[Federal Register Volume 61, Number 179 (Friday, September 13, 1996)]
[Proposed Rules]
[Pages 48580-48594]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23532]


      

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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

  Federal Register / Vol. 61, No. 179 / Friday, September 13, 1996 / 
Proposed Rules  

[[Page 48580]]



ADVISORY COUNCIL ON HISTORIC PRESERVATION

36 CFR Part 800


Protection of Historic Properties

AGENCY: Advisory Council on Historic Preservation.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Advisory Council on Historic Preservation is proposing 
changes to its regulations in order to implement the 1992 amendments to 
the National Historic Preservation Act and to improve and streamline 
the regulations in accordance with the Administration's reinventing 
government initiatives. The proposed changes will modify the process by 
which Federal agencies consider the effects of their undertakings on 
historic properties. On October 3, 1994, the Council published for 
comment in the Federal Register a notice of proposed rulemaking that 
set forth changes to the Section 106 process. After reviewing the 
comments on the October 1994 proposal and in response to agency 
downsizing and restructuring, the Council substantially changed its 
proposal to better meet the streamlining goals of the Council. 
Therefore, the Council is publishing a new notice of proposed 
rulemaking. In its streamlined proposal, the Council seeks 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, industry and the 
public.

DATES: Comments must be received on or before November 12, 1996. 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 a request with the Council no later than November 12, 1996.

ADDRESSES: Comments should be addressed to the Executive Director, 
Advisory Council on Historic Preservation, 1100 Pennsylvania Avenue, 
Suite 809, Washington, D.C. 20004. Fax 202- 606-8672. Comments may be 
submitted via E-Mail to [email protected].

FOR FURTHER INFORMATION CONTACT: Stephanie Woronowicz, Information 
Assistant, Advisory Council on Historic Preservation, 1100 Pennsylvania 
Avenue, Suite 809, Washington, D.C. 20004 (202) 606-8503.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 106 of the National Historic Preservation Act of 1966, as 
amended, 16 U.S.C. 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. 
Additionally, as part of the Administration's National Performance 
Review and overall streamlining efforts, 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, and the 
Council's Native American representative, expert member and chairman.
    The Task Force adopted the following findings and attempted to 
craft the regulations to reflect them: (1) Federal agencies and SHPOs 
should be given greater authority to conclude Section 106 review; (2) 
the Council should spend more time monitoring program trends and 
overall performance of Federal agencies and SHPOs and less time 
reviewing individual cases or participating in case-specific 
consultation; (3) Section 106 review requirements should be integrated 
with environmental 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.
    In the proposed regulations published in the Federal Register on 
October 3, 1994, the Council sought to meet the stated findings and 
objectives adopted by the Task Force. The Council received 
approximately 370 comments on the October 1994 proposal. Generally, 
commenters supported the overall goals and direction adopted by the 
Task Force, but found that the proposed regulations failed to implement 
the stated goals. Particularly, many commenters disagreed with the role 
of the Council as arbiter of disputes over application of the 
regulations, the public appeals process, and provisions dealing with 
enforcement. At a Council membership meeting in February 1995, the 
Council decided to continue its dialogue with major user groups of the 
Section 106 process in an effort to resolve their concerns. The Council 
membership also reaffirmed the objective of reducing regulatory burdens 
on Federal agencies and SHPOs and focussing the review process on 
important historic preservation issues. The Council solicited the views 
of users of the Section 106 process once again by convening separate 
focus groups with local governments, industry representatives, Native 
Americans, and Federal agency officials in May 1995. As a result of 
these meetings, and after considering the views of commenters, the 
Council drafted a substantially revised proposal and circulated the 
draft informally in July 1995 to the 370 commenters who had commented 
on the October 1994 notice of proposed rulemaking.
    The Council received approximately 80 comments on the informally 
distributed draft. Generally, the commenters found the July 1995 draft 
to be an improvement on the October 1994 proposal. Again, however, 
Federal agencies noted that the Council did not go far enough in 
removing itself from routine cases and in bringing finality to the 
process. Federal agencies also remained concerned that the public 
participation provisions were too open-ended and inadequately defined 
the roles and rights of participants in the process. Federal agencies 
also considered the (National Environmental Policy Act (NEPA) 
integration section to be a step forward, but submitted that its 
substitution provisions should be extended to environmental assessments 
as well as environmental impact statements and, overall, could provide

[[Page 48581]]

better integration of NHPA and NEPA. In contrast, the majority of SHPOs 
did not want the Council to remove itself further from the Section 106 
process and did not want the NEPA integration section to be extended to 
environmental assessments. The National Conference of State Historic 
Preservation Officers, as well as many of its member SHPOs, supported 
the public participation process as set forth in the July 1995 draft, 
but sought clarification on the roles and responsibilities of Federal 
agencies under Section 106. Industry commenters deemed the July 1995 a 
vast improvement over the 1994 proposal, however, they remained 
concerned with the appeals procedures and found the process too 
burdensome. Industry also remained concerned about the public 
participation provisions. The current proposal is an attempt to balance 
the many views of the Section 106 users on how to achieve the Task 
Force's goals while fulfilling the Council's mission of ensuring 
reasonable consideration of historic properties in agency decision-
making.

II. Summary of Regulatory Changes

    The proposed regulations would significantly modify the current 
Section 106 process. The regulations provide a greater opportunity for 
Federal agencies to resolve historic preservation issues with the SHPO 
and other involved parties, without direct Council involvement. As a 
result, the proposed regulations redefine the role of the Council to 
involve the Council in controversial cases where the Council's unique 
perspective and expertise can facilitate effective solutions. The 
proposed regulations also provide new flexible methods of obtaining 
Council comment on certain undertakings or effects.

Subpart A--Background and Policy

    This Subpart adds a section which describes the three methods of 
complying with Section 106: alternate procedures, exemptions or 
programmatic agreements, and general procedures set forth in Subpart B. 
As one of those methods, it encourages Federal agencies to meet their 
Section 110 (a)(2)(E) requirements by developing their own alternate 
procedures for compliance. This Subpart also modifies the description 
of the participants in the Section 106 process and the roles of the 
participants. Participants fall into three categories: principal 
parties, consulting parties, and the public. Principal parties are 
those with statutory responsibilities under Section 106: the Federal 
agency official and the Council. Consulting parties are those with 
consultative responsibilities under the Act: the SHPO and Indian tribes 
and Native Hawaiian organizations. Affected parties are those with 
direct legal or financial interests in the effects on undertaking on 
historic properties: local governments and applicants for Federal 
assistance or permission.. The public, under the proposed regulations, 
includes the general public at large and the ``interested public.'' The 
proposed regulations define the interested public to include 
individuals and organizations that have indicated to the agency 
official a particular interest in the effect of the undertaking. 
Interested public includes owners of real property affected directly by 
the undertaking, traditional cultural authorities, the SHPO when the 
Indian tribe has assumed the function of the SHPO under Section 
101(d)(2) of the Act and others that request to be treated as such.

Subpart B--Section 106 Procedures

    This Subpart provides the standard general procedures for 
compliance with the Act. It adds a new section which clarifies how a 
Federal agency should initiate the 106 process in order to emphasize 
the importance of early planning and coordination with reviews required 
by other statutes. By emphasizing the importance of proper initiation 
of the process, the Council seeks to address concerns regarding undue 
delay in projects. The identification step at Section 800.4 has been 
changed by adding two new concepts to enhance flexibility in the 
regulations. First, when locating historic properties, the proposed 
regulations provide that an agency must consider the scope and type of 
identification necessary based on a variety of factors, including the 
magnitude of the undertaking and its likely effects. It is intended 
that Federal agencies will focus their identification efforts on those 
portions of the area of potential effects most directly related to 
their jurisdictional or financial control. Second, the proposed 
regulations allow for ``phased identification'' to accommodate the 
practice of choosing several alternatives in a project. As specific 
aspects or locations of a project are determined, then the agency 
official completes the identification.
    This Subpart also removes the separate ``effect'' determination 
step and now proposes combining the ``no historic properties'' finding 
and the ``no effect'' finding into a single ``no historic properties 
affected'' finding requiring 15 days for SHPO review. The agency moves 
directly to assessing adverse effects once it determines that historic 
properties may be affected. The adverse effect criteria currently in 
Section 800.9(b) have been revised to better define adverse effects and 
have been moved to Section 800.5. The current exceptions to the 
criteria have been transformed into ``standard treatments'' listed in 
Section 800.5(a)(4) with the addition of a bridge replacement standard 
treatment and a modification of the exception for archeological 
resources that clarifies the basis for using the standard treatment and 
ensures public dissemination of any resulting archeological studies. 
The proposed regulations also remove the Council from review of no 
adverse effect determinations and standard treatment agreements. The 
amendments allow Federal agencies to conclude the Section 106 process 
at this level without Council review, subject to specific requests for 
Council review of agency findings under Section 800.9(a).
    The proposed regulations, in Section 800.6(a)(1), specify instances 
when an agency official must request the Council to become involved in 
the consultation to resolve adverse effects. The Council may or may not 
participate after receiving such a request. The proposed regulations 
provide that the Council may enter the consultation on its own 
initiative if the Council determines it is necessary to ensure that the 
purposes of Section 106 are met, i.e., that an agency is properly 
taking into account the effects of the undertaking on historic 
properties and affording the Council its reasonable opportunity to 
comment. The proposed regulations, in 800.6(b)(1)(ii), also allow any 
principal party to request Council involvement in the consultation. If 
the Council does not participate in consultation, then the Council does 
not review two-party agreements negotiated between the SHPO and the 
Federal agency, but the regulations do require Federal agencies to file 
copies of the agreement with the Council as a basis for general Council 
oversight of agency compliance with Section 106. If the SHPO and the 
agency cannot reach a solution, the proposed regulations require that 
the Council join the consultation to attempt resolution before allowing 
for termination of consultation and the provision of formal comments by 
the Council membership. The proposed regulations provide that these 
formal Council comments be considered by the head of the agency in 
accordance with Section 110(l) of the Act.
    Subpart B provides a new section on coordination with the National 
Environmental Policy Act (NEPA). It allows for the use of the NEPA 
process and documentation for the preparation

