[Federal Register Volume 65, Number 239 (Tuesday, December 12, 2000)]
[Rules and Regulations]
[Pages 77698-77739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-31253]



[[Page 77697]]

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Part II





Advisory Council on Historic Preservation





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36 CFR Part 800



Protection of Historic Properties; Final Rule

  Federal Register / Vol. 65 , No. 239 / Tuesday, December 12, 2000 / 
Rules and Regulations  

[[Page 77698]]


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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: Final rule; revision of current regulations.

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SUMMARY: The Advisory Council on Historic Preservation is publishing 
its final rule, replacing the previous rule which implemented the 1992 
amendments to the National Historic Preservation Act (NHPA), and 
improved and streamlined the rule in accordance with the 
Administration's reinventing government initiatives and public comment. 
Litigation earlier this year challenged that previous rule. This 
rulemaking has addressed questions and concerns raised by that 
litigation, and has given the public a chance to provide input to 
determine how the rule has operated and revise the rule as appropriate. 
The final rule modifies the process by which Federal agencies consider 
the effects of their undertakings on historic properties and provide 
the Council with a reasonable opportunity to comment with regard to 
such undertakings, as required by section 106 of the NHPA. The Council 
has sought to better balance the interests and concerns of various 
users of the section 106 process, including Federal agencies, State 
Historic Preservation Officers (SHPOs), Tribal Historic Preservation 
Officers (THPOs), Native Americans and Native Hawaiians, industry, and 
the public.

DATES: This final rule is effective January 11, 2001.

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

SUPPLEMENTARY INFORMATION: The information that follows has been 
divided into five sections. The first one provides background 
information introducing the agency and summarizing the history of the 
rulemaking process. The second section highlights the changes 
incorporated into the final rule. The third section describes, by 
section and topic, the Council's response to public comments on this 
rulemaking. The fourth section provides a description of the meaning 
and intent behind specific sections of the final rule. Finally, the 
fifth section provides the impact analysis section, which addresses 
various legal requirements, including the Regulatory Flexibility Act, 
the Paperwork Reduction Act, the National Environmental Policy Act, the 
Unfunded Mandates Act, the Congressional Review Act and various 
relevant Executive Orders.

I. Background

    The Advisory Council on Historic Preservation (``Council'') is the 
major policy advisor to the Government in the field of historic 
preservation. Twenty members make up the Council. The President 
appoints four members of the general public, one Native American or 
Native Hawaiian, four historic preservation experts, and one governor 
and one mayor. The Secretary of the Interior and the Secretary of 
Agriculture, four other Federal agency heads designated by the 
President, the Architect of the Capitol, the chairman of the National 
Trust for Historic Preservation and the president of the National 
Conference of State Historic Preservation Officers complete the 
membership.
    This final rule sets forth the revised section 106 process. Section 
106 of the National Historic Preservation Act of 1966, as amended, 16 
U.S.C. 470f (NHPA), requires Federal agencies to take into account the 
effect of their undertakings on properties included in or eligible for 
inclusion in the National Register of Historic Places and to afford the 
Council a reasonable opportunity to comment on such undertakings.
    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 went into effect on June 17, 1999, and superseded the 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, 1992, 
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 long-standing practice of having 
Federal agencies develop agreements to address adverse effects of their 
undertakings to historic properties. This practice had also been 
recognized in the earlier, 1980 amendments, where Section 205(b) of the 
NHPA was changed to state that the Council could be represented in 
court by its General Counsel regarding ``enforcement of agreements with 
Federal agencies.'' 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(l). See 36 CFR 800.6, 
800.7.
    5. Added a member to the Council. This Council member would be a 
Native

[[Page 77699]]

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 description of 
the Council's revision efforts from 1992, which led to the final rule 
that went into effect in 1999 (``1999 rule''), is found in its preamble 
(64 FR 27044-27084, May 18, 1999). That preamble extensively details 
its history, purpose, intent, and response to public comment.
    On February 15, 2000, the National Mining Association (``NMA'') 
filed a lawsuit challenging the 1999 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 
rulemaking process that culminates today with this final rule. The 
Council believed that this rulemaking would provide an opportunity to 
address assertions about the procedural adequacy of the promulgation of 
the 1999 rule, including those about the participation of the National 
Trust for Historic Preservation (``Trust'') and the National Conference 
of State Historic Preservation Officers (``NCSHPO''), as Council 
members, in the adoption of the final, revised rule. It would also give 
the public a chance to provide input to determine how the rule has 
operated and revise the rule as appropriate. This rulemaking 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 1999 rule, 
without the participation of the Trust and NCSHPO. The Council members 
voted 16-0 in favor of the 1999 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 rulemaking 
process, using the text of the 1999 rule as the proposed rule. Again, 
the Council members voted in favor of moving forward with the 
rulemaking by a vote of 16-0, with the Trust and NCSHPO voluntarily 
recusing themselves from the vote and any deliberation on it. 
Accordingly, on July 11, 2000 the Council published a proposed rule for 
public comment (65 FR 42833-42849).
    The public was given a 30-day period, until August 10, in which to 
comment on the proposed rule. All those who filed a timely request for 
an extension of the comment period were given until August 31 to submit 
their comments. We believe the extension granted was reasonable in 
light of the circumstances.
    As stated above, the text of the proposed rule submitted for public 
comment was the same as the one for the final rule that had been in 
effect for more than a year. That final rule, in turn, was the product 
of a rulemaking process that afforded the public ample opportunity, 
throughout six years, to participate and comment. The preamble of that 
1999 final rule (found at 64 FR 27044-27084, May 18, 1999) extensively 
details its history, purpose, intent, and response to public comment. 
It is a lengthy document and will not be re-printed here.
    After the close of the public comment period, the Council, minus 
the Trust and NCSHPO, considered the comments and incorporated changes 
into a draft rule as was deemed appropriate. On November 17, 2000, the 
Council voted on whether to adopt the draft rule as a final rule. As 
stated before, the Council members representing the Trust and NCSHPO 
had already recused themselves from the rulemaking process and proposed 
suspension. They accordingly removed themselves from the table and took 
no part in the deliberations and vote on this matter.
    The Council voted to adopt the draft rule as the final rule now 
being published, by a vote of 17 for, 1 abstention, and none against.
    The Council reiterates that the Trust and NCSHPO did not 
participate in any way whatsoever in the deliberations, decisions, 
votes, or any other Council activities regarding this rulemaking. Their 
only participation in this rulemaking took the form of a written 
comment filed by NCSHPO on the proposed rule. Such comment was 
submitted by NCSHPO, as a member of the general public, during the 
commenting period provided by the notice of proposed rulemaking.

II. Highlights of Changes

    The Council retained the core elements of the section 106 process 
that have been its hallmark since 1974. The Council also retained the 
major streamlining improvements that were adopted in June, 1999. 
Changes adopted were primarily modifications to remove operational 
impediments in the process and clarifications of certain provisions and 
terms. In addition, a number of technical and informational edits were 
made throughout the rule. Major changes are as follows:

1. Clarification of the Role of State Historic Preservation Officers.

    Section 800.2(c)(1) was amended to acknowledge the statutory 
responsibility of SHPOs to cooperate with agencies, local governments, 
and organizations and individuals to ensure that historic properties 
are considered in planning.

2. Clarification of the Role of Indian Tribes and Tribal Historic 
Preservation Officers

    Section 800.2(c)(2) was completely rewritten to better distinguish 
the roles of Indian tribes that had assumed the responsibilities of 
SHPOs on their tribal lands under section 101(d)(2) of the Act from 
that of Indian tribes which had not. The Council notes that these 
amendments do not change the substantive role of non-101(d)(2) Tribes 
or any other party in the section 106 process under the proposed rule, 
but simply provide for a clearer rule. Section 800.2(c)(2)(ii) was also 
amended to clarify that the Act requires agency consultation with 
Indian tribes and Native Hawaiian organizations that attach religious 
and cultural significance to historic properties regardless of whether 
the historic properties are located on or off tribal land. Section 
800.2(c)(2)(ii)(B) was amended to better reflect the sovereignty of 
Indian tribes over their tribal lands.

[[Page 77700]]

3. More Flexibility To Involve Applicants

    Section 800.2(c)(5) was amended to resolve a major problem 
regarding the participation of applicants for Federal assistance or 
permission in the Section 106 process. Under the change, an agency may 
authorize a group of applicants to initiate the section 106 process, 
rather than being required to grant individual authorizations. Language 
was also added to clarify that such authorizations do not relieve the 
Federal agency of its obligations to conduct government-to-government 
consultation with Indian tribes.

4. Clarification of Undertakings Covered by the Section 106 Process

    Section 800.3(a)(1) was amended to better state the premise of the 
rule that only an undertaking that presents a type of activity that has 
the potential to affect historic properties requires review. The 
previous language implied that making such a determination related to 
the circumstances of the particular undertaking, rather than the more 
generic analysis of whether the type of undertaking had the potential 
to affect historic properties.

5. Reinforcement of the Federal Agency's Responsibilities in 
Identifying Historic Properties

    Section 800.4(a) was amended to assert that determinations in this 
subsection are made unilaterally by the Agency Official, after 
consultation with SHPO/THPO. Some had misunderstood the previous 
version as providing for consensus determinations.

6. Revision of the Role of Invited Signatories

    Section 800.6(c)(2) was rewritten to remove confusion about the 
ability of the Federal agency to invite other parties to become formal 
signatories to Memoranda of Agreement and to clarify their rights and 
responsibilities as invited signatories. Also regarding memoranda of 
agreement, Sec. 800.6(c)(8) was amended to provide that the option for 
their termination exists not only when one party simply cannot comply 
with its terms, but also when the terms are not being followed for 
whatever reason.

7. Revision of the Use of Environmental Impact Statements (EIS) To 
Comply With Section 106

    Section 800.8(c)(4) was rewritten to more clearly state the actions 
a Federal agency must take in making a binding commitment in an NEPA 
documents to carry out measures to avoid, minimize or mitigate adverse 
effects and thereby use the NEPA process to comply with section 106 
requirements.

8. Redefinition of the Role of the Council When Improving the Operation 
of Section 106

    Section 800.9(d)(2) was amended to require the Council to 
participate in section 106 reviews in a manner parallel to SHPOs/THPOs 
when the Council decides to join individual case reviews it would not 
otherwise engage in. This occurs when the Council has determined that 
section 106 responsibilities are not being properly carried out by an 
agency or SHPO/THPO and the Council's participation can remedy the 
problem.

9. Modification of Documentation Standards

    Section 800.11(a) was amended to state that a Federal agency's 
responsibility to provide documentation was limited by legal authority 
and the availability of funds. Section 800.11(c)(2) was also amended to 
require Federal agencies to include the views of the SHPO/THPO when 
consulting with the Council on withholding confidential information.

10. Inclusion of National Register Eligibility Assessment in 
Consideration of Post-Review Discoveries

    Section 800.13(b)(3) was amended to add a requirement that a 
Federal agency seeking expedited section 106 review for properties 
discovered after approval of an undertaking provide information on the 
eligibility of affected properties for the National Register.

11. Increased Flexibility for Programmatic Agreements

    Section 800.14(b) was amended by the addition of a new section 
authorizing the Council to create ``prototype programmatic agreements'' 
which could be executed by a Federal agency and an SHPO/THPO without 
Council participation. This would permit routine programmatic 
agreements that follow an accepted model to be completed more 
expeditiously.

12. Improved Consideration of Stakeholder and Public Views on Proposed 
Exemptions

    Section 800.14(c)(5) was amended to add Council consideration of 
the views of SHPOs/THPOs and others consulted when determining whether 
to approve an exemption from the section 106 process. The Council was 
also required to notify the agency and SHPOs/THPOs of it decision on 
the requested exemption.

13. More Flexibility for Federal Agencies When Consulting With Indian 
Tribes on Nationwide Program Alternatives

    Section 800.14(f) was amended to reemphasize a Federal agency's 
obligation under various authorities to consult with Indian tribes and 
Native Hawaiian organizations when developing nationwide program 
alternatives, but to acknowledge that it is the agency's responsibility 
to determine the appropriate means of meeting those obligations.

III. Response to Public Comments

    Following is a summary of the public comments received in response 
to the notice of proposed rulemaking, along with the Council's 
response. The public comments are printed in bold typeface, while the 
Council response follows immediately in normal typeface. They are 
organized according to the relevant section of the proposed rule or 
their general topic.

Section 800.1

    The Council should expand the definition of SHPO responsibilities 
beyond cooperation with the Secretary, Advisory Council and Federal 
agencies to include explicit reference to organizations and 
individuals, such as regulatees and their consultants. The Council 
noted that such language was warranted by the NHPA, and therefore 
inserted language regarding such SHPO duties per section 101(b)(3)(F) 
of the NHPA.
    The very last sentence of this section should be changed to: ``The 
Agency Official is encouraged to initiate the section 106 process as 
early as practicable in the undertaking's planning so that it may 
consider impacts on historic resources.'' The language on the proposed 
rule stated that the Agency Official ``shall ensure that the section 
106 process is initiated early in the undertaking's planning * * *'' 
The Council disagreed with the commenter's proposed change since it is 
crucial that agencies initiate the section 106 process at a point where 
alternatives have not yet been foreclosed. Otherwise, the review would 
be rendered meaningless.
    Council is urged to preserve flexibility provision under the 1986 
regulations, which stated: ``The Council recognizes that the procedures 
for the Agency Official set forth in these regulations may be 
implemented by the Agency Official in a flexible manner reflecting 
different program requirements, as long as the purposes of section 106 
of the Act and these regulations are met.'' Specific areas of

[[Page 77701]]

flexibility are incorporated in the proposed rule to embody the general 
flexibility term found in the 1986 rule. Among these are: phased 
identification, compression of steps, NEPA coordination, and the 
various program alternatives under Sec. 800.14 of the rule.

Section 800.2(a)

    The regulations should state that Federal agencies that authorize 
applicants to initiate consultation are still responsible for their 
government to government relationships with tribes. The Council agreed 
and incorporated such change at Sec. 800.2(c)(5) since the statement 
comports with Executive Orders and Memoranda regarding the government-
to-government responsibilities of Federal agencies towards federally 
recognized tribes.
    Requirements of Sec. 800.14 preclude implementation of 
Sec. 800.2(a) insofar as it calls for utilization of the agency's 
existing procedures to fulfill consultation requirements. The Council 
disagreed. The comment failed to consider the difference between 
procedures that implement 36 CFR part 800 (those under Sec. 800.2(a)) 
and procedures that actually substitute/modify the process under 36 CFR 
part 800 (those under Sec. 800.14).
    Nothing in NHPA requires Federal agencies to consult with a 
particular party, thus, while such consultation may be beneficial, it 
should be left to the discretion of the Federal agency under NHPA. The 
Council not only believes that such consultation is beneficial, but it 
also believes it has the required authority to justify this and all 
other sections of the proposed rule. Consultation occurs in the section 
106 process propounded by the rule in a way that is fully consistent 
with the statute. See, for example, the statutory language under 
section 101 of the NHPA regarding SHPO and THPO assistance to Federal 
agencies in the section 106 process, the consultation requirements with 
Indian tribes and Native Hawaiian organizations under the 1992 
amendments to the NHPA, and language under Section 110 of the NHPA 
ensuring that public involvement occurs in the section 106 process. 
Such consulting entities have the specialized knowledge and interest 
that Federal agencies may lack. Consultation with these parties 
provides the Federal agency with the information it needs to make 
reasoned assessment of how its undertakings affect historic properties. 
Furthermore, it is clear to the Council through its years of 
experience, that such consultation is necessary and that Federal 
agencies heavily rely on such assistance (in particular that of the 
SHPOs). Please also refer to responses given under the legal topics.
    Federal officials (and not State, local or tribal government 
officials) are responsible for taking into account the effects of their 
undertakings on historic properties. Furthermore, it is inappropriate 
to mention Section 112 of the NHPA in this section since the Council 
has no authority to enforce it. The Council agrees that the 
responsibility for section 106 compliance lies with Federal agencies, 
including the ``take into account'' responsibility. The Council 
clarifies that section 112 is merely restated in the rule for reference 
purposes (as opposed to enforcement).
    ACHP refusal to take a position regarding delegation of authority 
have resulted in SHPOs disregarding FCC's jurisdiction and emphasizes 
on enforcement over historic preservation. During the time frame of 
this rulemaking, the Council issued a memorandum to the FCC, all SHPOs 
and the telecommunications industry clarifying its position on 
delegations of authority. This and several other issues mentioned by 
the telecommunications industry in this rulemaking process have been or 
are in the process of being addressed through ongoing discussions with 
the industry, the FCC and SHPOs. These discussions commenced before the 
present rulemaking process. Such ongoing discussions are referred 
hereinafter as ``Telecommunications Working Group.''
    Although section 101 of the NHPA establishes an advisory role for 
SHPOs to assist Federal agencies, the rules fail to establish 
consistent objective standards for SHPOs to apply in carrying out their 
duties. It undermines the ability of SHPOs and Federal agencies to 
adequately serve the Council's goal of protecting historic properties. 
The Council believes that the rule contains adequate standards that 
guide SHPOs in carrying out their functions. These standards can be 
found in various parts of the rule (e.g., criteria of adverse effect 
under Sec. 800.5(a), and various definitions of terms under 
Sec. 800.16). Further standards, such as the National Register Criteria 
of Eligibility (36 CFR part 63), are referenced in the present rule, 
and guide SHPO duties. Furthermore, pursuant to the NHPA, the 
Department of the Interior regularly reviews SHPO programs and ensures 
such programs and their personnel have the necessary expertise to guide 
their performance of their statutory duties, which include ``to consult 
with * * * Federal agencies * * * on Federal undertakings that may 
affect historical properties.'' 16 U.S.C. 470a(b)(3)(I).
    ``Delegation authority'' should be expanded to include ``approved'' 
state agencies and other pre-approved designees to conduct section 106 
coordination on behalf of the Agency Official. The Council disagrees 
since the comment fails to realize that such authority can only come 
through statute. Congress specifically placed section 106 compliance 
responsibilities on Federal agencies. Only Congress can shift that 
responsibility. The Council is only aware of certain Department of 
Housing and Urban Development programs containing such a statutory 
delegation.

Section 800.2(b)

    Licensees should be recognized as consulting parties under the 
regulations. Applicants for licenses, permits, approvals or assistance 
are specifically listed in the rule as consulting parties (see 
Secs. 800.2(c)(5) and 800.3(f)(1)).
    Add the following to Sec. 800.2(b)(2): ``Within 30 days of receipt 
of a request for such advise, the Council shall reply in writing with 
advise, or it shall reply in writing that it will not offer advice 
stating its reason(s) for so doing.'' This is needed to ensure Council 
responds in a timely fashion. The Council disagreed with this proposal. 
Time limits, and the consequences of not replying in time, are already 
specified in the proposed rule as needed.

Section 800.2(c)

    Remove the first sentence of Sec. 800.2(c)(1)(I). It is unrealistic 
to charge the SHPO with ``reflecting the interests of the State and its 
citizens in the preservation of their cultural heritage.'' This only 
encourages agencies to treat SHPO coordination as the be-all and end-
all of consultation, even where large numbers of a State's citizens 
violently disagree with a SHPO position. The rule reasonably supports 
the idea that the SHPO reflects the interests of the State by virtue of 
being a State official appointed by the elected State Governor.
    Several comments requested that the rule distinguish the roles of 
Tribes that have an approved ``Tribal Historic Preservation Officer' 
(THPO) pursuant to section 101(d)(2) of the NHPA, and those that do 
not. The use of the term ``THPO'' for both was deemed to be highly 
confusing. As stated in the highlight of changes above, 
Sec. 800.2(c)(2) was completely rewritten to better distinguish the 
roles of Indian tribes that had assumed the responsibilities of SHPOs 
on their tribal lands under section 101(d)(2) of the Act from that of 
Indian tribes which had not. The Council notes that these amendments do

