[Federal Register Volume 59, Number 190 (Monday, October 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24357]


[[Page Unknown]]

[Federal Register: October 3, 1994]


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Part VI





Advisory Council on Historic Preservation





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36 CFR Part 800




Protection of Historic Properties; Proposed Rule
ADVISORY COUNCIL ON HISTORIC PRESERVATION

36 CFR Part 800

 
Protection of Historic Properties

Agency: Advisory Council on Historic Preservation.

Action: Notice of proposed rulemaking; revision of current regulations.

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Summary: The Advisory Council on Historic Preservation (Council) is 
proposing changes to its regulations in order to implement the 1992 
amendments to the National Historic Preservation Act and to improve the 
Section 106 process, by which Federal agencies consider the effects of 
their undertakings on historic properties. The proposed changes seek to 
balance the interests and concerns of various users of the Section 106 
process, including Federal agencies, State Historic Preservation 
Officers (SHPOs), Native Americans and Native Hawaiians, and the 
public. The revised regulations also respond to the new Section 110 
provisions in the 1992 amendments which require Federal agencies to 
establish historic preservation programs.

Dates: Comments must be received on or before December 2, 1994. In 
recognition of the unique trust and treaty relationships between the 
United States Government and Indian tribes, their enhanced role in the 
Section 106 process as directed by the National Historic Preservation 
Act amendments of 1992, and the possibility that some tribes will need 
more than 60 days to provide comments, the Council will provide on 
request an additional 30 days for an Indian tribe to submit comments. A 
representative of the tribal government must file such request with the 
Council no later than December 2, 1994.

Addresses: Comments should be addressed to the Executive Director, 
Advisory Council on Historic Preservation, 1100 Pennsylvania Avenue, 
Suite 809, Washington, DC 20004. Fax 202-606-8647.

For Further Information Contact: Stephanie Woronowicz, Information 
Assistant, Advisory Council on Historic Preservation, 1100 Pennsylvania 
Avenue, Suite 809, Washington, DC 20004 (202) 606-8503.

Supplementary Information:

I. Background

    Section 106 of the National Historic Preservation Act of 1966, as 
amended, 16 U.S.C. Sec. 470f, requires Federal agencies to take into 
account the effect of their undertakings on properties included in or 
eligible for inclusion in the National Register of Historic Places and 
to afford the Council a reasonable opportunity to comment on such 
undertakings. Public Law 102-575 was enacted in October, 1992, and 
contains amendments to the National Historic Preservation Act which 
affect the way Section 106 review is carried out under the Council's 
regulations. Furthermore, as part of the Administration's National 
Performance Review, the Council undertook a review of the current 
regulatory process to identify potential changes that could improve the 
operation of the Section 106 process and conform it to the principles 
of this Administration. The Council commenced an information-gathering 
effort to assess the current Section 106 process and to identify 
desirable changes.
    As a part of this effort, the Council sent a questionnaire to 1,200 
users of the Section 106 process, including Federal agencies, SHPOs, 
State and local governments, applicants for Federal assistance, Native 
Americans, preservation groups, contractors involved in the process, 
and members of the public. The questionnaires sought opinions on the 
current regulatory process and ideas for enhancing the process. The 
Council received over 400 responses. After analyzing the responses and 
holding several meetings with Federal Preservation Officers and SHPOs, 
the Council staff presented its preliminary findings to a special 
Council member Task Force comprised of the Department of 
Transportation, the National Conference of State Historic Preservation 
Officers, the National Trust for Historic Preservation, Native American 
representative William Tallbull, expert member Jane Davidson, and 
Council chairman Cathryn Buford Slater.
    The key findings presented to and adopted by the Regulations Task 
Force were the following: (1) Federal agencies and SHPOs should be 
given greater authority to conclude Section 106 review; (2) the Council 
should spend more time monitoring program trends and overall 
performance of Federal agencies and SHPOs and less time reviewing 
individual cases or participating in case-specific consultation; (3) 
Section 106 review requirements should be integrated with environmental 
review required by other statutes; (4) enforcement of Section 106 
should be increased and specific remedies should be provided for 
failure to comply; and (5) there should be expanded opportunities for 
public involvement in the Section 106 process.

II. Summary of Regulatory Changes

    Consistent with the findings adopted by the Council Regulations 
Task Force, the Council proposes to revise its regulations as follows:

Subpart A--Background and Policy

    This Subpart adds a new section describing the goals of the 
consultation process (Section 800.1(b)) and clarifying the roles of 
participants in the Section 106 process, particularly those of Native 
Americans and Native Hawaiians (Section 800.1(e)) as required by the 
1992 NHPA amendments. The provision regarding Native American and 
Native Hawaiian participation provides detailed guidance on how Federal 
agency officials consult with Native American and Native Hawaiian 
organizations that attach religious and cultural significance to 
historic properties that may be affected by an undertaking (Section 
800.1(e)(5)). The section on participants in the Section 106 process 
also elaborates on the role and rights of the public to participate in 
the process (Section 800.6(e)(6)). In order to encourage consideration 
of historic properties as early in the planning stages as possible, the 
regulations specifically set forth a section on timing (Section 
800.6(c)).
    Subpart A also adds new definitions and revises current definitions 
to conform to the 1992 NHPA amendments and to clarify terms which have 
raised questions during the implementation of the Section 106 process 
(Section 800.2). New definitions include: agency, anticipatory 
demolition, approval of the expenditure of funds, comment, conditional 
no adverse effect agreement, consultation, Council membership, 
foreclosure, head of the agency, memorandum of agreement, Native 
Hawaiian, Native Hawaiian organization, notice of violation, 
traditional community, and traditional cultural authority. Revised 
definitions include: agency official, area of potential effects, 
historic property, Indian tribe, interested (party) person, Indian 
(tribal) lands, and undertaking. The definition of undertaking has been 
changed to accord with the intent of the statutory definition provided 
in the 1992 NHPA amendments.

Subpart B--Federal Procedures to Implement Section 106

    The Council has added new provisions to assist agencies in meeting 
their responsibilities under the statutory requirement in Section 
110(a)(2) of the 1992 NHPA amendments which requires agencies to 
develop preservation programs and to ensure that the agencies' 
procedures for compliance with Section 106 are consistent with the 
Council's procedures (Sections 800.3-800.6). The provisions implement 
the principle that agency procedures establishing a preservation 
program must be consistent with the Council's regulations by providing 
standards for consistency (Section 800.4) and processes through which 
the Council can evaluate whether these standards have been met (Section 
800.5 and 800.6).

Subpart C--The Section 106 Process

    The heart of the Section 106 process is in Subpart C. The 
provisions in this Subpart have changed to allow for more agency-SHPO 
decisionmaking without Council involvement. To offset the Council's 
removal from routine cases, this Subpart gives the Council the 
authority to resolve disputes between Federal agencies and SHPOs and to 
monitor agency performance and provides an expanded opportunity for the 
public to request the Council to intervene in particular cases.
    Section 800.7(a-e) sets forth the steps that an agency official 
must go through prior to the identification of historic properties. 
These provisions emphasize the need for early planning and 
coordination, both with reviews under other authorities and with other 
individuals and organizations, prior to the initiation of the 
identification stage. The identification and evaluation stages (Section 
800.8) remain essentially the same as the present regulations, except 
that the regulation adds a provision allowing for Council review of 
agency decisions made during the identification and evaluation stages 
(Section 800.8(e)). As a supplement to Section 800.8, a non-binding 
Appendix has been added to provide additional clarification on the 
identification process and the establishment of the area of potential 
effects.
    The revised regulations eliminate the determination of effect step 
(and the existing Criteria of Effect) currently in the Section 106 
process and allow an agency to apply the criteria of adverse effect 
directly after completing the identification stage (Section 800.9(a)). 
An agency is no longer required to notify the Council of a finding of 
no adverse effect, but the Council may review such a finding if 
requested or if the Council deems it appropriate (Section 800.9(d)). 
The revised regulations also eliminate the exceptions to a finding of 
adverse effect and incorporate those exceptions into a new provision 
allowing for conditional no adverse effect agreements (Section 
800.9(b)(2)). The intent of the addition of the conditional no adverse 
effect agreement provision is to allow agencies and SHPOs flexibility 
in reaching routine agreements while maintaining agency accountability. 
It formally recognizes a practice that has already become widespread 
under the current regulations.
    In order to resolve adverse effects more efficiently, the revised 
regulations provide more autonomy to the SHPO and the Federal agency. 
The revised regulations establish a method for resolution of adverse 
effects without the Council's participation, changing the current two-
party Memorandum of Agreement process (Sections 800.10(a)(1) and 
800.10(c)(1)). Under this provision, if the Council elects not to 
participate in the negotiation, the agency and the SHPO may execute a 
Memorandum of Agreement which is sent to the Council, but need not be 
executed by the Council (Section 800.10(c)(1)). The revised regulations 
also clarify the use, force and effect of a Memorandum of Agreement and 
its provisions (Section 800.10(d)).
    If a Memorandum of Agreement cannot be reached during two-party 
consultation, the parties must seek the Council's participation and 
enter three-party consultation before terminating negotiations. If a 
Memorandum of Agreement cannot be reached, the revised regulations set 
forth more detailed provisions on termination of negotiations and 
Council comments (Section 800.11)). With regard to Council comments, 
the new regulations require that the head of the agency respond to the 
Council's comments in accordance with Section 110(l) of the NHPA.
    In responding to comments made by respondents to the Council's 
survey of Section 106 users and in order to balance the Council's 
removal from routine Section 106 cases, the revised regulations 
establish a new section on agency monitoring and compliance (Section 
800.12). This section provides for the review of an agency official's 
findings, providing more detail than the review procedures contained in 
the current regulations at Section 800.6(e). The monitoring and 
compliance section also includes a new provision for the issuance of a 
notice of violation to an agency which has violated or, in the case of 
a preliminary notice of violation, is about to violate the requirements 
of the NHPA. In response to the 1992 amendments which added Section 
110(k), the Council has established procedures addressing anticipatory 
demolition.

Subpart D--Alternative Procedures

    This Subpart provides options for complying with the requirements 
of Section 106 other than those set forth in Subpart C. Its purpose is 
to encourage agencies to integrate the Section 106 process into their 
internal planning procedures. Section 800.16 of the revised regulations 
explains that counterpart procedures, as described in Sections 800.4 
and 800.5(a), Programmatic Agreements, as described in Section 
800.5(b), provide alternative means of compliance. In accordance with 
Section 101(d)(5) of the NHPA, the Council has added a new provision to 
establish a process by which an Indian tribe may substitute its tribal 
historic preservation regulations for the Council's regulations for 
review of undertakings on tribal lands (Section 800.17). The Council 
has also attempted to address the unique situations created by 
disasters or emergencies and has revised its emergency regulations to 
emphasize the need for the development of agency counterpart procedures 
which establish a plan for considering historic properties during 
responses to disasters and emergencies. The revised emergency 
regulations delete reference to 36 CFR Part 78 in order to encourage 
agencies to develop their own procedures for dealing with disasters. 
The Council has limited the applicability of the regulations to natural 
disasters or emergencies declared by the President or by an Agency 
Official.

Subpart E--Coordination With Other Authorities

    As an expansion and revision of the current regulations regarding 
agency coordination, requested by surveyed users, the revised 
regulations establish more detailed guidance on coordination with the 
National Environmental Policy Act and indicate other relevant statutes 
where coordination is desirable (Section 800.19).