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of an environmental impact statement (EIS) and environmental assessment 
(EA) to comply with Section 106 procedures as long as the draft EIS or 
EA meets certain specific standards. The agency must submit the EA or 
draft EIS to the Council, the SHPO, other consulting parties, and the 
interested public during the public comment period and any agreed upon 
mitigation measures must be incorporated in the record of decision. The 
purpose of this section is to encourage the integration of the 
resolution of adverse effects on historic properties into agency NEPA 
compliance.
    The proposed regulations also clarify in Section 800.9 the process 
for assessing certain agency findings under Sections 800.4 and 800.5. 
Such requests may only be made by the SHPO, another consulting party or 
a member of the interested public that has participated in the Section 
106 process and must be made before the undertaking is approved by the 
agency. The proposed regulations also provide strict time limits for 
the Council to act on the request and provide its views to the agency 
official. The Council may request the agency official to delay final 
action for up to 30 days while the Council considers the matter, but 
the agency official is not required to do so.
    In shifting the emphasis from Council review of individual cases to 
assessing the overall quality of Federal agency or SHPO performance, 
the proposed regulations add a provision that requires agencies to 
maintain documentation of actions taken in compliance with Section 106 
and to provide the Council with such information upon Council request.
    Section 800.10 addresses special requirements for National Historic 
Landmarks and remains unchanged for the most part.
    Documentation standards have been clarified to provide general 
requirements regarding adequacy, format and confidentiality in Section 
800.11(a)-(c). Sections 800.11(d)-(h) remain largely unchanged from the 
current 800.8(a)-(d) except that a new documentation requirement has 
been added for a finding of no historic properties present or affected.
    In order to comply with the 1992 amendments which mandated 
participation of Indian tribes and Native Hawaiian organizations, the 
Council added a new section in 800.12 on involving Indian tribes and 
Native Hawaiians in the consultation process. This section sets forth 
specific requirements for involvement at each step of the Section 106 
process and is designed to facilitate participation and agency planning 
for involvement.
    Section 800.13 changes the Council's current emergency procedures 
contained in 800.12 by encouraging agencies to develop internal 
procedures, in consultation with the Council and the SHPO, which 
address how historic properties will be considered during emergencies. 
If an agency has not developed such procedures, the regulations 
encourage agencies to develop programmatic agreements that include 
provisions for dealing with historic properties during emergencies. If 
there is no applicable programmatic agreement, then the agency shall 
give the Council seven days to comment prior to the undertaking where 
the agency determines circumstances permit.
    Section 800.14 is similar to the current Section 800.11 which 
addresses post review discoveries except that it adds the requirement 
that agencies must make reasonable efforts to avoid or minimize adverse 
effects on unplanned-for discoveries.

Subpart C--Program Alternatives

    This Subpart provides new options for agencies to pursue in 
streamlining their Section 106 compliance activities and incorporates 
the current practice of developing Programmatic Agreements to 
facilitate coordination between Section 106 and an agency's particular 
program.
    Section 800.15 provides five alternative methods of fulfilling 
Section 106 responsibilities, instead of following the procedures set 
forth in Subpart B. First, Section 800.15(a) states that Federal 
agencies may develop procedures and, when they are determined to be 
consistent with the Council's regulations, substitute them for 
comparable portions of the Council's regulations. Second, Section 
800.15(b) provides for the development of Programmatic Agreements to 
govern particular agency programs or complex or multiple undertakings; 
this section is substantively unchanged from the current programmatic 
agreement section in 800.13 of the Council's regulations, but does 
change minor standards and requirements in the development of such 
agreements. Third, Section 800.15(c) allows for agencies to establish 
exempted categories for undertakings that have foreseeable effects 
which are not likely to be adverse. Fourth, Section 800.15(d) allows 
the Council to offer a streamlined method of treating a category of 
historic properties or a category of effects by allowing for standard 
treatments. Finally, Section 800.15(e) provides an efficient mechanism 
for fulfilling the requirement of seeking Council comment. This section 
allows agencies to request Council comment on a category of routine or 
repetitive undertakings instead of conducting individual reviews.
    The Council has reserved Section 800.16 to address state, tribal 
and local program alternatives, but has deleted the current Section 
800.7 on state agreements.
    Section 800.17 contains definitions. Several definitions have been 
changed or deleted. ``Agency official'' has been deleted as redundant 
in light of Section 800.2(a)(1). ``Approval of the expenditure of 
funds'' has been added to clarify the triggering event for many Section 
106 reviews. ``Area of potential effects'' has been changed in light of 
the removal of the ``effect'' determination step in the process and is 
now limited to the area where adverse effects may occur. ``Comment'' 
and ``consultation'' and ``effect'' have been added for clarification. 
``Head of the agency'' has been added as a result of the 1992 
amendments. ``Historic properties'' definition has been changed to 
include properties of traditional religious and cultural importance to 
Indian tribes or Native Hawaiian organizations that meet the National 
Register criteria. ``Indian lands'' has been changed to ``tribal 
lands'' and redefined as in the statute. ``Indian tribe'' is changed 
and tracks the exact language in the statute. ``Interested person'' has 
been deleted because that term is no longer used by the regulations. 
``Memorandum of Agreement'' has been added for clarification. ``Native 
Hawaiian organization'' is added and tracks the statutory language. 
``Programmatic Agreement'' has been added for clarification. 
``Traditional cultural authority'' has been added because the 1992 
amendments refer to the involvement of such groups. ``Tribal 
Preservation Officer'' has been added because the 1992 amendments 
provide a new role for such an officer. ``Undertaking'' has been 
defined exactly as in the statute.

III. Issues Deserving Special Attention From Commenters

1. Public Participation

    The goal of the regulatory requirement that Federal agencies inform 
and involve the public in the Section 106 process is to ensure that the 
public has a reasonable opportunity to provide its views on a project. 
The Council has attempted to give the public an adequate chance to 
voice its concerns to Federal decision makers while recognizing 
legitimate concerns about avoiding

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unnecessary procedural burdens and delays and protecting the privacy of 
non-governmental parties involved in the Section 106 process. How can 
the regulations be enhanced to provide for meaningful public 
involvement in a timely and effective fashion?

2. Local Governments

    Several agencies seek an enhanced role for certified local 
governments in the Section 106 process and find that the regulations do 
not go far enough in providing for their involvement. The definition of 
``Head of the agency'' provides that the head of a local government 
shall be considered the head of the agency where it has been delegated 
responsibility for Section 106 compliance. How can we better 
incorporate local governments into the process without confusing the 
regulations?

3. Council Involvement

    In this proposal, the Council has removed itself from review of no 
adverse effect determinations and routine Memoranda of Agreement with 
the intent of deferring to agency-SHPO decision making as a general 
rule. At the same time, as the Federal agency assigned to review the 
policies and programs of Federal agencies on historic preservation 
matters, the Council has retained the right to enter the consultative 
process on its own motion or when asked requested by the Agency 
Official. The regulations set forth in 800.6 several criteria which 
indicate when an Agency Official must invite the Council to become 
involved in the consultation. They also set a general standard for when 
the Council will enter the process without a request. The Council 
intends on exercising its right to enter the process sparingly. Are the 
criteria set forth in 800.6(a)(1)(i) workable? Can the regulations 
better define when the Council will intervene on its own initiative?

4. Council Review of Agency Findings

    Section 800.9 provides for Council review of agency findings where 
the Council has not participated in the consultative process pursuant 
to 800.6. The Council's right to review agency findings is limited to 
whether the agency followed the appropriate procedures when making an 
eligibility determination under 800.4(c)(2), a no historic properties 
present or affected finding under 800.4(d), or a no adverse effect 
finding or resolution by standard treatment under 800.5(c). The right 
to review is also limited by the requirement that the request be made 
prior to the agency approval of the expenditure of funds or the 
issuance of a license, permit or other approval. The Council has 10 
days to decide if the request warrants Council review and 30 days to 
decide the merits of the case. The Council finds that the above review 
process strikes a balance between allowing review of procedurally 
deficient agency decisions and limiting review to situations that could 
not have been corrected earlier in the process. Some Federal agencies 
find that the review process in 800.9 provides the Council too much 
authority to second guess agency decisions and promotes a lack of 
finality to the process. How can the regulations accommodate the 
Council's concerns and those of other Federal agencies?

5. Time Frames

    Throughout the regulations, time frames are set for reviews 
conducted by SHPOs and the Council. Generally, they allow thirty days 
for responding to agency requests, although some are shorter. These 
have been established in an effort to balance the need for an 
expeditious process for Federal agencies and applicants with the 
recognition of the need for adequate time to evaluate submissions (as 
well as the limits on resources available in SHPO offices and at the 
Council to respond within the specified time). Do the time frames 
achieve this balance or should specific ones be increased or decreased?

6. Alternate Procedures

    The proposed regulations allow Federal agencies to substitute their 
own procedures for those contained in subpart B. Section 110(a)(2)(E) 
of the Act requires that procedures implementing Section 106, including 
these substitute procedures, be consistent with the Council's 
regulations. The proposed regulations charge the Secretary with making 
final determinations on consistency. This is based on the Secretary's 
primary responsibility for implementing Section 110. Alternatively, the 
Council, as the agency charged by Section 211 of the Act with issuing 
the regulations to guide implementation of Section 106, could make such 
a determination. A third option is allowing the Federal agency itself 
to make a determination of consistency. Is the proposed approach the 
best solution?

IV. Impact Analysis

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 mandatory 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.

The Paperwork Reduction Act

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

National Environmental Policy Act

    Pursuant to 36 CFR Part 805, the Council is developing a draft 
Environmental Assessment and will complete the NEPA evaluation prior to 
publication of its final rule.

Executive Orders 12866 and 12875

    The Council is exempt from compliance with Executive Orders 12866 
pursuant to a memorandum issued by the Office of Management and 
Budget's Office of Information and Regulatory Affairs on October 12, 
1993. The Council is also exempt from the documentation requirements of 
Executive Order 12875 pursuant to a memorandum issued by the same 
office on January 11, 1994. Although the Council is exempt, it has 
adhered to the principles in both orders by involving State, local and 
tribal entities, members of the public, and industry groups in the 
development of the proposed regulations as discussed above in the 
Background section of this preamble. The proposed regulations, like the 
current regulations, do not mandate State, local and tribal governments 
to participate in the Section 106 process. The State, local and tribal 
governments have the option of declining to participate, although the 
State Historic Preservation Officers are required to advise and assist 
Federal agencies, as appropriate, as part of their duties under Section 
101(b)(3)(E) of the National Historic Preservation Act and as a 
condition of their Federal grant assistance. In accordance with 
Executive Order 12875, the proposed regulations provide flexible 
approaches to consideration of historic properties in Federal agency 
decision making by allowing for categorical exemptions, standard 
treatments, program comments, and programmatic agreements in Section 
800.15 of the proposed regulations.

