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CULTURAL RESOURCE MANAGEMENT Federal Regulations


Code of Federal Regulations
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.

  --------------------------------------------------------------------
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

[[Page 83]]

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

[[Page 84]]

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.

[[Page 85]]
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

[[Page 86]]

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,

[[Page 87]]

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

[[Page 88]]

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.

[[Page 89]]

    (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;

[[Page 90]]

    (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).

[[Page 92]]

    (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

[[Page 93]]

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

[[Page 95]]

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

[[Page 98]]

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.

[[Page 99]]

    (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

[[Page 100]]

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.

[[Page 101]]

    (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.

[[Page 102]]

    (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

[[Page 103]]

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]
 
Sec. 800.16  Definitions.

    (a) Act means the National Historic Preservation Act of 1966, as 
amended, 16 U.S.C. 470-470w-6.
    (b) Agency means agency as defined in 5 U.S.C. 551.
    (c) Approval of the expenditure of funds means any final agency 
decision authorizing or permitting the expenditure of Federal funds or 
financial assistance on an undertaking, including any agency decision 
that may be subject to an administrative appeal.
    (d) Area of potential effects means the geographic area or areas 
within which an undertaking may directly or indirectly cause alterations 
in the character or use of historic properties, if any such properties 
exist. The area of potential effects is influenced by the scale and 
nature of an undertaking and may be different for different kinds of 
effects caused by the undertaking.
    (e) Comment means the findings and recommendations of the Council 
formally provided in writing to the head of a Federal agency under 
section 106.
    (f) Consultation means the process of seeking, discussing, and 
considering the views of other participants, and, where feasible, 
seeking agreement with them regarding matters arising in the section 106 
process. The Secretary's ``Standards and Guidelines for Federal Agency 
Preservation Programs pursuant to the National Historic Preservation 
Act'' provide further guidance on consultation.
    (g) Council means the Advisory Council on Historic Preservation or a 
Council member or employee designated to act for the Council.
    (h) Day or days means calendar days.
    (i) Effect means alteration to the characteristics of a historic 
property qualifying it for inclusion in or eligibility for the National 
Register.
    (j) Foreclosure means an action taken by an agency official that 
effectively precludes the Council from providing comments which the 
agency official can meaningfully consider prior to the approval of the 
undertaking.
    (k) Head of the agency means the chief official of the Federal 
agency responsible for all aspects of the agency's actions. If a State, 
local, or tribal government has assumed or has been delegated 
responsibility for section 106 compliance, the head of that unit of 
government shall be considered the head of the agency.
    (l)(1) Historic property means any prehistoric or historic district, 
site, building, structure, or object included in, or eligible for 
inclusion in, the National Register of Historic Places maintained by the 
Secretary of the Interior. This term includes artifacts, records, and 
remains that are related to and located within such properties. The term 
includes properties of traditional religious and cultural importance to 
an Indian tribe or Native Hawaiian organization and that meet the 
National Register criteria.
    (2) The term eligible for inclusion in the National Register 
includes both properties formally determined as such in accordance with 
regulations of the Secretary of the Interior and all other properties 
that meet the National Register criteria.
    (m) Indian tribe means an Indian tribe, band, nation, or other 
organized group or community, including a native village, regional 
corporation, or village corporation, as those terms are defined in 
section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602), 
which is recognized as eligible for the special programs and services 
provided by the United States to Indians because of their status as 
Indians.
    (n) Local government means a city, county, parish, township, 
municipality, borough, or other general purpose political subdivision of 
a State.
    (o) Memorandum of agreement means the document that records the 
terms and conditions agreed upon to resolve the adverse effects of an 
undertaking upon historic properties.
    (p) National Historic Landmark means a historic property that the 
Secretary