III. Issues Deserving Special Attention From Commenters

    In the development of these revisions, the Council determined that 
several issues warranted special attention from commenters. These 
issues fall into three categories: (1) areas of particular concern to 
the Council on which the views of users and the public are particularly 
solicited; (2) provisions that could be drafted in one or more 
alternative ways and views are sought on the best alternative; and (3) 
questions about actions that could be taken to improve the functioning 
of the Section 106 process, but that would not be specifically included 
in the regulations. The Council invites commenters to give these issues 
special consideration and provide views for its use.
1. Agency Implementing Procedures
    Section 110(a)(2)(E)(i) of the NHPA requires that each Federal 
agency have procedures for compliance with Section 106 that are 
consistent with the Council's regulations. The Secretary of the 
Interior, acting through the Director of the National Park Service, and 
the Council share oversight for this provision, since the Secretary is 
charged with providing guidance on implementing Section 110 
responsibilities. The Council wishes to encourage Federal agencies to 
develop such procedures to adapt the Section 106 process to their 
particular needs and to better integrate Section 106 into their regular 
planning processes. Subpart B of the revised regulations sets forth 
criteria for evaluating consistency; outlines a process for Council 
review of such procedures; and defines the consequences of a Council 
finding regarding consistency. Does the proposed process meet the need 
for agency program oversight? Are there ways the regulations could 
better encourage Federal agencies to adopt the required procedures in a 
timely manner? Are there better alternatives to the proposed 
consistency standards and review process? Are the criteria appropriate 
to meet the objective on achieving internal Federal agency procedures 
that effectively implement Section 106?
2. Exemption of Certain Undertakings From the Section 106 Process
    As part of the development of agency procedures to implement 
Section 106, the proposed regulations include a new provision that will 
allow agencies to waive the Section 106 review for categories of 
undertakings which generally would not have an effect on historic 
properties. Since the use of categorical exclusions has been a major 
component of the NEPA process, there is the potential that this 
provision may be confusing. Further, approval of such a listing may 
incorrectly infer that the exemption of a class of undertakings means 
that an included undertaking could never result in adverse effect to 
historic properties. Should the procedures for categorical exemptions 
be included in the revised regulations? Should they be further 
distinguished from NEPA categorical exclusions to avoid confusion? Are 
the criteria for categorical exemptions too broad or too narrow? Should 
parties other than the agency and the Council be able to require 
individual Section 106 reviews for undertakings previously listed as 
categorical exclusions?
3. Regulation Versus Guidance
    When surveyed, users of the current Section 106 regulations 
generally requested more specificity and guidance on various provisions 
of the regulations. The revised regulations respond to that concern. 
Are the regulatory provisions sufficiently detailed or have they become 
too specific? Where should any changes be made? Should some existing 
material or additional material be set forth in appendices to the 
regulations or in separate, subsequently issued guidance documents?
4. Public Participation
    The proposed regulations rely heavily on increased access for the 
public to the Section 106 process to offset the Council's reduced role 
in individual cases. These enhanced opportunities for public 
involvement anticipate both a greater public role in shaping decisions 
regarding the treatment of effects on historic properties and a more 
active watchdog function for the public to ensure that procedures are 
followed and decisions are made properly. Conversely, expanded public 
participation can impose burdens on Federal planning processes and 
adequate opportunities for public input often require that extra 
efforts and time be expended by Federal officials. The revised 
regulations attempt to strike a balance between these two extremes, 
with an emphasis on public access to the process. Has this balance been 
struck effectively? Are there specific places where public notification 
or participation should be strengthened or reduced? Should the 
regulations be more specific on public participation or should 
additional guidance be provided in less formal channels, such as 
guidance documents?
5. Role of Certain Interested Parties
    The proposed regulations seek to clarify and enhance the 
involvement of individuals and organizations that have significant 
interests in the negotiating process designed to avoid or minimize 
adverse effects (See Section 800.10(b)(1)). One such group is owners of 
properties affected by the undertaking and whose interests may be 
impacted by decisions made in the Section 106 process regarding the 
avoidance or mitigation of the undertaking's adverse effects on 
historic properties. The proposed regulations allow all owners of 
affected properties to participate in negotiations for a Memorandum of 
Agreement, provided that the Council can limit participation to a 
representative if the number of owners desiring to participate becomes 
unwieldy. Is this a reasonable balance of access and procedural 
efficiency? Should only owners of historic properties be given this 
status? How broadly should ``affected'' be defined?
6. Substitution of State and Local Review Processes for These 
Regulations.
    The current regulations allow a Certified Local Government (CLG), 
as established under Section 101(c)(1) of the NHPA, to assume the role 
of the State Historic Preservation Officer (SHPO) in the Section 106 
review when the Council, SHPO, and local government are in agreement. 
The proposed regulations delete this provision, in the interest of 
avoiding too many variations on the Section 106 process and resultant 
confusion. Should the current role of CLGs be maintained? Should it be 
expanded to allow review procedures established under local law and 
administered by a CLG to substitute for the Council's regulations? 
Should the regulations require Federal agencies to routinely consult 
with CLGs in addition to or in lieu of consultation with SHPOs? The 
current regulations allow State review systems to substitute for the 
Federal process under certain circumstances. The revised regulations 
delete this. Should it be retained and, if so, should it be modified 
from its current form?
7. Role of the Federal Preservation Officer
    Section 110(c) of the NHPA requires Federal agencies to designate 
an official to be responsible for coordinating the agency's activities 
under the NHPA. However, the position and function of the Federal 
Preservation Officer (FPO) vary widely from agency to agency and the 
revised regulations are currently silent on the issue. Given the key 
role the NHPA intends for the FPO to play as a central agency-wide 
coordinator, should the Section 106 regulations define a role for the 
FPO? If so, should it be with regard to all individual project review, 
terminations where Council member comment is sought (Section 800.11), 
the development of agency procedures (Subpart B) or something else?
8. Disputes Over Application of the Regulations
    When surveyed, users reported a serious shortcoming in the current 
regulations with the lack of any process to resolve disputes over when 
Section 106 applies and over the various determinations made in the 
Section 106 process. The proposed regulations authorize the Council to 
do this at several points. These include whether an action is an 
``undertaking'' (Section 800.7(a)), what the area of potential effects 
is (Section 800.8(a)), whether historic properties are present (Section 
800.8(e)) and whether documentation to support agency determinations is 
adequate (Section 800.14(f)). Such determinations would be legally 
binding for purposes of Section 106. Alternatives to Council resolution 
include giving the Federal agency the authority to make these 
determinations, referring the matter to a third party such as the 
Office of Management and Budget or the Justice Department or continuing 
the current situation where the absence of a recognized administrative 
decisionmaker leaves resolution to the Federal courts, but only if a 
formal legal challenge is made. Is the proposed system the best 
alternative?
9. Reviews and Appeals
    There are several points in the current Section 106 regulations 
which provide an opportunity for Council review of agency decisions and 
for public appeals to the Council. The proposed regulations expand the 
right to appeal Federal agency decisions to the Council by giving the 
public a broad right to request review of an agency decision, although 
the Council may determine that the request is not timely. (See Section 
800.12(a)(1).) This expanded appeal process is intended to serve as a 
balance for the Council's withdrawal from regular involvement in 
agency-SHPO decisions in the Section 106 process. While the regulation 
(Section 800.12(a)(1)) allows an agency to go forward with an 
undertaking while the Council conducts its review, the open-endedness 
of the appeals process diminishes the finality of Section 106 
compliance for Federal agencies. Is the appeals mechanism as proposed 
an effective means to balance the Council's reduced role in the review 
of individual undertakings? Should it be broader or narrower? Could the 
provision be revised to give a greater degree of finality to the 
process and also afford the public fair access to the Council?
10. Notice of Violation
    The proposed regulations authorize the Council to issue a 
preliminary or final notice of violation when the Council determines 
that a Federal agency has acted in violation of Section 106 or the 
Council's regulations. (See Section 800.12(d).) Under the current 
regulations, the Council may inform an agency when it finds the agency 
in violation, or in danger of violation, of Section 106 and the 
Council's regulations, but such action lacks any official sanction 
under the regulations and is viewed as purely advisory. The concept of 
a formal notice of violation, adapted from other Federal environmental 
protection processes, is in response to widespread concern that the 
current regulations lack effective means of enforcement. Is the 
proposed notice of violation an appropriate method? Are there other 
techniques or actions within the Council's legal authority to achieve 
this objective? Would the presence of stronger enforcement tools 
encourage the fulfillment of Section 106 responsibilities?
11. Treatment of Archeological Resources
    The revised regulations continue the policy of the current 
regulations with regard to providing expedited review for undertakings 
with effects limited to archeological resources. The current process 
allows such cases to be processed as No Adverse Effect Determinations, 
provided that the values of the resource are limited to scientific data 
and that data will be recovered in manner consistent with the Secretary 
of the Interiors standards and guidelines. The revised regulations 
would essentially continue this exception, but as a Conditional No 
Adverse Effect Agreement. The regulations further clarify that such 
treatment is not available if there is the potential for human remains 
to be affected or traditional cultural values are present. Should this 
approach be pursued or should undertakings that threaten to destroy 
archeological resources, regardless of the presence of human remains or 
traditional cultural values, be considered to have an adverse effect 
and processed according to Section 800.10?
12. Coordination With the National Environmental Policy Act
    An identified shortcoming in the current Section 106 regulations is 
the limited guidance provided for coordination between Section 106 
reviews and those conducted under the National Environmental Policy Act 
(NEPA). The revised regulations contain expanded provisions (Section 
800.19). Is the content sufficient? Are there specific areas that 
warrant more or less detail? Should similar guidance be provided for 
other related laws, such as Section 4(f) of the Department of 
Transportation Act?
13. Use of Information Technology
    The rapid advances in information technology and the widespread 
access of Federal agencies and other Section 106 participants to it 
offers opportunities to improve Section 106 case processing. Electronic 
filing of certain agency notices and determinations with the Council is 
one example. Are there specific places in the process where this kind 
of innovation should be encouraged? Do the regulations need to be 
modified to facilitate the use of contemporary information technology? 
Should formats for electronic submission of information be specified in 
the regulations or related guidance documents?

IV. Impact Analysis

A. The Regulatory Flexibility Act

    The proposed rules will not have a significant economic impact on a 
substantial number of small entities. The Council's regulations, in 
their current and revised form, only impose obligations on Federal 
agencies. If a Federal agency is legally authorized and chooses to 
delegate its responsibility to local governments, then that Federal 
agency must determine whether or not its delegation will have a 
significant economic impact on a substantial number of small entities.

B. The Paperwork Reduction Act

    The proposed rules do not impose reporting requirements or the 
collection of information as defined in the Paperwork Reduction Act.

C. The National Environmental Policy Act

    Pursuant to 36 CFR Part 805, National Environmental Policy Act 
Implementation Procedures, the Council has determined that an 
Environmental Impact Statement is not required.

D. Executive Order 12866

    The Council is exempt from compliance with Executive Order 12866 
pursuant to a memorandum issued by the Office of Information and 
Regulatory Affairs on October 12, 1993. Although the Council is exempt 
from compliance, the Council has complied with the principles set forth 
in the Order by identifying problems in our regulatory process and 
seeking to modify our regulations in order to establish a more 
efficient and practical regulatory framework. The Council has sought 
the views of the public, including State, local and tribal entities, 
through the use of focus group meetings, questionnaires and 
solicitation of informal advice. Furthermore, the Council has 
voluntarily submitted this regulation to the Office of Management and 
Budget for review in accordance with the Executive Order.

E. Executive Order 12875

    The Council is exempt from compliance with the documentation 
requirements set forth in Executive Order 12875. However, the Council 
has adhered to the principles embodied in the Order. The proposed 
regulations, like the current regulations, do not mandate State, local 
and tribal governments to participate in the Section 106 process, but 
rather, mandate Federal agencies to inform and request the involvement 
of such sectors. The State, tribal or local governments have the option 
of declining to participate in the process. Thus, the regulations do 
not impose unfunded mandates. Moreover, the Historic Preservation Fund 
makes monies available to States that participate in the Section 106 
process. The Council's proposed regulations impose obligations on 
Federal agencies and do not delegate responsibilities to the States. If 
a Federal agency chooses to delegate its responsibilities, then the 
requirements of the Order must be addressed by that agency. State, 
local and tribal representatives have been an integral part of the 
development of the proposed rules as members of the Council's 
Regulations Task Force, as participants in focus groups, and as 
respondents to the Council's questionnaire. The proposed regulations 
provide a flexible process which includes various alternative 
procedures, including categorical exemptions, programmatic agreements 
and development of counterpart procedures to comply with the 
requirements of Section 106.

F. Executive Order 12898

    The Council is not required to comply with this Order. 
Nevertheless, the regulations implementing Section 106 do not pose 
environmental risks, but rather, seek to avoid adverse effects on 
historic properties in all areas of the United States.

G. Memorandum Concerning Government-to-Government Relations with Native 
American Tribal Governments

    The Council has fully complied with this Memorandum. A Native 
American representative serves as a member of the Council and as a 
member of the Council's Regulations Task Force. The proposed 
regulations enhance the opportunity for Native American involvement in 
the Section 106 process and clarify the obligation of Federal agencies 
to consult with Native Americans, fulfilling the objectives of the 1992 
NHPA amendments.

List of Subjects in 36 CFR Part 800

    Administrative practice and procedure, Historic preservation, 
Indians, Intergovernmental relations.

    Dated: September 26, 1994
Robert D. Bush,
Executive Director.

    Title 36, Chapter VIII is amended by revising Part 800 to read as 
follows:

PART 800--PROTECTION OF HISTORIC AND CULTURAL PROPERTIES

Sec.

Subpart A--Background and Policy

800.1  Purposes and participants.
800.2  Definitions.

Subpart B--Federal Procedures to Implement Section 106

800.3  Qualifying procedures.
800.4  Standards for evaluating consistency.
800.5  Counterpart procedures, programmatic agreements and exempted 
categories.
800.6  Council review of agency procedures.

Subpart C--The Section 106 Process

800.7  Initiation of the Section 106 process.
800.8  Identification of historic properties.
800.9  Assessment of effects.
800.10  Resolution of adverse effects.
800.11  Failure to resolve adverse effects.
800.12  Monitoring and compliance.
800.13  Special requirements for protecting National Historic 
Landmarks.
800.14  Documentation requirements.
800.15  Properties discovered after approval or during 
implementation of an undertaking.

Subpart D--Alternative Procedures

800.16  Federal agency program alternatives.
800.17  Tribal program alternatives.
800.18  Emergency situations.

Subpart E--Coordination With Other Authorities

800.19  Coordination with other authorities.

Appendix A to Part 800-Identifying Historic Properties in 
Coordination With Other Planning Needs
    Authority: 16 U.S.C. 470a(d)(2), 470a(d)(6), 470f, 470h-2(a)(2), 
470h-2(f), 470h-2(k), 470h-2(l), 470s and 470w.

Subpart A--Background and Policy


Sec. 800.1  Purposes and participants.

