[Federal Register Volume 64, Number 95 (Tuesday, May 18, 1999)]
[Rules and Regulations]
[Pages 27044-27084]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-12054]



[[Page 27043]]

_______________________________________________________________________

Part II





Advisory Council on





Historic Preservation





_______________________________________________________________________



36 CFR Part 800



Protection of Historic Properties; Recommended Approach for 
Consultation on Recovery of Significant Information From Archaeological 
Sites; Final Rule and Notice

  Federal Register / Vol. 64, No. 95 / Tuesday, May 18, 1999 / Rules 
and Regulations  

[[Page 27044]]



ADVISORY COUNCIL ON HISTORIC PRESERVATION

36 CFR Part 800

RIN 3010-AA04


Protection of Historic Properties

AGENCY: Advisory Council on Historic Preservation.

ACTION: Final rule; revision of current regulations.

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

SUMMARY: The Advisory Council on Historic Preservation is publishing 
its final rule, replacing the previous regulations in order to 
implement the 1992 amendments to the National Historic Preservation Act 
(NHPA) and to improve and streamline the regulations in accordance with 
the Administration's reinventing government initiatives and public 
comment. The final rule modifies the process by which Federal agencies 
consider the effects of their undertakings on historic properties and 
provide the Council with a reasonable opportunity to comment with 
regard to such undertakings, as required by section 106 of the NHPA. 
The Council has sought to better balance the interests and concerns of 
various users of the Section 106 process, including Federal agencies, 
State Historic Preservation Officers (SHPOs), Tribal Historic 
Preservation Officer (THPOs), Native Americans and Native Hawaiians, 
industry and the public. After engaging in extensive consultation 
through more than four years, the Council has developed this final 
rule.

DATES: This final rule is effective June 17, 1999.

FOR FURTHER INFORMATION CONTACT: If you have questions about the 
regulations, please call Frances Gilmore or Paulette Washington at the 
regulations hotline (202) 606-8508, or e-mail us at [email protected]. When 
calling or sending e-mail, please state your name, affiliation and 
nature of your question, so your call or e-mail can then be routed to 
the correct staff person. Information materials about the new 
regulations will be posted on our web site (http://www.achp.gov) as 
they are developed.

SUPPLEMENTARY INFORMATION: The information that follows has been 
divided into eight sections. The first one provides background 
information introducing the agency and summarizing the history of the 
rulemaking process. The second section provides a general summary of 
the comments received in response to the September 1996 notice of 
proposed rulemaking. The third section summarizes consultations that 
took place with Native Americans. Such summary is included in the 
preamble of these regulations to reflect the fact that regulations 
incorporate the 1992 amendments to the NHPA which had a large impact on 
the role of Native Americans on the section 106 process.
    The September 1996 notice of proposed rulemaking highlighted six 
issues on which the Council particularly wanted to received comments. 
The fourth section summarizes those comments, and generally reflects 
the Council reaction to them. The fifth section relates, section by 
section, the Council's response in these new regulations to the 
comments received. The sixth section highlights the major changes to 
the section 106 process that these new regulations implement. The 
seventh section provides a description of the meaning and intent behind 
specific sections of the new regulations. Finally, the eight section 
provides the impact analysis section, which addresses various legal 
requirements, including the Regulatory Flexibility Act, the Paperwork 
Reduction Act, the National Environmental Policy Act, the Unfunded 
Mandates Act, the Congressional Review Act and various relevant 
Executive Orders.

I. Background

    The Advisory Council on Historic Preservation (Council) is the 
major policy advisor to the Government in the field of historic 
preservation. Twenty members make up the Council. The President 
appoints four members of the general public, one Native American or 
Native Hawaiian, four historic preservation experts, and one governor 
and one mayor. The Secretary of the Interior and the Secretary of 
Agriculture, four other Federal agency heads designated by the 
President, the Architect of the Capitol, the chairman of the National 
Trust for Historic Preservation and the president of the National 
Conference of State Historic Preservation Officers complete the 
membership. The diverse make-up of the Council provided a broad base of 
experience and viewpoints from which the Council drew in developing 
these regulations.
    These sections set forth the revised section 106 process. Section 
106 of the National Historic Preservation Act of 1966, as amended, 16 
U.S.C. 470f (NHPA), requires Federal agencies to take into account the 
effect of their undertakings on properties included in or eligible for 
inclusion in the National Register of Historic Places and to afford the 
Council a reasonable opportunity to comment on such undertakings.
    In October, 1992, Pub. L. 102-575 amended the NHPA and affected the 
way section 106 review is carried out. The Council thereafter began its 
efforts to amend its regulations accordingly. Additionally, as part of 
the Administration's National Performance Review and overall 
streamlining efforts, the Council undertook a review of its regulatory 
process to identify potential changes that could improve the operation 
of the section 106 process an conform it to the principles of the 
Administration. The Council commenced an information-gathering effort 
to assess the existing section 106 process and to identify desirable 
changes.
    As a part of these efforts, the Council sent a questionnaire to 
1,200 users of the Section 106 process, including Federal agencies, 
State Historic Preservation Officers (SHPOs), State and local 
governments, applicants for Federal assistance, Indian tribes, 
preservation groups, contractors involved in the process, and members 
of the public. The questionnaires sought opinions on the existing 
regulatory process and ideas for enhancing the process. The Council 
received over 400 responses. After analyzing the responses and holding 
several meetings with Federal Preservation Officers and SHPOs, the 
Council staff presented its preliminary findings to a special Task 
Force comprised of Council members representing the Department of 
Transportation, the National Conference of State Historic Preservation 
Officers, the National Trust of Historic Preservation, the Council's 
Native American representative, an expert member and the chairman. The 
Council member representing the Department of the Interior was later 
added to the Task Force. This diverse, special Council member Task 
Force worked closely with the Council staff, reviewing comments and 
numerous drafts of the regulations.
    The Task Force adopted the following principles and attempted to 
craft regulations to reflect them: (1) Federal agencies and SHPOs 
should be given greater authority to conclude Section 106 review; (2) 
the Council should spend more time monitoring program trends and 
overall performance of Federal agencies and SHPOs, and less time 
reviewing individual cases or participating in case-specific 
consultation; (3) Section 106 review requirements should be integrated 
with environmental reviews required by other statutes; (4) Section 106 
enforcement efforts should be increased, and specific remedies should 
be provided for failure to comply; and (5) the public should be granted 
expanded

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opportunities for involvement in the Section 106 process. These 
principles have guided the regulatory reform effort.
    The Council drafted proposed regulations, seeking to meet the 
stated findings and objectives adopted by the Task Force. On October 3, 
1994, the Council published those draft proposed regulations on the 
Federal Register and sought public comment, on a notice of proposed 
rulemaking (59 FR 50396). The notice provided for a 60 day public 
comment period, and a 30 day extension of that period for Indian tribes 
who requested it. The Council received approximately 370 comments on 
the October 1994 proposal. Generally, commenters supported the overall 
goals and direction adopted by the Task Force, but found that the 
proposed regulations failed to implement the stated goals. 
Particularly, many commenters disagreed with the role of the Council as 
arbiter of disputes over application of the regulations, the public 
appeals process, and provisions dealing with enforcement.
    At a Council membership meeting in February, 1995, the Council 
decided to continue its dialogue with major user groups of the section 
106 process in an effort to resolve these concerns. The Council 
membership also reaffirmed the objective of reducing regulatory burdens 
on Federal agencies and SHPOs and focusing the review process on 
important historic preservation issues. The Council solicited the views 
of users of the Section 106 process once again by convening separate 
focus groups with local governments, industry representatives, Native 
Americans and Federal agency officials in early 1995. As a result of 
these meetings, and after considering the views of commenters, the 
Council drafted a substantially revised proposal and circulated the 
draft informally in July, 1995 to those who had commented on the 
October, 1994, notice of proposed rulemaking. The Council received 
approximately 80 comments on the informally distributed draft. 
Generally, the commenters found the July, 1995, draft to be an 
improvement on the October, 1994, proposal. Again, however, Federal 
agencies noted that the Council did not go far enough in removing 
itself from routine cases and in bringing finality to the process. 
Federal agencies also remained concerned that the public participation 
provisions were too open-ended and inadequately defined the roles and 
rights of participants in the process. Federal agencies also considered 
the National Environmental Policy Act (NEPA) integration section to be 
a step forward, but submitted that its substitution provisions should 
be extended to environmental assessments as well as environmental 
impact statements and, overall, could provide better integration of 
NHPA and NEPA. In contrast, the majority of SHPOs did not want the 
Council to remove itself further from the Section 106 process and did 
not want the NEPA integration section to be extended to environmental 
assessments. The National Conference of State Historic Preservation 
Officers, as well as many of its member SHPOs, supported the public 
participation process as set forth in the July, 1995, draft, but sought 
clarification on the roles and responsibilities of Federal agencies 
under section 106. Although industry commenters deemed the July, 1995, 
draft a vast improvement over the 1994 proposal, they remained 
concerned with the appeals procedures and found the process too 
burdensome. Industry also remained concerned about the public 
participation provisions.
    In accordance with the general approach described above, after 
reviewing the comments on the October, 1994, proposal, and in response 
to agency downsizing and restructuring, the Council substantially 
changed its proposal. The new proposed regulations were published on 
the Federal Register on a second notice of proposed rulemaking on 
September 13, 1996 (61 FR 48580). Again, the notice provided for a 60 
day public comment period, and a 30 day extension of that period for 
Indian tribes who requested it. The notice highlighted six specific 
issues to focus commenters' review on what the Council believed to be 
the most critical issues of concern. The six issues were: public 
participation, local government involvement, Council review of agency 
findings, time frames, and alternate procedures. The Council received 
221 comments. Most commenters focused on the six issues listed above. A 
summary of the comment received in response to the September, 1996, 
notice is presented below, under its own section (See Section II of the 
preamble, below).
    On November 12, 1996, reauthorization legislation for the Council 
was signed into law. It directed the Council, within 18 months, to 
submit a report to Congress containing an analysis of alternatives for 
modifying the regulatory process under Section 106 and section 110(f) 
of the NHPA, and ``alternatives for future promulgation and oversight 
of regulations for implementation of Section 106 of the (NHPA).'' The 
report was submitted to Congress in May, 1998. In summary, the report 
concluded that the basic implementation of the Section 106 process was 
sound, though it certainly merited continuing improvement. It also 
stated that some improvements sought in the rulemaking process should 
result in more thoughtful and efficient decisionmaking and better 
protection of significant historic properties. It noted that only a 
small number of the thousands of projects and programs considered under 
the Section 106 process each year were problematic or controversial, 
and that those should continue to receive an appropriate level of 
attention and public debate even while the Council worked to improve 
the planning and review process to forestall or minimize potential 
disputes of this nature that could arise in the future. The Council 
also reaffirmed its commitment to ensuring that it would continue to 
develop program and operational enhancements that promote the 
effectiveness, consistency, and coordination of other public policies 
and programs with the purposes Congress articulated in the NHPA.
    Through the process of considering public comments, the Council 
formulated a draft regulation on June 5, 1997. During August and 
September of 1997, the Council conducted consultations with Indian 
tribes regarding the June, 1997, draft regulations. These special 
consultations were held to respond to tribal concerns about prior 
insufficient consultation, to meet Administration directives regarding 
government-to-government consultation with Indian tribes and to 
recognize the special role given Indian tribes in the 1991 NHPA 
amendments. A summary of these consultations is provided under Section 
II, below.
    After further, careful consideration of all public comments and the 
results of its tribal consultations, the Council revised the June, 
1997, draft regulations. On October 24, 1997, the Council membership 
approved this draft of the regulations. On November 20, 1997, the 
Council submitted its draft regulations to the OMB Office of 
Information and Regulatory Affairs for their required review. This 
review involved numerous interagency meetings over the course of 15 
months and resulted in certain changes in the October, 1997, draft to 
meet agency concerns.
    At its business meeting on February 12, 1999, the Council formally 
adopted the draft of the regulations resulting from the OMB review 
process. Previously, the Council Chairman and the Regulations Task 
Force, in response to concerns raised by certain commenters, carefully 
considered whether the final regulation should be published once more 
for public comment. They determined that the changes made in response 
to public

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comment and interagency review did not make substantial changes in the 
section 106 process as presented for public comment in September, 1996, 
and were rather the Council's reasonable response to and incorporation 
of suggested refinements that emerged from the public review process.
    After the Council's Regulations Task Force adopted final technical 
and editorial changes to the regulations, and the preamble was 
finalized, this preamble and regulation were submitted to the OMB for 
final review, and then to the Federal Register for publication.

II. General Summary of Comments From the September, 1996, Notice of 
Proposed Rulemaking

    Following is a summary of the major issues raised in the comments 
received in response to the notice of proposed rulemaking in September 
1996. These comments led to the drafting of the proposed regulations 
that were then handed to the OMB Office of Information and Regulatory 
Affairs for their required review. Note that the terms ``most'' or ``a 
majority'' or other like phrases on the particular issue discussed. 
Please refer to Section V of this preamble for a discussion on the 
Council's response to the comments received.

A. Federal Agencies (35 Comments, Including Those From Field Offices 
and Regions)

General
    A majority of agencies found that the regulations proposed on the 
September 1996 notice of proposed rulemaking (``September 1996 draft'') 
either streamlined the existing regulatory process or were an 
improvement over the proposal on the October 1994 notice of proposed 
rulemaking (``October 1995 draft''). Nevertheless, almost all suggested 
further changes.
Council Role
    Most agencies were pleased with the general approach of deferring 
to Federal agency-SHPO decision making. Some felt that the Council did 
not go far enough in removing itself from the process. Others did not 
see the value in filing Memoranda of Agreement (MOAs) with the Council. 
One agency expressed its concern that the deference to agency-SHPO 
decision making would create inconsistencies and delays and would leave 
SHPOs subject to political pressure.
    In addressing the Council's role in the 106 process, some agencies 
recognized and supported the Council's right to intervene in a case on 
its own initiative, while others opposed this provision. Specifically, 
some agencies expressed problems with the Council's right to intervene 
when projects involve tribal lands and whenever the SHPO fails to 
respond to an agency. On the Council's role in agencies' alternate 
procedures, most agencies opined that the Council approval should not 
be required for such procedures, although one agency found this role 
for the Council to be appropriate. Related to the Council's role, a 
number of agencies objected to the appeals process as set forth in the 
provision relating to the Council review of section 106 compliance, 
finding that it was too open-ended and inappropriately allowed the 
Council to enter the process after decisions had been made. Other 
agencies liked that appeals process, while one agency found it too 
restrictive. A few agencies viewed the Council as exceeding its 
authority in general in the regulations.
Public Involvement
    The issue of public involvement was one of concern to agencies. 
Most agencies found that there were too many opportunities for the 
public to become involved. Specifically, agencies were concerned that 
the public could protest late in the process. Some agencies believed 
that existing agency procedures could better address public 
involvement, that guidelines on the goal of public involvement would be 
more appropriate than regulations, and that public involvement 
requirements should be lessened for minor projects. Agencies also 
expressed concern about the description of various participants in the 
process and their corresponding rights and responsibilities. Several 
agencies also took issue with the requirement that agencies consult 
with traditional cultural authorities because of the difficulty in 
identifying them.
NEPA Coordination
    Several agencies found the goal of NEPA coordination beneficial, 
but did not find that the NEPA coordination section achieved its goal. 
Agencies found the section inconsistent with NEPA, particularly where 
agencies prepare an Environmental Assessment (EA), because of the 
public involvement and documentation requirements in the Council's 
regulations. Some agencies found the section helpful.
Time Frames
    The issue of time frames for the different steps of the 106 process 
was also raised by agencies, with some suggesting that additional time 
frames were needed to make the process more efficient. Other agencies 
found the time frames appropriate as proposed. One agency objected to 
the suspension of the process where the Council or SHPO determines 
there is inadequate documentation.
Other Issues
    Agencies favorably noted the new provisions on phased compliance 
and consideration of the magnitude of the undertaking and nature of 
property and effects. Agencies also liked the section on alternative 
means of satisfying 106, but some noted that the same result could be 
achieved through Programmatic Agreements (PAs). Agencies also expressed 
concern over the requirements that agency heads document decisions 
involving terminations, finding it inappropriate to elevate such 
decisions.

B. SHPOs (45 Comments, Including Those From Deputies and Staff)

General
    Overall, the majority of SHPOs were satisfied with the direction of 
the proposed regulations or believed that the Council had made 
substantial progress in achieving streamlined regulations.
Council Role
    An overwhelming concern of SHPOs was the proposal that the 
Secretary of the Interior decide disputes over consistency of agency 
procedures with section 106. Almost all SHPOs found that the Council 
should determine consistency. The majority of the SHPOs found that 
Council's role and criteria for involvement appropriate, although many 
noted that the regulations should clarify that the SHPO could directly 
seek the Council's involvement in a case. Some noted that the Council 
should be required to participate when asked by a SHPO.
Public Involvement
    Most SHPOs supported the public participation provision, although 
some were still concerned that the public would be precluded from the 
process and would not have a real opportunity to provide input. The 
delineation of the roles and rights of participants was also viewed as 
somewhat confusing, according to several SHPOs. Some SHPOs found that 
the proposal could preclude the public from meaningful participation in 
the process. Several SHPOs also noted that Federal agencies should be 
required to consult with SHPOs when identifying interested parties. 
With respect to the public's right to appeal agency decisions under the 
provision regarding Council review

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of Section 106 compliance, a number of SHPOs commented that appeals 
should not be restricted to members of the public who participated in 
the process. Further, several SHPOs found that the public appeal 
section set too high of a standard on the public in making a case for 
an appeal.
Alternative Procedures
    With regard to program alternatives, SHPOs were supportive of the 
proposal, but many suggested that the National Conference of State 
Historic Preservation Officers (NCSHPO), individual SHPOs, and the 
public participate in the development of standard treatments, 
alternative agency procedures and categorical exemptions. SHPOs also 
overwhelmingly expressed the opinion that NCSHPO be given the right to 
terminate nationwide Programmatic Agreements. A number of SHPOs 
commented that they found the bridge replacement standard treatment as 
proposed in Section 800.5 of the September 1996 version to be 
inappropriate.
Time Frames
    The most common concern of almost all SHPOs was the 15-day deadline 
for a finding of no historic properties affected. SHPOs believed this 
was an unreasonable short turn-around time for them to make a proper 
determination. With the exception of the 15-day deadline, most SHPOs 
found the time frames appropriate. Some noted that the different time 
periods were confusing and suggested adding time frames wherever the 
regulations referred to the phrase ``timely manner.''

C. Industry (24 Comments)

General
    The majority of industry commenters stated that the September 1996 
draft was substantially improved over either the existing regulations 
or the October 1994 draft. However, all commenters offered suggestions 
for further amending the regulations. Several other commenters, 
primarily associated with the mining industry, noted that while the 
September 1996 draft was an improvement, changes were still necessary 
to make the proposal acceptable. The question of the Council 
overstepping its authority was the primary concern of industry.
Council Role
    The mining industry and several other commenters were concerned 
that the Council had overstepped its statutory mandate in the existing 
regulations and those proposed. They found that the regulations allowed 
the Council to ``second guess'' Federal agency decisions, particularly 
in the appeals section regarding Council review of section 106 
compliance. Some commenters recognized that the proposed regulations 
provided a more limited role for the Council and, therefore, supported 
this change. Most industry commenters found that the Federal agency, 
not the Council, should decide whether agency procedure were consistent 
with section 106.
Public Involvement
    The role of participants in the process, particularly the public 
and applicants was a major issue of concern for the industry. 
Generally, many commenters found the roles poorly defined and 
confusing. Several commenters suggested the regulations delineate and 
limit participants entitled to partly status and those entitled to 
notice status. Many commenters liked the enhanced role of applicants, 
but some suggested that applicants deserved equal status with principal 
parties. On the role of the public in appeals of agency decisions (in 
the provision regarding Council review of section 106 compliance), some 
commenters noted approvingly that appeals were limited to parties who 
had participated in the process. However, most commenters on the issue 
wanted the appeals process further limited to parties that met legal 
standing requirements. Industry commenters, primarily from the mining 
industry, viewed public participation as too open-ended and lacking 
finality.
NEPA Coordination
    Industry commenters approved of the concept of NEPA coordination, 
but found that the proposed regulations would not reduce burdens 
because the NEPA documents still have to meet the Council's criteria.
Alternative Procedures
    Almost all industry commenters approved of the concept of standard 
treatments, categorical exemptions, PAs, and alternate procedures.
Time Frames
    On the issue of time frames, commenters suggested inserting 
deadlines at each step in the process, including consultation, and 
found references to the words ``timely'' or ``before'' too vague and 
unworkable.
Other Issues
    Several industry commenters viewed the requirement to consult with 
traditional cultural authorities as burdensome. Generally, industry 
found that the regulations provided too much ``special treatment'' for 
Native Americans. Industry commenters were also interested in having 
the regulations address the question of agency jurisdiction on non-
Federal lands.

D. Indian Tribes (28 Comments)

General
    Tribes overall were dissatisfied with the direction of the 
regulations.
Council Role
    Tribes were troubled by the Council's removal from routine case 
review and found that the proposed regulations did not provide a 
balanced process. However, several tribes stated that the Council 
should participate on projects on tribal lands only if requested by the 
tribe.
Public Involvement
    Tribes found the public appeals provision in the section regarding 
Council review of section 106 compliance to be too restrictive. They 
also suggested that the regulations clarify that Federal agencies must 
solicit the views of Indian tribes as members of the public, as well as 
consult on a government-to-government basis.
NEPA Coordination
    Tribes viewed the NEPA coordination provision as troublesome 
because sensitive tribal information gathered in fulfilling the 
Council's criteria would be included in an Environmental Impact 
Statement (EIS) and thus available for public distribution.
Alternative Procedures
    Tribes wanted to be included in the development of standard 
treatments, categorical exemptions, PAs and alternate agency 
procedures. Tribes were most concerned about the standard treatment for 
archaeology as proposed in Sec. 800.5 of the September 1996 version, 
finding it discouraged consideration of the broader values of a site.
Other Issues
    Tribes were most concerned with the identification and evaluation 
of historic properties, including properties to which they attach 
religious and cultural significance. They were concerned that Federal 
agencies' identification efforts would be incomplete and that agencies 
would make ``no historic properties affected'' determinations without 
prior consultation with the tribes. They also found that the standard 
treatment provision covering data recovery for archaeological sites a 
proposed in Sec. 800.5 of the September 1996 version, encouraged 
evaluation of sites only for

[[Page 27048]]

criterion D of the National Register and discouraged consideration of 
the broader range of values of the site. The relationship between 
tribal and SHPO responsibilities was also of concern to tribes. When 
undertakings were on tribal lands, tribes did not want SHPO 
involvement. When undertakings were on non-tribal lands, but affected 
properties to which they attach religious and cultural significance or 
other historic properties of tribal concern, then tribes wanted equal 
status with SHPOs and NCSHPO in the process. Tribes also suggested that 
the regulations require determinations of eligibility from the Keeper 
where tribes disputed an agency decision on eligibility.

E. Local Governments (11 Comments)

General
    Local governments were supportive of the concept of allowing 
agencies and SHPOs to conclude the 106 process without Council review.
Council Role
    Local government commenters overall found the proposed role of the 
Council appropriate, but expressed concern about the loss of the 
Council as a balancing force in the process.
Public Involvement
    The public participation requirements were viewed as redundant with 
NEPA. The National Association for County Community and Economic 
Development opposed the requirement to consult with tribes on non-
tribal lands.
Alternative Procedures
    Local governments supported the use of standard treatments, but 
wanted more flexible application of the Secretary's Standards for 
Rehabilitation. Some were concerned about the standard treatment for 
bridge replacements as proposed in Sec. 800.5 of the September 1996 
version.

F. Preservation Organizations (21 Comments)

General
    Presevation organizations were most concerned about the diminished 
role of the Council as set forth in the general framework of the 
proposed regulations. They also viewed the public participation 
provisions as preventing meaningful public involvement.
Council Role
    Preservation organizations opposed the decreased role of the 
Council in the 106 process, finding that it displaced the check and 
balance system of the process in place at the time. They also 
considered the proposal as placing too many constraints on the 
Council's ability to review agency findings. The Council's withdrawal 
from commenting on standard treatments under the section on the 
assessment of adverse effects was also of great concern to 
preservationists. On the issue of the Council's role in determining 
consistency of agency procedures, the few groups that commented found 
that the Council should make the determination.
Public Involvement
    The public's role in the process as proposed was of great concern 
to preservation organizations. They found the public participation 
provisions confusing, complicated, and circumscribed, leaving the 
public with no meaningful role in the 106 process. The proposal, 
according to preservation organizations, would increase litigation, 
last minute appeals and Council foreclosures.
NEPA Coordination
    Preservation organizations supported the concept of compliance 
coordination with NEPA, but found that the September 1996 draft did not 
go far enough to protect preservation interests.
Alternative Procedures
    Commenters were supportive of the concept of alternative 
procedures, but wanted provisions to explicitly ensure that the public 
participate in their development and implementation.
Time Frames
    Commenters strongly opposed the 15-day deadline for SHPO review of 
a ``no historic properties affected'' finding, as not giving SHPOs 
adequate time to conduct such review.
Other Issues
    Preservation organizations were opposed to the standard treatments 
as proposed in Sec. 800.5 of the September 1996 draft, finding that the 
public, tribes and Council would have little or no role in projects 
involving bridges or archeology. The Sec. 800.5 standard treatment for 
archeology, according to the commenters, would encourage agencies only 
to consider criterion D and, thus, to not properly consider other 
values.

G. General Public (14 Comments)

General
    There were no significant trends in the comments from the general 
public. Individuals raised particular concerns based on their own 
interests and experience. Several commenters noted that, overall, the 
regulations appeared to be too complex. Three commenters expressed 
concern that the regulations could affect their rights as private 
landowners.
Council Role
    A few commenters found that the removal of the Council from routine 
cases would create too much pressure and work for SHPOs.
Public Involvement
    Several comments found that the proposed public participation 
provision failed to provide sufficient opportunities for public 
involvement.
Alternate Procedures
    A few commenters expressed concern about the standard treatment for 
bridge replacements and archaeological sites as proposed in Sec. 800.5 
of the September 1996 version.

H. Experts/Consultants (33 Comments)

Council Role
    Most commenters found that the proposal did not provide enough 
opportunities for Council involvement in the process. Commenters 
expressed concern that the proposal did not set forth an adequate check 
and balance system, leaving SHPOs subject to political pressure. 
Several experts suggested that the regulations focus more on 
substantive outcomes and less on removing the Council from the process.
Public Involvement
    Experts and consultants found that the terms and procedures in the 
proposal were too complicated and vague and would, thus, discourage 
meaningful public involvement. Commenters found the delineation of 
participants too confusing. Overall, commenters noted that the proposal 
provided few opportunities for public participation and gave the 
Federal agencies to much control over public involvement.
NEPA Coordination
    Experts and consultants found the NEPA coordination section to be 
inadequate, since they believed it did not go far enough in allowing 
use of NEPA for 106 purposes.
Alternative Procedures
    Experts and consultants expressed concern about the standard 
treatment for archaeology as proposed in Sec. 800.5 of the September 
1996 version, finding it would encourage sites to be evaluated as 
significant only for the data they contain. A few commenters found the

[[Page 27049]]

proposed bridge replacement standard treatment problematic.

