draft EIS (DEIS) the
Agency Official shall:
(i) Identify consulting parties either pursuant to Sec. 800.3(f) or
through NEPA scoping process with results consistent with
Sec. 800.3(f);
(ii) Identify historic properties and assess the effects of the
undertaking on such properties in a manner consistent with the
standards and criteria of Secs. 800.4 through 800.5, provided that the
scope and timing of these steps may be phased to reflect the Agency
Official's consideration of project alternatives in the NEPA process
and the effort is commensurate with the assessment of other
environmental factors;
(iii) Consult regarding the effects of the undertaking on historic
properties with the SHPO/THPO, Indian tribes and Native Hawaiian
organizations that might attach religious and cultural significance to
affected historic properties, other consulting parties, and the
Council, where appropriate, during NEPA scoping, environmental
analysis, and the preparation of NEPA documents;
(iv) Involve the public in accordance with the agency's published
NEPA procedures; and
(v) Develop in consultation with identified consulting parties
alternatives and proposed measures that might avoid, minimize or
mitigate any adverse effects of the undertaking on historic properties
and describe them in the EA or DEIS.
(2) Review of environmental documents. (i) The Agency Official
shall submit the EA, DEIS or EIS to the SHPO/THPO, Indian tribes and
Native Hawaiian organizations that might attach religious and cultural
significance to affected historic properties, and other consulting
parties prior to or when making the document available for public
comment. If the document being prepared is a DEIS or EIS, the Agency
Official shall also submit it to the Council.
(ii) Prior to or within the time allowed for public comment on the
document, a SHPO/THPO, an Indian tribe or Native Hawaiian organization,
another consulting party or the Council may object to the Agency
Official that preparation of the EA, DEIS or EIS has not met the
standards set forth in Sec. 800.8(c)(1) or that the substantive
resolution of the effects on historic properties proposed in an EA,
DEIS or EIS is inadequate. If the Agency Official receives such an
objection, the Agency Official shall refer the matter to the Council.
(3) Resolution of objections. Within 30 days of the Agency
Official's referral of an objection under Sec. 800.8(c)(2)(ii), the
Council shall notify the Agency Official either that it agrees with the
objection, in which case the Agency Official shall enter into
consultation in accordance with Sec. 800.6(b)(2) or seek Council
comments in accordance with Sec. 800.7(a), or that it disagrees with
the objection, in which case the Agency Official shall continue its
compliance with this section. Failure of the Council to respond within
the 30 day period shall be considered disagreement with the objection.
(4) Approval of the undertaking. If the Agency Official has found
during the preparation of the EA, DEIS or EIS that the effects of the
undertaking on historic properties are adverse, the Agency Official
shall specify in the FONSI or the ROD the proposed measures to avoid,
minimize or mitigate such effects and ensure that the approval of the
undertaking is conditioned accordingly. The Agency Official's
responsibilities under Section 106 and the procedures in this subpart
shall then be satisfied when either the proposed measures have been
adopted through a binding commitment on the agency, the applicant or
other entities, as appropriate, or the Council has commented and
received the response to such comments under Sec. 800.7. Where the NEPA
process results in a FONSI, the Agency Official must adopt such a
binding commitment through a Memorandum of Agreement drafted in
compliance with Sec. 800.6(c). Where the NEPA process results in an
EIS, the binding commitment does not have to be in the form of a
Memorandum of Agreement drafted in compliance with Sec. 800.6(c).
(5) Modification of the undertaking. If the undertaking is modified
after approval of the FONSI or the ROD in a manner that changes the
undertaking or alters its effects on historic properties, or if the
Agency Official fails to ensure that the measures to avoid, minimize or
mitigate adverse effects (as specified in either the FONSI or the ROD,
or in the binding commitment adopted pursuant to Sec. 800.8(c)(4)) are
carried out, the Agency official shall notify the Council and all
consulting parties that supplemental environmental documents will be
prepared in compliance with NEPA or that the procedures in Secs. 800.3
through 800.6 will be followed as necessary.
Sec. 800.9 Council review of Section 106 compliance.
(a) Assessment of Agency Official compliance for individual
undertakings. The Council may provide to the Agency Official its
advisory opinion regarding the substance of any finding, determination
or decision or regarding the adequacy of the Agency Official's
compliance with the procedures under this part. The Council may provide
such advice at any time at the request of any individual, agency or
organization or on its own initiative. The Agency Official shall
consider the views of the Council in reaching a decision on the matter
in question.
(b) Agency foreclosure of the Council's opportunity to comment.
