Code of Federal Regulations
Title
36:Parks, Forests, and Public Property
Chapter VIII - Advisory Council on Historic Preservation
Part 800 - Protection of Historic Properties
Subpart A_Purposes and Participants
Sec. 800.1 Purposes.
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Part Page
800 Protection of historic properties........... 81
801 Historic preservation requirements of the
Urban Development Action Grant Program..105
805 Procedures for implementation of National
Environmental Policy Act................ 118
810 Freedom of Information Act regulations......119
811 Employee responsibilities and conduct.......122
812 Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by the Advisory
Council on Historic Preservation........122
813-899 [Reserved]
[[Page 81]]
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 to Part 800--Criteria for Council involvement in reviewing
individual section 106 cases
Authority: 16 U.S.C. 470s.
Source: 65 FR 77725, Dec. 12, 2000, unless otherwise noted.
[Code of Federal Regulations]
[Title 36, Volume 3]
[Revised as of July 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 36CFR800.1]
[Page 79-81]
TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY
CHAPTER VIII--ADVISORY COUNCIL
ON HISTORIC PRESERVATION
PART 800_PROTECTION OF HISTORIC PROPERTIES--Table of Contents
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 to 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 the 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
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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, 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 paragraph (c) of this section 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 and
cooperates with such agencies, local governments and organizations and
individuals to
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ensure that historic properties are taking into consideration at all
levels of planning and development.
(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) Indian tribes and Native Hawaiian organizations. (i)
Consultation on tribal lands. (A) Tribal historic preservation officer.
For a tribe that has assumed the responsibilities of the SHPO for
section 106 on tribal lands under section 101(d)(2) of the act, the
tribal historic preservation officer (THPO) appointed or designated in
accordance with the act is the official representative for the purposes
of section 106. The agency official shall consult with the THPO in lieu
of the SHPO regarding undertakings occurring on or affecting historic
properties on tribal lands.
(B) Tribes that have not assumed SHPO functions. When 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. Such Indian tribes have the
same rights of consultation and concurrence that the THPOs are given
throughout subpart B of this part, except that such consultations shall
be in addition to and on the same basis as consultation with the SHPO.
(ii) Consultation on historic properties of significance to 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. This requirement applies regardless of the location of the
historic property. Such Indian tribe or Native Hawaiian organization
shall be a consulting party.
(A) 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.
(B) 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 alters, amends, repeals, interprets,
or modifies tribal sovereignty, any treaty rights, or other rights of an
Indian tribe, or preempts, modifies, or limits the exercise of any such
rights.
(C) 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.
(D) 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
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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.
(E) An Indian tribe or a Native Hawaiian organization may enter into
an agreement with an agency official that specifies how they will carry
out 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.
(F) 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.
(3) 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.
(4) 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 or group of applicants 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 when an applicant or group of applicants is so
authorized. A Federal agency may authorize all applicants in a specific
program pursuant to this section by providing notice to all SHPO/THPOs.
Federal agencies that provide authorizations to applicants remain
responsible for their government-to-government relationships with Indian
tribes.
(5) 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.
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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 is a type of
activity that does not have the potential to cause effects on historic
properties, assuming such historic properties were present, 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 January 11, 2001,
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 Archeological 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 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
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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 Sec. Sec. 800.3 through 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. In consultation with
the SHPO/THPO, the agency official shall:
(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 paragraph (a) of this section, 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,
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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 paragraphs (b)(1) and (c) of this
section.
(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 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
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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 paragraph (d)(1) of this section, 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, any 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
paragraph (a)(1) of this section 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.
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(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
paragraph (c)(3) of this section.
(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 paragraph
(c)(3) of this section.
(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 paragraph (c)(3) of this section. 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 paragraph (c)(2) of this section, the agency
official shall include the documentation specified in Sec. 800.11(e).
The Council shall review the finding and notify the 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 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 paragraph
(a) of this section.
(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;
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(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 paragraph (b)(2) of this
section.
(iv) If the Council does not join the consultation, the agency
official shall proceed with consultation in accordance with paragraph
(b)(1) of this section.
(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
paragraphs (a)(3) and (a)(4) of this section. 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 paragraph (b)(2) of this section.
(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
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agency official shall proceed in accordance with paragraph (b)(2) of
this section. 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. The agency official shall ensure that
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 paragraph (b)(1) of this
section.
(ii) The agency official, the SHPO/THPO, and the Council are the
signatories to a memorandum of agreement executed pursuant to paragraph
(b)(2) of this section.
(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
additional parties to be signatories to a memorandum of agreement. Any
such party that signs the memorandum of agreement shall have the same
rights with regard to seeking amendment or termination of the memorandum
of agreement as other signatories.
(ii) 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.
(iii) The agency official should invite any party that assumes a
responsibility under a memorandum of agreement to be a signatory.