III. Summary of Native American Consultations

    As stated before, these regulations seek, among other things, to 
incorporate the 1992 amendments to the NHPA. Such amendments include 
important changes that significantly alter the role of Indian tribes in 
the 106 process. The Council members decided that before submitting a 
draft proposed regulation to the OMB for the mandatory review, 
additional input should be sought from Native Americans. The meetings 
focused on obtaining comments on the June 5, 1997 draft of the revised 
regulations (See Section I of the preamble, above). Each meeting of the 
four meetings was two days long. A total of eight days were spent 
discussing various aspects and concerns with tribal representatives.
    The tenor of each meeting varied but all of the meetings proved 
productive. The attendees in Seattle were few but, as a result, the 
discussion was detailed. At Leech Lake Reservation, where the land base 
is shared by both the Forest Service and the Leech Lake Tribe, 
discussion focused on land jurisdictions and authorities. The meeting 
in Albuquerque solicited highly constructive suggestion due to the 
participants' extensive Section 106 experience. The Washington, DC 
meeting had the greatest number of participants from tribes and legal 
firms representing tribes.
    The format of each meeting was consistent for all four meetings. 
The Executive Director briefed the group on the administrative 
structure of the Council, the existing steps of the regulation revision 
process and the proposed changes. The floor was then opened for 
discussion and recommendations. Some participants handed in written 
comments as well. The Native American/Native Hawaiian Council Member, 
Mr. Raynard Soon, attended the Seattle meeting and had the opportunity 
to convey his interest and listen to other Native American concerns.
    This summary is presented in three sections of primary concerns 
that were stated at every meeting. The primary issues clearly became 
the focus points of the discussions as almost every participant 
reiterated in similar form the same concerns. They are presented in the 
following manner: (1) General overall comments and observations, (2) 
comments on sections pertaining to the Section 106 process on tribal 
lands, and (3) comments pertaining to the section 106 process off 
tribal lands.
General Comments
    General observations in all of the meetings included the concern 
that the Council did not give the Native Americans adequate time to 
consult with them on the proposed regulations. The time constraint of 
potential adoption of the revised regulations at the October, 1997, 
Council meeting, before submission to OMB for review, was consistently 
questioned by many participants. The overriding sentiment was that the 
time frame was not adequate. Many tribal representatives explained that 
they had to take the information back to their Tribal Councils to 
receive directions and comments.
    The proposed June 5, 1997 draft of the regulations was perceived by 
tribes as being heavily weighted toward the SHPO interest. Requests 
were made to take the state-oriented bias out of the draft. At every 
meeting, suggestions were made to change the ``SHPO'' citation to 
``SHPO/THPO'' (Tribal Historic Preservation Office) or simply HPO 
(Historic Preservation Officer). There was consistency in the 
recommendation that even if tribes have not assumed SHPO duties, as 
delegated by the National Park Service (NPS) in accord with section 
101(d)(2) of the NHPA, that the tribe or Native Hawaiian Organization 
should still be consulted if places of religious and cultural 
significance would be affected by a federal undertaking.
    It became apparent that the word ``consultation'' is interpreted 
differently by Indians and non-Indians. In general, American Indian 
participants believed that the word implies a ``give-and-take'' 
dialogue, not just listening or recording their concerns. From the 
tribal perspective, consultation is more closely aligned with the 
process of negotiation. The tribes described that consultation means 
working toward a consensus. For non-Indians, consultation has another 
meaning: if the tribe had been contacted, attended the meetings, and 
had the opportunity to discuss its views with the agency, then the 
tribes had been consulted regardless of the outcome. For the majority 
of the American Indian participants, this kind of exchange did not 
represent adequate or effective consultation.
    Where the proposed regulatory process addressed the requirements of 
Federal involvement regarding the places of religious and cultural 
significance to Native Americans, participants were adamant that they 
be involved in the process of decision making for an acceptable 
outcome. Requests were repeated to insert clear procedures within the 
regulations regarding `'adequate consultation.'' The stated preference 
of the American Indian participants was a clear definition in the 
regulations so that all parties in the section 106 process would 
perform what the tribes saw as adequate consultation.
On-Tribal Lands
    The issues consistently raised for tribal lands reflected the 
underlying issue of a tribal nation's sovereignty. The primary concern 
was the ability of a SHPO to make or agree to a decision by a federal 
agency on tribal lands when there was no THPO. Tribal representatives 
explained why this was a problem for tribal governments and why the 
regulatory process under the June, 1997, draft regulations that enabled 
a State to have overriding decision-making authority on tribal lands, 
questioned their sovereign status. By delegating the authority vested 
in the Council by the NHPA for commenting on Determinations of No 
Adverse Effect and Adverse Effect, the proposed regulations effectively 
shifted the authority from a federal agency (the Council) to a State on 
tribal lands when there was no THPO. This shift of delegation from 
Federal to State clearly presented legal jurisdiction issues from the 
tribes' perspectives. Participants in the meetings maintained that, 
regardless of whether the tribe had formally assumed SHPO duties, the 
State did not have the jurisdictional authority to have final oversight 
for a federal undertaking on tribal lands.
Off-Tribal Lands
    There are several issues that were raised in each meeting for those 
Federal undertakings that would affect religious and culturally 
significant places located off tribal lands. Much of the time was spent 
discussing American Indian involvement in the process on ancestral 
lands, ceded lands, fee lands and other types of land titles. A 
consensus of tribal representatives maintained that sovereignty, treaty 
rights, trust responsibility and government-to-government status 
entitled the tribes to a role in the process that was greater than the 
other ``consulting parties'' or general public as defined in the draft 
proposal.
    The discussion surrounding the identification, evaluation 
determination of effect and potential mitigation proposals for 
properties to which the tribes attach religious and cultural 
significance resulted in recommendations that tribes should be involved 
early in the process and required signatories to a Memorandum

[[Page 27050]]

of Agreement, or at least have the ability to concur or object to the 
part of a project or plan that will affect an area of tribal or Native 
American interest.

IV. Summary of Comments Received Regarding the Six Issues Specially 
Raised in the September 1996 Notice of Proposed Rulemaking

    On the preamble of the proposed regulations published for public 
comment on the Federal Register on September 1996, the Council 
presented six issues that it believed, based on comments received, 
deserved special attention from the commenters. What follows is a 
discussion of the commenters' response to these six issues and the 
Council's general reaction to them. For a discussion on the Council's 
response to comments, please refer to Section V of the preamble.
    Finally, please note that these issues are stated in the same 
language as presented in the published preamble to the September 1996 
draft.
1. Public Participation
    The goal of the regulatory requirement that Federal agencies 
inform and involve the public in the section 106 process is to 
ensure that the public has a reasonable opportunity to provide its 
views on a project. The Council has attempted to give the public an 
adequate chance to voice its concerns to Federal decisionmakers 
while recognizing legitimate concerns about avoiding unnecessary 
procedural burdens and delays and protecting the privacy of non-
governmental parties involved in the section 106 process. How can 
the regulations be enhanced to provide for meaningful public 
involvement in a timely and effective fashion?

    Summary of comments: Federal agencies were still concerned about 
the role of the public in the process. Agencies believed that the roles 
and responsibilities of various participants were unclear. They still 
found that the public could delay a project by using the 106 process. 
Most SHPOs supported the public participation provision, although some 
still found the role of the public as set forth on the September 1996 
draft to be unclear. Several SHPOs found the public appeals provision 
too restrictive. Local governments found the public participation 
provisions excessive and duplicative of NEPA, noting that the public 
involvement requirements would discourage local governments from 
seeking Federal monies for projects. Tribes found the public appeals 
provisions to be too restrictive. In addition, they wanted the 
regulations to clarify that agencies must consult with the general 
populace of tribes as members of the public. The role of the public was 
a major concern of the industry. Their comments viewed the public 
participation provisions as unclear and excessive. They wanted to 
further limit the public's right to appeal agency decisions. Many 
specific comments were received from all categories of commenters that 
were critical of the clarity and timing of public participation 
provisions.
    Council general reaction: The public participation provisions 
needed a thorough overhaul with the objective of making them clearer, 
achieving earlier effective public involvement and providing better 
public access to the Council when it was not involved in a case. The 
Council thought that the provisions should be redrafted to achieve 
these goals, while honoring the Council's original policy of 
encouraging the use of agency public participation procedures, reducing 
duplication of effort and having clear points of involvement and points 
of closure for the Section 106 process. The Council believed that the 
question of public participation could be effectively addressed by 
careful examination of the provisions, following the preceding 
principles, rather than adopting some significant departure from the 
Council's original objectives in this area.
2. Local Governments
    Several agencies see an enhanced role for certified local 
governments in the section 106 process and find that the regulations 
do not go far enough in providing for their involvement. The 
definition of ``Head of the agency'' provides that the head of a 
local government shall be considered the head of the agency where it 
has been delegated responsibility for section 106 compliance. How 
can we better incorporate local governments into the process without 
confusing the regulations?

    Summary of comments: Federal agencies were not concerned with this 
issue overall, but those that commented found the local government role 
appropriate as proposed. HUD wanted the regulations to set forth an 
enhanced role for local governments. Some SHPOs felt that Certified 
Local Governments (CLGs) should be given recognition in the procedures, 
although others found the role appropriate as set forth in the proposed 
regulations. Some SHPOs noted that increased CLG involvement would 
bring a lack of consistency to the regulations, others noted CLGs may 
not be equipped to handle compliance. Local governments did not 
question their role in the process as set forth in the regulations, 
although they expressed general concern about SHPOs having too much 
power in the process. Tribes were not concerned about this issue. 
Industry was for the most part not concerned about this issue, although 
those that did comment found the level of local government involvement 
appropriate as drafted.
    Council general reaction: Based on these comments, the Council 
believed that no major changes should be made in the role of local 
government. We suggested continuing to work with HUD to determine if 
there are specific amendments that could be made to advance their 
interest in enhancing the role of local governments while remaining 
consistent with overall direction of the regulations and avoiding 
further complicating the regulations. It is intended to pursue this in 
the development of local government program alternatives (Sec. 800.15), 
which as been reserved for future issuance.
3. Council Involvement
    In this proposal, the Council has removed itself from review of 
no adverse effect determinations and routine Memoranda of Agreement 
with the intent of deferring to agency-SHPO decisionmaking as a 
general rule. At the same time, as the Federal agency assigned to 
review the policies and programs of Federal agencies on historic 
preservation matters, the Council has retained the right to enter 
the consultative process on its own motion or when requested by the 
Agency Official. The regulations set forth in 800.6 several criteria 
which indicate when an Agency Official must invite the Council to 
become involved in the consultation. They also set a general 
standard for when the Council will enter the process without a 
request. The Council intends on exercising its right to enter the 
process sparingly. Are the criteria set forth in Sec. 800.6(a)(1)(i) 
workable? Can the regulations better define when the Council will 
intervene on its own initiative?

    Summary of comments: Federal agencies like the general approach of 
deference to agency-SHPO decisionmaking, although some found that the 
Council did not go far enough in removing itself from the process or 
did not see the value in filing MOAs with the Council. Most agencies 
recognized the Council's right to intervene in a case on its own 
initiative, although some opposed this provision. SHPOs were satisfied 
overall with the Council's role in the process, although many SHPOs 
noted that they should have the right to go directly to the Council to 
seek Council intervention in a case. Local governments were concerned 
that the level of Council involvement may be too low and believed the 
SHPO would gain too much control under this proposal. Tribes were 
greatly concerned about the Council's removal from routine case review 
and found that the September 1996 draft failed to achieve a balance of 
power in the section 106 process.

[[Page 27051]]

Industry suggested the direction of removal of the Council from routine 
cases, but still found the Council had too must authority in the 
process to intervene and second-guess agency decisions. Preservation 
consultants expressed concern over possible abuses by agencies and 
SHPOs without adequate checks and balances.
    Council general reaction: This was a critical point of the 
regulations and one that raised a lot of concern from a variety of 
sources. We believed that the basic principle of deferring to Federal 
agency-SHPO decisions was valid, but that the draft needed to better 
define when and how the Council would get involved. The Council did not 
believe in a policy change, but rather a refinement of the published 
provisions to clarify the Council's role and how parties invoked our 
involvement, responding to the specific comments. In particular, the 
involvement of the Council when undertakings affected Indian tribes and 
their interests needed to be expanded, as did the SHPO's right to 
directly request Council involvement. Changes made to address this 
issue had to be closely coordinated with those dealing with Council 
review of agency findings.
4. Council Review of Agency Findings
    Section 800.9 provides for Council review of agency findings 
where the Council has not participated in the consultative process 
pursuant to Sec. 800.6. The Council's right to review agency 
findings is limited to whether the agency followed the appropriate 
procedures when making an eligibility determination under 
Sec. 800.4(c)(2), a no historic properties present or affected 
finding under Sec. 800.4(d), or a no adverse effect finding or 
resolution by standard treatment under Sec. 800.5(c). The right to 
review is also limited by the requirement that the request be made 
prior to the agency approval of the expenditure of funds or the 
issuance of a license, permit or other approval. The Council has 10 
days to decide if the request warrants Council review and 30 days to 
decide the merits of the case. The Council finds that the above 
review process strikes a balance between allowing review of 
procedurally deficient agency decisions and limiting review to 
situations that could not have been corrected earlier in the 
process. Some Federal agencies find that the review process in 
Sec. 800.9 provides the Council too much authority to second guess 
agency decisions and promotes a lack of finality to the process. How 
can the regulations accommodate the Council's concerns and those of 
other Federal agencies?

    Summary of comments: Federal Agencies were divided in commenting on 
the appeals provision in the proposal. Some found that the September 
1996 draft provisions were too open-ended and allowed the Council to 
enter the process after decisions had been made. Others liked the 
appeal procedures. SHPOS found the appeals provision satisfactory with 
respect to the Council's role. Local governments did not express 
concern over the Council's role in appeals over agency decisions. 
Tribes found the appeals provision too restrictive in general. Industry 
still was dissatisfied with the appeals section, finding it would 
create delays and allow review of agency decisions too late in a 
project's development. Industry maintained that the Council was 
overstepping its authority in this section by reviewing agency 
decisions. Comments from individuals and preservation organizations 
expressed concern that the appeals provisions were too restrictive and 
needed to be expanded.
    Council general reaction: The Council believed that ready access to 
the Council was an essential counterbalance to the removal of the 
Council from routine case involvement. This access must be effective 
for a broad range of parties in the Section 106 process while 
maintaining a system that has definite points of closure for agencies 
and applicants. The September 1996 draft formulation was too 
restrictive and the regulation should be revised to provide a wider 
range of parties with more time to bring issues to the Council. 
However, this process must continue to have effective protections 
against groundless claims and potential for process abuse.
5. Time Frames
    Throughout the regulations, time frames are set for reviews 
conducted by SHPOs and the Council. Generally, they allow thirty 
days for responding to agency requests, although some are shorter. 
These have been established in an effort to balance the need for an 
expeditious process for Federal agencies and applicants with the 
recognition of the need for adequate time to evaluate submissions 
(as well as the limits on resources available in SHPO offices and at 
the Council to respond within the specified time). Do the time 
frames achieve this balance or should specific ones be increased or 
decreased?

    Summary of comments: All groups of commenters noted that vague 
references to ``timely'' or ``before'' should be replaced with specific 
time frames. Federal agencies suggested adding time frames for each 
step in the process. SHPOs overwhelmingly expressed concern about the 
15-day deadline for a ``no historic properties affected'' 
determination, finding the period of time too short. SHPOs also noted 
that the different time periods listed in the September 1996 draft 
would foster confusion. Local governments stated that the overall 
process was too time consuming. Tribes did not express concern about 
the issue. Industry is most concerned about time frames, finding the 
different time frames too confusing. They find the 45 days for Council 
comment, 30 days for review of an EA and 15 days for SHPO review of a 
``no historic properties affected'' finding to be too long. Overall, 
they found the process could be tightened up and made more predictable 
by adding more time frames. Preservation organizations expressed 
concern about time frames being too short, particularly the 15-day 
provision.
    Council general reaction: The concern for the 15-day limit on SHPO 
responses was valid and that to fail to address it would pace an 
unreasonable burden on SHPOs. It was decided that the entire assemblage 
of specified time frames should be carefully examined for clarity, 
specificity and consistency. The 15-day limit in question was changed 
to 30 days, which is the general standard for review in the entire 
regulation.
6. Alternate Procedures
    The proposed regulations allow Federal agencies to substitute 
their own procedures for those contained in subpart B. Section 
110(a)(2)(E) of the Act requires that procedures implementing 
section 106, including these substitute procedures, be consistent 
with the Council's regulations. The proposed regulations charge the 
Secretary [of the Interior] with making final determinations on 
consistency. This is based on the Secretary's primary responsibility 
for implementing section 110. Alternatively, the Council, as the 
agency charged to section 211 of the Act with issuing the 
regulations to guide the implementation of section 106, could make 
such a determination. A third option is allowing the Federal agency 
itself to make a determination of consistency. Is the proposed 
approach the best solution?

    Summary of comments: Almost all Federal agencies found that they 
should make the determination on consistency of agency procedures with 
section 106. All SHPOs found that the Council should make the 
determination as to consistency and viewed the Secretary of Interior's 
role as final arbiter to be inappropriate. Local governments did not 
express concern on this issue. Tribes view the Council as a protector 
of their interests and view the Council as a check against agency 
decisionmaking. Industry overwhelmingly finds that the Federal agency 
should determine consistency of agency procedures. Preservation 
organizations were generally silent on this point.
    Council general reaction: The Council believed that the proper 
entity to determine consistency was the Council membership and changed 
the regulation accordingly. Among other things, the Council has the 
statutory responsibility

[[Page 27052]]

to oversee the section 106 process, the internal experience and 
expertise to make such evaluations, and the diversity of membership to 
ensure that a balanced perspective is brought to final determinations 
regarding consistency.

V. Response to Comments

    This section of the preamble relates, section by section, how the 
Council responded to comments from the public regarding these 
regulations.

Section 800.1

    There were few comments on Sec. 800.1. One comment stated that the 
goal of consultation was inappropriately described in the September 
1996 notice of proposed rulemaking draft (``September 1996 draft'') as 
avoiding or minimizing adverse effect on historic properties. The 
comment found this language to be inconsistent with the procedural 
nature of section 106 of the NHPA. The Council agreed and therefore 
modified the Sec. 800.1(a) of the regulation in response to this 
comment by adding that the goal is to ``seek ways to avoid, minimize or 
mitigate any adverse effects on historic properties.''
    Another comment expressed concern about the reference in the 
September 1996 draft to other guidelines, policies and procedures 
issued by other agencies. The Council and the OMB were acutely aware of 
such concerns and carefully crafted the language in Sec. 800.1(b) to 
make it clear that such references in these regulations do not 
implement those policies, procedures or guidelines as regulations.
    Section 800.1(c) of the September 1996 draft explained the 
different methods of complying with these regulations. One comment 
found that, rather than showing the flexibility of the regulations, 
this subsection gave the impression that the regulations were 
inflexible. The Council decided to delete this subsection as redundant, 
unnecessary, and confusing.
    The ``Timing'' section of the September 1996 draft is now in 
Sec. 800.1(c). One comment noted that while this section allows 
nondestructive project planning activities before completing compliance 
with section 106, it would be nonsensical to include the proviso that 
such actions cannot restrict subsequent consideration of alternatives 
to avoid, minimize or mitigate adverse effects. The Council, however, 
decided that this provision should remain since the Council believes 
that the section 106 process should not be circumvented by the early 
foreclosure of mitigating options.
    Several other comments noted that including field investigations as 
nondestructive planning activities could open the door to actions that 
could actually alter the character of historic properties, thereby 
circumscribing the 106 process. The Council deleted the reference to 
field investigations in the final regulation. The Council believes that 
such investigations could sometimes, depending on the particular 
project, constitute non-destructive planning. However, for the reasons 
stated above, the Council believed that the blanket statement in the 
September 1996 draft should be deleted.
    Another comment suggested that a Federal agency notify the SHPO if 
phased compliance is anticipated. However, the Council believed this 
could only be a marginally beneficial practice, and did not want to 
further lengthen the process by adding another notification requirement 
to its regulations.

Section 800.2

    The September 1996 draft created various categories of participants 
in the Section 106 process: Principal parties, consulting parties, 
affected parties, the public and the interested public. Many comments 
stated that the proposed ``classes'' of parties were confusing and 
inappropriate, and that they unfairly designated status to certain 
parties while excluding others. In response to these comments, the 
final regulation eliminates these categories of parties. Instead, the 
final regulation creates one group of parties, known as ``consulting 
parties'' which includes the SHPO/THPO, certain Indian tribes and 
Native Hawaiian organizations, local governments, applicants, and 
additional consulting parties with a demonstrated legal or economic 
relationship to the undertaking or affected properties, or concern with 
the undertaking's effects on historic properties. The rights and 
responsibilities of the Federal agency, the Council and the public are 
identified separately throughout the regulation and are not placed in a 
group or category. The Council believes this eliminates confusion and 
clarifies the roles of the different parties.
    Section 800.2(a)(2) of the final regulation sets forth the concept 
of a lead Federal agency. One comment stated that Federal agencies 
should be required to select a lead agency where multiple Federal 
agencies are involved in a project. The Council rejected this 
suggestion as it deemed it appropriate for Federal agencies to maintain 
sole discretion in deciding whether to select a lead agency to 
represent multiple agencies throughout the section 106 process. The 
Council believes Federal agencies are in a better position to determine 
whether selecting a lead agency would facilitate the 106 process on a 
particular undertaking.
    Section 800.2(a)(4) was added to respond to concerns raised about 
the nature of consultation in the section 106 process. It incorporates 
provisions taken from other sections of the regulations.
    Responding to concerns that there were no limitations in the 
Council's decision to enter the 106 process, with the possibility of 
added delays, the Council added Sec. 800.2(b)(1) defining the 
circumstances under which it would enter the Section 106 process. 
Specific criteria guiding Council decisions to enter are found in a new 
Appendix A.
    Section 800.2(c)(6) provides for ``additional consulting parties'' 
to be added to the consultation process. Some comments sought more 
detail in the regulation on the nature and extent of such parties' role 
in the process and how such parties are designated as consulting 
parties. The Council decided to provide such information in guidance 
material rather than in the regulation. The Council also points out 
that Sec. 800.3(f) provides some detail on how additional consulting 
parties may be added.
    Other comments expressed concern, believing that consulting party 
status should be given only to those individuals or entities with a 
``real'' interest in the undertaking. Among other things, the concern 
was that, without somehow limiting this group of participants, the 106 
process would be severely slowed down, increasing the economic and time 
costs of compliance without adequate justification. The Council 
responded to this concern by adding language stating that those with a 
``demonstrated interest in the undertaking may participate * * * due to 
the nature of their legal or economic relation to the undertaking or 
affected properties, or their concern with the undertaking's effects on 
historic properties.'' The involvement of private property owners is 
contemplated by this language. In response to several comments, the 
Council deleted the language in the September 1996 draft which allowed 
Agency Officials to limit participation of owners of real property to 
organizations representing such owners. The Council agreed that the 
limitation could unfairly restrain property owner participation by 
virtually requiring they organize before being allowed to participate 
in the 106 process.

[[Page 27053]]

Section 800.3

    This section changed minimally from the September 1996 draft. The 
Council simplified the language in subsection (a). One comment noted 
that the regulation provided no guidance as to how a Federal agency 
determines if an undertaking ``has the potential to affect historic 
properties.'' The comment acknowledged that the existing regulations 
also did not provide specific criteria for such a determination. The 
Council decided that due to the broad differences among undertakings 
which would make such guidance too lengthy, this issue will be more 
appropriately addressed in supplementary guidance material to Federal 
agencies.
    With regard to subsection (b), several comments stated that the 
Council exceeded its authority by requiring coordination of the section 
106 process with reviews under other authorities. The Council maintains 
that coordination with other environmental reviews is extremely 
beneficial in achieving the best outcome under section 106. In response 
to comments questioning the Council's authority to mandate 
coordination, however, the Council made such coordination 
discretionary.
    Subsection (c) in the September 1996 draft was moved to subsection 
(e) of the final rule. It was also amended to remove superfluous 
language in response to comments. It now requires the Agency Official 
to consult with the SHPO/THPO in planning for public involvement, in 
recognition of the inherent, specialized knowledge that such local 
entities possess regarding local parties which could have an interest 
on historic properties.
    Subsection (c) of the final rule pertains to identification of the 
appropriate SHPO/THPO. It also includes general rules regarding 
consultation with the SHPO/THPO. The substance of this subsection was 
formally contained in subsection (d) of the September 1996 draft, 
although it has been amended to respond to comments. During the 
consultation meetings with Indian tribes, and as reflected in Indian 
tribe written comments, tribes expressed the concern that the role of 
tribal historic preservation officers who had assumed the role of state 
historic preservation officers under section 101 (d) (2) of the NHPA 
was not adequately addressed in the regulations. Because THPOs that 
have formally assumed SHPO duties on tribal lands act in lieu of SHPOs, 
many tribal comments suggested referencing ``SHPO/THPO.'' By using this 
reference, Federal agencies will be reminded that they must not only 
determine if their actions are on or will affect historic properties on 
tribal land, but they also must determine whether or not the tribe's 
THPO has formally assumed the role of SHPO. This change is a 
clarification of the language in Sec. 800.12(B) of the September 1996 
draft which set forth the rights of Indian tribes when undertakings are 
on tribal lands. That subsection addressed what would happen if an 
Indian tribe did not formally assume the responsibilities of the SHPO, 
but did not explain the role of the THPO vis-a-vis the SHPO where 
formal assumption did occur under 101(d)(2) of the NHPA.
    With regard to the role of the THPO that has formally assumed the 
SHPO's role on tribal land, and responding to concerns that certain 
rights of property owners given by the NHPA could be overlooked or 
disregarded, the Council added a reference to the statutory language in 
section 101(d)(2)(D)(iii) of the NHPA, which authorizes certain 
property owners on tribal lands to request SHPO participation.
    The September 1996 draft included in its subsection (d)(1), 
language directing Federal agencies to consult with the Council ``if 
the State Historic Preservation Officer declines in writing to 
participate in the Section 106 process * * *.'' This language was 
deleted from the final rule in response to comments made, particularly 
during the OMB inter-agency review, that such language in the 
regulation appeared to condone SHPO refusal to participate in the 106 
process as long as it was done in writing. Language referring to SHPO 
failure to respond was retained, but amended in response to comments. 
Many comments disapproved of the language ``in a timely manner,'' as 
vague and confusing. The Council intended this language to refer back 
to the periods of time specified in the regulation for SHPO response. 
However, to avoid confusion and to also respond to other comments 
requesting definite time periods, the Council deleted the language and 
specified a 30 day response time. Additionally, in response to Federal 
agency comments asking for certainty and finality to the process, the 
Council included language on the regulation stating that the Federal 
agency could either proceed to the next step in the process or consult 
with the Council if the SHPO fails to respond. In response to SHPO 
concerns of being permanently left out of the rest of the 106, process, 
the Council allowed for SHPO re-entry into the process. However, in 
response to concerns about the need to cut down on delays and providing 
for timing certainty in the process, the final regulations do not 
provide for reconsideration of previous findings or determinations that 
the SHPO failed to review.
    Subsection (d) of the final rule contains language similar to that 
of Sec. 800.12(b) of the September 1996 draft. However, the intent of 
the language has been clarified in response to tribal comments that the 
Council must make it clear that the Indian tribe's consent is necessary 
when on tribal lands, whether or not the THPO has formally assumed the 
SHPO's responsibilities.
    Subsections (e) and (f) of the final rule contain similar language 
to that of subsection (c) and (e) in the September 1996 draft. In 
response to various comments that asked for clarity regarding 
participation and showed concern that participants could be left out of 
the process, the Council made it clear, under Secs. 800.2(c)(5) and 
800.3(f)(1), that applicants must be invited to be consulting parties.
    The September 1996 draft stated that Agency Officials ``shall 
identify'' Indian tribes or Native Hawaiian organizations that might 
attach religious and cultural significance to historic properties in 
the area of potential effects. The language was changed so that Agency 
Officials ``shall make a reasonable and good faith effort'' to identify 
such tribes. This change was strongly requested by Federal agencies 
during the OMB review process, on the basis that there would be an 
inherent, extreme difficulty in identifying all such tribes when there 
is no clear guidance or list showing such tribes for each property in 
the entire United States that could be affected by an undertaking. 
After discussions with OMB, the Council acceded to the change, 
believing it strikes an adequate balance, consistent with the statute, 
between the need to consult such tribes and the practical concerns of 
identifying them. The Council, however, notes its understanding that a 
Federal agency is not making ``a reasonable and good faith effort'' to 
identify Indian tribes under this subsection if it possesses knowledge, 
through communication from Indian tribes or otherwise, that a 
particular Indian tribe attaches religious and cultural significance to 
a property to be affected by an undertaking, but still fails to 
identify such tribe in the 106 process. Such a lack of a reasonable and 
good faith effort would be contrary to the requirements of the NHPA.
    Subsection (g) of the final rule contains language that was 
formally in subsection (d)(3). It was moved as a separate subsection to 
highlight the opportunity for expediting consultation. Language was 
added to clarify when

[[Page 27054]]

multiple steps in the process could be condensed, further streamlining 
the 106 process.