Where an Agency Official has failed to
[[Page 27079]]
complete the requirements of section 106 in accordance with the
procedures in this part prior to the approval of an undertaking, the
Council's opportunity to comment may be foreclosed. The Council may
review a case to determine whether a foreclosure has occurred. The
Council shall notify the Agency Official and the agency's Federal
Preservation Officer and allow 30 days for the Agency Official to
provide information as to whether foreclosure has occurred. If the
Council determines foreclosure has occurred, the Council shall transmit
the determination to the Agency Official and the head of the agency.
The Council shall also make the determination available to the public
and any parties known to be interested in the undertaking and its
effects upon historic properties.
(c) Intentional adverse effects by applicants.--(1) Agency
responsibility. Section 110(k) of the Act prohibits a Federal agency
from granting 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 having legal
power to prevent it, has allowed such significant adverse effect to
occur, unless the agency, after consultation with the Council,
determines that circumstances justify granting such assistance despite
the adverse effect created or permitted by the applicant. Guidance
issued by the Secretary pursuant to section 110 of the Act governs its
implementation.
(2) Consultation with the Council. When an Agency Official
determines, based on the actions of an applicant, that section 110(k)
is applicable and that circumstances may justify granting the
assistance, the Agency Official shall notify the Council and provide
documentation specifying the circumstances under which the adverse
effects to the historic property occurred and the degree of damage to
the integrity of the property. This documentation shall include any
views obtained from the applicant, SHPO/THPO, an Indian tribe if the
undertaking occurs on or affects historic properties on tribal lands,
and other parties known to be interested in the undertaking.
(i) Within thirty days of receiving the Agency Official's
notification, unless otherwise agreed to by the Agency Official, the
Council shall provide the Agency Official with its opinion as to
whether circumstances justify granting assistance to the applicant and
any possible mitigation of the adverse effects.
(ii) The Agency Official shall consider the Council's opinion in
making a decision on whether to grant assistance to the applicant, and
shall notify the Council, the SHPO/THPO, and other parties known to be
interested in the undertaking prior to granting the assistance.
(3) Compliance with Section 106. If an Agency Official, after
consulting with the Council, determines to grant the assistance, the
Agency Official shall comply with Secs. 800.3-800.6 to take into
account the effects of the undertaking on any historic properties.
(d) Evaluation of Section 106 operations. The Council may evaluate
the operation of the Section 106 process by periodic reviews of how
participants have fulfilled their legal responsibilities and how
effectively the outcomes reached advance the purposes of the Act.
(1) Information from participants. Section 203 of the Act
authorizes the Council to obtain information from Federal agencies
necessary to conduct evaluation of the Section 106 process. The Agency
Official shall make documentation of agency policies, operating
procedures and actions taken to comply with section 106 available to
the Council upon request. The Council may request available information
and documentation from other participants in the Section 106 process.
(2) Improving the operation of Section 106. Based upon any
evaluation of the section 106 process, the Council may make
recommendations to participants, the heads of Federal agencies, and the
Secretary of actions to improve the efficiency and effectiveness of the
process. Where the Council determines that an Agency Official or a
SHPO/THPO has failed to properly carry out the responsibilities
assigned under the procedures in this part, the Council may participate
in individual case reviews in a manner and for a period that it
determines is necessary to improve performance or correct deficiencies.
If the Council finds a pattern of failure by a Federal agency in
carrying out its responsibilities under section 106, the Council may
review the policies and programs of the agency related to historic
preservation pursuant to section 202(a)(6) of the Act and recommend
methods to improve the effectiveness, coordination, and consistency of
those policies and programs with section 106.
Sec. 800.10 Special requirements for protecting National Historic
Landmarks.
(a) Statutory requirement. Section 110(f) 0f 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 undertaking, the Council
shall use the process set forth in Secs. 800.6 through 800.7 and give
special consideration to protecting National Historic Landmarks as
specified in this section.
(b) Resolution of adverse effects. The Agency Official shall
request the Council to participate in any consultation to resolve
adverse effects on National Historic Landmarks conducted under
Sec. 800.6.
(c) Involvement of the Secretary. The Agency Official shall notify
the Secretary of any consultation involving a National Historic
Landmark and invite the Secretary to participate in the consultation
where there may be an adverse effect. The Council may request a report
from the Secretary under section 213 of the Act to assist in the
consultation.
(d) Report of outcome. When the Council participates in
consultation under this section, it shall report the outcome of the
section 106 process, providing its written comments or any Memoranda of
Agreement to which it is a signatory, to the Secretary and the head of
the agency responsible for the undertaking.
Sec. 800.11 Documentation standards.
