[Federal Register Volume 65, Number 133 (Tuesday, July 11, 2000)]
[Proposed Rules]
[Pages 42834-42849]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-17155]



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Part IV





Advisory Council on Historic Preservation





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36 CFR Part 800



Protection of Historic Properties; Proposed Rule



Availability of Environmental Assessment and Preliminary Finding of No 
Significant Impact; Notice

  Federal Register / Vol. 65, No. 133 / Tuesday, July 11, 2000 / 
Proposed Rules  

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ADVISORY COUNCIL ON HISTORIC PRESERVATION

36 CFR Part 800

RIN 3010-AA05


Protection of Historic Properties

AGENCY: Advisory Council on Historic Preservation.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Advisory Council on Historic Preservation is submitting a 
proposed rule for public comment. The proposed rule sets forth how 
Federal agencies take into account the effects of their undertakings on 
historic properties and afford the Council a reasonable opportunity to 
comment, pursuant to Section 106 of the National Historic Preservation 
Act. The substance of the proposed rule now submitted for public 
comment went into effect on June 17, 1999. Recent litigation has 
challenged that rule. This proposed rulemaking is intended to address 
questions and concerns raised by the litigation. It will also give the 
public a chance to provide input to determine how the rule has operated 
and revise the rule as appropriate.

DATES: Submit comments on or before August 10, 2000.

ADDRESSES: Address all comments concerning this proposed rule to the 
Executive Director, Advisory Council on Historic Preservation, 1100 
Pennsylvania Avenue, NW., Suite 809, Washington, DC 20004. Fax (202) 
606-8672. You may submit electronic comments to: [email protected].

FOR FURTHER INFORMATION CONTACT: Javier Marques, Advisory Council on 
Historic Preservation, 1100 Pennsylvania Avenue, NW., Suite 809, 
Washington, DC 20004, (202) 606-8503.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 106 of the National Historic Preservation Act of 1966, as 
amended, 16 U.S.C. 470f, requires Federal agencies to take into account 
the effects of their undertakings on properties included in or eligible 
for inclusion in the National Register of Historic Places and to afford 
the Advisory Council on Historic Preservation (``Council'') a 
reasonable opportunity to comment on such undertakings. Through Section 
211 of the National Historic Preservation Act, the Council is 
authorized to ``promulgate such rules and regulations as it deems 
necessary to govern the implementation of section 106 * * * in its 
entirety.''
    After publishing two Notices of Proposed Rulemaking (59 FR 50396, 
October 3, 1994; and 61 FR 48580, September 13, 1996), the Council 
published a final rule setting forth a revised process implementing 
Section 106 in its entirety (64 FR 27044-27084, May 18, 1999). Such 
rule, currently codified at 36 CFR part 800, went into effect on June 
17, 1999, superseding a rule previously issued in 1986.
    Two major forces behind that revision process were the 1992 
amendments to the National Historic Preservation Act (NHPA), and the 
Administration's reinventing government efforts. In October, 1982, 
Public Law 102-575 amended the NHPA and affected the way Section 106 
review is carried out. Among other things, the 1992 amendments:
    1. Clarified that ``[p]roperties of traditional religious and 
cultural importance to an Indian tribe or Native Hawaiian organization 
may be determined to be eligible for inclusion on the National 
Register.'' 16 U.S.C. 470a(d)(6)(A);
    2. Required that ``[i]n carrying out its responsibilities under 
section 106, a Federal agency shall consult with any Indian tribe or 
Native Hawaiian organization that attaches religious and cultural 
significance to properties described'' above. 16 U.S.C. 470a(d)(6)(B). 
Also see 36 CFR 800.2(c)(3) (granting such tribes and Native Hawaiian 
organizations, ``consulting party'' status in the Section 106 process). 
Implementation of this statutory consultation requirement is found 
throughout the proposed rule. See, for example, 36 CFR 800.3(f)(2), 
800.4(a)(4), 800.4(b), 800.4(c)(1), 800.5(a), 800.6 (a)-(b).
    3. Added a provision in the NHPA prohibiting Federal agencies from 
granting a license or assistance to applicants who, with the intent to 
avoid the requirements of Section 106, significantly adversely affected 
historic properties related to the license or assistance. In such 
cases, the Federal agency can only grant the license or assistance if 
it determines, after consulting with the Council, that circumstances 
justify granting the license or assistance despite the effects to the 
historic property. 16 U.S.C. 470h-2(k). See 36 CFR 800.9(c).
    4. Explicitly recognized the practice under the 1986 regulations of 
having Federal agencies seek agreements to address adverse effects of 
their undertakings to historic properties. It also clarified that where 
such an agreement is not reached, the head of the relevant Federal 
agency must document his/her decision pursuant to Section 106. Such 
agency head cannot delegate that responsibility. It also provided that 
agreements executed pursuant to the Section 106 process would govern 
the relevant Federal undertaking and all its parts. 16 U.S.C. 470h-
2(1). See 36 CFR 800.6, 800.7.
    5. Added a member to the Council. This Council member would be a 
Native American or Native Hawaiian appointed by the President. 16 
U.S.C. 470i(a)(11).
    6. Explicitly clarified the fact that the Council has authority to 
``promulgate such rules and regulations as it deems necessary to govern 
the implementation of section 106 of this Act in its entirety.'' 16 
U.S.C. 470s (emphasis added) (highlighted text was added by the 1992 
amendments); and
    7. Amended the definition of the term ``undertaking,'' by adding 
``[projects, activities, and programs] subject to State or local 
regulation administered pursuant to a delegation or approval by a 
Federal agency'' to the list of actions constituting an 
``undertaking.'' 16 U.S.C. 470w(7)(D). The amended, statutory 
definition of ``undertaking'' was adopted verbatim in the rule. 36 CFR 
800.16(y).
    Additionally, as part of the Administration's National Performance 
Review and overall regulatory 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 and 
conform it to the principles of the Administration. A thorough 
description of the Council's revision efforts from 1992, which led to 
the final rule in 1999, is found in the preamble to the final rule (64 
FR 27044-27084, May 18, 1999). That preamble can be found on-line at 
http://www.achp.gov/regspreamble.html.