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Unfunded Mandates Reform Act of 1995

    The Council has determined that its regulations do not fall within 
the definition of a Federal mandate as defined in Section 421(6) of the 
Unfunded Mandates Reform Act of 1995.

Executive Order 12898

    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.

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

    The Council has fully complied with this Memorandum. A Native 
American representative served on the Council and was a member of the 
Council's Regulations Task Force. The 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.

List of Subjects in 36 CFR Part 800

    Administrative practice and procedure, Historic preservation, 
Indians, Inter-governmental relations.

    Dated: September 10, 1996.
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

Subpart A--Purposes and Participants

Sec.
800.1  Purposes.
800.2  Participants in the Section 106 process.

Subpart B--Section 106 Procedures

800.3  Initiation of the Section 106 process.
800.4  Identification of historic properties.
800.5  Assessment of adverse effects.
800.6  Resolution of adverse effects.
800.7  Failure to resolve adverse effects.
800.8  Coordination with the National Environmental Policy Act.
800.9  Council review of Section 106 compliance.
800.10  Special requirements for protecting National Historic 
Landmarks.
800.11  Documentation standards.
800.12  Consultation with Indian tribes and Native Hawaiian 
organizations.
800.13  Emergency situations.
800.14  Post-review discoveries.

Subpart C--Program Alternatives

800.15  Federal agency program alternatives.
800.16  State, Tribal and Local Program Alternatives. (Reserved)
800.17  Definitions.

Subpart A--Purposes and Participants


Sec. 800.1  Purposes.

    (a) Purposes of the Section 106 process. Section 106 of the 
National Historic Preservation Act requires Federal agencies to take 
into account the effects of their undertakings on historic properties 
and afford the Council a reasonable opportunity to comment on such 
undertakings. The procedures in this part define how Federal agencies 
meet these statutory responsibilities. The Section 106 process seeks to 
accommodate historic preservation concerns with the needs of Federal 
undertakings through consultation between the Agency Official and other 
parties with an interest in the effects of the undertaking on historic 
properties, commencing at the early stages of project planning. The 
goal of consultation is to avoid or minimize adverse effects on 
historic properties.
    (b) Relation to other provisions of the Act. Section 106 is one of 
several provisions of the Act designed to further the national policy 
of historic preservation. References to those related provisions are 
included in the procedures in this part to identify circumstances where 
actions under the procedures in this part may be affected by the 
independent obligations of those other provisions. Such provisions may 
have their own implementing regulations or guidelines and are not 
intended to be implemented by the procedures in this part. Guidelines, 
policies and procedures issued by other agencies, including the 
Secretary, have been cited in the procedures in this part for ease of 
access and are not incorporated by reference.
    (c) Methods of complying with section 106 of the Act. The 
procedures in this part provide several methods for Federal agencies to 
meet their Section 106 responsibilities.
    (1) Alternate procedures. Section 110(a)(2)(E) of the Act directs 
Federal agencies to develop procedures for implementing section 106 of 
the Act that are consistent with the Council's regulations and meet 
standards specified in the Act. The Council encourages Federal agencies 
to adopt such procedures and, where appropriate, substitute them for 
the procedures in subpart B of this part in accordance with 
Sec. 800.15(a).
    (2) Exemptions and programmatic agreements. If a Federal agency 
does not have alternate procedures in place, it should consider the use 
of exemptions (Sec. 800.15(c)) and programmatic agreements 
(Sec. 800.15(b)) to tailor Section 106 compliance to its program needs.
    (3) General procedure. If a Federal agency has not adopted 
alternate procedures and the undertaking is not exempted or governed by 
a programmatic agreement, the Agency Official shall comply with the 
process set forth in subpart B of this part.
    (d) Timing. Section 106 of the Act requires the Agency Official to 
complete the section 106 process prior to the approval of the 
expenditure of funds or prior to the issuance of any license, permit or 
other approval. An Agency Official may expend funds on, or authorize, 
nondestructive project planning activities, including field 
investigations, before completing compliance with section 106 of the 
Act, and may conduct phased compliance with the procedures in subpart B 
of this part at different stages of planning, provided that such 
actions do not restrict the subsequent consideration of alternatives to 
avoid or minimize the undertaking's adverse effects on historic 
properties. The Agency Official shall ensure that the section 106 
process is initiated early in the undertaking's planning, so that a 
broad range of alternatives may be considered.


Sec. 800.2  Participants in the section 106 process.

    (a) Principal parties. The following parties have statutory 
responsibilities in the section 106 process:
    (1) Agency Official. It is the legal obligation of the Federal 
agency to fulfill the requirements of section 106 of this Act and to 
ensure that an Agency Official with jurisdiction over an undertaking 
takes legal and financial responsibility for section 106 compliance in 
accordance with subpart B of this part. The Agency Official has final 
approval authority for the undertaking and may be a State, local, or 
tribal government official who has been delegated legal responsibility 
for compliance with section 106 of the Act in accordance with law or 
agency procedures established under section 110(a)(2)(E) of the Act.
    (i) Section 112 of the Act requires each Federal agency to ensure 
that all actions taken by employees or contractors of the agency shall 
meet professional standards under applicable regulations of the 
Secretary and that agency personnel and contractors responsible for 
historic resources meet applicable qualification standards

[[Page 48585]]

established by the Office of Personnel Management.
    (ii) If more than one Federal agency is involved in an undertaking, 
the agencies may designate a lead Federal agency. The lead Federal 
agency shall identify the appropriate official to serve as the Agency 
Official. Such Agency Official shall act on behalf of all participating 
Federal agencies, fulfilling their collective responsibilities under 
section 106 of the Act and subpart B of this subpart.
    (2) Council. The Council is responsible for issuing regulations to 
implement section 106, provides guidance and advice on the application 
of the procedures in this part, and generally oversees the operation of 
the section 106 process. The Council also consults with and comments to 
Agency Officials on undertakings that affect historic properties and 
assists participants in meeting their legal obligations. Participants 
in the section 106 process may seek advice and guidance from the 
Council on the application of this part to specific undertakings even 
though the Council is not formally involved in the review of the 
undertaking.
    (b) Consulting parties. The following parties have consultative 
roles in the section 106 process as defined in the Act.
    (1) State Historic Preservation Officer. The State Historic 
Preservation Officer advises and assists Federal agencies in carrying 
out their historic preservation responsibilities and consults with 
Federal agencies on undertakings that affect historic properties and on 
the content and sufficiency of plans to protect, manage or mitigate 
harm to historic properties. If an Indian tribe has assumed the 
functions of the State Historic Preservation Officer for the section 
106 process on tribal lands, the State Historic Preservation Officer 
shall participate in accordance with any plan referenced in 
Sec. 800.2(b)(2) and may also participate as a member of the interested 
public. The role of the State Historic Preservation Officer with regard 
to effects on historic properties located off tribal lands is 
unchanged.
    (2) Indian tribes and Native Hawaiian organizations. The Agency 
Official is required 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 shall identify Indian tribes 
and Native Hawaiian organizations likely to have such interests in 
accordance with Sec. 800.3(e) and consult with them in accordance with 
Sec. 800.12 to ensure that their views are fully considered by the 
Agency Official in reaching findings and decisions in the section 106 
process. An Indian tribe may assume the functions of a State Historic 
Preservation Officer in the section 106 process with respect to tribal 
lands under section 101(d)(2) of the Act. If so, the Agency Official 
shall consult with the Tribal Preservation Officer in accordance with 
the plan prepared pursuant to that section regarding the effects of 
undertakings on tribal lands.
    (c) Affected parties. The following parties have direct legal or 
financial interests in the effects of an undertaking on historic 
properties and may participate in the section 106 process as consulting 
parties when they so request.
    (1) Representatives of local governments. If a representative of a 
local government with jurisdiction over the area in which the effects 
of an undertaking may occur so requests, the Agency Official shall 
involve the local government as a consulting party. Under certain 
authorities, the local government may be authorized to act as the 
Agency Official for purposes of section 106 of the Act.
    (2) Applicants for Federal assistance, permits, licenses and other 
approvals. If an applicant for Federal assistance or permission so 
requests, the Agency Official shall involve the applicant as a 
consulting party. The Agency Official may authorize an applicant to 
initiate consultation with the State Historic Preservation Officer and 
others under Secs. 800.3 and 800.4, but remains legally responsible for 
all findings charged to the Agency Official. Where not inconsistent 
with the rights of the public to access the information that is the 
basis for the Agency Official's decisions under the procedures in this 
part, the Agency Official may take reasonable steps to protect the 
privacy of non-governmental applicants in accordance with applicable 
agency procedures.
    (d) The public. The views of the public are essential to informed 
Federal decisionmaking as to taking into account effects of 
undertakings. The Act directs Federal agencies to consult with the 
interested public, as appropriate, in steps taken to comply with 
section 106 of the Act. The procedures in this part provide for 
notification and involvement of the public in the section 106 process 
and for the identification of and consultation with the interested 
public as appropriate.
    (1) Responsibilities. The Agency Official is required at specific 
points in the section 106 process to provide the public with 
information about an undertaking and its effects on historic properties 
and to seek public comment and input. Members of the public may also 
provide views on their own initiative and the Agency Official should 
consider those views in decisionmaking.
    (2) Flexible application. The Agency Official's efforts to seek and 
consider the views of the public should reflect the nature and 
complexity of the undertaking and its effects on historic properties, 
the likely interest of the public in the effects on historic 
properties, and the nature of the Federal involvement in the 
undertaking. Evaluation of these factors for an individual undertaking 
may warrant the Agency Official to apply the specific public 
involvement requirements of subpart B of this part in a flexible 
manner.
    (3) Use of agency procedures. The Agency Official may use the 
agency's procedures for public involvement under the National 
Environmental Policy Act or other program requirements, if they provide 
adequate opportunities for public involvement consistent with the 
procedures in subpart B of this part.
    (4) Interested public. The interested public includes those 
individuals and organizations that have indicated to the Agency 
Official an interest in the effects of an undertaking on historic 
properties. Certain individuals and organizations may warrant direct 
involvement in the consultations conducted by the Agency Official due 
to the nature of their legal or economic relation to the undertaking or 
affected properties, or due to their representation of citizens or 
organizations concerned with the undertaking and its effects on 
historic properties. The Agency Official is required to take steps to 
identify the interested public and involve them at specific points in 
the section 106 process. The interested public includes:
    (i) Owners of real property affected directly by the undertaking, 
provided that the Agency Official may limit participation to 
organizations representing such owners if necessary;
    (ii) Traditional cultural authorities with an interest in the 
undertaking's effects on historic properties of traditional cultural 
and religious importance;
    (iii) The State Historic Preservation Officer when an Indian tribe 
has assumed the functions of the State Historic Preservation Officer 
under section 101(d)(2) of the Act; and
    (iv) Other individuals, organizations or entities that request to 
be treated as members of the interested public.