[[Page 77702]]

not change the substantive role of non-101(d)(2) Tribes or any other 
party in the section 106 process of the proposed rule, but simply 
provide for a clearer rule.
    Many THPO's have construed this provision to mean that they must be 
invited to participate as ``consulting parties'' on all undertakings 
affecting properties of traditional religious and cultural importance, 
a position at odds with the NHPA. It is requested that the role of 
tribal representatives and THPO's in consultation off tribal land to be 
clarified consistent with the statute. The Council believes that 
section 101(d)(6)(B) of the NHPA clearly gives federally recognized 
tribes and Native Hawaiian organizations a right to be consulted 
regarding historic properties of religious and cultural significance to 
them. The cited section of the statute does not qualify that right 
depending on whether the historic property is located on or off tribal 
lands. It also does not qualify that right depending on whether the 
tribe has a THPO certified pursuant to section 101(d)(2) of the NHPA.
    Too difficult to implement requirements of Sec. 800.2(c)(2) when 
the project is not on reservation land. It is unreasonable for each 
Federal agency to develop on their own information as to which tribe(s) 
may be associated with specific geographic areas. While the Council 
acknowledges certain initial difficulties in identifying tribes to 
consult outside tribal lands, it believes the statute is clear in 
mandating such consultation regardless of the location of the historic 
property. The Council and the National Park Service are currently 
conducting a guidance project to assist agencies in identifying Indian 
tribes to be consulted.
    Regulations do not create a ``consultative'' role for SHPO staff 
who would prefer to spend their time and efforts preserving historic 
properties rather than enforcing procedures on telecommunications 
projects. The SHPOs have a specific statutory duty to consult with 
Federal agencies and assist them with their section 106 duties. 16 
U.S.C. 470a(b)(3)(I). Moreover, the SHPOs do spend their time directly 
preserving historic properties through their involvement in the section 
106 process. The Council has not received contrary views from any 
SHPOs. Finally, similar issues of SHPO/telecommunications industry work 
in the section 106 process is being addressed by the ongoing 
Telecommunications Working Group.
    Definition of ``additional consulting parties'' is too open ended, 
since it makes it possible for anyone who can claim a ``concern'' to 
become a consulting party, adding delays and expenses to the process 
(Sec. 800.2(c)(6)). Even if Council had authority over this issue, at a 
minimum the rule should require a demonstration of some form of 
protectable interest similar to the concept of legal standing. 
Standards for additional consulting parties adequately balance the 
project's need for expediency and the right of those with defined 
interests in getting involved in the process. To ensure this provision 
is not abused, the rule gives the Agency Official the ultimate 
discretion to invite additional consulting parties or not. The Council 
believes the Agency Official is in a better position to balance the 
benefits of including these parties against the costs of so doing. The 
Agency Official will be able to do this on a case by case basis, 
according to the particulars of the specific undertaking at issue.
    Use of the phrase ``SHPO/THPO'' has led to misunderstandings 
concerning the different regulatory roles of the SHPOs and THPOs in 
consultation on projects located off tribal lands. Guidance is needed 
to clarify these roles. The Council believes the rule is clear in that 
Federally recognized tribes have to be consulted regarding historic 
properties of cultural and religious significance to them, regardless 
of the location of such properties. With the changes regarding the use 
of the term THPO, there should be no confusion as to consultative 
rights of tribes.
    Expanded definition of consulting parties has made it difficult and 
time consuming for agency officials to establish an appropriate 
consultation process. Guidelines for determining formal consulting 
parties should be developed. The Council believes that Secs. 800.2 and 
800.3(f) set forth clear standards for who should be a consulting 
party, and a clear process for who makes the determination and when. A 
further expansion on this topic to aid Federal agencies is better 
suited for guidance.
    Regulations give tribes a secondary role to SHPOs with respect to 
tribal cultural and sacred properties which are not on tribal lands. 
The 1992 Amendments were intended to provide tribes with rights at 
least equivalent to SHPOs regardless of where the properties are 
located. Tribes want same consultation rights as SHPO for tribal 
cultural properties located off tribal lands. SHPO role is a creation 
of the regulations and is not required in the Act. The Council does not 
believe that Tribes have a secondary role to SHPOs. They do have a 
different role however. The rule recognizes that Tribes are entitled to 
consult regarding historic properties of religious and cultural 
significance to them that may be affected by an undertaking. The SHPO 
is also entitled to consult, consistent with the definition of SHPO 
responsibilities in the Act, regarding historic properties. 16 U.S.C. 
470a(b)(3).
    The regulations assume that the THPO is a regulatory/executive body 
of a tribal government. Federal agencies believe that consulting with 
the THPO or tribal cultural resource manager fulfills the government-
to-government responsibility. Agencies need to become familiar with 
this responsibility. The regulations fail to address or identify the 
process for government-to-government consultation. It is the duty of 
the relevant Federal agency (and not the Council) to specify how they 
meet their government-to-government responsibilities. See Executive 
Memorandum on Government-to-Government Relations with Native American 
Governments, dated April 29, 1994.
    Granting SHPOs a role on tribal lands where there is no 101(d)(2) 
THPO is an intrusion on tribal sovereignty and is hypocritical since 
tribes are not given an equivalent role for their traditional cultural 
and sacred properties off tribal lands. The Council disagrees. Tribes 
that attach religious and cultural significance to historic properties 
must be invited to consult, regardless of where the property is 
located. The proposed rule follows statutory roles given to Tribes and 
SHPOs. See 16 U.S.C. 470a in general, and 470a(d)(2)(D)(iii).
    The regulations provide a significant role for the THPO, above the 
tribal government leader. Federal agencies now have an ``out'' to avoid 
the government-to-government responsibility. Agencies need to learn, 
and ACHP trainers need to emphasize, the difference. The regulations 
should include a section that requires agencies to develop a process 
that recognizes the THPO role. The Council reasonably assumes 101(d)(2) 
THPOs are the appropriate contact for government to government 
relations. Nevertheless, the Council will confirm this statement with 
the Department of the Interior.
    800.2(c)(3)(vi) is confusing. This allows for the SHPO and Council 
to ignore and avoid tribal involvement. It also provides an outlet for 
Federal agencies to disregard Federal law, E.O.s, etc. Finally, the 
SHPO then becomes a decision maker on tribal lands. This provision was 
requested by Tribal comments that wanted to avoid Tribes being required 
to sign an agreement if they chose not to sign it. A

[[Page 77703]]

waiver under Sec. 800.2(c)(3)(vi) requires positive action from the 
Tribe, and therefore does not present a loophole to be used by Federal 
agencies or any other entities.
    A tribe that does not have a 101(d)(2) THPO does not have the same 
authority as a tribe that does. This gives the SHPO the ability to come 
onto reservation lands and dictate how the tribe handles its 
preservation program and individual projects. Would like the 
regulations to provide tribes the option of inviting the SHPO into 
consultation on tribal lands. Section 101(d)(2) of the NHPA provides 
for THPO substitution of the SHPO on tribal lands if approved by DOI. 
If there is no approved 101(d)(2) THPO, NHPA provides that the SHPO 
shall consult with Federal agencies on any undertaking within the 
State. Also, NHPA specifically states the right of private owners of 
land within tribal boundaries to request SHPO involvement in 
undertakings on tribal lands. See section 470a(d)(2)(D)(iii) of NHPA.
    Change last sentence to: Nothing in this part alters, repels, 
interprets, or modifies tribal sovereignty or preempts, modifies, or 
limits the exercise of any such rights. This change would delete ``is 
intended to . . .'' The Council agreed with such a change since it was 
needed to more properly accord with tribal sovereign rights and the 
original intent of the section.

Section 800.2(c)(5)

    Several comments requested that the rule be changed so that Federal 
agencies will not be required to give specific authorization for each 
applicant to initiate consultation with SHPO/THPOs. The Council 
supported amending the proposed rule to allow agencies to authorize 
applicants to initiate consultation on a broader basis than individual 
authorizations.
    Because of the time and resources required to consult with Tribes, 
more Federal agencies are delegating their consultation 
responsibilities, without guidance, to consultants, applicants and 
others. Many tribes, however, refuse to interact with parties other 
than the Federal agency or agency director. The Council responds to 
this concern by clarifying that such insistence is due to the Federal 
agencies' government-to-government responsibilities under Executive 
Orders and Memoranda.
    Delegating authority to applicants is delegating Federal agency 
responsibility. This process lacks the integrity of upholding the 
intent of laws and EOs. Generally, tribes are insisting on formal 
consultation with Federal agencies, not applicants. Federal agencies 
are required to consult with Indian Tribes on a government-to-
government basis pursuant to Executive Orders, Presidential memoranda, 
and other authorities. The proposed rule therefore was amended to 
acknowledge this responsibility. The authorization to applicants to 
initiate consultation does not include consultation with Tribes.

Section 800.2(d)

    Proposed part 800 elaborate procedures for public participation go 
well beyond the provisions of NHPA. NHPA does not require separate 
public notice and comment requirements at every stage of the review 
process. Recommend that part 800 recognize Federal agencies' existing 
public participation procedures and permit agencies to rely on those 
procedures in addressing adverse effects only. The rule does not 
require separate public notice and comment requirements at each step. 
Also, the proposed rule already allows for use of agency procedures. 
Nevertheless, it is simply impractical and illogical to solely rely on 
agency procedures for public involvement regarding section 106 if such 
procedures fail to address historic preservation issues.
    Public participation provisions are an improvement over the 1996 
proposed rule, but still invite problems. Council is not vested with 
authority to regulate public participation. Section 106 does not 
address this topic. Council has no authority to vest anyone, but 
itself, with a reasonable opportunity to comment on the Federal 
undertaking. The Council believes it has the required authority to 
justify this and all other sections of the proposed rule. Please refer 
to our response regarding legal authority, below.
    This provision lies outside of the NHPA section 106 authority, and 
is a back door mechanism to impose upon Federal agencies the Council's 
interpretation of the interested public instead of leaving the 
interpretation of that role to the agencies, in consultation with the 
Secretary of Interior as provided for in section 110(a)(2)(E) of the 
NHPA. Deleting this provision is recommended. The Council disagrees. As 
stated below, the Council has the required authority to justify this 
and all other sections of the proposed rule. Furthermore, 
Sec. 800.2(d)(3) allows the use of agency procedures to the extent they 
provide pertinent information on historic preservation.

Section 800.3(a)

    Several comments requested clarification that under Sec. 800.3(a) 
the agency should not be considering case-specific issues, and that in 
this section the reference is to ``type and nature'' of the 
undertaking. In light of these comments and practical experience, the 
Council agreed that such a change was necessary. The language in 
Sec. 800.3(a) was amended to state that the determination is as to 
whether the undertaking is a ``type'' of activity that has the 
potential to cause effects on historic properties, assuming such 
properties would be present.
    Regulations should address what happens with program alternatives 
or PAs that were executed before the effective date of the new 
regulations. Such agreements are still valid and will continue to be in 
effect according to their terms.

Section 800.3(b)

    The section should read that the Agency Official ``may coordinate * 
* *.'' Council cannot require such coordination. The comment misreads 
the proposed rule. It only states that the Agency Official ``should 
coordinate,'' implying encouragement, but not requirement.

Section 800.3(c)

    30 day response period is too long and only ensures the destruction 
or damage to an archeological site where the project went forward 
because of the necessities of the mission. A 15 day response period 
would be much more appropriate in recognition of the rapid forms of 
communication available. The Council disagrees. The 30 day time period 
reflects an adequate balance between project need for expediency and 
workload requirements on reviewers.
    Either delete section 3(c)(3) altogether, or add further guidance 
or regulatory definition of the phrase ``* * * and to the nature of the 
undertaking and its effects on historic properties.'' Also, delete any 
discussion of timing in section 3(c)(4). It erroneously implies that 
nearly everything submitted to the SHPO falls under a 30 day review 
period. Review time periods should simply be referenced in the various 
sections of Secs. 800.4-800.6. The rule indeed imposes a 30 day limit 
on SHPO/THPO at each step of the process where a formal response is 
required to findings and determinations, unless otherwise noted. See 
Sec. 800.3(c)(4). SHPO/THPO cannot require the process to stop by 
failing to respond by the end of this period. On the other hand, there 
is no such clock for consultation alone (e.g., regarding APE or for 
seeking ways to avoid, minimize or mitigate adverse

[[Page 77704]]

effects). All that the Federal agency needs to do regarding such 
consultation is to make a reasonable effort to consult (which may or 
may not take 30 days) and move forward with the process.

Section 800.3(d)

    Once SHPO declines to participate, Federal agencies should have no 
further burdens. To the extent that the Council is relying on SHPOs to 
comment or consult on its behalf under section 106, the agency complies 
with section 106 by providing SHPO (Council) an opportunity to comment. 
Rule should also contain presumption that SHPO concurs with a written 
finding if it does not respond within 30 days. Accordingly, Sec. 800(d) 
should read: (1) If the SHPO declines in writing to participate, or 
otherwise cooperate, in the section 106 process, the Agency Official 
shall proceed as it believes appropriate; (2) If the SHPO does not 
respond within 30 days to a written finding under this part, or sooner 
if reasonably requested by the Agency Official, a presumption of 
concurrence with such finding shall be created. Federal agency 
obligations under section 106 of the NHPA do not terminate when the 
SHPO or any other entity declines to continue participating. SHPOs do 
not comment or participate in consultation on behalf of the Council. A 
process of allowing the agency to proceed without any Council review 
when SHPO declines to participate or respond within the 30 days is 
inconsistent with the letter, intent and spirit of the law. Nothing in 
the NHPA indicates in any way whatsoever that Federal agency 
responsibilities under section 106 disappear once a SHPO refuses to 
participate. The statute mandates Federal agencies to take into account 
the effects of their undertakings on historic properties and afford the 
Council a reasonable opportunity to comment regardless of what any 
other entity does or does not do. 16 U.S.C. 470f. It is noted that the 
rule does have certain, reasonable presumptions of concurrence when a 
response does not come in time. See particularly, Sec. 800.3(c)(4).

Section 800.3(f)

    The regulations do not give adequate guidance regarding federally 
designated THPO's, Federally recognized tribes without a designated 
THPO, and federally recognized tribes not occupying tribal lands. 
Guidance is also needed to identify associated tribes, crosscutting 
boundaries or ancestral lands, differentiate among differing views of 
ancestral lands to ensure that tribes' rights are addressed without 
impinging upon the property rights of private landowners. Such 
information can be provided in guidance but is not appropriate in a 
rule. Furthermore, see information above regarding Council/NPS project 
regarding assistance to Federal agencies regarding ancestral lands.
    Section fails to establish who is responsible for establishing the 
list of consulting parties, setting a time limit in which the SHPO 
should respond, and defining what constitutes a good faith effort in 
doing so. This comment is incorrect. The proposed rule does establish 
that the Agency Official is ultimately responsible for establishing the 
list of consulting parties. It also sets forth the 30 day comment 
period. The meaning of a ``good faith effort'' will be better handled 
through guidance.

Section 800.4(a)

    This is a useful and important provision. Minor wording changes are 
proposed to remove any suggestion that the SHPO is responsible for the 
decision: ``(a) Determine scope of identification efforts. In 
consultation with the SHPO/THPO and other consulting parties, the 
Agency Official shall (1) Determine and document the area of potential 
effects, as defined in Sec. 800.16(d); etc.'' The Council agreed with 
this recommended amendment since it clarifies that the ultimate 
decision here is made by the Agency Official. However, the phrase ``and 
other consulting parties'' was removed from the recommended language 
since the obligation to consult at this stage would not extend to other 
consulting parties.
    Section on determining Area of Potential Effect fails to include 
time limit for a response by SHPO or other consulting parties to an 
agency's determination of APE. As stated above, the agency obligation 
is to consult. Failure by SHPO/THPO to respond to consultation within a 
reasonable time would allow agency to finalize its unilateral 
determination of the area of potential effect and move forward in the 
process.
    Indian Tribes are given broad discretion to designate any property 
to which they attach religious and cultural significance, whether or 
not within tribal lands, as historic in the context of the consultation 
process. There are no standards directly relevant to the eligibility of 
such properties for the National Register. The broad discretion creates 
great uncertainty, delay, and costs. The rule should contain criteria 
on designating religiously or culturally significant properties. This 
comment is incorrect. These properties must be ``historic properties'' 
and therefore meet the National Register criteria. They must follow the 
same process as other potentially historic properties.
    Requirement to consult with SHPO regarding the APE should be 
deleted. It needlessly extends the already protracted consultation 
process without any concomitant benefits. The Council believes that 
consultation with SHPO is valuable at this critical point to avoid 
later problems. Furthermore, consultation with the SHPO/THPO at this 
critical decision making point has always been viewed as an important 
part of the process. The Council decided to retain the duty to consult 
with the SHPO/THPO since the Council believes that SHPO/THPOs have 
special expertise as to the historic areas in their jurisdiction and 
the idiosyncracies of such areas, and can greatly assist the Agency 
Official, using such expertise, in determining an accurate area of 
potential effects. Nevertheless, it is noted that the Federal agency is 
ultimately responsible for making the final determination about the 
area of potential effect (i.e., the concurrence of the SHPO/THPO in 
such determination is not required).
    In the case of scattered site housing rehabilitation program, the 
Agency Official should have the authority to determine that (1) the 
area of potential effect is limited to the property to be 
rehabilitated, and (2) any structure to be rehabilitated that is less 
than 50 years old is not considered eligible. The result would allow 
scattered site housing rehabilitation to proceed in a responsible 
manner without adding a time-consuming consultation process with no 
apparent benefit to the public or environment. The Council disagrees. 
Not all scattered site projects are the same. Where a block of 
properties are to be rehabilitated, the historic district may be 
affected. The less than 50 years old exemption should be handled during 
negotiation of a Programmatic Agreement.
    Given that some of the tribes with ancestral interest in a project 
area are no longer physically located within the state, it is difficult 
or unfeasible to comply with this provision. The reg needs to set some 
practical limits on consulting with Tribes in identifying historic 
properties. The NHPA does not set such limits on consultation. The 
location of tribes and the boundaries of tribal lands are consequences 
of history to which tribes were subjected. Accordingly, the fact that a 
tribe may not live on or near a significant property should not be an 
impediment to its participation in consultation. As stated above, this 
is the subject of a guidance

[[Page 77705]]

project currently under way between the Council and the National Park 
Service.
    The regulations should set forth a process to follow when the SHPO 
disagrees with an agency determination of the area of potential effects 
(APE)--similar to the process for determinations of eligibility. Also, 
we need further guidance on what is considered ``documenting'' the APE. 
The Council believes the process in the rule regarding APE should 
remain unchanged. The determination of APE should be ultimately done by 
the Federal agency in consultation with the SHPO. SHPO can seek 
informal advice from the Council. Guidance could be developed regarding 
what is considered ``documenting'' the APE.

Section 800.4(b)

    Comments recommended that the provisions of section 106 be extended 
only to properties formally determined eligible, and that this section 
should therefore be deleted. The Council disagrees. Both the Council 
and the Department of the Interior have interpreted the NHPA to require 
section 106 consideration of all properties that are listed on the 
Register, as well as all those that meet the criteria of eligibility on 
the National Register, regardless of whether a formal determination by 
the Keeper has been made. Well established Department of the Interior 
regulations regarding formal determinations of eligibility specifically 
acknowledge the appropriateness of section 106 consideration of 
properties that Federal agencies and SHPOs determine meet the National 
Register criteria. See 36 CFR 63.3. The NHPA specifically defines 
``historic properties'' as those that are ``included in, or eligible 
for inclusion on the National Register.'' 16 U.S.C. 470W(5). Not only 
does the statute allow this interpretation, but it is the only 
interpretation that reflects (1) the reality that not every single acre 
of land in this country has been surveyed for historic properties, and 
(2) the NHPA's intent to consider all properties of historic 
significance. It has been estimated that of the approximately 700 
million acres under the jurisdiction or control of Federal agencies, 
more than 85 percent of these lands have not yet been investigated for 
historic properties. Even in investigated areas, more than half of 
identified properties have not been evaluated against the criteria of 
the National Register of Historic Places. These estimates represent 
only a part of the historic properties in the United States since the 
section 106 process affects properties both on Federal and non-Federal 
land. Finally, the fact that a property has never been considered by 
the Keeper neither diminishes its importance nor signifies that it 
lacks the characteristics that would qualify it for the National 
Register.
    Rule should clarify that the section 106 process does not impose 
identification burdens upon the private applicant. Although 
identification obligations are placed on Federal agencies, in reality 
the burden is often passed on to the applicant through delays or 
conditioning the agency's decision until the applicant has funded the 
identification efforts. Federal agency ability to shift burden to 
applicant is dependent on that agency's independent authority. The 
section 106 rule does not confer such authority nor relieve Federal 
agencies of its duties. This may be an appropriate guidance topic to be 
developed.
    Regulations fail to respect the National Register nomination and 
listing process and grant unbridled authority to impose section 106 
requirements on properties already deemed ineligible. Properties that 
are determined ineligible are not subject to section 106 consideration. 
Revisiting eligibility determinations is encouraged on certain 
occasions, but not mandatory.
    Any imputation of a new substantive duty under section 106 to 
discover unidentified properties is negated by the detailed provisions 
for the discovery of unknown properties contained elsewhere in NHPA. 
The Council disagrees. The obligation to identify during planning is 
different than coming across something during construction. Further 
obligation is limited in scope, duration and intensity. The 
``discovery'' provisions of the NHPA do impose a continuing duty to 
survey and identify historic properties. See 16 U.S.C. 470h-2(2)(A). 
However, the reality is that such an effort has not reached every acre 
of land of this country that could be affected by a Federal 
undertaking, and the NHPA seeks to protect historic properties even if 
they had not been identified prior to the proposition of an 
undertaking. This is clearly reflected in the statute where it 
provides, for example, that agency procedures implementing the 
Council's section 106 rule would provide a process for identifying 
historic properties. 16 U.S.C. 470h-2(a)(2)(E)(ii). The NHPA would not 
contain this language if it believed the other, general surveying 
provisions were sufficient.
    Since SHPOs are statutorily required to conduct comprehensive 
statewide surveys of historic properties (section 101(b)(3) of NHPA), 
Federal agencies and permit applicants should not have to be required 
to engage in field investigations or surveys. SHPOs should already know 
what historic properties exist. No. Agency obligation to ``take into 
account'' effects on historic properties necessarily places an 
affirmative duty to identify historic properties. The Council notes 
that the rule does not compel shifting of such agency burden to 
applicants. Also, please refer to the immediately preceding response.
    Although proposed rule on its face may place identification efforts 
on Federal agencies, the reality is that these burdens are borne by 
applicants. This is usually done by delaying or conditioning the 
Federal decision until the applicant has funded the identification 
effort requested by the SHPO or Council. This tactic is improper and 
the rule should clarify that the process does not impose the burden 
upon applicants through either direct or indirect means, including 
delays. The rule does not compel shifting of this or other Federal 
agency burdens to applicants. Section 106 obligations lie with the 
Federal agency. Although Federal agencies may be requiring submissions, 
as a basis of accepting applications, this is not compelled by the 
rule.
    Council only has authority to promulgate rules regarding section 
106. Since section 106 does not address the identification of historic 
properties or evaluation of historic significance, the Council has no 
authority to regulate these activities. The duty to identify historic 
properties are placed upon Federal agencies, the Secretary of the 
Interior, and SHPOs under other sections of the NHPA (namely sections 
101 and 110). The Council disagrees. The NHPA grants the Council the 
authority to promulgate regulations regarding section 106 ``in its 
entirety.'' 16 U.S.C. 470s. It would be impossible for an agency to 
take into account the effects of its undertakings on historic 
properties (which include those listed on the Register, as well as 
those eligible for listing), as section 106 requires, if it does not 
know what those historic properties are in the first place. 
Accordingly, the identification and evaluation provisions of this rule 
are reasonable under the authority. Also, see response to comment above 
regarding ongoing identification duties.
    This provision for phased identification and evaluation using an 
MOA is inconsistent with our prior understanding that an MOA should be 
used exclusively to stipulate mitigation measures for properties that 
have been identified and fully evaluated. With this change, why would 
an agency do a project specific PA? Phased identification acknowledges 
the reality

[[Page 77706]]

of large projects. A programmatic agreement may be an alternative, but 
this provision expands the flexibility of the rule.