    (a) Purposes of the Section 106 process. Section 106 requires 
Federal agencies to take into account the effects of their undertakings 
on historic properties and afford the Council a reasonable opportunity 
to comment on such undertakings. This part defines the manner in which 
Federal agencies meet both of these statutory responsibilities through 
the Section 106 process. The Section 106 process seeks to accommodate 
historic preservation concerns with the needs of Federal undertakings. 
It is designed to identify potential conflicts between the two and to 
resolve such conflicts through consultation among the Agency Official, 
the State Historic Preservation Officer, the Council, and other 
interested parties during the early stages of planning. By following 
the steps set forth in this part to assess the effects of an 
undertaking on historic properties and either resolving those effects 
through negotiated agreements or obtaining and considering the formal 
written comments of the Council membership, Federal agencies evidence 
that they have taken into account the effects of their undertakings on 
historic properties and have afforded the Council its reasonable 
opportunity to comment.
    (b) Consultation under this part. The fundamental principle of the 
Section 106 process is the identification and resolution of 
preservation issues in the planning of a Federal undertaking through an 
open and ongoing exchange of factual information and opinion between 
the Agency Official and those agencies, organizations, and individuals 
with an interest in the undertaking's effects on historic properties. 
This principle is embodied in the concept of consultation, which means 
the process of seeking, discussing, and considering in good faith the 
views of other participants in the Section 106 process. Section 
110(a)(2)(E) of the Act requires that agency procedures for compliance 
with Section 106 provide a process for the identification and 
evaluation of historic properties for listing in the National Register 
and the development and implementation of agreements, in consultation 
with State Historic Preservation Officers, local governments, Indian 
tribes, Native Hawaiian organizations, and the interested public, as 
appropriate, regarding the means by which adverse effects on such 
properties will be considered. The goal of the consultation process is 
to seek ways to avoid or minimize the adverse effects of an undertaking 
on historic properties. The agency should first seek ways to avoid the 
adverse effects of an undertaking, and where avoidance cannot 
reasonably or practicably be achieved, should seek ways to minimize 
those effects. Destruction of historic properties should always be a 
last resort. Consultation commences at the earliest stages of planning 
between the Agency Official and the State Historic Preservation Officer 
and continues through the identification of historic properties, the 
assessment of the undertaking's effects and negotiation to resolve 
adverse effects, with the addition of other parties at various points 
and the ongoing opportunity for participation of the public. 
Consultation in the Section 106 process normally results in agreed upon 
outcomes and decisions. In the event that there is disagreement, this 
part provides that the Council will resolve disputes over the 
application of these regulations and specific findings under them. In 
the event that consultation fails to result in resolution of an 
undertaking's adverse effects, the head of the agency retains final 
decisionmaking authority for the undertaking after obtaining and 
considering the formal written comments of the Council membership.
    (c) Timing. Section 106 requires the Agency Official to complete 
the Section 106 process prior to the approval of the expenditure of any 
Federal funds on the undertaking or prior to the issuance of any 
license or permit. This does not bar an Agency Official from expending 
funds on, or authorizing, nondestructive project planning activities 
preparatory to an undertaking before complying with Section 106, 
provided that such expenditures or activities do not restrict the 
consideration of alternatives to avoid or mitigate adverse effects on 
historic properties. The Agency Official shall ensure that the Section 
106 process is initiated early in the planning stages of the 
undertaking, when the widest feasible range of alternatives is open for 
consideration. The Agency Official shall establish a schedule for 
completing the Section 106 process that is consistent with the planning 
schedule for the undertaking, the conduct of reviews required under 
other authorities (See Sec. 800.20), and the final approval of the 
undertaking.
    (d) Relation of the Section 106 process to agency preservation 
programs under Section 110. Section 110(a) of the Act requires a 
Federal agency to establish a preservation program for the 
identification, evaluation, and nomination of historic properties to 
the National Register and the protection of such properties. Agency 
procedures for compliance with Section 106 are a required element of 
such a program. Section 110 further requires that agency Section 106 
procedures be consistent with this part. Subpart B of this part sets 
forth standards and procedures for determining consistency. The Council 
encourages agencies to develop their Section 110 procedures as soon as 
possible. Unless or until an agency has formally adopted its procedures 
and completed the process for substitution, including Council review 
(Sec. 800.3(c)), this part governs the actions taken by an agency to 
take into account the effects of a proposed undertaking on historic 
properties and afford the Council a reasonable opportunity to comment 
in accordance with Section 106 of the Act.
    (e) Participants in the Section 106 process.--(1) Agency Official. 
The Agency Official with jurisdiction over an undertaking has legal 
responsibility for complying with Section 106. It is the Agency 
Official's responsibility to determine whether the agency's proposed 
action is an undertaking; establish an undertaking's area of potential 
effect; identify and evaluate potentially affected historic properties; 
assess an undertaking's likely effect upon them; seek and consider 
alternatives to avoid or reduce any adverse effects upon historic 
properties; decide upon an appropriate resolution of adverse effects; 
and afford the Council its comment opportunity.
    (i) Assistance by non-Federal parties. The Agency Official may use 
the services of grantees, applicants, consultants, or designees to 
prepare the necessary information and analyses, but remains legally 
responsible for Section 106 compliance, including all determinations 
charged to the Agency Official under this part. If any document or 
study is prepared by a consultant or contractor for purposes of 
compliance with Section 106 and this part, the Agency Official shall 
furnish guidance and shall independently evaluate the document prior to 
its approval, taking responsibility for its scope and contents.
    (ii) Multiple agencies involved in an undertaking. If more than one 
Federal agency is involved in an undertaking, each agency has the 
responsibility for compliance with Section 106 and this part. The 
Council and the Federal agencies, in consultation with the Council, may 
mutually agree to designate a lead Federal agency. The lead Federal 
agency shall identify the appropriate official to serve as Agency 
Official for the purposes of this part. Assumption of lead agency 
status carries with it the responsibility to act on behalf of all 
participating Federal agencies during Section 106 review, addressing 
their collective responsibilities under Section 106 and this part. 
Designation of one agency as lead Federal agency does not abrogate the 
other Federal agencies' responsibilities to participate in the 
negotiation process if the Council deems it necessary, and to comply 
with the requirements of Section 106 and this part.
    (2) State Historic Preservation Officer. The State Historic 
Preservation Officer coordinates State participation in the 
implementation of the National Historic Preservation Act and is a key 
participant in the Section 106 process. The role of the State Historic 
Preservation Officer is to consult with and assist the Agency Official 
in identifying historic properties, assessing effects upon them, and 
considering and deciding upon the resolution of adverse effects. The 
State Historic Preservation Officer reflects the interests of the State 
and its citizens in the preservation of their cultural heritage and 
helps the Agency Official identify parties interested in an 
undertaking, effects upon historic properties, and alternatives that 
may avoid or reduce adverse effects upon historic properties.
    (3) Council. The Council is responsible for promulgating 
regulations to implement Section 106 in its entirety, consulting with 
and commenting to the Agency Official on an undertaking that affects 
historic properties, interpreting this part, and generally overseeing 
the operation of the Section 106 process. The Council may participate 
at any point in the Section 106 process at its own initiative.
    (4) Interested parties. (i) Interested parties are those 
individuals and organizations that are identified by the Agency 
Official or who indicate to the Agency Official, the State Historic 
Preservation Officer or the Council in accordance with this part their 
concern with the effects of an undertaking on historic properties. If 
the State Historic Preservation Officer or the Council receive 
notification from interested parties, they shall notify the Agency 
Official. This part requires that particular interested parties be 
invited to participate in the Section 106 process under certain 
circumstances. In addition, whenever the Agency Official, the State 
Historic Preservation Officer, and the Council, if participating, agree 
that active participation of an interested party will advance the 
objectives of Section 106, they may invite that party to participate. 
Anyone who wishes to participate in the Section 106 process as an 
interested party should notify the Agency Official in writing and make 
the State Historic Preservation Officer and the Council aware of that 
request.
    (ii) Interested parties may include:
    (A) Local governments. Local governments are encouraged to take an 
active role in the Section 106 process when undertakings affect 
historic properties within their jurisdiction. When a local government 
has legal responsibility for Section 106 compliance under programs such 
as the Community Development Block Grant Program, participation as the 
Agency Official is required. When no such legal responsibility exists, 
units of local government may request to participate in the Section 106 
process.
    (B) Applicants for Federal assistance, permits, and licenses. When 
the undertaking is proposed by an applicant for Federal assistance or 
for a Federal permit or license, the applicant may participate in the 
Section 106 process in the manner prescribed in this part.
    (C) Owners of affected properties. Individuals or organizations 
that own property that may be affected by an undertaking may request to 
participate. Qualifying property is not limited to historic property, 
but may include any real property affected directly or indirectly by 
the undertaking.
    (D) Other individuals and organizations that have notified the 
Agency Official of their concern about the effects of the undertaking 
on historic properties.
    (5) Indian tribes and Native Hawaiian organizations. (i) Section 
101(d)(6)(B) of the Act requires the Agency Official to consult with 
any Indian tribe or Native Hawaiian organization that attaches 
religious and cultural significance to historic properties that may be 
affected by an undertaking. To meet this responsibility, the Agency 
Official, at the outset of the Section 106 process, shall identify 
Indian tribes and Native Hawaiian organizations likely to have such 
interests and notify them of their opportunity to participate in the 
Section 106 process. The Agency Official shall provide for Indian tribe 
and Native Hawaiian participation in accordance with guidance issued by 
the National Park Service and the following principles:
    (A) Consultation shall be designed to identify the Indian tribe's 
or Native Hawaiian organization's general concerns and interests 
regarding historic properties, and to seek their assistance in 
identifying historic properties and assessing effects on such 
properties. The Agency Official shall commence consultation through the 
Indian tribe's or Native Hawaiian organization's governing body and 
also include traditional cultural authorities and members of 
traditional communities where appropriate.
    (B) To the extent feasible, consultation shall be initiated prior 
to any other public involvement procedures, in order to identify and 
resolve possible concerns about the confidentiality of information on 
historic properties. If the Indian tribe or the Native Hawaiian 
organization requests confidentiality, the Agency Official shall use 
the authority of Section 304 of the Act to protect the confidentiality 
of information about historic properties.
    (C) Consultation shall be carried out in a manner that respects the 
cultural values, modes of communication, and systems of interaction 
used by the Indian tribe or Native Hawaiian organization. The Agency 
Official shall be sensitive both in choosing a culturally appropriate 
manner of communication and in timing a request for views from Indian 
tribes and Native Hawaiian organizations. The Agency Official shall 
initiate efforts to obtain such views early enough in the planning 
process, if necessary prior to other public involvement, to allow 
adequate time for responses and discussion of relevant preservation and 
traditional cultural issues.
    (D) Consultation shall include an Indian tribe that does not reside 
in the vicinity of the undertaking when the Indian tribe has an 
interest in historic properties affected by the undertaking and has 
notified the Agency Official of that interest.
    (ii) When an Indian tribe has assumed the functions of a State 
Historic Preservation Officer in the Section 106 process with respect 
to tribal lands under Section 101(d)(2)(C) of the Act, the Agency 
Official shall consult with the Indian tribe in accordance with the 
plan prepared by the tribe pursuant to that section. The Agency 
Official need not consult with the State Historic Preservation Officer 
except:
    (A) To the extent such consultation is stipulated in the plan 
pursuant to Section 101(d)(2)(D)(ii) of the Act;
    (B) With regard to effects on historic properties located on non-
tribal lands; or
    (C) When the State Historic Preservation Officer requests to 
participate in consultation as an interested party.
    (6) The public. The Council values the views of the public on 
historic preservation questions and encourages maximum public 
participation in the Section 106 process. This part defines specific 
points in the process where the Agency Official is required to provide 
the public with information concerning an undertaking and its effects 
on historic properties and to provide opportunities for public comment 
and input. The public may also provide its views at other points in the 
process and the Agency Official should consider those views in 
decisionmaking. This part also identifies specific opportunities for 
the public to seek Council review of an Agency Official's findings 
under this part. Members of the public should become familiar with 
these points for involvement in order to maximize their participation 
in the Section 106 process. The Agency Official's efforts to seek and 
consider the views of the public shall reflect the nature and 
complexity of the undertaking and its effects on historic properties.
    (i) The public may provide its views to the Agency Official, the 
State Historic Preservation Officer, the Council, and interested 
parties during the determination of the area of potential effects 
(Sec. 800.8(a)(1)), the assessment of the need for specific actions to 
identify historic properties (Sec. 800.8 (b)), the evaluation of 
historic significance (Sec. 800.8(c)), the assessment of effects 
(Sec. 800.9(a)), the resolution of adverse effects (Sec. 800.10), and 
the preparation of Council comments (Sec. 800.11(b)). The relevant 
sections of this part provide details on how the public participates.
    (ii) The public may examine findings made by an Agency Official 
during the Section 106 process along with the documentation supporting 
such findings and responses provided by the State Historic Preservation 
Officer or the Council. These include the Agency Official's decision 
regarding whether an action is an undertaking (Sec. 800.7(a)), the 
Agency Official's finding as to the area of potential effects 
(Sec. 800.8(a)(1)), the Agency Official's evaluation of a property's 
historic significance (Sec. 800.8(c)), the Agency Official's finding 
regarding the presence of historic properties (Sec. 800.8(d)), the 
Agency Official's finding regarding the undertaking's effect on 
historic properties (Sec. 800.9), and any Memorandum of Agreement 
executed to resolve adverse effects (Sec. 800.10(c)). Any member of the 
public may request the Council to review any of the preceding findings.
    (iii) Members of the public may request to participate in the 
Section 106 process as interested parties in accordance with 
Sec. 800.1(e)(4)(iv). The request should be made early in the Section 
106 process and in writing to the Agency Official. Copies of the 
request should be provided to the appropriate State Historic 
Preservation Officer and the Council.
    (iv) When issuing notice to the public in accordance with this 
part, an Agency Official shall adequately inform the public of historic 
preservation issues in order to elicit public views on such issues that 
can then be considered and resolved in decisionmaking. The Agency 
Official shall determine appropriate channels for providing notice, 
considering the nature of the affected public and culturally 
appropriate communication.
    (v) Agencies should use their established public participation 
procedures when they meet the public involvement requirements set forth 
in this part.


Sec. 800.2  Definitions.

    (a) Act means the National Historic Preservation Act of 1966, as 
amended, 16 U.S.C. 470-470w-6.
    (b) Agency means agency as defined in 5 U.S.C. 551.
    (c) Agency Official means the Federal agency head or a designee 
with legal authority over a specific undertaking, including any State, 
local, or tribal government official who has been delegated legal 
responsibility for compliance with Section 106 in accordance with law.
    (d) Anticipatory Demolition means an action of an applicant who, 
with intent to avoid the requirements of Section 106, has intentionally 
significantly adversely affected a historic property to which an agency 
grant of a loan, loan guarantee, permit, license, or other assistance 
relates, or an inaction of an applicant who, having the legal power to 
prevent it, allowed such a significant adverse effect to occur.
    (e) Approval of the expenditure of funds means any final agency 
decision approving the eligibility of an undertaking for Federal funds 
or financial assistance, including any agency decision that may be 
subject to an administrative appeal or rehearing procedure and 
conditional decisions subject to reevaluation by the agency.
    (f) Area of potential effects means the geographic area or areas 
within which an undertaking may directly or indirectly cause changes, 
whether beneficial or adverse, to the character or use of historic 
properties, if any such properties exist. The area of potential effects 
is not limited to land under Federal jurisdiction or control or land 
within a Federal construction, right-of-way, or permit area. (See 
Appendix A of this part for further discussion).
    (g) Comment means the findings and recommendations of the Council 
membership formally provided in writing to the head of a Federal agency 
under Section 106.
    (h) Conditional No Adverse Effect Agreement means an agreement 
between an Agency Official and a State Historic Preservation Officer 
that an undertaking will have no adverse effect, because the 
undertaking is being conducted in accordance with specified conditions.
    (i) Consultation means the good faith process of seeking, 
discussing, and considering the views of other participants in the 
Section 106 process as set forth in Sec. 800.1(b).
    (j) Council means the Advisory Council on Historic Preservation or 
a Council member or employee designated to act for the Council.
    (k) Council membership means the full membership of the Council or 
a subgroup of members, numbering not less than three, appointed by the 
Chairman to carry out specific responsibilities under this part.
    (l) Foreclosure means the action or inaction of a Federal agency 
which precludes the Agency Official from obtaining, considering and 
acting on the Council's comments on the full range of measures to avoid 
or minimize the adverse effects in accordance with Sec. 800.12(b).
    (m) Head of the agency means the chief official of the agency 
responsible for all aspects of the agency's actions. If a State, local 
or tribal government has been delegated responsibility for compliance 
with Section 106, the head of that unit of government shall be 
considered the head of the agency.
    (n) Historic property means any prehistoric or historic district, 
site, building, structure, or object included in, or eligible for 
inclusion in, the National Register of Historic Places maintained by 
the Secretary of the Interior. For the purposes of this part, this term 
includes but is not limited to, artifacts, records, and remains that 
are related to and located within such properties. The term further 
includes properties of traditional religious and cultural importance to 
an Indian tribe or Native Hawaiian organization which meet the criteria 
for inclusion in the National Register of Historic Places. The term 
``eligible for inclusion in the National Register'' includes both 
properties formally determined as such in accordance with regulations 
of the Secretary of the Interior and all other properties that meet 
National Register listing criteria.
    (o) Indian tribe means an Indian tribe, band, nation, or other 
organized group or community, including a Native village, Regional 
Corporation or Village Corporation, as those terms are defined in 
Section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602), 
which is recognized as eligible for the special programs and services 
provided by the United States to Indians because of their status as 
Indians.
    (p) Interested party means any individual or organization that has 
indicated to the Agency Official, State Historic Preservation Officer 
or Council its concern with the effects of an undertaking on historic 
properties.
    (q) Local government means a city, county, parish, township, 
municipality, borough, or other general purpose political subdivision 
of a State.
    (r) Memorandum of Agreement means the document that records the 
terms and conditions which have been agreed upon to resolve the adverse 
effects of an undertaking upon historic properties.
    (s) National Historic Landmark means a historic property that the 
Secretary of the Interior has designated a National Historic Landmark.
    (t) National Register means the National Register of Historic 
Places maintained by the Secretary of the Interior.
    (u) National Register Criteria means the criteria established by 
the Secretary of the Interior for use in evaluating the eligibility of 
properties for the National Register (36 CFR Part 60).
    (v) Native Hawaiian means any individual who is a descendant of the 
aboriginal people who, prior to 1778, occupied and exercised 
sovereignty in the area that now constitutes the State of Hawaii.
    (w) Native Hawaiian organization means any organization which 
serves and represents the interests of Native Hawaiians; has as a 
primary and stated purpose the provision of services to Native 
Hawaiians; and has demonstrated expertise in aspects of historic 
preservation that are significant to Native Hawaiians.
    (x) Notice of Violation means a notification from the Council of 
its finding in accordance with Sec. 800.12(d) that an Agency Official 
has failed to comply with Section 106 and this part.
    (y) Secretary means the Secretary of the Interior.
    (z) State Historic Preservation Officer means the official 
appointed or designated pursuant to Section 101(b)(1) of the Act to 
administer the State historic preservation program or a representative 
designated to act for the State Historic Preservation Officer.
    (aa) Traditional community means the members of a recognizable 
ethnic group who continue to live according to beliefs and traditions 
passed down from previous generations.
    (bb) Traditional cultural authority means an individual or a group 
of individuals in an Indian tribe, Native Hawaiian organization, or 
other social or ethnic group who is recognized by members of the group 
as knowledgeable in the group's traditional history and cultural 
practices.
    (cc) Tribal lands means all lands within the exterior boundaries of 
any Indian reservation and all dependent Indian communities.
    (dd) Undertaking means any project, activity, or program under the 
direct or indirect jurisdiction of a Federal agency that can result in 
changes in the character or use of historic properties, if any such 
historic properties are located in the area of potential effects. It 
includes any project, activity, or program that is carried out by or on 
behalf of the agency; is financed in whole or in part with Federal 
financial assistance; requires a Federal permit, license or approval, 
including agency authority to disapprove or veto the project, activity, 
or program; or is subject to State or local regulation administered 
pursuant to a delegation or approval by a Federal agency. Undertakings 
include new and continuing projects, technical assistance pertaining to 
a specific site and related to the provision of Federal financial 
assistance, activities, or programs, renewals or reapprovals of such 
assistance, activities, or programs, and any of their elements not 
previously considered under Section 106.

Subpart B--Federal Procedures to Implement Section 106


Sec. 800.3  Qualifying procedures.