II. Litigation Prompting Decision To Go Forward With Additional 
Notice of Proposed Rulemaking

    On February 15, 2000, the National Mining Association (``NMA'') 
filed a lawsuit challenging the revised rule. Among other things, the 
lawsuit alleged violations of the Appointments Clause of the 
Constitution and certain provisions of the Administrative Procedure Act 
pertaining to rulemaking. After assessing the allegations contained in 
the lawsuit, the Council decided to move forward with the present 
notice of proposed rulemaking. This action would provide an opportunity 
to address assertions about the procedural adequacy of the promulgation 
of the Section 106 regulations, including those about the participation 
of the National Trust for Historic Preservation (``Trust'') and the 
National Conference of State

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Historic Preservation Officers (``NCSHPO''), as Council members, in the 
adoption of the final, revised rule. This republication action does not 
evidence Council agreement with the merits of the allegations, but 
rather the Council's desire to remove these issues from litigation.
    Accordingly, at the June 23, 2000 Council meeting in Maine, the 
Chairman of the Council asked the Council members to take two actions. 
The first action was a new vote on the adoption of the rule now in 
place, without the participation of the Trust and NCSHPO. The Council 
members voted 16-0 in favor of the rule, with the Trust and NCSHPO 
voluntarily recusing themselves from the vote and any deliberation on 
it.
    The second action was a vote on undertaking the present, new notice 
of proposed rulemaking (``NPRM''). Again, the Council members voted in 
favor of moving forward with the NPRM by a vote of 16-0, with the Trust 
and NCSHPO voluntarily recusing themselves from the vote and any 
deliberation on it. The plan is that the rulemaking process would 
commence with the present, Federal Register publication of an NPRM 
using the existing rule that took effect on June 19, 1999, as the 
substance of the proposal. A 30-day public comment period would ensue, 
affording all users of the section 106 process and interested members 
of the public an opportunity to comment on all aspects of the proposed 
rule. It is anticipated that the NPRM would be published near the end 
of June 2000. After the close of the public comment period, the 
comments would be considered and incorporated into the rule as deemed 
appropriate. The Council membership would then vote on the new rule. 
The Trust and NCSHPO would not participate as Council members in any 
Council activities related to this rulemaking process.
    Given this schedule, it is anticipated that the new final rule 
would be submitted to the Council for a vote on adoption at its next 
scheduled meeting on November 17, 2000, and that, until then, the 
existing rule that has been in effect since June 17, 1999 would remain 
in place.

III. Impact Analysis

The Regulatory Flexibility Act

    The Council certifies that the proposed rule will not have a 
significant economic impact on a substantial number of small entities. 
The rule in its proposed version only imposes mandatory 
responsibilities on 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 the Federal agency.

The Paperwork Reduction Act

    The proposed rule does 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 rule implementing Section 106 of 
the NHPA prior to publication of the previous 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 (``EA'') and preliminary 
Finding of No Significant Impact ``FONSI''). The Council considered 
such comments, and confirmed its finding of no significant impact on 
the human environment. A notice of availability of the EA and FONSI was 
then published on the Federal Register (64 FR 25473, May 12, 1999). The 
Council once more will publish a notice of availability of its EA and 
preliminary FONSI. Because the proposed rule is identical to the one 
adopted in 1999, these NEPA documents on the proposed rule are 
substantially the same as those published on May 12, 1999, the Council 
will complete its NEPA compliance after considering public comments.

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 this proposed rule and throughout the rulemaking 
process. The proposed rule does 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 and Tribal Historic Preservation 
Officers to advise and assist Federal agencies, as appropriate, as part 
of their duties under Sections 101(b)(3) and 101(d)(2) of the NHPA, as 
a condition of their Federal grant assistance. In addition, in 
accordance with Executive Order 12875, the proposed rule includes 
several flexible approaches to consideration of historic properties in 
Federal agency decision making. The proposed rule promotes 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 proposed rule implementing Section 106 of the NHPA does not 
impose annual costs of $100 million or more, will not significantly or 
uniquely affect small governments, and is not a significantly or 
uniquely affect small governments, and is 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 proposed rule implementing Section 106 of the NHPA does not 
cause adverse human health or environmental effects, but, instead, 
seeks to avoid adverse effects on historic properties throughout the 
United States. The participation and consultation process established 
by this rule seeks to ensure public participation--including by 
minority and low-income populations and communities--by those 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.

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

    The Council has fully complied with this Memorandum. A Native 
American, and subsequently a Native Hawaiian, representative served on 
the Council. The Council also held extensive consultation meetings with 
tribal representatives and tribal groups as it developed the rule. The 
proposed rule enhances the opportunity for Native American involvement 
in the Section 106 process and clarifies 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 1966, 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. Once the rulemaking process results in a final rule, the 
Council will submit the report containing such final 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 proposed rule 
would not be a ``major rule'' as defined by 5 U.S.C. 804(2).

IV. Rule Proposed for Public Comment

    As stated above, the rule now being proposed for public comment is 
the same as the rule that has been in place since June of 1999. That 
rule can presently be found at 36 CFR part 800. An extensive discussion 
of the background leading to that rule, the rationale behind the 
particulars of the rule, and how the Council responded to public 
comments on the rule can be found on the following public documents: 
(a) Notice of proposed rulemaking at 59 FR 50396, October 3, 1994; (b) 
notice of proposed rulemaking at 61 FR 48580, September 13, 1996; and 
(c) final rule and preamble published at 64 FR 27044-27084, May 18, 
1999, and now codified at 36 CFR Part 800 (a copy can be accessed on-
line at http://www.achp.gov/regsplain.html).

List of Subjects in 36 CFR Part 800

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

    For the reasons stated above, the Advisory Council on Historic 
Preservation proposes to revise 36 CFR 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
Sec.
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
Sec.
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 to identify circumstances where they may affect actions 
taken to meet section 106 requirements. Such provisions may have their 
own implementing regulations or guidelines and are not intended to be 
implemented by the procedures in this part except insofar as they 
relate to the Section 106 process. Guidelines, policies and procedures 
issued by other agencies, including the Secretary, have been cited in 
this part for ease of access and are not incorporated by reference.
    (c) Timing. The Agency Official must complete the section 106 
process ``prior to the approval of the expenditure of any Federal funds 
on the undertaking or prior to the issuance of any license.'' This does 
not prohibit Agency Official from conducting or authorizing 
nondestructive project planning activities before completing compliance 
with section 106, provided that such actions do not restrict the 
subsequent consideration of alternatives to avoid, minimize or mitigate 
the undertaking's adverse effects on historic properties. The Agency 
Official shall ensure that the section 106 process is initiated early 
in the undertaking's planning, so that a broad range of alternatives 
may be considered during the planning process for the undertaking.