Section 800.4

    The substance of Sec. 800.4(a) changed minimally from the September 
1996 draft. The first sentence in subsection (a) was deleted as it was 
determined to be redundant with the coordination subsection in 
Sec. 800.3. The Federal agency responsibilities during the scoping of 
identification efforts also remained largely unchanged, except that 
reference to the documentation requirement for area of potential 
effects was added here. The duty to document the area of potential 
effects was listed in Sec. 800.12 in the September 1996 draft and was 
added in Sec. 800.3 to emphasize the significance of this step. The 
Council plans to provide further guidance on development of the area of 
potential effect to address comments seeking assistance in defining the 
area of potential effect. Some comments questioned the duty to consult 
with the SHPO/THPO during the determination of the area of potential 
effect. Consultation with the SHPO/THPO at this critical decision 
making point has always been viewed as an important part of the 
process. The Council decided to retain the duty to consult with the 
SHPO/THPO since the Council believes that SHPO/THPOs have special 
expertise as to the historic areas in their jurisdiction and the 
idiosyncracies of such areas, and can greatly assist the Agency 
Official, using such expertise, in determining an accurate area of 
potential effects. Nevertheless, it is noted that the Federal agency is 
ultimately responsible for making the final determination about the 
area of potential effect (i.e., the concurrence of the SHPO/THPO in 
such determination is not required).
    One comment noted that, under the existing regulations, the public 
was not involved early in the identification efforts. Section 
800.4(a)(3) requires that Federal agencies seek information from 
individuals or organizations likely to have knowledge of or concerns 
with historic properties in the area. This is an avenue for early 
public involvement.
    Subsection (b) sets the standards for a Federal agency's 
identification of historic properties. This subsection was modified 
minimally to address several comments. In response to tribal concerns, 
the requirement to consult with Indian tribes and Native Hawaiian 
organizations that attach religious and cultural significance to 
properties was moved to this part of the regulations. The substantive 
requirement had been set forth under Sec. 800.12(c)(1) of the September 
1996 draft. In response to tribal concerns regarding the need for 
adequate safeguards for sensitive information, the Council added a 
sentence requiring Federal agencies to consider ``confidentiality 
concerns'' of Indian tribes and Native Hawaiian organizations.
    The final rule also tied the ``reasonable and good faith effort'' 
standard to examples listed in subsection (b)(1). Council guidance will 
be developed to elaborate on the use of the various methods of 
identification depending on the facts of each undertaking to respond to 
those comments seeking clarification. One comment noted that the 
regulations should provide a mechanism for disputes over what 
constitutes a ``reasonable and good faith effort.'' Section 800.2(b)(2) 
of the final rule sets forth that the Council can provide advice and 
assistance in resolution of disputes during the process.
    The concept of ``phased identification'' was well received in the 
comments. The final rule, under Sec. 800.4(b)(2), clarifies the 
applicability of phased identification. It also expands the notion of 
phasing to the evaluation step in the process, as suggested by several 
comments.
    Section 800.4(b)(3) of the September 1996 draft, regarding the use 
of contractors by Agency Officials, was moved to Sec. 800.2(a)(3) of 
the final rule.
    With regard to the evaluation of historic properties, one comment 
stated the importance of allowing consensus determinations on 
eligibility whereby Federal agencies assume eligibility for the 
National Register without conducting a full evaluation, thus expediting 
the section 106 process. The Council provided for consensus 
determinations in subsection (c)(2) of the final rule and in the 
September 1996 draft in (c)(2).
    In response to tribal comments about the importance of 
Sec. 800.12(c)(1) of the September 1996 draft regarding determinations 
of eligibility, the Council incorporated language from that section 
into Sec. 800.4(c)(2) of the final rule. In response to strong tribal 
concerns about the treatment of properties to which they attach 
religious and cultural significance and concerns that they would not be 
properly evaluated by those that do not attach such significance to the 
properties, the Council amended the regulatory language to provide an 
avenue for tribes that disagree with eligibility determinations 
regarding such properties to ask the Council to request the Federal 
agency to obtain a determination of eligibility.
    Many SHPO comments strongly expressed concern about the 15-day 
review period in subsection (d) of the September 1996 draft, finding it 
too short for an adequate review of a determination of ``no historic 
properties affected.'' In light of the sometimes limited resources and 
workloads of the SHPOs and the fact that the complexity of some 
determinations require more time for an adequate review, the Council 
agreed and extended the time for SHPO response to 30 days. The Council 
believes that the need for proper evaluation of this determination and 
the danger that an improper evaluation could result in damage to 
historic properties outweighs the interests of expediting the process 
by 15 days.

Section 800.5

    Subsection (a)(1) changed only in that it incorporated the duty to 
consult with Indian tribes and Native Hawaiian organizations, that was 
found in Sec. 800.12(c)(1) of the September 1996 draft. Other minor 
wording changes were made in response to comments to clarify that there 
is no new notice and comment requirement at this step. Thus, the words 
``which have been'' were added to the last sentence. References to the 
term ``interested public'' were deleted, as such a category of 
participants was dropped, as described above.
    With regard to subsection (a)(1), some comments took issue with the 
last sentence which contains the concept of indirect effects as not 
being included in the regulations to be superseded. The Council has 
always considered that ``effect'' as contained in the statutory 
language of Section 106 includes both direct and indirect effects. 
Therefore, it specified that in regulatory language, thereby retaining 
the requirement that indirect effects be considered by Federal agencies 
during section 106 process, as it similarly is during the NEPA process.
    The wording of some of the examples of adverse effects in 
subsection (a)(2) was modified from the September 1996 draft to clarify 
the intent and application in response to comments.
    Subsection (a)(3) was eliminated in the final rule, but the concept 
of avoidance as justifying a no adverse effect determination is 
incorporated into subsection (b). The subsection (a)(3) of the final 
rule expands upon the phasing of identification and evaluation efforts 
to include phasing of the application of adverse effect criteria under 
certain circumstances. Comments observed that such flexibility at this 
step in the process was essential if a Federal agency opted for phasing 
at the earlier identification and evaluation stages.

[[Page 27055]]

    Subsection (a)(4), the standard treatment provision, in the 
September 1996 draft was completely removed from this section in the 
regulation. The standard treatment option is still contained generally 
in Sec. 800.14(d) of the final rule. The Council removed the Standard 
Treatments on subsection (a)(4) because it believes that all such 
treatments should be arrived at through specific consultation about 
them, as provided under the final rule's Sec. 800.14(d). This does not 
change their availability as a streamlining device under the 
regulations.
    With regard to review of ``no adverse effect'' determinations, the 
final rule was amended to acknowledge that, although the Council will 
not review ``no adverse effect'' determinations as a routine matter, 
there may be certain circumstances where the Council will intervene and 
review the finding, even where there is SHPO/THPO agreement with the 
Federal agency. This would likely happen when a consulting party 
disagrees with the Agency Official's determination or when the Council, 
guided by the criteria in appendix A, decides that it should review the 
determination. Subsection (c)(1) of the final rule acknowledges this by 
adding the language ``Unless the Council is reviewing the finding 
pursuant to Sec. 800.5(c)(3) * * *.'' This was added in response to 
comments made by Indian tribes and preservation organizations that 
articulated the importance of the Council retaining its authority to 
overturn no adverse effect determinations.
    Subsection (c)(2) of the final rule also amended the language, 
formerly in subsection (b)(2), that provided for disagreements between 
the SHPO and the Federal agency. The Council deleted the language 
requiring Federal agencies to ``consider the effect adverse'' if the 
SHPO/THPO disagreed with a no adverse effect finding. In the last 
sentence of (c)(2), the Council also changed the word ``may'' in the 
September 1996 draft to ``shall'' in the final rule, in response to 
several comments. Federal agency comments and others suggested giving 
the Federal agency the option of going back to the SHPO/THPO to resolve 
the disagreement or requesting Council review. Most Federal agencies, 
however, did not want the Council's position to be binding on the 
Federal agency, but merely advisory. The Council considered this 
concern, but rejected it as the Council maintains it has the right to 
interpret the correct application of its regulations. If an agency 
incorrectly applied the criteria of adverse effect, the Council viewed 
this as a misapplication of its procedures. In response to comments 
which found it problematic that there was no time limit for Council 
review of no adverse effect determinations, the Council set a 15 day 
review period for such reviews in subsection (c)(3) and added language 
stating that the Agency Official could assume Council concurrence with 
the finding if the Council had not responded within that time frame.
    Subsection (d) of Sec. 800.5 of the final rule contains the 
language that was formerly in subsection (c) of the September 1996 
draft. The first sentence of (d)(1) has been modified to remove 
notification requirements, but to make information available upon 
request. The notification requirement was moved to subsection (c) of 
the final rule. This was done in response to comments about the 
importance of early involvement of consulting parties.

Section 800.6

    Subsection (a)(1) was modified to clarify that whenever an adverse 
effect determination was made, the Council was to receive notification, 
whether or not its participation was being requested. Several comments 
noted that this was not clear in the language of the September 1996 
draft. The criteria for requesting Council involvement was also 
modified by moving (a)(1)(i)(D) to (a)(1)(ii) so that the parties 
listed in the provision could directly request Council involvement 
rather than going through the Federal agency. This was suggested by 
several comments as a more efficient, streamlined method to request 
Council intervention. The Council deleted the reference to its right to 
enter the process on its own initiative as was mentioned in the 
September 1996 draft at subsection (a)(1)(ii). Nevertheless, the 
Council maintains that right in the final rule pursuant to 
Sec. 800.2(b)(1) and the Criteria in Appendix A.
    Subsection (a)(2) of the final rule sets forth the duty to involve 
and invite, as appropriate, other individuals or entities to be 
consulting parties. This subsection changed minimally from the 
September 1996 draft, except that the sentence allowing the Council to 
serve as arbiter of disputes over consulting party status was removed 
in response to negative comments from Federal agencies that believed 
such Council involvement was inconsistent with its authority.
    Subsection (a)(3) of the final rule was amended by adding the 
proviso that disclosure of information was subject to the 
confidentiality provision in the regulation. This was added in response 
to Federal agency concerns about disclosure of proprietary information 
regarding private property owners and archeological sites, as well as 
Indian tribe concerns about disclosure of sensitive information 
regarding properties of traditional religious and cultural importance.
    Subsection (a)(4) of the final rule was also amended by adding 
language on confidentiality for the reasons stated above.
    Language was also added, in response to Federal agency comments, to 
elaborate on the factors that Federal agencies should consider when 
determining the appropriate way to involve members of the public. 
Additionally, in response to Federal agency comments concerned with 
duplicate efforts, particularly during the inter-agency review, the 
Council added a new sentence to acknowledge that earlier public 
involvement conducted by Federal agencies may, in certain circumstances 
affect the level of public notice and involvement at the resolution of 
adverse effect stage. For example, if all relevant information is 
provided at earlier stages in the process in such a way that a wide 
audience is reached, and no new information is available at that stage 
in the process that would assist in the resolution of adverse effects, 
then a new public notice may not be warranted.
    Reference to section 304 of the NHPA was added in the final rule, 
under subsection (a)(5), in response to strong concerns expressed by 
Indian tribes regarding disclosure of sensitive information.
    The subsection on resolution without the Council, Sec. 800.6(b)(1), 
was amended in response to several comments questioning the meaning of 
the term ``file'' as used in the September 1996 draft. The term 
``file'' was changed to ``submit,'' and the documentation requirement 
was added to ensure that the Council had the information that it needed 
if it were to review the Memorandum of Agreement, as suggested by some 
comments. Language was added in Sec. 800.6(b)(1)(iii) that the Council 
would notify the head of an agency when the Council decided to enter 
the section 106 process. This was in response to comments in the 
interagency review process and was intended to ensure that policy-level 
officials in the agency were aware of cases that warranted Council 
involvement. The last sentence in Sec. 800.6(b)(1)(v) was added to 
explain the outcome if the Council decides not to join the consultation 
despite the request to do so.
    Subsection (b)(2) was changed so that the phrase ``avoid or 
minimize the adverse effects'' was changed to ``seek

[[Page 27056]]

ways to avoid, minimize or mitigate the adverse effects.'' This change 
was made in response to comments, in order to more appropriately 
reflect the essence of consultation behind the 106 process.
    The final rule clarifies the status and rights of parties involved 
in the development of a Memorandum of Agreement as set forth in 
subsection (c). Many comments had found the treatment of these issues 
section in the September 1996 draft to be confusing. The Council 
redrafted the subsection by first moving the provision describing the 
legal effect of a Memorandum of Agreement to the beginning of the 
subsection. This was formerly in subsection (c)(5) of the September 
1996 draft. Under Sec. 800.6(c)(1) of the final rule, the Council also 
separated out the various signatories for different kind of agreements, 
adding a reference to the fact that the Council and the Federal agency 
can enter into a Memorandum of Agreement under Sec. 800.7(a)(2). The 
final rule adds a new category of parties that may or should be invited 
to become signatories to the agreement as listed in subsections 
(c)(2)(i) and (ii); these parties will have the rights of signatories 
if they choose to sign the agreement after being invited. Subsection 
(c)(2)(iii) clarifies the outcome of such parties' refusal to sign the 
agreement. Another category of parties, different from signatories or 
those invited to become signatories, is concurring parties as set forth 
in subsection (c)(3). The remaining subsection on Memoranda of 
Agreement remained essentially the same except that, in response to 
comments, subsections (6) and (9) regarding subsequent discoveries were 
added.

Section 800.7

    There were few comments on Sec. 800.7. The Council made minimal 
changes to this section. In subsection (a), the Council added a 
sentence requiring the party terminating consultation to notify the 
consulting parties and to state in writing the reasons for terminating. 
This was done to ensure that termination was grounded in sound reasons 
and that other parties had full understanding of the basis for 
termination. The requirement that the head of the agency or an 
Assistant Secretary or other officer with major department-wide or 
agency- wide responsibility request Council comment when the Federal 
agency terminates was criticized in several comments that believed it 
was burdensome, unnecessary or beyond the authority of the Council. The 
Council retained the requirement for several reasons. First, section 
110(1) of the NHPA, which was added in the 1992 amendments to require 
this. That section requires that the head of such agency ``shall 
document any decision made pursuant to section 106'' where the Federal 
agency has not entered into a Memorandum of Agreement regarding 
undertakings which adversely affect historic properties. Second, as a 
matter of protocol, since the Council members, many of whom are 
Presidential appointees and include the heads of six Federal agencies, 
are responsible for commenting on a termination, the Council determined 
that it was appropriate for the request to be made at that level.
    Subsection (a)(3) was added in response to tribe comment and in 
recognition of an Indian tribe's sovereign status with regard to its 
tribal lands. The requirement that a tribe must be a signatory to any 
agreement negotiated pursuant to Sec. 800.6 was contained in the last 
sentence of Sec. 800.12(b)(3) of the September 1996 draft.
    Subsection (a)(4) was amended by giving the Council the option to 
avoid termination by going to the Federal agency Federal Preservation 
Officer to attempt resolution of issues. This option was suggested by 
several Federal agencies.
    Subsection (b) was added to allow the Council to provide advisory 
comments even when a Memorandum of Agreement has been signed. This 
provision will give the Council the flexibility to agree to certain 
Memoranda of Agreement, but to supplement its signature with additional 
comments. This was suggested in one comment, and was determined by the 
Council to be a valuable vehicle for issuing advisory opinions to 
assist Federal agencies in their 106 compliance efforts.
    In subsection (c)(3) the Council added the Federal Preservation 
Officer (FPO) as a recipient of a copy of the Council comments. This 
should assist the FPO in his/her agency-wide management of section 106 
compliance.
    Subsection (c)(4) pertaining to Federal agency response to Council 
comments was changed by adding the requirement that the agency head 
prepare a summary of the decision. This was added to ensure that the 
decision received adequate consideration by the agency head and, 
therefore, was properly documented, as required by section 110(1).

Section 800.8

    This section of the regulations responds to the desire to 
streamline the 106 process and to coordinate it with the National 
Environmental Policy Act (NEPA) process. As stated before, most 
commenters approved of the concept of NEPA coordination. However, many 
believed it did not streamline the process enough. The Council believes 
it has streamlined coordination with the NEPA process to the largest 
extent possible without unduly sacrificing the key components of the 
section 106 process. The standards by which NEPA coordination must be 
conducted reflect our understanding of such key components that could 
not be sacrificed without failing the letter and spirit of Section 106.
    In response to a concern that a finding of adverse effect could 
incorrectly be thought as automatically triggering a requirement to 
produce an Environmental Impact Statement (EIS), the Council added the 
last sentence of Sec. 800.8(a)(1) of the final regulation to make it 
clear that adverse effects on historic properties do not, by 
themselves, necessarily trigger an EIS requirement. However, they may 
be of such magnitude or combine with other environmental impacts to 
warrant preparation of an EIS. This is determined by the Federal agency 
in accordance with its NEPA procedures and applicable NEPA case law.
    Tribal comments showed a concern that sensitive information would 
be published on the Environmental Impact Statement (EIS), and therefore 
be available for public distribution. The Council notes that 
Sec. 800.8(c)(1)(iii) states that tribes must be consulted in the 
preparation of NEPA documents. The Council believes that the 
confidentiality concerns of the tribes could be addressed in these 
consultations. Moreover, Sec. 800.8(c)(1)(ii) states that 
identification and effects determinations must be consistent with 
Secs. 800.4 and 800.5, and that such sections address confidentiality 
concerns. Tribes could object to a NEPA coordination that is not 
consistent with this and other standards.
    Certain comments cited a concern that Sec. 800.8 could allow too 
many inappropriate reasons to prolong or repeat consultation. The 
Council has limited objections to the NEPA coordination on two bases: 
(a) That it does not meet the standards listed under subsection (c)(1), 
or (b) that substantive treatment of effects on historic properties on 
the NEPA documents are inadequate. The Council will review such 
objections within 30 days.
    Comments from Federal agencies indicated that subsection (c)(5) 
inappropriately implied that the Agency Official would retain 
responsibility for measures in a Record of Decision (ROD) or Finding of 
No Significant Impact (FONSI) when another party may

[[Page 27057]]

actually carry those out. The Council therefore agreed to change the 
language to: ``if the Agency Official fails to ensure that the measures 
* * * are carried out * * *'' (the language used to state that the 
Agency Official ``fails to carry out the measure * * *'').

Section 800.9

    Many comments found the review procedures set forth in 
Sec. 800.9(a) of the September 1996 draft to be problematic. Comments 
found this subsection to be a backdoor, and unauthorized, appeals 
process that created a lack of finality to the 106 process. Comments 
also noted that the right to appeal to the Council was too limited, as 
only certain individuals who had participated in the process could make 
an appeal under subsection (a). Based on the strong adverse sentiment 
to this provision, the Council completely redrafted this subsection. 
The new subsection (a) succinctly and simply states that the Council 
can render its advisory opinion at any time in the 106 process 
regarding any compliance matters. Federal agencies are required to 
consider the Council's advisory opinion in reaching a decision on the 
matter. With this change, the Council believes it is responding to the 
concerns expressed in the comments about an elaborate appeals process. 
The change also addresses the concern that the Council was exceeding 
its authority as an advisory body, since the final rule acknowledges 
that the Council will issue advisory opinions.
    Subsection (b) was changed in response to a comment which 
questioned the provision in the September 1996 draft that required the 
Council chairman to send a foreclosure finding to the head of an 
agency. The wording implied that the foreclosure decision was that of 
the Chairman, rather than the Council at large. It was always the 
intention that the decision was that of the Council at large so as to, 
among other things, reflect the diversity of the whole Council. The 
final rule merely deletes the reference to the Chairman.
    Several comments sought more direction with regard to intentional 
adverse effects of applicants in subsection (c). The final rule, like 
the notice of proposed rulemaking, tracks the language in section 
110(k) of the NHPA. Additionally, in response to comments, the Council 
set forth a procedure describing how it would consult with Federal 
agencies that make a preliminary determination that circumstances may 
justify granting assistance to the applicant. The section 110 
Guidelines provide substantive guidance on this subject.
    Subsection (d) provides for periodic reviews of how participants 
fulfill their responsibilities under section 106. Some comments 
questioned the Council's authority for such reviews, even in light of 
section 203 of the NHPA. The Council maintains the position that 
sections 202 and 203 of the NHPA clearly provide for the collection of 
information from Federal agencies regarding the section 106 process and 
for the Council to make recommendations to Federal agencies on 
improving compliance. In response to comments, nevertheless, the 
Council removed the reference to Council ``oversight'' from the final 
rule in subsection (d)(1).
    Subsection (d)(2) of the September 1996 draft was deleted as 
unnecessary and confusing in that it introduced the concept of 
``professional peer review'' without explanation. The Council 
determined that reference to this term was hot appropriate or 
beneficial. The final rule's subsection (d)(2) contains the provision 
on improving the operation of section 106. This subsection remained 
largely unchanged, except that the last sentence was added to 
acknowledge the Council's authority under section 202(a)(6) of the NHPA 
to review Federal agency preservation programs and to make 
recommendations to improve their effectiveness.

Section 800.10

    This section received few comments. One comment questioned the use 
of the phrase ``directly and adversely'' in subsection (a), finding it 
implied that indirect effects were hot considered under this 
subsection. The Council retained the ``directly and adversely'' 
language of the September 1996 draft because it tracks the statutory 
language in the NHPA.
    Another comment noted that it would be more appropriate to mandate 
that the National Park Service, instead of the Council, be involved in 
consultation over National Historic Landmarks. The regulations include 
a requirement that the Secretary of the Interior receive notice and an 
invitation to participate in such consultations and, thus, the Council 
has provided for involvement of the Secretary of the Interior whenever 
the Secretary wants to enter the consultation. The Council chose not to 
mandate the Secretary's participation.
    The final rule contains a few other minor changes to rephrase 
headings and wording of subsections.

Section 800.11

    The type of documents required to be submitted at various stages in 
the 106 process remained, for the most part, the same as presented in 
the September 1996 draft. Subsection (a) on adequacy of documentation 
and subsection (c) on confidentiality, were changed to respond to 
comments.
    With regard to subsection (a), one comment questioned the use of 
the term ``factual and logical'' basis in the first sentence. The 
Council deleted this language as unnecessary. Also in response to a 
comment, the Council added language requiring the Council or SHPO/THPO 
to notify the Federal agency with the specific information needs to 
meet the documentation standards. This should expedite the process and 
assist the Federal agency in fulfilling its documentation requirements.
    The Council had added specific language giving it the authority to 
resolve disputes over whether documentation standards are met. Some 
comments disagreed with the language in the September 1996 draft giving 
the Council or the SHPO/THPO the authority to determine the adequacy of 
documentation. Comments suggested requiring the Federal agency to 
consider the Council or SHPO views and supplement the record as the 
Agency Official determined it as necessary. The Council disagreed with 
these comments because it viewed the adequacy of documentation as an 
essential function for which the Council is able to provide its 
expertise. Council resolution of disputes over documentation would 
maintain consistency of documentation among Federal agencies. 
Additionally, the authority of the SHPO/THPO to notify Federal agencies 
that documentation is insufficient is necessary so that SHPOs/THPOs 
have the information hat they need to respond to Federal agency 
determinations. Nevertheless, in light of strong opposition from 
commenters who were worried that, as written in the September 1996 
draft, subsection (a) would cause unending delays in the section 106 
process, the Council acceded to eliminating the language suspending 
relevant time periods until specified information was submitted. In 
addition, the Council relegated its role to one of ``reviewing,'' as 
opposed to ``resolving,'' document disputes.
    Comments questioned the language under Sec. 800.11(a) suspending 
the time periods when inadequate documentation is submitted, arguing 
that such provision would result in long delays. Another comment 
questioned

[[Page 27058]]

the meaning of ``suspended'', querying whether the SHPO/THPO would 
receive an additional 30 days after receipt of adequate documentation, 
or merely the remaining days left from when the SHPO/THPO notified the 
Federal agency that the documentation was inadequate. In order to 
alleviate concerns of delays in the process, the Council acceded to 
removing the suspension of time language. Nevertheless, Federal 
agencies must note that this does not lessen their obligation to meet 
applicable documentation standards, and that, not meeting such 
obligations could ultimately result in foreclosure or otherwise open 
their Section 106 compliance to challenge.
    Subsection (c) containing the confidentiality provision, was 
modified by tracking the statutory language, almost verbatim, from 
section 304 of the NHPA rather than paraphrasing the main portion of 
the provision as was done in the September 1996 draft. This was done to 
more accurately describe the Federal agency responsibilities. At the 
end of subsection (c)(2), the Council added two sentences describing 
how it would consult with the Secretary on the withholding and release 
of information. This was added in response to various comments, 
particularly those of tribes who are concerned about the release of 
information of sacred sites. Subsection (c)(3) was added in response to 
comments made by Federal agencies and others about privacy concerns of 
applicants. It acknowledges that other laws or agency program 
requirements may limit access to information.
    Minor additions and changes to enhance the clarity of the 
documentation requirements are made. Additionally, subsections (e) and 
(f) of the September 1996 draft were consolidated as they contained 
essentially the same material. In subsections (f) and (g)(4), the 
Council added ``any substantive revisions or additions to the 
documentation provided the Council pursuant to Sec. 800.6(a)(1)'' in 
order to facilitate and expedite the review of information.

Section 800.12

    As discussed above, former Sec. 800.12 of the September 1996 draft 
contained the consultation requirements regarding Indian tribes and 
Native Hawaiian organizations. The provisions in that past section have 
been interspersed and incorporated into the relevant sections and 
subsections of the final rule for ease of reference to those reading 
the regulations, eliminating the need to flip back and forth between 
other sections of the regulations and this one. This reorganization was 
also done in response to tribal concerns that the separate section did 
not facilitate integration of Indian tribes and Native Hawaiian 
organizations into the routine process. For the most part, the 
incorporation of those provisions into the other sections used existing 
language. Changes that were made in response to comments are noted at 
the specific section.
    Section 800.12 of the final rule contains the provisions on 
emergency situations, formerly under Sec. 800.13 of the September 1996 
draft. The final rule incorporates several changes suggested by the 
comments. First, the Council deleted the reference to an ``Agency 
Official'' declaring a disaster or emergency, since it was pointed out 
that Agency Officials, as defined by the Council's regulations, do not 
have such authority, nor was it appropriate for the Council to grant 
them such authority. Second, in subsection (b), language was also added 
that had erroneously been left out, to acknowledge that the provision 
extended to other ``immediate threat(s) to life or property.'' Third, 
the duty to consult with Indian tribes and Native Hawaiian 
organizations has been incorporated in response to tribal comments 
holding that this is mandated by the 1992 amendments to the NHPA.
    One comment stated that demolition and repair operations should be 
exempt from section 106 when the following principles are at stake: 
Protection of lives, compliance with building codes, protection for 
property, maintenance of public health and safety, restoration of vital 
community services, or evaluation of post disaster engineering reports. 
The Council recognized many of these principles but believes it has 
struck the proper balance between the need to carry out the section 106 
process and the need for expediency created by emergency situations. 
The last sentence of Sec. 800.12 provides an exemption from section 106 
compliance for immediate rescue and salvage operations conducted to 
preserve life or property, since the Council believed that emergency 
expediency in those situations outweighed section 106 process to such 
an extend that an exemption was warranted.

Section 800.13

    This section, formerly found under Sec. 800.14 of the September 
1996 draft, was revised by the Council to simplify its provisions and 
to respond to various comments. Subsection (a)(1) was added in the 
final rule to highlight the benefit of planning for subsequent 
discoveries in Programmatic Agreements. Subsection (a)(2) contains 
language that was in the September 1996 draft, except that mention of 
standard treatments containing provisions for subsequent discoveries 
was deleted as it was deemed inappropriate to include treatment for 
subsequent discoveries in standard treatments.
    Subsection (b) was also changed by adding ``or if construction on 
an approved undertaking has not commenced,'' as the Council realized 
that such a circumstance would also provide the opportunity for 
consultation. Subsection (b)(2) was amended in response to comments 
that indicated it was not clear, as drafted in the September 1996 
draft, that the SHPO/THPO or the Indian tribe or Native Hawaiian 
organization that attaches religious and cultural significance to the 
affected property have to agree that the property is of value solely 
for its scientific, prehistoric, history or archaeological data before 
the Archaeological and Historic Preservation Act could be used in lieu 
of Section 106. Subsection (b)(3) was changed minimally to clarify the 
intent that the SHPO/THPO, the Indian tribe or Native Hawaiian 
organization and the Council have 48 hours in which to respond to a 
notification of an inadvertent discovery.
    Subsection (d) was added as a result of comments made during the 
tribal consultation meetings and in deference to tribal sovereignty 
with regard to actions on tribal lands.

Section 800.14

    This section was formerly found under Sec. 800.15 of the September 
1996 draft. It provides for new options for agencies to pursue in 
streamlining their section 106 compliance activities and incorporates 
the practice, under the regulations activities and incorporates the 
practice, under the regulations to be superseded, of developing 
Programmatic Agreements to facilitate coordination between Section 106 
and an agency's particular program.
    Regarding subsection (a), most of the Federal agency and industry 
commenters believed that the Federal agencies should be the ones 
determining the procedural consistency of program alternatives with 
Council regulations. Most SHPOs and Indian tribes believed the Council 
should make such consistency determinations. In the end, the Council 
opted to make the consistency determinations. The Council believes it 
has the internal experience and expertise to make such evaluations. 
Also, the diversity of its membership ensures that a balanced 
perspective is brought to final determinations regarding consistency.