Section 800.4(c)

    This section should be revised to overcome the current perception 
that agencies are required to identify every single specific property 
that may be affected and study each sufficiently to apply the National 
Register criteria. This drives up the cost of S. 106 consultation, 
unnecessarily delays the process, discourages consideration of indirect 
and cumulative effects, and complicates coordination with NEPA. The 
provision for phased ID and evaluation helps, but Sec. 800.4(a) should 
be revised to make it clear that it is permissible to address 
eligibility prospectively, and to focus on ``types of properties'' 
rather than to identify every single property. The phased 
identification provisions of the rule are intended to deal with this 
issue. The Council intends to provide guidance regarding phasing.
    Section 800.4(c)(1) is misleading in stating that tribes have 
``special expertise in assessing the eligibility of historic properties 
that may possess religious and cultural significance to them.'' Their 
expertise is not in applying the criteria of eligibility, it is in 
identifying some kinds of historic properties and in identifying 
effects that might not be apparent to others. The current wording sets 
up the tribes to overrule decisions made by agencies and SHPOs. The 
Council clarifies that tribal expertise is not in applying the 
eligibility criteria per se, but in bringing a special perspective to 
how a property possesses religious and cultural significance. This 
reflects the fact that such Tribes are particularly well placed to 
provide insights and information on those properties of religious and 
cultural significance to them. It is common sense to reach out to the 
Tribes regarding these issues.
    Requiring eligibility determination from the Keeper when SHPO 
disagrees with Agency Official determination gives SHPO a veto over the 
project. The Keeper eligibility process is so lengthy that applicants 
have no alternative but to go along with the SHPO's position regarding 
time-sensitive projects. SHPO can delay projects simply by claiming not 
to have sufficient information. Department of the Interior regulations 
require a response from the Keeper within 45 days. Those regulations 
also recognize the concurrent Agency/SHPO determination scheme. See 36 
CFR part 63. The section 106 rule does not encourage wrongful delays by 
any party. Cases where an abuse of the process is suspected can always 
be brought to the attention of the Federal agency conducting the review 
and/or the Council.
    Proposed rule gives Tribes the de facto ability to designate any 
property to which they attach religious and cultural significance as a 
historic property. Tribes can then pressure the Agency Official to take 
their concerns into account above all others. Proposed rule effectively 
requires Federal agencies to defer to Indian tribes on what properties 
are reached by section 106, and give added (if not dispositive) weight 
to religious considerations in that determination. The Council 
disagrees. Properties of religious and cultural significance to Tribes 
must meet the National Register criteria in order to be considered 
``historic'' and subject to section 106 consideration. The fact that a 
Tribe attaches religious and cultural significance to them does not 
make them ``historic,'' but neither does it preclude them from meeting 
the National Register criteria. The Federal agency makes the 
determination of eligibility, and disputes are ultimately resolved by 
the Keeper based on the secular National Register criteria. The Tribe 
is consulted but, again, the ultimate decision in the case of a dispute 
with the Federal agency finding by a SHPO/THPO, is the Keeper.
    The NHPA does not empower the Council to require Agency Officials 
to obtain a determination of eligibility from the Keeper. In fact the 
NHPA prohibits ``any person or local government'' from providing a 
nomination for inclusion of a property on the Register unless such 
property is located within a State where there is no SHPO. Moreover, 
this is redundant with 36 CFR part 63. There is no basis for requiring 
SHPO concurrence or agreement. Finally, the NHPA expressly prohibits 
the nomination of any historic property for the Register where the 
owner objects. 16 U.S.C. 470(a)(6). Such prohibition should be 
integrated into the proposed rule to reflect that when such objection 
is lodged with a Federal agency, they may terminate their section 106 
review. The comment fails to realize that a determination of 
eligibility is not the same as a nomination/listing on the National 
Register. The Council also points out that under the NHPA, an owner's 
objection to a nomination/listing still can lead to the Secretary of 
the Interior determining the eligibility of the property. It should 
also be noted that this rule provides that an owner of an affected 
property can, and should be, invited as an additional consulting party 
in the section 106 process. See Sec. 800.2(c)(6) of the rule. Finally, 
see responses above to the issue of Agency/SHPO concurrence 
determinations of eligibility.
    Various comments comment suggested that in the last sentence, the 
word ``special'' should be changed to ``unique.'' The Council 
disagreed. The word ``unique'' excludes everyone else and gives the 
incorrect impression that Tribes have the final word that cannot really 
be challenged by the Agency. Also, see response above regarding the 
need of properties of ``religious and cultural significance'' to Tribes 
to meet National Register criteria in order to be considered 
``historic.''

Section 800.4(d)

    The addition of a 30 day waiting period, even when no historic 
properties are identified, is unreasonable. Suggest that the waiting 
period after submission to SHPO/THPO be eliminated consistent with 
previous regulations. The Council disagreed. This period is necessary 
so the consulting parties and the Council can review the finding 
responsibly and object if appropriate. Such review also allows mistakes 
to be caught in time before they potentially lead to costly litigation.
    Move this subsection under Sec. 800.5 and re-title Sec. 800.5 to 
``Assessment of Effects.'' The proposed change was rejected since these 
are outcomes of identification and effect assessments. However, the 
Council may draft guidance on the topic of assessment of effects.

Section 800.5(a)

    A tribal comment stated that the exemption of properties of 
religious and cultural significance from the demolition by neglect 
provision (Sec. 800.5(a)(2)(vi)) is so broadly written that it could 
lead to the loss of National Register districts in pueblos and other 
Native communities. This provision had been added at the request of 
Indian tribes. It specifies that the exception only applies where 
neglect and deterioration are recognized qualities of the property. A 
further safety valve is that a ``no adverse effect'' determination is 
subjected to review by consulting parties (which would include Tribes 
that attach religious and cultural significance to the historic 
property at issue). See Sec. 800.5(c). Lastly, the Council is not aware 
of this provision having been applied inappropriately or over the 
objections of Tribes.
    Criteria of adverse effect too broad, and encompasses activities of 
benefit to the public. Accordingly, such activities

[[Page 77707]]

are delayed. Examples of such activities are: reclamation of abandoned 
mines, creation of wetlands, ``hazardous material remediation'' 
(Sec. 800.5(a)(2)(ii)), rehabilitation of historic properties, and 
provision of handicapped access. Adverse effect criteria are linked 
specifically to objective National Register criteria published by the 
National Park Service, which are used to determine characteristics that 
contribute to a property's historic significance. If those 
characteristics are adversely affected, then the historic significance 
is impaired. It is noted that program alternatives under Sec. 800.14 
are intended to deal with repetitive or minimal impact situations. 
Finally, while the listed activities may be of benefit to the public, 
it does not necessarily follow that such positive activities could not 
also cause an adverse effect on historic properties. Again, all that 
the section 106 process requires is that such effects be taken into 
account. The section 106 process does not prohibit any projects, 
beneficial or otherwise.
    Proposed rule uses impermissibly vague and overbroad terms, in 
violation of the Due Process Clause. Its definition of ``adverse 
effects'' includes those when an undertaking ``may'' alter 
``indirectly'' ``any'' of the characteristics making the property 
eligible in a way that would diminish the integrity of the property's 
``feeling'' or ``association.'' Such definition does not give fair 
notice as to what it requires, and is not grounded on intelligible 
principles. This further complicates, expands, and lengthens the 
process, adding difficulties, costs and uncertainty. As stated above, 
adverse effect criteria are linked specifically to objective National 
Register criteria published by the National Park Service. The National 
Register criteria itself expands on the meaning of its terms and 
provides various examples. These criteria have been fleshed out through 
consideration and application countless times, over the years, since 
the program began, and explained through various guidance documents. 
For example, see National Register Bulletin 15, ``How to Apply the 
National Register Criteria for Evaluation,'' which includes definitions 
of the terms ``feeling'' and ``association.''
    Criteria of adverse effect should exclude ``insignificant'' 
transfers of property. De minimis transfers of property are being 
subjected to lengthy section 106 process. The rule provides for an 
avenue, under Sec. 800.14(c), whereby the appropriate agency can pursue 
an exemption.
    The criteria of Adverse Effect is devoid of any limitations on the 
proximity of an undertaking to a historic site, allowing the SHPO to be 
inconsistent and subjective when evaluating effects. The standard set 
forth under section 106 is effect, not proximity. While it is possible 
that distance separating an undertaking from a particular historic 
property may remove any effects, such a determination should be made on 
a case by case basis, and is not suitable for a generalization. 
Different undertakings simply have different areas of potential effects 
according to several factors such as the nature of the undertaking 
itself, the nature of the historic property at issue and topography.
    The current and proposed rule do not take into account the fact the 
cumulative impact of adding a monopole to areas with modern intrusions 
would not be an adverse effect. The proposed rules, therefore, will 
lead to consultative gridlock as the expansion of wireless services 
continues. This and several other issues mentioned by the 
telecommunications industry in this rulemaking process have been or are 
in the process of being addressed through ongoing discussions with the 
industry, the FCC and SHPOs. These discussions commenced before the 
present rulemaking process. Such ongoing discussions are referred 
hereinafter as ``Telecommunications Working Group.''

Section 800.5(b)

    Final decision regarding adverse effects is charged on the Agency 
Official. Council has no authority to impose its determination on this 
matter. Council may comment on the issue, but the final decision is to 
be made by the Agency Official. The Council has used its expertise in 
setting up the criteria of adverse effects on this rule. It therefore 
has a justifiable role and the expertise in ensuring the correct 
interpretation of its rule. Section 800.7 of the rule is clear in 
stating that the Agency Official can terminate consultation on ways to 
avoid, minimize or mitigate adverse effects, and request Council 
comments. The Agency Official can then proceed with its undertaking in 
any way it wants, after taking the Council's expert comments into 
account.
    There is no basis for mandating consultation regarding adverse 
effects. To the extent that other sections of the NHPA require Agency 
Official consultation with the SHPO, these provisions are not to be 
implemented by section 106 regulations of the Council. The Council 
believes this consultation is reasonable and necessary in that it 
provides the Federal agency with the information and considerations 
needed for it to take into account the effects of its undertakings on 
historic properties. Consulting parties are defined in such a way as to 
ensure they have the necessary interest and competence in informing 
Federal agency decisions on historic properties. As elsewhere in the 
process, consultation ensures that correct and informed decisions are 
made and that mistakes are not overlooked. See response regarding legal 
authority, below.
    To address agreements like Community Development Block Grant (CDBG) 
Programmatic Agreements, the Council should add language which 
recognizes situations where the specific details of future activities 
are unknown and the consulting parties agree that adverse effects will 
be avoided through review and standard mitigation measures. Such 
language can, and many times is, used and provided for in the 
Programmatic Agreements themselves. There is no need to add this 
language to the process under the rule to reach such agreements. As 
stated before, the Council has revised the rule to provide for 
prototype agreements, which could be particularly helpful in the CDBG 
context.

Section 800.5(c)

    Proposed rule gives Tribes power to require further analysis (and 
therefore delay) under the process whenever they attach religious or 
cultural significance to a property. Tribes are provided the same 
consultative opportunities to review an agency's findings that other 
consulting parties are provided. The rule only encourages, but clearly 
does not require, the agency to reach such concurrence. See response 
above to comments regarding properties of ``cultural and religious 
significance.'' Also see section 101(d)(6)(B) of the NHPA.
    Subsection (c)(1) is directly contrary to NHPA since NHPA only 
requires documentation when an adverse effect is found. 16 U.S.C. 
470(l). This comment misreads the statute. Section 110(l) of the NHPA 
simply indicates that when no solution to adverse effects is reached 
and embodied in an agreement in accordance with this rule, the Federal 
agency must document its decision after considering Council comment. 
This is completely different than providing the documentation necessary 
for reviewers to understand agency decisions in the normal section 106 
process, which is reasonable and not precluded by anything in the 
statute.

[[Page 77708]]

    Subsection (c)(2) must clarify that a finding of adverse effect 
does not require consultation under section 106. The Council is 
provided a reasonable opportunity to comment under section 106. The 
Council disagrees. Section 110(l) of the NHPA explicitly indicates its 
blessing of the Memorandum of Agreement consultation concept when it 
states that when no such solution is reached in accordance with this 
rule, then the agency head must document its decision after considering 
Council comment. Furthermore, the rule clearly states that once a 
Federal agency has entered into such consultation, it can terminate and 
proceed to Council comment.
    Regarding Sec. 800.5(c)(2)(i), anytime a consulting party objects 
to a finding, the Federal agency should notify all consulting parties 
and consult again with all parties prior to seeking consultation with 
the Council. Regarding 5(c)(3), the Council should also notify all 
consulting parties of its determination. Regarding the 
Sec. 800.5(c)(2)(i) point, the Council clarifies that if consultation 
with the objecting party leads to changes affecting other parties, the 
Agency should go back to them. The Council also notes that it would 
notify all consulting parties regarding its Sec. 800.5(c)(3) 
determination.

Section 800.6(a)

    The regulations grant an unconstrained authority to require 
mitigation to avoid adverse effects with no constraints on cost and 
without requiring any nexus between the mitigation and actual adverse 
effect. Comment is incorrect. The agency can, based on the applicant's 
position, refuse any mitigation measures and terminate consultation. 
Furthermore, the rule is quite clear in that the consultation that may 
lead to an agreement is to avoid, minimize or mitigate the adverse 
effects on the historic properties.
    Rules should provide that any Adverse Effect comment should include 
recommendations and core criteria for mitigation to reduce the effects 
to No Adverse Effect. While this is permissible, the Council believed 
the rule should not require it as a duty of SHPO/THPO at the 
determination of adverse effect step. Review at that point is intended 
to focus on identifying whether adverse effects exist, and not to 
provide a full range of mitigation options.

Section 800.6(b)

    Proposed rule inappropriately attempts to require parties to sign 
an MOA to avoid additional delays from Council comment on the 
undertaking. Federal Register Council has no authority to require 
execution of a binding contractual agreement of any kind. Section 
110(l) does not mean that the Council may compel the use of MOAs. This 
is beyond Council authority and must be deleted from the rule. The rule 
does not require or compel execution of an MOA. Furthermore, section 
110(l) of the NHPA explicitly indicates its endorsement of the 
Memorandum of Agreement (MOA) consultation concept when it states that 
(1) when no such solution is reached in accordance with this rule, then 
the agency head must document its decision after considering Council 
comment, and (2) when such an agreement is reached, it shall govern the 
undertaking and all its parts.
    There is no specific time period for Council review of a MOA when 
Council is participating in consultation which can significantly 
lengthen the section 106 compliance process. Regulatory time limits or 
guidelines (30-45 days) should be promulgated. Similarly, there is no 
review time specified for Council response to the submission of an 
executed MOA. Recommend time limit or guidelines of 30 days. The 
Council consults regarding MOAs but does not ``review'' them. The 
Council does not review executed MOAs, so there are no delays of agency 
action.

Section 800.6(c)

    Several comments requested changes to the rule to clarify the issue 
of invited signatories. The Council agreed that this section needed to 
be changed. The changes to the rule indicate that the Agency Official 
is the one that ultimately decides who is an invited signatory, and 
that the rights to seek amendment or termination of an MOA attach to 
those that actually sign the MOA.
    A comment regarding 36 CFR 800.6(c)(2)(I) supported retention of 
the permissive ``may'' in allowing agency to invite an Indian Tribe or 
Native Hawaiian organization to become a signatory to a MOA, but would 
find a language such as ``should'' or ``shall'' to be unacceptable. 
Several tribal comments, on the other hand, requested that the tribes 
be given a signatory right. This was a major issue during the 
development of the 1999 rule. After careful consideration, the 
Administration made a policy decision that is reflected in the proposed 
rule. Indian tribes are not mandatory signatories to an MOA dealing 
with effects on historic properties off tribal lands. The Council has 
no new evidence to support changing that position.
    SHPOs are given broad discretion to determine appropriate 
mitigation for an MOA, resulting in the process being unregulated. This 
comment is incorrect. The Federal agency has the discretion to agree or 
disagree with SHPO/THPO views regarding an MOA. When an agreement is 
not reached, the agency goes for Council comment to wrap up the 
process.

Section 800.7(c)

    There is no authority for the Council to dictate to Federal 
agencies how they consider Council comments, how they document or 
prepare records of decisions, nor how or whether they notify the 
public, nor require the agency to provide the Council with the decision 
prior to approving the undertaking. The NHPA specifically grants the 
Council the authority to promulgate rules to implement section 106 in 
its entirety. Section 106 requires Federal agencies to give the Council 
a reasonable opportunity to comment. Section 110(l) of the NHPA 
explicitly requires the Federal agency to document its decision made 
pursuant to section 106. The Council is well within its authority to 
implement these requirements and determine how such opportunity is 
provided the Council, and how the required documentation is provided.
    Time for Council comment should be limited to 30 days, and the 
Agency Official could decide to grant an extension if it so desired. 
The Council believes the 45 day comment period is reasonable, takes 
into account the reality of staff and Council workload and need for 
adequate consideration, and reflects a shorter time period than 
previous rules (the section 106 rule adopted in 1986 set a 60 day 
period).

Section 800.8(a)

    Rule contravenes NEPA by seeking to require processing under NEPA 
of undertakings that have no significant or no adverse impact on 
historic properties. The Council emphasizes that the rule clearly does 
not require NEPA processing for anything. That is something the Federal 
agency must decide independently.
    Rule contravenes NEPA in that it undermines the categorical 
exclusion provisions of NEPA by requiring section 106 processing for 
all categorically excluded Federal actions and failing to provide a 
compatible process for excluding from section 106 those actions that 
have small or insignificant impacts, thus causing waste of enormous 
public and private compliance resources struggling with the least 
measurable and least

[[Page 77709]]

important Federal actions. The statement is incorrect. Section 106 of 
the NHPA covers ``undertakings'' regardless of NEPA categorical 
exclusions. The NHPA and NEPA are independent statutes with separate 
obligations for Federal agencies. Furthermore, Sec. 800.14(c) provides 
for a way that agencies can request and obtain exemptions.

Section 800.8(c)

    Comments suggested need for guidance to facilitate use of 
provisions allowing substitution of NEPA for section 106 process. The 
Council is committed to develop such guidance and assist Federal 
agencies that desire to follow these provisions of the rule.
    Any integration of the NEPA process with section 106 should allow 
EAs as well as EISs to constitute full compliance with section 106. 
Section 800.8(c) of the rule allows just that when certain reasonable 
standards are met. Those standards ensure that historic properties are 
taken into account in a manner consistent with the NHPA.
    Council has no authority to prescribe rules regulating Federal 
agencies' use of NEPA to comply with section 106. Such an approach was 
rejected during the 1992 amendments. The Council notes that the NEPA 
coordination provisions of this rule only apply when the Federal agency 
independently chooses NEPA documents/process to substitute for the 
regular section 106 process that they would have had to follow 
otherwise. The Council has the authority to set conditions for an 
agency to substitute another process for the Council's government-wide 
rule.
    Requirement that the NEPA documents include mitigation measures 
should be deleted. The Supreme Court has stated repeatedly that NEPA 
mandates that mitigation measures be discussed, but that there is no 
requirement that a detailed mitigation plan be adopted. The Council has 
no authority to attach such a requirement to the NEPA process. Again, 
the NEPA/106 substitution provisions of this rule apply only when the 
NEPA process is used to substitute regular section 106 process that the 
Federal agency would have had to follow otherwise. Nothing in the rule 
requires adoption of mitigation measures since the option of getting 
formal Council comments instead is still available.

Section 800.9(a)

    It is not the responsibility of the Council to decide whether or 
not their procedures have been followed regarding Agency 
determinations. The only Council right is to expect a reasonable 
opportunity to comment and that its comments will be considered before 
the agency proceeds with the undertaking. The rule makes it clear that 
this is not a binding ``decision'' by the Council, but an advisory 
opinion (see section 202 of the NHPA). The Council, as the agency 
promulgating the section 106 rule, has the specific expertise and 
interest in opining as to whether its rule has been correctly followed.

Section 800.9(b)

    The process in Sec. 800.9(b) regarding the Council's determination 
of a foreclosure lies outside of the Council's authority. A finding of 
foreclosure is an advisory opinion within the Council's authority (see 
Section 202 of the NHPA). The Council, as the agency promulgating the 
section 106 rule, has the specific expertise and interest in opining as 
to whether its rule has been correctly followed.

Section 800.9(c)

    Comments questioned the statutory authority for Council to 
promulgate regulations implementing section 110(k) of the NHPA. Section 
211 of the NHPA authorizes the Council to promulgate regulations to 
implement section 106 in its entirety. Section 110(k) directly relates 
to the section 106 and what an agency must do when an applicant's 
actions may have precluded section 106 review. Moreover, section 110(k) 
specifies a requirement that the Council be consulted. The rule simply 
re-states Section 110(k), sets forth how the Council will be consulted, 
and reminds agencies of their further section 106 responsibilities.

Section 800.9(d)

    Council's assertion, under Sec. 800.9(d)(2), that it can 
participate in individual case reviews, however it deems appropriate, 
finds no support in any section of the NHPA and should be deleted. The 
Council changed the rule in response to this comment. The change 
expressly limits the role of the Council in such reviews to accord with 
the role already given to the Council under subpart B and parallel to 
that of SHPO/THPOs.

Section 800.10

    A comment questioned the statutory authority for Council to 
promulgate regulations implementing Section 110 of the NHPA. Section 
211 of the NHPA authorizes the Council to promulgate regulations to 
implement section 106 in its entirety. The Council notes that 
undertakings affecting National Historical Landmarks (NHLs) are subject 
to section 106 review. NHLs are ``historic properties'' listed on the 
National Register. The provisions of Sec. 800.10 lay out how the 
Council may participate in the section 106 review of these particularly 
important historic properties, how the Council may request a report 
from the Secretary of the Interior pursuant to section 213 of the NHPA, 
and how the Council will provide a report to the Secretary on the 
outcome of the consultation.