Sec. 800.2  Participants in the Section 106 process.

    (a) Agency Official. It is the statutory obligation of the Federal 
agency to fulfill the requirements of section 106 and to ensure that an 
Agency Official with jurisdiction over an undertaking takes legal and 
financial responsibility for section 106 compliance in accordance with 
subpart B of this part. The Agency Official has approval authority for 
the undertaking and can commit the Federal agency to take appropriate 
action 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

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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 archaeological resources, to ensure that all 
actions taken by employees or contractors of the agency shall meet 
professional standards under regulations developed by the Secretary.
    (2) Lead Federal agency. If more than one Federal agency is 
involved in an undertaking, some or all the agencies may designate a 
lead Federal agency, which shall identify the appropriate official to 
serve as the Agency Official who shall act on their behalf, fulfilling 
their collective responsibilities under section 106. Those Federal 
agencies that do not designate a lead Federal agency remain 
individually responsible for their compliance with this part.
    (3) Use of contractors. Consistent with applicable conflict of 
interest laws, the Agency Official may use the services of applicants, 
consultants, or designees to prepare information, analyses and 
recommendations under this part. The Agency Official remains legally 
responsible for all required findings and determinations. If a document 
or study is prepared by a non-Federal party, the Agency Official is 
responsible for ensuring that its content meets applicable standards 
and guidelines.
    (4) Consultation. The Agency Official shall involve the consulting 
parties described in paragraph (c) of this section in findings and 
determinations made during the section 106 process. The Agency Official 
should plan consultations appropriate to the scale of the undertaking 
and the scope of Federal involvement and coordinated with other 
requirements of other statutes, as applicable, such as the National 
Environmental Policy Act, the Native American Graves Protection and 
Repatriation Act, the American Indian Religious Freedom Act, the 
Archeological Resources Protection Act and agency-specific legislation. 
The Council encourages the Agency Official to use to the extent 
possible existing agency procedures and mechanisms to fulfill the 
consultation requirements of this part.
    (b) Council. The Council issues regulations to implement Section 
106, provides guidance and advice on the application of the procedures 
in this part, and generally oversees the operation of the section 106 
process. The Council also consults with and comments to Agency 
Officials on individual undertakings and programs that affect historic 
properties.
    (1) Council entry into the section 106 process. When the Council 
determines that its involvement is necessary to ensure that the 
purposes of section 106 and the Act are met, the Council may enter the 
section 106 process. Criteria guiding Council decisions to enter the 
section 106 process are found in Appendix A to this part. The Council 
will document that the criteria have been met and notify the parties to 
the section 106 process as required by this part.
    (2) Council assistance. Participants in the section 106 process may 
seek advice, guidance and assistance from the Council on the 
application of this part to specific undertakings, including the 
resolution of disagreements, whether or not the Council is formally 
involved in the review of the undertaking. If questions arise regarding 
the conduct of the section 106 process, participants are encouraged to 
obtain the Council's advice on completing the process.
    (c) Consulting parties. The following parties have consultative 
roles in the section 106 process.
    (1) State Historic Preservation Officer. (i) The State Historic 
Preservation Officer (SHPO) reflects the interests of the State and its 
citizens in the preservation of their cultural heritage. In accordance 
with section 101(b)(3) of the Act, the SHPO advises and assists Federal 
agencies in carrying out their section 106 responsibilities.
    (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), of 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

[[Page 42838]]

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 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 the final rule], the Agency Official shall follow the 
program alternative.
    (b) Coordinate with other reviews. The Agency Official should 
coordinate the steps of the section 106 process, as appropriate, with 
the overall planning schedule for the undertaking and with any reviews 
required under other authorities such as the National Environmental 
Policy Act, the Native American Graves Protection and Repatriation Act, 
the American Indian Religious Freedom Act, the Archeological Resources 
Protection Act and agency-specific legislation, such as section 4(f) of 
the Department of Transportation Act. Where consistent with the 
procedures in this subpart, the Agency Official may use information 
developed for other reviews under Federal, State or tribal law to meet 
the requirements of section 106.
    (c) Identify the appropriate SHPO and/or THPO. As part of its 
initial planning, the Agency Official shall determine the appropriate 
SHPO or SHPOs to be involved in the section 106 process. The Agency 
Official shall also determine whether the undertaking may occur on or 
affect historic properties on any tribal lands and, if so, whether a 
THPO has assumed the duties of the SHPO. The Agency Official shall then 
initiate consultation with the appropriate Officer or Officers.
    (1) Tribal assumption of SHPO responsibilities. Where an Indian 
tribe has assumed the section 106 responsibilities of the SHPO on 
tribal lands pursuant to section 101(d)(2) of the Act, consultation for 
undertakings occurring on tribal land or for effects on tribal land is 
with the THPO for the Indian tribe in lieu of the SHPO. Section 
101(d)(2)(D)(iii) of the Act authorizes owners of properties on tribal 
lands which are neither owned by a member of the tribe nor held in 
trust by the Secretary for the benefit of the tribe to request the SHPO 
to participate in the Section 106 process in addition to the THPO.
    (2) Undertakings involving more than one State. If more than one 
State is involved in an undertaking, the involved SHPOs may agree to 
designate a lead SHPO to act on their behalf in the section 106 
process, including taking actions that would conclude the section 106 
process under this subpart.
    (3) Conducting consultation. The Agency Official should consult 
with the SHPO/THPO in a manner appropriate to the agency planning 
process for the undertaking and to the nature of the undertaking and 
its effects on historic properties.
    (4) Failure of the SHPO/THPO to respond. If the SHPO/THPO fails to

[[Page 42839]]

respond within 30 days of receipt of a request for review of a finding 
or determination, the Agency Official may either proceed to the next 
step in the process based on the finding or determination or consult 
with the Council in lieu of the SHPO/THPO. If the SHPO/THPO re-enters 
the section 106 process, the Agency Official shall continue the 
consultation without being required to reconsider previous findings or 
determinations.
    (d) Consultation on tribal lands. Where the Indian tribe has not 
assumed the responsibilities of the SHPO on tribal lands, consultation 
with the Indian tribe regarding undertakings occurring on such tribe's 
lands or effects on such tribal lands shall be in addition to and on 
the same basis as consultation with the SHPO. If the SHPO has withdrawn 
from the process, the Agency Official may complete the section 106 
process 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 through 800.6 where the Agency Official and the 
SHPO/THPO agree it is appropriate as long as the consulting parties and 
the public have an adequate opportunity to express their views as 
provided in Sec. 800.2(d).