[[Page 27059]]

Section 211 of the NHPA states that the Council ``is authorized to 
promulgate such rules and regulations as it deems necessary to govern 
implementation of section 106 * * * in its entirety.'' Section 
110(a)(2) of the NHPA states that the ``(Federal agency historic 
preservation) program(s) shall ensure * * * that the agency's 
procedures for compliance with section 106 * * * are consistent with 
regulations issued by the Council * * *'' (emphasis added). It must be 
understood, among other things and upon closer examination, that 
section 110 of the NHPA does not specifically provide for Federal 
agencies to substitute their programs for the Section 106 regulations 
promulgated by the Council. Through Sec. 800.14(a) of the new 
regulations, the Council is allowing for such substitution, believing 
this may help agencies in their section 106 compliance. However, the 
Council will not allow such substitution if the agency procedures are 
inconsistent with the Council's 106 regulations. The Council, in its 
expertise, holds that its regulations correctly implement section 106, 
and that it would therefore be inimical to its mandate and contrary to 
the spirit and letter of section 100(a)(2)(E) of the NHPA, for the 
Council to allow inconsistent procedures to substitute the Council's 
section 106 regulations.
    The last sentence under subsection (a)(4) was added during the OMB 
review process to allay concerns that 101(d)(5) agreements would be 
entered into without the knowledge and opportunity to comment of 
Federal agencies.
    Subsection (b) is intended to retain the concept of Programmatic 
Agreements as in the superseded regulations, but with more clarity 
regarding required signatures, termination, and public participation. 
Programmatic Agreements should facilitate and streamline the Section 
106 process regarding complex project situations or multiple 
undertakings.
    Subsection (c) sets forth the process for exempting certain 
programs or categories of undertakings from the section 106 process. 
This is based on section 214 of the NHPA.
    Subsection (f) was added in response to tribal comments that there 
needed to be specific requirements for Federal agencies to consult with 
Indian tribes during the preparation of program alternatives. The 
content follows the policies that have guided tribal consultation 
throughout the revisions of the regulation.

Section 800.15

    This section was formerly under Sec. 800.16 of the September 1996 
draft. It is presently reserved for future use. The Council will 
proceed with the review of tribal applications for substitution of 
tribal regulations for the Council's section 106 regulations on tribal 
lands, pursuant to section 101(d)(5) of the Act, on the basis of 
informal procedures. With regard to State agreements, the Council will 
keep in effect any currently valid State agreements until revised 
procedures for State agreements take effect or until the agreement is 
otherwise terminated.

Section 800.16

    Few comments were received on the definitions and no substantial 
changes were made. There were some comments on the definition of 
``undertaking,'' requesting clarification of its scope. That has been 
done in the Section-by Section analysis (Section VII).

VI. Summary of Major Changes From the Regulations Being Superseded

    The revised section 106 regulations will significantly modify the 
process under the regulations to be superseded, introducing new 
streamlining while incorporating statutory changes mandated by the 1992 
amendments to the NHPA. This section of the preamble highlights the 
major revisions in the process. Although there are many other 
refinements and improvements that cumulatively improve the operation of 
the section 106 process, they are not detailed here.

Major Changes

    Greater deference to Federal agency-SHPO \1\ decisionmaking. The 
Council will no longer review routine decisions agreed to by the 
Federal agency and the SHPO/THPO (adverse effect findings and most 
Memoranda of Agreement), recognizing that the capability of these 
parties to do effective preservation planning has grown substantially 
since the process was last revised in 1986.
---------------------------------------------------------------------------

    \1\ The revised regulations extend to Tribal Historic 
Preservation Officers (THPO) the same role on tribal lands as the 
SHPO has in the section 106 process. Accordingly, this summary of 
changes refers to ``SHPO/THPO'' when the responsibilities for the 
SHPO and the THPO (with regard to tribal lands) are the same.
---------------------------------------------------------------------------

    More focused Council involvement. The Council will focus its 
attention on those situations where its expertise and national 
perspective can enhance the consideration of historic preservation 
issues. Criteria accompanying the regulation specify that the Council 
may enter the section 106 process when an undertaking has substantial 
impacts on important historic properties, presents important questions 
of policy or interpretation, has the potential for presenting 
compliance problems, or presents issues of concern to Indian tribes or 
Native Hawaiian organizations.
    Better definition of participants' roles. The primary 
responsibility of the Federal agency for section 106 decisions is 
emphasized, while the advisory roles of the Council and the SHPO/THPO 
are clarified. The roles of other participants are more clearly 
defined, particularly Indian tribes, local governments and applicants, 
who may participate as ``consulting parties.'' Certain individuals and 
organizations may also be entitled to be consulting parties, based on 
the nature of their relation to an undertaking and its effects on 
historic properties. Others may request to be involved. The exclusive 
role of the Federal agency to make the ultimate decision on the 
undertaking is stressed and the advisory roles of the other parties is 
clearly stated.
    Native American roles defined and strengthened. The 1992 NHPA 
amendments placed major emphasis on the role of Indian tribes and other 
Native Americans. The revisions incorporate specific provisions for 
involving tribes when actions occur on tribal lands and for consulting 
with Indian tribes and Native Hawaiian organizations, as required by 
the NHPA, throughout the process. The revisions embody the principle 
that Indian tribes should have the same extent of involvement when 
actions occur on tribal lands as the SHPO does for actions within the 
States; this includes the ability to agree to decisions regarding 
significance of historic properties, effects to them and treatment of 
those effects, including signing Memoranda of Agreement. Off tribal 
lands, Federal agencies must consult the appropriate tribe or Native 
Hawaiian organization. The provisions recognize Federal agency 
obligations to consider properties to which the tribes attach religious 
and cultural significance in project planning. Provision is also made 
for the involvement of the Tribal Historic Preservation Officer in lieu 
of the SHPO for undertaking on tribal lands when that official has 
assumed the responsibilities of the SHPO in accordance with section 
101(d) (2) of the NHPA.
    Role of applicants recognized. The revisions acknowledge the direct 
interests of applicants for Federal assistance or approval and specify 
greater opportunities for active participation in the section 106 
process as consulting parties. Applicants are permitted to initiate and 
pursue the steps of the process, while the Federal agency remains 
responsible for final decisions regarding historic properties.

[[Page 27060]]

    Early compliance encouraged. Provisions have been added to 
encourage agencies to initiate compliance with the Section 106 process 
early in project planning and to begin consultation with the SHPO/THPO 
and others at that early stage. This should promote early agency 
consideration of historic properties in project planning and prevent 
late recognition of an agency's legal responsibilities that often cause 
delay or compliance problems.
    Coordination with other reviews advanced. Agencies are encouraged 
to integrate Section 106 review with that required under the National 
Environmental Policy Act and related laws. Specific provisions that 
make identification and evaluation, public participation and 
documentation requirements more flexible facilitate this and will 
streamline reviews, allowing agencies to use information and analyses 
prepared for one law to be used to meet the requirements of another.
    Use of NEPA compliance to meet Section 106 requirements authorized. 
Agencies are authorized to use the preparation of Environmental Impact 
Statements and Environmental Assessments under the National 
Environmental Policy Act to meet section 106 needs in lieu of following 
the specified Council process. This is expected to be a major 
opportunity for agencies with well-developed NEPA processes to simplify 
concurrent reviews, reduce costs to applicants and avoid redundant 
paperwork.
    New techniques introduced to deal with marginal or routine cases. 
Federal agencies may seek exemptions from Section 106 or advisory 
comments on an entire program. Also, the Council may establish standard 
methods of treating recurring situations. This will allow agencies to 
save both time and resources that would otherwise be committed to 
legally-mandated reviews.
    Public participation clarified. Opportunities for public 
involvement in the section 106 process are simplified and more clearly 
defined, with encouragement for Federal agencies to use their 
established public involvement procedures where appropriate. 
Clarification in this area will reduce controversy over the adequacy of 
an agency's efforts to involve the public.
    Alternate Federal agency procedures flexed. The provisions allowing 
Federal agencies to substitute their internal procedures for the 
Council's section 106 regulations no longer require that the agency 
procedures be formal rules or regulations. This will make it easier for 
agencies to tailor the section 106 process to their needs. Approval of 
such substitute procedures is linked to requirements of section 
110(a)(2)(E) of the NHPA.

Procedural Streamlining

    The following section details changes in the basic Section 106 
process. It demonstrates the technical alteration to the process to 
carry out the changes described previously.
    ``No effect'' step simplified. To ``no historic properties'' and 
``no effect'' determinations of the regulations being superseded are 
combined into a single ``no historic properties affected'' finding. The 
separate ``effect'' determination of the regulations being superseded 
is dropped and the agency moves directly to assessing adverse effects 
when it appears historic properties may be affected.
    Identification and evaluation of historic properties made more 
flexible. The revised regulation introduces the concepts of phased 
identification and relating the level of identification to the nature 
of the undertaking and its likely impacts on historic properties. These 
concepts are important to effective NEPA coordination and will 
encourage more cost-effective approaches to survey and identification, 
as agencies will be able to make preliminary decisions on alternative 
locations or alignments without having to conduct the more intensive 
identification efforts necessary to deal with the final design and 
siting of a project.
    Adverse effect criteria and exceptions revamped. The criteria are 
revised to better define when projects have adverse effects on historic 
properties. The ``exceptions'' to the criteria concerning 
rehabilitation of historic properties meeting the Secretary's Standards 
and transfer of Federal properties with preservation restrictions have 
been incorporated into the adverse effect criteria of the new 
regulations and expanded. Previously, much archaeological data recovery 
qualified for No Adverse Effect treatment when appropriate data 
recovery was undertaken. Such cases now will be treated as adverse 
effects (as the destruction of other historic properties), but other 
changes to the process will speed completion of the section 106 
process.
    Council review of No Adverse Effect determinations eliminated. The 
requirement that the Council review all No Adverse Effect 
determinations is replaced by SHPO/THPO review and concurrence. 
Consulting parties are authorized to ask the Council to review such a 
determination if the request is made in a timely manner.
    Failure of Federal agency-SHPO/THPO consultation leads to Council 
involvement. If an agency and the SHPO/THPO failed to reach a solution 
to deal with adverse effects, the process required the Federal agency 
to seek the formal comments of the Council. The revised process 
requires the agency to invite the Council to join the consultation and 
help the parties reach resolution. Termination and comment would follow 
only if further consultation was not successful. This should result in 
more negotiated solutions, which are more efficient and usually provide 
better results.
    Council comment provision reflects 1992 NHPA amendments. Council 
comments must be considered by the head of the Federal agency receiving 
them, as required by section 110(1) of NHPA.
    Review of agency findings clarified. Recognizing that the Council's 
views on Federal agency actions to comply with section 106 are only 
advisory, a new provision allows anyone at anytime to seek the 
Council's opinion on agency findings and decisions under section 106. 
There is no obligation to delay agency action while the council 
conducts this review.
    Emergency and post-review discoveries situations revised. Greater 
emphasis is placed on planning for unanticipated events and more 
flexible responses are allowed.
    Council monitoring of overall Section 106 performance enhanced. The 
new regulations will shift the emphasis of Council review from 
individual cases to assessments of the overall quality of a Federal 
agency's or SHPO/THPO's performance in the section 106 process. The 
obligation of section 203 of the NHPA for agencies to provide project 
information to the Council is included. Also, provisions are made for 
closer Council review of cases where a participant has been found to 
have shortcomings in complying with section 106.

VII. Description of Meaning and Intent of Specific Sections

    The following information clarifies the meaning and intent behind 
particular sections of the regulations.

Subpart A--Purposes and Participants

Section 800.1(b)

    This sections makes clear that references in the section 106 
regulations are not intended to give any additional authority to 
implementing guidelines, policies or procedures issued by any other 
Federal agency. Where such provisions are cited, they are simply to

[[Page 27061]]

assist users in finding related guidance, which is non-binding, or 
requirements of related laws, which may be mandatory depending on the 
particular law itself.

Section 800.1(c)

    The purpose of this section is to emphasize the flexibility an 
Agency Official has in carrying out the steps of the section 106 
process, while acknowledging that early initiation of the process is 
essential and that actions taken to meet the procedural requirements 
must not restrict the effective consideration of alternatives related 
to historic preservation issues in later stages of the process.

Section 800.2(a)

    The term ``Agency Official'' is intended to include those Federal 
officials who have the effective decision making authority for an 
undertaking. This means the ability to agree to such actions as may be 
necessary to comply with section 106 and to ensure that any commitments 
made as a result of the section 106 process are indeed carried out. 
This authority and the legal responsibilities under section 106 may be 
assumed by non-federal officials only when there is clear authority for 
such an arrangement under Federal law, such as under certain programs 
administered by the Department of Housing and Urban Development. This 
subsection indicates that the Federal Agency must ensure that the 
Agency Official ``takes * * * financial responsibility for section 106 
compliance * * *.'' This phrase is not to be construed as prohibiting 
Federal agencies from passing certain section 106 compliance costs to 
applicants. Such a construction of the regulation would contravene 
section 110(g) of the NHPA and 16 U.S.C. 469c-2. The intent behind the 
reference to ``financial responsibility'' in the regulation is, as 
stated above, to ensure that the Agency Official has the effective 
decision making authority for an undertaking.

Section 800.2(a)(1)

    This reference to the Secretary's professional standards is 
intended to remind Federal agencies that this independent but related 
provision of the Act may affect their compliance with section 106.

Section 800.2(a)(2)

    This provision allows, but does not require, Federal agencies to 
designate a lead agency for section 106 compliance purposes. The lead 
agency carries out the duties of the Agency Official for all aspects of 
the undertaking. The other Federal agencies may assist the lead agency 
as they mutually agree. When compliance is completed, the other Federal 
agencies may use the outcome to document their own compliance with 
section 106 and must implement any provisions that apply to them. This 
provision does not prohibit an agency to independently pursue 
compliance with section 106 for its obligations under section 106, 
although this should be carefully coordinated with the lead agency. A 
lead agency can sign the Memorandum of Agreement for other agencies, so 
long as that is part of the agreement among the agencies for creating 
the lead agency arrangement. It should also be clear in the Memorandum 
of Agreement.

Section 800.2(a)(3)

    While a Federal agency may rely on applicants or contractors to 
prepare necessary materials and assessments for section 106 purposes, 
the Agency Official must personally and independently make the findings 
and determinations required under these regulations. This includes 
assuming the responsibility for ensuring that work done by others meets 
applicable Federal requirements.

Section 800.2(a)(4)

    This section sets forth the general concepts of consultation. It 
identifies the duty of Federal agencies to consult with other parties 
at various steps in the section 106 process and acknowledges that 
consultation varies depending on a variety of factors. It also 
encourages agencies to coordinate section 106 consultation with that 
required under other Federal laws and to use existing agency processes 
to promote efficiency.

Section 800.2(b)

    The Council will generally not review the determinations and 
decisions reached in accordance with these regulations by the Agency 
Official and appropriate consulting parties and not participate in the 
review of most section 106 cases. However, because the statutory 
obligation of the Federal agency is to afford the Council a reasonable 
opportunity to comment on its undertaking's effects upon historic 
properties, the Council will oversee the section 106 process and 
formally become a party in individual consultations when it determines 
there are sufficient grounds to do so. These are set forth in appendix 
A. The Council also will provide participants in the section 106 
process with its advice and guidance in order to facilitate completion 
of the section 106 review. Except as specifically noted in these 
regulations, this advice and guidance is non-binding.

Section 800.2(c)

    This section sets a standard for involving various consulting 
parties. The objective is to provide parties with an effective 
opportunity to participate in the section 106 process, relative to the 
interest they have to the historic preservation issues at hand.

Section 800.2(c)(1)

    This section recognizes the central role of the SHPO in working 
with the Agency Official on section 106 compliance in most cases. It 
also delineates the manner in which the SHPO may get involved in the 
section 106 process when a THPO has assumed SHPO functions on tribal 
lands.

Section 800.2(c)(2)

    The role of THPO was created in the 1992 amendments to the Act. 
This section tracks the statutory provision relating to THPO assumption 
of the SHPO's section 106 role on tribal lands. In such circumstances, 
the THPO substitutes for the SHPO and the SHPO participates in the 
section 106 process only as specified in Sec. 800.2(c)(1) or as a 
member of the public. This section also specifies that in those 
instances where an undertaking occurs on or affects properties on 
tribal land and a THPO has not officially assumed the SHPO's section 
106 responsibilities on those lands, the Agency Official still consults 
with the SHPO, but also consults with a representative designated by 
the Indian tribe. Such designation is made in accordance with tribal 
law and procedures. However, if the tribe has not designated such a 
representative, the Agency Official would consult with the tribe's 
chief elected official, such as the tribal chairman. For ease of 
reference in the regulation and because such designated tribal 
representative has the same rights and responsibilities under these 
regulations as a THPO that has assumed the SHPO's responsibilities, the 
term ``THPO'' has been defined as including the designated tribal 
representative.

Section 800.2(c)(3)

    This section embodies the statutory requirement for Federal 
agencies to consult with Indian tribes and Native Hawaiian 
organizations throughout the section 106 process when they attach 
religious and cultural significance to historic properties that may be 
affected by an undertaking. It is intended to promote continuing and 
effective consultation with those parties throughout the section 106 
process.

[[Page 27062]]

Such consultation is intended to be conducted in a manner that is fully 
cognizant of the legal rights of Indian tribes and that is sensitive to 
their cultural traditions and practices.

Section 800.2(c)(3)(i)

    This subsection has two main purposes. First, it emphasizes the 
importance of involving Indian tribes and Native Hawaiian organizations 
early and fully at all stages of the section 106 process. Second, 
Federal agencies should solicit tribal views in a manner that is 
sensitive to the governmental structures of the tribes, recognizing 
that confidentiality and communication issues may require Federal 
agencies to allow more time for the exchange of information. Also, this 
section states that the Agency Official must make a ``reasonable and 
good faith effort'' to identify interested tribes and Native Hawaiian 
organizations. This means that the Agency Official may have to look 
beyond reservations and tribal lands in the project's vicinity to seek 
information on tribes that had been historically located in the area, 
but are no longer there.

Section 800.2(c)(3)(ii)

    This subsection was added to make clear that nothing in these 
regulations can, or is intended to, modify any rights that Indian 
tribes maintain through treaties, sovereign status, or other legal 
bases.

Section 800.2(c)(3)(iii)

    This subsection emphasizes the need to consult with Indian tribes 
on a government-to-government basis. The Agency Official must consult 
with the appropriate tribal representative, who must be selected or 
designated by the tribe to speak on behalf of the tribe. Matters of 
protocol are important to Indian tribes. Indian tribes and Native 
Hawaiian organizations may be reluctant to share information about 
properties to which they attach religious and cultural significance. 
Federal agencies must recognize this and be willing to identify 
historic properties without compromising concerns about 
confidentiality. The Agency Official should also be sensitive to the 
internal workings of a tribe and allow the time necessary for the 
tribal decision making process to operate.

Section 800.2(c)(3)(iv)

    This subsection reminds Federal agencies of the statutory duty to 
consult with Indian tribes and Native Hawaiian organizations whether or 
not the undertaking or its effects occur on tribal land. Agencies 
should be particularly sensitive to identifying areas of traditional 
association with tribes or a Native Hawaiian organization, where 
properties to which they attach religious and cultural significance may 
be found.

Section 800.2(c)(3)(v)

    Some Federal agencies have or may want to develop special working 
relationships with Indian tribes or Native Hawaiian organizations to 
provide specific arrangements for how they will adhere to the steps in 
the section 106 process and enhance the participation of tribes and 
Native Hawaiian organizations. Such agreements are not mandatory; they 
may be negotiated at the discretion of Federal agencies. The agreements 
cannot diminish the rights set forth in the regulations for other 
parties, such as the SHPO, without that party's express consent.

Section 800.2(c)(3)(vi)

    The signature of tribes is required where a Memorandum of Agreement 
concerns tribal lands. However, if a tribe has not formally assumed the 
SHPO's responsibilities under section 101(d)(2) the tribe may waive its 
signature rights at its discretion. This will allow tribes the 
flexibility of allowing agreements to go forward regarding tribal land, 
but without condoning the agreement with their signature.

Section 800.2(c)(4)

    Affected local governments must be given consulting party status if 
they so request. Under Sec. 800.3(f)(1), Agency Officials are required 
to invite such local governments to be consulting parties. This 
subsection provides for that status and also reminds Federal agencies 
that some local governments may act as the Agency Official when they 
have assumed section 106 legal responsibilities, such as under certain 
programs administered by the Department of Housing and Urban 
Development.

Section 800.2(c)(5)

    Applicants for Federal assistance or for a Federal permit, license 
or other approval are entitled to be consulting parties. Under section 
800.3(f)(1), Agency Officials are required to invite them to be 
consulting parties. Also, Federal agencies have the legal 
responsibility to comply with section 106 of the NHPA. In fulfilling 
their responsibilities, Federal agencies sometimes choose to rely on 
applicants for permits, approvals or assistance to begin the section 
106 process. The intent was to allow applicants to contact SHPOs and 
other consulting parties, but agencies must be mindful of their 
government-to-government consultation responsibilities when dealing 
with Indian tribes. If a Federal agency implements its section 106 
responsibilities in this way, the Federal agency remains legally 
responsible for the determinations. Applicants that may assume 
responsibilities under a Memorandum of Agreement must be consulting 
parties in the process leading to the agreement.

Section 800.2(c)(6)

    This section allows for the possibility that other individuals or 
entities may have a demonstrated special interest in an undertaking and 
that Federal agencies and SHPO/THPOs should consider the involvement of 
such individuals or entities as consulting parties. This might include 
property owners directly affected by the undertaking, non-profit 
organizations with a direct interest in the issues or affected 
businesses. Under Sec. 800.3(f)(3), upon written request and in 
consultation with the SHPO/THPO and any Indian tribe upon whose tribal 
lands an undertaking occurs or affects historic properties, an Agency 
Official may allow certain individuals under Sec. 800.2(c)(6) to become 
consulting parties.

Section 800.2(d)(1)

    Public involvement is a critical aspect of the 106 process. This 
section is intended to set forth a standard that Federal agencies must 
adhere to as they go through the Section 106 process. The type of 
public involvement will depend upon various factors, including but not 
limited to, the nature of the undertaking, the potential impact, the 
historic property, and the likely interest of the public. 
Confidentiality concerns include those specified in section 304 of the 
Act and legitimate concerns about proprietary information, business 
plans and privacy of property owners.

Section 800.2(d)(2)

    This subsection is intended to set the notice standard. Notice, 
with sufficient information to allow meaningful comments, must be 
provided to the public so that the public can express its views during 
the various stages and decision making points of the process.

Section 800.2(d)(3)

    It is intended that Federal agencies have flexibility in how they 
involve the public, including the use of NEPA and other agency planning 
processes, as long as opportunities for such public involvement are 
adequate and

[[Page 27063]]

consistent with subpart A of the regulations.

Subpart B--The Section 106 Process

Section 800.3

    This new section is intended to encourage Federal agencies to 
integrate the section 106 process into agency planning at its earliest 
stages.

Section 800.3(a)

    The determination of whether or not an undertaking exists is the 
Agency Official's determination. The Council may render advice on the 
existence of an undertaking, but ultimately this remains a Federal 
agency decision.

Section 800.3(a)(1)

    This section explains that if there is an undertaking, but there is 
no potential that the undertaking will have an effect on an historic 
property, then the agency is finished with its section 106 obligations. 
There is no consultation requirement for this decision.

Section 800.2(a) (2)

    This is a reminder to Federal agencies that adherence to the 
standard 106 process in subpart B is inappropriate where the 
undertaking is governed by a program alternative established pursuant 
to Sec. 800.14.

Section 800.3(b)

    This section does not impose a mandatory requirement on Federal 
agencies. It emphasizes the benefit of coordinating compliance with 
related statutes so as to enhance efficiency and avoid duplication of 
efforts, but the decision is up to the Agency Official. Agencies are 
encouraged to use the information gathered for these other processes to 
meet section 106 needs, but the information must meet the standards in 
these regulations.

Section 800.3(c)

    This sets forth the responsibility to properly identify the 
appropriate SHPO or THPO that must be consulted. If the undertaking is 
on or affects historic properties on tribal lands, then the agency must 
determine what tribe is involved and whether the tribe has assumed the 
SHPO's responsibilities for section 106 under section 101(d) (2) of the 
Act. A list of such tribes is available from the National Park Service.

Section 800.3(c) (1)

    This section reiterates that the THPO may assume the role of the 
SHPO on tribal land and tracks the language of the Act in specifying 
how certain owners of property on tribal lands can request SHPO 
involvement in a Section 106 case in addition to the THPO.

Section 800.3(c) (2)

    This section is the State counterpart to Federal lead agencies and 
has the same effect. It allows a group of SHPOs to agree to delegate 
their authority under these regulations for a specific undertaking to 
one SHPO.

Section 800.3(c) (3)

    This section reinforces the notion that the conduct of consultation 
may vary depending on the agency's planning process, the nature of the 
undertaking and the nature of its effects.

Section 800.3(c) (4)

    This section makes it clear that failure of an SHPO/THPO to respond 
within the time frames set by the regulation permit the agency to 
assume concurrence with the finding or to consult about the finding or 
determination with the Council in the SHPO/THPO's absence. It also 
makes clear that subsequent involvement by the SHPO/THPO is not 
precluded, but the SHPO/THPO cannot reopen a finding or determination 
that it failed to respond to earlier.

Section 800.3(d)

    This section specifies that, on tribal lands, the Agency Official 
consults with both the Indian tribe and the SHPO when the tribe has not 
formally assumed the responsibilities of the SHPO under section 101(d) 
(2) of the Act. It also allows the section 106 process to be completed 
even when the SHPO has decided not to participate in the process, and 
for the SHPO and an Indian tribe to develop tailored agreements for 
SHPO participation in reviewing undertaking on the tribe's lands.

Section 800.3(e)

    This section requires the Agency Official to decide early how and 
when to involve the public in the section 106 process. It does not 
require a formal ``plan,'' although that might be appropriate depending 
upon the scale of the undertaking and the magnitude of its effects on 
historic properties.

Section 800.3(f)

    This is a particularly important section, as it requires the Agency 
Official at an early stage of the section 106 process to consult with 
the SHPO/THPO to identify those organizations and individuals that will 
have the right to be consulting parties under the terms of the 
regulations. These include local government, Indian tribes and Native 
Hawaiian organizations and applicants for Federal assistance or 
permits, especially those who may assume a responsibility under a 
Memorandum of Agreement (see Sec. 800.6(c)(2)(ii)). Others may request 
to be consulting parties, but that decision is up to the Agency 
Official.

Section 800.3(g)

    This section makes it clear that an Agency Official can combine 
individual steps in the section 106 process with the consent of the 
SHPO/THPO. Doing so must protect the opportunity of the public and 
consulting parties to participate fully in the Section 106 process as 
envisioned in Section 800.2.

Section 800.4(a)

    This section sets forth the consultative requirements involved in 
the scoping efforts at the beginning stages of the identification 
process. The Agency Official must consult with the SHPO/THPO in 
fulfilling the steps in subsections (1) through (4). This section 
emphasizes the need to consult with the SHPO/THPO at all steps in the 
scoping process It also highlights the need to seek information from 
Indian tribes and Native Hawaiian organizations with regard to 
properties to which they attach religious and cultural significance, 
while being sensitive to confidentiality concerns. Where Federal 
agencies are engaged in an action that is on or may affect ancestral, 
aboriginal or ceded lands, Federal agencies must consult with Indian 
tribes and Native Hawaiian organizations with regard to properties of 
traditional religious and cultural significance on such lands.

Section 800.4(b)

    This section sets out the steps an Agency Official must follow to 
identify historic properties. It is close to the section 106 process 
under the regulations to be superseded, with increased flexibility of 
timing and greater involvement of Indian tribes and Native Hawaiian 
organizations in accordance with the 1992 amendments to the Act.

Section 800.4(b)(1)

    This section on level of effort required during the identification 
processes has been added to allow for flexibility. It sets the standard 
of a reasonable and good faith effort on behalf of the agency to 
identify properties and provides that the level of effort in the 
identification process depends on numerous factors including, among 
others listed, the nature of the undertaking and its corresponding 
potential effects on historic properties.

[[Page 27064]]

Section 800.4(b)(2)

    This new section is also intended to provide Federal agencies with 
flexibility when several alternatives are under consideration and the 
nature of the undertaking and its potential scope and effect has 
therefore not yet been completely defined. The section also allows for 
deferral of final identification and evaluation if provided for in an 
agreement with the SHPO/THPO or other circumstances. Under this phased 
alternative, Agency Officials are required to follow up with full 
identification and evaluation once project alternatives have been 
refined or access has been gained to previously restricted areas. Any 
further deferral of final identification would complicate the process 
and jeopardize an adequate assessment of effects and resolution of 
adverse effects.

Section 800.4(c)

    This section sets out the process for determining the National 
Register eligibility of properties not previously evaluated for 
historic significance. It follows closely the regulations to be 
superseded.