    (a) Purpose. Section 110(a)(2) of the Act directs each Federal 
agency to establish a preservation program for the identification of 
historic properties, their evaluation and nomination to the National 
Register, and their protection. Section 110(a)(2)(E) of the Act 
requires that each Federal agency preservation program ensures that the 
agency's procedures for compliance with Section 106 are consistent with 
the Council's regulations; provides a process for the identification 
and evaluation of historic properties for listing in the National 
Register and for developing and implementing of agreements, in 
consultation with State Historic Preservation Officers, local 
governments, Indian tribes, Native Hawaiian organizations, and the 
interested public, as appropriate, regarding the means by which adverse 
effects on such properties will be considered; and provides for the 
disposition of Native American cultural items from Federal or tribal 
land in a manner consistent with Section 3(c) of the Native American 
Graves Protection and Repatriation Act (25 U.S.C. 3001-3013). This 
subpart sets forth standards for making agency procedures consistent 
with the Council's regulations and establishes the process by which the 
Council will evaluate such procedures. This subpart sets forth 
standards for evaluating
    (b) Definition of procedure. For the purposes of this subpart, any 
formal statement of agency policy or process that deals with the 
implementation of Section 106 shall be considered a procedure. Included 
are formal regulations and other procedures that are agency-wide in 
scope or pertain to a specific program, organizational unit, or 
geographical area.
    (c) Substitution of agency procedures for Council regulations. An 
agency procedure may substitute for the Council's regulations or any 
part thereof if it is formally approved by the Council membership as a 
counterpart procedure or executed through a Programmatic Agreement in 
accordance with Sec. 800.5. Agency procedures to augment, explain, or 
an agency without Council membership approval, but the Council 
membership reserves the right to determine that such a procedure, or 
any part thereof, is inconsistent with the Council's regulations. If an 
agency develops a procedure that is not proposed as a counterpart 
procedure, the agency may follow such procedure to adapt the specific 
requirements of Subpart C of this part to its programs, provided that 
the agency's procedure is consistent with the Council's regulations. 
Agency procedures found by the Council membership to be inconsistent 
with the Council's regulations are invalid for compliance with Section 
106 of the Act to the extent that they are found inconsistent.


Sec. 800.4  Standards for evaluating consistency.

    (a) Consistency with the Council's regulations. The Council 
membership will consider agency procedures to be consistent with the 
Council's regulations for Section 106 when the agency procedures 
include the following provisions:
    (1) Initiation of the Section 106 process early in the planning and 
development of the agency's undertakings, coordinated with specific 
reference to the particular requirements of each agency program, so 
that identification and evaluation of historic properties, assessment 
of effects, and resolution of adverse effects occurs before 
irreversible commitments are made to preferred alternatives that limit 
the consideration of options which can avoid or reduce such effects;
    (2) Use of threshold terms, such as ``undertaking'' and ``area of 
potential effects,'' that conform to the definitions and standards set 
forth in the Council's regulations;
    (3) Provision for timely and informed consultation involving State 
Historic Preservation Officers, the Council, and interested parties in 
the identification and evaluation of historic properties, assessment of 
effects, and resolution of adverse effects;
    (4) Adequate opportunity for State Historic Preservation Officers, 
the Council, interested parties, and the public to obtain information 
on proposed undertakings and to make their views known to Agency 
Officials so that those views can be effectively considered in the 
planning of undertakings;
    (5) Access to and use of appropriate professional expertise at each 
step of the Section 106 process, consistent with standards and 
guidelines promulgated by the Secretary under Section 112 of the Act;
    (6) Integration of planning and decisionmaking with normal agency 
administrative processes and other government-wide requirements to the 
maximum extent possible, including provisions for considering the needs 
of State, local, and tribal environmental and historic preservation 
laws and regulations, with appropriate timing of decision points and 
actions;
    (7) Identification of appropriate officers of the agency to fulfill 
the duties of the Agency Official in the Section 106 process and proper 
delineation and communication of the roles and responsibilities of 
applicants, grantees, and permittees;
    (8) Use of culturally appropriate means of communication with 
Native American and Native Hawaiian communities and individuals, with 
sensitivity to the confidentiality of information related to historic 
properties significant to those parties;
    (9) A review and reporting system for Section 106 compliance that 
is integrated into established internal agency environmental audit 
systems to ensure adequate quality control and promote procedural 
efficiency;
    (10) Provision for adequate safeguards against foreclosure and 
anticipatory demolition;
    (11) Use of procedures that place no greater burden of 
consultation, coordination, or record keeping on State Historic 
Preservation Officers, Indian tribes, and Native Hawaiian organizations 
and interested parties than this part;
    (12) Mechanisms to ensure that agency staff, cooperating agencies 
and organizations, contractors, applicants, permit holders, and others 
are trained in the use of the procedures; and
    (13) Provision for State Historic Preservation Officers, Indian 
Tribes, and Native Hawaiian organizations, and potentially interested 
parties to be notified of the procedures and kept informed about their 
implementation.
    (b) Consistency with Section 3(c) of Native American Graves 
Protection and Repatriation Act. The Council membership will consider 
agency procedures for compliance with Section 106 to also meet the 
requirement that they provide for disposition of Native American 
cultural items in a manner consistent with Section 3(c) of the Native 
American Graves Protection and Repatriation Act when the agency 
procedures include the following provisions:
    (1) A policy encouraging coordination between actions taken subject 
to Section 106 and the Native American Graves Protection and 
Repatriation Act compliance;
    (2) Early consultation with appropriate Indian tribes or Native 
Hawaiian organizations when planning undertakings subject to Section 
106 on Federal or tribal lands, which may result in the intentional 
excavation and removal of Native American cultural items subject to the 
Native American Graves Protection and Repatriation Act;
    (3) Mechanisms to obtain and evidence the consent of the 
appropriate Indian tribe or Native Hawaiian organization to the 
intentional excavation and removal of such items from tribal lands when 
proposed as part of an undertaking or as a mitigation measure pursuant 
to Section 106; and
    (4) Mechanisms to ensure appropriate disposition of any such items 
intentionally excavated and removed from Federal or tribal lands 
consistent with the ownership and right of control provisions in 
Sections 3(a) and 3(b) of the Native American Graves Protection and 
Repatriation Act.


Sec. 800.5  Counterpart procedures, programmatic agreements and 
exempted categories.

    (a) Counterpart procedures. An agency, in consultation with the 
Council, may develop counterpart procedures to substitute for all of 
Subpart C of this part. To qualify as counterpart procedures the 
Council must determine that the procedures are consistent with the 
Council's regulations in accordance with Sec. 800.4 and approve the 
procedures prior to publication in the Federal Register. Counterpart 
procedures substitute for the Council's regulations for the purposes of 
the agency's compliance with Section 106, except that where an Indian 
tribe has entered into an agreement with the Council pursuant to 
Sec. 800.17, the agency shall follow tribal historic preservation 
regulations in lieu of the agency's procedures.
    (b) Programmatic Agreements. At the request of the appropriate 
Agency Official, the Council and the Agency Official may negotiate a 
Programmatic Agreement to govern the implementation of a particular 
program.
    (1) The negotiation shall involve State Historic Preservation 
Officers, Indian tribes and Native Hawaiian organizations, other 
Federal agencies, and other interested parties as appropriate.
    (2) The Agency Official shall arrange for public notice and 
involvement appropriate to the subject matter and the scope of the 
program. Views from the public will be invited and considered during 
the negotiation of the Programmatic Agreement.
    (3) A Programmatic Agreement shall meet the requirements for 
consistency with the Council's regulations as set forth in Sec. 800.4. 
The Programmatic Agreement shall result in specific internal agency 
procedures that shall be issued in accordance with the agency's 
procedures and policies.
    (4) Compliance with the procedures established by an approved 
Programmatic Agreement satisfies the agency's Section 106 
responsibilities for all individual undertakings covered by the 
agreement until it expires or is terminated.
    (5) The Agency Official shall publish notice of an approved 
Programmatic Agreement in the Federal Register and make the agency 
procedures implementing the Programmatic Agreement readily available to 
the Council, State Historic Preservation Officers, and the public.
    (6) If the Council determines that the terms of a Programmatic 
Agreement are not carried out, or if such an agreement is terminated, 
the Agency Official shall comply with Subpart C of this part with 
regard to individual undertakings covered by the agreement.
    (c) Exempted categories--(1) Criteria for establishing. When an 
agency has in place a preservation program meeting the requirements of 
Section 110(a) of the Act, or when an agency is developing a procedure 
to implement Section 106 in accordance with this subpart, an Agency 
Official may propose a category of agency undertakings that may be 
exempted from review under the provisions of this part, if the category 
meets all of the following criteria:
    (i) The action would otherwise qualify as an undertaking in 
accordance with Sec. 800.2(dd);
    (ii) The potential effects of the undertakings within the category 
upon historic properties are foreseeable and do not by their nature 
have the potential to result in changes to the character or use of 
historic properties;
    (iii) The agency's procedures establish the category of 
undertakings as a categorical exclusion under the National 
Environmental Policy Act, if applicable, consistent with the provisions 
of 40 CFR 1508.4;
    (iv) The agency's procedures provide that the exempted category 
will not be applicable if the Agency Official, the SHPO, the Tribal 
Preservation Officer, if participating, or the Council determines that 
the normally exempted excluded undertaking may have an adverse effect.
    (2) Council review of proposed exempted categories. The Council 
membership shall review a request for an exemption that is supported by 
documentation demonstrating that the criteria of Sec. 800.5(c)(1) have 
been met. Unless further information is requested by the Council, it 
shall approve or reject the proposed exemption within 30 days of its 
submission. If the Council fails to respond within 30 days of a request 
for an exemption which is supported by adequate documentation, then the 
requested exemption becomes effective.
    (3) Effect. Any undertaking that falls within the exempted category 
approved by the Council shall require no further review pursuant to 
this part, unless the Agency Official, Council, State Historic 
Preservation Officer, or Tribal Preservation Officer, if participating, 
determines that there are circumstances under which the normally 
excluded undertaking may have an adverse effect upon historic 
properties.


Sec. 800.6  Council review of agency procedures.

    (a) Initiation of review. When requested by the appropriate officer 
of a Federal agency or the Secretary pursuant to Section 110(a)(2)(E) 
of the Act, the Council shall review a procedure for consistency with 
the Council's regulations. An agency request shall be accompanied by 
the full text of the procedure and the information necessary to 
evaluate the programs and organizational structure of the agency as 
they are affected by the procedure.
    (1) The Council may request additional information necessary to 
complete its review of the procedure. The Council may also undertake 
review of an agency's procedures under this section upon its own 
initiative. The agency shall provide such procedures to the Council 
when requested.
    (2) When reviewing a procedure to evaluate consistency with the 
Council's regulations, the Council shall also consult with the 
Secretary, and may provide the agency head and the Secretary with its 
views on the consistency of the procedure with the disposition 
requirements of Section 3(c) of the Native American Graves Protection 
and Repatriation Act.
    (b) Council finding of consistency. The Council membership shall 
make a finding as to the consistency of the procedure with the 
Council's regulations based on the criteria set forth in Sec. 800.4. 
The Council shall provide its finding in writing to the officer of the 
agency who made the request and the head of the agency.
    (c) Approval of counterpart procedures. If the Council membership 
finds the procedure consistent, the agency may request the Council 
membership to approve the procedure as a counterpart procedure to 
substitute for the provisions of Subpart C of this part. Counterpart 
procedures must meet the requirements of Secs. 800.4 and 800.5.
    (d) Council finding of inconsistency. If the Council membership 
finds the procedure inconsistent with the Council's regulations, the 
Council shall notify the officer of the agency who made the request, 
the head of the agency, and the Secretary. The notice shall identify 
the specific provisions that are inconsistent and include any 
recommendations that the Council may have to make the procedure 
consistent and suitable for approval as a counterpart procedure.
    (1) In the event that an agency procedure is found to be 
inconsistent with the Council's regulations, the agency shall follow 
the provisions of the Council's regulations with regard to the 
inconsistent provisions.
    (2) The Council membership's decision as to the consistency of an 
agency's procedures shall be determinative, in accordance with Section 
211 of the Act.

Subpart C--The Section 106 Process


Sec. 800.7  Initiation of the section 106 process.

    The procedure in this subpart guides Agency Officials, State 
Historic Preservation Officers, and the Council in the conduct of the 
Section 106 process. Alternative methods of meeting Section 106 
obligations are found in Subpart B of this part, ``Federal Procedures 
to Implement Section 106,'' and Subpart D of this part, ``Alternative 
Procedures.'' These include Counterpart Procedures, Programmatic 
Agreements, and Exempted Categories (Sec. 800.5) and Tribal Program 
Alternatives (Sec. 800.17).
    (a) Establish undertaking. In accordance with the definition set 
forth in Sec. 800.2(dd) and with consideration for any categorical 
exclusions previously established pursuant to Sec. 800.11, the Agency 
Official shall decide whether an undertaking exists for the purposes of 
Section 106. If anyone disagrees with the Agency Official's decision 
and notifies the Council, the Council shall review the decision in 
accordance with Sec. 800.12(a).
    (b) Coordinate with other reviews. The Agency Official shall 
establish a schedule for carrying out the steps of the Section 106 
process that considers the overall planning and approval schedule for 
the undertaking and effective coordination with reviews required under 
other authorities including, but not limited to, the National 
Environmental Policy Act, the Native American Graves Protection and 
Repatriation Act, the American Indian Religious Freedom Act, the 
Archeological Resources Protection Act and agency specific legislation, 
such as Section 4(f) of the Department of Transportation Act. Further 
information regarding coordination of the Section 106 process with 
those authorities is found in Subpart E of this part.
    (c) Plan for public participation. The Agency Official shall 
commence planning for informing and involving the public in the conduct 
of the specific steps of the Section 106 process. The Agency Official 
should seek to identify parties who may be concerned about the effects 
on historic properties, and to determine the issues that may be 
involved in dealing with such properties. The Agency Official should 
consider the likely complexity of preservation issues and the possible 
extent of public controversy, the nature of the potential effects of 
the undertaking upon historic properties, the suitability of using 
established public involvement procedures used by the agency to comply 
with the National Environmental Policy Act and related authorities, and 
the overall planning and approval schedule for the undertaking. Where 
an Agency Official determines that it is appropriate, or the State 
Historic Preservation Officer or the Council so request, the Agency 
Official shall establish a specific plan for public involvement and 
make it available to the State Historic Preservation Officer, the 
Council, interested parties, and the public at large. The Agency 
Official must reconsider the needs for public participation as the 
Section 106 process proceeds.
    (d) Initiate consultation with the State Historic Preservation 
Officer. The Agency Official shall determine the appropriate State 
Historic Preservation Officer or Officers to be involved in the Section 
106 process and proceed to consult in accordance with Secs. 800.8-
800.10.
    (1) If the State Historic Preservation Officer declines in writing 
to participate in the Section 106 process, the Agency Official shall 
consult with the Council, without the State Historic Preservation 
Officer, to complete the Section 106 process.
    (2) If the State Historic Preservation Officer does not respond 
within 30 days of receipt to a written request for participation at any 
step in Sec. 800.8, the Agency Official may assume that the State 
Historic Preservation Officer concurs in the Agency Official's finding. 
The Agency Official may consult with the Council to complete the 
Section 106 process, in lieu of further efforts to obtain a response 
from the State Historic Preservation Officer.
    (3) If the State Historic Preservation Officer does not respond 
within 30 days of receipt to a written request for participation at any 
step in Secs. 800.9 or 800.10, the Agency Official may not assume such 
action to indicate the concurrence of the State Historic Preservation 
Officer with the Agency Official's position. The Agency Official may 
consult with the Council to complete the Section 106 process, in lieu 
of further efforts to obtain a response from the State Historic 
Preservation Officer.
    (e) Identify Indian tribes and Native Hawaiian organizations. As 
early as possible in planning the undertaking, the Agency Official 
shall initiate consultation with any Indian tribe or Native Hawaiian 
organization that the Agency Official has reason to believe might 
attach religious and cultural significance to historic properties in 
the area of potential effects, or cause such contact to be initiated by 
an applicant for Federal assistance or permission. Such consultation 
should be designed to identify the tribe's or organization's general 
concerns and interests regarding historic properties, and to seek the 
tribe's or organization's assistance in identifying historic properties 
and assessing effects on such properties. Consultation should be 
carried out in a manner consistent with Sec. 800.1(e)(5) and continue 
in the same manner when identifying historic properties, assessing 
effects, and resolving adverse effects.


Sec. 800.8  Identification of historic properties.