Section 800.11(a)

    NHPA section 470k limits the substance and extent of any 
documentation requirement dependent upon each Federal agency's 
authority and funding; therefore the proposed Sec. 800.11 should be 
revised to clarify that the rules' documentation requirements are not 
mandatory but are recommended guidelines consistent with NHPA 470k and 
the Council's advisory role. To better comport with statutory language, 
Sec. 800.11 was changed by adding language that clarifies that 
documentation requirements are mandatory but limited ``to the extent 
permitted by law and within available funds.'' 16 U.S.C. 470k. The 
documentation provisions remain mandatory since the Council and other 
reviewers simply cannot comment without a basis, which can only be 
provided by adequate documents. The Council believes that the document 
requirements are not only minimal, but should be readily available to 
any agency as its record supporting its decisions in the process.
    When a documentation dispute is presented to the Council, it must 
be resolved in a timely manner. When documentation disputes are 
referred to the Council, the Council is committed to expeditiously 
providing a resolution to them. The resolution provided by the Council 
will include guidance as to when the relevant party should complete 
their review of the finding or determination at issue--taking into 
account how long the party disputing the documentation has had the 
documentation, particularly in cases where such documentation is deemed 
by the Council to have been adequate.
    Documentation standards are extremely broad, and likely to create 
confusion. Specific standards should be included that reference and 
adopt, at a minimum, documentation sufficient to satisfy the definition 
of ``sacred site'' in EO 13007 (``any specific, discrete, narrowly 
delineated location on Federal land that is identified by'' an 
authoritative Indian tribal source). Documentation standards are

[[Page 77710]]

adequately specific and far more specific than those of past 
regulations. The matter about defining ``sacred sites'' is better 
handled through guidance. Nevertheless, the Council clarifies once more 
that sites, sacred or otherwise, must meet the National Register 
criteria in order to be considered in the section 106 process.
    Questions statutory authority for Council to impose extensive 
documentation requirements. Section 110(l) of the NHPA requires 
agencies to document their section 106 decisions, but does not 
authorize Council to elaborate. Section 203 of the NHPA authorizes the 
Council to obtain information from Federal agencies, but does not 
require those agencies to provide the information. Section 203 of the 
NHPA would be meaningless if it authorized the Council to obtain 
documents from Federal agencies, but did not require such agencies to 
comply according to the law. Furthermore, the Council is within its 
statutory authority to promulgate regulations implementing section 106 
in its entirety, in setting the rule's reasonable documentation 
requirements. Documenting decisions not only assures meaningful 
compliance with the requirement to take into account effects to 
historic properties, but it produces the necessary information for 
consulting parties to assist the Federal agency in meeting its duties. 
Furthermore, the Council would not have a reasonable opportunity to 
comment on an undertaking without having adequate documentation on the 
undertaking and relevant historic properties, as provided in this 
section of the rule.

Section 800.11(c)

    It is too cumbersome for the agency to be required to consult the 
Secretary of the Interior and the Council every time it wishes to 
withhold information under this provision. This consultative process is 
set forth and mandated by section 304 of the NHPA. The rule simply 
outlines a reasonable process for the Council participation required by 
section 304.
    Regarding Sec. 800.11(c)(2), the Agency official should also submit 
to Council the views of SHPO regarding the confidentiality of 
information. The Council agreed and changed the rule to reflect this. 
SHPOs views as to confidentiality and harm to resources are relevant, 
and confidentiality is not limited to tribal issues.

Section 800.11(d)

    Documentation level for a finding of no Historic Properties 
Affected is unreasonable. The Council believes the level of 
documentation is more than reasonable, if not minimal, since the agency 
should already have the listed documentation readily on hand in order 
to have been able to reach such a decision.

Section 800.11(e)

    Section 800.11(e)(5) should require that each criteria of adverse 
effect be explained, whether found applicable or inapplicable, to 
ensure consistency in agency documentation. The Council disagreed with 
this proposal. Many criteria may have no relevance whatsoever to a 
particular project. Nevertheless, the Council believes some guidance 
may be warranted in the future to promote consistency in agency 
documentation.

Section 800.12(a)

    It is not clear how the regulations apply during rehabilitation 
work, monitoring the emergency from a cultural resources perspective, 
or when to implement the regulations during emergency situations. The 
Council believes the rules are clear that the emergency provisions are 
triggered when an agency proposes an emergency undertaking in response 
to a declared disaster. The provisions require notification and a seven 
day review period.

Section 800.12(d)

    Implementation time for emergency procedures should be extended 
from 30 days for a formally declared event to 90 days in order to allow 
for limited agency resources to adequately address all the issues that 
arise from a disaster related event. The longer an implementation time 
is extended, the lesser the justification for emergency, abbreviated 
procedures. Furthermore, the rule already allows requests for 
extensions of time when needed. The Council has not declined any such 
extension requests.

Section 800.13(b)

    Agencies often do not often want to assume a new find to be 
National Register eligible. To address this, the comment offered a 
proposed change. The Council believed the suggested concept was useful 
and incorporated changes to the rule. The changes state that the 
subject of eligibility can be raised (and be considered by agency) in 
comments. As explained above, section 106 applies to those properties 
listed or eligible for listing on the National Register. This change 
acknowledges the importance of National Register eligibility at this 
point.
    Section 800.13(b)(2) should be removed for the same reason that the 
data recovery exemption was removed from the 86 regulations. The 
Council disagreed. A short cut for these post-review discoveries of 
archaeological resources of value only for their data is necessary. The 
Council believes that tribal involvement will provide an adequate 
safeguard.

Section 800.14

    The program alternative provisions are too rigid, intimidating and 
difficult to apply and create a one-size-fits all approach. The revised 
regulations should make this provision more useful so that it can be 
applied more productively to Federal agencies and industry. What the 
alternatives under Sec. 800.14 do is to provide vehicles to tailor the 
section 106 process to the particular needs of each agency, agency 
program or group of undertakings. While the intent is to provide such 
flexibility in the final product, it is still essential to maintain the 
role of the public, preservation officers and other stakeholders in 
providing necessary input in shaping those products.

Section 800.14(a)

    Include a provision for Council monitoring and evaluation of 
whether Federal agency program alternatives are working or not. Council 
monitoring of program alternatives should be on a regular basis, 
including, but not limited to, how agencies implement the ``exempted 
categories'' projects. Also, add a provision for the Council to publish 
a list of acceptable Federal Agency alternative programs and make them 
available to the public. Monitoring measures would be included, as 
appropriate, in the alternatives' agreements themselves. Regarding a 
list of Council approved alternatives, the Council does not need a 
change to its rule to publish such a list.
    Since agency must submit any proposed alternate procedures for 
review by Council and NCSHPO, requirement for publication in the 
Federal Register should be eliminated. The Council disagrees. Federal 
Register notice of final adoption of these alternatives is needed to 
notify the public as to these changes in how Federal agencies comply 
with section 106.
    Regarding all of Sec. 800.14, the Council is granted no rights 
under the NHPA to be consulted with about Federal agency development of 
their procedures. Section 110(a)(2) requires consultation with the 
Secretary of the Interior, but not with the Council. Federal agencies

[[Page 77711]]

may find consultation with the Council desirable, but it is not 
required by the statute. The comment simply misreads section 110(a)(2) 
of the NHPA. That section deals with non-binding procedures that 
agencies may use to implement the Council's binding, section 106 
regulations under 36 CFR part 800. The alternatives under section 
800.14 directly modify or substitute for the Council's binding 
regulations regarding certain programs or undertakings, and therefore 
require our direct involvement. The Council believes it has the 
internal experience and expertise to make such evaluations. Also, the 
diversity of its membership ensures that a balanced perspective is 
brought to final determinations regarding consistency. Section 211 of 
the NHPA states that the Council ``is authorized to promulgate such 
rules and regulations as it deems necessary to govern implementation of 
section 106 * * * in its entirety.'' Section 110(a)(2) of the NHPA 
states that the ``(Federal agency historic preservation) program[s] 
shall ensure * * * that the agency's procedures for compliance with 
section 106 * * * are consistent with regulations issued by the Council 
* * *'' (emphasis added). It must be understood, among other things and 
upon closer examination, that section 110 of the NHPA does not 
specifically provide for Federal agencies to substitute their programs 
for the section 106 regulations promulgated by the Council. Through 
Sec. 800.14 of the rule, the Council is allowing for such substitution, 
believing this may help agencies in their section 106 compliance. 
However, the Council will not allow such substitution if the agency 
procedures are inconsistent with the Council's 106 regulations. The 
Council, in its expertise, holds that its regulations correctly 
implement section 106, and that it would therefore be inimical to its 
mandate and contrary to the spirit and letter of section 100(a)(2)(E) 
of the NHPA, for the Council to allow inconsistent procedures to 
substitute the Council's section 106 regulations.
    The Council should seek the views of affected SHPOs and notify them 
of final adoption when an Indian tribe enters into an agreement with 
the Council to substitute tribal regulations for Council regs. The 
Council notes that section 101(d)(5) of NHPA already requires such 
consultation with the affected SHPO, and that the Council would 
obviously notify such affected SHPO as to a final substitution.

Section 800.14(b)

    These regulations require more steps, more paperwork, and therefore 
more time to process routine CDBG Programmatic Agreements. Under the 
new regulations, the Council must participate more actively in these 
highly routine and repetitive agreements; and the Council treats the 
activities covered by CDBG agreements as ``adverse effects.'' We 
request Council reconsider its procedures for routine PAs. In response 
to this comment, the Council agreed to provide a new procedure for 
routine Programmatic Agreements. See Sec. 800.14(b)(4).
    It is not clear that Programmatic Agreements under 
Sec. 800.14(b)(3) are developed by an agency official in consultation 
with the SHPO. Additional guidance is needed beyond simply referencing 
Sec. 800.6. The Council notes that the SHPO and other consulting 
parties must be consulted, just as they would be consulted for a 
Memorandum of Agreement under Sec. 800.6.

Section 800.14(c)

    The Council should modify the proposed rule to accommodate and 
promote voluntary habitat conservation efforts under the ESA. It should 
establish as an ``exempted category'', exempting from section 106 
review, all voluntary incidental take and enhancement of survival 
permits issued by either FWS or NMFS under section 10 of the ESA. Also, 
approval of and voluntary participation in a ``take limitation'' or 
exemption created under a special conservation rule adopted by either 
the FWS or NMFS under section 4(d) of the ESA should also be exempted 
from NHPA review. These and other specific alternatives and exemptions 
recommended by the commenting public should be decided after the 
appropriate Sec. 800.14 process is followed, and not through the 
rulemaking itself. The Council encourages Federal agencies to submit 
proposed exemptions and other alternatives.
    Under Sec. 800.14(c)(5), the Agency Official should submit the 
views of SHPO/THPO to the Council along with the other required 
documentation. The Council should also notify SHPO/THPO of the Council 
decision. In Sec. 800.14(c)(7), SHPO's and others should be able to 
request that the Council review an Agency's activities to determine if 
the exemption no longer meets the criteria. The Council decided to 
change this section to explicitly add SHPO/THPO comments to those that 
need to be submitted. The Council assures the commenting public that it 
will notify SHPO/THPOs of final decisions regarding exemption 
decisions. Finally, the Council notes that anyone can request the 
Council to conduct a review of a program alternative without need of 
amendment to the rule.

Section 800.14(f)

    Requiring comment from all Indian tribes is unnecessarily broad. 
Section 800.14(f)(1) should be amended so as to provide an appropriate 
government-to-government consultation with affected Indian tribes and 
consultation with Native Hawaiian organizations when a nationwide 
Programmatic Agreement is being developed, adding language to the 
effect that ``when a proposed program alternative has nationwide 
applicability, the Agency Official shall identify an appropriate 
government-to-government consultation with Indian tribes and 
consultation with Native Hawaiian organizations.'' The Council agreed 
with the concept and rationale of the proposed change. It therefore 
added language to Sec. 800.14(f) regarding tribal consultation for 
nationwide agreements, while honoring the underlying intent of 
meaningful consultation with Indian tribes and Native Hawaiian 
organizations.

Section 800.16(d)

    Rule is unclear, and allows area of potential effect for a one acre 
wetland permit, to encompass entire development site (which could be 
over one hundred acres). The area of potential effects should be the 
one acre of wetland. Vagueness of rule leaves applicants vulnerable to 
high costs and long permit delays. The issue of area of potential 
effects and wetlands permits is one that needs to be worked out between 
the Council and the Corps of Engineers. The Council notes that section 
106 requires Federal agencies to take into account the effects of 
undertakings on historic properties. An undertaking is defined by the 
statute to include a ``project (or) activity * * * requiring a Federal 
permit, license or approval.'' The effects to be considered are those 
of the ``project'' that required the permit. Moreover, in most 
instances the effects of projects are felt by historic properties 
beyond the immediate footprint of a project. To illustrate, a historic 
property whose integrity would be affected by increased noise is 
affected even though it is not itself located on the site of the source 
of that noise. The Federal agency must take into account such effects. 
Having said this, the Council understands the need for guidance on the 
subject of establishing areas of potential effects regarding the

[[Page 77712]]

particular concerns reflected in this comment and others. The Council 
will be developing such guidance.
    Definition of APE is too broad, adding expense for surveys (usually 
borne by applicants), and unlawfully encompassing private or State 
lands. See answer above. Also, section 106 requires Federal agencies to 
take into account effects on historic properties regardless of whether 
they are located in private or public lands.

Section 800.16(e)

    To the extent the Council seeks to prescribe a role for SHPOs, this 
definition should include in the alternative the comments of the SHPO. 
The comment is incorrect. The term ``comment,'' as use on the rule, 
means the formal comments by the Council. The SHPO is never entrusted 
with that responsibility. The SHPO role through the process comes from 
its assistance responsibilities in the section 106 process (see section 
101(b) of the NHPA).

Section 800.16(I)

    The definition of effect should be consistent with language used to 
define area of potential effect (Sec. 800.16(d)) and the criteria of 
adverse effect (Sec. 800.5(a)(1)). The Council agreed and, for 
consistency, changed the rule so that the ``alterations'' is used for 
both definitions.

Section 800.16(w)

    Several comments requested the Council to revise the rule to 
distinguish between section 101(d)(2), NPS approved THPOs and non-
101(d)(2) tribes. They strongly recommend that different terms be used 
for these two types of tribes in order to more clearly reflect their 
different authorities on tribal lands. The Council agreed and changed 
the rule accordingly. In summary, the Council (1) deleted the reference 
to non-101(d)(2) tribes from the definition of ``THPOs'' on this 
section of the rule, and (2) revised the language regarding these 
consulting parties under section of Sec. 800.2(c).

Section 800.16(x)

    A definition of ``dependent Indian communities'' for the purposes 
of this regulation is needed. Folks need a legal definition from the 
Council. The Council used the definition of Indian tribes provided by 
the statute. The Council will bring this issue to the attention of the 
Department of the Interior and work on clarification.

Section 800.16(y)

    The term ``undertaking'' needs to be better defined within the 
regulation so as to clearly eliminate actions with no potential to 
affect historic properties. Section 800.3(a)(1) provides at the 
beginning of the process that Federal agencies have no further section 
106 responsibilities if the undertaking is not a type of activity that 
has the potential to affect historic properties.
    Various comments requested in different forms that the Council 
should clarify that Federal funding is a condition precedent to the 
application of the section 106 process. The Council notes that there is 
case law supporting that position as well as case law stating that 
funding is not a prerequisite. The Council has maintained the statutory 
definition of ``undertaking,'' verbatim, in the regulations. The Agency 
Official is responsible, in accordance with Sec. 800.3(a), for making 
the determination as to whether a proposed Federal action is an 
undertaking. As appropriate, an agency should examine the nature of its 
Federal involvement taking into consideration factors such as the 
degree of Federal agency control or discretion; the type of Federal 
involvement or link to the action; and whether or not the action could 
move forward without Federal involvement. An agency should seek the 
advice of the Council when uncertain about whether or not its action 
falls within the definition of an undertaking.
    Do not want incidental take permits (ITPs) under the Endangered 
Species Act to be subject to section 106 review. As stated before, the 
Council notes that this and other specific alternatives and exemptions 
should be decided after the appropriate Sec. 800.14 process is followed 
and not through rulemaking itself. The Council encourages Federal 
agencies to submit proposed exemptions and other alternatives.
    Various comments argued in various forms that Surface Mining 
Control and Reclamation Act (SMCRA) permits issued by States, after 
Office of Surface Mining (OSM) delegation of the program, are not 
subject to the section 106 process. The Council believes that it is the 
responsibility of the Federal agency, rather than the State, to comply 
with section 106. The Council intends to continue working with OSM to 
develop and finalize a solution to this issue.
    The proposed rule does not apply to the siting of wireless 
facilities, since the construction of communications towers does not 
constitute a Federal undertaking. As stated before, this and several 
other issues mentioned by the telecommunications industry in this 
rulemaking process have been or are in the process of being addressed 
through ongoing discussions with the industry, the FCC and SHPOs. These 
discussions commenced before the present rulemaking process. Such 
ongoing discussions are referred hereinafter as ``Telecommunications 
Working Group.''

Appendix A

    Various comments stated that Council participation in consultation 
should be mandatory when requested by a tribe, particularly because 
tribes are not mandatory signatories off tribal lands. The Council 
disagreed. The Council needs to retain discretion, just as it has in 
any other Section 106 reviews. Such discretion is necessary not only to 
allow the Council to manage its limited resources, but also to further 
encourage the goal of Agency and SHPO/THPO independence in the process. 
We have no evidence that this discretion is not being exercised 
appropriately.
    The Council should change its rule to allow it to comment on the 
most important cases, involving the SHPOs/THPOs in an advisory 
capacity, not a managerial role. The Council believes the rule 
accomplishes this. Under the rule, the Council only gets involved in 
some of the cases meeting Appendix A criteria. The rule requires the 
Council to explain how such criteria is met before entering 
consultation, and provides SHPOs/THPOs with an advisory role.

General Consultation

    The Council's ``Handbook on Treatment of Archaeological 
Properties'' is woefully out of date and should be updated as soon as 
possible. Also ``Preparing Agreement Documents'' should be revised to 
reflect the changes in the new regulations. The Council should also 
explore establishing peer review systems in resolving disputes that 
involve the identification, evaluation and/or treatment of 
archaeological sites. The Council agrees that the mentioned documents 
should be updated. Regarding the establishment of peer review systems, 
such an option could be explored.
    Overly burdensome consultation requirements. Commenter cites seven 
different points of notification or consultation even when there are no 
historic properties present, and a dozen or more if there should be 
historic properties, resulting in unnecessary delays for thousands of 
routine projects. The commenter estimates that implementation and 
documentation of the numerous consultation points

[[Page 77713]]

requires \1/4\ to \1/2\ FTE on every National Forest in the Southwest. 
The rule provides for ways to tailor the process. The Council notes 
that a Programmatic Agreement under Section 800.14 should be suggested 
to the Forest Service. Such Programmatic Agreements have proved 
effective in the past in further streamlining and fitting the section 
106 process to the particular needs of agency programs. The comment 
also raised an issue on the number of consultation points for 
situations where there are no historic properties affected. 
Consultation is necessary for an agency to learn whether historic 
properties are present or not, and then whether and how those present 
would be affected. Section 106, again, requires the effects of 
undertakings on historic properties be taken into account. For that to 
happen, there has to be a process for identifying the properties and 
assessing the effects on such properties. As stated before, Section 
800.14 presents several options an agency can pursue to advance an 
alternative way of complying with Section 106 which better fits the 
realities of their particular programs.
    Some SHPO's have attempted to implement the Council's proposed Part 
800 rules by treating the regulations as a springboard for additional, 
mandatory compliance steps and unreasonable documentation requirements 
that only serve to delay the review process. Clarify that SHPO's must 
follow proposed part 800's regulatory deadlines. Please refer to 
earlier responses regarding the 30 day time limits, above.
    Proposed rules discourage SHPOs/THPOs from consulting with private 
sector companies and individuals seeking consultation regarding their 
projects. Government to government consultation if invoked by Tribes 
may prevent historic preservation matters from receiving their full 
consideration. As stated before, the rule has been changed to 
facilitate Federal agency authorizations for applicants to initiate the 
section 106 process. Government-to-government relationships between the 
Federal Government and Tribes is based on Presidential Memoranda, 
Executive Order 13084, treaties, and statutes. Furthermore, the Council 
believes that consultation with Tribes assures full consideration 
regarding historic properties on tribal lands or of significance to 
tribes.
    Numerous provisions of proposed rule attempt to confer upon SHPO 
consultation, agreement (i.e., concurrence) or virtual veto powers. 
Section 106 does not mention any role for the SHPOs, let alone a 
requirement that the SHPO concur in agency determinations. SHPO's 
responsibilities, like the Council, are to assist and to advise. 
Proposed rule confers unauthorized powers on SHPOs and the Council, and 
result in additional administrative requirements and delays. The SHPO's 
role is limited in the rule to consulting and advising, based in their 
responsibilities pursuant to section 101(b)(3) of the NHPA. When a step 
calls for concurrence, SHPO concurrence can end the process from 
further evaluation. When the SHPO does not concur, a project is not 
vetoed; rather, the Federal agency is moved to the next, logical step 
in the process. Nothing in the rule gives anyone veto power over an 
undertaking. The Federal agency ultimately decides by itself what to do 
with the undertaking, once it has complied with its Section 106 
responsibilities.
    Council should confirm that SHPOs have no legal authority over 
private parties. Neither the Council nor this rule gives SHPOs the 
legal authority to require any action from private parties.
    Nothing in the NHPA requires that every party that finds 
preservation to be interesting to be given a formal role in the section 
106 process, with the ability to delay or derail Federal undertakings. 
The Council agrees, and believes that the rule reflects that regarding 
who are consulting parties and how the Federal agency can control who 
becomes an additional consulting party.
    Proposed rules provide a mechanism for a Federal agency to proceed 
over the objections of SHPO/THPO or without an MOA, however, the 
Federal agency and its regulatees would have already paid a steep price 
for their efforts through project delays, duplicative legal reviews and 
other expenses associated with earlier consultation with SHPOs, THPOs, 
and ACHP. Section 106 of the NHPA requires Federal agencies to take 
into account the effects of their undertakings on historic properties 
and afford the Council a reasonable opportunity to comment. Just as 
with NEPA and other laws, Federal agency compliance with such 
obligations necessarily requires effort and time. Through various 
methods, such as time limits and program alternatives (which give 
Federal agencies the tools to further streamline and adapt the process 
to their needs), the Council has provided for cutting down such 
compliance costs.
    Federal agencies often have no cultural resources expertise and 
therefore rely on SHPO to make findings for them. Although Council 
staff has urged SHPO offices not to be forced into this position, it is 
just too much work to get agencies to obtain the necessary expertise. 
This is an important program issue, but not a regulatory one. The 
Council and the National Park Service should work with agencies in this 
area.
    Additional guidance may be needed to further clarify the roles of 
participating parties in the consultation process. The Council agrees 
that such guidance should be developed.
    The length of the comment periods are well founded and prudent 
because they insures that the parties respond in a timely manner. The 
rule also clarifies and emphasizes opportunities for Tribes, Native 
American organizations, and the interested public to participate in 
consultation. The Council agrees.