Section 800.4(c)(1)

    This section sets out the process for eligibility determinations in 
much the same way as the regulations to be superseded, but requires 
Federal agencies to acknowledge the special expertise of Indian tribes 
and Native Hawaiian organizations when assessing the eligibility of a 
property to which they attach religious and cultural significance. If 
either objects to a determination of eligibility, they may seek the 
Council to have the matter referred to the Keeper. The Council retains 
discretion on whether or not to submit such referral.

Section 800.4(c)(2)

    This section remains largely unchanged from the regulations to be 
superseded except that it provides that if an Indian tribe or Native 
Hawaiian organization disagrees with a determination of eligibility 
involving a property to which it attaches religious and cultural 
significance, then the tribe can ask the Council to request that the 
Agency Official obtain a determination of eligibility. The Council 
retains the discretion as to whether or not it should make the request 
of the Agency Official. This section was intended to provide a way to 
ensure appropriate determinations regarding properties, located off 
tribal lands, to which tribes attach religious and cultural 
significance.

Section 800.4(d)

    This section now combines the ``No Historic Properties'' and ``No 
Effect'' findings of the regulations to be superseded.

Section 800.4(d)(1)

    This section describes the closure point in the Section 106 process 
where no historic properties are found or no effects on historic 
properties are found. Consulting parties must be specifically notified 
of the determination, but members of the public need not receive direct 
notification; the Federal agency must place its documentation in a 
public file prior to approving the undertaking, and provide access to 
the information when requested by the public. Once the consulting 
parties are notified, the SHPO/THPO has 30 days to object to the 
determination. The Council may also object on its own initiative within 
the time period. Lack of such objection within the 30 day period means 
that the agency need not take further steps in the section 106 process.

Section 800.4(d)(2)

    This section requires that the Federal agency proceed to the 
adverse effect determination step where it finds that historic 
properties may be affected or the SHPO/THPO or Council objects to a no 
historic properties affected finding. The agency must notify all 
consulting parties.

Section 800.5

    This section is similar to the provisions for assessing adverse 
affects under the regulations to be superseded, but the role of the 
Council is significantly altered and a role is provided for Indian 
tribes, Native Hawaiian organizations and other consulting parties.

Section 800.5(a)

    This section has been minimally changed except that it provides for 
Indian tribe and Native Hawaiian organization consultation where 
properties to which they attach religious and cultural significance are 
involved. This section also requires the Agency Official to consider 
the views of consulting parties and the public that have already been 
provided to the Federal agency.

Section 800.5(a)(1)

    This section has important changes from the regulations to be 
superseded. It combines the effect criteria and adverse effect criteria 
as defined in the regulation to be superseded. This section has also 
been modified to codify the practice of the Council in considering both 
direct and indirect effects in making an adverse effect determination. 
This section allows for consideration of effects on the qualifying 
characteristics of a historic property that may not have been part of 
the property's original eligibility evaluation. The last sentence in 
this section is intended to amplify the indirect effects concept, 
similar to the NEPA regulations, which calls for consideration of such 
effects when they are reasonably foreseeable effects.

Section 800.5(a)(2)(i)

    This section contains the minor change of deleting the word 
``alteration''. The alteration adverse effect concept is retained in 
the next subsection.

Section 800.5(a)(2)(ii)

    The list of examples of adverse effects has been modified by 
eliminating the exceptions to the adverse effect criteria. However, if 
a property is restored, rehabilitated, repaired, maintained, 
stabilized, remediated or otherwise changed in accordance with the 
Secretary's standards, then it will not be considered an adverse 
effect.

Section 800.5(a)(2)(iii)

    This subsection, along with Sec. 800.5(a)(2)(I), would encompass 
recovery of archeological data as an adverse effect, even if conducted 
in accordance with the Secretary's standards. This change from the 
regulations to be superseded acknowledges the reality that destruction 
of a site and recovery of its information and artifacts is adverse. It 
is intended that by eliminating data recovery as an exception to the 
adverse effect criteria, Federal agencies will be more inclined to 
pursue other forms of mitigation, including avoidance and preservation 
in place, to protect archeological sites. The Council is publishing for 
comment concurrent with this regulation a proposal to deal with 
recovery of archeological data as a standard treatment in accordance 
with Sec. 800.14. It is the Council's intent to retain an expedited 
format for resolution and reaching agreements where values other than 
scientific research are not involved.

Section 800.5(a)(2)(iv)

    This section was changed to more closely track the National 
Register criteria regarding the relation of alterations to a property's 
use or setting to the significance of the property.

[[Page 27065]]

Section 800.5(a)(2)(v)

    This section was changed to more closely track the language of the 
National Register criteria as it pertains to the property's integrity.

Section 800.5(a)(2)(vi)

    This section was modified to acknowledge that where properties of 
religious and cultural significance to Indian tribes or Native Hawaiian 
organizations are involved, neglect and deterioration may be recognized 
as qualities of those properties and thus may not necessarily 
constitute an adverse effect.

Section 800.5(a)(2)(vii)

    If a property is transferred leased or sold out of Federal 
ownership with proper preservation restrictions, then it will not be 
considered an adverse effect as in the regulations to be superseded. 
Transfer between Federal agencies is not an adverse effect per se; the 
purpose of the transfer should be evaluated for potential adverse 
effects, so that they can be considered before the transfer takes 
place.

Section 800.5(a)(3)

    This section is intended to allow flexibility in Federal agency 
decision making processes and to recognize that phasing of adverse 
effect determinations, like identification and evaluation, is 
appropriate in certain planning and approval circumstances, such as the 
development of linear projects where major corridors are first assessed 
and then specific route alignment decisions are made subsequently.

Section 800.5(b)

    This section has been modified to allow SHPO/THPO's the ability to 
suggest changes in a project or impose conditions so that adverse 
effects can be avoided and thus result in a no adverse effect 
determination. It is also written to emphasize that a finding of no 
adverse effect is only a proposal when the Agency Official submits it 
to the SHPO/THPO for review. This provision also acknowledges that the 
practice of ``conditional No Adverse Effect determinations'' is 
acceptable.

Section 800.5(c)

    The Council will cease reviewing no adverse effect determinations 
on a routine basis. The Council will intervene and review no adverse 
effect determinations if it deems it appropriate based on the criteria 
listed in appendix A or if the SHPO/THPO or another consulting party 
and the Federal agency disagree on the finding and the agency cannot 
resolve the disagreement. The SHPO/THPO and any consulting party 
wishing to disagree to the finding must do so within the 30-day review 
period. If Indian tribes or Native Hawaiian organizations disagree with 
the finding, they can request the Council's review directly, but this 
must be done within the 30 day review period. If a SHPO/THPO fails to 
respond to an Agency Official finding within the 30 day review period, 
then the Agency Official can consider that to be SHPO/THPO agreement 
with the finding. When a finding is submitted to the Council, it will 
have 15 days for review; if it fails to respond within the 15 days, 
then the Agency Official may assume Council concurrence with the 
finding. When it reviews no adverse effect determinations, the Council 
will limit its review to whether or not the criteria have been 
correctly applied. The Council's determination is binding.

Section 800.5(d)

    Agencies must retain records of their findings of no adverse effect 
and make them available to the public. This means that the public 
should be given access to the information, subject to FOIA and other 
statutory limits on disclosure such as section 304 of the NHPA, when 
they so request. Failure of the agency to carry out the undertaking in 
accordance with the finding requires the Agency Official to reopen the 
Section 106 process and determine whether the altered course of action 
constitutes an adverse effect. A finding of adverse effect requires 
further consultation on ways to resolve it.

Section 800.6

    The process for resolving adverse effects has been changed to 
reflect the altered role of the Council and the consulting parties.

Section 800.6(a)(1)

    When adverse effects are found, the consultation must continue 
among the Federal agency, SHPO/THPO and consulting parties to attempt 
to resolve them. The Agency Official must notify the Council when 
adverse effects are found and should invite the Council to participate 
in the consultation when the circumstances in Sec. 800.6(a)(1)(I) (A)-
(C) exist. A consulting party may also request the Council to join the 
consultation. The Council will decide on its participation within 15 
days of receipt of a request, basing its decision on the criteria set 
forth in appendix A. Whenever the Council decides to join the 
consultation, it must notify the Agency Official and the consulting 
parties. It must also advise the head of the Federal agency of its 
decision to participate. This is intended to keep the policy level of 
the Federal agency apprised of those cases that the Council has 
determined present issues significant enough to warrant its 
involvement.

Section 800.6(a)(2)

    This section allows for the entry of new consulting parties if the 
agency and the SHPO/THPO (and the Council, if participating) agree. If 
they do not agree, it is desirable for them to seek the Council's 
opinion on the involvement of the consulting party. Any party, 
including applicants, licensees or permittees, that may have 
responsibilities under a Memorandum of Agreement must be invited to 
participate as consulting parties in reaching the agreement.

Section 800.6(a)(3)

    This section specifies the Agency Official's obligation to provide 
project documentation to all consulting parties at the beginning of the 
consultation to resolve adverse effects. Particular note should be made 
of the reference to the confidentiality provisions.

Section 800.6(a)(4)

    The Federal agency must provide an opportunity for members of the 
public to express their views on an undertaking. The provision embodies 
the principles of flexibility, relating the agency effort to various 
aspects of the undertaking and its effects upon historic properties. 
The Federal agency must provide them with notice such that the public 
has enough time and information to meaningfully comment. If all 
relevant information was provided at earlier stages in the process in 
such a way that a wide audience was reached, and no new information is 
available at this stage in the process that would assist in the 
resolution of adverse effects, then a new public notice may not be 
warranted. However, this presumes that the public had the opportunity 
to make its views known on ways to resolve the adverse effects.

Section 800.6(a)(5)

    Although it is in the interest of the public to have as much 
information as possible in order to provide meaningful comments, this 
section acknowledges that information may be withheld in accordance 
with Section 304 of the NHPA. Particular attention is given to the 
confidentiality concerns of Indian tribes and Native Hawaiian 
organizations.

[[Page 27066]]

Section 800.6(b)

    If the Council is not a part of the consultation, then a copy of 
the Memorandum of Agreement must be sent to the Council so that the 
Council can include it in its files to have an understanding of a 
Federal agency's implementation of section 106. This does not provide 
the Council an opportunity to reopen the specific case, but may form 
the basis for other actions or advice related to an agency's overall 
performance in the Section 106 process.

Section 800.6(b)(1)

    When resolving adverse effects without the Council, the Agency 
Official consults with the SHPO/THPO and other consulting parties to 
develop a Memorandum of Agreement. If this is achieved, the agreement 
is executed between the Agency Official and the SHPO/THPO and filed 
with required documentation with the Council. This filing is the formal 
conclusion of the Section 106 process and must occur before the 
undertaking is approved. Standard treatments adopted by the Council may 
set expedited ways for competing memoranda of agreement in certain 
circumstances.

Section 800.6(b)(2)

    When the Council is involved, the consultation proceeds in the same 
manner, but the agreement of the Agency Official, the SHPO/THPO and the 
Council is required for a Memorandum of Agreement.

Section 800.6(c)

    This section details the provisions relating to Memoranda of 
Agreement. This document evidences an agency's compliance with section 
106 and the agency is obligated to follow its terms. Failure to do so 
requires the Agency Official to reopen the Section 106 process and 
bring it to suitable closure as prescribed in the regulations. The 
reference to section 110(1) of the Act is intended to conform the 
streamlining provisions of these regulations with current statutory 
requirements, pending amendment of that section.

Section 800.6(c)(1)

    This section sets forth the rights of signatories to an agreement 
and identifies who is required to sign the agreement under specific 
circumstances. The term ``signatory'' has a special meaning as 
described in this section, which is the ability to terminate or agree 
to amend the Memorandum of Agreement. The term does not include others 
who sign the agreement as concurring parties.

Section 800.6(c)(2)

    Certain parties may be invited to be signatories in addition to 
those specified in Sec. 800.6(c)(1). They include individuals and 
organizations that should, but do not have to, sign agreements. It is 
particularly desirable to have parties who assume obligations under the 
agreement become formal signatories. However, once invited signatories 
sign MOAs, they have the same rights to terminate or amend the MOA as 
the other signatories.

Section 800.6(c)(3)

    Other parties may be invited to concur in agreements. They do not 
have the rights to amend or terminate an MOA. Their signature simply 
shows that they are familiar with the terms of the agreement and do not 
object to it.

Sections 800.6(c)(4)-(9)

    These sections set forth specific features of a Memorandum of 
Agreement and the way it can be terminated or amended.

Section 800.7

    This section specifies what happens when the consulting parties 
cannot reach agreement. Usually when consultation is terminated, the 
Council renders advisory comments to the head of the agency, which must 
be considered when the final agency decision on the undertaking is 
made.

Section 800.7(a)(1)

    This section requires that the head of the agency or an Assistant 
Secretary or officer with major department-wide or agency-wide 
responsibilities must request Council comments when the Agency Official 
terminates consultation. This requirement was added because section 
110(1) of the NHPA requires heads of agencies to document their 
decision when an agreement has not been reached under section 106. If 
the agency head is responsible for documenting the decision, it is 
appropriate that the same individual request the Council's comments.

Section 800.7(a)(2)

    This section allows the Council and the Agency Official to conclude 
the section 106 process with a Memorandum of Agreement between them if 
the SHPO terminates consultation.

Section 800.7(a)(3)

    If a THPO terminates consultation, there can be no agreement with 
regard to undertakings that are on or affect properties on tribal lands 
and the Council will issue formal comments. This provision respects the 
tribe's unique sovereign status with regard to its lands.

Section 800.7(a)(4)

    This section governs cases where the Council terminates 
consultation. In that case, the Council has the duty to notify all 
consulting parties prior to commenting. The role given to the Federal 
Preservation Officer is new and is intended to fulfill the NHPA's goal 
of having a central official in each agency to coordinate and 
facilitate the agency's involvement in the national historic 
preservation program.

Section 800.7(b)

    This section allows the Council to provide advisory comments even 
though it has signed a Memorandum of Agreement. It is intended to give 
the Council the flexibility to provide comments even where it has 
agreed to sign an MOA. Such comments might elaborate upon particular 
matters or provide suggestions to Federal agencies for future 
undertakings.

Section 800.7(c)

    This section gives the Council 45 days to provide its comments to 
the head of the agency for a response by the agency head. When 
submitting its comments, the Council will also provide the comments to 
the Federal Preservation Officer, among others, for information 
purposes.

Section 800.7(c)(4)

    This section specifies what it means to ``document the agency 
head's decision'' as required by section 110(1) when the Council issues 
its comment to the agency head.

Section 800.8

    This major new section guides how Federal agencies can coordinate 
the section 106 process with NEPA compliance. It is intended to allow 
compliance with section 106 to be incorporated into the NEPA 
documentation process while preserving the legal requirements of each 
statute.

Section 800.8(a)(1)

    This section encourage agencies to coordinate NEPA and section 106 
compliance early in the planning process. It emphasizes that impacts on 
historic properties should be considered when an agency makes 
evaluations of its NEPA obligations, but makes clear that an adverse 
effect finding does not automatically trigger preparation of an EIS.

[[Page 27067]]

Section 800.8(a)(2)

    This section encourages consulting parties in the section 106 
process to be prepared to consult with the Agency Official early in the 
NEPA process.

Section 800.8(a)(3)

    This section encourages agencies to include historic preservation 
issues in the development of various NEPA assessments and documents. 
This is essential for effective coordination between the two processes. 
It is intended to discourage agencies from postponing consideration of 
historic properties under NEPA until later initiation of the section 
106 process.

Section 800.8(b)

    this section notes that a project, activity or program that falls 
within a NEPA categorical exclusion may still require section 106 
review. An exclusion from NEPA does not necessarily mean that section 
106 does not apply.

Section 800.8(c)

    This section offers Federal agencies an opportunity for major 
procedural streamlining when NEPA and section 106 both apply to a 
project. It allows the agency, when specific standards are met, to 
substitute preparation of an EA or an EIS for the specific steps of the 
Section 106 process set out in these regulations.

Section 800.8(c)(1)

    This section lists the standards that must be adhered to when 
developing NEPA documents that are intended to incorporate 106 
compliance. They are intended to ensure that the objectives of the 
section 106 process are being met even though the specific steps of the 
process are not being followed.

Section 800.8(c)(2)

    This section provides for Council and consulting party review of 
the agency's environmental document within NEPA's public comment review 
time frame. Consulting parties and the Council may object prior to or 
within this time frame to adequacy of the document.

Section 800.8(c)(3)

    If there is an objection to the NEPA document, the Council has 30 
days to state whether or not it agrees with the objection. If the 
Council agrees with the objection, the Agency Official must complete 
the Section 106 process through development of a Memorandum of 
Agreement or obtaining formal Council comment (Sec. 800.6-7). If it 
does not, then the Agency Official can complete its review under 
Sec. 800.8.

Section 800.8(c)(4)

    This subsection explains how Agency Officials using NEPA 
coordination must finalize their section 106 compliance for those cases 
where an adverse effect is found. The FONSI or ROD, as appropriate must 
document the proposed mitigation measures. In addition, a binding 
commitment with the proposed measures must be adopted. In the case of a 
FONSI, the binding commitment must be in the form of an MOA, drafted in 
accordance with Sec. 800.6(c). Although the regulations do not send 
Agency Officials back to Sec. 800.6(b) (regarding consultation towards 
an MOA), Agency Officials are reminded of the standards they must still 
follow under Sec. 800.8(c)(1), and specifically the mitigation 
measures' consultation under Sec. 800.8(c)(1)(v). In the case of an 
EIS, although a Memorandum of Agreement under Sec. 800.6(c) is not 
required, an appropriate binding commitment must still be adopted. 
Finally, the subsection also clarifies the Agency Official's obligation 
to ensure that its approval of the undertaking is conditioned 
accordingly.

Section 800.8(c)(5)

    This section requires Federal agencies to supplement their NEPA 
documents or abide by Secs. 800.3 through 800.6 in the event of a 
change in the proposed undertaking that alters the undertaking's impact 
on historic properties.

Section 800.9

    This section delineates the methods the Council will use to oversee 
the operation of the section 106 process. The Council draws upon its 
general advisory powers and specific provisions of the NHPA to conduct 
these actions.

Section 800.9(a)

    This section emphasizes the right of the Council to provide advice 
at any time in the process on matters related to the section 106 
process. Federal agencies should consider the Council's views, but need 
not adhere to them, unless specifically provided for in the regulation.

Section 800.9(b)

    A foreclosure means that an agency has gone forward with an 
undertaking to such an extent that the Council can not provide 
meaningful comments. A finding of foreclosure by the Council means that 
the Council has determined that the Federal agency has not fulfilled 
its section 106 responsibilities with regard to the undertaking. Such a 
finding does not trigger any specific action, but represents the 
opinion of the Council as the agency charged by statute with issuing 
the regulations that implement section 106.

Section 800.9(c)

    This section reiterates the requirements of section 110(k) of the 
Act added in 1992. It also provides a process by which the Council will 
comment if the Federal agency decides that circumstances may justify 
granting the assistance. If after considering the comments, the Federal 
agency does decide to grant the assistance, then the Federal agency 
must comply with section 106 for any historic properties that still may 
be affected. This does not require duplication of consultation that may 
have already taken place with the Council in the course of addressing 
110(k), but is intended to ensure that the agency has meaningful 
consultation with the Council as to mitigating adverse effects if the 
agency decides to proceed with approving the undertaking.

Section 800.9(d)

    As the Council reduces its involvement in routine cases it will be 
focusing its efforts more and more on agency programs and overall 
compliance with the section 106 process. The NHPA authorizes the 
Council to obtain information from Federal agencies and make 
recommendations on improving operation of the section 106 process. If 
the Council finds that an agency or a SHPO/THPO has not carried out its 
section 106 responsibilities properly, it may enter the section 106 
process on an individual case basis to make improvement. The Council 
may also review agency operations and performance and make specific 
recommendations for improvement under section 202(a)(6) of the Act.

Section 800.10

    This section provides a process for how Federal agencies must 
afford the Council a reasonable opportunity to comment on historic 
landmarks. It is largely unchanged from the process under the 
regulations to be superseded.

Section 800.11

    This section sets forth the requirements for documentation at 
various steps in the section 106 process. It has been amended to make 
documentation requirements clearer and to promote agency use of 
documentation prepared for other planning requirements.

[[Page 27068]]

Section 800.11(a)

    The section allows for the phasing of documentation requirements 
when an agency is conducting phased identification and evaluation. The 
Council can advise on the resolution of disputes over adherence to 
documentation standards. However, the ultimate responsibility for the 
compiling adequate documentation rests with the agency. During the 
consideration of any disputes over documentation, the process is not 
formally suspended. However, agencies should resolve significant 
disputes before going forward too far in the Section 106 process in 
order to avoid subsequent delays.

Section 800.11(b)

    This section was added primarily to allow for the use of documents 
prepared for NEPA or other agency planning processes to fulfill this 
provision as long as those documents meet the standards in this 
section.

Section 800.11(c)

    This section is intended to protect the rights of private property 
owners with regard to proprietary information, and Indian tribes and 
Native Hawaiian organizations with regard to properties to which they 
attach religious and cultural significance. This section emphasizes 
that the regulations are subject to any other Federal statutes which 
protect certain kinds of information from full public disclosure. The 
role of the Secretary and the process of consultation with the Council 
are based on the statutory requirements of section 304 of the Act.

Section 800.11(d)-(f)

    These sections specify the documentation standards for various 
findings or actions in the section 106 process. They are incrementally 
more detailed as the historic preservation issues become more 
substantial or complex. Each is intended to provide basic information 
so that a third-party reviewer can understand the basis for an agency's 
finding or proposed decision.

Section 800.12

    This section on emergency situations contains some minor changes 
from the process under the regulations to be superseded, but generally 
follows the existing approach.

Section 800.12(a)

    This section encourages Federal agencies to develop procedures 
describing how the Federal agency will take into account historic 
properties during certain emergency operations, including imminent 
threats to life or property. The nature of the consultation required in 
developing such procedures will vary, depending upon the extent of 
actions covered by the procedures. The procedures must be approved by 
the Council if they are to substitute for Subpart B.

Section 800.12(b)

    If there are no agency procedures for taking historic properties 
into account during emergencies, then the Federal agency may either 
follow a previously-developed Programmatic Agreement or notify the 
Council, SHPO/THPO and, where appropriate, an Indian tribe or native 
Hawaiian organization concerned with potentially affected resources. If 
possible, the Federal agency should provide these parties 7 days to 
comment.

Section 800.12(c)

    This section permits a local government that has assumed section 
106 responsibilities to use the provisions of Sec. 800.12(a) and (b). 
However, if the Council or an SHPO/THPO objects, the local government 
must follow the normal section 106 process.

Section 800.12(d)

    A Federal agency may use the provisions in Sec. 800.12 only for 30 
days after an emergency or disaster has been declared, unless an 
extension is sought.

Section 800.13

    This section follows closely the process under the regulations to 
be superseded for dealing with resources discovered after Section 106 
review has been completed.

Section 800.13(a)

    This section emphasizes the utility of developing Programmatic 
Agreements to deal with discoveries of historic properties which may 
occur during implementation of an undertaking. If there is no 
Programmatic Agreement to deal with discoveries, and the Agency 
Official determines that other historic properties are likely to be 
discovered, then a plan for how discoveries will be addressed must be 
included in a no adverse effect finding or a Memorandum of Agreement.

Section 800.13(b)(1)

    This section states the procedures that must be followed when 
construction has not yet occurred or an undertaking has not yet been 
approved. Because a Federal agency has more flexibility at this stage, 
adherence to the consultative process as set forth in Sec. 800.6 is 
appropriate.

Section 800.13(b)(2)

    This section provides that where an archeological site has been 
discovered and where the Agency Official, SHPO/THPO and any appropriate 
Indian tribe or Native Hawaiian organization agree that it is of value 
solely for the data that it contains, the Agency Official can comply 
with the Archeological and Historic Preservation Act instead of the 
procedures in this subpart.

Section 800.13(b)(3)

    This section sets forth the procedures that must be followed when 
the undertaking has been approved and construction has commenced. 
Development of actions to resolve adverse effects and notification to 
the SHPO/THPO and the council within 48 hours of the discovery are 
required. Comments from those parties are encouraged and the agency 
must report the actions it ended up taking to deal with the discovery.

Section 800.13(c)

    This section allows an agency to make an expedited field judgment 
regarding eligibility of properties discover during construction.

Section 800.13(d)

    This new section requires an agency to comply with tribal 
procedures when a discovery is on tribal land and obtain concurrence of 
the tribe, unless it has previously developed a process under 
Sec. 800.13(a).

Subpart C--Program Alternatives

Section 800.14

    This section lays out a variety of alternative methods for Federal 
agencies to meet their Section 106 obligations. While some are based on 
existing techniques in the regulations to be superseded, a number are 
newly-introduced to allow agencies to tailor the Section 106 process to 
their needs.

Section 800.14(a)

    Alternate procedures are a major streamlining measure that allows 
tailoring of the Section 106 process to Agency programs and 
decisionmaking processes. The procedures would substitute in whole or 
in part for the Council's section 106 regulations. As procedures, they 
would include formal Agency regulations, but would also include 
departmental or Agency procedures that do not go through the formal 
rulemaking process. Procedures must be developed in consultation with 
various parties as set forth in the

[[Page 27069]]

regulations. The public must have an opportunity to comment on 
Alternate procedures. If the Council determines that they are 
consistent with its regulations, the alternate procedures may 
substitute for the Council's regulations. In reviewing alternate 
procedures for consistency, the Council will not require detailed 
adherence to every specific step of the process found under the 
Council's regulations. The Council, however, will look for procedures 
that afford historic properties consideration equivalent to that 
afforded by the Council's regulations and that meet the requirements of 
section 110(a)(2)(E) of the Act. If an Indian tribe has substituted its 
procedures for the Council's regulations pursuant to section 101(d)(5) 
of the NHPA, then the Federal agency must follow the tribe's substitute 
regulations for undertakings on tribal lands.

Section 800.14(b)

    This section is intended to retain the concept of Programmatic 
Agreements as in the regulations to be superseded, but to add more 
clarity about their use and the processes for creating them. The 
circumstances under which a Programmatic Agreement is appropriate are 
specified. The section places Programmatic Agreements into two general 
categories: Those covering agency programs and those covering complex 
or multiple undertakings. The section on Agency programs makes clear 
that the President of NCSHPO must sign a nationwide agreement when 
NCSHPO has participated in the consultation. If a Programmatic 
Agreement concerns a particular region, then the signature of the 
affected SHPSs/THPOs is required. An individual SHPO/THPO can terminate 
its participation in a regional Programmatic Agreement, but the 
agreement will remain in effect for the other states in the region. 
Only NCSHPO can terminate a nationwide Programmatic Agreement on behalf 
of the individual SHPOs. Language is included to recognize tribal 
sovereignty while providing flexibility to Federal agencies and tribes 
when developing Programmatic Agreements. While it does not prohibit the 
other parties from executing a Programmatic Agreement, the language 
does limit the effect of the agreement to non-tribal lands unless the 
tribe executes it. However, the language also authorizes multiple 
Indian tribes to designate a representative tribe or tribal 
organization to participate in consultation and sign a Programmatic 
Agreement on their behalf. Requirements for public involvement and 
notice are included. The section on complex or multiple undertakings 
ties back to Sec. 800.6 for the process of creating such programmatic 
agreements.

Section 800.14(c)

    Exemptions are intended to remove from section 106 compliance those 
undertakings that have foreseeable effects on historic properties which 
are likely to be minimal. Section 214 of the NPHA gives the Council the 
authority to allow for such exemptions. This section sets forth the 
criteria, drawn from the statute, for exemptions and a process for 
obtaining (and terminating) an exemption.

Section 800.14(d)

    Standard treatments provide a streamlined process by which the 
Council can establish certain acceptable practices for dealing with a 
category of undertakings, effects, historic properties, or treatment 
options. A standard treatment may modify the application of the normal 
Section 106 process under certain circumstances or simplify the steps 
or requirements of the regulations. This section sets forth the process 
for establishing a standard treatment and terminating it.

Section 800.14(e)

    Program comments are intended to give the Council the flexibility 
to issue comments on a Federal program or class of undertakings rather 
than comment on such undertakings on a case-by-case basis. This section 
sets forth the process for issuing such comments and withdrawing them. 
The Federal agency is obligated to consider, but not necessarily 
follow, the Council's comments. If it does not, the Council may 
withdraw the comment, in which case the agency continues to comply with 
section 106 on a case-by-case basis.

Section 800.14(f)

    The requirement for consultation program alternatives with Indian 
tribes and Native Hawaiian organizations is provided for in this 
section. It is an overlay on each of the Federal program alternatives 
set forth in Secs. 800.14(a)-(e). It provides for government-to-
government consultation with Indian tribes. The Council and the Federal 
agency will consider the views of the Indian tribes and Native Hawaiian 
organizations in making a decision on a program alternative.