    (a) Determine scope of identification efforts. At the earliest 
feasible stage in planning any undertaking, coordinated with the 
preparation of any Environmental Assessment or Environmental Impact 
Statement under the National Environmental Policy Act, and in 
consultation with the State Historic Preservation Officer, the Agency 
Official shall:
    (1) Define the area of potential effects, using the definition set 
forth in Sec. 800.2(f);
    (2) Review existing information on historic properties potentially 
affected by the undertaking, including any data concerning the 
likelihood that unidentified historic properties exist in the area of 
potential effects; and
    (3) Seek information from local governments, Indian tribes, Native 
Hawaiian organizations, traditional cultural authorities, other 
organizations, and interested parties likely to have knowledge of, or 
concerns with, historic properties in the area and should seek to 
identify the issues that may be involved in dealing with historic 
properties in the planning process.
    (b) Locate historic properties. Based on the information gathered 
under Sec. 800.8(a) and the State Historic Preservation Officer's 
opinion on further actions to identify historic properties that may be 
affected, the Agency Official shall determine the need for further 
actions, such as field surveys, modeling, informant interviews and 
ethnographic studies, to identify historic properties. The Agency 
Official shall make a reasonable and good faith effort to identify 
historic properties that may be affected by the undertaking and gather 
sufficient information to evaluate the eligibility of these properties 
for the National Register. Efforts to identify historic properties 
shall follow applicable standards and guidelines established by the 
Secretary and conform to the agency's program to meet the requirements 
of Section 110(a)(2) of the Act.
    (c) Evaluate historic significance.--(1) Apply National Register 
Criteria. In consultation with the State Historic Preservation Officer 
and following the Secretary's Standards and Guidelines for Evaluation, 
the Agency Official shall apply the National Register Criteria to 
properties that may be affected by the undertaking and that have not 
been previously evaluated for National Register eligibility. The 
passage of time, changing perceptions of significance, or incomplete 
prior evaluations may require reevaluation of properties previously 
determined eligible or ineligible.
    (2) Agree that a property is eligible. If the Agency Official and 
the State Historic Preservation Officer agree that a property is 
eligible under the criteria, the property shall be considered eligible 
for the National Register for Section 106 purposes.
    (3) Agree that a property is not eligible. If the Agency Official 
and the State Historic Preservation Officer agree that the criteria are 
not met, the property shall be considered not eligible for the National 
Register for Section 106 purposes, subject to any appeal or petition 
under 36 CFR part 60.
    (4) Resolve questions on eligibility. If the Agency Official and 
the State Historic Preservation Officer do not agree, or if the Council 
or the Secretary so request, the Agency Official shall obtain a 
determination of eligibility from the Secretary pursuant to the 
applicable National Park Service regulations.
    (d) Results of identification and evaluation.--(1) No historic 
properties found. If the Agency Official determines in accordance with 
Sec. 800.8 (a) through (c) that there are no historic properties within 
the area of potential effects, the Agency Official shall provide 
documentation of this finding as set forth in Sec. 800.14(a) to the 
State Historic Preservation Officer. The Agency Official shall notify 
known interested parties and make the documentation available for 
public inspection. Unless the Council determines otherwise in 
accordance with Sec. 800.12(a), the Agency Official has completed the 
Section 106 process.
    (2) Historic properties found. If there are historic properties 
that the undertaking may affect, the Agency Official shall notify known 
interested parties and assess effects in accordance with Sec. 800.9.
    (e) Council review of agency findings. If anyone disagrees with the 
Agency Official's finding regarding the presence of historic 
properties, including the determination of the area of potential 
effects, the Agency Official's efforts to locate historic properties, 
or the evaluation of historic significance, and notifies the Council, 
the Council shall review the finding in accordance with Sec. 800.12(a). 
The Council shall refer questions relating to National Register 
eligibility to the Secretary for resolution and the Agency Official 
shall provide relevant documentation to assist the Secretary's review.


Sec. 800.9  Assessment of effects.

    (a) Apply criteria of adverse effect. In consultation with the 
State Historic Preservation Officer, the Agency Official shall apply 
the criteria of adverse effect set forth at Sec. 800.9(a)(1) to 
historic properties within the area of potential effects, giving 
consideration to the views concerning such effects provided by 
interested parties and the public, if any. The Agency Official shall 
also consult with any Indian tribe or Native Hawaiian organization that 
attaches religious and cultural significance to historic properties 
within the area of potential effects.
    (1) Criteria of adverse effect. An undertaking is considered to 
have an adverse effect when it may alter characteristics of a historic 
property that may qualify the property for inclusion in the National 
Register in a manner that may diminish the integrity of the property's 
location, design, setting, materials, workmanship, feeling, or 
association. Adverse effects may be direct or indirect. Direct effects 
are caused by the undertaking and occur at the same time and place. 
Indirect effects include those caused by the undertaking that are later 
in time or farther removed in distance, but are still reasonably 
foreseeable. For the purpose of determining adverse effect, alteration 
to features of a property's location, setting, or use may be relevant, 
depending on the property's significant characteristics, and should be 
considered.
    (2) Examples of adverse effects. Adverse effects on historic 
properties include, but are not limited to:
    (i) Physical destruction, damage, or alteration of all or part of 
the property;
    (ii) Isolation of the property, from or alteration of, the 
character of the property's setting when that character contributes to 
the property's qualification for the National Register;
    (iii) Introduction of visual, audible, or atmospheric elements that 
are out of character with the property or alter its setting;
    (iv) Neglect of a property which may result in its deterioration or 
destruction; and
    (v) Transfer, lease, or sale of property under the jurisdiction or 
control of a Federal agency.
    (b) Request State Historic Preservation Officer concurrence. If the 
Agency Official believes the effect will not be adverse or proposes to 
carry out the undertaking in accordance with a Conditional No Adverse 
Effect Agreement that meets the requirements of Sec. 800.9(b)(2), the 
Agency Official shall submit the proposed finding or agreement with 
adequate documentation to the State Historic Preservation Officer for 
review and concurrence.
    (1) State Historic Preservation Officer response to a submitted 
finding of no adverse effect. (i) If the State Historic Preservation 
Officer concurs with the Agency Official's finding, the Agency Official 
may proceed and shall carry out the undertaking in accordance with 
Sec. 800.9(c)(1).
    (ii) If the State Historic Preservation Officer fails to respond 
within 30 days of receipt of the finding, the Agency Official may 
proceed and shall carry out the undertaking in accordance with 
Sec. 800.9(c) .
    (iii) If the State Historic Preservation Officer objects and does 
not propose terms for a Conditional No Adverse Effect Agreement, or the 
Agency Official does not agree to execute such an agreement, than the 
effect shall be considered adverse. The State Historic Preservation 
Officer shall specify the its reasons for objecting to a finding of no 
adverse effect.
    (2) Conditional No Adverse Effect Agreement. If the Agency Official 
proposes to carry out the undertaking in accordance with the 
requirements of paragraph (b)(2), or the State Historic Preservation 
Officer objects to the Agency Official's finding of no adverse effect 
but proposes terms for such agreement, the Agency Official and the 
State Historic Preservation Officer may execute a Conditional No 
Adverse Effect Agreement that meets the criteria of 
Sec. 800.9(b)(2)(i).
    (i) A Conditional No Adverse Effect Agreement may be executed when:
    (A) The historic property is of significance only for its potential 
contribution to archeological, historical, or architectural research, 
is not of value for other public uses including onsite interpretation 
and adaptive use, and when its significance can be substantially 
preserved through the conduct of appropriate research or recordation, 
provided that such research or recordation is conducted in accordance 
with a plan that meets applicable professional standards and guidelines 
and has been reviewed by the State Historic Preservation Officer prior 
to implementation of the plan; or
    (B) The undertaking is limited to rehabilitation of buildings and 
structures and will be conducted in a manner that preserves the 
historical and architectural value of affected historic property in 
accordance with plans and specifications that conform to the 
Secretary's ``Standards for Rehabilitation and Guidelines for 
Rehabilitating Historic Buildings'' and that have been reviewed by the 
State Historic Preservation Officer prior to implementation; or
    (C) The undertaking is limited to the transfer, lease, or sale of a 
historic property, and adequate restrictions or conditions, legally 
enforceable within the State, are included to ensure preservation of 
the property's significant historic features; or
    (D) The Agency Official agrees to modify the undertaking in such a 
way as to avoid any adverse effects; or
    (E) The undertaking meets other conditions specified by the Council 
in accordance with a notice that is published in the Federal Register.
    (ii) Where the potential exists for the discovery of human remains 
or cultural items, as defined in the Native American Graves Protection 
and Repatriation Act, during the implementation of the undertaking, the 
Agency Official shall consult with Indian tribes, Native Hawaiian 
organizations, or other concerned descendant individuals and 
communities in developing the Conditional No Adverse Effect Agreement.
    (A) If it is known that human remains or cultural items as defined 
in the Native American Graves Protection and Repatriation Act are 
present, a Conditional No Adverse Effect Agreement may not be executed.
    (B) If it is not known that human remains or cultural items as 
defined in the Native American Graves Protection and Repatriation Act 
are present, then a Conditional No Adverse Effect Agreement may be 
executed, but shall contain adequate provisions for consultation with 
Indian tribes, Native Hawaiian organizations, or other concerned 
descendant individuals and communities in the event of discovery.
    (iii) The Agency Official and the State Historic Preservation 
Officer shall execute a Conditional No Adverse Effect Agreement that 
specifies the conditions which qualify the undertaking for such 
treatment. The Agency Official shall file the Conditional No Adverse 
Effect Agreement with the Council prior to approval of the undertaking 
and carry out the undertaking in accordance with the agreement.
    (iv) Unless anyone requests, the Council shall not review 
individual Conditional No Adverse Effect Agreements, but may elect to 
review specific ones at its discretion in accordance with 
Sec. 800.12(e)(1) .
    (v) For the purposes of this part, the Conditional No Adverse 
Effect Agreement shall be considered a Memorandum of Agreement in 
accordance with Sec. 800.10(d) and shall govern the undertaking and all 
of its parts in accordance with Section 110(l) of the Act. Effects 
covered by the Conditional No Adverse Effect Agreement shall be 
considered not to be adverse under this part.
    (c) Results of assessment.--(1) No adverse effect found. A finding 
of no adverse effect in which the State Historic Preservation Officer 
has concurred, failed to respond, or has executed a Conditional No 
Adverse Effect Agreement in accordance with Sec. 800.9(b) shall be 
final, unless the Council determines otherwise in accordance with 
Sec. 800.12(a). Implementation of the undertaking in accordance with 
the finding as documented, or in accordance with a Conditional No 
Adverse Effect Agreement, evidences that the Agency Official has 
complied with Section 106 and this part. The Agency Official shall 
maintain a record of the finding or the Conditional No Adverse Effect 
Agreement, notify all known interested parties, and make the record 
available for public review before approving the undertaking. Failure 
to carry out the undertaking in accordance with a finding of no adverse 
effect or a Conditional No Adverse Effect Agreement requires the Agency 
Official to reopen the Section 106 process.
    (2) Adverse effect found. If an adverse effect is found in 
accordance with this section, the Agency Official shall consult further 
to resolve the adverse effect pursuant to Sec. 800.10.
    (d) Council review of findings. If anyone requests, the Council 
shall review in accordance with Sec. 800.12(a) a finding made by an 
Agency Official under Sec. 800.9(a) or (b).


Sec. 800.10  Resolution of adverse effects.

    (a) Determine method. If an adverse effect on historic properties 
is found, the Agency Official shall consult further with the State 
Historic Preservation Officer to determine the appropriate method for 
resolving the adverse effect of the undertaking.
    (1) Resolution with the State Historic Preservation Officer. If the 
undertaking and its effects on historic properties do not involve 
National Historic Landmarks, the preservation issues are not complex, 
and there is no public controversy over preservation issues, the Agency 
Official may follow Sec. 800.10(c)(1).
    (2) Resolution with the State Historic Preservation Officer and the 
Council. If the undertaking and its effects on historic properties 
involve National Historic Landmarks, the preservation issues are 
complex, or there is public controversy over preservation issues, the 
Agency Official shall follow Sec. 800.10(c)(2).
    (b) Initiate negotiation. The Agency Official shall use the 
selected method to develop and evaluate acceptable alternatives or 
modifications to the undertaking, including avoiding and minimizing 
adverse effects on historic properties. In consultation with the State 
Historic Preservation Officer, the Agency Official shall initiate 
negotiation by involving interested parties, providing documentation, 
and involving the public.
    (1) Involve interested parties. The Agency Official shall notify 
interested parties and invite them to participate in the negotiation as 
follows:
    (i) An Indian tribe or Native Hawaiian organization that attaches 
religious and cultural significance to historic properties within the 
area of potential effects must be invited to participate in any 
negotiation.
    (ii) An Indian tribe with jurisdiction over tribal lands affected 
by the undertaking must be invited to participate in any negotiation.
    (iii) The Agency Official shall notify the following interested 
parties who may participate in the negotiation by notifying the Agency 
Official:
    (A) The head of a local government when the undertaking may affect 
historic properties within the local government's jurisdiction;
    (B) Units of local government with an interest in the undertaking 
and its effects on historic properties;
    (C) Applicants for, or holders of, grants, permits, or licenses;
    (D) Owners of affected properties, provided that participation may 
be limited to organizations representing the interests of affected 
property owners if the Council determines it is necessary;
    (E) Traditional cultural authorities and traditional communities 
with an interest in the undertaking and its effects on historic 
properties of traditional cultural and religious importance; and
    (F) Other interested parties as jointly determined appropriate by 
the Agency Official, the State Historic Preservation Officer, and the 
Council, if participating.
    (2) Provide documentation. The Agency Official shall provide each 
of the parties to the negotiation with the documentation set forth in 
Sec. 800.14(c) and such other documentation as may be developed in the 
course of negotiation to resolve adverse effects.
    (3) Involve the public. The Agency Official shall provide 
information to the public and an adequate opportunity for members of 
the public to express their views on resolving adverse effects of the 
undertaking. The Agency Official shall use appropriate mechanisms to 
ensure that the full range of the public's views is represented in the 
negotiation. The Agency Official, the State Historic Preservation 
Officer, or the Council may meet with members of the public or conduct 
a public information meeting for this purpose.
    (c) Resolve adverse effects.--(1) Resolution with the State 
Historic Preservation Officer. (i) When the Agency Official determines 
that the nature of the undertaking and its effects do not warrant 
Council participation in the consultation in accordance with 
Sec. 800.10(a)(2), the Agency Official shall notify the Council by 
providing the documentation set forth in Sec. 800.14(c).
    (ii) The Council shall notify the Agency Official of its intention 
to participate in the negotiation within 30 days of receiving the 
notice. If the Council elects to participate, the Agency Official shall 
proceed in accordance with Sec. 800.10(c)(2). Failure of the Council to 
notify the Agency Official within the 30 day time period shall not 
preclude the Council joining the negotiation process at any later 
point.
    (iii) If the Council does not elect to participate, the Agency 
Official shall negotiate with the State Historic Preservation Officer 
and interested parties to seek ways to avoid or reduce the adverse 
effects by negotiating acceptable alternatives or modifications to the 
undertaking as proposed.
    (iv) If the Agency Official and the State Historic Preservation 
Officer agree on how the adverse effects will be resolved, they shall 
execute a Memorandum of Agreement. The Agency Official shall submit the 
Memorandum of Agreement to the Council with the documentation set forth 
in Sec. 800.14(d) for review.
    (v) The Council shall have 30 days from the receipt of an 
adequately documented Memorandum of Agreement to review it. Unless the 
Council objects to the Memorandum of Agreement before this review 
period ends, the Memorandum of Agreement shall become final. The 
Council may object when it determines that further negotiation is 
necessary in accordance with Sec. 800.10(c)(2) because the Agency 
Official failed to notify the Council pursuant to Sec. 800.10(c)(1)(i); 
interested parties were not adequately involved; the Memorandum of 
Agreement contains serious technical or substantive flaws; or public 
controversy exists.
    (vi) If the Agency Official and the State Historic Preservation 
Officer are unable to agree on the terms of a Memorandum of Agreement, 
the Agency Official or the State Historic Preservation Officer shall 
request the Council to join the consultation. Consultation shall 
proceed in accordance with Sec. 800.10(c)(2).
    (2) Resolution with Council participation. (i) When the Agency 
Official determines that Council involvement is warranted in accordance 
with Sec. 800.10(a)(2), when the Council notifies the Agency Official 
in accordance with Sec. 800.10(c)(1)(ii), or when the Agency Official, 
the State Historic Preservation Officer, or the Council so requests, 
the Agency Official shall consult with the State Historic Preservation 
Officer and the Council to avoid or reduce the adverse effects by 
negotiating acceptable alternatives or modifications to the undertaking 
as proposed. The Agency Official shall invite interested parties to 
participate in the negotiation in accordance with Sec. 800.10(b)(1). If 
the Agency Official, the State Historic Preservation Officer, and the 
Council agree on how the adverse effects will be resolved, they shall 
execute a Memorandum of Agreement.
    (ii) When negotiation is being conducted in accordance with 
Sec. 800.10(c)(1), the Agency Official, the State Historic Preservation 
Officer, or any interested party may request the Council to 
participate. The Council shall determine if it will participate and 
notify the requestor of its decision within 30 days of the request. The 
Council may participate at any point in the Section 106 process without 
such a request. If the Council decides to participate, negotiation 
shall be conducted in accordance with Sec. 800.10(c)(2).
    (d) Memorandum of Agreement--(1) Signatories. The signatories have 
the sole authority to execute, amend, or terminate the agreement. The 
Agency Official and the State Historic Preservation Officer are the 
signatories to a Memorandum of Agreement executed pursuant to 
Sec. 800.10(c)(1). The Agency Official, the State Historic Preservation 
Officer, and the Council are the signatories to a Memorandum of 
Agreement executed pursuant to Sec. 800.10(c)(2). When an Indian tribe 
or Native Hawaiian organization has participated in the negotiation, 
the Agency Official shall invite the governing body of the Indian tribe 
or the Native Hawaiian organization to concur in any Memorandum of 
Agreement. Other interested parties may be invited by the signatories 
to concur in the agreement, but their concurrence is not necessary for 
the Memorandum of Agreement to take effect. When exercising its 
authorities under Sec. 800.10(c)(1)(v), the Council will consider any 
objection to execution of such an agreement raised by an Indian tribe, 
Native Hawaiian organization, or other interested party.
    (2) Use of a Memorandum of Agreement for special situations. (i) A 
Memorandum of Agreement may govern more than one individual 
undertaking, a large or complex project, or certain situations that do 
not fall within the normal process of individual project review. These 
include situations:
    (A) When effects on historic properties are similar and repetitive 
or are multi-State or regional in scope;
    (B) When effects on historic properties cannot be fully determined 
prior to approval;
    (C) When non-Federal parties are delegated major decisionmaking 
responsibilities; or
    (D) Where routine management activities are undertaken at Federal 
installations, facilities, or other land-management units.
    (ii) Such a Memorandum of Agreement shall be developed in the same 
manner as other Memoranda of Agreement under Sec. 800.10, except that 
if negotiation pertains to a large project involving several 
undertakings and the parties fail to reach agreement, then the Agency 
Official shall Comply with Secs. 800.8-800.10 for each individual 
undertaking.
    (3) Duration and reports on implementation. Any Memorandum of 
Agreement completed in accordance with this part shall include a 
provision for monitoring of, and reporting on, the implementation of 
the terms of the agreement. Reports shall be provided to the State 
Historic Preservation Officer and the Council, and be made available to 
other interested parties and for public inspection. A Memorandum of 
Agreement shall also include provisions for termination or 
reconsideration of terms if the undertaking has not been implemented 
within a specified period of time.
    (4) Effect. A Memorandum of Agreement that has been executed 
pursuant to this part evidences the Agency Official's compliance with 
Section 106 and this part and shall govern the undertaking and all of 
its parts, in accordance with Section 110(l) of the Act. The Agency 
Official must conform to and carry out the terms of the Memorandum of 
Agreement to satisfy the requirements of Section 106 and this part.
    (5) Amendments. The Agency Official, the State Historic 
Preservation Officer, and the Council may agree to amend a Memorandum 
of Agreement executed in accordance with Sec. 800.10(c)(2) and to 
execute an amended Memorandum of Agreement. The Agency Official and the 
State Historic Preservation Officer may agree to amend a Memorandum of 
Agreement executed in accordance with Sec. 800.10(c)(1) and execute an 
amended Memorandum of Agreement, which shall be filed with the Council 
and take effect unless the Council objects within 30 days of receipt. 
Failure to agree on amendments leaves the existing Memorandum of 
Agreement in effect, provided that the Council may terminate any 
Memorandum of Agreement and comment to the head of the agency on the 
undertaking in accordance with Sec. 800.11(b).
    (6) Termination. If one of the signatories determines that the 
terms of a Memorandum of Agreement cannot be carried out, the Agency 
Official, the State Historic Preservation Officer and the Council, 
where appropriate, shall consult to seek amendment of the agreement in 
accordance with Sec. 800.10(c)(5). If the Memorandum of Agreement is 
not amended, any of the signatories may terminate the agreement. In 
that event, the Agency Official shall seek the comments of the Council 
in accordance with Sec. 800.11(b).