General Negative

    The regulations have strayed from the consultation and advisory 
process envisioned by Congress for ``nationally significant historic 
sites.'' It is evidenced by Congress' enactment of section 101(a) of 
the NHPA that a site does not have to be of ``national'' significance 
in order to meet National Register criteria and be considered under 
section 106 review (sites of State or local significance can meet the 
criteria as well).
    Section 106 process is unnecessary because it duplicates an 
existing local zoning review/approval process for radio towers (a 
process that considers the impact that proposed towers might have on 
nearby historic properties). Therefore, it imposes unnecessary costs on 
carriers, and those costs are invariably passed on to the consumers. 
Congress has determined that local governments--not the Federal 
Government--should resolve such issues as the location, height and 
design of communications facilities. While certain local zoning 
measures may address historic preservation concerns, Federal agency 
undertakings are still subject to section 106. The NHPA does not 
relieve them of this duty. As stated before, this and several other 
issues mentioned by the telecommunications industry in this rulemaking 
process have been or are in the process of being addressed through 
ongoing discussions with the industry, the FCC and SHPOs. One objective 
of this exercise is to better coordinate Federal and local review 
processes. These discussions commenced before the present rulemaking 
process.
    Instead of imposing overly-detailed proscriptive regulations that 
are difficult to understand and enforce, the Council should work with 
agencies and others to develop incentive programs that encourage 
innovative and effective

[[Page 77714]]

protection and preservation procedures. These could encourage 
compliance much more efficiently than the present enforcement model. 
This can be done pursuant to the program alternatives under Sec. 800.14 
of the rule.
    Council should suspend this rulemaking, and develop a new rule that 
contains: (1) Procedures that the Federal and State agencies can 
process and apply; (2) provisions that assign burdens and 
responsibilities that non-Federal entities can understand and 
reasonably support; and (3) an approach to preservation that equitably 
apportions responsibility and cost, and provides positive incentives 
for compliance. The Council believes the rule presents reasonable 
procedures that Federal agencies can process and apply. The vast 
majority of the thousands of section 106 reviews under the current and 
past rules have been conducted and concluded by Federal agencies 
without serious problems. The fact that disagreements sometimes arise 
regarding certain findings and determinations does not mean the process 
cannot be applied but, rather, reflects that it is being applied 
correctly. Disagreements and working out solutions is simply a part of 
a consultative process. The Council notes that, like section 106 
itself, the rule only place requirements on Federal agencies. The 
incentive for Federal agency compliance, beyond meeting legal 
obligations set by the NHPA, is the furtherance of the historic 
preservation policies of the Federal Government, as expressed in the 
NHPA.
    I do not think that the 1999 regulations have resulted in, or will 
in the foreseeable future result in, much streamlining of the process. 
The reduction in Council involvement has created a void. SHPOs do not 
carry sufficient respect to fill that authority void. I recommend that 
the regulations require the Council be notified as soon as either the 
Agency official or the SHPO expresses an opinion that an effect will be 
adverse; and that the Council be a signatory to all MOAs and PAs. The 
notification requirement is already in the rule (see Sec. 800.6(a)(1)). 
The Council will not become a signatory to all MOAs, since a decision 
has been made to streamline the process by relying more on the Federal 
agency and SHPO/THPO for routine cases.

General Positive

    General positive comments are summarized below, without a Council 
response beyond stating its agreement.
    A comment asked that the Council refrain from further restricting 
public participation or ``other consulting party'' involvement in any 
way. It also ask, that the Council not vest any further authority in 
the SHPO or reduce the involvement of SHPOs, THPOs, and other 
consulting parties in agency decision making.
    Other comments stated that: (1) the elimination of the distinction 
between ``no historic properties'' and ``no effect'' was a move in the 
right direction; (2) the rule is working well and that positive 
responses by certain Federal agencies had been noted; (3) the rule is 
very specific and provides sound guidance for federal agencies and 
other parties; (4) the rule clearly establishes the roles and 
responsibilities of the parties; (4) the rule works well and provides 
an efficient framework for the administration of the Act; (5) project 
review has been streamlined by reducing the need for Council review; 
(6) the rule is operating well, has appropriately defined the role of 
Federal agencies as the responsible party for section 106 compliance, 
achieves the objective of streamlining the process, and incorporates 
changes enacted in the 1992 amendments; (7) Federal agencies are 
beginning to assume their appropriate role as the lead in the process, 
and the Council can focus on difficult cases and problem agencies; (8) 
the rules are an improvement over the 1986 regs; (9) the rule offers a 
constructive framework for consultation among SHPO, tribes and all 
interested parties.

Miscellaneous

    Since implementing NHPA necessarily affects the agencies' 
regulatees, FCC recommends that the proposed rule include a 
``reasonable'' time period for Federal agencies to develop their own 
implementing procedures. Federal agencies have always had the authority 
to develop implementing procedures pursuant to section 110(a)(2)(E). 
The Council has no role in setting deadlines for Federal agencies to 
develop these implementing procedures.
    The deadlines for response from Council and SHPOs (15 days and 30 
days) are reasonable--assuming adequate personnel to handle the 
workload. Because SHPO's are inadequately funded, they are understaffed 
to meet these time frames. Therefore, a 30 day review period for the 
Council and a 45-day review period for SHPOs is recommended. The 
Council disagrees. The current deadlines adequately balance the project 
need for expediency and the workloads of the Council and SHPO/THPOs.

General Tribal

    In requesting that the role of THPO's and tribal representatives be 
clarified for those situations affecting properties of religious and 
cultural significance off tribal land, it is suggested that section 
101(d)(2) limits THPO responsibilities and authority to tribal lands 
and does not require a Federal agency to consult with those tribes 
regarding properties of religious and cultural significance. The 
Council disagrees. Section 101(d)(6)(B) of the NHPA requires tribal 
consultation regarding historic properties of religious and cultural 
significance. Nothing in the statute makes a distinction that would 
limit such consultation to tribal lands.
    It is inappropriate and illegal for Council to implement 1992 
amendments regarding Indian Tribes through its proposed rule. Section 
106 itself was not amended, and the Secretary of the Interior is the 
agency charged with promulgating regulations to implement the tribe-
related amendments. The comment misreads the NHPA. The rule 
appropriately deals with tribal requirements as they directly relate to 
the section 106 process. The Council is authorized to promulgate rules 
to govern the implementation of section 106 ``in its entirety.'' This 
authority necessarily covers all aspects that directly relate to the 
section 106 process. The 1992 amendments require Federal agencies to 
consult with tribes and Native Hawaiian Organizations in carrying out 
their Section 106 responsibilities. While the Department of the 
Interior provides assistance to tribes and fosters communication among 
tribes, SHPOs and agencies, it does not oversee the section 106 process 
nor have the requisite authority. It is noted that the Department of 
the Interior sits on the Council and voted in favor of adopting this 
rule.
    Several THPOs have begun to request payment of fees for Section 106 
consultation and have asserted THPO powers outside of tribal lands. 
Council could remove uncertainty and avoid delays by clarifying that 
THPOs are bound by the same rules as SHPOs and THPO authority extends 
only over tribal lands. This is a topic being addressed by the ongoing 
Telecommunications Working Group. Once the Council reaches a decision 
on this matter, it will be disseminated.
    Concerned about several THPOs and tribal representatives requesting 
payment for the section 106 consultation required in the regulations 
and believes such actions are contrary to the regulations. This issue 
was raised by the wireless industry, and will be

[[Page 77715]]

addressed by the Telecommunications Working Group.
    We would not support changes to grant expanded authority to tribes 
off tribal lands. We strongly support current provisions which enable 
tribes to participate, as appropriate. The Council agrees with this 
comment and did not expand the tribal role in this rule.
    The proposed rule will impact us resulting in the consultation with 
Native Hawaiian organizations. The requirement for consultation with 
Native Hawaiian organizations will require expenditure of time and 
funds spent on EIS studies. The rule fails to specify which Hawaiian 
Native organizations (NHO) we would have to consult with, which may be 
many. The statute requires Federal agencies to conduct such 
consultation. The rule is not the appropriate venue for identifying 
specific NHOs. That is the responsibility of the Federal agency based 
on the potential to affect properties of significance to specific 
organizations.
    E.O. 13084 has language that should be utilized in the section 106 
process. EO 13084 addresses the development of Federal agency policies 
and regulations. The Council rule addresses individual projects and 
programs, and not these overall policies and rules developed by other 
agencies.
    The regulations took a positive step regarding tribal input and 
participation. It works when the agency is truly in compliance with the 
regulations. Need to work on how tribes can be more involved; are 
legally involved in decision making without a specific agreement; and 
can be funded to conduct the work demanded by agencies and the 
regulations. The Council is developing guidance on tribal consultation.
    The regulations conflict with the language and purpose of the Act 
by creating an artificial distinction between tribal properties 
depending on their location (on or off tribal lands). Tribes are 
provided lesser consultation rights where traditional cultural 
properties are located off tribal lands. The rule acknowledges tribal 
sovereignty on tribal lands, which necessarily distinguishes a tribe's 
role on and off tribal lands. The rule does not distinguish where 
properties are located, but only the scope of tribal involvement.
    The regulations suggest that tribal governments and the interested 
public are at the same level of importance. This concept ignores the 
sovereign status of tribes and, as a result, Federal agencies are 
disrespecting some tribal treaties. An important statement of the 
tribal government role is missing. With the public on the same level as 
tribes, the public can gain access to documents that may compromise the 
confidentiality provisions of section 106. The Council disagrees. 
Section 800.2(c)(3) of the rule provides information for Federal 
agencies regarding sovereignty and the government-to-government 
responsibility. The public is simply notified and involved as 
appropriate but, unlike tribes in their land or regarding historic 
properties of significance to them, is not an entitled consulting 
party.

Legal Authority

    Several comments questioned the Council's legal authority to issue 
the rule. The main arguments were that: (1) The Council was given 
advisory functions by the statute, and that the proposed rule 
transformed the role of the Council from purely advisory to one with 
substantive regulatory authority over other Federal agencies and 
parties; (2) the Council could only issue regulations regarding how it 
issued its comments (from the ``reasonable opportunity to comment'' 
provided by section 106); and (3) there was no statutory basis for a 
rule that dictates how an agency takes into account the effects of its 
undertakings or the Council's comments.
    The Council believes that the rule is properly characterized as one 
providing a process to be followed. Nowhere does the rule impose an 
outcome on a Federal agency as to how it will decide whether or not to 
approve an undertaking, or how. The rule merely provides a process that 
assures that the Federal agency takes into account the effects of the 
undertaking on historic properties. It does not impose in any way 
whatsoever how such consideration will affect the final decision of the 
Federal agency on the undertaking. The rule does not provide anyone 
with a veto power over an undertaking.
    Furthermore, the Council believes it has the authority to 
promulgate the present rule. Section 211 of the NHPA states that: ``The 
Council is authorized to promulgate such rules and regulations as it 
deems necessary to govern the implementation of section 106 of [the 
NHPA] in its entirety.'' The phrase ``in its entirety'' was added by 
the 1992 amendments to the NHPA. Directly talking to the meaning of the 
``in its entirety'' amendment, the summary of the amendments stated 
that: ``This makes clear that the ACHP has the authority to define not 
only how agencies will afford the Council a reasonable opportunity to 
comment, but also how agencies should take effects on historic 
properties into account in their planning.'' Congressional Record, 
Senate, S 3575, March 19, 1991. This amendment was specifically 
introduced to address the authority issues raised earlier. Thus, it is 
clear that Congress has given the Council the authority to promulgate 
rules, such as the present one, setting forth how Federal agencies are 
to meet all their section 106 responsibilities to take into account the 
effects of their undertakings on historic properties, as well as to 
provide the Council with a reasonable opportunity to comment.
    Moreover, the rule is solidly based on the requirements of the 
statute and, as Congress intended, provides a predictable framework 
which fleshes out those requirements. As stated before, section 106 
specifically requires Federal agencies to take into account the effects 
of their undertakings on historic properties. 16 U.S.C. 470f. The first 
general step in the process under the rule requires Federal agencies to 
identify the historic properties that may be affected by the 
undertaking. 36 CFR 800.4. It is simply impossible for an agency to 
take into account the effects of its undertaking on historic properties 
if it does not even know what those historic properties are in the 
first place.
    The second general step in the process is for the Federal agency to 
assess the effects of the undertaking on the historic property. 36 CFR 
800.5. Again, an agency cannot take into account effects on historic 
properties if it does not first assess the nature of those effects. The 
Council has utilized its considered expertise on historic preservation 
to create the criteria of adverse effect that guides the end of this 
step.
    The third general step in the process under the challenged rule is 
to consult to attempt resolving adverse effects to historic properties 
(through what is called a Memorandum of Agreement), if it has been 
determined the effects are actually adverse. 36 CFR 800.6. Such an 
approach is explicitly sanctioned by the statute under Section 110(l) 
of the National Historic Preservation Act. 16 U.S.C. 470h-2(l). 
Specifically, Section 110(l) of the statute states that:

    With respect to any undertaking subject to section 106 which 
adversely affects any [historic property], and for which a Federal 
agency has not entered into an agreement pursuant to regulations 
issued by the Council, the head of such agency shall document any 
decision made pursuant to section 106. . . . Where a section 106 
memorandum of agreement has been executed with respect to an 
undertaking,

[[Page 77716]]

such memorandum shall govern the undertaking and all its parts.

Id. (emphasis added). It bears mentioning that this section was amended 
by Congress after the section 106 rule that went into effect in 1999. 
The amendment further conformed the statute to that 1999 rule, which 
was used as the proposal in the present rulemaking. Specifically, 
section 5(a)(8) of HR 834, amended the language of section 110(l) by 
striking ``with the Council'' and inserting ``pursuant to regulations 
issued by the Council.''
    In the last general step in the process, the Council issues 
comments to the Federal agencies that fail to resolve adverse effects. 
Such a step is obviously contemplated in the requirements of section 
106 that the Council be given ``a reasonable opportunity to comment.'' 
16 U.S.C. 470f.
    The rule does provide for consultation with various parties 
throughout the process. Such consultation requirements with State 
Historic Preservation Officers, Tribal Historic Preservation Officers 
and certain federally recognized Indian Tribes and Native Hawaiian 
Organizations are solidly anchored on statutory requirements that 
Federal agencies consult with such parties. See e.g. 16 U.S.C. 
470a(b)(3)(I), 470a(d)(2), and 470a(d)(6)(B). The general public is 
also given a general role under the rule, although such role does not 
rise to the level of that of consulting parties. The Council believes 
this role for the public is reasonable and authorized. The Federal 
agency's consideration of how its undertaking affects historic 
properties is enhanced and better informed by the participation of the 
consulting parties and the general public, for whose enjoyment and 
enrichment the NHPA seeks to protect historic properties. It must be 
kept in mind that such public is the one that lives in the communities 
and areas where the historic properties are located, and therefore may 
have uniquely informed viewpoints as to such properties. As stated 
above, the rule specifically states that Federal agencies can use their 
own procedures for public involvement in lieu of those under subpart B 
of this rule, so long as they provide adequate opportunities consistent 
with the rule. Such procedural consistency is no more than what the 
NHPA requires under 16 U.S.C. 470h-2(a)(2)(E).

Appointments Clause

    Some comments argued that the present rulemaking process violates 
the Appointments Clause of the Constitution. This argument is 
summarized as follows: (a) The section 106 rule that went into effect 
in 1999 (1999 rule) was developed and adopted in violation of the 
Appointments Clause due to the participation of the Chairman of the 
National Trust on Historic Preservation (the Trust) and the President 
of the National Conference of State Historic Preservation Officers 
(NCSHPO) (both of whom are members of the Council not appointed by the 
President) in the development and adoption of that 1999 rule; and (b) 
since the content of that 1999 rule was used as the proposed rule in 
the present rulemaking, the present rulemaking process is incurably 
tainted and unconstitutional.
    The Council strongly disagrees with such arguments. As has been 
stated before, the Trust and NCSHPO have not participated in any way 
whatsoever in the deliberations, decisions, votes, or any other Council 
activities related to this rulemaking. On June 23, 2000, the Council 
membership, minus the representatives of the Trust and NCSHPO, took a 
new vote on the adoption of the 1999 rule. It voted 16-0 in favor of 
the 1999 rule. As has been stated above, that 1999 rule was the 
culmination of six years of work by the Council members, Council staff, 
public comments and public meetings.
    Again without the participation of the representatives of the Trust 
and NCSHPO, the Council proceeded to vote unanimously in favor of 
proceeding with the present rulemaking process, using the text of the 
1999 rule as the proposed rule. Many of these Council members (all 
Presidential appointees) had participated in the drafting and original, 
unanimous adoption of the 1999 rule on February of 1999. On June 23, 
2000, they decided to use that 1999 rule as the proposed rule. On 
November 17, 2000, after taking into account public comment and 
changing the proposed rule as they deemed appropriate, these 
Presidentially appointed Council members (without the participation of 
the representatives of the Trust and NCSHPO) voted to adopt the final 
rule now being published.
    Any prior involvement in the rule does not represent the exercise 
of significant authority pursuant to the laws of the United States 
contemplated by the Appointments Clause. The Presidential appointees 
considering the draft, proposed rule during the 2000 rulemaking process 
were at full liberty to vote against it, amend it, or adopt it. In the 
end, the final decision to move forward with such draft was in their 
power.
    In the present rulemaking, any act that could arguably be deemed an 
exercise of significant authority has been carried out solely by the 
Council's Presidential appointees.

Other Legal Issues

    Certain comments indicated a belief that the proposed rule violates 
the Establishment Clause of the Constitution. The arguments stated that 
to the extent the proposed rule requires Federal agencies to conform 
their decisionmaking under section 106 based on the ``religious and 
cultural significance'' of properties (as determined by Tribes) it 
results in an excessive entanglement between the government and 
religion, impermissibly restricts the use of public lands on the basis 
of religion, and impermissibly establishes or favors religion, in 
violation of the Establishment Clause.
    The Council strongly disagrees. The rule does not require Federal 
agencies to conform their decisionmaking based on the religious and 
cultural significance of properties. As stated before, the NHPA and the 
rule only clarify that properties of religious and cultural 
significance to Tribes ``may be determined to be eligible for inclusion 
on the National Register.'' section 101(d)(6)(A) of the NHPA. Like any 
other property of any kind, in order for properties with such 
significance to be considered in the section 106 process, they must 
first meet the established, objective, secular criteria of the National 
Register of Historic Places. The determination as to whether a property 
meets that criteria is made by the Federal agency in concurrence with 
the SHPO/THPO or, in the case of disagreement, by the Keeper of the 
National Register. Furthermore, once a historic property has been so 
identified, all that Federal agencies are required to do is to take 
into account the effects of their undertaking on such property. Nothing 
whatsoever in the rule imposes an obligation on the Federal agency to 
change, reject or approve an undertaking based on the religious and 
cultural significance of a property.
    The rule and section 101(d)(6) of the NHPA only require 
consultation with Indian Tribes regarding those historic properties of 
significance to them. The Federal agency must consult with such Tribes, 
but is nowhere required to abide by the opinions expressed by the 
Tribes in such consultations. Furthermore, such consultation provisions 
are fully justified and reasonable. They do not provide Tribes with a 
``special treatment,'' but rather a rational treatment. Just as it 
would be common sense for a person to consult, for example, with the 
Navy in order to seek a better understanding of the history of

[[Page 77717]]

Pearl Harbor, it is more than rational to go to Tribes to seek a better 
understanding of historic properties to which they attach a religious 
and cultural significance. Due to their history and experience with 
such properties, such Tribes are in a specially advantageous position 
to provide valuable information about them. At the very least, the 
Council believes that these Tribal consultation provisions of the rule 
and of section 101(d)(6) of the NHPA are tied rationally to the 
fulfillment of the Federal Government's unique obligations towards 
Tribes. See Morton v. Mancari, 417 U.S. 535 (1974).