Section 800.15. Tribal, State and Local Program Alternatives

    This section is presently reserved for future use. The Council will 
proceed with the review of tribal applications for substitution of 
tribal regulations for the Council's section 106 regulations on tribal 
lands, pursuant to section 101(d)(5) of the Act, on the basis of 
informal procedures. With regard to State agreements, the Council will 
keep in effect any currently valid State agreements until revised 
procedures for State agreements take effect or until the agreement is 
otherwise terminated.

Section 800.16 Definitions

    This section includes new definitions to respond to identified 
needs for clarification and to reflect statutory amendments.
    The definition of ``Agency'' was added for ease of reference. It 
tracks the statutory definition in the NHPA.
    The definition of ``approval of the expenditure of funds'' was 
added to clarify the intent of this statutory language as it appears in 
section 106 of the NHPA. This definition addresses the timing of 
section 106 compliance. A Federal agency must take into account the 
effects of its actions and provide the Council a reasonable opportunity 
to comment before the Agency decides to authorize funds, not just 
before the release of those funds. The intent of this provision is to 
emphasize the necessitate for compliance with section 106 early in the 
decision making process.
    The definition of ``area of potential effects'' has been clarified 
by adding the second sentence which acknowledges that the determination 
of the area potential effects is often subjective and depends on the 
nature and scale of the undertaking and the associated effects.
    The definition of ``comment'' was added to make it clear that the 
term referred to the formal comments of the Council members.
    The definition of ``consultation'' was added to describe the nature 
and goals of this critical aspect of the section 106 review process.
    ``Day'' was added to clarify the running of time periods.
    ``Effect'' was added to the definition section. Even though the 
``no effect'' step has been eliminated in the final rule, the concept 
of an undertaking's effect is still a part of the ``historic properties 
affected'' determination.
    ``Foreclosure'' is a term that has always been a part of the 
section 106 process, but has not been defined in the regulations. The 
terms was added to the definition section to describe the finding that 
is made by the Council when an Agency action precludes the Council from 
its reasonable opportunity to comment on an undertaking.
    ``Head of the Agency'' was added in light of the 1992 amendments in 
section 110(1) that require that the head of an

[[Page 27070]]

Agency document decisions where a Memorandum of Agreement has not been 
reached for an undertaking.
    ``Historic property'' has been expanded to include properties of 
traditional religious and cultural importance in accordance with 
section 101(d)(6)(A) of the NHPA as amended in 1992.
    ``Indian tribe'' has been redefined exactly as in section 301(4) of 
the statute.
    ``Native Hawaiian organization'' is defined exactly as in section 
301(17) of the statute.
    ``Tribal Historic Preservation Officer'' is intended to include the 
tribal official who has formally assumed the SHPO's responsibilities. 
It also includes, for ease of reference, the designated representative 
of a tribe that has not assumed SHPO responsibilities when an 
undertaking occurs on or affects historic properties on its tribal 
lands; this inclusive interpretation of THPO was added so that it would 
be clear that whenever an Agency undertaking is on or affects historic 
properties on tribal lands, the tribe's approval and signature on an 
agreement is required, unless they specifically waive their rights.
    ``Tribal lands'' is defined exactly as in section 301(14) of the 
statute.
    ``Undertaking'' is defined exactly as in section 301(7) of the 
statute. The Agency Official is responsible, in accordance with 
Sec. 800.3(a), for making the determination as to whether a proposed 
Federal action is an undertaking. As appropriate, an agency should 
examine the nature of its Federal involvement taking into consideration 
factors such as the degree of Federal agency control or discretion; the 
type of Federal involvement or link to the action; and whether or not 
the action could move forward without Federal involvement. An agency 
should seek the advice of the Council when uncertain about whether or 
not its action falls within the definition of an undertaking. The pre-
existing regulatory definition of undertaking included new and 
continuing projects, activities, or programs and any of their elements 
not previously considered under section 106. It is intended that the 
new definition includes such aspects of a project, activity, or program 
as undertakings.

Appendix A. Criteria for Council Involvement in Reviewing Individual 
Section 106 Cases

    This appendix sets forth the criteria that will guide Council 
decisions to enter certain section 106 cases, as provided in the new 
regulations. As Sec. 800.2(b)(1) states, the Council will document that 
the criteria have been met and notify the parties to the section 106 
process as process as required. Council involvement in section 106 
cases is not automatic once a criterion has been met. The Council 
retains discretion as to whether or not to enter such a case. Likewise, 
it is not essential that all criteria be met. The point of the criteria 
is to ensure that the Council has made a thoughtful decision to enter 
the section 106 process and to give agencies, SHPOs/THPOs and other 
section 106 participants a clear understanding of the kind of cases 
that warrant Council involvement.

VIII. Impact Analysis

The Regulatory Flexibility Act

    The Council certifies that the final rule will not have a 
significant economic impact on a substantial number of small entities. 
Although some comment on the rule as proposed questioned the validity 
of such certification, the rule in its proposed and final versions 
imposes mandatory responsibilities on only Federal agencies. As set 
forth in section 106 of the NHPA, the duties to take into account the 
effect of an undertaking on historic resources and to afford the 
Council a reasonable opportunity to comment on that undertaking are 
Federal agency duties. Indirect effects on small entities, if any, 
created in the course of a Federal agency's compliance with section 106 
of the NHPA, must be considered and evaluated by that Federal agency.

The Paperwork Reduction Act

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

The National Environmental Policy Act

    In accordance with 36 CFR part 805, the Council initiated the NEPA 
compliance process for the Council's regulations implementing section 
106 of the NHPA prior to publication of the draft regulations in the 
Federal Register on September 13, 1996. On August 12, 1997, through a 
notice of availability on the Federal Register, the Council sought 
public comment on its Environmental Assessment and preliminary Finding 
of No Significant Impact. The Council has considered such comments, and 
has confirmed its finding of no significant impact on the human 
environment. A notice of availability of the Environmental Assessment 
and Finding of No Significant Impact has been published on the Federal 
Register.

Executive Orders 12866 and 12875

    The Council is exempt from compliance with Executive Order 12866 
pursuant to implementing guidance issued by the Office of Management 
and Budget's Office of Information and Regulatory Affairs in a 
memorandum dated October 12, 1993. The Council also is exempt from the 
documentation requirements of Executive Order 12875 pursuant to 
implementing guidance issued by the same OMB office in a memorandum 
dated January 11, 1994. Although exempt, the Council has adhered to the 
principles in both orders by involving and consulting with State, 
local, and tribal entities, members of the public, and industry groups 
in the development of these regulations and throughout the rulemaking 
process, as discussed above in the Background section. The regulations 
to not mandate State, local, or tribal governments to participate in 
the Section 106 process. Instead, State, local, and tribal governments 
may decline to participate. State Historic Preservation Officers do 
advise and assist Federal agencies, as appropriate, as part of their 
duties under section 101(b)(3)(E) of the NHPA, as a condition of their 
Federal grant assistance. In addition, in accordance with Executive 
Order 12875, the regulations include several flexible approaches to 
consideration of historic properties in Federal agency decision making. 
The regulations promote flexibility and cost effective compliance by 
providing for alternate procedures, categorical exemptions, standard 
treatments, program comments, and programmatic agreements.

The Unfunded Mandates Reform Act of 1995

    The final regulations implementing section 106 of the NHPA do not 
impose annual costs of $100 million or more, will not significantly or 
uniquely affect small governments, and are not a significant Federal 
intergovernmental mandate. The Council thus has no obligations under 
sections 202, 203, 204 and 205 of the Unfunded Mandates Reform Act.

Executive Order 12898

    The final regulations implementing section 106 of the NHPA do not 
cause adverse human health or environmental effects, but, instead, seek 
to avoid adverse effects on historic properties throughout the United 
States. The participation and consultation process established by these 
regulations seeks to ensure public participation--including by minority 
and low-income populations and communities--by those

[[Page 27071]]

whose cultural heritage, or whose interest in historic properties, may 
be affected by proposed Federal undertakings. The section 106 process 
is a means of access for minority and low-income populations to 
participate in Federal decisions or actions that may affect such 
resources as historically significant neighborhoods, buildings, and 
traditional cultural properties. The Council considers environmental 
justice issues in reviewing analysis of alternatives and mitigation 
options particularly when section 106 compliance is coordinated with 
NEPA compliance. Guidance and training is being developed to assist 
public understanding and use of these regulations.

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

    The Council has fully complied with this Memorandum. A Native 
American representative served on the Council and was a member of the 
Council's Regulations Task Force. The regulations enhance the 
opportunity for Native American involvement in the section 106 process 
and clarify the obligation of Federal agencies to consult with Native 
Americans.

Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The council will submit a report containing this rule 
and other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2). This rule will be 
effective June 17, 1999.

List of Subjects in 36 CFR Part 800

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

    For the reasons discussed in the preamble, the Advisory Council on 
Historic Preservation amends Title 36, Chapter VIII by revising part 
800 to read as follows:

PART 800--PROTECTION OF HISTORIC PROPERTIES

Subpart A--Purposes and Participants

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

Subpart B--The Section 106 Process

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

Subpart C--Program Alternatives

800.14  Federal agency program alternatives.
800.15  Tribal, State and Local Program Alternatives. [Reserved]
800.16  Definitions.
Appendix A--Criteria for Council Involvement in Reviewing Individual 
Section 106 Cases

    Authority: 16 U.S.C. 470s.

Subpart A--Purposes and Participants


Sec. 800.1  Purposes.

    (a) Purposes of the section 106 process. Section 106 of the 
National Historic Preservation Act requires Federal agencies to take 
into account the effects of their undertakings on historic properties 
and afford the Council a reasonable opportunity to comment on such 
undertakings. The procedures in this part define how Federal agencies 
meet these statutory responsibilities. The section 106 process seeks to 
accommodate historic preservation concerns with the needs of Federal 
undertakings through consultation among the Agency Official and other 
parties with an interest in the effects of the undertaking on historic 
properties, commencing at the early stages of project planning. The 
goal of consultation is to identify historic properties potentially 
affected by the undertaking, assess its effects and seek ways to avoid, 
minimize or mitigate any adverse effects on historic properties.
    (b) Relation to other provisions of the Act. Section 106 is related 
to other provisions of the Act designed to further the national policy 
of historic preservation. References to those provisions are included 
in this part of identify circumstances where they may affect actions 
taken to meet section 106 requirements. Such provisions may have their 
own implementing regulations or guidelines and are not intended to be 
implemented by the procedures in this part except insofar as they 
relate to the section 106 process. Guidelines, policies and procedures 
issued by other agencies, including the Secretary, have been cited in 
this part for ease of access and are not incorporated by reference.
    (c) Timing. The Agency Official must complete the section 106 
process ``prior to the approval of the expenditure of any Federal funds 
on the undertaking or prior to the issuance of any license.'' This does 
not prohibit Agency Official from conducting or authorizing 
nondestructive project planning activities before completing compliance 
with Section 106, provided that such actions do not restrict the 
subsequent consideration of alternatives to avoid, minimize or mitigate 
the undertaking's adverse effects on historic properties. The Agency 
Official shall ensure that the section 106 process is initiated early 
in the undertaking's planning, so that a broad range of alternatives 
may be considered during the planning process for the undertaking.


Sec. 800.2  Participants in section 106 process.

    (a) Agency Official. It is the statutory obligation of the Federal 
agency to fulfill the requirements of section 106 and to ensure that an 
Agency Official with jurisdiction over an undertaking takes legal and 
financial responsibility for section 106 compliance in accordance with 
subpart B of this part. The Agency Official has approval authority for 
the undertaking and can commit the Federal agency to take appropriate 
action for a specific undertaking as a result of section 106 
compliance. For the purposes of subpart C of this part, the Agency 
Official has the authority to commit the Federal agency to any 
obligation it may assume in the implementation of a program 
alternative. The Agency Official may be a State, local, or tribal 
government official who has been delegated legal responsibility for 
compliance with section 106 in accordance with Federal law.
    (1) Professional standards. Section 112(a)(1)(A) of the Act 
requires each Federal agency responsible for the protection of historic 
resources, including archeological resources, to ensure that all 
actions taken by employees or contractors of the agency shall meet 
professional standards under regulations developed by the Secretary.
    (2) Lead Federal agency. If more than one Federal agency is 
involved in an undertaking, some or all the agencies may designate a 
lead Federal agency,

[[Page 27072]]

which shall identify the appropriate official to serve as the Agency 
Official who shall act on their behalf, fulfilling their collective 
responsibilities under section 106. Those Federal agencies that do not 
designate a lead Federal agency remain individually responsible for 
their compliance with this part.
    (3) Use of contractors. Consistent with applicable conflict of 
interest laws, the Agency Official may use the services of applicants, 
consultants, or designees to prepare information, analyses and 
recommendations under this part. The Agency Official remains legally 
responsible for all required findings and determinations. If a document 
or study is prepared by a non-Federal party, the Agency Official is 
responsible for ensuring that its content meets applicable standards 
and guidelines.
    (4) Consultation. The Agency Official shall involve the consulting 
parties described in Sec. 800.2(c) in findings and determinations made 
during the section 106 process. The Agency Official should plan 
consultations appropriate to the scale of the undertaking and the scope 
of Federal involvement and coordinated with other requirements of other 
statutes, as applicable, such as the National Environmental Policy Act, 
the Native American Graves Protection and Repatriation Act, the 
American Indian Religious Freedom Act, the Archeological Resources 
Protection Act and agency-specific legislation. The Council encourages 
the Agency Official to use to the extent possible existing agency 
procedures and mechanisms to fulfill the consultation requirements of 
this part.
    (b) Council. The Council issues regulations to implement section 
106, provides guidance and advice on the application of the procedures 
in this part, and generally oversees the operation of the section 106 
process. The Council also consults with and comments to Agency 
Officials on individual undertakings and programs that affect historic 
properties.
    (1) Council entry into the section 106 process. When the Council 
determines that its involvement is necessary to ensure that the 
purposes of section 106 and the Act are met, the Council may enter the 
section 106 process. Criteria guiding Council decisions to enter the 
section 106 process are found in appendix A to this part. The Council 
will document that the criteria have been met and notify the parties to 
the section 106 process as required by this part.
    (2) Council assistance. Participants in the section 106 process may 
seek advice, guidance and assistance from the Council on the 
application of this part to specific undertakings, including the 
resolution of disagreements, whether or not the Council is formally 
involved in the review of the undertaking. If questions arise regarding 
the conduct of the section 106 process, participants are encouraged to 
obtain the Council's advice on completing the process.
    (c) Consulting parties. The following parties have consultative 
roles in the section 106 process.
    (1) State Historic Preservation Officer. (i) The State Historic 
Preservation Officer (SHPO) reflects the interests of the State and its 
citizens in the preservation of their cultural heritage. In accordance 
with section 101(b)(3) of the Act, the SHPO advises and assists Federal 
agencies in carrying out their section 106 responsibilities.
    (ii) If an Indian tribe has assumed the functions of the SHPO in 
the section 106 process for undertakings on tribal lands, the SHPO 
shall participate as a consulting party if the undertaking takes place 
on tribal lands but affects historic properties off tribal lands, if 
requested in accordance with Sec. 800.3(c)(1), or if the Indian tribe 
agrees to include the SHPO pursuant to Sec. 800.3(f)(3).
    (2) Tribal Historic Preservation Officer. (i) The Tribal Historic 
Preservation Officer (THPO) appointed or designated in accordance with 
the Act is the official representative of an Indian tribe for the 
purposes of section 106. If an Indian tribe has assumed the 
responsibilities of the SHPO for section 106 on tribal lands under 
section 101(d)(2) of the Act, the Agency Official shall consult with 
the THPO in lieu of the SHPO regarding undertakings occurring on or 
affecting historic properties on tribal lands.
    (ii) If an Indian tribe has not assumed the responsibilities of the 
SHPO for section 106 on tribal lands under section 101(d)(2) of the 
Act, the Agency Official shall consult with a representative designated 
by such Indian tribe in addition to the SHPO regarding undertakings 
occurring on or affecting historic properties on its tribal lands. For 
the purposes of subpart B of this part, such tribal representative 
shall be included in the term ``THPO.''
    (3) Indian tribes and Native Hawaiian organizations. Section 
101(d)(6)(B) of the Act requires the Agency Official to consult with 
any Indian tribe or Native Hawaiian organization that attaches 
religious and cultural significance to historic properties that may be 
affected by an undertaking. Such Indian tribe or Native Hawaiian 
organization shall be a consulting party.
    (i) The Agency Official shall ensure that consultation in the 
section 106 process provides the Indian tribe or Native Hawaiian 
organization a reasonable opportunity to identify its concerns about 
historic properties, advise on the identification and evaluation of 
historic properties, including those of traditional religious and 
cultural importance, articulate its views on the undertaking's effects 
on such properties, and participate in the resolution of adverse 
effects. It is the responsibility of the Agency Official to make a 
reasonable and good faith effort to identify Indian tribes and Native 
Hawaiian organizations that shall be consulted in the section 106 
process. Consultation should commence early in the planning process, in 
order to identify and discuss relevant preservation issues and resolve 
concerns about the confidentiality of information on historic 
properties.
    (ii) The Federal government has a unique legal relationship with 
Indian tribes set forth in the Constitution of the United States, 
treaties, statutes, and court decisions. Consultation with Indian 
tribes should be conducted in a sensitive manner respectful of tribal 
sovereignty. Nothing in this part is intended to alter, amend, repeal, 
interpret or modify tribal sovereignty, any treaty rights, or other 
rights of an Indian tribe, or to preempt, modify or limit the exercise 
of any such rights.
    (iii) Consultation with an Indian tribe must recognize the 
government-to-government relationship between the Federal government 
and Indian tribes. The Agency Official shall consult with 
representatives designated or identified by the tribal government or 
the governing body of a Native Hawaiian organization. Consultation with 
Indian tribes and Native Hawaiian organizations should be conducted in 
a manner sensitive to the concerns and needs of the Indian tribe or 
Native Hawaiian organization.
    (iv) When Indian tribes and Native Hawaiian organizations attach 
religious and cultural significance to historic properties off tribal 
lands, section 101(d)(6)(B) of the Act requires Federal agencies to 
consult with such Indian tribes and Native Hawaiian organizations in 
the section 106 process. Federal agencies should be aware that 
frequently historic properties of religious and cultural significance 
are located on ancestral, aboriginal or ceded lands of Indian tribes 
and Native Hawaiian organizations and should consider that when 
complying with the procedures in this part.
    (v) An Indian tribe or a Native Hawaiian organization may enter 
into an agreement with an Agency Official that specifies how they will 
carry out

[[Page 27073]]

responsibilities under this part, including concerns over the 
confidentiality of information. An agreement may cover all aspects of 
tribal participation in the section 106 process, provided that no 
modification may be made in the roles of other parties to the section 
106 process without their consent. An agreement may grant the Indian 
tribe or Native Hawaiian organization additional rights to participate 
or concur in agency decisions in the section 106 process beyond those 
specified in subpart B of this part. The Agency Official shall provide 
a copy of any such agreement to the Council and the appropriate SHPOs.
    (vi) An Indian tribe that has not assumed the responsibilities of 
the SHPO for section 106 on tribal lands under section 101(d)(2) of the 
Act may notify the Agency Official in writing that it is waiving its 
rights under Sec. 800.6(c)(1) to execute a Memorandum of Agreement.
    (4) Representatives of local governments. A representative of a 
local government with jurisdiction over the area in which the effects 
of an undertaking may occur is entitled to participate as a consulting 
party. Under other provisions of Federal law, the local government may 
be authorized to act as the Agency Official for purposes of section 
106.
    (5) Applicants for Federal assistance, permits, licenses and other 
approvals. An applicant for Federal assistance or for a Federal permit, 
license or other approval is entitled to participate as a consulting 
party as defined in this part. The Agency Official may authorize an 
applicant to initiate consultation with the SHPO/THPO and others, but 
remains legally responsible for all findings and determinations charged 
to the Agency Official. The Agency Official shall notify the SHPO/THPO 
and other consulting parties when an applicant is so authorized.
    (6) Additional consulting parties. Certain individuals and 
organizations with a demonstrated interest in the undertaking may 
participate as consulting parties due to the nature of their legal or 
economic relation to the undertaking or affected properties, or their 
concern with the undertaking's effects on historic properties.
    (d) The public.--(1) Nature of involvement. The views of the public 
are essential to informed Federal decisionmaking in the section 106 
process. The Agency Official shall seek and consider the views of the 
public in a manner that reflects the nature and complexity of the 
undertaking and its effects on historic properties, the likely interest 
of the public in the effects on historic properties, confidentiality 
concerns of private individuals and businesses, and the relationship of 
the Federal involvement to the undertaking.
    (2) Providing notice and information. The Agency Official must, 
except where appropriate to protect confidentiality concerns of 
affected parties, provide the public with information about an 
undertaking and its effects on historic properties and seek public 
comment and input. Members of the public may also provide views on 
their own initiative for the Agency Official to consider in 
decisionmaking.
    (3) Use of agency procedures. The Agency Official may use the 
agency's procedures for public involvement under the National 
Environmental Policy Act or other program requirements in lieu of 
public involvement requirements in subpart B of this part, if they 
provide adequate opportunities for public involvement consistent with 
this subpart.

Subpart B--The Section 106 Process


Sec. 800.3  Initiation of the section 106 process.

    (a) Establish undertaking. The Agency Official shall determine 
whether the proposed Federal action is an undertaking as defined in 
Sec. 800.16(y) and, if so, whether it is a type of activity that has 
the potential to cause effects on historic properties.
    (1) No potential to cause effects. If the undertaking does not have 
the potential to cause effects on historic properties, the Agency 
Official has no further obligations under section 106 or this part.
    (2) Program alternatives. If the review of the undertaking is 
governed by a Federal agency program alternative established under 
Sec. 800.14 or a Programmatic Agreement in existence before the 
effective date of these regulations, the Agency Official shall follow 
the program alternative.
    (b) Coordinate with other reviews. The Agency Official should 
coordinate the steps of the section 106 process, as appropriate, with 
the overall planning schedule for the undertaking and with any reviews 
required under other authorities such as the National Environmental 
Policy Act, the Native American Graves Protection and Repatriation Act, 
the American Indian Religious Freedom Act, the Archaeological Resources 
Protection Act and agency-specific legislation, such as section 4(f) of 
the Department of Transportation Act. Where consistent with the 
procedures in this subpart, the Agency Official may use information 
developed for other reviews under Federal, State or tribal law to meet 
the requirements of section 106.
    (c) Identify the appropriate SHPO and/or THPO. As part of its 
initial planning, the Agency Official shall determine the appropriate 
SHPO or SHPOs to be involved in the section 106 process. The Agency 
Official shall also determine whether the undertaking may occur on or 
affect historic properties on any tribal lands and, if so, whether a 
THPO has assumed the duties of the SHPO. The Agency Official shall then 
initiate consultation with the appropriate Officer or Officers.
    (1) Tribal assumption of SHPO responsibilities. Where an Indian 
tribe has assumed the section 106 responsibilities of the SHPO on 
tribal lands pursuant to section 101(d)(2) of the Act, consultation for 
undertakings occurring on tribal land or for effects on tribal land is 
with the THPO for the Indian tribe in lieu of the SHPO. Section 
101(d)(2)(D)(iii) of the Act authorizes owners of properties on tribal 
lands which are neither owned by a member of the tribe nor held in 
trust by the Secretary for the benefit of the tribe to request the SHPO 
to participate in the section 106 process in addition to the THPO.
    (2) Undertakings involving more than one State. If more than one 
State is involved in an undertaking, the involved SHPOs may agree to 
designate a lead SHPO to act on their behalf in the section 106 
process, including taking actions that would conclude the section 106 
process under this subpart.
    (3) Conducting consultation. The Agency Official should consult 
with the SHPO/THPO in a manner appropriate to the agency planning 
process for the undertaking and to the nature of the undertaking and 
its effects on historic properties.
    (4) Failure of the SHPO/THPO to respond. If the SHPO/THPO fails to 
respond within 30 days of receipt of a request for review of a finding 
or determination, the Agency Official may either proceed to the next 
step in the process based on the finding or determination or consult 
with the Council in lieu of the SHPO/THPO. If the SHPO/THPO re-enters 
the section 106 process, the Agency Official shall continue the 
consultation without being required to reconsider previous findings or 
determinations.
    (d) Consultation on tribal lands. Where the Indian tribe has not 
assumed the responsibilities of the SHPO on tribal lands, consultation 
with the Indian tribe regarding undertakings occurring on such tribe's 
lands or effects on such tribal lands shall be in addition

[[Page 27074]]

to and on the same basis as consultation with the SHPO. If the SHPO has 
withdrawn from the process, the Agency Official may complete the 
section 106 process with the Indian tribe and the Council, as 
appropriate. An Indian tribe may enter into an agreement with a SHPO or 
SHPOs specifying the SHPO's participation in the section 106 process 
for undertakings occurring on or affecting historic properties on 
tribal lands.
    (e) Plan to involve the public. In consultation with the SHPO/THPO, 
the Agency Official shall plan for involving the public in the section 
106 process. The Agency Official shall identify the appropriate points 
for seeking public input and for notifying the public of proposed 
actions, consistent with Sec. 800.2(d).
    (f) Identify other consulting parties. In consultation with the 
SHPO/THPO, the Agency Official shall identify any other parties 
entitled to be consulting parties and invite them to participate as 
such in the section 106 process. The Agency Official may invite others 
to participate as consulting parties as the section 106 process moves 
forward.
    (1) Involving local governments and applicants. The Agency Official 
shall invite any local governments or applicants that are entitled to 
be consulting parties under Sec. 800.2(c).
    (2) Involving Indian tribes and Native Hawaiian organizations. The 
Agency Official shall make a reasonable and good faith effort to 
identify any Indian tribes or Native Hawaiian organizations that might 
attach religious and cultural significance to historic properties in 
the area of potential effects and invite them to be consulting parties. 
Such Indian tribe or Native Hawaiian organization that requests in 
writing to be a consulting party shall be one.
    (3) Requests to be consulting parties. The Agency Official shall 
consider all written requests of individuals and organizations to 
participate as consulting parties and, in consultation with the SHPO/
THPO and any Indian tribe upon whose tribal lands an undertaking occurs 
or affects historic properties, determine which should be consulting 
parties.
    (g) Expediting consultation. A consultation by the Agency Official 
with the SHPO/THPO and other consulting parties may address multiple 
steps in Secs. 800.3-800.6 where the Agency Official and the SHPO/THPO 
agree it is appropriate as long as the consulting parties and the 
public have an adequate opportunity to express their views as provided 
in Sec. 800.2(d).


Sec. 800.4  Identification of historic properties.