Sec. 800.11  Failure to resolve adverse effects.

    (a) Termination of negotiation--(1) Finding negotiation 
unproductive. After participating in consultation to avoid or minimize 
the adverse effects by negotiating acceptable alternatives or 
modifications to the undertaking as proposed, the Agency Official, the 
State Historic Preservation Officer, or the Council may determine that 
further negotiation will not be productive and terminate negotiation. 
If negotiation is terminated, the head of the agency or an Assistant 
Secretary or an officer having major department-wide or agency-wide 
responsibilities shall then request the Council's comments.
    (2) Documentation requirements. The official requesting Council 
comment shall submit the documentation set forth in Sec. 800.14(e) with 
the request for Council comments and notify other participants in the 
consultation of the request.
    (b) Comments by the Council--(1) Preparation. The Council shall 
prepare its comments with an adequate opportunity for the Agency 
Official, the State Historic Preservation Officer, interested parties, 
and the public to provide their views on the adverse effects of the 
undertaking and offer any alternatives or modifications to resolve 
those effects. The Agency Official shall make a good faith effort to 
provide additional information available concerning the undertaking, 
its effects, and possible alternatives or modifications, and shall 
assist the Council in arranging an onsite inspection and an opportunity 
for public participation when requested by the Council. The Agency 
Official shall assist the Council to ensure that any Indian tribe or 
Native Hawaiian organization is afforded a reasonable opportunity to 
make its views known during the formulation of Council comments.
    (2) Timing. The Council shall transmit its comments within 45 days 
of receipt of a properly documented request from the head of the 
agency, unless otherwise agreed to by the Agency Official.
    (3) Transmittal. The Council shall provide its comments to the head 
of the agency requesting comment with copies to the State Historic 
Preservation Officer, interested parties, and others as appropriate.
    (4) Response to Council comment. When the Council has commented 
pursuant to this paragraph (b), the head of the agency shall consider 
the Council's comments in reaching a final decision on the proposed 
undertaking. The head of the agency may not delegate his or her 
responsibilities pursuant to this paragraph. The head of the agency 
shall document any decision made pursuant to Section 106 by:
    (i) Preparing a record of the decision and the rationale for the 
decision made by the head of the agency, evidencing the consideration 
given to the Council's comments;
    (ii) Providing that record to the Council prior to the approval of 
the undertaking;
    (iii) Notifying known interested parties of the decision;
    (iv) Providing a copy of the record of decision to all interested 
parties who participated in the negotiation process; and
    (v) Notifying the public and making the record available for public 
inspection.


Sec. 800.12  Monitoring and compliance.

    (a) Review of Agency Official findings--(1) Timeliness. The Council 
shall consider a request for review of an Agency Official's finding 
under this part at any time, regardless of the status of the 
undertaking in the planning and approval process. The Council may 
determine that a request for review is not timely and decline to 
consider the substance of the request. The Council shall deem a request 
for review timely if it determines that an opportunity exists to 
influence the effects of an undertaking on historic properties, 
provided that such a determination shall not preclude the Council from 
subsequently determining that an agency has foreclosed the Council's 
opportunity to comment pursuant to Sec. 800.12(b).
    (2) Council review. The Council shall review the substance of a 
request for review and provide its conclusions to the Agency Official, 
the State Historic Preservation Officer, and the requesting party 
within 30 days. The Council shall reach a determination on the finding 
that is presented for review and may also advise the Agency Official of 
appropriate steps to take in light of the Council's determination.
    (3) Agency Official responsibilities. The Agency Official shall 
take all measures to avoid adverse effects to historic properties while 
the Council is reviewing the finding. The Agency Official is not 
required to delay approval of the undertaking prior to a request for 
review being filed or during the Council's review of such request, but 
should recognize that a Council determination may require the Agency 
Official to reconsider actions previously taken in the Section 106 
process. In response to the Council's determination, the Agency 
Official shall take the appropriate steps specified in this part.
    (4) Council initiation of review. The Council may review any Agency 
Official finding made under this part on its own initiative. Such 
review shall proceed as though a request to the Council has been made.
    (5) Effect of the Council's determination. In accordance with 
Section 211 of the Act, the Council's determination on the finding 
shall be conclusive for the purposes of Section 106 and this part.
    (b) Foreclosure of the Council's opportunity to comment.--(1) 
Notice to Agency Official. The Council membership may inform the head 
of an agency that an Agency Official has taken an action that has 
precluded the Agency Official from completing the requirements of 
Section 106 in accordance with this part and thereby foreclosed the 
Council's opportunity to comment. The Council shall notify the Agency 
Official that it is considering a finding of foreclosure and afford the 
Agency Official 30 days to provide information for the Council's 
consideration as to whether the agency has foreclosed the Council's 
opportunity to comment.
    (2) Consideration of foreclosure. After providing notice to the 
Agency Official, the Council membership shall make a final 
determination as to foreclosure. If the Council membership determines 
that the Agency Official has foreclosed the Council's opportunity to 
comment, the Council shall transmit its determination to the head of 
the agency as a Notice of Violation.
    (c) Anticipatory demolition. Section 110(k) of the Act specifies 
that an agency shall not grant a loan, loan guarantee, permit, license, 
or other assistance to an applicant who, with intent to avoid the 
requirements of Section 106, has intentionally significantly adversely 
affected a historic property to which the grant would relate, or to an 
applicant who allowed such significant adverse effect to occur and had 
the legal power to prevent its occurrence. If, after consultation with 
the Council, the agency determines that circumstances justify granting 
such assistance, despite the adverse effect created or permitted by the 
applicant, the agency may allow the grant.
    (1) Information for the Council. If the Council is apprised of or 
has reason to believe that anticipatory demolition has occurred, it 
shall request information from the Agency Official regarding the 
applicant's action, including, but not limited to:
    (i) The actual effect on historic properties, evaluated in the 
context of the Criteria of Adverse Effect set forth in 
Sec. 800.9(a)(1);
    (ii) Any actions, if any, taken by the Agency Official with respect 
to the applicant, the undertaking, or the historic properties;
    (iii) Any notification given to the applicant regarding the Section 
106 process and any other information relating to the applicant's 
knowledge of the requirements of Section 106 and this part;
    (iv) The degree of control of the applicant over the action causing 
adverse effects;
    (v) Any other information bearing on the applicant's intent 
regarding the action causing the adverse effects; and
    (vi) Any comments provided by the State Historic Preservation 
Officer and any interested parties.
    (2) Council views on anticipatory demolition. Based on the 
information provided by the Agency Official and any other information 
provided to the Council, the Council shall advise the Agency Official 
of its views regarding whether the applicant has engaged in 
anticipatory demolition.
    (3) Agency determination. The Agency Official shall consider the 
views of the Council in reaching its determination regarding 
anticipatory demolition. The Agency Official may independently 
determine that anticipatory demolition has occurred, without seeking 
the views of the Council.
    (4) Denial of assistance. If the Agency Official determines that 
anticipatory demolition has occurred, the Agency Official shall not 
grant a loan, loan guarantee, permit, license, or other assistance to 
the applicant, unless after consultation with the Council, the Agency 
Official determines that circumstances justify granting such assistance 
despite the adverse effect created or permitted by the applicant. In 
that case, the Agency Official may grant the assistance.
    (5) Consideration of circumstances justifying granting assistance. 
When consulting with the Council regarding circumstances that would 
justify granting the assistance, the Agency Official shall provide the 
Council with:
    (i) The basis for its determination that anticipatory demolition 
had occurred;
    (ii) The Agency Official's assessment of the severity of the damage 
to historic properties, the significance of the historic properties, 
the opportunities for mitigation, and the availability of other 
remedial actions;
    (iii) Any information regarding mitigating circumstances or other 
justification for granting the assistance; and
    (iv) Any views or information provided to the Agency Official by 
the applicant.
    (6) Agency determination regarding justifying circumstances. The 
Council shall provide the Agency Official with its written views 
regarding justifying circumstances. If, after consulting with the 
Council, the Agency Official determines that circumstances justify 
granting the assistance, despite the adverse effect, the Agency 
Official shall notify the Council, the State Historic Preservation 
Officer and interested parties of its decision and provide 
documentation on the basis of its finding.
    (7) Review of undertaking. If the Agency Official decides to grant 
the assistance, the Agency Official shall complete the Section 106 
process for the undertaking in accordance with Secs. 800.7 through 
800.11.
    (d) Notice of Violation.--(1) Basis for notice. If the Council 
membership determines that the actions of an Agency Official constitute 
a violation of Section 106 of the Act or this part, the Council may 
issue a Notice of Violation to the Agency Official and the head of the 
agency advising that the agency has failed to meet the requirements of 
Federal law. The Council membership may determine that a violation of 
Section 106 has occurred under the following circumstances:
    (i) An Agency Official has proceeded with the planning and approval 
of an undertaking without adequate compliance with Section 106 of the 
Act and this part;
    (ii) An Agency Official or an applicant has failed to carry out the 
terms of a no adverse effect determination, a Conditional No Adverse 
Effect Agreement, a Memorandum of Agreement, a Programmatic Agreement, 
or a counterpart regulation, or failed to comply with a process or 
requirement originating under such document;
    (iii) An Agency Official has taken or sanctioned an action that has 
resulted in adverse effects to a historic property, including 
demolition by neglect, prior to completion of the Section 106 process; 
or
    (iv) An Agency Official has foreclosed the Council's opportunity to 
comment.
    (2) Procedure. The Council shall issue a preliminary Notice of 
Violation to an Agency Official when it believes that a violation of 
Section 106 or this part has occurred or is about to occur. The 
preliminary Notice of Violation shall apprise the Agency Official of 
the basis for the Council's action and request the views of the Agency 
Official on the issue. The Council membership may, at its discretion, 
decide to issue a final Notice of Violation to the Agency Official. The 
final Notice of Violation shall indicate the specific reasons for the 
Council membership's finding and shall also be provided to the head of 
the agency.
    (3) Effect. A Notice of Violation issued by the Council constitutes 
the opinion of the Council membership that an Agency Official has acted 
in violation of Section 106 of the Act and this part.
    (e) Reporting.--(1) Reports of agency performance. The Council may 
review the performance of agencies and other parties under this part 
and report its findings to the agency Federal Preservation Officer, the 
head of the agency, the Office of Management and Budget, the Department 
of Justice, and the Congress, as it deems appropriate.
    (2) Remedial actions. When the Council determines that an agency 
has failed to meet its Section 106 obligations in a manner consistent 
with this part, the Council may notify the appropriate Agency Official 
that the Council will participate in specific steps of the Section 106 
process for review of the agency's undertakings.


Sec. 800.13  Special requirements for protecting National Historic 
Landmarks.

    Section 110(f) of the Act requires that the Agency Official, to the 
maximum extent possible, undertake such planning and actions as may be 
necessary to minimize harm to any National Historic Landmark that may 
be directly and adversely affected by an undertaking. When commenting 
on such undertakings, the Council shall use the process set forth in 
Secs. 800.7 through 800.11 and give special consideration to protecting 
National Historic Landmarks as follows:
    (a) Resolution of adverse effects. Any negotiation to resolve 
adverse effects conducted under Sec. 800.10 shall include the Council;
    (b) Involvement of the Secretary. The Council shall notify the 
Secretary of negotiations involving National Historic Landmarks and may 
request a report from the Secretary under Section 213 of the Act to 
assist in the negotiation; and
    (c) Report of outcome. The Council shall report the outcome of the 
Section 106 process, including its comments or any Memoranda of 
Agreement, to the President, the Congress, the Secretary, and the head 
of the agency responsible for the undertaking.