IV. Description of Meaning and Intent of Specific Sections

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

Subpart A--Purposes and Participants

    Section 800.1(b). This section makes clear that references in the 
section 106 regulations are not intended to give any additional 
authority to implementing guidelines, policies or procedures issued by 
any other Federal agency. Where such provisions are cited, they are 
simply to assist users in finding related guidance, which is non-
binding, or requirements of related laws, which may be mandatory 
depending on the particular law itself.
    Section 800.1(c). The purpose of this section is to emphasize the 
flexibility an Agency Official has in carrying out the steps of the 
section 106 process, while acknowledging that early initiation of the 
process is essential and that actions taken to meet the procedural 
requirements must not restrict the effective consideration of 
alternatives related to historic preservation issues in later stages of 
the process.
    Section 800.2(a). The term ``Agency Official'' is intended to 
include those Federal officials who have the effective decision making 
authority for an undertaking. This means the ability to agree to such 
actions as may be necessary to comply with section 106 and to ensure 
that any commitments made as a result of the section 106 process are 
indeed carried out. This authority and the legal responsibilities under 
section 106 may be assumed by non-Federal officials only when there is 
clear authority for such an arrangement under Federal law, such as 
under certain programs administered by the Department of Housing and 
Urban Development. This subsection indicates that the Federal Agency 
must ensure that the Agency Official ``takes . . .  financial 
responsibility for section 106 compliance . . .'' This phrase is not to 
be construed as prohibiting Federal agencies from passing certain 
section 106 compliance costs to applicants. Such a construction of the 
regulation would contravene section 110(g) of the NHPA and 16 U.S.C. 
469c-2. The intent behind the reference to ``financial responsibility'' 
in the regulation is, as stated above, to ensure that the Agency 
Official has the effective decision making authority for an 
undertaking.
    Section 800.2(a)(1). This reference to the Secretary's professional 
standards is intended to remind Federal agencies that this independent 
but related provision of the Act may affect their compliance with 
section 106.
    Section 800.2(a)(2). This provision allows, but does not require, 
Federal agencies to designate a lead agency for section 106 compliance 
purposes. The lead agency carries out the duties of the Agency Official 
for all aspects of the undertaking. The other Federal agencies may 
assist the lead agency as they mutually agree. When compliance is 
completed, the other Federal agencies may use the outcome to document 
their own compliance with section 106 and must implement any provisions 
that apply to them. This provision does not prohibit an agency to 
independently pursue compliance with section 106 for its obligations 
under section 106, although this should be carefully coordinated with 
the lead agency. A lead agency can sign the Memorandum of Agreement for 
other agencies, so long as that is part of the agreement among the 
agencies for creating the lead agency arrangement. It should also be 
clear in the Memorandum of Agreement.
    Section 800.2(a)(4). This section sets forth the general concepts 
of consultation. It identifies the duty of Federal agencies to consult 
with other partes at various steps in the section 106 process and 
acknowledges that consultation varies depending on a variety of 
factors. It also encourages agencies to coordinate section 106 
consultation with that required under other Federal laws and to use 
existing agency processes to promote efficiency.
    Section 800.2(b). The Council will generally not review the 
determinations and decisions reached in accordance with these 
regulations by the Agency Official and appropriate consulting parties 
and not participate in the review of most section 106 cases. However, 
because the statutory obligation of the Federal agency is to afford the 
Council a reasonable opportunity to comment on its undertaking's 
effects upon historic properties, the Council will oversee the section 
106 process and formally become a party in individual consultations 
when it determines there are sufficient grounds to do so. These are set 
forth in Appendix A. The Council also will provide participants in the 
section 106 process with its advice and guidance in order to facilitate 
completion of the section 106 review.
    Section 800.2(c). This section sets a standard for involving 
various consulting parties. The objective is to provide parties with an 
effective opportunity to participate in the section 106 process, 
relative to the interest they have to the historic preservation issues 
at hand.
    Section 800.2(c)(1). This section recognizes the central role of 
the SHPO in working with the Agency Official on section 106 compliance 
in most cases. It also delineates the manner in which the SHPO may get 
involved in the section 106 process when a THPO has assumed SHPO 
functions on tribal lands.
    Section 800.2(c)(2). The role of THPO was created in the 1992 
amendments to the Act. This section tracks the statutory provision 
relating to THPO assumption of the SHPO's section 106 role on tribal 
lands. In such circumstances, the THPO substitutes for the SHPO and the 
SHPO participates in the section 106 process only as specified in 
800.2(c)(1) or as a member of the public. This section also specifies 
that in those instances where an undertaking occurs on or affects 
properties on tribal lands and a tribe has not officially assumed the 
SHPO's section 106 responsibilities on those lands, the Agency Official 
still consults with the SHPO, but also consults with a representative 
designated by the Indian tribe. Such designation is made in accordance 
with tribal law and procedures. However, if the tribe has not 
designated such a representative, the Agency Official would consult 
with the tribe's chief elected official, such as the tribal chairman.
    Section 800.2(c)(3). This section embodies the statutory 
requirement for Federal agencies to consult with Indian tribes and 
Native Hawaiian organizations throughout the section 106 process when 
they attach religious and cultural significance to historic properties 
that may be affected by an undertaking. It is intended to promote 
continuing and effective consultation with those parties throughout the 
section 106 process. Such consultation is intended to be conducted in a 
manner that is fully cognizant of the legal rights of Indian tribes and 
that is sensitive to their cultural traditions and practices.
    Section 800.2(c)(3)(i). This subsection has two main purposes. 
First, it emphasizes the importance of involving Indian tribes and 
Native Hawaiian organizations early and fully at all stages of the 
section 106 process.

[[Page 77718]]

Second, Federal agencies should solicit tribal views in a manner that 
is sensitive to the governmental structures of the tribes, recognizing 
that confidentiality and communication issues may require Federal 
agencies to allow more time for the exchange of information. Also, this 
section states that the Agency Official must make a ``reasonable and 
good faith effort'' to identify interested tribes and Native Hawaiian 
organizations. This means that the Agency Official may have to look 
beyond reservations and tribal lands in the project's vicinity to seek 
information on tribes that had been historically located in the area, 
but are no longer there.
    Section 800.2(c)(3)(iii). This subsection emphasizes the need to 
consult with Indian tribes on a government-to-government basis. The 
Agency Official must consult with the appropriate tribal 
representative, who must be selected or designated by the tribe to 
speak on behalf of the tribe. Matters of protocol are important to 
Indian tribes. Indian tribes and Native Hawaiian organization may be 
reluctant to share information about properties to which they attach 
religious and cultural significance. Federal agencies should recognize 
this and be willing to identify historic properties without 
compromising concerns about confidentiality. The Agency Official should 
also be sensitive to the internal workings of a tribe and allow the 
time necessary for the tribal decision making process to operate.
    Section 800.2(c)(3)(iv). This subsection reminds Federal agencies 
of the statutory duty to consult with Indian tribes and Native Hawaiian 
organizations whether or not the undertaking or its effects occur on 
tribal land. Agencies should be particularly sensitive in identifying 
areas of traditional association with tribes or a Native Hawaiian 
organizations, where historic properties to which they attach religious 
and cultural significance may be found.
    Section 800.2(c)(3)(v). Some Federal agencies have or may want to 
develop special working relationships with Indian tribes or Native 
Hawaiian organization to provide specific arrangements for how they 
will adhere to the steps in the section 106 process and enhance the 
participation of tribes and Native Hawaiian organizations. Such 
agreements are not mandatory; they may be negotiated at the discretion 
of Federal agencies. The agreements cannot diminish the rights set 
forth in the regulations for other parties, such as the SHPO, without 
that party's express consent.
    Section 800.2(c)(3)(vi). The signature of tribes is required where 
a Memorandum of Agreement concerns tribal lands. However, if a tribe 
has not formally assumed the SHPO's responsibilities under section 
101(d)(2) the tribe may waive its signature rights at its discretion. 
This will allow tribes the flexibility of allowing agreements to go 
forward regarding tribal land, but without condoning the agreement with 
their signature.
    Section 800.2(c)(4). Affected local governments must be given 
consulting party status if they so request. Under Sec. 800.3(f)(1), 
Agency Officials are required to invite such local governments to be 
consulting parties. This subsection provides for that status and also 
reminds Federal agencies that some local governments may act as the 
Agency Official when they have assumed section 106 legal 
responsibilities, such as under certain programs administered by the 
Department of Housing and Urban Development.
    Section 800.2(c)(5). Applicants for Federal assistance or for a 
Federal permit, license or other approval are entitled to be consulting 
parties. Under Sec. 800.3(f)(1), Agency Officials are required to 
invite them to be consulting parties. Also, Federal agencies have the 
legal responsibility to comply with section 106 of the NHPA. In 
fulfilling their responsibilities, Federal agencies sometimes choose to 
rely on applicants for permits, approvals or assistance to begin the 
106 process. The intent was to allow applicants to contact SHPOs and 
other consulting parties, but agencies must be mindful of their 
government-to-government consultation responsibilities when dealing 
with Indian tribes. If a Federal agency implements its 106 
responsibilities in this way, the Federal agency remains legally 
responsible for the determinations. Applicants that may assume 
responsibilities under a Memorandum of Agreement must be consulting 
parties in the process leading to the agreement.
    Section 800.2(c)(6). This section allows for the possibility that 
other individuals or entities may have a demonstrated special interest 
in an undertaking and that Federal agencies and SHPO/THPOs should 
consider the involvement of such individuals or entities as consulting 
parties. This might include property owners directly affected by the 
undertaking, non-profit organizations with a direct interest in the 
issues or affected businesses. Under Sec. 800.3(f)(3), upon written 
request and in consultation with the SHPO/THPO and any Indian tribe 
upon whose tribal lands an undertaking occurs or affects historic 
properties, an Agency Official may allow certain individuals under 
Sec. 800.2(c)(6) to become consulting parties.
    Section 800.2(d)(1). Public involvement is a critical aspect of the 
106 process. This section is intended to set forth a standard that 
Federal agencies must adhere to as they go through the section 106 
process. The type of public involvement will depend upon various 
factors, including but not limited to, the nature of the undertaking, 
the potential impact, the historic property, and the likely interest of 
the public. Confidentiality concerns include those specified in section 
304 of the Act and legitimate concerns about proprietary information, 
business plans and privacy of property owners.
    Section 800.2(d)(2). This subsection is intended to set the notice 
standard. Notice, with sufficient information to allow meaningful 
comments, must be provided to the public so that the public can express 
its views during the various stages and decision making points of the 
process.
    Section 800.2(d)(3). It is intended that Federal agencies have 
flexibility in how they involve the public, including the use of NEPA 
and other agency planning processes, as long as opportunities for such 
public involvement are adequate and consistent with subpart A of the 
regulations.

Subpart B--The section 106 Process

    Section 800.3. This new section is intended to encourage Federal 
agencies to integrate the section 106 process into agency planning at 
its earliest stages.
    Section 800.3(a). The determination of whether or not an 
undertaking exists is the Agency Official's determination. The Council 
may render advice on the existence of an undertaking, but ultimately 
this remains a Federal agency decision.
    Section 800.3(a)(1). This section explains that if there is an 
undertaking, but it is not a type of activity that has the potential to 
affect a historic property, then the agency is finished with its 
section 106 obligations. There is no consultation requirement for this 
decision.
    Section 800.3(a)(2). This is a reminder to Federal agencies that 
adherence to the standard 106 process in Subpart B is inappropriate 
where the undertaking is governed by a program alternative established 
pursuant to Sec. 800.14.
    Section 800.3(b). This section does not impose a mandatory 
requirement on Federal agencies. It emphasizes the benefit of 
coordinating compliance with related statutes so as to enhance

[[Page 77719]]

efficiency and avoid duplication of efforts, but the decision is up to 
the Agency Official. Agencies are encouraged to use the information 
gathered for these other processes to meet section 106 needs, but the 
information must meet the standards in these regulations.
    Section 800.3(c). This sets forth the responsibility to properly 
identify the appropriate SHPO or THPO that must be consulted. If the 
undertaking is on or affects historic properties on tribal lands, then 
the agency must determine what tribe is involved and whether the tribe 
has assumed the SHPO's responsibilities for section 106 under section 
101(d)(2) of the Act. A list of such tribes is available from the 
National Park Service.
    Section 800.3(c)(1). This section reiterates that the tribe may 
assume the role of the SHPO on tribal land and tracks the language of 
the Act in specifying how certain owners of property on tribal lands 
can request SHPO involvement in a section 106 case in addition to the 
THPO.
    Section 800.3(c)(2). This section is the State counterpart to 
Federal lead agencies and has the same effect. It allows a group of 
SHPOs to agree to delegate their authority under these regulations for 
a specific undertaking to one SHPO.
    Section 800.3(c)(3). This section reinforces the notion that the 
conduct of consultation may vary depending on the agency's planning 
process, the nature of the undertaking and the nature of its effects.
    Section 800.3(c)(4). This section makes it clear that failure of an 
SHPO/THPO to respond within the time frames set by the regulation 
permit the agency to assume concurrence with the finding or to consult 
about the finding or determination with the Council in the SHPO/THPO's 
absence. It also makes clear that subsequent involvement by the SHPO/
THPO is not precluded, but the SHPO/THPO cannot reopen a finding or 
determination that it failed to respond to earlier.
    Section 800.3(d). This section specifies that, on tribal lands, the 
Agency Official consults with both the Indian tribe and the SHPO when 
the tribe has not formally assumed the responsibilities of the SHPO 
under section 101(d)(2) of the Act. It also allows the section 106 
process to be completed even when the SHPO has decided not to 
participate in the process, and for the SHPO and an Indian tribe to 
develop tailored agreements for SHPO participation in reviewing 
undertakings on the tribe's lands.
    Section 800.3(e). This section requires the Agency Official to 
decide early how and when to involve the public in the section 106 
process. It does not require a formal ``plan,'' although that might be 
appropriate depending upon the scale of the undertaking and the 
magnitude of its effects on historic properties.
    Section 800.3(f). This is a particularly important section, as it 
requires the Agency Official at an early stage of the section 106 
process to consult with the SHPO/THPO to identify those organizations 
and individuals that will have the right to be consulting parties under 
the terms of the regulations. These include local governments, Indian 
tribes and Native Hawaiian organizations and applicants for Federal 
assistance or permits, especially those who may assume a responsibility 
under a Memorandum of Agreement (see Sec. 800.6(c)(2)(ii)). Others may 
request to be consulting parties, but that decision is up to the Agency 
Official.
    Section 800.3(g). This section makes it clear that an Agency 
Official can combine individual steps in the section 106 process with 
the consent of the SHPO/THPO. Doing so must protect the opportunity of 
the public and consulting partes to participate fully in the section 
106 process as envisioned in Sec. 800.2.
    Section 800.4(a). This section sets forth the consultative 
requirements involved in the scoping efforts at the beginning stages of 
the identification process. The Agency Official must consult with the 
SHPO/THPO in fulfilling the steps in subsections (1) through (4). This 
section emphasizes the need to consult with the SHPO/THPO at all steps 
in the scoping process. It also highlights the need to seek information 
from Indian tribes and Native Hawaiian organizations with regard to 
properties to which they attach religious and cultural significance, 
while being sensitive to confidentiality concerns. Where Federal 
agencies are engaged in an action that is on or may affect ancestral, 
aboriginal or ceded lands, Federal agencies must consult with Indian 
tribes and Native Hawaiian organizations with regard to historic 
properties of traditional religious and cultural significance on such 
lands.
    Section 800.4(b). This section sets out the steps an Agency 
Official must follow to identify historic properties. It is close to 
the section 106 process under the 1986 regulations, with increased 
flexibility of timing and greater involvement of Indian tribes and 
Native Hawaiian organizations in accordance with the 1992 amendments to 
the Act.
    Section 800.4(b)(1). This section on level of effort required 
during the identification processes has been added to allow for 
flexibility. It sets the standard of a reasonable and good faith effort 
on behalf of the agency to identify properties and provides that the 
level of effort in the identification process depends on numerous 
factors including, among others listed, the nature of the undertaking 
and its corresponding potential effects on historic properties.
    Section 800.4(b)(2). This new section is also intended to provide 
Federal agencies with flexibility when several alternatives are under 
consideration and the nature of the undertaking and its potential scope 
and effect has therefore not yet been completely defined. The section 
also allows for deferral of final identification and evaluation if 
provided for in an agreement with the SHPO/THPO or other circumstances. 
Under this phased alternative, Agency Officials are required to follow 
up with full identification and evaluation once project alternatives 
have been refined or access has been gained to previously restricted 
areas. Any further deferral of final identification would complicate 
the process and jeopardize an adequate assessment of effects and 
resolution of adverse effects.
    Section 800.4(c). This section sets out the process for determining 
the National Register eligibility of properties not previously 
evaluated for historic significance.
    Section 800.4(c)(2). This section provides that if an Indian tribe 
or Native Hawaiian organization disagrees with a determination of 
eligibility involving a property to which it attaches religious and 
cultural significance, then the tribe can ask the Council to request 
that the Agency Official obtain a determination of eligibility. The 
Council retains the discretion as to whether or not it should make the 
request of the Agency Official. This section was intended to provide a 
way to ensure appropriate determinations regarding properties, located 
off tribal lands, to which tribes attach religious and cultural 
significance.
    Section 800.4(d)(1). This section describes the closure point in 
the section 106 process where no historic properties are found or no 
effects on historic properties are found. Consulting parties must be 
specifically notified of the determination, but members of the public 
need not receive direct notification; the Federal agency must place its 
documentation in a public file prior to approving the undertaking, and 
provide access to the information when requested by the public. Once 
the consulting parties are notified, the SHPO/THPO has 30 days to 
object to the determination. The Council may also

[[Page 77720]]

object on its own initiative within the time period. Lack of such 
objection within the 30 day period means that the agency need not take 
further steps in the Section 106 process.
    Section 800.4(d)(2). This section requires that the Federal agency 
proceed to the adverse effect determination step where it finds that 
historic properties may be affected or the SHPO/THPO or Council objects 
to a no historic properties affected finding. The agency must notify 
all consulting parties.
    Section 800.5(a). This section provides for Indian tribe and Native 
Hawaiian organization consultation where historic properties to which 
they attach religious and cultural significance are involved. This 
section also requires the Agency Official to consider the views of 
consulting parties and the public that have already been provided to 
the Federal agency.
    Section 800.5(a)(1). This section codifies the practice of the 
Council in considering both direct and indirect effects in making an 
adverse effect determination. This section allows for consideration of 
effects on the qualifying characteristics of a historic property that 
may not have been part of the property's original eligibility 
evaluation. The last sentence in this section is intended to amplify 
the indirect effects concept, similar to the NEPA regulations, which 
calls for consideration of such effects when they are reasonably 
foreseeable effects.
    Section 800.5(a)(2)(ii). The list of examples of adverse effects 
has been modified by eliminating the exceptions to the adverse effect 
criteria. However, if a property is restored, rehabilitated, repaired, 
maintained, stabilized, remediated or otherwise changed in accordance 
with the Secretary's standards, then it will not be considered an 
adverse effect.
    Section 800.5(a)(2)(iii). This subsection, along with 
Sec. 800.5(a)(2)(I), would encompass recovery of archeological data as 
an adverse effect, even if conducted in accordance with the Secretary's 
standards. This acknowledges the reality that destruction of a site and 
recovery of its information and artifacts is adverse. It is intended 
that in eliminating data recovery as an exception to the adverse effect 
criteria, Federal agencies will be more inclined to pursue other forms 
of mitigation, including avoidance and preservation in place, to 
protect archeological sites.
    Section 800.5(a)(2)(iv). This section tracks the National Register 
criteria regarding the relation of alterations to a property's use or 
setting to the significance of the property.
    Section 800.5(a)(2)(v). This section tracks the language of the 
National Register criteria as it pertains to the property's integrity.
    Section 800.5(a)(2)(vi). This section acknowledges that where 
properties of religious and cultural significance to Indian tribes or 
Native Hawaiian organizations are involved, neglect and deterioration 
may be recognized as qualities of those properties and thus may not 
necessarily constitute an adverse effect.
    Section 800.5(a)(2)(vii). If a property is transferred leased or 
sold out of Federal ownership with proper preservation restrictions, 
then it will not be considered an adverse effect. Transfer between 
Federal agencies is not an adverse effect per se; the purpose of the 
transfer should be evaluated for potential adverse effects, so that 
they can be considered before the transfer takes place.
    Section 800.5(a)(3). This section is intended to allow flexibility 
in Federal agency decision making processes and to recognize that 
phasing of adverse effect determinations, like identification and 
evaluation, is appropriate in certain planning and approval 
circumstances, such as the development of linear projects where major 
corridors are first assessed and then specific route alignment 
decisions are made subsequently.
    Section 800.5(b). This section allows SHPO/THPO's the ability to 
suggest changes in a project or suggest conditions so that adverse 
effects can be avoided and thus result in a no adverse effect 
determination. It is also written to emphasize that a finding of no 
adverse effect is only a proposal when the Agency Official submits it 
to the SHPO/THPO for review. This provision also acknowledges that the 
practice of ``conditional No Adverse Effect determinations'' is 
acceptable.
    Section 800.5(c). The Council will not review ``no adverse effect'' 
determinations on a routine basis. The Council will intervene and 
review no adverse effect determinations if it deems it appropriate 
based on the criteria listed in Appendix A or if the SHPO/THPO or 
another consulting party and the Federal agency disagree on the finding 
and the agency cannot resolve the disagreement. The SHPO/THPO and any 
consulting party wishing to disagree to the finding must do so within 
the 30-day review period. If Indian tribes or Native Hawaiian 
organizations disagree with the finding, they can request the Council's 
review directly, but this must be done within the 30 day review period. 
If a SHPO/THPO fails to respond to an Agency Official finding within 
the 30 day review period, then the Agency Official can consider that to 
be SHPO/THPO agreement with the finding. When a finding is submitted to 
the Council, it will have 15 days for review; if it fails to respond 
within the 15 days, then the Agency Official may assume Council 
concurrence with the finding. When it reviews no adverse effect 
determinations, the Council will limit its review to whether or not the 
criteria have been correctly applied.
    Section 800.5(d). Agencies must retain records of their findings of 
no adverse effect and make them available to the public. This means 
that the public should be given access to the information, subject to 
FOIA and other statutory limits on disclosure such as section 304 of 
the NHPA, when they so request. Failure of the agency to carry out the 
undertaking in accordance with the finding requires the Agency Official 
to reopen the section 106 process and determine whether the altered 
course of action constitutes an adverse effect. A finding of adverse 
effect requires further consultation on ways to resolve it.
    Section 800.6(a)(1). When adverse effects are found, the 
consultation must continue among the Federal agency, SHPO/THPO and 
consulting parties to attempt to resolve them. The Agency Official must 
notify the Council when adverse effects are found and should invite the 
Council to participate in the consultation when the circumstances in 
Sec. 800.6(a)(1)(i)(A)-(C) exist. A consulting party may also request 
the Council to join the consultation. The Council will decide on its 
participation within 15 days of receipt of a request, basing its 
decision on the criteria set forth in Appendix A. Whenever the Council 
decides to join the consultation, it must notify the Agency Official 
and the consulting parties. It must also advise the head of the Federal 
agency of its decision to participate. This is intended to keep the 
policy level of the Federal agency apprized of those cases that the 
Council has determined present issues significant enough to warrant its 
involvement.
    Section 800.6(a)(2). This section allows for the entry of new 
consulting parties if the agency and the SHPO/THPO (and the Council, if 
participating) agree. If they do not agree, it is desirable for them to 
seek the Council's opinion on the involvement of the consulting party. 
Any party, including applicants, licensees or permittees, that may have 
responsibilities under a Memorandum of Agreement must be invited to 
participate as consulting parties in reaching the agreement.
    Section 800.6(a)(3). This section specifies the Agency Official's