[[Page 48586]]

Subpart B--Section 106 Procedures


 Sec. 800.3  Initiation of the Section 106 process.

    (a) Establish undertaking. The Agency Official shall determine 
whether the proposed Federal action is an undertaking and, if so, 
whether it has the potential to affect historic properties and whether 
review is governed by a Federal agency program alternative established 
under Sec. 800.15.
    (1) If the action is not an undertaking or an undertaking that has 
no potential to affect historic properties, the Agency Official has no 
further obligations under section 106 of the Act.
    (2) If the review of the undertaking is governed by a Federal 
agency program alternative, the Agency Official shall follow that 
alternative.
    (b) Coordinate with other reviews. The Agency Official shall 
coordinate the steps of the Section 106 process, as appropriate, with 
the overall planning schedule for the undertaking and with any reviews 
required under other authorities such as the National Environmental 
Policy Act, the Native American Graves Protection and Repatriation Act, 
the American Indian Religious Freedom Act, the Archeological Resources 
Protection Act and agency specific legislation, such as section 303(f) 
of the Department of Transportation Act. Where consistent with the 
procedures in this subpart, the Agency Official may use information 
developed for other reviews under Federal or State law to meet the 
requirements of the section 106 process.
    (c) Plan to involve the public. The Agency Official shall begin 
planning for involving the public in the Section 106 process, relating 
the steps to be taken to the likely level and nature of public interest 
in the undertaking and its effects on historic properties. The Agency 
Official shall consider what individuals and organizations may have an 
interest in the undertaking and its effects on historic properties and 
plan to involve them in the Section 106 process as members of the 
interested public. The Agency Official should give special attention to 
identifying those members of the interested public who should be 
consulted as the section 106 process proceeds and involve them as 
appropriate.
    (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 initiate consultation.
    (1) If the State Historic Preservation Officer declines in writing 
to participate in the Section 106 process or fails to respond in a 
timely manner at any point in these procedures, the Agency Official 
shall consult with the Council to complete the Section 106 process 
without the State Historic Preservation Officer.
    (2) If more than one State is involved in an undertaking, the 
involved State Historic Preservation Officers may designate a lead 
State Historic Preservation Officer to act on behalf of all 
participating State Historic Preservation Officers in the Section 106 
process.
    (3) Requirements for consultation with the State Historic 
Preservation Officer should be implemented in a manner appropriate to 
the agency planning process for the undertaking and the nature and 
effect of the undertaking on historic properties. A single consultation 
by the Agency Official with the State Historic Preservation Officer may 
address multiple steps in the Section 106 process where it is 
consistent with the purposes of the procedures in this part.
    (e) Identify consulting parties. The Agency Official shall 
determine whether there are any local governments or applicants that 
are entitled to be involved in consultations conducted under this 
subpart and plan to involve them as appropriate. The Agency Official 
shall identify the Indian tribes or Native Hawaiian organizations that 
might attach religious and cultural significance to historic properties 
in the area of potential effects and plan for their participation in 
accordance with Sec. 800.12 .


Sec. 800.4  Identification of historic properties.

    (a) Determine scope of identification efforts. At the earliest 
feasible stage in planning an undertaking and coordinated with any 
steps being taken to meet the requirements of the National 
Environmental Policy Act, the Agency Official shall consult with the 
State Historic Preservation Officer and:
    (1) Determine the area of potential effects;
    (2) Review existing information on historic properties within the 
area of potential effects, including any data concerning possible 
historic properties not yet identified; and
    (3) Seek information from individuals and organizations likely to 
have knowledge of, or concerns with, historic properties in the area 
and identify issues relating to historic properties.
    (b) Identify historic properties. Based on the information gathered 
under Sec. 800.4(a) and in consultation with the State Historic 
Preservation Officer, the Agency Official shall take the steps 
necessary to identify historic properties within the area of potential 
effects.
    (1) Level of effort. The Agency Official, in consultation with the 
State Historic Preservation Officer, shall make a reasonable and good 
faith effort to carry out appropriate identification efforts. The 
Agency Official shall determine the appropriate scope and type of 
identification efforts, including background research, consultation, 
sample field investigation, and field survey, taking into account past 
planning or research studies and results, and based on the magnitude of 
the undertaking, the nature and extent of its potential effects on 
historic properties and the likely nature and location of historic 
properties within the area of potential effects. The Secretary's 
Standards and Guidelines for Identification provide guidance on this 
subject.
    (2) Phased identification. Where alternative locations are under 
consideration or access to properties is restricted, the Agency 
Official may conduct identification efforts designed to establish the 
likely presence of historic properties within the area of potential 
effects for each alternative through background research, consultation 
and an appropriate level of field investigation, taking into account 
the number of alternatives under consideration and the magnitude of the 
undertaking and likely effects. As specific aspects or location of a 
preferred alternative are determined, the Agency Official shall 
complete the identification of historic properties in accordance with 
Sec. 800.4(b)(1).
    (3) Consistent with applicable conflict of interest laws, the 
Agency Official may use the services of applicants, consultants, or 
designees to prepare information and analyses under this subpart, but 
remains legally responsible for all findings charged to the Agency 
Official. If a document or study is prepared by a non-Federal party, 
the Agency Official shall evaluate the document prior to its approval 
and be responsible for its content.
    (c) Evaluate historic significance. (1) Apply National Register 
Criteria. In consultation with the State Historic Preservation Officer, 
guided by the Secretary's Standards and Guidelines for Evaluation and 
with consideration for the potential of the proposed undertaking to 
affect identified properties, the Agency Official shall apply the 
National Register Criteria to properties identified within the area of 
potential effects that have not been previously evaluated for National 
Register eligibility. The passage of time, changing perceptions of 
significance, or

[[Page 48587]]

incomplete prior evaluations may require reevaluation of properties 
previously determined eligible or ineligible.
    (2) Determine whether a property is eligible. If the Agency 
Official determines the criteria are met and the State Historic 
Preservation Officer agrees, the property shall be considered eligible 
for the National Register for Section 106 purposes. If the Agency 
Official determines the criteria are not met and the State Historic 
Preservation Officer agrees, the property shall be considered not 
eligible. 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 36 CFR part 63.
    (d) Results of identification and evaluation. (1) No historic 
properties present or affected. If the Agency Official finds that there 
are no historic properties either present or that may be affected by 
the undertaking, the Agency Official shall provide documentation of 
this finding as set forth in Sec. 800.11(d) to the State Historic 
Preservation Officer. The Agency Official shall notify any consulting 
party and the interested public and make the documentation available 
for public inspection prior to approving the undertaking. If the State 
Historic Preservation Officer does not object within 15 days of receipt 
of an adequately documented finding, this completes the Agency 
Official's responsibilities under section 106 of the Act.
    (2) Historic properties affected. If there are historic properties 
that may be affected by the undertaking, the Agency Official shall 
notify any consulting party and the interested public and assess 
adverse effects in accordance with Sec. 800.5.


Sec. 800.5  Assessment of adverse 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 to historic properties within the area 
of potential effects. The Agency Official shall consider any views 
concerning such effects provided by consulting parties, the interested 
public and the public at large.
    (1) Criteria of adverse effect. An undertaking is considered to 
have an adverse effect when it may alter the characteristics of a 
historic property that qualify the property for inclusion in the 
National Register in a manner that would diminish the integrity of the 
property's location, design, setting, materials, workmanship, feeling, 
or association. Adverse effects may include reasonably foreseeable 
effects caused by the undertaking that are later in time or farther 
removed in distance.
    (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) Removal of the property from its historic location;
    (iii) Alteration of the character of the property's setting or use 
when that character contributes to the property's qualification for the 
National Register;
    (iv) Introduction of visual or audible elements that are out of 
character with the property ;
    (v) Neglect of a property which causes its deterioration; and
    (vi) Transfer, lease, or sale of property out of Federal ownership 
or control.
    (3) Avoidance of adverse effects. The Agency Official, in 
consultation with the State Historic Preservation Officer, may make a 
finding of no adverse effect when the Agency Official modifies the 
undertaking to avoid adverse effects.
    (4) Standard treatment of potential adverse effects. The Agency 
Official may find, in consultation with the State Historic Preservation 
Officer, that certain adverse effects are satisfactorily resolved in 
accordance with one of the following standard treatments:
    (i) The undertaking is limited to maintenance, repair, 
rehabilitation, or restoration of buildings or structures, including 
hazardous materials remediation or modifications for handicapped 
access, and will be conducted in accordance with construction plans and 
specifications that meet the Secretary's Standards for the Treatment of 
Historic Properties and applicable guidelines and that are reviewed by 
the State Historic Preservation Officer prior to implementation;
    (ii) The undertaking is limited to construction or ground 
disturbance that would destroy, damage or alter an archaeological 
property of value only for its contribution to knowledge of the past, 
and a plan for studying the property with archeological methods, 
collecting important information, and disseminating the results to the 
public, or a plan for preserving the property for future study is 
prepared and implemented in accordance with applicable professional 
standards and guidelines;
    (iii) The undertaking is limited to the transfer, sale or lease of 
a Federal historic property and adequate and legally enforceable 
restrictions or conditions are included to ensure preservation of the 
property's significant historic features;
    (iv) The undertaking is limited to the rehabilitation or 
replacement of a bridge and, in accordance with a State inventory and 
plan for historic bridges approved by the State Historic Preservation 
Officer, specific measures are provided for recordation and marketing, 
relocation or reuse of the bridge; or
    (v) The undertaking meets another standard treatment specified by 
the Council under Sec. 800.15(d).
    (b) State Historic Preservation Officer review. If the Agency 
Official makes either a finding of no adverse effect or that adverse 
effects can be satisfactorily resolved by a standard treatment, the 
Agency Official shall submit the finding with the documentation 
specified in Sec. 800.11(e) to the State Historic Preservation Officer 
for a 30-day review period.
    (1) Agreement with finding. If the State Historic Preservation 
Officer agrees with the Agency Official's finding, the Agency Official 
may proceed and shall carry out the undertaking in accordance with 
Sec. 800.5(c)(1).
    (2) Disagreement with finding. If the State Historic Preservation 
Officer disagrees within 30 days of receipt of the finding, the Agency 
Official shall consider the effect adverse. The State Historic 
Preservation Officer shall specify the reasons for disagreeing with the 
finding. The Agency Official may request the Council to review the 
disagreement and shall proceed in accordance with the Council's opinion 
as to whether the effect is adverse.
    (c) Results of assessment. (1) Finding of no adverse effect or 
resolution by standard treatment. The Agency Official shall maintain a 
record of the finding, notify any participating local government or 
applicant and the interested public, and make the record available for 
public review before approving the undertaking. Implementation of the 
undertaking in accordance with the finding as documented completes the 
Agency Official responsibilities under Section 106 of the Act. If the 
Agency Official fails to carry out the undertaking in accordance with 
the finding, the Agency Official shall follow Sec. 800.6.
    (2) Adverse effect found. If an adverse effect is found and not 
resolved by a standard resolution in accordance with this section, the 
Agency Official shall consult further to resolve the adverse effect 
pursuant to Sec. 800.6.