Sec. 800.14  Documentation requirements.

    (a) Finding of no historic properties. The required documentation 
is:
    (1) A description of the undertaking, including photographs, maps, 
and drawings, as necessary;
    (2) A description of the undertaking's area of potential effects;
    (3) A description of the efforts used to identify historic 
properties; and
    (4) The basis for determining that no historic properties are 
present.
    (b) Finding of no adverse effect. The purpose of this documentation 
is to provide sufficient information to explain how the Agency Official 
reached the finding of no adverse effect, along with the basis for any 
Conditional No Adverse Effect Agreement. The required documentation is:
    (1) A description of the undertaking and its area of potential 
effects, including photographs, maps, and drawings, as necessary;
    (2) A description of historic properties that may be affected by 
the undertaking;
    (3) A description of the efforts used to identify historic 
properties;
    (4) A statement of how and why the Criteria of Adverse Effect were 
found inapplicable; and
    (5) The views of affected local governments, Indian tribes, Native 
Hawaiian organizations, Federal agencies, and the public, if any were 
provided, as well as a description of the means employed to solicit 
those views.
    (c) Finding of adverse effect and notification to the Council of 
resolution with the State Historic Preservation Officer. The required 
documentation is:
    (1) A description of the undertaking and its area of potential 
effects, including photographs, maps, and drawings, as necessary;
    (2) A description of the affected historic properties, with 
information on the significant characteristics of each property;
    (3) A description of the efforts to identify historic properties;
    (4) A description of the undertaking's effects on historic 
properties; and
    (5) A description of anticipated public interest and measures to 
ensure public involvement.
    (d) Memorandum of Agreement. When a memorandum is submitted to the 
Council for review in accordance with Sec. 800.10(c)(1)(iii), the 
documentation, in addition to that specified in Sec. 800.14(c), shall 
also include a description and evaluation of any proposed mitigation 
measures or alternatives that were considered to avoid or minimize the 
undertaking's effects and a summary of the views of any interested 
parties and the public.
    (e) Requests for comment when negotiation is terminated. The 
purpose of this documentation is to provide the Council with sufficient 
information to make an independent review of the undertaking's effects 
on historic properties as the basis for informed and meaningful 
comments to the Agency Official. The required documentation is:
    (1) A description of the undertaking, with photographs, maps, and 
drawings, as necessary;
    (2) A description of the efforts to identify historic properties;
    (3) A description of the affected historic properties, with 
information on the significant characteristics of each property;
    (4) A description of the effects of the undertaking on historic 
properties and the basis for the determinations;
    (5) A description and evaluation of any alternatives or mitigation 
measures that the Agency Official proposes to resolve the undertaking's 
adverse effects;
    (6) A description of any alternatives or mitigation measures that 
were considered but not chosen, and the reasons for their rejection;
    (7) Documentation of consultation with the State Historic 
Preservation Officer regarding the identification and evaluation of 
historic properties, assessment of effect, and any consideration of 
alternatives or mitigation measures;
    (8) A description of the Agency Official's efforts to obtain and 
consider the views of affected local governments, Indian tribes, Native 
Hawaiian organizations, and other interested parties;
    (9) The planning and approval schedule for the undertaking;
    (10) Copies or summaries of any views submitted to the Agency 
Official concerning the effects of the undertaking on historic 
properties and alternatives to reduce or avoid those effects; and
    (11) Any additional available information specifically requested by 
the Council.
    (f) Adequacy of documentation. The Council shall determine the 
adequacy of documentation prepared to meet the requirements of this 
part. If the Council determines that documentation is inadequate, the 
running of the time period specified at the relevant section of this 
part shall be suspended until adequate documentation is submitted.


Sec. 800.15  Properties discovered after approval or during 
implementation of an undertaking.

    (a) Planning for discoveries. When the Agency Official's 
identification efforts in accordance with Sec. 800.8 indicate that 
historic properties are likely to be discovered during implementation 
of an undertaking, the Agency Official is encouraged to develop a plan 
for the resolution of any adverse effects upon such properties if 
discovered. The plan should be incorporated into any Memorandum of 
Agreement executed for the undertaking.
    (b) When properties are discovered--(1) If a plan exists. When an 
Agency Official has completed the Section 106 process and prepared a 
plan in accordance with Sec. 800.15(a), the Agency Official shall 
satisfy the requirements of Section 106 concerning properties 
discovered during implementation of an undertaking by following the 
plan.
    (2) If no plan exists. When an Agency Official has completed the 
Section 106 process without preparing a plan in accordance with 
Sec. 800.15(a) and finds after beginning to carry out the undertaking 
that the undertaking will have an adverse effect upon a previously 
unidentified historic property, or adversely affect a known historic 
property in an unanticipated manner, the Agency Official shall resolve 
the adverse effects by:
    (i) Consulting pursuant to Sec. 800.10;
    (ii) Consulting pursuant to Sec. 800.15(c); or
    (iii) Complying with the Archeological and Historic Preservation 
Act, 16 U.S.C. 469(a)-(c) and implementing regulations, instead of this 
part, if the property is principally of archeological significance and 
subject to the requirements of that Act. When the Agency Official 
elects to follow this paragraph (b)(2)(iii), the Agency Official shall 
consult with the State Historic Preservation Officer on the actions 
proposed and provide the Council with a report on the actions after 
they are completed.
    (c) Expedited consultation. When an Agency Official elects to 
follow this paragraph (c), the Agency Official shall notify the State 
Historic Preservation Officer and the Council at the earliest possible 
time, describe the actions proposed to resolve the adverse effects, and 
request the views of the Council and the State Historic Preservation 
Officer on the proposed actions. The Council and the State Historic 
Preservation Officer shall provide an interim response to the Agency 
Official within 48 hours of the request and a final response to the 
Agency Official within 30 days of the request.
    (d) Other considerations--(1) Eligibility of properties. When a 
newly discovered property has not previously been included in or 
determined eligible for the National Register, the Agency Official may 
assume the property to be eligible for purposes of Section 106.
    (2) Discoveries on tribal or Federal land. When a discovery occurs 
and compliance with this section is necessary on tribal or Federal 
lands, the Agency Official shall consult with the Indian tribe or other 
appropriate parties during implementation of this section's 
requirements and comply with the Native American Graves Protection and 
Repatriation Act as required.
    (3) Agency responsibilities during resolution of issues involving 
newly discovered properties. Section 106 and this part do not require 
the Agency Official to stop work on the undertaking. Depending on the 
nature of the property and the undertaking's adverse effects on it, the 
Agency Official shall make reasonable efforts to avoid or minimize harm 
to the property until the requirements of this section are met. If the 
provisions of Native American Graves Protection and Repatriation Act 
are applicable, the Agency Official must comply with requirements of 
the Native American Graves Protection and Repatriation Act and may be 
required to cease the activity in the area of the discovery.

Subpart D--Alternative Procedures


Sec. 800.16  Federal agency program alternatives.

    (a) Counterpart procedures. An agency may develop counterpart 
procedures to substitute for Subpart B of this part. Sections 800.4 and 
800.5(a) govern the development of counterpart procedures.
    (b) Programmatic Agreements. A Programmatic Agreement may be used 
to fulfill an agency's Section 106 responsibilities for certain 
activities or programs that would otherwise require numerous individual 
requests for comments. Programmatic Agreements for programs shall be 
developed in accordance with Sec. 800.5(b).


Sec. 800.17  Tribal program alternatives.

    (a) Application. An Indian tribe may enter into an agreement with 
the Council to substitute tribal historic preservation regulations for 
the Council's regulations for the review of undertakings on tribal 
lands.
    (b) Request for Council approval. An Indian tribe shall request the 
Council to approve the substitution of tribal historic preservation 
regulations. The request shall be accompanied by a copy of the tribal 
regulations, a list of potential interested parties and the Indian 
tribe's comparison of the consideration afforded historic properties 
under its regulations and the Council's regulations.
    (c) Consultation. The Council shall consult with the requesting 
Indian tribe, the appropriate State Historic Preservation Officer or 
Officers, the Secretary and any interested parties who so request. The 
requesting Indian tribe shall provide the information submitted in 
accordance with Sec. 800.17(b) to interested parties as determined by 
the Council. The Council shall provide notice to Federal agencies and 
consider any comments received.
    (d) Approval. If the Council determines that the tribal historic 
preservation regulations will afford historic properties consideration 
equivalent to that afforded by the Council's regulations, the Council 
shall execute an agreement with the requesting Indian tribe to that 
effect.
    (e) Effect. After an agreement is executed, an Agency Official with 
jurisdiction over an undertaking carried out on tribal lands covered by 
the agreement shall follow the approved tribal historic preservation 
regulations in lieu of the Council's regulations.
    (f) Amendment and termination. Either the Indian tribe or the 
Council may seek an amendment to the agreement, which shall take effect 
upon agreement of both parties. The agreement may be terminated at any 
time by the Indian tribe and by the Council after it finds that the 
operation of the tribal regulations do not afford historic properties 
consideration equivalent to the Council's regulations.


Sec. 800.18  Emergency situations.

    (a) Counterpart procedures. Prior to a disaster or emergency, the 
Agency Official should develop a plan for taking historic properties 
into account during operations which respond to a disaster or emergency 
declared by the President or Agency Official. At the request of the 
Agency Official, the Council will assist in the development of such a 
plan. The plan shall be submitted to the Council for approval and, if 
approved, shall govern the agency's historic preservation 
responsibilities during any disaster or emergency.
    (b) Alternatives to counterpart procedures. When an Agency Official 
proposes an emergency undertaking as an essential and immediate 
response to a disaster or emergency declared by the President, and the 
agency has not developed counterpart procedures pursuant to paragraph 
(a) of this section, the Agency Official may satisfy Section 106 by:
    (1) Following a State Disaster Plan which contains a historic 
preservation component that has been approved by the Council; or
    (2) If there is no State Disaster Plan which contains a historic 
preservation component that has been approved by the Council and if the 
Agency Official determines that circumstances permit, notifying the 
Council and the appropriate State Historic Preservation Officer prior 
to the undertaking and affording them an opportunity to comment within 
seven days of notification.
    (c) Local governments statutorily delegated responsibility for 
Section 106 compliance. For the purposes of activities assisted under 
Title I of the Housing and Community Development Act of 1974, as 
amended, or any other statute which delegates Section 106 compliance 
responsibilities, Secs. 800.18 (a) and (b) also apply to an imminent 
threat to public health or safety as a result of a natural disaster or 
emergency declared by a local government's chief executive officer or 
legislative body, provided that if the Council or State Historic 
Preservation Officer objects within 7 days, the Agency Official shall 
comply with Secs. 800.7 through 800.10.
    (d) Applicability. Paragraph (b)(2) of this section applies only to 
undertakings that will be implemented within 30 days after the disaster 
or emergency has been initially and formally declared by the President. 
An agency may seek renewals of the 30 day period by requesting a 
renewal from the Council prior to the completion of the 30 days.

Subpart E--Coordination With Other Authorities.


Sec. 800.19  Coordination with other authorities.

    (a) Purpose and scope. The requirements of Section 106 of the 
National Historic Preservation Act are independent of other 
environmental review and protection, historic preservation, and 
resource management authorities. As such, compliance with one does not 
substitute for compliance with the other. To promote program 
effectiveness and efficiency, Agency Officials are encouraged to 
coordinate and, where appropriate, integrate the requirements of 
Section 106 and this part with the requirements of other environmental 
review and protection, historic preservation, and resource management 
authorities to the maximum extent feasible. Neither Section 106 or this 
part require that Federal agencies comply with these related 
authorities, nor do they supersede any regulations that have been 
issued to govern any related authorities.
    (b) Related authorities. Authorities that should be considered for 
coordination with Section 106 compliance include, but are not limited 
to, the following:
    (1) Other authorities that require agencies to identify, evaluate, 
and consider effects on historic properties through planning processes 
(e.g., National Environmental Policy Act; American Indian Religious 
Freedom Act; Federal Land Policy and Management Act; National Forest 
Management Act; and Department of Transportation Act, Section 4(f)); 
and
    (2) Other authorities that require agencies to establish mechanisms 
for protection and disposition of historic properties (e.g., Native 
American Graves Protection and Repatriation Act; Archeological 
Resources Protection Act; Abandoned Shipwrecks Act; and Archeological 
and Historic Preservation Act).
    (c) Coordination with specific authorities--(1) National 
Environmental Policy Act (NEPA).--The Agency Official should coordinate 
the identification, evaluation, assessment, and resolution of adverse 
effect steps of Subpart C of this part with NEPA requirements, so that 
determinations reached under the Section 106 process are accurately 
reflected in the Agency Official's decision- making process for the 
proposed undertaking.
    (i) During the preparation of preliminary environmental 
investigations and studies (and the scoping process where applicable), 
the Agency Official should ensure that information is explicitly sought 
on the presence of historic properties and the nature of any effects 
upon them. This information is sought to be consistent with the spirit 
of NEPA to identify, avoid, minimize, and lastly to mitigate 
unavoidable adverse environmental effects.
    (ii) The Agency Official is encouraged to coordinate the public 
participation requirements of the EIS process with those of the Section 
106 process to eliminate duplication and maximize public knowledge and 
understanding of the undertaking and its effects upon historic 
properties, provided that the use of the NEPA public participation 
process shall not abrogate the public involvement rights afforded in 
the Council's regulations.
    (iii) An undertaking considered to be categorically excluded from 
review under NEPA in accordance with agency procedures may require 
review under Section 106 (See Sec. 800.5(c)(3)).
    (iv) When the Agency Official prepares an Environmental Assessment 
(EA) or Draft Environmental Impact Statement (DEIS) to meet NEPA 
requirements, the EA or DEIS should document the steps taken to comply 
with Section 106 and reflect the method by which the Agency Official 
concluded the Section 106 process.
    (A) The Agency Official should complete the identification and 
evaluation of potentially affected historic properties and the 
assessment of effects on such properties as set forth in Subpart C of 
this part prior to circulating or making the EA or DEIS available for 
comment. The Agency Official may include the resolution of adverse 
effects, if that step has been completed prior to circulation of the 
Draft EIS.
    (B) The Agency Official should complete the Section 106 process for 
affected historic properties so that the revised EA or Final EIS will 
document the conclusion of the Section 106 process, including any no 
adverse effect determinations, Memoranda of Agreement or Council 
comments.
    (C) The Agency Official may use an EA or Draft EIS to meet the 
information requirements of Subpart C of this part, provided that the 
document contains the information specified in Sec. 800.14 as 
appropriate.
    (D) The Agency Official should ensure that the Finding of No 
Significant Impact or Record of Decision incorporates any applicable 
mitigation measures related to effects on historic properties.
    (v) Further guidance on coordination with NEPA is contained in 
Appendix A of this part.
    (2) American Indian Religious Freedom Act (AIRFA). An Agency 
Official planning or reviewing an undertaking which may affect Native 
Americans' exercise of their religion, including access to religious 
sites, should initiate consultation with such groups as early as 
possible in planning. Such consultation should be carried out in a 
manner that is sensitive to the cultural values of the concerned group, 
and may be combined with consultation under Section 106. Where the 
undertaking may affect historic properties that possess traditional 
religious and cultural importance, Subpart C of this part sets forth 
the process for consulting with Native Americans to meet the 
requirements of Section 106.
    (3) Federal Land Policy and Management Act and National Forest 
Management Act. Agencies planning or reviewing undertakings on Federal 
lands should integrate the public notification, identification, 
evaluation, assessment of effects and resolution of adverse effects 
under Section 106 with the land-use planning requirements of these 
authorities.
    (4) Native American Graves Protection and Repatriation Act 
(NAGPRA). Agencies planning or reviewing undertakings on Federal or 
tribal lands which may result in the intentional removal or inadvertent 
discovery of Native American cultural items as defined in NAGPRA are 
encouraged to combine necessary consultation and agreement with Indian 
tribes and Native Hawaiian organizations with the provisions of Subpart 
C of this part.
    (5) Archeological Resources Protection Act (ARPA). Agencies 
planning or reviewing undertakings on public or Indian lands which may 
involve excavation or removal of archeological resources subject to 
protection under ARPA should coordinate the permit application and 
permit review process with consultation under Section 106. The 
information used for ARPA permit issuance may be used as documentation 
for review under Section 106. If the only Federal involvement is 
issuance of an ARPA permit, compliance with Section 106 is not 
required.
    (6) Section 4(f) of the Department of Transportation Act. A 
Department of Transportation agency planning an undertaking that may 
require the use of a historic site is encouraged to integrate the 
activities required under this Part with activities that may be 
performed to support determinations under Section 4(f) of the 
Department of Transportation Act, with respect to such site.