(a) Adequacy of documentation. The Agency Official shall ensure
that a determination, finding, or agreement under the procedures in
this subpart is supported by sufficient documentation to enable any
reviewing parties to understand its basis. When an Agency Official is
conducting phased identification or evaluation under this subpart, the
documentation standards regarding description of historic properties
may be applied flexibly. If the Council, or the SHPO/THPO when the
Council is not involved, determines the applicable documentation
standards are not met, the Council or the SHPO/THPO, as appropriate,
shall notify the Agency Official and specify the information needed to
meet the standard. At the request of the Agency Official or any of the
consulting parties, the Council shall review any disputes over whether
documentation standards are met and provide its views to the Agency
Official and the consulting parties.
(b) Format. The Agency Official may use documentation prepared to
comply with other laws to fulfill the requirements of the procedures in
this subpart, if that documentation meets the standards of this
section.
[[Page 27080]]
(c) Confidentiality--(1) Authority to withhold information. Section
304 of the Act provides that the head of a Federal agency or other
public official receiving grant assistance pursuant to the Act, after
consultation with the Secretary, shall withhold from public disclosure
information about the location, character, or ownership of a historic
property when disclosure may cause a significant invasion of privacy;
risk harm to the historic property; or impede the use of a traditional
religious site by practitioners. When the head of a Federal agency or
other public official has determined that information should be
withheld from the public pursuant to the criteria above, the Secretary,
in consultation with such Federal agency head or official, shall
determine whom may have access to the information for the purpose of
carrying out the Act.
(2) Consultation with the Council. When the information in question
has been developed in the course of an agency's compliance with this
part, the Secretary shall consult with the Council in reaching
determinations on the withholding and release of information. The
Federal agency shall provide the Council with available information,
including views of Indian tribes and Native Hawaiian organizations,
related to the confidentiality concern. The Council shall advise the
Secretary and the Federal agency within 30 days of receipt of adequate
documentation.
(3) Other authorities affecting confidentiality. Other Federal laws
and program requirements may limit public access to information
concerning an undertaking and its effects on historic properties. Where
applicable, those authorities shall govern public access to information
developed in the Section 106 process and may authorize the Agency
Official to protect the privacy of non-governmental applicants.
(d) Finding of no historic properties affected. Documentation shall
include:
(1) A description of the undertaking, specifying the Federal
involvement, and its area of potential effects, including photographs,
maps, drawings, as necessary;
(2) A description of the steps taken to identify historic
properties, including, as appropriate, efforts to seek information
pursuant to Sec. 800.4(b); and
(3) The basis for determining that no historic properties are
present or affected.
(e) Finding of no adverse effect or adverse effect. Documentation
shall include:
(1) A description of the undertaking, specifying the Federal
involvement, and its area of potential effects, including photographs,
maps, and drawings, as necessary;
(2) A description of the steps taken to identify historic
properties;
(3) A description of the affected historic properties, including
information on the characteristics that qualify them for the National
Register;
(4) A description of the undertaking's effects on historic
properties.
(5) An explanation of why the criteria of adverse effect were found
applicable or inapplicable, including any conditions or future actions
to avoid, minimize or mitigate adverse effects; and
(6) Copies or summaries of any views provided by consulting parties
and the public.
(f) Memoradum of Agreement. When a Memorandum of Agreement is filed
with the Council, the documentation shall include any substantive
revisions or additions to the documentation provided the Council
pursuant to Sec. 800.6(a)(1), an evaluation of any measures considered
to avoid or minimize the undertaking's adverse effects and a summary of
the views of consulting parties and the public.
(g) Requests for comment without a Memorandum of Agreement.
Documentation shall include:
(1) A description and evaluation of any alternatives or mitigation
measures that the Agency Official proposes to resolve the undertaking's
adverse effects;
(2) A description of any reasonable alternatives or mitigation
measures that were considered but not chosen, and the reasons for their
rejection;
(3) Copies or summaries of any views submitted to the Agency
Official concerning the adverse effects of the undertaking on historic
properties and alternatives to reduce or avoid those effects; and
(4) Any substantive revisions or additions to the documentation
provided the Council pursuant to Sec. 800.6(a)(1).
Sec. 800.12 Emergency situations.
(a) Agency procedures. The Agency Official, in consultation with
the appropriate SHPOs/THPOs, affected Indian tribes and Native Hawaiian
organizations, and the Council, is encouraged to develop procedures for
taking historic properties into account during operations which respond
to a disaster or emergency declared by the President, a tribal
government or the governor of a State or which respond to other
immediate threats to life or property. If approved by the Council, the
procedures shall govern the agency's historic preservation
responsibilities during any disaster or emergency in lieu of
Secs. 800.3 through 800.6.