Sec. 800.4  Identification of historic properties.

    (a) Determine scope of identification efforts.  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 paragraph (a) of this section, and in consultation with the SHPO/
THPO and any Indian tribe or Native Hawaiian organization that might 
attach religious and cultural significance to properties within the 
area of potential effects, the Agency Official shall take the steps 
necessary to identify historic properties within the area of potential 
effect.
    (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 paragraphs (b)(1) and (c) of 
this section.
    (c) Evaluate historic significance.--(1) Apply National Register 
Criteria. In consultation with the SHPO/THPO and any Indian tribe or 
Native Hawaiian organization that attaches religious and cultural 
significance to identified properties and guided by the Secretary's 
Standards and Guidelines for Evaluation, the Agency Official shall 
apply the National Register Criteria (36 CFR part 63) to properties 
identified

[[Page 42840]]

within the area of potential effects that have not been previously 
evaluated for National Register eligibility. The passage of time, 
changing perceptions of significance, or incomplete prior evaluations 
may require the Agency Official to reevaluate properties previously 
determined eligible or ineligible. The Agency Official shall 
acknowledge that Indian tribes and Native Hawaiian organizations 
possess special expertise in assessing the eligibility of historic 
properties that may possess religious and cultural significance to 
them.
    (2) Determine whether a property is eligible. If the Agency 
Official determines any of the National Register Criteria are met and 
the SHPO/THPO agrees, the property shall be considered eligible for the 
National Register for section 106 purposes. If the Agency Official 
determines the criteria are not met and the SHPO/THPO agrees, the 
property shall be considered not eligible. If the Agency Official and 
the SHPO/THPO do not agree, or if the Council or the Secretary so 
request, the Agency Official shall obtain a determination of 
eligibility from the Secretary pursuant to 36 CFR part 63. If an Indian 
tribe or Native Hawaiian organization that attaches religious and 
cultural significance to a property off tribal lands does not agree, it 
may ask the Council to request the Agency Official to obtain a 
determination of eligibility.
    (d) Results of identification and evaluation.--(1) No historic 
properties affected. If the Agency Official finds that either there are 
no historic properties present or three 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 paragraph (d)(1) of this section, the Agency Official 
shall notify all consulting parties, including Indian tribes or Native 
Hawaiian organizations, invite their views on the effects and assess 
adverse effects, if any, in accordance with Sec. 800.5.


Sec. 800.5  Assessment of adverse effects.

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

[[Page 42841]]

tribe or Native Hawaiian organization disagrees with the finding, it 
may within the 30-day review period specify the reasons for disagreeing 
with the finding and request the Council to review the finding pursuant 
to paragraph (c)(3) of this section.
    (iii) If the Council on its own initiative so requests within the 
30-day review period, the Agency Official shall submit the finding, 
along with the documentation specified in Sec. 800.11(e), for review 
pursuant to paragraph (c)(3) of this section. A Council decision to 
make such a request shall be guided by the criteria in Appendix A to 
this part.
    (3) Council review of findings. When a finding is submitted to the 
Council pursuant to paragraph (c)(2) of this section, the Agency 
Official shall include the documentation specified in Sec. 800.11(e). 
The Council shall review the finding and notify the Agency Official of 
its determination as to whether the adverse effect criteria have been 
correctly applied within 15 days of receiving the documented finding 
from the Agency Official. The Council shall specify the basis for its 
determination. The Agency Official shall proceed in accordance with the 
Council's determination. If the Council does not respond within 15 days 
of receipt of the finding, the Agency Official may assume concurrence 
with the Agency Official's finding and proceed accordingly.
    (d) Results of assessment.--(1) No adverse effect. The Agency 
Official shall maintain a record of the finding and provide information 
on the finding to the public on request, consistent with the 
confidentiality provisions of Sec. 800.11(c). Implementation of the 
undertaking in accordance with the finding as documented fulfills the 
Agency Official's responsibilities under section 106 and this part. If 
the Agency Official will not conduct the undertaking as proposed in the 
finding, the Agency Official shall reopen consultation under paragraph 
(a) of this section.
    (2) Adverse effect. If an adverse effect is found, the Agency 
Official shall consult further to resolve the adverse effect pursuant 
to Sec. 800.6.


Sec. 800.6  Resolution of adverse effects.

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

[[Page 42842]]