    (a) Determine scope of identification efforts. The Agency Official 
shall consult with the SHPO/THPO to:
    (1) Determine and document the area of potential effects, as 
defined in Sec. 800.16(d);
    (2) Review existing information on historic properties within the 
area of potential effects, including any data concerning possible 
historic properties not yet identified;
    (3) Seek information, as appropriate, from consulting parties, and 
other individuals and organizations likely to have knowledge of, or 
concerns with, historic properties in the area, and identify issues 
relating to the undertaking's potential effects on historic properties; 
and
    (4) Gather information from any Indian tribe or Native Hawaiian 
organization identified pursuant to Sec. 800.3(f) to assist in 
identifying properties, including those located off tribal lands, which 
may be of religious and cultural significance to them and may be 
eligible for the National Register, recognizing that an Indian tribe or 
native Hawaiian organization may be reluctant to divulge specific 
information regarding the location, nature, and activities associated 
with such sites. The Agency Official should address concerns raised 
about confidentiality pursuant to Sec. 800.11(c).
    (b) Identify historic properties. Based on the information gathered 
under Sec. 800.4(a), and in consultation with the SHPO/THPO and any 
Indian tribe or native Hawaiian organization that might attach 
religious and cultural significance to properties within the area of 
potential effects, the Agency Official shall take the steps necessary 
to identify historic properties within the area of potential effects.
    (1) Level of effort. The Agency Official shall make a reasonable 
and good faith effort to carry out appropriate identification efforts, 
which may include background research, consultation, oral history 
interviews, sample field investigation, and field survey. The Agency 
Official shall take into account past planning, research and studies, 
the magnitude and nature of the undertaking and the degree of Federal 
involvement, the nature and extent of potential effects on historic 
properties, and the likely nature and location of historic properties 
within the area of potential effects. The Secretary's Standards and 
Guidelines for Identification provide guidance on this subject. The 
Agency Official should also consider other applicable professional, 
State, tribal and local laws, standards and guidelines. The Agency 
Official shall take into account any confidentiality concerns raised by 
Indian tribes or Native Hawaiian organizations during the 
identification process.
    (2) Phased identification and evaluation. Where alternatives under 
consideration consist of corridors or large land areas, or where access 
to properties is restricted, the Agency Official may use a phased 
process to conduct identification and evaluation efforts. The Agency 
Official may also defer final identification and evaluation of historic 
properties if it is specifically provided for in a Memorandum of 
Agreement executed pursuant to Sec. 800.6, a Programmatic Agreement 
executed pursuant to Sec. 800.14(b), or the documents used by an Agency 
Official to comply with the National Environmental Policy Act pursuant 
to Sec. 800.8. The process should establish the likely presence of 
historic properties within the area of potential effects for each 
alternative or inaccessible area through background research, 
consultation and an appropriate level of field investigation, taking 
into account the number of alternatives under consideration, the 
magnitude of the undertaking and its likely effects, and the views of 
the SHPO/THPO and any other consulting parties. As specific aspects or 
locations of an alternative are refined or access is gained, the Agency 
Official shall proceed with the identification and evaluation of 
historic properties in accordance with Secs. 800.4(b)(1) and (c).
    (c) Evaluate historic significance.--(1) Apply National Register 
Criteria. In consultation with the SHPO/THPO and any Indian tribe or 
Native Hawaiian organization that attaches religious and cultural 
significance to identified properties and guided by the Secretary's 
Standards and Guidelines for Evaluation, the Agency Official shall 
apply the National Register Criteria (36 CFR part 63) to properties 
identified within the area of potential effects that have not been 
previously evaluated for National Register eligibility. The passage of 
time, changing perceptions of significance, or incomplete prior 
evaluations may require the Agency Official to reevaluate properties 
previously determined eligible or ineligible. The Agency Official shall 
acknowledge that Indian tribes and Native Hawaiian organizations 
possess special expertise in assessing the eligibility of historic 
properties that may possess religious and cultural significance to 
them.
    (2) Determine whether a property is eligible. If the Agency 
Official determines any of the National Register

[[Page 27075]]

Criteria are met and the SHPO/THPO agrees, the property shall be 
considered eligible for the National Register for section 106 purposes. 
If the Agency Official determines the criteria are not met and the 
SHPO/THPO agrees, the property shall be considered not eligible. If the 
Agency Official and the SHPO/THPO do not agree, or if the Council or 
the Secretary so request, the Agency Official shall obtain a 
determination of eligibility from the Secretary pursuant to 36 CFR part 
63. If an Indian tribe or Native Hawaiian organization that attaches 
religious and cultural significance to a property off tribal lands does 
not agree, it may ask the Council to request the Agency Official to 
obtain a determination of eligibility.
    (d) Results of identification and evaluation.--(1) No historic 
properties affected. If the Agency Official finds that either there are 
no historic properties present or there are historic properties present 
but the undertaking will have no effect upon them as defined in 
Sec. 800.16(i), the Agency Official shall provide documentation of this 
finding as set forth in Sec. 800.11(d) to the SHPO/THPO. The Agency 
Official shall notify all consulting parties, including Indian tribes 
and Native Hawaiian organizations, and make the documentation available 
for public inspection prior to approving the undertaking. If the SHPO/
THPO, or the Council if it has entered the section 106 process, does 
not object within 30 days of receipt of an adequately documented 
finding, the Agency Official's responsibilities under section 106 are 
fulfilled.
    (2) Historic properties affected. If the Agency Official finds that 
there are historic properties which may be affected by the undertaking 
or the SHPO/THPO or the Council objects to the Agency Official's 
finding under Sec. 800.4(d)(1), the Agency Official shall notify all 
consulting parties, including Indian tribes or Native Hawaiian 
organizations, invite their views on the effects and assess adverse 
effects, if any, in accordance with Sec. 800.5.


Sec. 800.5  Assessment of adverse effects.

    (a) Apply criteria of adverse effect. In consultation with the 
SHPO/THPO and any Indian tribe or Native Hawaiian organization that 
attaches religious and cultural significance to identified historic 
properties, the Agency Official shall apply the criteria of adverse 
effect to historic properties within the area of potential effects. The 
Agency Official shall consider any views concerning such effects which 
have been provided by consulting parties and the public.
    (1) Criteria of adverse effect. An adverse effect is found when an 
undertaking may alter, directly or indirectly, and of the 
characteristics of a historic property that qualify the property for 
inclusion in the National Register in a manner that would diminish the 
integrity of the property's location, design, setting, materials, 
workmanship, feeling, or association. Consideration shall be given to 
all qualifying characteristics of a historic property, including those 
that may have been identified subsequent to the original evaluation of 
the property's eligibility for the National Register. Adverse effects 
may include reasonably foreseeable effects caused by the undertaking 
that may occur later in time, be farther removed in distance or be 
cumulative.
    (2) Examples of adverse effects. Adverse effects on historic 
properties include, but are not limited to:
    (i) Physical destruction of or damage to all or part of the 
property;
    (ii) Alteration of a property, including restoration, 
rehabilitation, repair, maintenance, stabilization, hazardous material 
remediation and provision of handicapped access, that is not consistent 
with the Secretary's Standards for the Treatment of Historic Properties 
(36 CFR part 68) and applicable guidelines;
    (iii) Removal of the property from its historic location;
    (iv) Change of the character of the property's use or of physical 
features within the property's setting that contribute to its historic 
significance;
    (v) Introduction of visual, atmospheric or audible elements that 
diminish the integrity of the property's significant historic features;
    (vi) Neglect of a property which causes its deterioration, except 
where such neglect and deterioration are recognized qualities of a 
property of religious and cultural significance to an Indian tribe or 
Native Hawaiian organization; and
    (vii) Transfer, lease, or sale of property out of Federal ownership 
or control without adequate and legally enforceable restrictions or 
conditions to ensure long-term preservation of the property's historic 
significance.
    (3) Phased application of criteria. Where alternatives under 
consideration consist of corridors or large land areas, or where access 
to properties is restricted, the Agency Official may use a phased 
process in applying the criteria of adverse effect consistent with 
phased identification and evaluation efforts conducted pursuant to 
Sec. 800.4(b)(2).
    (b) Finding of no adverse effect. The Agency Official, in 
consultation with the SHPO/THPO, may propose a finding of no adverse 
effect when the undertaking's effects do not meet the criteria of 
Sec. 800.5(a)(1) or the undertaking is modified or conditions are 
imposed, such as the subsequent review of plans for rehabilitation by 
the SHPO/THPO to ensure consistency with the Secretary's Standards for 
the Treatment of Historic Properties (36 CFR part 68) and applicable 
guidelines, to avoid adverse effects.
    (c) Consulting party review. If the Agency Official proposes a 
finding of no adverse effect, the Agency Official shall notify all 
consulting parties of the finding and provide them with the 
documentation specified in Sec. 800.11(e). The SHPO/THPO shall have 30 
days from receipt to review the finding.
    (1) Agreement with finding. Unless the Council is reviewing the 
finding pursuant to Sec. 800.5(c)(3), the Agency Official may proceed 
if the SHPO/THPO agrees with the finding. The Agency Official shall 
carry out the undertaking in accordance with Sec. 800.5(d)(1). Failure 
of the SHPO/THPO to respond within 30 days from receipt of the finding 
shall be considered agreement of the SHPO/THPO with the finding.
    (2) Disagreement with finding. (i) If the SHPO/THPO or any 
consulting party disagrees within the 30-day review period, it shall 
specify the reasons for disagreeing with the finding. The Agency 
Official shall either consult with the party to resolve the 
disagreement, or request the Council to review the finding pursuant to 
Sec. 800.5(c)(3).
    (ii) The Agency Official should seek the concurrence of any Indian 
tribe or Native Hawaiian organization that has made known to the Agency 
Official that it attaches religious and cultural significance to a 
historic property subject to the finding. If such Indian tribe or 
Native Hawaiian organization disagrees with the finding, it may within 
the 30-day review period specify the reasons for disagreeing with the 
finding and request the Council to review the finding pursuant to 
Sec. 800.5(c)(3).
    (iii) If the Council on its own initiative so requests within the 
30-day review period, the Agency Official shall submit the finding, 
along with the documentation specified in Sec. 800.11(e), for review 
pursuant to Sec. 800.5(c)(3). A Council decision to make such a request 
shall be guided by the criteria in appendix A to this part.
    (3) Council review of findings. When a finding is submitted to the 
Council pursuant to Sec. 800.5(c)(2), the Agency Official shall include 
the documentation specified in Sec. 800.11(e). The Council shall review 
the finding and notify the

[[Page 27076]]

Agency Official of its determination as to whether the adverse effect 
criteria have been correctly applied within 15 days of receiving the 
documented finding from the Agency Official. The Council shall specify 
the basis for its determination. The Agency Official shall proceed in 
accordance with the Council's determination. If the Council does not 
respond within 15 days of the receipt of the finding, the Agency 
Official may assume concurrence with the Agency Official's findings and 
proceed accordingly.
    (d) Results of assessment.--(1) No adverse effect. The Agency 
Official shall maintain a record of the finding and provide information 
on the finding to the public on request, consistent with the 
confidentiality provisions of Sec. 800.11(c). Implementation of the 
undertaking in accordance with the finding as documented fulfills the 
Agency Official's responsibilities under section 106 and this part. If 
the Agency Official will not conduct the undertaking as proposed in the 
finding, the Agency Official shall reopen consultation under 
Sec. 800.5(a).
    (2) Adverse effect. If an adverse effect is found, the Agency 
Official shall consult further to resolve the adverse effect pursuant 
to Sec. 800.6.


Sec. 800.6  Resolution of adverse effects.

    (a) Continue consultation. The Agency Official shall consult with 
the SHPO/THPO and other consulting parties, including Indian tribes and 
Native Hawaiian organizations, to develop and evaluate alternatives or 
modifications to the undertaking that could avoid, minimize or mitigate 
adverse effects on historic properties.
    (1) Notify the Council and determine Council participation. The 
Agency Official shall notify the Council of the adverse effect finding 
by providing the documentation specified in Sec. 800.11(e).
    (i) The notice shall invite the Council to participate in the 
consultation when:
    (A) The Agency Official wants the Council to participate;
    (B) The undertaking has an adverse effect upon a National Historic 
Landmark; or
    (C) A Programmatic Agreement under Sec. 800.14(b) will be prepared;
    (ii) The SHPO/THPO, an Indian tribe or Native Hawaiian 
organization, or any other consulting party may at any time 
independently request the Council to participate in the consultation.
    (iii) The Council shall advise the Agency Official and all 
consulting parties whether it will participate within 15 days of 
receipt of notice or other request. Prior to entering the process, the 
Council shall provide written notice to the Agency Official and the 
consulting parties that its decision to participate meets the criteria 
set forth in appendix A to this part. The Council shall also advise the 
head of the agency of its decision to enter the process. Consultation 
with Council participation is conducted in accordance with 
Sec. 800.6(b)(2). (iv) If the Council does not join the consultation, 
the Agency Official shall proceed with consultation in accordance with 
Sec. 800.6(b) (1).
    (2) Involve consulting parties. In addition to the consulting 
parties identified under Sec. 800.3(f), the Agency Official, the SHPO/
THPO and the Council, if participating, may agree to invite other 
individuals or organizations to become consulting parties. The Agency 
Official shall invite any individual or organization that will assume a 
specific role or responsibility in a Memorandum of Agreement to 
participate as a consulting party.
    (3) Provide documentation. The Agency Official shall provide to all 
consulting parties the documentation specified in Sec. 800.11(e), 
subject to the confidentiality provisions of Sec. 800.11(c), and such 
other documentation as may be developed during the consultation to 
resolve adverse effects.
    (4) Involve the public. The Agency Official shall make information 
available to the public, including the documentation specified in 
Sec. 800.11(e), subject to the confidentiality provisions of 
Sec. 800.11(c). The Agency Official shall provide an opportunity for 
members of the public to express their views on resolving adverse 
effects of the undertaking. The Agency Official should use appropriate 
mechanisms, taking into account the magnitude of the undertaking and 
the nature of its effects upon historic properties, the likely effects 
on historic properties, and the relationship of the Federal involvement 
to the undertaking to ensure that the public's views are considered in 
the consultation. The Agency Official should also consider the extent 
of notice and information concerning historic preservation issues 
afforded the public at earlier steps in the Section 106 process to 
determine the appropriate level of public involvement when resolving 
adverse effects so that the standards of Sec. 800.2(d) are met.
    (5) Restrictions on disclosure of information. Section 304 of the 
Act and other authorities may limit the disclosure of information under 
Secs. 800.6(a)(3) and (4). If an Indian tribe or Native Hawaiian 
organization objects to the disclosure of information or if the Agency 
Official believes that there are other reasons to withhold information, 
the Agency Official shall comply with Sec. 800.11(c) regarding the 
disclosure of such information.
    (b) Resolve adverse effects--(1) Resolution without the Council. 
(i) The Agency Official shall consult with the SHPO/THPO and other 
consulting parties to seek ways to avoid, minimize or mitigate the 
adverse effects.
    (ii) The Agency Official may use standard treatments established by 
the Council under Sec. 800.14(d) as a basis for a Memorandum of 
Agreement.
    (iii) If the Council decides to join the consultation, the Agency 
Official shall follow Sec. 800.6(b)(2).
    (iv) If the Agency Official and the SHPO/THPO agree on how the 
adverse effects will be resolved, they shall execute a Memorandum of 
Agreement. The Agency Official must submit a copy of the executed 
Memorandum of Agreement, along with the documentation specified in 
Sec. 800.11(f), to the Council prior to approving the undertaking in 
order to meet the requirements of section 106 and this subpart.
    (v) If the Agency Official, and the SHPO/THPO fail to agree on the 
terms of a Memorandum of Agreement, the Agency Official shall request 
the Council to join the consultation and provide the Council with the 
documentation set forth in Sec. 800.11(g). If the Council decides to 
join the consultation, the Agency Official shall proceed in accordance 
with Sec. 800.6(b)(2). If the Council decides not to join the 
consultation, the Council will notify the agency and proceed to comment 
in accordance with Sec. 800.7(c).
    (2) Resolution with Council participation. If the Council decides 
to participate in the consultation, the Agency Official shall consult 
with the SHPO/THPO, the Council, and other consulting parties, 
including Indian tribes and Native Hawaiian organizations under 
Sec. 800.2(c)(3), to seek ways to avoid, minimize or mitigate the 
adverse effects. If the Agency Official, the SHPO/THPO, and the Council 
agree on how the adverse effects will be resolved, they shall execute a 
Memorandum of Agreement.
    (c) Memorandum of Agreement. A Memorandum of Agreement executed and 
implemented pursuant to this section evidences the Agency Official's 
compliance with section 106 and this part and shall govern the 
undertaking and all of its parts. A Memorandum of Agreement executed 
pursuant to Sec. 800.6(b)(1) that is filed with the Council shall be 
considered to be an agreement with the Council for the purposes of 
Section 110(1) of the Act. The Agency Official shall ensure that

[[Page 27077]]

the undertaking is carried out in accordance with the Memorandum of 
Agreement.
    (1) Signatories. The signatories have sole authority to execute, 
amend or terminate the agreement in accordance with this subpart.
    (i) The Agency Official and the SHPO/THPO are the signatories to a 
Memorandum of Agreement executed pursuant to Sec. 800.6(b)(1).
    (ii) The Agency Official, the SHPO/THPO, and the Council are the 
signatories to a Memorandum of Agreement executed pursuant to 
Sec. 800.6(b)(2).
    (iii) The Agency Official and the Council are signatories to a 
Memorandum of Agreement executed pursuant to Sec. 800.7(a)(2).
    (2) Invited signatories. (i) The Agency Official may invite an 
Indian tribe or Native Hawaiian organization that attaches religious 
and cultural significance to historic properties located off tribal 
lands to be a signatory to a Memorandum of Agreement concerning such 
properties.
    (ii) The signatories should invite any party that assumes a 
responsibility under a Memorandum of Agreement to be a signatory.
    (iii) The refusal of any party invited to become a signatory to a 
Memorandum of Agreement pursuant to Sec. 800.6(c)(2)(i) or (ii) does 
not invalidate the Memorandum of Agreement.
    (3) Concurrence by others. The Agency Official may invite all 
consulting parties to concur in the Memorandum of Agreement. The 
signatories may agree to invite others to concur. The refusal of any 
party invited to concur in the Memorandum of Agreement does not 
invalidate the Memorandum of Agreement.
    (4) Reports on implementation. Where the signatories agree it is 
appropriate, a Memorandum of Agreement shall include a provision for 
monitoring and reporting on its implementation.
    (5) Duration. A Memorandum of Agreement shall include provisions 
for termination and for reconsideration of terms if the undertaking has 
not been implemented within a specified time.
    (6) Discoveries. Where the signatories agree it is appropriate, a 
Memorandum of Agreement shall include provisions to deal with the 
subsequent discovery or identification of additional historic 
properties affected by the undertaking.
    (7) Amendments. The signatories to a Memorandum of Agreement may 
amend it. If the Council was not a signatory to the original agreement 
and the signatories execute an amended agreement, the Agency Official 
shall file it with the Council.
    (8) Termination. If any signatory determines that the terms of a 
Memorandum of Agreement cannot be carried out, the signatories shall 
consult to seek amendment of the agreement. If the agreement is not 
amended, any signatory may terminate it. The Agency Official shall 
either execute a Memorandum of Agreement with signatories under 
Sec. 800.6(c)(1) or request the comments of the council under 
Sec. 800.7(a).
    (9) Copies. The Agency Official shall provide each consulting party 
with a copy of any Memorandum of Agreement executed pursuant to this 
subpart.


Sec. 800.7  Failure to resolve adverse effects.

    (a) Termination of consultation. After consulting to resolve 
adverse effects pursuant to Sec. 800.6(b)(2), the Agency Official the 
SHPO/THPO, or the Council may determine that further consultation will 
not be productive and terminate consultation. Any party that terminates 
consultation shall notify the other consulting parties and provide them 
the reasons for terminating in writing.
    (1) If the Agency Official terminates consultation, the head of the 
agency or an Assistant Secretary or other officer with major 
department-wide or agency-wide responsibilities shall request that the 
Council comment pursuant to Sec. 800.7(c) and shall notify all 
consulting parties of the request.
    (2) If the SHPO terminates consultation, the Agency Official and 
the Council may execute a Memorandum of Agreement without the SHPO's 
involvement.
    (3) If a THPO terminates consultation regarding an undertaking 
occurring on or affecting historic properties on its tribal lands, the 
Council shall comment pursuant to Sec. 800.7(c).
    (4) If the Council terminates consultation, the Council shall 
notify the Agency Official, the agency's Federal Preservation Officer 
and all consulting parties of the termination and comment under 
Sec. 800.7(c). The Council may consult with the agency's Federal 
Preservation Officer prior to terminating consultation to seek to 
resolve issues concerning the undertaking and its effects on historic 
properties.
    (b) Comments without termination. The Council may determine that it 
is appropriate to provide additional advisory comments upon an 
undertaking for which a Memorandum of Agreement will be executed. The 
Council shall provide them to the Agency Official when it executes the 
Memorandum of Agreement.
    (c) Comments by the Council.--(1) Preparation. The Council shall 
provide an opportunity for the Agency Official, all consulting parties, 
and the public to provide their views within the time frame for 
developing its comments. Upon request of the Council, the Agency 
Official shall provide additional existing information concerning the 
undertaking and assist the Council in arranging an onsite inspection 
and an opportunity for public participation.
    (2) Timing. The Council shall transmit its comments within 45 days 
of receipt of a request under Secs. 800.7(a) (1) or (3) or 
Sec. 800.8(c)(3), or termination by the Council under 
Sec. 800.6(b)(1)(v) or Sec. 800.7(a)(4), unless otherwise agreed to by 
the Agency Official.
    (3) Transmittal. The Council shall provide its comments to the head 
of the agency requesting comment with copies to the Agency Official, 
the agency's Federal Preservation Officer, all consulting parties, and 
others as appropriate.
    (4) Response to Council comment. The head of the agency shall take 
into account the Council's comments in reaching a final decision on the 
undertaking. Section 110(1) of the Act directs that the head of the 
agency shall document this decision and may not delegate his or her 
responsibilities pursuant to section 106. Documenting the agency head's 
decision shall include:
    (i) Preparing a summary of the decision that contains the rationale 
for the decision and evidence of consideration of the Council's 
comments and providing it to the Council prior to approval of the 
undertaking;
    (ii) Providing a copy of the summary to all consulting parties; and
    (iii) Notifying the public and making the record available for 
public inspection.


Sec. 800.8  Cooordination with the National Environmental Policy Act.

    (a) General principles.--(1) Early coordination. Federal agencies 
are encouraged to coordinate compliance with section 106 and the 
procedures in this part with any steps taken to meet the requirements 
of the National Environmental Policy Act (NEPA). Agencies should 
consider their Section 106 responsibilities as early as possible in the 
NEPA process, and plan their public participation, analysis, and review 
in such a way that they can meet the purposes and requirements of both 
statutes in a timely and efficient manner. The determination of whether 
an undertaking is a ``major Federal action significantly affecting the 
quality of the human environment,'' and therefore requires preparation 
of an

[[Page 27078]]

Environmental Impact Statement (EIS) under NEPA, should include 
consideration of the undertaking's likely effects on historic 
properties. A finding of adverse effect on a historic property does not 
necessarily require an EIS under NEPA.
    (2) Consulting party rules. SHPO/THPOs, Indian tribes and Native 
Hawaiian organizations, other consulting parties, and organizations and 
individuals who may be concerned with the possible effects of an agency 
action on historic properties should be prepared to consult with 
agencies early in the NEPA process, when the purpose of and need for 
the proposed action as well as the widest possible range of 
alternatives are under consideration.
    (3) Inclusion of historic preservation issues. Agency Officials 
should ensure that preparation of an Environmental Assessment (EA) and 
Finding of No Significant Impact (FONSI) and an EIS and Record of 
Decision (ROD) includes appropriate scoping, identification of historic 
properties, assessment of effects upon them, and consultation leading 
to resolution of any adverse effects.
    (b) Actions categorically excluded under NEPA. If a project, 
activity or program is categorically excluded from NEPA review under an 
agency's NEPA procedures, the Agency Official shall determine if it 
still qualifies as an undertaking requiring review under section 106 
pursuant to Sec. 800.3(a). If so, the Agency Official shall proceed 
with Section 106 review in accordance with the procedures in this 
subpart.
    (c) Use of the NEPA process for section 106 purposes. An Agency 
Official may use the process and documentation required for the 
preparation of an EA/FONSI or an EIS/ROD to comply with section 106 in 
lieu of the procedures set forth in Secs. 800.3 through 800.6 if the 
Agency Official has notified in advance the SHPO/THPO and the Council 
that it intends to do so and the following standards are met.
    (1) Standards for developing environmental documents to comply with 
section 106. During preparation of the EA or Draft EIS (DEIS) the 
Agency Official shall:
    (i) Identify consulting parties either pursuant to Sec. 800.3(f) or 
through NEPA scoping process with results consistent with 
Sec. 800.3(f);
    (ii) Identify historic properties and assess the effects of the 
undertaking on such properties in a manner consistent with the 
standards and criteria of Secs. 800.4 through 800.5, provided that the 
scope and timing of these steps may be phased to reflect the Agency 
Official's consideration of project alternatives in the NEPA process 
and the effort is commensurate with the assessment of other 
environmental factors;
    (iii) Consult regarding the effects of the undertaking on historic 
properties with the SHPO/THPO, Indian tribes and Native Hawaiian 
organizations that might attach religious and cultural significance to 
affected historic properties, other consulting parties, and the 
Council, where appropriate, during NEPA scoping, environmental 
analysis, and the preparation of NEPA documents;
    (iv) Involve the public in accordance with the agency's published 
NEPA procedures; and
    (v) Develop in consultation with identified consulting parties 
alternatives and proposed measures that might avoid, minimize or 
mitigate any adverse effects of the undertaking on historic properties 
and describe them in the EA or DEIS.
    (2) Review of environmental documents. (i) The Agency Official 
shall submit the EA, DEIS or EIS to the SHPO/THPO, Indian tribes and 
Native Hawaiian organizations that might attach religious and cultural 
significance to affected historic properties, and other consulting 
parties prior to or when making the document available for public 
comment. If the document being prepared is a DEIS or EIS, the Agency 
Official shall also submit it to the Council.
    (ii) Prior to or within the time allowed for public comment on the 
document, a SHPO/THPO, an Indian tribe or Native Hawaiian organization, 
another consulting party or the Council may object to the Agency 
Official that preparation of the EA, DEIS or EIS has not met the 
standards set forth in Sec. 800.8(c)(1) or that the substantive 
resolution of the effects on historic properties proposed in an EA, 
DEIS or EIS is inadequate. If the Agency Official receives such an 
objection, the Agency Official shall refer the matter to the Council.
    (3) Resolution of objections. Within 30 days of the Agency 
Official's referral of an objection under Sec. 800.8(c)(2)(ii), the 
Council shall notify the Agency Official either that it agrees with the 
objection, in which case the Agency Official shall enter into 
consultation in accordance with Sec. 800.6(b)(2) or seek Council 
comments in accordance with Sec. 800.7(a), or that it disagrees with 
the objection, in which case the Agency Official shall continue its 
compliance with this section. Failure of the Council to respond within 
the 30 day period shall be considered disagreement with the objection.
    (4) Approval of the undertaking. If the Agency Official has found 
during the preparation of the EA, DEIS or EIS that the effects of the 
undertaking on historic properties are adverse, the Agency Official 
shall specify in the FONSI or the ROD the proposed measures to avoid, 
minimize or mitigate such effects and ensure that the approval of the 
undertaking is conditioned accordingly. The Agency Official's 
responsibilities under Section 106 and the procedures in this subpart 
shall then be satisfied when either the proposed measures have been 
adopted through a binding commitment on the agency, the applicant or 
other entities, as appropriate, or the Council has commented and 
received the response to such comments under Sec. 800.7. Where the NEPA 
process results in a FONSI, the Agency Official must adopt such a 
binding commitment through a Memorandum of Agreement drafted in 
compliance with Sec. 800.6(c). Where the NEPA process results in an 
EIS, the binding commitment does not have to be in the form of a 
Memorandum of Agreement drafted in compliance with Sec. 800.6(c).
    (5) Modification of the undertaking. If the undertaking is modified 
after approval of the FONSI or the ROD in a manner that changes the 
undertaking or alters its effects on historic properties, or if the 
Agency Official fails to ensure that the measures to avoid, minimize or 
mitigate adverse effects (as specified in either the FONSI or the ROD, 
or in the binding commitment adopted pursuant to Sec. 800.8(c)(4)) are 
carried out, the Agency official shall notify the Council and all 
consulting parties that supplemental environmental documents will be 
prepared in compliance with NEPA or that the procedures in Secs. 800.3 
through 800.6 will be followed as necessary.


Sec. 800.9  Council review of Section 106 compliance.