(b) Alternatives to agency procedures. In the event an Agency
Official proposes an emergency undertaking as an essential and
immediate response to a disaster or emergency declared by the
President, a tribal government or the governor of a State or another
immediate threat to life or property, and the agency has not developed
procedures pursuant to Sec. 800.12(a), the Agency Official may comply
with section 106 by:
(1) Following a Programmatic Agreement developed pursuant to
Sec. 800.14(b) that contains specific provisions for dealing with
historic properties in emergency situations; or
(2) Notifying the Council, the appropriate SHPO/THPO and any Indian
tribe or Native Hawaiian organization that may attach religious and
cultural significance to historic properties likely to be affected
prior to the undertaking and affording them an opportunity to comment
within seven days of notification. If the Agency Official determines
that circumstances do not permit seven days for comment, the Agency
Official shall notify the Council, the SHPO/THPO and the Indian tribe
or Native Hawaiian organization and invite any comments within the time
available.
(c) Local governments responsible for section 106 compliance. When
a local government official serves as the Agency Official for section
106 compliance, Sec. 800.12 (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 SHPO/THPO objects to
the proposed action within seven days, the Agency Official shall comply
with Secs. 800.3 through 800.6.
(d) Applicability. This section applies only to undertakings that
will be implemented within 30 days after the disaster or emergency has
been formally declared by the appropriate authority. An agency may
request an extension of the period of applicability from the Council
prior to the expiration of the 30 days. Immediate rescue and salvage
operations conducted to preserve life or property are exempt from the
provisions of section 106 and this part.
Sec. 800.13 Post-review discoveries.
(a) Planning for subsequent discoveries.--(1) Using a Programmatic
Agreement. An Agency Official may develop a Programmatic Agreement
pursuant to Sec. 800.14(b) to govern the actions to be taken when
historic
[[Page 27081]]
properties are discovered during the implementation of an undertaking.
(2) Using agreement documents. When the Agency Official's
identification efforts in accordance with Sec. 800.4 indicate that
historic properties are likely to be discovered during implementation
of an undertaking and no Programmatic Agreement has been developed
pursuant to Sec. 800.13(a)(1), the Agency Official shall include in any
finding of no adverse effect or Memorandum of Agreement a process to
resolve any adverse effects upon such properties. Actions in
conformance with the process satisfy the Agency Official's
responsibilities under section 106 and this part.
(b) Discoveries without prior planning. If historic properties are
discovered or unanticipated effects on historic properties found after
the Agency Official has completed the section 106 process without
establishing a process under Sec. 800.13(a), the Agency Official shall
make reasonable efforts to avoid, minimize or mitigate adverse effects
to such properties and:
(1) If the Agency Official has not approved the undertaking or if
construction on an approved undertaking has not commenced, consult to
resolve adverse effects pursuant to Sec. 800.6; or
(2) If the Agency Official, the SHPO/THPO and any Indian tribe or
Native Hawaiian organization that might attach religious and cultural
significance to the affected property agree that such property is of
value solely for its scientific, prehistoric, historic or
archaeological data, the Agency Official may comply with the
Archaeological and Historic Preservation Act instead of the procedures
in this part and provide the Council, the SHPO/THPO, and the Indian
tribe or Native Hawaiian organization with a report on the actions
within a reasonable time after they are completed; or
(3) If the Agency Official has approved the undertaking and
construction has commenced, determine actions that the Agency Official
can take to resolve adverse effects, and notify the SHPO/THPO, any
Indian tribe or Native Hawaiian organization that might attach
religious and cultural significance to the affected property, and the
Council within 48 hours of the discovery. The notification shall
describe the actions proposed by the Agency Official to resolve the
adverse effects. The SHPO/THPO, the Indian tribe or Native Hawaiian
organization and the Council shall respond within 48 hours of the
notification and the Agency Official shall take into account their
recommendations and carry out appropriate actions. The Agency Official
shall provide the SHPO/THPO, the Indian tribe or Native Hawaiian
organization and the Council a report of the actions when they are
completed.
(c) Eligibility of properties. The Agency Official, in consultation
with the SHPO/THPO, may assume a newly-discovered property to be
eligible for the National Register for purposes of Section 106. The
Agency Official shall specify the National Register Criteria used to
assume the property's eligibility so that information can be used in
the resolution of adverse effects.