[[Page 48588]]

Sec. 800.6  Resolution of adverse effects.

    (a) Continue consultation. The Agency Official shall consult with 
the State Historic Preservation Officer to develop and evaluate 
alternatives or modifications to the undertaking to avoid or minimize 
adverse effects on historic properties.
    (1) Determine Council involvement. The Agency Official shall 
determine whether to request Council involvement in the consultation 
and notify the Council by providing the documentation specified in 
Sec. 800.11(f).
    (i) The Agency Official shall request the Council to become 
involved in the consultation in accordance with Sec. 800.6(b)(2):
    (A) When the Agency Official determines that Council involvement 
will facilitate resolution of adverse effects;
    (B) When the undertaking has an adverse effect upon a National 
Historic Landmark or is to be carried out on tribal lands;
    (C) When a Programmatic Agreement under Sec. 800.15(b) is prepared; 
or
    (D) When the State Historic Preservation Officer, an Indian Tribe, 
a Native Hawaiian organization, a local government or an applicant 
requests Council involvement.
    (ii) The Council shall advise the Agency Official of its decision 
to participate within 15 days of receipt of notice. The Council may 
enter the consultation on its own initiative when it determines that 
Council involvement is necessary to ensure that the purposes of section 
106 and the Act are met.
    (iii) If the criteria in Sec. 800.6(a)(1)(i) are not met or the 
Council does not elect to join the consultation, the Agency Official 
may complete consultation in accordance with Sec. 800.6(b)(1).
    (2) Involve consulting parties and the interested public. The 
Agency Official shall involve consulting parties in the consultation as 
determined under Sec. 800.3. When agreed to by the Agency Official, the 
State Historic Preservation Officer and the Council, if participating, 
members of the interested public may become consulting parties. If the 
Agency Official and the State Historic Preservation Officer do not 
agree, the Agency Official shall request the Council to decide. The 
Agency Official shall involve any member of the interested public that 
will assume a specific role or responsibility in a Memorandum of 
Agreement.
    (3) Provide documentation. The Agency Official shall make available 
to the State Historic Preservation Officer and other consulting parties 
the documentation specified in Sec. 800.11(f) and such other 
documentation as may be developed during the consultation to resolve 
adverse effects.
    (4) Involve the public. The Agency Official shall make available 
information to the public and provide an opportunity for members of the 
public to express their views on resolving adverse effects of the 
undertaking. The Agency Official shall use appropriate mechanisms, 
taking into account the magnitude of the undertaking and the nature of 
its effects upon historic properties, to ensure that the full range of 
the public's views is represented in the consultation.
    (b) Resolve adverse effects. (1) Resolution without the Council. 
(i) The Agency Official shall consult with the State Historic 
Preservation Officer and other consulting parties to seek ways to avoid 
or minimize the adverse effects.
    (ii) If during the consultation the Council decides to join the 
consultation, the Agency Official shall continue the consultation in 
accordance with Sec. 800.6(b)(2).
    (iii) 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 file a 
copy of the executed Memorandum of Agreement with the Council prior to 
approving the undertaking.
    (iv) If the Agency Official and the State Historic Preservation 
Officer fail to agree on the terms of a Memorandum of Agreement, the 
Agency Official shall request the Council to join the consultation and 
proceed in accordance with Sec. 800.6(b)(2).
    (2) Resolution with Council participation. If the Council decides 
to participate, the Agency Official shall consult with the State 
Historic Preservation Officer, the Council, and other consulting 
parties to avoid or minimize the adverse effects. 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.
    (c) Memorandum of Agreement. (1) Signatories. The Agency Official 
and the State Historic Preservation Officer are the signatories to a 
Memorandum of Agreement executed pursuant to Sec. 800.6(b)(1). The 
Agency Official, the State Historic Preservation Officer, and the 
Council are the signatories to a Memorandum of Agreement executed 
pursuant to Sec. 800.6(b)(2). The signatories have sole authority to 
execute, amend or terminate the agreement.
    (2) Concurrence by others. The signatories may agree to invite 
others to concur in the Memorandum of Agreement. The Agency Official 
shall invite any consulting parties to concur.
    (3) Reports on implementation. Where the signatories agree it is 
appropriate, a Memorandum of Agreement shall include a provision for 
monitoring and reporting on its implementation.
    (4) Duration. A Memorandum of Agreement shall include provisions 
for termination and for reconsideration of terms if the undertaking has 
not been implemented within a specified time.
    (5) Legal status. A Memorandum of Agreement executed pursuant to 
this section evidences the Agency Official's compliance with Section 
106 and this part and shall govern the undertaking and all of its 
parts. The Agency Official shall ensure that the undertaking is carried 
out in accordance with the Memorandum of Agreement.
    (6) Amendments. The signatories to a Memorandum of Agreement may 
amend it. If the Council was not a signatory to the original agreement 
and the signatories execute an amended agreement, the Agency Official 
shall file it with the Council. Failure to agree on amendments leaves 
the existing agreement in effect.
    (7) Termination. If any signatory determines that the terms of a 
Memorandum of Agreement cannot be carried out, the signatories shall 
consult to seek amendment of the agreement. If the agreement is not 
amended, the Agency Official, the State Historic Preservation Officer, 
or the Council if a signatory, may terminate it and the Agency Official 
shall request the comments of the Council under Sec. 800.7(b).


Sec. 800.7  Failure to resolve adverse effects.

    (a) Termination of consultation. After consulting to resolve 
adverse effects pursuant to Sec. 800.6(b)(2), the Agency Official, the 
State Historic Preservation Officer, or the Council may determine that 
further consultation will not be productive and terminate consultation.
    (1) If the Agency Official terminates consultation, the head of the 
agency or an Assistant Secretary or other officer with major 
department-wide or agency-wide responsibilities shall request the 
Council's comments, accompanied by the documentation in Sec. 800.11(h), 
and notify the State Historic Preservation Officer, other consulting 
parties and the interested public of the request.
    (2) If the State Historic Preservation Officer terminates 
consultation, the Agency Official and the Council may execute a 
Memorandum of Agreement without the State Historic Preservation 
Officer's involvement or either may terminate consultation.

[[Page 48589]]

    (3) If the Council terminates consultation, the Council shall 
notify the Agency Official, the State Historic Preservation Officer, 
other consulting parties, and the interested public of the termination 
and comment under Sec. 800.7(b).
    (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, other consulting 
parties, and the public to provide their views. Upon request of the 
Council, the Agency Official shall provide additional existing 
information concerning the undertaking and assist the Council in 
arranging an onsite inspection and an opportunity for public 
participation.
    (2) Timing. The Council shall transmit its comments within 45 days 
of receipt of a request under Sec. 800.7(a)(1) or termination by the 
Council under Sec. 800.7(a)(3), unless otherwise agreed to by the 
Agency Official.
    (3) Transmittal. The Council shall provide its comments to the head 
of the agency requesting comment with copies to the Agency Official, 
the State Historic Preservation Officer, other consulting parties, the 
interested public, and others as appropriate.
    (4) Response to Council comment. The head of the agency shall 
consider the Council's comments in reaching a final decision on the 
undertaking. The head of the agency may not delegate his or her 
responsibilities pursuant to this paragraph. The head of the agency 
shall document the decision by:
    (i) Preparing a record of the decision and the rationale for the 
decision, evidencing consideration of the Council's comments and 
providing it to the Council prior to approving the undertaking;
    (ii) Providing a copy of the record of decision to the State 
Historic Preservation Officer, other consulting parties, and the 
interested public; and
    (iii) Notifying the public and making the record available for 
public inspection.


Sec. 800.8  Coordination with the National Environmental Policy Act.