    (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 paragraph (b)(1) of this section 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 the undertaking is carried out in accordance with the Memorandum 
of Agreement.
    (1) Signatories. The signatories have sole authority to execute, 
amend or terminate the agreement in accordance with this subpart.
    (i) The Agency Official and the SHPO/THPO are the signatories to a 
Memorandum of Agreement executed pursuant to paragraph (b)(1) of this 
section.
    (ii) The Agency Official, the SHPO/THPO, and the Council are the 
signatories to a Memorandum of Agreement executed pursuant to paragraph 
(b)(2) of this section.
    (iii) The Agency Official and the Council are signatories to a 
Memorandum of Agreement executed pursuant to Sec. 800.7(a)(2).
    (2) Invited signatories. (i) The Agency Official may invite 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 paragraphs (c)(2)(i) or (ii) of 
this section does not invalidate the Memorandum of Agreement.
    (3) Concurrence by others. The Agency Official may invite all 
consulting parties to concur in the Memorandum of Agreement. The 
signatories may agree to invite others to concur. The refusal of any 
party invited to concur in the Memorandum of Agreement does not 
invalidate the Memorandum of Agreement.
    (4) Reports on implementation. Where the signatories agree it is 
appropriate, a Memorandum of Agreement shall include a provision for 
monitoring and reporting on its implementation.
    (5) Duration. A Memorandum of Agreement shall include provisions 
for termination and for reconsideration of terms if the undertaking has 
not been implemented within a specified time.
    (6) Discoveries. Where the signatories agree it is appropriate, a 
Memorandum of Agreement shall include provisions to deal with the 
subsequent discovery or identification of additional historic 
properties affected by the undertaking.
    (7) Amendments. The signatories to a Memorandum of Agreement may 
amend it. If the Council was not a signatory to the original agreement 
and the signatories execute an amended agreement, the Agency Official 
shall file it with the Council.
    (8) Termination. If any signatory determines that the terms of a 
Memorandum of Agreement cannot be carried out, the signatories shall 
consult to seek amendment of the agreement. If the agreement is not 
amended, any signatory may terminate it. The Agency Official shall 
either execute a Memorandum of Agreement with signatories under 
paragraph (c)(1) of this section or request the comments of the Council 
under Sec. 800.7(a).
    (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 
with consultation shall notify the other consulting parties and provide 
them the reasons for terminating in writing.
    (1) If the Agency Official terminates consultation, the head of the 
agency or an Assistant Secretary or other officer with major 
department-wide or agency-wide responsibilities shall request that the 
Council comment pursuant to paragraph (c) of this section and shall 
notify all consulting parties of the request.
    (2) If the SHPO terminates consultation, the Agency Official and 
the Council may execute a Memorandum of Agreement without the SHPO's 
involvement.
    (3) If a THPO terminates consultation regarding an undertaking 
occurring on or affecting historic properties on its tribal lands, the 
Council shall comment pursuant to paragraph (c) of this section.
    (4) If the Council terminates consultation, the council shall 
notify the Agency Official, the agency's Federal Preservation Officer 
and all consulting parties of the termination and comment under 
paragraph (c) of this section. The Council may consult with the 
agency's Federal Preservation Officer prior to terminating consultation 
to seek to resolve issues concerning the undertaking and its effects on 
historic properties.
    (b) Comments without termination. The council may determine that it 
is appropriate to provide additional advisory comments upon an 
undertaking for which a Memorandum of Agreement will be executed. The 
Council shall provide them to the Agency Official when it executes the 
Memorandum of Agreement.
    (c) Comments by the Council.--(1) Preparation. The Council shall 
provide an opportunity for the Agency Official, all consulting parties, 
and the public to provide their views within the time frame for 
developing its comments. Upon request of the Council, the Agency 
official shall provide additional existing information concerning the 
undertaking and assist the Council in arranging an onsite inspection 
and an opportunity for public participation.
    (2) Timing. The council shall transmit its comments within 45 days 
of receipt of a request under paragraphs (a)(1) or (3) of this section 
or Sec. 800.8(c)(3), or termination by the Council under 
Sec. 800.6(b)(1)(v) or paragraph (a)(4) of this section unless 
otherwise agreed to by the Agency Official.
    (3) Transmittal. The Council shall provide its comments to the head 
of the agency requesting comment with copies to the Agency Official, 
the agency's Federal Preservation Officer, all consulting parties, and 
others as appropriate.
    (4) Response to Council comment. The head of the agency shall take 
into account the Council's comments in reaching a final decision on the 
undertaking. Section 110(l) of the Act directs that the head of the 
agency shall document this decision and may not delegate his or her 
responsibilities pursuant to section 106. Documenting the agency head's 
decision shall include:
    (i) Preparing a summary of the decision that contains the rationale 
for

[[Page 42843]]

the decision and evidence of consideration of the Council's comments 
and providing it to the council prior to approval of the undertaking;
    (ii) Providing a copy of the summary to all consulting parties; and
    (iii) Notifying the public and making the record available for 
public inspection.


Sec. 800.8  Coordination with the National Environmental Policy Act.

    (a) General principles.--(1) Early coordination. Federal agencies 
are encouraged to coordinate compliance with section 106 and the 
procedures in this part with any steps taken to meet the requirements 
of the National Environmental Policy Act (NEPA). Agencies should 
consider their section 106 responsibilities as early as possible in the 
NEPA process, and plan their public participation, analysis, and review 
in such a way that they can meet the purposes and requirements of both 
statutes in a timely and efficient manner. The determination of whether 
an undertaking is a ``major Federal action significantly affecting the 
quality of the human environment,'' and therefore requires preparation 
of an Environmental Impact Statement (EIS) under NEPA, should include 
consideration of the undertaking's likely effects on historic 
properties. A finding of adverse effect on a historic property does not 
necessarily require an EIS under NEPA.
    (2) Consulting party roles. SHPO/THPOs, Indian tribes and Native 
Hawaiian organizations, other consulting parties, and organizations and 
individuals who may be concerned with the possible effects of an agency 
action on historic properties should be prepared to consult with 
agencies early in the NEPA process, when the purpose of and need for 
the proposed action as well as the widest possible range of 
alternatives are under consideration.
    (3) Inclusion of historic preservation issues. Agency Officials 
should ensure that preparation of an Environmental Assessment (EA) and 
Finding of No Significant Impact (FONSI) or an EIS and Record of 
Decision (ROD) includes appropriate scoping, identification of historic 
properties, assessment of effects upon them, and consultation leading 
to resolution of any adverse effects.
    (b) Actions categorically excluded under NEPA. If a project, 
activity or program is categorically excluded from NEPA review under an 
agency's NEPA procedures, the Agency Official shall determine if it 
still qualifies as an undertaking requiring review under section 106 
pursuant to Sec. 800.3(a). If so, the Agency Official shall proceed 
with section 106 review in accordance with the procedures in this 
subpart.
    (c) Use of the NEPA process for Section 106 purposes. An Agency 
Official may use the process and documentation required for the 
preparation of an EA/FONSI or an EIS/ROD to comply with section 106 in 
lieu of the procedures set forth in 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 the NEPA scoping process with results consistent with 
Sec. 800.3(f);
    (ii) Identify historic properties and assess the effects of the 
undertaking on such properties in a manner consistent with the 
standards and criteria of 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 
standard set forth in paragraph (c)(1) of this section or that the 
substantive resolution of the effects on historic properties proposed 
in an EA, DEIS or EIS is inadequate. If the Agency Official receives 
such an objection, the Agency Official shall refer the matter to the 
Council.
    (3) Resolution of objections. Within 30 days of the Agency 
Official's referral of an objection under paragraph (c)(2) (ii) of this 
section, the Council shall not 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(c)(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