(d) Discoveries on tribal lands. If historic properties are
discovered on tribal lands, or there are unanticipated effects on
historic properties found on tribal lands, after the Agency Official
has completed the section 106 process without establishing a process
under Sec. 800.13(a) and construction has commenced, the Agency
Official shall comply with applicable tribal regulations and procedures
and obtain the concurrence of the Indian tribe on the proposed action.
Subpart C--Program Alternatives
Sec. 800.14 Federal agency program alternatives.
(a) Alternate procedures. An Agency Official may develop procedures
to implement section 106 and substitute them for all or part of subpart
B of this part if they are consistent with the Council's regulations
pursuant to section 110(a)(2)(E) of the Act.
(1) Development of procedures. The Agency Official shall consult
with the Council, the National Conference of State Historic
Preservation Officers or individual SHPO/THPOs, as appropriate, and
Indian tribes and Native Hawaiian organizations, as specified in
Sec. 800.14(f), in the development of alternate procedures, publish
notice of the availability of proposed alternate procedures in the
Federal Register and take other appropriate steps to seek public input
during the development of alternate procedures.
(2) Council review. The Agency Official shall submit the proposed
alternate procedures to the Council for a 60-day review period. If the
Council finds the procedures to be consistent with this part, it shall
notify the Agency Official and the Agency Official may adopt them as
final alternate procedures.
(3) Notice. The Agency Official shall notify the parties with which
it has consulted and publish notice of final alternate procedures in
the Federal Register.
(4) Legal effect. Alternate procedures adopted pursuant to this
subpart 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 to substitute
tribal historic preservation regulations for the Council's regulations
under section 101(d)(5) of the Act, the agency shall follow those
regulations in lieu of the agency's procedures regarding undertakings
on tribal lands. Prior to the Council entering into such agreements,
the Council will provide federal agencies notice and opportunity to
comment on the proposed substitute tribal regulations.
(b) Programmatic Agreements. The Council and the Agency Official
may negotiate a Programmatic Agreement to govern the implementation of
a particular program or the resolution of adverse effects from certain
complex project situations or multiple undertakings.
(1) Use of Programmatic Agreements. A Programmatic Agreement may be
used:
(i) When effects on historic properties are similar and repetitive
or are multi-State or regional in scope;
(ii) When effects on historic properties cannot be fully determined
prior to approval of an undertaking;
(iii) When nonfederal parties are delegated major decisionmaking
responsibilities;
(iv) Where routine management activities are undertaken at Federal
installations, facilities, or other land-management units; or
(v) Where other circumstances warrant a departure from the normal
section 106 process.
(2) Developing Programmatic Agreements for agency programs--(i)
Consultation. The consultation shall involve, as appropriate, SHPO/
THPOs, the National Conference of State Historic Preservation Officers
(NCHSPO), Indian tribes and Native Hawaiian organizations, other
Federal agencies, and members of the public. If the Programmatic
Agreement has the potential to affect historic properties on tribal
lands or historic properties of religious and cultural significance to
an Indian tribe or Native Hawaiian organization, the Agency Official
shall also follow Sec. 800.14(f).
(ii) Public Participation. The Agency Official shall arrange for
public participation appropriate to the subject matter and the scope of
the program and in accordance with subpart A of this part. The Agency
Official shall consider the nature of the program and its likely
effects on historic properties and take
[[Page 27082]]
steps to involve the individuals, organizations and entities likely to
be interested.
(iii) Effect. The Programmatic Agreement shall take effect when
executed by the Council, the Agency Official and the appropriate SHPOs/
THPOs when the Programmatic Agreement concerns a specific region or the
President of NCSHPO when NCSHPO has participated in the consultation. A
Programmatic Agreement shall take effect on tribal lands only when the
THPO, Indian tribe or a designated representative of the tribe is a
signatory to the agreement. Compliance with the procedures established
by an approved Programmatic Agreement satisfies the agency's section
106 responsibilities for all individual undertakings of the program
covered by the agreement until it expires or is terminated by the
agency, the President of NCSHPO when a signatory, or the Council.
Termination by an individual SHPO/THPO shall only terminate the
application of a regional Programmatic Agreement within the
jurisdiction of the SHPO/THPO. If a THPO assumes the responsibilities
of a SHPO pursuant to section 101(d)(2) of the Act and the SHPO is
signatory to Programmatic Agreement, the THPO assumes the role of a
signatory, including the right to terminate a regional Programmatic
Agreement on lands under the jurisdiction of the tribe.
(iv) Notice. The Agency Official shall notify the parties with
which it has consulted that a Programmatic Agreement has been executed
under this subsection, provide appropriate public notice before it
takes effect, and make any internal agency procedures implementing the
agreement readily available to the Council, SHPO/THPOs, and the public.