    (a) General coordination. Federal agencies are encouraged to 
coordinate compliance with section 106 of the Act and the procedures in 
this part with any steps taken to meet the requirements of the National 
Environmental Policy Act (42 U.S.C. 4231 et seq.)(NEPA).
    (b) Actions categorically excluded under NEPA. If a project, 
activity or program is categorically excluded from NEPA review under an 
agency's NEPA procedures, the Agency Official shall determine if it 
qualifies as an undertaking requiring review under section 106 of the 
Act pursuant to Sec. 800.3(a). If so, the Agency Official shall comply 
with the procedures in this subpart.
    (c) Use of the NEPA process for section 106 of the Act purposes. An 
Agency Official may use the process and documentation for the 
preparation of an Environmental Impact Statement or an Environmental 
Assessment (EA) to comply with section 106 of the Act in lieu of the 
procedures set forth in Secs. 800.3 through 800.6 if the following 
conditions are met.
    (1) Preparation of the Draft Environmental Impact Statement (DEIS) 
or EA meets the following standards:
    (i) The Agency Official has notified the Council, the State 
Historic Preservation Officer and the interested public during the 
preparation of the DEIS or EA that this section is being used to comply 
with section 106 of the Act;
    (ii) Historic properties are identified and effects of the 
undertaking are evaluated in a manner consistent with the criteria and 
procedures of Secs. 800.3 through 800.5 and the documentation standards 
of Sec. 800.11;
    (iii) The Agency Official has consulted with the State Historic 
Preservation Officer, other consulting parties, and the Council where 
appropriate as required by Secs. 800.3 through 800.6 and Sec. 800.12 
when identifying historic properties, evaluating potential adverse 
effects, and considering measures to avoid or minimize adverse effects;
    (iv) The Agency Official has involved the interested public and the 
public in accordance with the agency's NEPA procedures; and
    (v) Alternatives and measures that would avoid or minimize any 
adverse effects of the undertaking on historic properties are described 
in the DEIS or EA.
    (2) The Agency Official shall submit the DEIS or EA to the Council, 
the State Historic Preservation Officer, other consulting parties, and 
the interested public when circulating it for public comment. The 
Agency Official shall indicate that the DEIS or EA is intended to meet 
the requirements of section 106 of the Act under this section.
    (3) If within the time allowed for public comment on the DEIS or EA 
the Council objects to how the Agency Official has taken into account 
the effects of the undertaking on historic properties, the Agency 
Official shall comply with Sec. 800.6(b)(2). If the Agency Official 
receives an objection from the State Historic Preservation Officer, a 
consulting party, or a member of the interested public within the time 
allowed for public comment on the document, the Agency Official shall 
provide the objection to the Council. Within 30 days, the Council shall 
notify the Agency Official either that it agrees with the objection, in 
which case the Agency Official shall comply with Sec. 800.6(b)(2), or 
that it disagrees with the objection, in which case the Agency Official 
shall continue to follow this section.
    (4) The Agency Official shall incorporate into the Final 
Environmental Impact Statement (FEIS) or final document resulting from 
the EA measures to avoid or minimize adverse effects on historic 
properties. Adoption of the proposed measures through a commitment, 
binding on the agency or the applicant for Federal assistance or 
permission, as appropriate, to carry them out and embodied in a Record 
of Decision (ROD) following or accompanying the FEIS or final document 
resulting from the EA satisfies the Agency Official's responsibilities 
under section 106 of the Act and the procedures in this part.
    (5) If the undertaking is subsequently modified in a manner that 
alters the treatment of effects on historic properties or if the Agency 
Official fails to carry out the measures to avoid or minimize adverse 
effects as specified in the ROD, the Agency Official shall notify the 
State Historic Preservation Officer, any other consulting party, and 
the interested public and consult with the Council. The Council may 
either require the Agency Official to follow Sec. 800.6 or provide 
comments to the Agency Official within 30 days of the request for 
consultation.


Sec. 800.9  Council review of section 106 of the Act compliance.

    (a) Assessment of Agency Official findings for individual 
undertakings. (1) Basis for request. If the Council has not 
participated in the review of an undertaking under the procedures in 
this subpart, a State Historic Preservation Officer, a consulting party 
or a member of the interested public that has participated in the 
section 106 of the Act process may request the Council to assess 
whether an Agency Official has complied with the procedures in this 
subpart when making a determination whether a property is eligible for 
the National Register under Sec. 800.4(c)(2), a finding that there are 
no historic properties present or affected under Sec. 800.4(d), or a 
finding of no adverse effect or resolution by standard treatment under 
Sec. 800.5(c). The request shall be in writing, state specific reasons

[[Page 48590]]

why the finding is not consistent with the provisions of the procedures 
in this subpart and include such documentation as the requestor may 
have available to support the request.
    (2) Timing. The request must be made prior to the approval of the 
expenditure of funds or the issuance of any license, permit or other 
approval by the Agency Official.
    (3) Council review of the finding. (i) The Council shall decide 
within 10 days of receipt of the request whether it states reasons 
that, if true, would warrant the Council determining that the finding 
was inconsistent with the procedures in this subpart.
    (ii) If the Council decides that the request states reasons which 
would warrant the Council determining that the finding was inconsistent 
with the procedures in this subpart, the Council shall review the 
finding on its merits. The Council shall notify the Agency Official, 
provide a copy of the request and any accompanying supporting 
documentation and invite the views of the Agency Official on the merits 
of the request. The Council shall complete its assessment of the 
finding within 30 days of notifying the Agency Official and may request 
the Agency Official to refrain from taking final action on the 
undertaking during that period. The Council shall provide its views to 
the requestor, the Agency Official, the State Historic Preservation 
Officer, consulting parties and other members of the interested public, 
as appropriate.
    (iii) If the Council decides that the request does not state 
reasons that would warrant the Council determining that the finding was 
inconsistent with these procedures, the Council shall decline to assess 
the finding and notify the requestor.
    (4) Questions of eligibility. When the finding concerns the 
eligibility of a property for the National Register, the Council shall 
refer the matter to the Secretary.
    (b) Agency foreclosure of the Council's opportunity to comment. 
Where an Agency Official has failed to complete the requirements of 
section 106 of the Act in accordance with the procedures in this part 
prior to the approval of an undertaking, the Council's opportunity to 
comment may be foreclosed. The Council may review a case to determine 
whether a foreclosure has occurred. The Council shall notify the Agency 
Official and allow 30 days for the Agency Official to provide 
information as to whether foreclosure has occurred. If the Council 
determines foreclosure has occurred, the Chairman of the Council shall 
transmit the determination to the head of the agency.
    (c) Intentional adverse effects by applicants. (1) Agency 
responsibility. Section 110(k) of the Act prohibits a Federal agency 
from granting a loan, loan guarantee, permit, license or other 
assistance to an applicant who, with intent to avoid the requirements 
of section 106 of the Act, has intentionally significantly adversely 
affected a historic property to which the grant would relate, or having 
legal power to prevent it, has allowed such significant adverse effect 
to occur, unless the agency, after consultation with the Council, 
determines that circumstances justify granting such assistance despite 
the adverse effect created or permitted by the applicant. Guidance 
issued by the Secretary pursuant to Section 110 of the Act governs its 
implementation.
    (2) Compliance with section 106 of the Act. If an Agency Official, 
after consulting with the Council, determines to grant the assistance, 
the Agency Official shall comply with the procedures in this subpart to 
take into account the effects of the undertaking on any other historic 
properties.
    (d) Evaluation of Section 106 operations. The Council shall 
evaluate the operation of the Section 106 process by periodic reviews 
of how participants have fulfilled their legal responsibilities and how 
effectively the outcomes reached advance the purposes of the Act.
    (1) Information from participants. Section 203 of the Act 
authorizes the Council to obtain information from Federal agencies 
necessary to conduct oversight and evaluation of the Section 106 
process. The Agency Official shall maintain documentation of actions 
taken to comply with section 106 of the Act that meet the standards of 
Sec. 800.11 and applicable agency procedures. The Agency Official shall 
make such documentation available to the Council upon request. The 
Council may request available information and documentation from other 
participants in the Section 106 process.
    (2) Peer review. The Council may use professional peer review to 
assist in any evaluation.
    (3) Improving the operation of section 106 of the Act. Based upon 
any evaluation of the Section 106 process, the Council may make 
recommendations to participants, the heads of Federal agencies, and the 
Secretary of actions to improve the efficiency and effectiveness of the 
process. Where the Council determines that an Agency Official, a State 
Historic Preservation Officer or a Tribal Preservation Officer who has 
assumed the role of the State Historic Preservation Officer has failed 
to properly carry out the responsibilities assigned under the 
procedures in this part, the Council may participate in individual case 
reviews in a manner and for a period that it determines is necessary to 
improve performance or correct deficiencies.


Sec. 800.10  Special requirements for protecting National Historic 
Landmarks.

    (a) Agency official's responsibilities. 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. 800.6 through 800.7 and give special consideration to protecting 
National Historic Landmarks in accordance with this section.
    (b) Resolution of adverse effects. Any consultation to resolve 
adverse effects conducted under Sec. 800.6 shall include the Council, 
if the Council chooses to participate.
    (c) Involvement of the Secretary. The Agency Official shall notify 
the Secretary of consultations involving National Historic Landmarks 
and invite the Secretary to participate in the consultation. The 
Council may request a report from the Secretary under Section 213 of 
the Act to assist in the consultation.
    (d) Report of outcome. The Council shall report the outcome of the 
Section 106 process, including its comments or any Memoranda of 
Agreement, to the Secretary and the head of the agency responsible for 
the undertaking.


Sec. 800.11  Documentation standards.

    (a) Adequacy of documentation. The Agency Official shall ensure 
that any determination, finding or agreement under the procedures in 
this subpart is supported by sufficient documentation to enable 
reviewing parties to understand its factual and logical basis. If the 
Council, or the State Historic Preservation Officer in those situations 
where the Council is not involved, determines the applicable 
documentation standards are not met, the time period specified in the 
relevant section of this subpart shall be suspended until adequate 
documentation is submitted.
    (b) Format. The Agency Official may use documentation prepared to 
meet the needs of other authorities to fulfill the requirements of the 
procedures in this subpart, provided that resulting

[[Page 48591]]

documentation meets the standards of this section.
    (c) Confidentiality. Section 304 of the Act requires an Agency 
Official to withhold from public disclosure information about the 
location, character, or ownership of a historic property when 
disclosure may cause a significant invasion of privacy, risk harm to 
the historic resource, or impede the use of a traditional religious 
site by practitioners.
    (d) Finding of no historic properties present or affected. 
Documentation shall include:
    (1) A description of the undertaking and its area of potential 
effects, including photographs, maps, and drawings, as necessary;
    (2) A description of the efforts used to identify historic 
properties; and
    (3) The basis for determining that no historic properties are 
present or affected.
    (e) Finding of no adverse effect or standard treatment of potential 
adverse effects. Documentation shall include:
    (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, including appropriate information on the nature of 
their significance;
    (3) A description of the efforts used to identify historic 
properties;
    (4) A description of why the criteria of adverse effect were found 
inapplicable, or how potential adverse effects would be resolved; and
    (5) Any views provided by consulting parties, the interested public 
and the public.
    (f) Finding of adverse effect. Documentation shall include:
    (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 characteristics that qualify them for the National 
Register; and
    (3) A description of the undertaking's adverse effects on historic 
properties.
    (g) Memorandum of Agreement. When a memorandum is filed with the 
Council , the documentation shall include an evaluation of any measures 
considered to avoid or minimize the undertaking's adverse effects and a 
summary of the views of consulting parties, the interested public and 
the public.
    (h) Requests for comment when consultation is terminated. 
Documentation shall include that specified in paragraph (f) of this 
section and:
    (1) A description and evaluation of any alternatives or mitigation 
measures that the Agency Official proposes to resolve the undertaking's 
adverse effects;
    (2) A description of any reasonable alternatives or mitigation 
measures that were considered but not chosen, and the reasons for their 
rejection;
    (3) The planning schedule for the undertaking; and
    (4) 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.