[[Page 42844]]

binding commitment adopted pursuant to paragraph (c) (4) of this 
section are carried out, the Agency Official shall notify the Council 
and all consulting parties that supplemental environmental documents 
will be prepared in compliance with NEPA or that the procedures in 
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 initiatives. The Agency Official shall 
consider the views of the Council in reaching a decision on the matter 
in question.
    (b) Agency foreclosure of the Council's opportunity to comment. 
Where an Agency Official has failed to complete the requirements of 
section 106 in accordance with the procedures in this part prior to the 
approval of an undertaking, the Council's opportunity to comment may be 
foreclosed. The Council may review a case to determine whether a 
foreclosure has occurred. The Council shall notify the Agency Official 
and the agency's Federal Preservation Officer and allow 30 days for the 
Agency Official to provide information as to whether foreclosure has 
occurred. If the Council determines foreclosure has occurred, the 
Council shall transmit the determination to the Agency Official and the 
head of the agency. The Council shall also make the determination 
available to the public and any parties known to be interested in the 
undertaking and its effects upon historic properties.
    (c) Intentional adverse effects by applicants.--(1) Agency 
responsibility. Section 110(k) of the Act prohibits a Federal agency 
from granting a loan, loan 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 through 800.6 to take 
into account the effects of the undertaking on any historic properties.
    (d) Evaluation of section 106 operations. The Council may evaluate 
the operation of the section 106 process by periodic reviews of how 
participants have fulfilled their legal responsibilities and how 
effectively the outcomes reached advance the purposes of the Act.
    (1) Information from participants. Section 203 of the Act 
authorizes the Council to obtain information from Federal agencies 
necessary to conduct evaluation of the section 106 process. The Agency 
Official shall make documentation of agency policies, operating 
procedures and actions taken to comply with section 106 available to 
the Council upon request. The Council may request available information 
and documentation from other participants in the section 106 process.
    (2) Improving the operation of section 106. Based upon any 
evaluation of the section 106 process, the Council may make 
recommendations to participants, the heads of Federal agencies, and the 
Secretary of actions to improve the efficiency and effectiveness of the 
process. Where the Council determines that an Agency Official or a 
SHPO/THPO has failed to properly carry out the responsibilities 
assigned under the 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) of the Act requires that 
the Agency Official, to the maximum extent possible, undertake such 
planning and actions as may be necessary to minimize harm to any 
National Historic Landmark that may be directly and adversely affected 
by an undertaking. When commenting on such undertakings, the Council 
shall use the process set forth in Secs. 800.6 through 800.7 and give 
special consideration to protecting National Historic Landmarks 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

[[Page 42845]]

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.
    (c) Confidentiality.--(1) Authority to withhold information. 
Section 304 of the Act provides that the head of a Federal agency or 
other public official receiving grant assistance pursuant to the Act, 
after consultation with the Secretary, shall withhold from public 
disclosure information about the location, character, or ownership of a 
historic property when disclosure may cause a significant invasion of 
privacy; risk harm to the historic property; or impede the use of a 
traditional religious site by practitioners. When the head of a Federal 
agency or other public official has determined that information should 
be withheld from the public pursuant to these criteria, the Secretary, 
in consultation with such Federal agency head or official, shall 
determine who may have access to the information for the purposes of 
carrying out the Act.
    (2) Consultation with the Council. When the information in question 
has been developed in the course of an agency's compliance with this 
part, the Secretary shall consult with the Council in reaching 
determinations on the withholding and release of information. The 
Federal agency shall provide the Council with available information, 
including views of 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) Memorandum of Agreement. When a Memorandum of Agreement is 
filed with the Council, the documentation shall include any substantive 
revisions or additions to the documentation provided the Council 
pursuant to Sec. 800.6(a)(1), an evaluation of any measures considered 
to avoid or minimize the undertaking's adverse effects and a summary of 
the views of consulting parties and the public.
    (g) Requests for comment without a Memorandum of Agreement. 
Documentation shall include:
    (1) A description and evaluation of any alternatives or mitigation 
measures that the Agency Official proposes to resolve the undertaking's 
adverse effects;
    (2) A description of any reasonable alternatives or mitigation 
measures that were considered but not chosen, and the reasons for their 
rejection;
    (3) Copies of 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 paragraph (a) of this section, the Agency 
Official may comply with section 106 by:
    (1) Following a Programmatic Agreement developed pursuant to 
Sec. 800.14(b) that contains specific provisions for dealing with 
historic properties in emergency situations; or
    (2) Notifying the Council, the appropriate SHPO/THPO and any Indian 
tribe or Native Hawaiian organization that may attach religious and 
cultural significance to historic properties likely to be affected 
prior to the undertaking and affording them an opportunity to comment 
within seven days of notification. If the Agency Official determines 
that circumstances do not permit seven days for comment, the Agency 
Official shall notify the Agency Official, the SHPO/THPO and the Indian 
tribe or Native Hawaiian organization and invite any comments within 
the time available.
    (c) Local governments responsible for section 106 compliance. When 
a local government official serves as the Agency Official for section 
106 compliance, paragraphs (a) and (b) of

[[Page 42846]]

this section also apply to an imminent threat to public health or 
safety as a result of a natural disaster or emergency declared by a 
local government's chief executive officer or legislative body, 
provided that if the Council or SHPO/THPO objects to the proposed 
action within seven days, the Agency Official shall comply with 
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 properties are discovered during the 
implementation of an undertaking.
    (2) Using agreement documents. When the Agency Official's 
identification efforts in accordance with Sec. 800.4 indicate that 
historic properties are likely to be discovered during implementation 
of an undertaking and no Programmatic Agreement has been developed 
pursuant to paragraph (a)(1) of this section, the Agency Official shall 
include in any finding of no adverse effect or Memorandum of Agreement 
a process to resolve any adverse effects upon such properties. Actions 
in conformance with the process satisfy the Agency Official's 
responsibilities under section 106 and this part.
    (b) Discoveries without prior planning. If historic properties are 
discovered or unanticipated effects on historic properties found after 
the Agency Official has completed the section 106 process without 
establishing a process under paragraph (a) of this section, the Agency 
Official shall make reasonable efforts to avoid, minimize or mitigate 
adverse effects to such properties and:
    (1) If the Agency Official has not approved the undertaking or if 
construction on an approved undertaking has not commenced, consult to 
resolve adverse effects pursuant to Sec. 800.6; or
    (2) If the Agency Official, the SHPO/THPO and any Indian tribe or 
Native Hawaiian organization that might attach religious and cultural 
significance to the affected property agree that such property is of 
value solely for its scientific, prehistoric, historic or 
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 paragraph (a) of this section and construction has commenced, the 
Agency Official shall comply with applicable tribal regulations and 
procedures and obtain the concurrence of the Indian tribe on the 
proposed action.