    (a) Assessment of Agency Official compliance for individual 
undertakings. The Council may provide to the Agency Official its 
advisory opinion regarding the substance of any finding, determination 
or decision or regarding the adequacy of the Agency Official's 
compliance with the procedures under this part. The Council may provide 
such advice at any time at the request of any individual, agency or 
organization or on its own initiative. The Agency Official shall 
consider the views of the Council in reaching a decision on the matter 
in question.
    (b) Agency foreclosure of the Council's opportunity to comment. 
Where an Agency Official has failed to

[[Page 27079]]

complete the requirements of section 106 in accordance with the 
procedures in this part prior to the approval of an undertaking, the 
Council's opportunity to comment may be foreclosed. The Council may 
review a case to determine whether a foreclosure has occurred. The 
Council shall notify the Agency Official and the agency's Federal 
Preservation Officer and allow 30 days for the Agency Official to 
provide information as to whether foreclosure has occurred. If the 
Council determines foreclosure has occurred, the Council shall transmit 
the determination to the Agency Official and the head of the agency. 
The Council shall also make the determination available to the public 
and any parties known to be interested in the undertaking and its 
effects upon historic properties.
    (c) Intentional adverse effects by applicants.--(1) Agency 
responsibility. Section 110(k) of the Act prohibits a Federal agency 
from granting a loan, loan guarantee, permit, license or other 
assistance to an applicant who, with intent to avoid the requirements 
of section 106, has intentionally significantly adversely affected a 
historic property to which the grant would relate, or having legal 
power to prevent it, has allowed such significant adverse effect to 
occur, unless the agency, after consultation with the Council, 
determines that circumstances justify granting such assistance despite 
the adverse effect created or permitted by the applicant. Guidance 
issued by the Secretary pursuant to section 110 of the Act governs its 
implementation.
    (2) Consultation with the Council. When an Agency Official 
determines, based on the actions of an applicant, that section 110(k) 
is applicable and that circumstances may justify granting the 
assistance, the Agency Official shall notify the Council and provide 
documentation specifying the circumstances under which the adverse 
effects to the historic property occurred and the degree of damage to 
the integrity of the property. This documentation shall include any 
views obtained from the applicant, SHPO/THPO, an Indian tribe if the 
undertaking occurs on or affects historic properties on tribal lands, 
and other parties known to be interested in the undertaking.
    (i) Within thirty days of receiving the Agency Official's 
notification, unless otherwise agreed to by the Agency Official, the 
Council shall provide the Agency Official with its opinion as to 
whether circumstances justify granting assistance to the applicant and 
any possible mitigation of the adverse effects.
    (ii) The Agency Official shall consider the Council's opinion in 
making a decision on whether to grant assistance to the applicant, and 
shall notify the Council, the SHPO/THPO, and other parties known to be 
interested in the undertaking prior to granting the assistance.
    (3) Compliance with Section 106. If an Agency Official, after 
consulting with the Council, determines to grant the assistance, the 
Agency Official shall comply with Secs. 800.3-800.6 to take into 
account the effects of the undertaking on any historic properties.
    (d) Evaluation of Section 106 operations. The Council may evaluate 
the operation of the Section 106 process by periodic reviews of how 
participants have fulfilled their legal responsibilities and how 
effectively the outcomes reached advance the purposes of the Act.
    (1) Information from participants. Section 203 of the Act 
authorizes the Council to obtain information from Federal agencies 
necessary to conduct evaluation of the Section 106 process. The Agency 
Official shall make documentation of agency policies, operating 
procedures and actions taken to comply with section 106 available to 
the Council upon request. The Council may request available information 
and documentation from other participants in the Section 106 process.
    (2) Improving the operation of Section 106. Based upon any 
evaluation of the section 106 process, the Council may make 
recommendations to participants, the heads of Federal agencies, and the 
Secretary of actions to improve the efficiency and effectiveness of the 
process. Where the Council determines that an Agency Official or a 
SHPO/THPO has failed to properly carry out the responsibilities 
assigned under the procedures in this part, the Council may participate 
in individual case reviews in a manner and for a period that it 
determines is necessary to improve performance or correct deficiencies. 
If the Council finds a pattern of failure by a Federal agency in 
carrying out its responsibilities under section 106, the Council may 
review the policies and programs of the agency related to historic 
preservation pursuant to section 202(a)(6) of the Act and recommend 
methods to improve the effectiveness, coordination, and consistency of 
those policies and programs with section 106.


Sec. 800.10  Special requirements for protecting National Historic 
Landmarks.

    (a) Statutory requirement. Section 110(f) 0f the Act requires that 
the Agency Official, to the maximum extent possible undertake such 
planning and actions as may be necessary to minimize harm to any 
National Historic Landmark that may be directly and adversely affected 
by an undertaking. When commenting on such undertaking, the Council 
shall use the process set forth in Secs. 800.6 through 800.7 and give 
special consideration to protecting National Historic Landmarks as 
specified in this section.
    (b) Resolution of adverse effects. The Agency Official shall 
request the Council to participate in any consultation to resolve 
adverse effects on National Historic Landmarks conducted under 
Sec. 800.6.
    (c) Involvement of the Secretary. The Agency Official shall notify 
the Secretary of any consultation involving a National Historic 
Landmark and invite the Secretary to participate in the consultation 
where there may be an adverse effect. The Council may request a report 
from the Secretary under section 213 of the Act to assist in the 
consultation.
    (d) Report of outcome. When the Council participates in 
consultation under this section, it shall report the outcome of the 
section 106 process, providing its written comments or any Memoranda of 
Agreement to which it is a signatory, to the Secretary and the head of 
the agency responsible for the undertaking.


Sec. 800.11  Documentation standards.

    (a) Adequacy of documentation. The Agency Official shall ensure 
that a determination, finding, or agreement under the procedures in 
this subpart is supported by sufficient documentation to enable any 
reviewing parties to understand its basis. When an Agency Official is 
conducting phased identification or evaluation under this subpart, the 
documentation standards regarding description of historic properties 
may be applied flexibly. If the Council, or the SHPO/THPO when the 
Council is not involved, determines the applicable documentation 
standards are not met, the Council or the SHPO/THPO, as appropriate, 
shall notify the Agency Official and specify the information needed to 
meet the standard. At the request of the Agency Official or any of the 
consulting parties, the Council shall review any disputes over whether 
documentation standards are met and provide its views to the Agency 
Official and the consulting parties.
    (b) Format. The Agency Official may use documentation prepared to 
comply with other laws to fulfill the requirements of the procedures in 
this subpart, if that documentation meets the standards of this 
section.

[[Page 27080]]

    (c) Confidentiality--(1) Authority to withhold information. Section 
304 of the Act provides that the head of a Federal agency or other 
public official receiving grant assistance pursuant to the Act, after 
consultation with the Secretary, shall withhold from public disclosure 
information about the location, character, or ownership of a historic 
property when disclosure may cause a significant invasion of privacy; 
risk harm to the historic property; or impede the use of a traditional 
religious site by practitioners. When the head of a Federal agency or 
other public official has determined that information should be 
withheld from the public pursuant to the criteria above, the Secretary, 
in consultation with such Federal agency head or official, shall 
determine whom may have access to the information for the purpose of 
carrying out the Act.
    (2) Consultation with the Council. When the information in question 
has been developed in the course of an agency's compliance with this 
part, the Secretary shall consult with the Council in reaching 
determinations on the withholding and release of information. The 
Federal agency shall provide the Council with available information, 
including views of Indian tribes and Native Hawaiian organizations, 
related to the confidentiality concern. The Council shall advise the 
Secretary and the Federal agency within 30 days of receipt of adequate 
documentation.
    (3) Other authorities affecting confidentiality. Other Federal laws 
and program requirements may limit public access to information 
concerning an undertaking and its effects on historic properties. Where 
applicable, those authorities shall govern public access to information 
developed in the Section 106 process and may authorize the Agency 
Official to protect the privacy of non-governmental applicants.
    (d) Finding of no historic properties affected. Documentation shall 
include:
    (1) A description of the undertaking, specifying the Federal 
involvement, and its area of potential effects, including photographs, 
maps, drawings, as necessary;
    (2) A description of the steps taken to identify historic 
properties, including, as appropriate, efforts to seek information 
pursuant to Sec. 800.4(b); and
    (3) The basis for determining that no historic properties are 
present or affected.
    (e) Finding of no adverse effect or adverse effect. Documentation 
shall include:
    (1) A description of the undertaking, specifying the Federal 
involvement, and its area of potential effects, including photographs, 
maps, and drawings, as necessary;
    (2) A description of the steps taken to identify historic 
properties;
    (3) A description of the affected historic properties, including 
information on the characteristics that qualify them for the National 
Register;
    (4) A description of the undertaking's effects on historic 
properties.
    (5) An explanation of why the criteria of adverse effect were found 
applicable or inapplicable, including any conditions or future actions 
to avoid, minimize or mitigate adverse effects; and
    (6) Copies or summaries of any views provided by consulting parties 
and the public.
    (f) Memoradum of Agreement. When a Memorandum of Agreement is filed 
with the Council, the documentation shall include any substantive 
revisions or additions to the documentation provided the Council 
pursuant to Sec. 800.6(a)(1), an evaluation of any measures considered 
to avoid or minimize the undertaking's adverse effects and a summary of 
the views of consulting parties and the public.
    (g) Requests for comment without a Memorandum of Agreement. 
Documentation shall include:
    (1) A description and evaluation of any alternatives or mitigation 
measures that the Agency Official proposes to resolve the undertaking's 
adverse effects;
    (2) A description of any reasonable alternatives or mitigation 
measures that were considered but not chosen, and the reasons for their 
rejection;
    (3) Copies or summaries of any views submitted to the Agency 
Official concerning the adverse effects of the undertaking on historic 
properties and alternatives to reduce or avoid those effects; and
    (4) Any substantive revisions or additions to the documentation 
provided the Council pursuant to Sec. 800.6(a)(1).


Sec. 800.12  Emergency situations.

    (a) Agency procedures. The Agency Official, in consultation with 
the appropriate SHPOs/THPOs, affected Indian tribes and Native Hawaiian 
organizations, and the Council, is encouraged to develop procedures for 
taking historic properties into account during operations which respond 
to a disaster or emergency declared by the President, a tribal 
government or the governor of a State or which respond to other 
immediate threats to life or property. If approved by the Council, the 
procedures shall govern the agency's historic preservation 
responsibilities during any disaster or emergency in lieu of 
Secs. 800.3 through 800.6.
    (b) Alternatives to agency procedures. In the event an Agency 
Official proposes an emergency undertaking as an essential and 
immediate response to a disaster or emergency declared by the 
President, a tribal government or the governor of a State or another 
immediate threat to life or property, and the agency has not developed 
procedures pursuant to Sec. 800.12(a), the Agency Official may comply 
with section 106 by:
    (1) Following a Programmatic Agreement developed pursuant to 
Sec. 800.14(b) that contains specific provisions for dealing with 
historic properties in emergency situations; or
    (2) Notifying the Council, the appropriate SHPO/THPO and any Indian 
tribe or Native Hawaiian organization that may attach religious and 
cultural significance to historic properties likely to be affected 
prior to the undertaking and affording them an opportunity to comment 
within seven days of notification. If the Agency Official determines 
that circumstances do not permit seven days for comment, the Agency 
Official shall notify the Council, the SHPO/THPO and the Indian tribe 
or Native Hawaiian organization and invite any comments within the time 
available.
    (c) Local governments responsible for section 106 compliance. When 
a local government official serves as the Agency Official for section 
106 compliance, Sec. 800.12 (a) and (b) also apply to an imminent 
threat to public health or safety as a result of a natural disaster or 
emergency declared by a local government's chief executive officer or 
legislative body, provided that if the Council or SHPO/THPO objects to 
the proposed action within seven days, the Agency Official shall comply 
with Secs. 800.3 through 800.6.
    (d) Applicability. This section applies only to undertakings that 
will be implemented within 30 days after the disaster or emergency has 
been formally declared by the appropriate authority. An agency may 
request an extension of the period of applicability from the Council 
prior to the expiration of the 30 days. Immediate rescue and salvage 
operations conducted to preserve life or property are exempt from the 
provisions of section 106 and this part.


Sec. 800.13  Post-review discoveries.

    (a) Planning for subsequent discoveries.--(1) Using a Programmatic 
Agreement. An Agency Official may develop a Programmatic Agreement 
pursuant to Sec. 800.14(b) to govern the actions to be taken when 
historic

[[Page 27081]]

properties are discovered during the implementation of an undertaking.
    (2) Using agreement documents. When the Agency Official's 
identification efforts in accordance with Sec. 800.4 indicate that 
historic properties are likely to be discovered during implementation 
of an undertaking and no Programmatic Agreement has been developed 
pursuant to Sec. 800.13(a)(1), the Agency Official shall include in any 
finding of no adverse effect or Memorandum of Agreement a process to 
resolve any adverse effects upon such properties. Actions in 
conformance with the process satisfy the Agency Official's 
responsibilities under section 106 and this part.
    (b) Discoveries without prior planning. If historic properties are 
discovered or unanticipated effects on historic properties found after 
the Agency Official has completed the section 106 process without 
establishing a process under Sec. 800.13(a), the Agency Official shall 
make reasonable efforts to avoid, minimize or mitigate adverse effects 
to such properties and:
    (1) If the Agency Official has not approved the undertaking or if 
construction on an approved undertaking has not commenced, consult to 
resolve adverse effects pursuant to Sec. 800.6; or
    (2) If the Agency Official, the SHPO/THPO and any Indian tribe or 
Native Hawaiian organization that might attach religious and cultural 
significance to the affected property agree that such property is of 
value solely for its scientific, prehistoric, historic or 
archaeological data, the Agency Official may comply with the 
Archaeological and Historic Preservation Act instead of the procedures 
in this part and provide the Council, the SHPO/THPO, and the Indian 
tribe or Native Hawaiian organization with a report on the actions 
within a reasonable time after they are completed; or
    (3) If the Agency Official has approved the undertaking and 
construction has commenced, determine actions that the Agency Official 
can take to resolve adverse effects, and notify the SHPO/THPO, any 
Indian tribe or Native Hawaiian organization that might attach 
religious and cultural significance to the affected property, and the 
Council within 48 hours of the discovery. The notification shall 
describe the actions proposed by the Agency Official to resolve the 
adverse effects. The SHPO/THPO, the Indian tribe or Native Hawaiian 
organization and the Council shall respond within 48 hours of the 
notification and the Agency Official shall take into account their 
recommendations and carry out appropriate actions. The Agency Official 
shall provide the SHPO/THPO, the Indian tribe or Native Hawaiian 
organization and the Council a report of the actions when they are 
completed.
    (c) Eligibility of properties. The Agency Official, in consultation 
with the SHPO/THPO, may assume a newly-discovered property to be 
eligible for the National Register for purposes of Section 106. The 
Agency Official shall specify the National Register Criteria used to 
assume the property's eligibility so that information can be used in 
the resolution of adverse effects.
    (d) Discoveries on tribal lands. If historic properties are 
discovered on tribal lands, or there are unanticipated effects on 
historic properties found on tribal lands, after the Agency Official 
has completed the section 106 process without establishing a process 
under Sec. 800.13(a) and construction has commenced, the Agency 
Official shall comply with applicable tribal regulations and procedures 
and obtain the concurrence of the Indian tribe on the proposed action.

Subpart C--Program Alternatives


Sec. 800.14  Federal agency program alternatives.

    (a) Alternate procedures. An Agency Official may develop procedures 
to implement section 106 and substitute them for all or part of subpart 
B of this part if they are consistent with the Council's regulations 
pursuant to section 110(a)(2)(E) of the Act.
    (1) Development of procedures. The Agency Official shall consult 
with the Council, the National Conference of State Historic 
Preservation Officers or individual SHPO/THPOs, as appropriate, and 
Indian tribes and Native Hawaiian organizations, as specified in 
Sec. 800.14(f), in the development of alternate procedures, publish 
notice of the availability of proposed alternate procedures in the 
Federal Register and take other appropriate steps to seek public input 
during the development of alternate procedures.
    (2) Council review. The Agency Official shall submit the proposed 
alternate procedures to the Council for a 60-day review period. If the 
Council finds the procedures to be consistent with this part, it shall 
notify the Agency Official and the Agency Official may adopt them as 
final alternate procedures.
    (3) Notice. The Agency Official shall notify the parties with which 
it has consulted and publish notice of final alternate procedures in 
the Federal Register.
    (4) Legal effect. Alternate procedures adopted pursuant to this 
subpart substitute for the Council's regulations for the purposes of 
the agency's compliance with section 106, except that where an Indian 
tribe has entered into an agreement with the Council to substitute 
tribal historic preservation regulations for the Council's regulations 
under section 101(d)(5) of the Act, the agency shall follow those 
regulations in lieu of the agency's procedures regarding undertakings 
on tribal lands. Prior to the Council entering into such agreements, 
the Council will provide federal agencies notice and opportunity to 
comment on the proposed substitute tribal regulations.
    (b) Programmatic Agreements. The Council and the Agency Official 
may negotiate a Programmatic Agreement to govern the implementation of 
a particular program or the resolution of adverse effects from certain 
complex project situations or multiple undertakings.
    (1) Use of Programmatic Agreements. A Programmatic Agreement may be 
used:
    (i) When effects on historic properties are similar and repetitive 
or are multi-State or regional in scope;
    (ii) When effects on historic properties cannot be fully determined 
prior to approval of an undertaking;
    (iii) When nonfederal parties are delegated major decisionmaking 
responsibilities;
    (iv) Where routine management activities are undertaken at Federal 
installations, facilities, or other land-management units; or
    (v) Where other circumstances warrant a departure from the normal 
section 106 process.
    (2) Developing Programmatic Agreements for agency programs--(i) 
Consultation. The consultation shall involve, as appropriate, SHPO/
THPOs, the National Conference of State Historic Preservation Officers 
(NCHSPO), Indian tribes and Native Hawaiian organizations, other 
Federal agencies, and members of the public. If the Programmatic 
Agreement has the potential to affect historic properties on tribal 
lands or historic properties of religious and cultural significance to 
an Indian tribe or Native Hawaiian organization, the Agency Official 
shall also follow Sec. 800.14(f).
    (ii) Public Participation. The Agency Official shall arrange for 
public participation appropriate to the subject matter and the scope of 
the program and in accordance with subpart A of this part. The Agency 
Official shall consider the nature of the program and its likely 
effects on historic properties and take

[[Page 27082]]

steps to involve the individuals, organizations and entities likely to 
be interested.
    (iii) Effect. The Programmatic Agreement shall take effect when 
executed by the Council, the Agency Official and the appropriate SHPOs/
THPOs when the Programmatic Agreement concerns a specific region or the 
President of NCSHPO when NCSHPO has participated in the consultation. A 
Programmatic Agreement shall take effect on tribal lands only when the 
THPO, Indian tribe or a designated representative of the tribe is a 
signatory to the agreement. Compliance with the procedures established 
by an approved Programmatic Agreement satisfies the agency's section 
106 responsibilities for all individual undertakings of the program 
covered by the agreement until it expires or is terminated by the 
agency, the President of NCSHPO when a signatory, or the Council. 
Termination by an individual SHPO/THPO shall only terminate the 
application of a regional Programmatic Agreement within the 
jurisdiction of the SHPO/THPO. If a THPO assumes the responsibilities 
of a SHPO pursuant to section 101(d)(2) of the Act and the SHPO is 
signatory to Programmatic Agreement, the THPO assumes the role of a 
signatory, including the right to terminate a regional Programmatic 
Agreement on lands under the jurisdiction of the tribe.
    (iv) Notice. The Agency Official shall notify the parties with 
which it has consulted that a Programmatic Agreement has been executed 
under this subsection, provide appropriate public notice before it 
takes effect, and make any internal agency procedures implementing the 
agreement readily available to the Council, SHPO/THPOs, and the public.
    (v) Terms not carried out or termination. If the Council determines 
that the terms of a Programmatic Agreement are not being carried out, 
or if such an agreement is terminated, the Agency Official shall comply 
with subpart B of this part with regard to individual undertakings of 
the program covered by the agreement.
    (3) Developing Programmatic Agreements for complex or multiple 
undertakings. Consultation to develop a Programmatic Agreement for 
dealing with the potential adverse effects of complex projects or 
multiple undertakings shall follow Sec. 800.6. If consultation pertains 
to an activity involving multiple undertakings and the parties fail to 
reach agreement, then the Agency Official shall comply with the 
provisions of subpart B of this part for each individual undertaking.
    (c) Exempted categories.--(1) Criteria for establishing. An Agency 
Official may propose a program or category of agency undertakings that 
may be exempted from review under the provisions of subpart B of this 
part, if the program or category meets the following criteria:
    (i) The actions within the program or category would otherwise 
qualify as ``undertakings'' as defined in Sec. 800.16;
    (ii) The potential effects of the undertakings within the program 
or category upon historic properties are foreseeable and likely to be 
minimal or not adverse; and
    (iii) Exemption of the program or category is consistent with the 
purpose of the Act.
    (2) Public participation. The Agency Official shall arrange for 
public participation appropriate to the subject matter and the scope of 
the exemption and in accordance with the standards in subpart A of this 
part. The Agency Official shall consider the nature of the exemption 
and its likely effects on historic properties and take steps to involve 
individuals, organizations and entities likely to be interested.
    (3) Consultation with SHPOs/THPOs. The Agency Official shall notify 
and consider the views of the SHPOs/THPOs on the exemption.
    (4) Consultation with Indian tribes and Native Hawaiian 
organizations. If the exempted program or category of undertakings has 
the potential to affect historic properties of religious and cultural 
significance to an Indian tribe or Native Hawaiian organization, the 
Council shall follow the requirements for the Agency Official set forth 
in Sec. 800.14(f).
    (5) Council review of proposed exemptions. The Council shall review 
a request for an exemption that is supported by documentation 
describing the program or category for which the exemption is sought, 
demonstrating that the criteria of Sec. 800.14(c)(1) have been met, 
describing the methods used to seek the views of the public, and 
summarizing any views submitted by the public. Unless it requests 
further information, the Council shall approve or reject the proposed 
exemption within 30 days of receipt. The decision shall be based on the 
consistency of the exemption with the purposes of the Act, taking into 
consideration the magnitude of the exempted undertaking or program and 
the likelihood of impairment of historic properties in accordance with 
section 214 of the Act.
    (6) Legal consequences. Any undertaking that falls within an 
approved exempted program or category shall require no further review 
pursuant to subpart B of this part, unless the Agency Official or the 
Council determines that there are circumstances under which the 
normally excluded undertaking should be reviewed under subpart B of 
this part.
    (7) Termination. The Council may terminate an exemption at the 
request of the Agency Official or when the Council determines that the 
exemption no longer meets the criteria of Sec. 800.14(c)(1). The 
Council shall notify the Agency Official 30 days before termination 
becomes effective.
    (8) Notice. The Agency Official shall publish notice of any 
approved exemption in the Federal Register.
    (d) Standard treatments.--(1) Establishment. The Council, on its 
own initiative or at the request of another party, may establish 
standard methods for the treatment of a category of historic 
properties, a category of undertakings, or a category or effects on 
historic properties to assist Federal agencies in satisfying the 
requirements of subpart B of this part. The Council shall publish 
notice of standard treatments in the Federal Register.
    (2) Public participation. The Council shall arrange for public 
participation appropriate to the subject matter and the scope of the 
standard treatment and consistent with subpart A of this part. The 
Council shall consider the nature of the standard treatment and its 
likely effects on historic properties and the individuals, 
organizations and entities likely to be interests. Where an Agency 
Official has proposed a standard treatment, the Council may request the 
Agency Official to arrange for public involvement.
    (3) Consultation with SHPOs/THPOs. The Council shall notify and 
consider the views of SHPOs/THPOs on the proposed standard treatment.
    (4) Consultation with Indian tribes and Native Hawaiian 
organizations. If the proposed standard treatment has the potential to 
affect historic properties on tribal lands or historic properties of 
religious and cultural significance to an Indian tribe or Native 
Hawaiian organization, the Council shall follow the requirements for 
the Agency Official set forth in Sec. 800.14(f).
    (5) Termination .The Council may terminate a standard treatment by 
publication of notice in the Federal Registger 30 days before the 
termination takes effect.
    (e) Program comments. An Agency Official may request the Council to 
comment on a category of undertakings in lieu of conducting individual 
reviews under Secs. 800.4 through 800.6. The

[[Page 27083]]

Council may provide program comments at its own initiative.
    (1) Agency request. The Agency Official shall identify the category 
of undertakings, specify the likely effects on historic properties, 
specify the steps the Agency Official will take to ensure that the 
effects are taken into account, identify the time period for which the 
comment is requested and summarize any views submitted by the public.
    (2) Public participation. The Agency Official shall arrange for 
public participation appropriate to the subject matter and the scope of 
the category and in accordance with the standard in subpart A of this 
part. The Agency Official shall consider the nature of the undertakings 
and their likely effects on historic properties and the individuals, 
organizations and entities likely to be interested.
    (3) Consultation with SHPOs/THPOs. The Council shall notify and 
consider the views of SHPOs/THPOs on the proposed program comment.
    (4) Consultation with Indian tribes and Native Hawaiian 
organizations. If the program comment has the potential to affect 
historic properties on tribal lands or historic properties of religious 
and cultural significance to an Indian tribe or Native Hawaiian 
organization, the Council shall follow the requirements for the Agency 
Official set forth in Sec. 800.14(f).
    (5) Council action. Unless the Council requests additional 
documentation, notifies the Agency Official that it will decline to 
comment, or obtains the consent of the Agency Official to extend the 
period for providing comment, the Council shall comment to the Agency 
Official within 45 days of the request.
    (i) If the Council comments, the Agency Official shall take into 
account the comments of the Council in carrying out the undertakings 
within the category and publish notice in the Federal Register of the 
Council's comments and steps the agency will take to ensure that 
effects to historic properties are taken into account.
    (ii) If the Council declines to comment, the Agency Official shall 
continue to comply with the requirements of Secs. 800.3 through 800.6 
for the individual undertakings.
    (6) Withdrawal of comment. If the Council determines that the 
consideration of historic properties is not being carried out in a 
manner consistent with the program comment, the Council may withdraw 
the comment and the Agency Official shall comply with the requirements 
of Secs. 800.3 through 800.6 for the individual undertakings.
    (f) Consultation with Indian tribes and Native Hawaiian 
organizations when developing program alternatives. Whenever an Agency 
Official proposes a program alternative pursuant to Sec. 800.14 (a)-
(e), the Agency Official shall ensure that development of the program 
alternative includes appropriate government-to-government consultation 
with affected Indian tribes and consultation with affected Native 
Hawaiian organizations.
    (1) Identifying affected Indian tribes and Native Hawaiian 
organizations. If any undertaking covered by a proposed program 
alternative has the potential to affect historic properties on tribal 
lands, the Agency Official shall identify and consult with the Indian 
tribes having jurisdiction over such lands. If a proposed program 
alternative has the potential to affect historic properties of 
religious and cultural significance to an Indian tribe or a Native 
Hawaiian organization which are located off tribal lands, the Agency 
Official shall identify those Indian tribes and Native Hawaiian 
organizations that might attach religious and cultural significance to 
such properties and consult with them.
    (2) Results of consultation. The Agency Official shall provide 
summaries of the views, along with copies of any written comments, 
provided by affected Indian tribes and Native Hawaiian organizations to 
the Council as part of the documentation for the proposed program 
alternative. The Agency Official and the Council shall take those views 
into account in reaching a final decision on the proposed program 
alternative.


Sec. 800.15  Tribal, State, and Local Program Alternatives. [Reserved]


Sec. 800.16  Definitions.

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

[[Page 27084]]

United States to Indians because of their status as Indians.
    (n) Local government means a city, county, parish, township, 
municipality, borough, or other general purpose political subdivision 
of a State.
    (o) Memorandum of Agreement means the document that records the 
terms and conditions agreed upon to resolve the adverse effects of an 
undertaking upon historic properties.
    (p) National Historic Landmark means a historic property that the 
Secretary of the Interior has designated a National Historic Landmark.
    (q) National Register means the National Register of Historic 
Places maintained by the Secretary of the Interior.
    (r) National Register Criteria means the criteria established by 
the Secretary of the Interior for use in evaluating the eligibility of 
properties for the National Register (36 CFR part 60).
    (s) Native Hawaiian organization means any organization which 
serves and represents the interests of Native Hawaiians; has as a 
primary and stated purpose the provision of services to Native 
Hawaiians; and has demonstrated expertise in aspects of historic 
preservation that are significant to Native Hawaiians. Native Hawaiian 
means any individual who is a descendant of the aboriginal people who, 
prior to 1778, occupied and exercised sovereignty in the area that now 
constitutes the State of Hawaii.
    (t) Programmatic Agreement means a document that records the terms 
and conditions agreed upon to resolve the potential adverse effects of 
a Federal agency program, complex undertaking or other situations in 
accordance with Sec. 800.14(b).
    (u) Secretary means the Secretary of the Interior acting through 
the Director of the National Park Service except where otherwise 
specified.
    (v) State Historic Preservation Officer (SHPO) means the official 
appointed or designated pursuant to section 101(b)(1) of the Act to 
administer the State historic preservation program or a representative 
designated to act for the State Historic Preservation Officer.
    (w) Tribal Historic Preservation Officer (THPO) means the tribal 
official appointed by the tribe's chief governing authority or 
designated by a tribal ordinance or preservation program who has 
assumed the responsibilities of the SHPO for purposes of section 106 
compliance on tribal lands in accordance with section 101(d)(2) of the 
Act. For the purposes of subpart B of this part, the term also includes 
the designated representative of an Indian tribe that has not formally 
assumed the SHPO's responsibilities when an undertaking occurs on or 
affects historic properties on the tribal lands of the Indian tribe. 
(See Sec. 800.2(c)(2)).
    (x) Tribal lands means all lands within the exterior boundaries of 
any Indian reservation and all dependent Indian communities.
    (y) Undertaking means a project, activity, or program funded in 
whole or in part under the direct or indirect jurisdiction of a Federal 
agency, including those carried out by or on behalf of a Federal 
agency; those carried out with Federal financial assistance; those 
requiring a Federal permit, license or approval; and those subject to 
state or local regulation administered pursuant to a delegation or 
approval by a Federal agency.

Appendix A to Part 800--Criteria For Council Involvement in Reviewing 
Individual Section 106 Cases

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

    Dated: May 7, 1999.
John M. Fowler,
Executive Director.
[FR Doc. 99-12054 Filed 5-17-99; 8:45 am]
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