Sec. 800.12  Consultation with Indian tribes and Native Hawaiian 
organizations.

    (a) Objectives. Consultation shall be designed to:
    (1) Provide the Indian tribe or Native Hawaiian organization a 
reasonable opportunity to identify its concerns about historic 
properties, advise on the identification of historic properties, 
including associated traditional religious and cultural importance, and 
articulate its views on the undertaking's effects on such properties.
    (2) Involve designated representatives of the Indian tribe's or 
Native Hawaiian organization's governing body and those traditional 
cultural authorities and other tribal or organizational members 
identified by the designated representatives.
    (3) Commence early in the planning process, in order to identify 
relevant preservation issues and resolve concerns about the 
confidentiality of information on historic properties and to allow 
adequate time for discussion of relevant preservation issues. Upon 
request, the Agency Official, after consultation with the Secretary, 
shall withhold information about historic properties in accordance with 
section 304 of the Act.
    (b) Undertakings on tribal lands. Consultation with Indian tribes 
on tribal lands requires special consideration, as set forth in this 
paragraph, of the sovereignty of Indian tribes over such lands. Where 
an Indian tribe has not assumed the responsibilities of the State 
Historic Preservation Officer under section 101(d)(2) of the Act, the 
Agency Official shall involve the Indian tribe with jurisdiction over 
the tribal lands as a consulting party in accordance with this 
subsection.
    (1) Identification of historic properties. When carrying out the 
provisions of Sec. 800.4, the Agency Official shall consult with the 
Indian tribe when determining the area of potential effects, locating 
historic properties and evaluating the historic significance of 
identified properties. The Indian tribe shall be consulted when 
reaching any determination of eligibility under Sec. 800.4(c)(2) and 
its timely objection to an Agency Official's determination shall 
require the Agency Official to obtain a determination of eligibility 
from the Secretary pursuant to 36 CFR part 63. The Agency Official 
shall provide documentation of any finding that there are no historic 
properties present or affected to the Indian tribe. If the Indian tribe 
objects within 15 days of receipt of an adequately documented finding, 
the Agency Official shall consider that historic properties are 
affected by the undertaking.
    (2) Assessment of adverse effects. When carrying out the provisions 
of Sec. 800.5, the Agency Official shall consult with the Indian tribe 
when applying the criteria of adverse effect to historic properties 
within the area of potential effects, making findings of avoidance of 
adverse effect and determining satisfactory resolution of adverse 
effects. The Agency Official shall provide a copy of any findings of no 
adverse effect or that adverse effects have been satisfactorily 
resolved by a standard treatment to the Indian tribe when submitting 
them to the State Historic Preservation Officer for review. If the 
Indian tribe objects to the finding within 30 days of receipt and 
specifies the reasons for disagreeing, the effect shall be considered 
adverse, provided that the Agency Official may request the Council to 
review the disagreement and proceed in accordance with the Council's 
opinion as to whether the effect is adverse.
    (3) Resolution of adverse effects. When carrying out the 
responsibilities of Sec. 800.6, the Agency Official shall consult with 
the Indian tribe along with the State Historic Preservation Officer 
when determining participants in the consultation and resolving adverse 
effects. The Indian tribe shall be a signatory to any agreement reached 
under Sec. 800.6.
    (4) Failure to resolve adverse effects. When an Agency Official 
follows the provisions of Sec. 800.7, the Indian tribe shall have the 
same opportunities to terminate consultation and participate in the 
Council comment process as the State Historic Preservation Officer.
    (c) Undertakings not on tribal lands. Where the Agency Official has 
identified an Indian tribe or Native Hawaiian organization that 
attaches religious or cultural significance to historic properties 
within the area of potential effects under Sec. 800.3(e), including one 
that does not reside in the

[[Page 48592]]

vicinity of the undertaking, the Agency Official shall involve them in 
accordance with this paragraph.
    (1) Identification of historic properties. When carrying out the 
provisions of Sec. 800.4, the Agency Official shall consult with the 
Indian tribe or Native Hawaiian organization when determining the area 
of potential effects, locating historic properties that may possess 
religious or cultural significance and applying the National Register 
Criteria to such properties when identified.
    (2) Assessment of adverse effects. When carrying out the provisions 
of Sec. 800.5, the Agency Official shall consult with the Indian tribe 
or Native Hawaiian organization when applying the criteria of adverse 
effect to historic properties that may possess religious or cultural 
significance within the area of potential effects, making findings of 
avoidance of adverse effect to such properties and determining 
satisfactory treatment of adverse effects to such properties.
    (3) Resolution of adverse effects. When carrying out the 
responsibilities of Sec. 800.6, the Agency Official shall consult with 
the Indian tribe or Native Hawaiian organization when determining 
Council involvement and resolving adverse effects with or without the 
Council. The governing body of the Indian tribe or Native Hawaiian 
organization shall be invited to concur in any Memorandum of Agreement 
reached when it concerns properties that possess religious or cultural 
significance.
    (4) Failure to resolve adverse effects. When the Agency Official 
follows the provisions of Sec. 800.7, the Indian tribe or Native 
Hawaiian organization shall have the same opportunities to provide 
views and receive information in the Council comment process as the 
State Historic Preservation Officer.
    (d) Emergency situations and post-review discoveries. (1) Tribal 
lands. When an agency complies with the provisions of Sec. 800.13 or 
Sec. 800.14 for an undertaking on tribal lands, the Indian tribe shall 
have the same opportunities to participate as the State Historic 
Preservation Officer. The Agency Official shall also coordinate 
requirements under Sec. 800.13 or Sec. 800.14 with any applicable 
actions taken to meet the requirements of the Native American Graves 
Protection and Repatriation Act.
    (2) Non-tribal lands. Where the Agency Official has identified an 
Indian tribe or Native Hawaiian organization that attaches religious or 
cultural significance to historic properties within the area of 
potential effects under Sec. 800.3(e) and subsequently complies with 
the provisions of Sec. 800.13 or Sec. 800.14, the Agency Official shall 
consult with them in carrying out the provisions of those sections.


Sec. 800.13  Emergency situations.

    (a) Agency procedures. The Agency Official, in consultation with 
the appropriate State Historic Preservation Officer or Officers and the 
Council, is encouraged to develop procedures for taking historic 
properties into account during operations which respond to a disaster 
or emergency declared by the President, the Agency Official or the 
governor of a State or which respond to other immediate threats to life 
or property. If approved by the Council, the procedures shall govern 
the agency's historic preservation responsibilities during any disaster 
or emergency in lieu of Secs. 800.3 through 800.7.
    (b) Alternatives to agency procedures. In the event an Agency 
Official proposes an emergency undertaking as an essential and 
immediate response to a disaster or emergency declared by the 
President, the Agency Official or the governor of a State, and the 
agency has not developed procedures pursuant to Sec. 800.13(a), the 
Agency Official may comply with section 106 of the Act by:
    (1) Following a programmatic agreement developed pursuant to 
Sec. 800.15(b) that contains specific provisions for dealing with 
historic properties in emergency situations; or
    (2) 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. If the Agency 
Official determines that circumstances do not permit seven days for 
comment, the Agency Official shall notify the Council and the State 
Historic Preservation Officer and invite any comments.
    (c) Local governments responsible for Section 106 compliance. When 
a local government is statutorily delegated responsibility for Section 
106 compliance, Sec. 800.13 (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 seven days, the Agency Official 
shall comply with Secs. 800.3 through 800.7.
    (d) Applicability. This section applies only to undertakings that 
will be implemented within 30 days after the disaster or emergency has 
been formally declared by the appropriate authority. An agency may 
request an extension of the period of applicability from the Council 
prior to the expiration of the 30 days. Immediate rescue and salvage 
operations conducted to preserve life or property are exempt from the 
provisions of section 106 of the Act and this subpart.


Sec. 800.14  Post-review discoveries.

    (a) Planning for discoveries. When the Agency Official's 
identification efforts in accordance with Sec. 800.4 indicate that 
historic properties are likely to be discovered during implementation 
of an undertaking, the Agency Official shall include in any finding of 
no adverse effect, standard treatment of potential adverse effects or 
Memorandum of Agreement a process to resolve any adverse effects upon 
such properties. Actions in conformance with the process satisfy the 
Agency Official's responsibilities under section 106 of the Act and 
this subpart.
    (b) Unplanned for discoveries. If historic properties are 
discovered or unanticipated effects on historic properties found after 
the Agency Official has completed the Section 106 process without 
establishing a process under Sec. 800.14(a), the Agency Official shall 
make reasonable efforts to avoid or minimize adverse effects to such 
properties and:
    (1) If the Agency Official has not approved the undertaking, 
consult to resolve adverse effects pursuant to Sec. 800.6;
    (2) If the Agency Official determines in consultation with the 
State Historic Preservation Officer that the affected property is 
significant solely for its scientific, prehistoric, historic or 
archeological data, comply with the Archeological and Historic 
Preservation Act, 16 U.S.C. 469 (a)-(c) instead of the procedures in 
this part, provided that 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; or
    (3) If the Agency Official has approved the undertaking, the Agency 
Official shall:
    (i) Determine actions that the Agency Official can take to resolve 
adverse effects;
    (ii) Notify the State Historic Preservation Officer and the Council 
within 48 hours of the discovery;
    (iii) Describe the actions proposed to resolve the adverse effects;
    (iv) Take into account any recommendations provided by the Council 
and the State Historic Preservation Officer within 48 hours of the 
notification.
    (v) Carry out appropriate actions; and

[[Page 48593]]

    (vi) Provide the Council, the State Historic Preservation Officer 
and the interested public a report of the actions when completed.
    (c) Eligibility of properties. When a newly discovered historic 
property has not previously been included in or determined eligible for 
the National Register, the Agency Official, in consultation with the 
State Historic Preservation officer, may assume the property to be 
eligible for purposes of section 106 of the Act.