[[Page 77721]]

obligation to provide project documentation to all consulting partes at 
the beginning of the consultation to resolve adverse effects. 
Particular note should be made of the reference to the confidentiality 
provisions.
    Section 800.6(a)(4). The Federal agency must provide an opportunity 
for members of the public to express their views on an undertaking. The 
provision embodies the principles of flexibility, relating the agency 
effort to various aspects of the undertaking and its effects upon 
historic properties. The Federal agency must provide them with notice 
such that the public has enough time and information to meaningfully 
comment. If all relevant information was provided at earlier stages in 
the process in such a way that a wide audience was reached, and no new 
information is available at this stage in the process that would assist 
in the resolution of adverse effects, then a new public notice may not 
be warranted. However, this presumes that the public had the 
opportunity to make its views known on ways to resolve the adverse 
effects.
    Section 800.6(a)(5). Although it is in the interest of the public 
to have as much information as possible in order to provide meaningful 
comments, this section acknowledges that information may be withheld in 
accordance with section 304 of the NHPA.
    Section 800.6(b). If the Council is not a part of the consultation, 
then a copy of the Memorandum of Agreement must be sent to the Council 
so that the Council can include it in its files to have an 
understanding of a Federal agency's implementation of section 106. This 
does not provide the Council an opportunity to reopen the specific 
case, but may form the basis for other actions or advice related to an 
agency's overall performance in the section 106 process.
    Section 800.6(b)(1). When resolving adverse effects without the 
Council, the Agency Official consults with the SHPO/THPO and other 
consulting parties to develop a Memorandum of Agreement. If this is 
achieved, the agreement is executed between the Agency Official and the 
SHPO/THPO and filed with required documentation with the Council. This 
filing is the formal conclusion of the section 106 process and must 
occur before the undertaking is approved. Standard treatments adopted 
by the Council may set expedited ways for competing memoranda of 
agreement in certain circumstances.
    Section 800.6(b)(2). When the Council is involved, the consultation 
proceeds in the same manner, but the agreement of the Agency Official, 
the SHPO/THPO and the Council is required for a Memorandum of 
Agreement.
    Section 800.6(c). This section details the provisions relating to 
Memoranda of Agreement. This document evidences an agency's compliance 
with section 106 and the agency is obligated to follow its terms. 
Failure to do so requires the Agency Official to reopen the section 106 
process and bring it to suitable closure as prescribed in the 
regulations.
    Section 800.6(c)(1). This section sets forth the rights of 
signatories to an agreement and identifies who is required to sign the 
agreement under specific circumstances. The term ``signatory'' has a 
special meaning as described in this section, which is the ability to 
terminate or agree to amend the Memorandum of Agreement. The term does 
not include others who sign the agreement as concurring parties.
    Section 800.6(c)(2). Certain parties may be invited to be 
signatories in addition to those specified in Sec. 800.6(c)(1). They 
include individuals and organizations that should, but do not have to, 
sign agreements. It is particularly desirable to have parties who 
assume obligations under the agreement become formal signatories. 
However, once invited signatories sign MOAs, they have the same rights 
to terminate or amend the MOA as the other signatories.
    Section 800.6(c)(3). Other parties may be invited to concur in 
agreements. They do not have the rights to amend or terminate an MOA. 
Their signature simply shows that they are familiar with the terms of 
the agreement and do not object to it.
    Sections 800.6(c)(4)-(9). These sections set forth specific 
features of a Memorandum of Agreement and the way it can be terminated 
or amended.
    Section 800.7. This section specifies what happens when the 
consulting parties cannot reach agreement. Usually when consultation is 
terminated, the Council renders advisory comments to the head of the 
agency, which must be considered when the final agency decision on the 
undertaking is made.
    Section 800.7(a)(1). This section requires that the head of the 
agency or an Assistant Secretary or officer with major department-wide 
or agency-wide responsibilities must request Council comments when the 
Agency Official terminates consultation. Section 110(l) of the NHPA 
requires heads of agencies to document their decision when an agreement 
has not been reached under section 106. If the agency head is 
responsible for documenting the decision, it is appropriate that the 
same individual request the Council's comments.
    Section 800.7(a)(2). This section allows the Council and the Agency 
Official to conclude the section 106 process with a Memorandum of 
Agreement between them if the SHPO terminates consultation.
    Section 800.7(a)(3). If a THPO terminates consultation, there can 
be no agreement with regard to undertakings that are on or affect 
properties on tribal lands and the Council will issue formal comments. 
This provision respects the tribe's unique sovereign status with regard 
to its lands.
    Section 800.7(a)(4). This section governs cases where the Council 
terminates consultation. In that case, the Council has the duty to 
notify all consulting parties prior to commenting. The role given to 
the Federal Preservation Officer is intended to fulfill the NHPA's goal 
of having a central official in each agency to coordinate and 
facilitate the agency's involvement in the national historic 
preservation program.
    Section 800.7(b). This section allows the Council to provide 
advisory comments even though it has signed a Memorandum of Agreement. 
It is intended to give the Council the flexibility to provide comments 
even where it has agreed to sign an MOA. Such comments might elaborate 
upon particular matters or provide suggestions to Federal agencies for 
future undertakings.
    Section 800.7(c). This section gives the Council 45 days to provide 
its comments to the head of the agency for a response by the agency 
head. When submitting its comments, the Council will also provide the 
comments to the Federal Preservation Officer, among others, for 
information purposes.
    Section 800.7(c)(4). This section specifies what it means to 
``document the agency head's decision'' as required by section 110(l) 
when the Council issues its comment to the agency head.
    Section 800.8. This major section guides how Federal agencies can 
coordinate the section 106 process with NEPA compliance. It is intended 
to allow compliance with section 106 to be incorporated into the NEPA 
documentation process while preserving the legal requirements of each 
statute.
    Section 800.8(a)(1). This section encourages agencies to coordinate 
NEPA and section 106 compliance early in the planning process. It 
emphasizes that impacts on historic properties should be considered 
when an agency makes evaluations of its NEPA obligations, but makes 
clear that an adverse effect

[[Page 77722]]

finding does not automatically trigger preparation of an EIS.
    Section 800.8(a)(2). This section encourages consulting parties in 
the section 106 process to be prepared to consult with the Agency 
Official early in the NEPA process.
    Section 800.8(a)(3). This section encourages agencies to include 
historic preservation issues in the development of various NEPA 
assessments and documents. This is essential for effective coordination 
between the two processes. It is intended to discourage agencies from 
postponing consideration of historic properties under NEPA until later 
initiation of the section 106 process.
    Section 800.8(b). This section notes that a project, activity or 
program that falls within a NEPA categorical exclusion may still 
require section 106 review. An exclusion from NEPA does not necessarily 
mean that section 106 does not apply.
    Section 800.8(c). This section offers Federal agencies an 
opportunity for major procedural streamlining when NEPA and section 106 
both apply to a project. It allows the agency, when specific standards 
are met, to substitute preparation of an EA or an EIS for the specific 
steps of the section 106 process set out in these regulations.
    Section 800.8(c)(1). This section lists the standards that must be 
adhered to when developing NEPA documents that are intended to 
incorporate 106 compliance. They are intended to ensure that the 
objectives of the section 106 process are being met even though the 
specific steps of the process are not being followed.
    Section 800.8(c)(2). This section provides for Council and 
consulting party review of the agency's environmental document within 
NEPA's public comment review time frame. Consulting parties and the 
Council may object prior to or within this time frame to adequacy of 
the document.
    Section 800.8(c)(3). If there is an objection to the NEPA document, 
the Council has 30 days to state whether or not it agrees with the 
objection. If the Council agrees with the objection, the Agency 
Official must complete the section 106 process through development of a 
Memorandum of Agreement or obtaining formal Council comment 
(Sec. 800.6-7). If it does not, then the Agency Official can complete 
its review under Sec. 800.8.
    Section 800.8(c)(4). This subsection explains how Agency Officials 
using NEPA coordination must finalize their section 106 compliance for 
those cases where an adverse effect is found. The Agency must document 
the proposed mitigation measures. A binding commitment with the 
proposed measures must be adopted. In the case of a FONSI, the binding 
commitment must be in the form of an MOA, drafted in accordance with 
Sec. 800.6(c). Although the regulations do not send Agency Officials 
back to Sec. 800.6(b) (regarding consultation towards an MOA), Agency 
Officials are reminded of the standards they must still follow under 
Sec. 800.8(c)(1), and specifically the mitigation measures' 
consultation under Sec. 800.8(c)(1)(v). In the case of an EIS, although 
a Memorandum of Agreement under Sec. 800.6(c) is not required, an 
appropriate binding commitment must still be adopted. Finally, the 
subsection also clarifies the Agency Official's obligation to ensure 
that its approval of the undertaking is conditioned accordingly.
    Section 800.8(c)(5). This section requires Federal agencies to 
supplement their NEPA documents or abide by Secs. 800.3 through 800.6 
in the event of a change in the proposed undertaking that alters the 
undertaking's impact on historic properties.
    Section 800.9. This section delineates the methods the Council will 
use to oversee the operation of the section 106 process. The Council 
draws upon its general advisory powers and specific provisions of the 
NHPA to conduct these actions.
    Section 800.9(a). This section emphasizes the right of the Council 
to provide advice at any time in the process on matters related to the 
section 106 process.
    Section 800.9(b). A foreclosure means that an agency has gone 
forward with an undertaking to such an extent that the Council can not 
provide meaningful comments. A finding of foreclosure by the Council 
means that the Council has determined that the Federal agency has not 
fulfilled its section 106 responsibilities with regard to the 
undertaking. Such a finding does not trigger any specific action, but 
represents the opinion of the Council as the agency charged by statute 
with issuing the regulations that implement section 106.
    Section 800.9(c). This section reiterates the requirements of 
section 110(k) of the Act added in 1992. It also provides a process by 
which the Council will comment if the Federal agency decides that 
circumstances may justify granting the assistance. If after considering 
the comments, the Federal agency does decide to grant the assistance, 
then the Federal agency must comply with section 106 for any historic 
properties that still may be affected. This does not require 
duplication of consultation that may have already taken place with the 
Council in the course of addressing 110(k), but is intended to ensure 
that the agency has meaningful consultation with the Council as to 
mitigating adverse effects if the agency decides to proceed with 
approving the undertaking.
    Section 800.9(d). As the Council reduces its involvement in routine 
cases, it will be focusing its efforts more and more on agency programs 
and overall compliance with the section 106 process. The NHPA 
authorizes the Council to obtain information from Federal agencies and 
make recommendations on improving operation of the section 106 process. 
If the Council finds that an agency or a SHPO/THPO has not carried out 
its section 106 responsibilities properly, it may enter the section 106 
process on an individual case basis to make improvement. The Council 
may also review agency operations and performance and make specific 
recommendations for improvement under section 202(a)(6) of the Act.
    Section 800.10. This section provides a process for how Federal 
agencies must afford the Council a reasonable opportunity to comment on 
historic landmarks. It is largely unchanged from the process under 
previous regulations.
    Section 800.11. This section sets forth the requirements for 
documentation at various steps in the section 106 process. It makes 
documentation requirements clearer and promotes agency use of 
documentation prepared for other planning requirements.
    Section 800.11(a). The section allows for the phasing of 
documentation requirements when an agency is conducting phased 
identification and evaluation. The Council can advise on the resolution 
of disputes over adherence to documentation standards. However, the 
ultimate responsibility for compiling adequate documentation rests with 
the agency. During the consideration of any disputes over 
documentation, the process is not formally suspended. However, agencies 
should resolve significant disputes before going forward too far in the 
section 106 process in order to avoid subsequent delays.
    Section 800.11(b). This section allows for the use of documents 
prepared for NEPA or other agency planning processes to fulfill this 
provision as long as those documents meet the standards in this 
section.
    Section 800.11(c). This section is intended to protect the rights 
of private property owners with regard to proprietary information, and 
Indian

[[Page 77723]]

tribes and Native Hawaiian organizations with regard to properties to 
which they attach religious and cultural significance. This section 
emphasizes that the regulations are subject to any other Federal 
statutes which protect certain kinds of information from full public 
disclosure. The role of the Secretary and the process of consultation 
with the Council are based on the statutory requirements of section 304 
of the Act.
    Section 800.11(d)-(f). These sections specify the documentation 
standards for various findings or actions in the section 106 process. 
They are incrementally more detailed as the historic preservation 
issues become more substantial or complex. Each is intended to provide 
basic information so that a third-party reviewer can understand the 
basis for an agency's finding or proposed decision.
    Section 800.12. This section deals with emergency situations and 
generally follows the approach of previous regulations.
    Section 800.12(a). This section encourages Federal agencies to 
develop procedures describing how the Federal agency will take into 
account historic properties during certain emergency operations, 
including imminent threats to life or property. The nature of the 
consultation required in developing such procedures will vary, 
depending upon the extent of actions covered by the procedures. The 
procedures must be approved by the Council if they are to substitute 
for Subpart B.
    Section 800.12(b). If there are no agency procedures for taking 
historic properties into account during emergencies, then the Federal 
agency may either follow a previously-developed Programmatic Agreement 
or notify the Council, SHPO/THPO and, where appropriate, an Indian 
tribe or Native Hawaiian organization concerned with potentially 
affected resources. If possible, the Federal agency should provide 
these parties 7 days to comment.
    Section 800.12(c). This section permits a local government that has 
assumed section 106 responsibilities to use the provisions of 
Sec. 800.12(a) and (b). However, if the Council or an SHPO/THPO 
objects, the local government must follow the normal section 106 
process.
    Section 800.12(d). A Federal agency may use the provisions in 
Sec. 800.12 only for 30 days after an emergency or disaster has been 
declared, unless an extension is sought.
    Section 800.13. This section deals with resources discovered after 
section 106 review has been completed.
    Section 800.13(a). This section emphasizes the utility of 
developing Programmatic Agreements to deal with discoveries of historic 
properties which may occur during implementation of an undertaking. If 
there is no Programmatic Agreement to deal with discoveries, and the 
Agency Official determines that other historic properties are likely to 
be discovered, then a plan for how discoveries will be addressed must 
be included in a no adverse effect finding or a Memorandum of 
Agreement.
    Section 800.13(b)(1). This section states the procedures that must 
be followed when construction has not yet occurred or an undertaking 
has not yet been approved. Because a Federal agency has more 
flexibility at this stage, adherence to the consultative process as set 
forth in Sec. 800.6 is appropriate.
    Section 800.13(b)(2). This section provides that where an 
archeological site has been discovered and where the Agency Official, 
SHPO/THPO and any appropriate Indian tribe or Native Hawaiian 
organization agree that it is of value solely for the data that it 
contains, the Agency Official can comply with the Archeological and 
Historic Preservation Act instead of the procedures in this subpart.
    Section 800.13(b)(3). This section sets forth the procedures that 
must be followed when the undertaking has been approved and 
construction has commenced. Development of actions to resolve adverse 
effects and notification to the SHPO/THPO and the Council within 48 
hours of the discovery are required. Comments from those parties are 
encouraged and the agency must report the actions it ended up taking to 
deal with the discovery.
    Section 800.13(c). This section allows an agency to make an 
expedited field judgment regarding eligibility of properties discovered 
during construction.

Subpart C--Program Alternatives

    Section 800.14. This section lays out a variety of alternative 
methods for Federal agencies to meet their section 106 obligations. 
They allow agencies to tailor the section 106 process to their needs.
    Section 800.14(a). Alternate procedures are a major streamlining 
measure that allows tailoring of the section 106 process to Agency 
programs and decisionmaking processes. The procedures would substitute 
in whole or in part for the Council's section 106 regulations. As 
procedures, they would include formal Agency regulations, but would 
also include departmental or Agency procedures that do not go through 
the formal rulemaking process. Procedures must be developed in 
consultation with various parties as set forth in the regulations. The 
public must have an opportunity to comment on Alternate procedures. If 
the Council determines that they are consistent with its regulations, 
the alternate procedures may substitute for the Council's regulations. 
In reviewing alternate procedures for consistency, the Council will not 
require detailed adherence to every specific step of the process found 
under the Council's regulations. The Council, however, will look for 
procedures that afford historic properties consideration equivalent to 
that afforded by the Council's regulations and that meet the 
requirements of section 110(a)(2)(E) of the Act. If an Indian tribe has 
substituted its procedures for the Council's regulations pursuant to 
section 101(d)(5) of the NHPA, then the Federal agency must follow the 
agreement with the Council and the tribe's substitute regulations for 
undertakings on tribal lands.
    Section 800.14(b). This section retains the concept of Programmatic 
Agreements. The circumstances under which a Programmatic Agreement is 
appropriate are specified. The section places Programmatic Agreements 
into two general categories: those covering agency programs and those 
covering complex or multiple undertakings. The section on Agency 
programs makes clear that the President of NCSHPO must sign a 
nationwide agreement when NCSHPO has participated in the consultation. 
If a Programmatic Agreement concerns a particular region, then the 
signature of the affected SHPOs/THPOs is required. An individual SHPO/
THPO can terminate its participation in a regional Programmatic 
Agreement, but the agreement will remain in effect for the other states 
in the region. Only NCSHPO can terminate a nationwide Programmatic 
Agreement on behalf of the individual SHPOs. Language is included to 
recognize tribal sovereignty while providing flexibility to Federal 
agencies and tribes when developing Programmatic Agreements. While it 
does not prohibit the other parties from executing a Programmatic 
Agreement, the language does limit the effect of the agreement to non-
tribal lands unless the tribe executes it. However, the language also 
authorizes multiple Indian tribes to designate a representative tribe 
or tribal organization to participate in consultation and sign a 
Programmatic Agreement on their behalf. Requirements for public 
involvement and notice are included. The section on complex or multiple 
undertakings ties

[[Page 77724]]

back to Sec. 800.6 for the process of creating such programmatic 
agreements.
    Section 800.14(c). Exemptions are intended to remove from section 
106 compliance those undertakings that have foreseeable effects on 
historic properties which are likely to be minimal. Section 214 of the 
NHPA gives the Council the authority to allow for such exemptions. This 
section sets forth the criteria, drawn from the statute, for exemptions 
and a process for obtaining (and terminating) an exemption.
    Section 800.14(d). Standard treatments provide a streamlined 
process by which the Council can establish certain acceptable practices 
for dealing with a category of undertakings, effects, historic 
properties, or treatment options. A standard treatment may modify the 
application of the normal section 106 process under certain 
circumstances or simplify the steps or requirements of the regulations. 
This section sets forth the process for establishing a standard 
treatment and terminating it.
    Section 800.14(e). Program comments are intended to give the 
Council the flexibility to issue comments on a Federal program or class 
of undertakings rather than comment on such undertakings on a case-by-
case basis. This section sets forth the process for issuing such 
comments and withdrawing them. The Federal agency is obligated to 
consider, but not necessarily follow, the Council's comments. If it 
does not, the Council may withdraw the comment, in which case the 
agency continues to comply with section 106 on a case-by-case basis.
    Section 800.14(f). The requirement for consultation program 
alternatives with Indian tribes and Native Hawaiian organizations is 
provided for in this section. It is an overlay on each of the Federal 
program alternatives set forth in Sec. 800.14(a)-(e). It provides for 
government-to-government consultation with Indian tribes.
    Section 800.15. Tribal, State and Local Program Alternatives. This 
section is presently reserved for future use. The Council will proceed 
with the review of tribal applications for substitution of tribal 
regulations for the Council's section 106 regulations on tribal lands, 
pursuant to section 101(d)(5) of the Act, on the basis of informal 
procedures. With regard to State agreements, the Council will keep in 
effect any currently valid State agreements until revised procedures 
for State agreements take effect or until the agreement is otherwise 
terminated.
    Section 800.16. Definitions. This section includes new definitions 
to respond to identified needs for clarification and to reflect 
statutory amendments.
    The term ``Agency'' is defined for ease of reference. It tracks the 
statutory definition in the NHPA.
    The definition of ``approval of the expenditure of funds'' 
clarifies the intent of this statutory language as it appears in 
section 106 of the NHPA. This definition addresses the timing of 
section 106 compliance. A Federal agency must take into account the 
effects of its actions and provide the Council a reasonable opportunity 
to comment before the Agency decides to authorize funds, not just 
before the release of those funds. The intent of this provision is to 
emphasize the necessitate for compliance with section 106 early in the 
decision making process.
    The definition of ``area of potential effects'' acknowledges that 
the determination of the area potential effects often depends on the 
nature and scale of the undertaking and the associated effects.
    The definition of ``comment'' makes it clear that the term refers 
to the formal comments of the Council members.
    The definition of ``consultation'' describes the nature and goals 
of this critical aspect of the section 106 review process.
    The term ``day'' was defined to clarify the running of time 
periods.
    The term ``effect'' is defined because, even though the ``no 
effect'' step is not in the rule, the concept of an undertaking's 
effect is still a part of the ``historic properties affected'' 
determination.
    ``Foreclosure'' is a term that has always been a part of the 
section 106 process. The term describes the finding that is made by the 
Council when an Agency action precludes the Council from its reasonable 
opportunity to comment on an undertaking.
    The term ``head of the Agency'' is defined in light of the 1992 
amendments in section 110(l) that require that the head of an Agency 
document a decision where a Memorandum of Agreement has not been 
reached for an undertaking.
    ``Indian tribe'' is defined exactly as in section 301(4) of the 
NHPA.
    ``Native Hawaiian organization'' is defined exactly as in section 
301(17) of the NHPA.
    ``Tribal Historic Preservation Officer'' is the tribal official who 
has formally assumed the SHPO's responsibilities under section 
101(d)(2) of the NHPA.
    ``Tribal lands'' is defined exactly as in section 301(14) of the 
NHPA.
    ``Undertaking'' is defined exactly as in section 301(7) of the 
statute. The Agency Official is responsible, in accordance with 
Sec. 800.3(a), for making the determination as to whether a proposed 
Federal action is an undertaking. As appropriate, an agency should 
examine the nature of its Federal involvement taking into consideration 
factors such as the degree of Federal agency control or discretion; the 
type of Federal involvement or link to the action; and whether or not 
the action could move forward without Federal involvement. An agency 
should seek the advice of the Council when uncertain about whether or 
not its action falls within the definition of an undertaking. The 1986 
regulatory definition of undertaking included new and continuing 
projects, activities, or programs and any of their elements not 
previously considered under section 106. It is intended that the new 
definition includes such aspects of a project, activity, or program as 
undertakings.

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

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

V. Impact Analysis

The Regulatory Flexibility Act

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

[[Page 77725]]

course of a Federal agency's compliance with section 106 of the NHPA, 
must be considered and evaluated by that Federal agency.