Subpart C--Program Alternatives


Sec. 800.10  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/THPs, as appropriate, and 
Indian tribes and Native Hawaiian organizations, as specified in 
paragraph (f) of this section, in the development of alternative 
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 procedure.
    (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, if 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 public 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;

[[Page 42847]]

    (iii) When nonfederal parties are delegated major decision making 
responsibilities;
    (iv) Where routine management activities are undertaken at Federal 
Installations, facilities, or other land-management units; or
    (v) Where other circumstances warrant a departure from the normal 
section 106 process.
    (2) Developing Programmatic Agreements for agency programs. (i) The 
consultation shall involve, as appropriate, SHPO/THPOs, the National 
Conference of State Historic Preservation Officers (NCSHPO), Indian 
tribes and Native Hawaiian organizations, other Federal agencies, and 
members of the public. If the Programmatic Agreement has the potential 
to affect historic properties on tribal lands or historic properties of 
religious and cultural significance to an Indian tribe or Native 
Hawaiian organization, the Agency Official shall also follow paragraph 
(f) of this section.
    (ii) Public Participation. The Agency Official shall arrange for 
public participation appropriate to the subject matter and the scope of 
the program and in accordance with subpart A of this part. The Agency 
Official shall consider the nature of the program and its likely 
effects on historic properties and take steps to involve the 
individuals, organizations and entities likely to be interested.
    (iii) Effect. The Programmatic Agreement shall take effect when 
executed by the Council, the Agency Official and the appropriate SHPOs/
THPOs when the Programmatic Agreement concerns a specific region or the 
President of NCSHPO when NCSHPO has participated in the consultation. A 
Programmatic Agreement shall take effect on tribal lands only when the 
THPO, Indian tribe or a designated representative of the tribe is a 
signatory to the agreement. Compliance with the procedures established 
by an approved Programmatic Agreement satisfies the agency's section 
106 responsibilities for all individual undertakings of the program 
covered by the agreement until it expires or is terminated by the 
agency, the President of NCSHPO when a signatory, or the Council. 
Termination by an individual SHPO/THPO shall only terminate the 
application of a regional Programmatic Agreement within the 
jurisdiction of the SHPO/THPO. If a THPO assumes the responsibilities 
of a SHPO pursuant to section 101(d)(2) of the Act and the SHPO is 
signatory to Programmatic Agreement, the THPO assumes the role of a 
signatory, including the right to terminate a regional Programmatic 
Agreement on lands under the jurisdiction of the tribe.
    (iv) Notice. The Agency Official shall notify the parties with 
which it has consulted that a Programmatic Agreement has been executed 
under this paragraph (b)(2), provide appropriate public notice before 
it takes effect, and make any internal agency procedures implementing 
the agreement readily available to the Council, SHPO/THPOs, and the 
public.
    (v) If the Council determines that the terms of a Programmatic 
Agreement are not being carried out, or if such an agreement is 
terminated, the Agency Official shall comply with subpart B of this 
part with regard to individual undertakings of the program covered by 
the agreement.
    (3) Developing Programmatic Agreements for complex or multiple 
undertakings. Consultation to develop a Programmatic Agreement for 
dealing with the potential adverse effects of complex projects or 
multiple undertakings shall follow Sec. 800.6. If consultation pertains 
to an activity involving multiple undertakings and the parties fail to 
reach agreement, then the Agency Official shall comply with the 
provisions of subpart B of this part for each individual undertaking.
    (c) Exempted categories.--(1) Criteria for establishing. An Agency 
Official may propose a program or category of agency undertakings that 
may be exempted from review under the provisions of subpart B of this 
part, if the program or category meets the following criteria:
    (i) The actions within the program or category would otherwise 
qualify as ``undertakings'' as defined in Sec. 800.16;
    (ii) The potential effects of the undertakings within the program 
or category upon historic properties are foreseeable and likely to be 
minimal or not adverse; and
    (iii) Exemption of the program or category is consistent with the 
purposes of the Act.
    (2) Public participation. The Agency Official shall arrange for 
public participation appropriate to the subject matter and the scope of 
the exemption and in accordance with the standards in subpart A of this 
part. The Agency Official shall consider the nature of the exemption 
and its likely effects on historic properties and take steps to involve 
individuals, organizations and entities likely to be interested.
    (3) Consultation with SHPOs/THPOs. The Agency Official shall notify 
and consider the views of the SHPOs/THPOs on the exemption.
    (4) Consultation with Indian tribes and Native Hawaiian 
organizations. If the exempted program or category of undertakings has 
the potential to affect historic properties on tribal lands or historic 
properties of religious and cultural significance to an Indian tribe or 
Native Hawaiian organization, the Council shall follow the requirements 
for the Agency Official set forth in paragraph (f) of this section.
    (5) Council review of proposed exemptions. The Council shall review 
a request for an exemption that is supported by documentation 
describing the program or category for which the exemption is sought, 
demonstrating that the criteria of paragraph (c)(1) of this section 
have been met, describing the methods used to seek the views of the 
public, and summarizing any views submitted by the 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.
    (7) Termination. The Council may terminate an exemption at the 
request of the Agency Official or when the Council determines that the 
exemption no longer meets the criteria of paragraph (c)(1) of this 
section. The Council shall notify the Agency Official 30 days before 
termination becomes effective.
    (8) Notice. The Agency Official shall publish notice of any 
approved exemption in the Federal Register.
    (d) Standard treatments.--(1) Establishment. The Council, on its 
own initiative or at the request of another party, may establish 
standard methods for the treatment of a category of historic 
properties, a category of undertakings, or a category of effects on 
historic properties to assist Federal agencies in satisfying the 
requirements of subpart B of this part. The Council shall publish 
notice of standard treatments in the Federal Register.
    (2) Public participation. The Council shall arrange for public 
participation appropriate to the subject matter and the scope of the 
standard treatment and consistent with subpart A of this part.