[[Page 104]]

of the Interior has designated a National Historic Landmark.
    (q) National Register means the National Register of Historic Places 
maintained by the Secretary of the Interior.
    (r) National Register criteria means the criteria established by the 
Secretary of the Interior for use in evaluating the eligibility of 
properties for the National Register (36 CFR part 60).
    (s)(1) Native Hawaiian organization means any organization which 
serves and represents the interests of Native Hawaiians; has as a 
primary and stated purpose the provision of services to Native 
Hawaiians; and has demonstrated expertise in aspects of historic 
preservation that are significant to Native Hawaiians.
    (2) Native Hawaiian means any individual who is a descendant of the 
aboriginal people who, prior to 1778, occupied and exercised sovereignty 
in the area that now constitutes the State of Hawaii.
    (t) Programmatic agreement means a document that records the terms 
and conditions agreed upon to resolve the potential adverse effects of a 
Federal agency program, complex undertaking or other situations in 
accordance with Sec. 800.14(b).
    (u) Secretary means the Secretary of the Interior acting through the 
Director of the National Park Service except where otherwise specified.
    (v) State Historic Preservation Officer (SHPO) means the official 
appointed or designated pursuant to section 101(b)(1) of the act to 
administer the State historic preservation program or a representative 
designated to act for the State historic preservation officer.
    (w) Tribal Historic Preservation Officer (THPO) means the tribal 
official appointed by the tribe's chief governing authority or 
designated by a tribal ordinance or preservation program who has assumed 
the responsibilities of the SHPO for purposes of section 106 compliance 
on tribal lands in accordance with section 101(d)(2) of the act.
    (x) Tribal lands means all lands within the exterior boundaries of 
any Indian reservation and all dependent Indian communities.
    (y) Undertaking means a project, activity, or program funded in 
whole or in part under the direct or indirect jurisdiction of a Federal 
agency, including those carried out by or on behalf of a Federal agency; 
those carried out with Federal financial assistance; those requiring a 
Federal permit, license or approval; and those subject to State or local 
regulation administered pursuant to a delegation or approval by a 
Federal agency.

 Appendix A to Part 800--Criteria for Council Involvement in Reviewing 
                      Individual section 106 Cases

    (a) Introduction. This appendix sets forth the criteria that will be 
used by the Council to determine whether to enter an individual section 
106 review that it normally would not be involved in.
    (b) General policy. The Council may choose to exercise its 
authorities under the section 106 regulations to participate in an 
individual project pursuant to the following criteria. However, the 
Council will not always elect to participate even though one or more of 
the criteria may be met.
    (c) Specific criteria. The Council is likely to enter the section 
106 process at the steps specified in the regulations in this part when 
an undertaking:
    (1) Has substantial impacts on important historic properties. This 
may include adverse effects on properties that possess a national level 
of significance or on properties that are of unusual or noteworthy 
importance or are a rare property type; or adverse effects to large 
numbers of historic properties, such as impacts to multiple properties 
within a historic district.
    (2) Presents important questions of policy or interpretation. This 
may include questions about how the Council's regulations are being 
applied or interpreted, including possible foreclosure or anticipatory 
demolition situations; situations where the outcome will set a precedent 
affecting Council policies or program goals; or the development of 
programmatic agreements that alter the way the section 106 process is 
applied to a group or type of undertakings.
    (3) Has the potential for presenting procedural problems. This may 
include cases with substantial public controversy that is related to 
historic preservation issues; with disputes among or about consulting 
parties which the Council's involvement could help resolve; that are 
involved or likely to be involved in litigation on the basis of section 
106; or carried out by a Federal agency, in a State or locality, or on 
tribal lands where the Council has previously identified problems with 
section 106 compliance pursuant to Sec. 800.9(d)(2).
    (4) Presents issues of concern to Indian tribes or Native Hawaiian 
organizations. This may include cases where there have been concerns

[[Page 105]]

raised about the identification of, evaluation of or assessment of 
effects on historic properties to which an Indian tribe or Native 
Hawaiian organization attaches religious and cultural significance; 
where an Indian tribe or Native Hawaiian organization has requested 
Council involvement to assist in the resolution of adverse effects; or 
where there are questions relating to policy, interpretation or 
precedent under section 106 or its relation to other authorities, such 
as the Native American Graves Protection and Repatriation Act.

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