Appendix A to Part 800--Identifying Historic Properties in Coordination 
With Other Planning Needs

    This Appendix offers guidance on implementing 36 CFR Part 800. It 
is designed to supplement and explain the regulations, but is not 
binding on Federal agencies.
    (a) Overall timing and coordination.
    (1) The Section 106 process should be used during the planning 
process to progressively narrow resource concerns and issues requiring 
resolution about historic properties and historic preservation. 
Ultimately, the objective is to resolve outstanding conflicts between 
proposed undertakings and their effects on historic properties, and to 
make available an appropriate level of information to decisionmakers so 
that they can ``take into account'' the effects of those undertakings 
on historic properties when the conflicts are not completely resolved. 
Consequently, the process will be most effective when planning, review, 
consultation, and decisionmaking steps are explicitly linked to the 
nature and scope of the undertaking as well as to other relevant 
planning and program requirements to the maximum extent possible.
    (2) The Agency Official should establish a procedure and schedule 
for completing the Section 106 process that is consistent with the 
planning approach and approval schedule for the undertaking.
    (3) The Agency Official should begin the Section 106 process and 
integrate it with other planning needs at the earliest possible time, 
when the widest feasible range of alternatives is open for 
consideration. The process should be fully coordinated with actions and 
preparation of documents necessary to comply with the National 
Environmental Policy Act (NEPA) and other environmental and planning 
requirements. This will help to ensure that planning and decisions 
fully reflect historic preservation issues and cultural values and 
concerns, maximize program and budgetary efficiency, and head off 
potential conflicts later in the process that could lead to delays and 
litigation.
    (b) Early planning. At the earliest feasible stage in planning any 
undertaking, in conjunction with the preparation of any Environmental 
Assessment (EA) or Draft Environmental Impact Statement (DEIS) under 
the National Environmental Policy Act (NEPA), and in consultation with 
the State Historic Preservation Officer where appropriate, the Agency 
Official should:
    (1) Establish the nature of the proposed undertaking. Does it deal 
principally with operation of a program with a variety of public policy 
objectives, management or maintenance of resources and resource types, 
or planning and approval of a specific project? What is the extent of 
public investment in the undertaking? Will the effects of the 
undertaking be widespread or localized?
    (2) Determine what decisions need to be made about the proposed 
undertaking, and who needs to make them. Does the Agency Official for a 
single agency have jurisdiction and control over the undertaking, or is 
that jurisdiction shared with other agencies? At what level will 
decisions be made within the agency? If there are other Federal 
agencies involved, who will be the lead Federal agency, and how will 
responsibilities be apportioned? Is all or part of the undertaking on 
tribal or State lands, and subject to other legal requirements?
    (3) Determine the range of likely historic preservation issues that 
may need to be considered. What is the extent of knowledge of historic 
properties that may be affected? Are effects likely to be detrimental 
or beneficial? Is public interest or controversy likely? What are the 
program and fiscal consequences of these issues in relation to the 
planning, approval, and implementation of the undertaking?
    (4) Decide what legal responsibilities, policy objectives, and 
performance standards need to be satisfied in the planning and 
execution of the proposed undertaking. What other statutory, policy, 
fiscal, or timing requirements apply that may affect consultation and 
decisions under Section 106? What legal or practical constraints may 
affect the planning and execution of the proposed undertaking, such as 
access for identification of historic properties?
    (5) Establish how to identify and consult with others who may have 
a legal responsibility or a likely interest in the proposed 
undertaking, and what those responsibilities or interests might be. To 
what extent should other branches within the lead Federal agency be 
consulted? Other Federal, State, or local government agencies and 
organizations? Can the State Historic Preservation Officer help 
identify other parties with an interest in or information about local 
historic preservation values and concerns?
    (6) Establish the area of potential effects of each alternative 
under consideration, including the likelihood of direct, indirect, and 
cumulative effects on historic properties.
    (i) The area of potential effects:
    (A) should be broadly and prospectively defined, but with a logical 
linkage to reasonably foreseeable potential effects that various 
alternatives for the particular type of undertaking could have;
    (B) should consider possible direct, indirect, and cumulative 
effects on the physical characteristics, contextual environment, use, 
or long-term preservation of properties that help qualify them for 
inclusion in the National Register, recognizing that:
    (I) direct effects are caused by the undertaking and occur at the 
same time and place;
    (II) indirect effects include those caused by the undertaking that 
are later in time or farther removed in distance, but are still 
reasonably foreseeable;
    (III) cumulative effects refer to the incremental effect of an 
action when added to other past, present, and reasonably foreseeable 
future actions regardless of what entity (Federal or non-Federal) or 
person undertake such other actions;
    (C) should not be defined on the basis of land ownership or control 
and may include Federal and non-Federal land;
    (D) may include geographic areas subject to indirect effects that 
are outside of ``permit areas'' or construction ``footprints;''
    (E) should include alternative locations for elements of the 
undertaking, locations where the undertaking may result in disturbance 
of the ground, locations from which elements of the undertaking may be 
visible (if that is important in regard to the property's 
significance), and locations where the undertaking may result in 
changes in land use, public access, traffic patterns, and similar 
indirect effects; and
    (F) to the extent feasible, should consider potential cumulative 
effects resulting from incremental impacts of the undertaking which, 
when added to other past, present, and reasonably foreseeable future 
actions, may result in adverse effects on historic properties.
    (ii) Programmatic actions. For undertakings involving the potential 
effects of a program on historic properties and historic and cultural 
values, the area of potential effects should consider the nature of the 
program as well as the nature of historic property types most likely to 
be affected by it. Planning information should be developed from 
knowledge of existing historic resources, interviews with persons with 
special expertise or knowledge, and modeling to anticipate the full 
range of historic properties involved and likely effects attributable 
to the program. For example, a program to replace or rehabilitate 
bridges throughout a State needs to consider not only likely bridge 
locations and the direct effects of abandonment in place, demolition or 
dismantling, relocation, rehabilitation work, on those bridges, but 
also any associated archaeological sites which could be damaged or 
destroyed with ground disturbing activities such as construction 
equipment storage, abutment repair, pavement approach reconstruction, 
or bank stabilization; any nearby or surrounding historic districts 
whose character would be altered by replacement, new construction, or 
changes in historic access patterns; and historic traditional use areas 
peculiar to the region (such as fish weirs or traps) that may be 
located in the stream itself at or near a new bridge location.
    (iii) Management and maintenance areas. For undertakings involving 
the potential effects of land-use planning or maintenance practices for 
specific management units, such as a national park, national forest, 
military installation, Federal office complex, or similar discrete 
area, the area of potential effects should consider land uses, 
associated management needs, and the range of potential uses of 
historic properties, as well as the nature of maintenance requirements 
on particular historic property types. A planning document should 
establish procedures to satisfy Section 110 requirements which, among 
other things, provide for long-term protection, enhancement, management 
and use of historic properties and early consultation with Native 
Americans and other interested parties. For example, a military 
installation resource management plan needs to consider separate use 
zones (cantonment or built-up area, vehicular or infantry training 
areas, firing ranges and impact area, airfields, hazardous or toxic 
materials storage areas, high security vs. public access areas, and 
other special use areas). The range of uses and possible effects of 
actions in each zone on historic structures, archaeological sites, 
traditional cultural properties, and other types of resources will vary 
considerably, as will the agency's long-term management responsibility 
for and procedures for dealing with those properties under Section 110 
and other statutes.
    (iv) Project areas. For undertakings involving the potential 
effects of a specific federally-supported, -assisted, or -permitted 
action or series of actions such as new construction, rehabilitation, 
or transfer out of Federal ownership, agencies should at a minimum 
distinguish between two groups of undertakings. The first includes 
relatively simple, small-scale undertakings affecting limited land area 
and a small number of resources. The second includes more complex 
undertakings affecting large land areas, multiple resources, and 
involving complex jurisdictional matters or other potential points of 
controversy. The area of potential effects for an undertaking subject 
to preparation of an environmental impact statement under NEPA, defined 
as a ``major Federal action significantly affecting the quality of the 
human environment,'' may necessarily involve numerous alternative 
locations or project designs, and will thus affect the level of effort 
necessary to identify historic properties subject to effect (see 36 CFR 
Sec. 800.8 and Appendix 1.C. below).
    (c) Scope of identification of historic properties subject to 
effect. Following determination of the area of potential effects 
appropriate to the undertaking, and coordinated with the preparation of 
any Environmental Assessment (EA) or Draft Environmental Impact 
Statement (DEIS) under NEPA:
    (1) The Agency Official should determine whether the area of 
potential effects has been surveyed or otherwise inspected to identify 
historic properties, and review available information to decide:
    (i) the likelihood that historic properties exist within areas 
subject to effect, and their characteristics, numbers, and probable 
significance;
    (ii) the likelihood that such properties retain their historic, 
cultural, and/or architectural integrity, given what is known about 
historic and recent modification of land or structures in the area; and
    (iii) the nature and severity of effects reasonably expectable as a 
result of the type of undertaking involved, including both effects that 
will occur as the immediate result of the undertaking, or near the site 
of a specific undertaking, and those that may occur at a later time or 
greater distance, provided the latter are reasonably foreseeable.
    (2) The Agency Official should collect available information, 
determine whether the undertaking involves a programmatic action, a 
land management area, or a specific project, and carry out further 
identification by making a reasonable and good faith effort to identify 
historic properties within the area of potential effects, with 
reference to the nature of the undertaking, its likely effects, and the 
extent of available information on historic properties.
    (i) In order to provide a reliable basis for a ``reasonable and 
good faith effort'' to identify historic properties subject to effect, 
agencies should:
    (A) Consult with the SHPO, local governments, Indian tribes, Native 
Hawaiian organizations, and other Native American groups and 
traditional cultural authorities, community organizations, academic 
institutions, and others with knowledge of or concerns with history, 
culture, historic preservation issues, and specific historic properties 
that may be affected;
    (B) Consult existing registers of historic properties, including 
but not limited to the National Register of Historic Places and State 
and local registers, reports of prior historic property surveys, and 
knowledgeable projections of historic property distributions;
    (C) Review other existing information on historic properties 
potentially affected by the undertaking, including any data concerning 
the likelihood that unidentified historic properties exist in the area 
of potential effect, and relevant background information sources on 
each areas history, prehistory, architecture, sociocultural 
characteristics, and cultural geography as appropriate.
    (D) Determine to what extent available information provides a 
reliable basis for decisionmaking consistent with Section 106 
requirements and 36 CFR Part 800, and determine the need for additional 
investigations given the number of alternatives under consideration, 
the scale of the undertaking, the nature and severity of likely 
effects, the accessibility of each area of potential effect, and 
similar factors.
    (ii) Programmatic actions. For undertakings involving the potential 
effects of a program on historic properties and historic and cultural 
values, the identification of historic preservation issues and historic 
properties subject to effect should include agreement with other 
consulting parties on a process for ongoing identification and 
evaluation of properties. This may include administrative modifications 
to or adaptation of the standard portions of the Section 106 process 
contained in the Council's regulations in Sec. 800.8, and may 
categorize types of resources that will be subject to varying 
identification and evaluation methodologies. For example, a 
programmatic undertaking to maintain, modernize, selectively staff, and 
partially abandon fire observation towers in national forests 
nationwide could involve a long-term plan to use historic records to 
identify and evaluate historically significant types of towers against 
agreed-upon criteria.
    (iii) Management and maintenance areas. For undertakings involving 
the potential effects of land-use planning or maintenance practices for 
specific management units, such as a national park, national forest, 
military installation, Federal office complex, or similar discrete 
area, the identification of historic properties subject to effect 
should involve incorporation of the process into a standard operating 
procedure for a General Management Plan, Historic Preservation Plan, 
Land Use and Resource Management Plan, or similar comprehensive 
planning tool with an appropriate national, regional, or statewide 
context to evaluate the historic significance of identified resources. 
For example, ongoing management activities for a Bureau of Land 
Management district should include a continuing program of sample field 
survey, predictive modelling, and regional evaluation criteria, tied to 
other resource management needs and operating procedures for mineral 
exploration, range and timber management, road construction, fire 
control, and recreation programs. (Such a program is also required 
under Section 110 of NHPA).
    (iv) Project areas. For undertakings involving the potential 
effects of a specific action or series of actions such as new 
construction, a decision needs to be made whether the project is large-
scale and complex, or small-scale and less complex.
    (A) For large-scale projects, particularly those covering a very 
large area or numerous alternative locations for the undertaking, the 
purpose of initial identification efforts is to collect and review 
existing information and records in order to consider the likelihood 
that historic properties will be adversely affected in choosing a 
preferred alternative for the undertaking. Draft EAs, DEISs and other 
environmental and planning documents should, at a minimum, reflect this 
level of information. A less intensive investigation (which may include 
development and testing of a ``predictive model'' to indicate where 
historic properties exist or are likely to exist) will be sufficient 
until one or more principal or preferred alternatives is identified.
    (B) For small-scale projects, and for the principal or preferred 
alternatives of large-scale projects, the agency should determine the 
extent to which available information provides a reliable basis for 
decisionmaking, and then consult with the SHPO and others to consider 
the need for more detailed and site-specific identification, including 
intensive field survey(s). The agency should follow up by completing 
identification and ``gather sufficient information to evaluate the 
eligibility of [identified] properties for the National Register'' 
(Sec. 800.8(b)).
    (d) Coordinate identification with NEPA and other land and resource 
management planning requirements. (1) The magnitude of effects, both 
detrimental and beneficial, on historic properties and historic and 
cultural values should be projected and analyzed in adequate detail so 
they can be compared to other environmental, economic, and technical 
analyses and projections for various project alternatives. The 
projected number and character of historic properties and the likely 
effects of each alternative on buildings, neighborhoods, land use, 
socioeconomics, cultural values, and other relevant natural and 
cultural characteristics of the environment should be taken into 
account. Historic preservation documents and appropriate analyses, at 
least of a preliminary nature, should be circulated and reviewed at the 
same time as other planning documents, such as Eas and DEISs, land 
management plans, engineering general design memoranda, and 
transportation Section 4(f) analyses.
    (2) Appropriate alternatives to recommended courses of action for 
any undertaking which involves alternatives that may adversely affect 
historic properties should be studied, developed, and described.
    (3) Situations where actions are planned by private applicants or 
other non-Federal entities before Federal involvement should be 
adequately provided for, so that:
    (i) Policies are established and staff designated to advise 
potential applicants of studies or other information foreseeably 
required for later Federal action and Section 106 compliance, 
consistent with Section 110(k);
    (ii) The Federal Agency consults with appropriate State and local 
agencies, Indian tribes, Native Hawaiian organizations, and with 
interested private persons and organizations to ensure that the 
concerns of other parties can be addressed before any irretrievable or 
irreversible commitment to the project is made; and
    (iii) The Federal Agency commences the Section 106 process at the 
earliest possible time so that by the time an EA, Finding of No 
Significant Impact, or Final EIS and Record of Decision under NEPA is 
issued, historic properties have been identified, effects determined, 
and this information is incorporated with the consideration of 
alternatives for any necessary resolution through negotiation with 
other parties.
[FR Doc. 94-24357 Filed 9-30-94; 8:45 am]
BILLING CODE 4310-10-P