Subpart C--Program Alternatives


Sec. 800.15  Federal agency program alternatives.

    (a) Alternate procedures. A Federal agency may develop procedures 
to implement Section 106 and substitute them for the comparable 
provisions of subpart B if they are found consistent with the Council's 
regulations in accordance with section 110(a)(2)(E) of the Act.
    (1) Development of procedures. The Federal agency shall consult 
with the Council in the development of alternate procedures and publish 
notice of the availability of proposed alternate procedures in the 
Federal Register.
    (2) Council review. The Federal agency shall submit the final 
alternate procedure to the Council for review.
    (i) If the Council finds the regulations to be consistent with this 
part, it shall notify the Federal agency and the Federal agency may 
adopt them as alternate procedures.
    (ii) If the Council does not find the procedures consistent, the 
Council shall request the Secretary to make a final determination as to 
consistency. If the Secretary determines the procedures to be 
consistent, the Federal agency may adopt them as alternate procedures.
    (3) Notice. The Federal agency shall publish notice of final 
alternate procedures in the Federal Register.
    (4) Legal effect. Alternate procedures adopted pursuant to this 
section substitute for the Council's regulations for the purposes of 
the agency's compliance with section 106 of the Act, except that, where 
an Indian tribe has entered into an agreement with the Council to 
substitute tribal historic preservation regulations for the Council's 
procedures, the agency shall follow those regulations in lieu of the 
agency's procedures regarding undertakings on tribal lands.
    (b) Programmatic Agreements. The Council and the Agency Official 
may negotiate a Programmatic Agreement to govern the implementation of 
a particular program or certain complex project situations that justify 
departure from the normal Section 106 process.
    (1) Programmatic Agreements for agency programs. (i) The 
consultation shall involve State Historic Preservation Officers or the 
National Conference of State Historic Preservation Officers, Indian 
tribes and Native Hawaiian organizations, other Federal agencies, and 
other members of the interested public, as appropriate.
    (ii) The Agency Official shall arrange for public participation 
appropriate to the subject matter and the scope of the program.
    (iii) The Programmatic Agreement shall take effect when executed by 
the Council and the Agency Official. The President of the National 
Conference of State Historic Preservation Officers shall be invited to 
sign any agreement when the Conference has participated in the 
consultation developing it. 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 by the agency or the 
Council.
    (iv) The Agency Official shall publish notice of an approved 
Programmatic Agreement in the Federal Register and make any agency 
procedures implementing the agreement readily available to the Council, 
State Historic Preservation Officers, and the public.
    (v) If the Council determines that the terms of a Programmatic 
Agreement are not being carried out, or if such an agreement is 
terminated, the Agency Official shall comply with subpart B with regard 
to individual undertakings covered by the agreement.
    (2) Programmatic Agreements for complex or multiple undertakings. 
(i) A Programmatic Agreement is a Memorandum of Agreement that 
establishes a process for dealing with the potential adverse effects of 
complex projects or multiple undertakings carried out over an extended 
period of time. A Programmatic Agreement shall be used:
    (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 nonfederal 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 Programmatic Agreement shall be developed in the same 
manner as other Memoranda of Agreement under Sec. 800.6, provided that 
if consultation pertains to an activity involving multiple undertakings 
and the parties fail to reach agreement, then the Agency Official shall 
comply with the provisions of subpart B of this part for each 
individual undertaking.
    (c) Exempted categories. (1) Criteria for establishing. An Agency 
Official may propose a program or category of agency undertakings that 
may be exempted from review under the provisions of subpart B, if the 
program or category meets the following criteria:
    (i) The actions within the program or category would otherwise 
qualify as ``undertakings'' as defined in Sec. 800.17;
    (ii) The potential effects of the undertakings within the program 
or category upon historic properties are foreseeable and not likely to 
be adverse; and
    (iii) Exemption of the program or category is consistent with the 
purposes of the Act.
    (2) Council review of proposed exemptions. The Council shall review 
a request for an exemption that is supported by documentation 
describing the program or category for which the exemption is sought 
and demonstrating that the criteria of Sec. 800.15(c)(1) have been met. 
Unless it requests further information, the Council shall approve or 
reject the proposed exemption within 30 days of receipt. The Council 
decision shall be based on whether the exemption is consistent with the 
purposes of the Act, taking into consideration the magnitude of the 
exempted undertaking or program and the likelihood of impairment of 
historic properties in accordance with section 214 of the Act.
    (3) Legal consequences. Any undertaking that falls within the 
exempted program or category approved by the Council shall require no 
further review pursuant to subpart B, unless the Agency Official or the 
Council determines that there are circumstances under which the 
normally excluded undertaking should be reviewed under subpart B of 
this part.
    (d) Standard treatments. (1) Establishment. The Council may 
establish standard methods for the treatment of a category of historic 
properties or a category of effects on historic properties to satisfy 
the requirements of subpart B of this part. The Council shall specify 
such treatments, conditions for their application and any procedural 
modifications attendant to their use in a notice published in the 
Federal Register.
    (2) Legal consequence. An Agency Official may elect to follow a 
standard treatment to meet Section 106

[[Page 48594]]

responsibilities for a qualifying undertaking in accordance with 
Sec. 800.5.
    (e) Program comments. An Agency Official may request the Council to 
comment on a category of routine or repetitive undertakings in lieu of 
conducting individual reviews under Secs. 800.4 through 800.7. The 
Agency Official shall identify the category of undertakings, specify 
the likely effects on historic properties, specify the steps the Agency 
Official will take to ensure that the effects are taken into account 
and the time period for which the comment is requested. Unless the 
Council requests additional documentation or notifies the Agency 
Official that it will decline to comment, the Council shall comment to 
the Agency Official within 45 days of the request. The Agency Official 
shall take into account the comments of the Council in carrying out the 
undertakings within the category and provide appropriate notice of the 
Council's comments and the Agency Official's action in response. If the 
Council objects to the proposed treatment or declines to comment, the 
Agency Official shall continue to comply with the requirements of 
Secs. 800.4 through 800.7 for the individual undertakings. The Council 
may provide program comments at its own initiative.


Sec. 800.16  State, Tribal and Local Program Alternatives. (Reserved)


Sec. 800.17  Definitions.

    Act means the National Historic Preservation Act of 1966 (16 U.S.C. 
470-470w-6).
    Agency means agency as defined in 5 U.S.C. 551.
    Approval of the expenditure of funds means any final agency 
decision authorizing or permitting the expenditure of Federal funds or 
financial assistance on an undertaking, including any agency decision 
that may be subject to an administrative appeal or rehearing procedure.
    Area of potential effects means the geographic area or areas within 
which an undertaking could cause adverse effects on historic 
properties.
    Comment means the findings and recommendations of the Council 
formally provided in writing to the head of a Federal agency under 
section 106 of the Act.
    Consultation means the process of seeking and considering the views 
of other participants in a manner appropriate to the particular 
participants and the specific steps in the Section 106 process.
    Council means the Advisory Council on Historic Preservation or a 
Council member or employee designated to act for the Council.
    Effect means alteration to the characteristics of a historic 
property that qualified it for inclusion in or eligibility for the 
National Register.
    Head of the agency means the chief official of the Federal agency 
responsible for all aspects of the agency's actions. If a State, local 
or tribal government has been delegated responsibility for Section 106 
compliance, the head of that unit of government shall be considered the 
head of the agency.
    Historic property means any prehistoric or historic district, site, 
building, structure, or object included in, or eligible for inclusion 
in, the National Register of Historic Places maintained by the 
Secretary of the Interior. This term includes artifacts, records, and 
remains that are related to and located within such properties. The 
term includes properties of traditional religious and cultural 
importance to an Indian tribe or Native Hawaiian organization that meet 
the National Register criteria. The term ``eligible for inclusion in 
the National Register'' includes both properties formally determined as 
such in accordance with regulations of the Secretary of the Interior 
and all other properties that meet the National Register criteria.
    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.
    Local government means a city, county, parish, township, 
municipality, borough, or other general purpose political subdivision 
of a State.
    Memorandum of Agreement means the document that records the terms 
and conditions agreed upon to resolve the adverse effects of an 
undertaking upon historic properties.
    National Historic Landmark means a historic property that the 
Secretary of the Interior has designated a National Historic Landmark.
    National Register means the National Register of Historic Places 
maintained by the Secretary of the Interior.
    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).
    Native Hawaiian organization means any organization which serves 
and represents the interests of Native Hawaiians; has as a primary and 
stated purpose the provision of services to Native Hawaiians; and has 
demonstrated expertise in aspects of historic preservation that are 
significant to Native Hawaiians. ``Native Hawaiian'' means any 
individual who is a descendant of the aboriginal people who, prior to 
1778, occupied and exercised sovereignty in the area that now 
constitutes the State of Hawaii.
    Programmatic Agreement means a document that records the terms and 
conditions agreed upon to resolve the potential adverse effects of a 
Federal agency program or other situations in accordance with 
Sec. 800.15.
    Secretary means the Secretary of the Interior acting through the 
Director of the National Park Service except where otherwise specified.
    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.
    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, cultural practices 
and living human values.
    Tribal lands means all lands within the exterior boundaries of any 
Indian reservation and all dependent Indian communities.
    Tribal Preservation Officer means the tribal official appointed by 
the tribe's chief governing authority or as designated by a tribal 
ordinance or preservation program as provided for and approved under 
the provisions of section 101 of the Act.
    Undertaking means a project, activity, or program funded in whole 
or in part under the direct or indirect jurisdiction of a Federal 
agency, including those carried out by or on behalf of a Federal 
agency; those financed in whole or in part with Federal financial 
assistance; those requiring a Federal permit, license or approval; and 
those subject to State or local regulation administered pursuant to a 
delegation or approval by a Federal agency.

[FR Doc. 96-23532 Filed 9-12-96; 8:45 am]
BILLING CODE 4310-10-P