(v) Terms not carried out or termination. If the Council determines
that the terms of a Programmatic Agreement are not being carried out,
or if such an agreement is terminated, the Agency Official shall comply
with subpart B of this part with regard to individual undertakings of
the program covered by the agreement.
(3) Developing Programmatic Agreements for complex or multiple
undertakings. Consultation to develop a Programmatic Agreement for
dealing with the potential adverse effects of complex projects or
multiple undertakings shall follow Sec. 800.6. If consultation pertains
to an activity involving multiple undertakings and the parties fail to
reach agreement, then the Agency Official shall comply with the
provisions of subpart B of this part for each individual undertaking.
(c) Exempted categories.--(1) Criteria for establishing. An Agency
Official may propose a program or category of agency undertakings that
may be exempted from review under the provisions of subpart B of this
part, if the program or category meets the following criteria:
(i) The actions within the program or category would otherwise
qualify as ``undertakings'' as defined in Sec. 800.16;
(ii) The potential effects of the undertakings within the program
or category upon historic properties are foreseeable and likely to be
minimal or not adverse; and
(iii) Exemption of the program or category is consistent with the
purpose of the Act.
(2) Public participation. The Agency Official shall arrange for
public participation appropriate to the subject matter and the scope of
the exemption and in accordance with the standards in subpart A of this
part. The Agency Official shall consider the nature of the exemption
and its likely effects on historic properties and take steps to involve
individuals, organizations and entities likely to be interested.
(3) Consultation with SHPOs/THPOs. The Agency Official shall notify
and consider the views of the SHPOs/THPOs on the exemption.
(4) Consultation with Indian tribes and Native Hawaiian
organizations. If the exempted program or category of undertakings has
the potential to affect historic properties of religious and cultural
significance to an Indian tribe or Native Hawaiian organization, the
Council shall follow the requirements for the Agency Official set forth
in Sec. 800.14(f).
(5) Council review of proposed exemptions. The Council shall review
a request for an exemption that is supported by documentation
describing the program or category for which the exemption is sought,
demonstrating that the criteria of Sec. 800.14(c)(1) have been met,
describing the methods used to seek the views of the public, and
summarizing any views submitted by the public. Unless it requests
further information, the Council shall approve or reject the proposed
exemption within 30 days of receipt. The decision shall be based on the
consistency of the exemption with the purposes of the Act, taking into
consideration the magnitude of the exempted undertaking or program and
the likelihood of impairment of historic properties in accordance with
section 214 of the Act.
(6) Legal consequences. Any undertaking that falls within an
approved exempted program or category shall require no further review
pursuant to subpart B of this part, unless the Agency Official or the
Council determines that there are circumstances under which the
normally excluded undertaking should be reviewed under subpart B of
this part.
(7) Termination. The Council may terminate an exemption at the
request of the Agency Official or when the Council determines that the
exemption no longer meets the criteria of Sec. 800.14(c)(1). The
Council shall notify the Agency Official 30 days before termination
becomes effective.
(8) Notice. The Agency Official shall publish notice of any
approved exemption in the Federal Register.
(d) Standard treatments.--(1) Establishment. The Council, on its
own initiative or at the request of another party, may establish
standard methods for the treatment of a category of historic
properties, a category of undertakings, or a category or effects on
historic properties to assist Federal agencies in satisfying the
requirements of subpart B of this part. The Council shall publish
notice of standard treatments in the Federal Register.
(2) Public participation. The Council shall arrange for public
participation appropriate to the subject matter and the scope of the
standard treatment and consistent with subpart A of this part. The
Council shall consider the nature of the standard treatment and its
likely effects on historic properties and the individuals,
organizations and entities likely to be interests. Where an Agency
Official has proposed a standard treatment, the Council may request the
Agency Official to arrange for public involvement.
(3) Consultation with SHPOs/THPOs. The Council shall notify and
consider the views of SHPOs/THPOs on the proposed standard treatment.
(4) Consultation with Indian tribes and Native Hawaiian
organizations. If the proposed standard treatment has the potential to
affect historic properties on tribal lands or historic properties of
religious and cultural significance to an Indian tribe or Native
Hawaiian organization, the Council shall follow the requirements for
the Agency Official set forth in Sec. 800.14(f).
(5) Termination .The Council may terminate a standard treatment by
publication of notice in the Federal Registger 30 days before the
termination takes effect.
(e) Program comments. An Agency Official may request the Council to
comment on a category of undertakings in lieu of conducting individual
reviews under Secs. 800.4 through 800.6. The
[[Page 27083]]
Council may provide program comments at its own initiative.