(iv) The refusal of any party invited to become a signatory to a
memorandum of agreement pursuant to paragraph (c)(2) of this section
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 or are not being 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 paragraph (c)(1) of this section or request the comments of the
Council under Sec. 800.7(a).
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(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 paragraph (c) of this section 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 paragraph (c) of this section.
(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 paragraph (c) of
this section. 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 paragraph (a)(1) or (a)(3) of this section
or Sec. 800.8(c)(3), or termination by the Council under Sec.
800.6(b)(1)(v) or paragraph (a)(4) of this section, 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(l) 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 Coordination 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
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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 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 roles. 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) or 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 Sec. Sec. 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 the 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 Sec. Sec. 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
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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 paragraph (c)(1) of this
section 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 paragraph (c)(2)(ii) of this
section, 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 an EA or EIS that the effects of an
undertaking on historic properties are adverse, the agency official
shall develop measures in the EA, DEIS, or EIS to avoid, minimize, or
mitigate such effects in accordance with paragraph (c)(1)(v) of this
section. The agency official's responsibilities under section 106 and
the procedures in this subpart shall then be satisfied when either:
(i) A binding commitment to such proposed measures is incorporated
in:
(A) The ROD, if such measures were proposed in a DEIS or EIS; or
(B) An MOA drafted in compliance with Sec. 800.6(c); or
(ii) The Council has commented under Sec. 800.7 and received the
agency's response to such comments.
(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 paragraph (c)(4) of
this section) 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 Sec. Sec. 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 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
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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 Sec. Sec. 800.3 through 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 process in this part, the Council may participate in
individual case reviews conducted under such process in addition to the
SHPO/THPO for such 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) of the act requires that
the agency official, to the maximum extent possible, undertake such
planning and actions as may be necessary to minimize harm to any
National Historic
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Landmark that may be directly and adversely affected by an undertaking.
When commenting on such undertakings, the Council shall use the process
set forth in Sec. Sec. 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. The agency official shall provide such
documentation to the extent permitted by law and within available funds.
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.
(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 these criteria, the Secretary, in
consultation with such Federal agency head or official, shall determine
who may have access to the information for the purposes 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 the SHPO/THPO, 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
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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) Memorandum 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 Sec. Sec.
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 paragraph (a) of this section, 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
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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, paragraphs (a) and (b) of this section 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 Sec. Sec. 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 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 paragraph (a)(1) of this section, 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 paragraph (a) of this section, 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 archeological
data, the agency official may comply with the Archeological 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
agency official's assessment of National Register eligibility of the
property and proposed actions 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. The agency official
shall take into account their recommendations regarding National
Register eligibility and proposed actions, and then 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.
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(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
paragraph (a) of this section 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 paragraph (f) of this
section, 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) The consultation shall involve, as appropriate, SHPO/THPOs, the
National Conference of State Historic Preservation Officers (NCSHPO),
Indian tribes and Native Hawaiian organizations, other Federal agencies,
and
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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 paragraph
(f) of this section.
(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 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
paragraph (b) of this section, 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) 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.
(4) Prototype programmatic agreements. The Council may designate an
agreement document as a prototype programmatic agreement that may be
used for the same type of program or undertaking in more than one case
or area. When an agency official uses such a prototype programmatic
agreement, the agency official may develop and execute the agreement
with the appropriate SHPO/THPO and the agreement shall become final
without need for Council participation in consultation or Council
signature.
(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
purposes of the act.
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(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 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 paragraph (f) of this section.
(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 paragraph (c)(1) of this section have been met,
describing the methods used to seek the views of the public, and
summarizing any views submitted by the SHPO/THPOs, the public, and any
others consulted. Unless it requests further information, the Council
shall approve or reject the proposed exemption within 30 days of
receipt, and thereafter notify the agency official and SHPO/THPOs of the
decision. 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 paragraph (c)(1) of this
section. 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 of 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 interested. 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 paragraph (f) of this section.
(5) Termination. The Council may terminate a standard treatment by
publication of a notice in the Federal Register 30 days before the
termination takes effect.
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(e) Program comments. An agency official may request the Council to
comment on a category of undertakings in lieu of conducting individual
reviews under Sec. Sec. 800.4 through 800.6. The 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 standards 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 paragraph (f) of this section.
(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 Sec. Sec. 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
Sec. Sec. 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 paragraphs (a)
through (e) of this section, 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. When a proposed program alternative has
nationwide applicability, the agency official shall identify an
appropriate government to government consultation with Indian tribes and
consult with Native Hawaiian organizations in accordance with existing
Executive orders, Presidential memoranda, and applicable provisions of
law.
(2) Results of consultation. The agency official shall provide
summaries of the views, along with copies of any written comments,
provided by affected Indian
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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.
800.15 Tribal, State, and local program alternatives. [Reserved]