[[Page 42848]]

The Council shall consider the nature of the standard treatment and its 
likely effects on historic properties and the individuals, 
organizations and entities likely to be interested. Where an Agency 
Official has proposed a standard treatment, the Council may request the 
Agency Official to arrange for public involvement.
    (3) Consultation with SHPOs/THPOs. The Council shall notify and 
consider the views of the SHPOs/THPOs on the proposed standard 
treatment.
    (4) Consultation with Indian tribes and Native Hawaiian 
organizations. If the proposed standard treatment has the potential to 
affect historic properties on tribal lands or historic properties of 
religious and cultural significance to an Indian tribe or Native 
Hawaiian organization, the Council shall follow the requirements for 
the Agency Official set forth in paragraph (f) of this section.
    (5) Termination. The Council may terminate a standard treatment by 
publication of a notice in the Federal Register 30 days before the 
termination takes effect.
    (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 Council may provide 
program comments at its own initiative.
    (1) Agency request. The Agency Official shall identify the category 
of undertakings, specify the likely effects on historic properties, 
specify the steps the Agency Official will take to ensure that the 
effects are taken into account, identify the time period for which the 
comment is requested and summarize any views submitted by the public.
    (2) Public participation. The Agency Official shall arrange for 
public participation appropriate to the subject matter and the scope of 
the category and in accordance with the standards in subpart A of this 
part. The Agency Official shall consider the nature of the undertakings 
and their likely effects on historic properties and the individuals, 
organizations and entities likely to be interested.
    (3) Consultation with SHPOs/THPOs. The Council shall notify and 
consider the views of the SHPOs/THPOs on the proposed program comment.
    (4) Consultation with Indian tribes and Native Hawaiian 
organizations. If the program comment has the potential to affect 
historic properties on tribal lands or historic properties of religious 
and cultural significance to an Indian tribe or Native Hawaiian 
organization, the Council shall follow the requirements for the Agency 
Official set forth in paragraph (f) of this section.
    (5) Council action. Unless the Council requests additional 
documentation, notifies the Agency Official that it will decline to 
comment, or obtains the consent of the Agency Official to extend the 
period for providing comment, the Council shall comment to the Agency 
Official within 45 days of the request.
    (i) If the Council comments, the Agency Official shall take into 
account the comments of the Council in carrying out the undertakings 
within the category and publish notice in the Federal Register of the 
Council's comments and steps the agency will take to ensure that 
effects to historic properties are taken into account.
    (ii) If the Council declines to comment, the Agency Official shall 
continue to comply with the requirements of 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 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 paragraphs (a) 
through (e) of this section, the Agency Official shall ensure that 
development of the program alternative includes appropriate government-
to-government consultation with affected Indian tribes and consultation 
with affected Native Hawaiian organizations.
    (1) Identifying affected Indian tribes and Native Hawaiian 
organizations. If any undertaking covered by a proposed program 
alternative has the potential to affect historic properties on tribal 
lands, the Agency Official shall identify and consult with the Indian 
tribes having jurisdiction over such lands. If a proposed program 
alternative has the potential to affect historic properties of 
religious and cultural significance to an Indian tribe or a Native 
Hawaiian organization which are located off tribal lands, the Agency 
Official shall identify those Indian tribes and Native Hawaiian 
organizations that might attach religious and cultural significance to 
such properties and consult with them.
    (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 caused by the undertaking.
    (e) Comment means the findings and recommendations of the Council 
formally provided in writing to the head of a Federal agency under 
section 106.
    (f) Consultation means the process of seeking, discussing, and 
considering the views of other participants, and, where feasible, 
seeking agreement with them regarding matters arising in the section 
106 process. The Secretary's ``Standards and Guidelines for Federal 
Agency Preservation Programs pursuant to the National Historic 
Preservation Act'' provide further guidance on consultation.
    (g) Council means the Advisory Council on Historic Preservation or 
a Council member or employee designated to act for the Council.
    (h) Day or days means calendar days.
    (i) Effect means alteration to the characteristics of a historic 
property qualifying it for inclusion in or eligibility for the National 
Register.
    (j) Foreclosure means an action taken by an Agency Official that 
effectively precludes the Council from providing comments which the 
Agency Official can meaningfully consider prior to the approval of the 
undertaking.
    (k) Head of the agency means the chief official of the Federal 
agency responsible for all aspects of the agency's actions. If a State, 
local or tribal government has assumed or has been delegated 
responsibility for section 106 compliance, the head of that unit of 
government shall be considered the head of the agency.

[[Page 42849]]

    (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 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 this part when an undertaking:
    (1) Has substantial impacts on important historic properties. 
This may include adverse effects on properties that possess a 
national level of significance or on properties that are of unusual 
or noteworthy importance or are a rare property type; or adverse 
effects to large numbers of historic properties, such as impacts to 
multiple properties within a historic district.
    (2) Presents important questions of policy or interpretation. 
This may include questions about how the Council's regulations are 
being applied or interpreted, including possible foreclosure or 
anticipatory demolition situations; situations where the outcome 
will set a precedent affecting Council policies or program goals; or 
the development of programmatic agreements that alter the way the 
section 106 process is applied to a group or type of undertakings.
    (3) Has the potential for presenting procedural problems. This 
may include cases with substantial public controversy that is 
related to historic preservation issues; with disputes among or 
about consulting parties which the Council's involvement could help 
resolve; that are involved or likely to be involved in litigation on 
the basis of section 106; or carried out by a Federal agency, in a 
State or locality, or on tribal lands where the Council has 
previously identified problems with section 106 compliance pursuant 
to Sec. 800.9(d)(2).
    (4) Presents issues of concern to Indian tribes or Native 
Hawaiian organizations. This may include cases where there have been 
concerns 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: June 30, 2000.
John M. Fowler,
Executive Director.
[FR Doc. 00-17155 Filed 7-10-00; 8:45 am]
BILLING CODE 4310-10-M