(1) Agency request. The Agency Official shall identify the category
of undertakings, specify the likely effects on historic properties,
specify the steps the Agency Official will take to ensure that the
effects are taken into account, identify the time period for which the
comment is requested and summarize any views submitted by the public.
(2) Public participation. The Agency Official shall arrange for
public participation appropriate to the subject matter and the scope of
the category and in accordance with the standard in subpart A of this
part. The Agency Official shall consider the nature of the undertakings
and their likely effects on historic properties and the individuals,
organizations and entities likely to be interested.
(3) Consultation with SHPOs/THPOs. The Council shall notify and
consider the views of SHPOs/THPOs on the proposed program comment.
(4) Consultation with Indian tribes and Native Hawaiian
organizations. If the program comment has the potential to affect
historic properties on tribal lands or historic properties of religious
and cultural significance to an Indian tribe or Native Hawaiian
organization, the Council shall follow the requirements for the Agency
Official set forth in Sec. 800.14(f).
(5) Council action. Unless the Council requests additional
documentation, notifies the Agency Official that it will decline to
comment, or obtains the consent of the Agency Official to extend the
period for providing comment, the Council shall comment to the Agency
Official within 45 days of the request.
(i) If the Council comments, the Agency Official shall take into
account the comments of the Council in carrying out the undertakings
within the category and publish notice in the Federal Register of the
Council's comments and steps the agency will take to ensure that
effects to historic properties are taken into account.
(ii) If the Council declines to comment, the Agency Official shall
continue to comply with the requirements of Secs. 800.3 through 800.6
for the individual undertakings.
(6) Withdrawal of comment. If the Council determines that the
consideration of historic properties is not being carried out in a
manner consistent with the program comment, the Council may withdraw
the comment and the Agency Official shall comply with the requirements
of Secs. 800.3 through 800.6 for the individual undertakings.
(f) Consultation with Indian tribes and Native Hawaiian
organizations when developing program alternatives. Whenever an Agency
Official proposes a program alternative pursuant to Sec. 800.14 (a)-
(e), the Agency Official shall ensure that development of the program
alternative includes appropriate government-to-government consultation
with affected Indian tribes and consultation with affected Native
Hawaiian organizations.
(1) Identifying affected Indian tribes and Native Hawaiian
organizations. If any undertaking covered by a proposed program
alternative has the potential to affect historic properties on tribal
lands, the Agency Official shall identify and consult with the Indian
tribes having jurisdiction over such lands. If a proposed program
alternative has the potential to affect historic properties of
religious and cultural significance to an Indian tribe or a Native
Hawaiian organization which are located off tribal lands, the Agency
Official shall identify those Indian tribes and Native Hawaiian
organizations that might attach religious and cultural significance to
such properties and consult with them.
(2) Results of consultation. The Agency Official shall provide
summaries of the views, along with copies of any written comments,
provided by affected Indian tribes and Native Hawaiian organizations to
the Council as part of the documentation for the proposed program
alternative. The Agency Official and the Council shall take those views
into account in reaching a final decision on the proposed program
alternative.
Sec. 800.15 Tribal, State, and Local Program Alternatives. [Reserved]
Sec. 800.16 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) Approval of the expenditure of funds means any final agency
decision authorizing or permitting the expenditure of Federal funds or
financial assistance on an undertaking, including any agency decision
that may be subject to an administrative appeal.
(d) Area of potential effects means the geographic area or areas
within which an undertaking may directly or indirectly cause changes in
the character or use of historic properties, if any such properties
exist. The area of potential effects is influenced by the scale and
nature of an undertaking and may be different for different kinds of
effects cause by the undertaking.
(e) Comment means the findings and recommendations of the Council
formally provided in writing to the head of a Federal agency under
section 106.
(f) Consultation means the process of seeking, discussing, and
considering the views of other participants, and, where feasible,
seeking agreement with them regarding matters arising in the section
106 process. The Secretary's ``Standards and Guidelines for Federal
Agency Preservation Programs pursuant to the National Historic
Preservation Act'' provide further guidance on consultation.
(g) Council means the Advisory Council on historic Preservation or
a Council member or employee designated to act for the Council.
(h) Day or days means calendar days.
(i) Effect means alteration to the characteristics of a historic
property qualifying it for inclusion in or eligibility for the National
Register.
(j) Foreclosure means an action taken by an Agency Official that
effectively precludes the Council from providing comments which the
Agency Official can meaningfully consider prior to the approval of the
undertaking.
(k) Head of the agency means the chief official of the Federal
agency responsible for all aspects of the agency's actions. If a State,
local or tribal government has assumed or has been delegated
responsibility for section 106 compliance, the head of that unit of
government shall be considered the head of the agency.
(l) 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. This term includes artifacts, records,
and remains that are related to and located within such properties. The
term includes properties of traditional religious and cultural
importance to an Indian tribe or Native Hawaiian organization and that
meet the National Register criteria. 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 the National Register criteria.
(m) 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
[[Page 27084]]
United States to Indians because of their status as Indians.
(n) Local government means a city, county, parish, township,
municipality, borough, or other general purpose political subdivision
of a State.
(o) Memorandum of Agreement means the document that records the
terms and conditions agreed upon to resolve the adverse effects of an
undertaking upon historic properties.
(p) National Historic Landmark means a historic property that the
Secretary of the Interior has designated a National Historic Landmark.
(q) National Register means the National Register of Historic
Places maintained by the Secretary of the Interior.
(r) 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).
(s) 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. 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.
(t) Programmatic Agreement means a document that records the terms
and conditions agreed upon to resolve the potential adverse effects of
a Federal agency program, complex undertaking or other situations in
accordance with Sec. 800.14(b).
(u) Secretary means the Secretary of the Interior acting through
the Director of the National Park Service except where otherwise
specified.
(v) State Historic Preservation Officer (SHPO) 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.
(w) Tribal Historic Preservation Officer (THPO) means the tribal
official appointed by the tribe's chief governing authority or
designated by a tribal ordinance or preservation program who has
assumed the responsibilities of the SHPO for purposes of section 106
compliance on tribal lands in accordance with section 101(d)(2) of the
Act. For the purposes of subpart B of this part, the term also includes
the designated representative of an Indian tribe that has not formally
assumed the SHPO's responsibilities when an undertaking occurs on or
affects historic properties on the tribal lands of the Indian tribe.
(See Sec. 800.2(c)(2)).
(x) Tribal lands means all lands within the exterior boundaries of
any Indian reservation and all dependent Indian communities.
(y) Undertaking means a project, activity, or program funded in
whole or in part under the direct or indirect jurisdiction of a Federal
agency, including those carried out by or on behalf of a Federal
agency; those carried out with Federal financial assistance; those
requiring a Federal permit, license or approval; and those subject to
state or local regulation administered pursuant to a delegation or
approval by a Federal agency.
Appendix A to Part 800--Criteria For Council Involvement in Reviewing
Individual Section 106 Cases
Introduction. This appendix sets forth the criteria that will be
used by the Council to determine whether to enter an individual
section 106 review that it normally would not be involved in.
General Policy. The Council may choose to exercise its
authorities under the section 106 regulations to participate in an
individual project pursuant to the following criteria. However, the
Council will not always elect to participate even though one or more
of the criteria may be met.
Specific Criteria. The Council is likely to enter the section
106 process at the steps specified in the revised regulations when
an undertaking:
(1) Has substantial impacts on important historic properties.
This may include adverse effects on properties that possess a
national level of significance or on properties that are of unusual
or noteworthy importance or are a rare property type; or adverse
effects to large numbers of historic properties, such as impacts to
multiple properties within a historic district.
(2) Presents important questions of policy or interpretation.
This may include questions about how the Council's regulations are
being applied or interpreted, including possible foreclosure or
anticipatory demolition situations; situations where the outcome
will set a precedent affecting Council policies or program goals; or
the development of programmatic agreements that alter the way the
section 106 process is applied to a group or type of undertakings.
(3) Has the potential for presenting procedural problems. This
may include cases with substantial public controversy that is
related to historic preservation issues; with disputes among or
about consulting parties which the Council's involvement could help
resolve; that are involved or likely to be involved in litigation on
the basis of section 106; or carried out by a Federal agency, in a
State or locality, or on tribal lands where the Council has
previously identified problems with section 106 compliance pursuant
to Section 800.9(d)(2).
(4) Presents issues of concern to Indian tribes or Native
Hawaiian organizations. This may include cases where there have been
concerns raised about the identification of, evaluation of or
assessment of effects on historic properties to which an Indian
tribe or Native Hawaiian organization attaches religious and
cultural significance; where an Indian tribe or Native Hawaiian
organization has requested Council involvement to assist in the
resolution of adverse effects; or where there are questions relating
to policy, interpretation or precedent under section 106 or its
relation to other authorities, such as the Native American Graves
Protection and Repatriation Act.
Dated: May 7, 1999.
John M. Fowler,
Executive Director.
[FR Doc. 99-12054 Filed 5-17-99; 8:45 am]
BILLING CODE 4310-10-M