The Paperwork Reduction Act

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

The National Environmental Policy Act

    In accordance with 36 CFR part 805, the Council initiated the NEPA 
compliance process for the Council's regulations implementing section 
106 of the NHPA prior to publication of the proposed rule in the 
Federal Register on September 13, 1996. On July 11, 2000, through a 
notice of availability on the Federal Register (65 FR 42850), the 
Council sought public comment on its Environmental Assessment and 
preliminary Finding of No Significant Impact. The Council has 
considered such comments, and has confirmed its finding of no 
significant impact on the human environment. A notice of availability 
of the Environmental Assessment and Finding of No Significant Impact 
has been published in the Federal Register.

Executive Orders 12866 and 12875

    The Council is exempt from compliance with Executive Order 12866 
pursuant to implementing guidance issued by the Office of Management 
and Budget's Office of Information and Regulatory Affairs in a 
memorandum dated October 12, 1993. The Council also is exempt from the 
documentation requirements of Executive Order 12875 pursuant to 
implementing guidance issued by the same OMB office in a memorandum 
dated January 11, 1994. The 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 do advise and assist Federal agencies, 
as appropriate, as part of their duties under section 101(b)(3)(E) of 
the NHPA, as a condition of their Federal grant assistance. In 
addition, in accordance with Executive Order 12875, the rule includes 
several flexible approaches to consideration of historic properties in 
Federal agency decision making, such as those under Sec. 800.14 of the 
rule. The 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 final 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 significant Federal 
intergovernmental mandate. The Council thus has no obligations under 
sections 202, 203, 204 and 205 of the Unfunded Mandates Reform Act.

Executive Order 12898

    The final 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. Guidance and training is being developed to assist public 
understanding and use of this rule.

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

    The Council has fully complied with this Memorandum. A Native 
American/Native Hawaiian representative has served on the Council. As 
better detailed in the preamble to the rule adopted in 1999, the 
Council has consulted at length with Tribes in developing the substance 
of what became the proposed rule in this rulemaking. The 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. The rule also enhances the Government-to-
Government intentions of the memorandum.

Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The Council will submit a report containing this rule 
and other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2). This rule will be 
effective January 11, 2001.

List of Subjects in 36 CFR Part 800

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

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

PART 800--PROTECTION OF HISTORIC PROPERTIES

Subpart A--Purposes and Participants
Sec.
800.1   Purposes.
800.2   Participants in the Section 106 process.
Subpart B--The Section 106 Process
800.3   Initiation of the section 106 process.
800.4   Identification of historic properties.
800.5   Assessment of adverse effects.
800.6   Resolution of adverse effects.
800.7   Failure to resolve adverse effects.
800.8   Coordination with the National Environmental Policy Act.
800.9   Council review of Section 106 compliance.
800.10   Special requirements for protecting National Historic 
Landmarks.
800.11   Documentation standards.
800.12   Emergency situations.
800.13   Post-review discoveries.
Subpart C--Program Alternatives
800.14   Federal agency program alternatives.
800.15   Tribal, State, and local program alternatives. [Reserved]
800.16   Definitions.
Appendix A to Part 800--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

[[Page 77726]]

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 responsibility for 
compliance with section 106 in accordance with Federal law.
    (1) Professional standards. Section 112(a)(1)(A) of the act 
requires each Federal agency responsible for the protection of historic 
resources, including archeological resources, to ensure that all 
actions taken by employees or contractors of the agency shall meet 
professional standards under regulations developed by the Secretary.
    (2) Lead Federal agency. If more than one Federal agency is 
involved in an undertaking, some or all the agencies may designate a 
lead Federal agency, which shall identify the appropriate official to 
serve as the agency official who shall act on their behalf, fulfilling 
their collective responsibilities under section 106. Those Federal 
agencies that do not designate a lead Federal agency remain 
individually responsible for their compliance with this part.
    (3) Use of contractors. Consistent with applicable conflict of 
interest laws, the agency official may use the services of applicants, 
consultants, or designees to prepare information, analyses and 
recommendations under this part. The agency official remains legally 
responsible for all required findings and determinations. If a document 
or study is prepared by a non-Federal party, the agency official is 
responsible for ensuring that its content meets applicable standards 
and guidelines.
    (4) Consultation. The agency official shall involve the consulting 
parties described in paragraph (c) of this section in findings and 
determinations made during the section 106 process. The agency official 
should plan consultations appropriate to the scale of the undertaking 
and the scope of Federal involvement and coordinated with other 
requirements of other statutes, as applicable, such as the National 
Environmental Policy Act, the Native American Graves Protection and 
Repatriation Act, the American Indian Religious Freedom Act, the 
Archeological Resources Protection Act, and agency-specific 
legislation. The Council encourages the agency official to use to the 
extent possible existing agency procedures and mechanisms to fulfill 
the consultation requirements of this part.
    (b) Council. The Council issues regulations to implement section 
106, provides guidance and advice on the application of the procedures 
in this part, and generally oversees the operation of the section 106 
process. The Council also consults with and comments to agency 
officials on individual undertakings and programs that affect historic 
properties.
    (1) Council entry into the section 106 process. When the Council 
determines that its involvement is necessary to ensure that the 
purposes of section 106 and the act are met, the Council may enter the 
section 106 process. Criteria guiding Council decisions to enter the 
section 106 process are found in appendix A to this part. The Council 
will document that the criteria have been met and notify the parties to 
the section 106 process as required by this part.
    (2) Council assistance. Participants in the section 106 process may 
seek advice, guidance and assistance from the Council on the 
application of this part to specific undertakings, including the 
resolution of disagreements, whether or not the Council is formally 
involved in the review of the undertaking. If questions arise regarding 
the conduct of the section 106 process, participants are encouraged to 
obtain the Council's advice on completing the process.
    (c) Consulting parties. The following parties have consultative 
roles in the section 106 process.
    (1) State historic preservation officer.
    (i) The State historic preservation officer (SHPO) reflects the 
interests of the State and its citizens in the preservation of their 
cultural heritage. In accordance with section 101(b)(3) of the act, the 
SHPO advises and assists Federal agencies in carrying out their section 
106 responsibilities and cooperates with such agencies, local 
governments and organizations and individuals to ensure that historic 
properties are taking into consideration at all levels of planning and 
development.
    (ii) If an Indian tribe has assumed the functions of the SHPO in 
the section 106 process for undertakings on tribal lands, the SHPO 
shall participate as a consulting party if the undertaking takes place 
on tribal lands but affects historic properties off tribal lands, if 
requested in accordance with Sec. 800.3(c)(1), or if the Indian tribe 
agrees to include the SHPO pursuant to Sec. 800.3(f)(3).
    (2) Indian tribes and Native Hawaiian organizations.
    (i) Consultation on tribal lands.

[[Page 77727]]

    (A) Tribal historic preservation officer. For a tribe that has 
assumed the responsibilities of the SHPO for section 106 on tribal 
lands under section 101(d)(2) of the act, the tribal historic 
preservation officer (THPO) appointed or designated in accordance with 
the act is the official representative for the purposes of section 106. 
The agency official shall consult with the THPO in lieu of the SHPO 
regarding undertakings occurring on or affecting historic properties on 
tribal lands.
    (B) Tribes that have not assumed SHPO functions. When an Indian 
tribe has not assumed the responsibilities of the SHPO for section 106 
on tribal lands under section 101(d)(2) of the act, the agency official 
shall consult with a representative designated by such Indian tribe in 
addition to the SHPO regarding undertakings occurring on or affecting 
historic properties on its tribal lands. Such Indian tribes have the 
same rights of consultation and concurrence that the THPOs are given 
throughout subpart B of this part, except that such consultations shall 
be in addition to and on the same basis as consultation with the SHPO.
    (ii) Consultation on historic properties of significance to Indian 
tribes and Native Hawaiian organizations. Section 101(d)(6)(B) of the 
act requires the agency official to consult with any Indian tribe or 
Native Hawaiian organization that attaches religious and cultural 
significance to historic properties that may be affected by an 
undertaking. This requirement applies regardless of the location of the 
historic property. Such Indian tribe or Native Hawaiian organization 
shall be a consulting party.
    (A) The agency official shall ensure that consultation in the 
section 106 process provides the Indian tribe or Native Hawaiian 
organization a reasonable opportunity to identify its concerns about 
historic properties, advise on the identification and evaluation of 
historic properties, including those of traditional religious and 
cultural importance, articulate its views on the undertaking's effects 
on such properties, and participate in the resolution of adverse 
effects. It is the responsibility of the agency official to make a 
reasonable and good faith effort to identify Indian tribes and Native 
Hawaiian organizations that shall be consulted in the section 106 
process. Consultation should commence early in the planning process, in 
order to identify and discuss relevant preservation issues and resolve 
concerns about the confidentiality of information on historic 
properties.
    (B) The Federal Government has a unique legal relationship with 
Indian tribes set forth in the Constitution of the United States, 
treaties, statutes, and court decisions. Consultation with Indian 
tribes should be conducted in a sensitive manner respectful of tribal 
sovereignty. Nothing in this part alters, amends, repeals, interprets, 
or modifies tribal sovereignty, any treaty rights, or other rights of 
an Indian tribe, or preempts, modifies, or limits the exercise of any 
such rights.
    (C) Consultation with an Indian tribe must recognize the 
government-to-government relationship between the Federal Government 
and Indian tribes. The agency official shall consult with 
representatives designated or identified by the tribal government or 
the governing body of a Native Hawaiian organization. Consultation with 
Indian tribes and Native Hawaiian organizations should be conducted in 
a manner sensitive to the concerns and needs of the Indian tribe or 
Native Hawaiian organization.
    (D) When Indian tribes and Native Hawaiian organizations attach 
religious and cultural significance to historic properties off tribal 
lands, section 101(d)(6)(B) of the act requires Federal agencies to 
consult with such Indian tribes and Native Hawaiian organizations in 
the section 106 process. Federal agencies should be aware that 
frequently historic properties of religious and cultural significance 
are located on ancestral, aboriginal, or ceded lands of Indian tribes 
and Native Hawaiian organizations and should consider that when 
complying with the procedures in this part.
    (E) An Indian tribe or a Native Hawaiian organization may enter 
into an agreement with an agency official that specifies how they will 
carry out responsibilities under this part, including concerns over the 
confidentiality of information. An agreement may cover all aspects of 
tribal participation in the section 106 process, provided that no 
modification may be made in the roles of other parties to the section 
106 process without their consent. An agreement may grant the Indian 
tribe or Native Hawaiian organization additional rights to participate 
or concur in agency decisions in the section 106 process beyond those 
specified in subpart B of this part. The agency official shall provide 
a copy of any such agreement to the Council and the appropriate SHPOs.
    (F) An Indian tribe that has not assumed the responsibilities of 
the SHPO for section 106 on tribal lands under section 101(d)(2) of the 
act may notify the agency official in writing that it is waiving its 
rights under Sec. 800.6(c)(1) to execute a memorandum of agreement.
    (3) Representatives of local governments. A representative of a 
local government with jurisdiction over the area in which the effects 
of an undertaking may occur is entitled to participate as a consulting 
party. Under other provisions of Federal law, the local government may 
be authorized to act as the agency official for purposes of section 
106.
    (4) Applicants for Federal assistance, permits, licenses, and other 
approvals. An applicant for Federal assistance or for a Federal permit, 
license, or other approval is entitled to participate as a consulting 
party as defined in this part. The agency official may authorize an 
applicant or group of applicants to initiate consultation with the 
SHPO/THPO and others, but remains legally responsible for all findings 
and determinations charged to the agency official. The agency official 
shall notify the SHPO/THPO when an applicant or group of applicants is 
so authorized. A Federal agency may authorize all applicants in a 
specific program pursuant to this section by providing notice to all 
SHPO/THPOs. Federal agencies that provide authorizations to applicants 
remain responsible for their government-to-government relationships 
with Indian tribes.
    (5) Additional consulting parties. Certain individuals and 
organizations with a demonstrated interest in the undertaking may 
participate as consulting parties due to the nature of their legal or 
economic relation to the undertaking or affected properties, or their 
concern with the undertaking's effects on historic properties.
    (d) The public.
    (1) Nature of involvement. The views of the public are essential to 
informed Federal decisionmaking in the section 106 process. The agency 
official shall seek and consider the views of the public in a manner 
that reflects the nature and complexity of the undertaking and its 
effects on historic properties, the likely interest of the public in 
the effects on historic properties, confidentiality concerns of private 
individuals and businesses, and the relationship of the Federal 
involvement to the undertaking.
    (2) Providing notice and information. The agency official must, 
except where appropriate to protect confidentiality concerns of 
affected parties, provide the public with information about an 
undertaking and its effects on historic properties and seek public 
comment and input. Members of the public may

[[Page 77728]]

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 is a type of 
activity that does not have the potential to cause effects on historic 
properties, assuming such historic properties were present, the agency 
official has no further obligations under section 106 or this part.
    (2) Program alternatives. If the review of the undertaking is 
governed by a Federal agency program alternative established under 
Sec. 800.14 or a programmatic agreement in existence before January 11, 
2001, the agency official shall follow the program alternative.
    (b) Coordinate with other reviews. The agency official should 
coordinate the steps of the section 106 process, as appropriate, with 
the overall planning schedule for the undertaking and with any reviews 
required under other authorities such as the National Environmental 
Policy Act, the Native American Graves Protection and Repatriation Act, 
the American Indian Religious Freedom Act, the Archeological Resources 
Protection Act, and agency-specific legislation, such as section 4(f) 
of the Department of Transportation Act. Where consistent with the 
procedures in this subpart, the agency official may use information 
developed for other reviews under Federal, State, or tribal law to meet 
the requirements of section 106.
    (c) Identify the appropriate SHPO and/or THPO. As part of its 
initial planning, the agency official shall determine the appropriate 
SHPO or SHPOs to be involved in the section 106 process. The agency 
official shall also determine whether the undertaking may occur on or 
affect historic properties on any tribal lands and, if so, whether a 
THPO has assumed the duties of the SHPO. The agency official shall then 
initiate consultation with the appropriate officer or officers.
    (1) Tribal assumption of SHPO responsibilities. Where an Indian 
tribe has assumed the section 106 responsibilities of the SHPO on 
tribal lands pursuant to section 101(d)(2) of the act, consultation for 
undertakings occurring on tribal land or for effects on tribal land is 
with the THPO for the Indian tribe in lieu of the SHPO. Section 
101(d)(2)(D)(iii) of the act authorizes owners of properties on tribal 
lands which are neither owned by a member of the tribe nor held in 
trust by the Secretary for the benefit of the tribe to request the SHPO 
to participate in the section 106 process in addition to the THPO.
    (2) Undertakings involving more than one State. If more than one 
State is involved in an undertaking, the involved SHPOs may agree to 
designate a lead SHPO to act on their behalf in the section 106 
process, including taking actions that would conclude the section 106 
process under this subpart.
    (3) Conducting consultation. The agency official should consult 
with the SHPO/THPO in a manner appropriate to the agency planning 
process for the undertaking and to the nature of the undertaking and 
its effects on historic properties.
    (4) Failure of the SHPO/THPO to respond. If the SHPO/THPO fails to 
respond within 30 days of receipt of a request for review of a finding 
or determination, the agency official may either proceed to the next 
step in the process based on the finding or determination or consult 
with the Council in lieu of the SHPO/THPO. If the SHPO/THPO re-enters 
the Section 106 process, the agency official shall continue the 
consultation without being required to reconsider previous findings or 
determinations.
    (d) Consultation on tribal lands. Where the Indian tribe has not 
assumed the responsibilities of the SHPO on tribal lands, consultation 
with the Indian tribe regarding undertakings occurring on such tribe's 
lands or effects on such tribal lands shall be in addition to and on 
the same basis as consultation with the SHPO. If the SHPO has withdrawn 
from the process, the agency official may complete the section 106 
process 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. In consultation with 
the SHPO/THPO, the agency official shall:
    (1) Determine and document the area of potential effects, as 
defined in Sec. 800.16(d);
    (2) Review existing information on historic properties within the 
area of potential effects, including any data

[[Page 77729]]

concerning possible historic properties not yet identified;
    (3) Seek information, as appropriate, from consulting parties, and 
other individuals and organizations likely to have knowledge of, or 
concerns with, historic properties in the area, and identify issues 
relating to the undertaking's potential effects on historic properties; 
and
    (4) Gather information from any Indian tribe or Native Hawaiian 
organization identified pursuant to Sec. 800.3(f) to assist in 
identifying properties, including those located off tribal lands, which 
may be of religious and cultural significance to them and may be 
eligible for the National Register, recognizing that an Indian tribe or 
Native Hawaiian organization may be reluctant to divulge specific 
information regarding the location, nature, and activities associated 
with such sites. The agency official should address concerns raised 
about confidentiality pursuant to Sec. 800.11(c).
    (b) Identify historic properties. Based on the information gathered 
under paragraph (a) of this section, and in consultation with the SHPO/
THPO and any Indian tribe or Native Hawaiian organization that might 
attach religious and cultural significance to properties within the 
area of potential effects, the agency official shall take the steps 
necessary to identify historic properties within the area of potential 
effects.
    (1) Level of effort. The agency official shall make a reasonable 
and good faith effort to carry out appropriate identification efforts, 
which may include background research, consultation, oral history 
interviews, sample field investigation, and field survey. The agency 
official shall take into account past planning, research and studies, 
the magnitude and nature of the undertaking and the degree of Federal 
involvement, the nature and extent of potential effects on historic 
properties, and the likely nature and location of historic properties 
within the area of potential effects. The Secretary's standards and 
guidelines for identification provide guidance on this subject. The 
agency official should also consider other applicable professional, 
State, tribal, and local laws, standards, and guidelines. The agency 
official shall take into account any confidentiality concerns raised by 
Indian tribes or Native Hawaiian organizations during the 
identification process.
    (2) Phased identification and evaluation. Where alternatives under 
consideration consist of corridors or large land areas, or where access 
to properties is restricted, the agency official may use a phased 
process to conduct identification and evaluation efforts. The agency 
official may also defer final identification and evaluation of historic 
properties if it is specifically provided for in a memorandum of 
agreement executed pursuant to Sec. 800.6, a programmatic agreement 
executed pursuant to Sec. 800.14(b), or the documents used by an agency 
official to comply with the National Environmental Policy Act pursuant 
to Sec. 800.8. The process should establish the likely presence of 
historic properties within the area of potential effects for each 
alternative or inaccessible area through background research, 
consultation and an appropriate level of field investigation, taking 
into account the number of alternatives under consideration, the 
magnitude of the undertaking and its likely effects, and the views of 
the SHPO/THPO and any other consulting parties. As specific aspects or 
locations of an alternative are refined or access is gained, the agency 
official shall proceed with the identification and evaluation of 
historic properties in accordance with paragraphs (b)(1) and (c) of 
this section.
    (c) Evaluate historic significance.
    (1) Apply National Register criteria. In consultation with the 
SHPO/THPO and any Indian tribe or Native Hawaiian organization that 
attaches religious and cultural significance to identified properties 
and guided by the Secretary's standards and guidelines for evaluation, 
the agency official shall apply the National Register criteria (36 CFR 
part 63) to properties identified within the area of potential effects 
that have not been previously evaluated for National Register 
eligibility. The passage of time, changing perceptions of significance, 
or incomplete prior evaluations may require the agency official to 
reevaluate properties previously determined eligible or ineligible. The 
agency official shall acknowledge that Indian tribes and Native 
Hawaiian organizations possess special expertise in assessing the 
eligibility of historic properties that may possess religious and 
cultural significance to them.
    (2) Determine whether a property is eligible. If the agency 
official determines any of the National Register criteria are met and 
the SHPO/THPO agrees, the property shall be considered eligible for the 
National Register for section 106 purposes. If the agency official 
determines the criteria are not met and the SHPO/THPO agrees, the 
property shall be considered not eligible. If the agency official and 
the SHPO/THPO do not agree, or if the Council or the Secretary so 
request, the agency official shall obtain a determination of 
eligibility from the Secretary pursuant to 36 CFR part 63. If an Indian 
tribe or Native Hawaiian organization that attaches religious and 
cultural significance to a property off tribal lands does not agree, it 
may ask the Council to request the agency official to obtain a 
determination of eligibility.
    (d) Results of identification and evaluation.
    (1) No historic properties affected. If the agency official finds 
that either there are no historic properties present or there are 
historic properties present but the undertaking will have no effect 
upon them as defined in Sec. 800.16(i), the agency official shall 
provide documentation of this finding, as set forth in Sec. 800.11(d), 
to the SHPO/THPO. The agency official shall notify all consulting 
parties, including Indian tribes and Native Hawaiian organizations, and 
make the documentation available 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

[[Page 77730]]

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 Sec. 800.5(c)(3), the agency official may proceed 
if the SHPO/THPO agrees with the finding. The agency official shall 
carry out the undertaking in accordance with Sec. 800.5(d)(1). Failure 
of the SHPO/THPO to respond within 30 days from receipt of the finding 
shall be considered agreement of the SHPO/THPO with the finding.
    (2) Disagreement with finding.
    (i) If the SHPO/THPO or any consulting party disagrees within the 
30-day review period, it shall specify the reasons for disagreeing with 
the finding. The agency official shall either consult with the party to 
resolve the disagreement, or request the Council to review the finding 
pursuant to paragraph (c)(3) of this section.
    (ii) The agency official should seek the concurrence of any Indian 
tribe or Native Hawaiian organization that has made known to the agency 
official that it attaches religious and cultural significance to a 
historic property subject to the finding. If such Indian tribe or 
Native Hawaiian organization disagrees with the finding, it may within 
the 30-day review period specify the reasons for disagreeing with the 
finding and request the Council to review the finding pursuant to 
paragraph (c)(3) of this section.
    (iii) If the Council on its own initiative so requests within the 
30-day review period, the agency official shall submit the finding, 
along with the documentation specified in Sec. 800.11(e), for review 
pursuant to paragraph (c)(3) of this section. A Council decision to 
make such a request shall be guided by the criteria in appendix A to 
this part.
    (3) Council review of findings. When a finding is submitted to the 
Council pursuant to paragraph (c)(2) of this section, the agency 
official shall include the documentation specified in Sec. 800.11(e). 
The Council shall review the finding and notify the agency official of 
its determination as to whether the adverse effect criteria have been 
correctly applied within 15 days of receiving the documented finding 
from the agency official. The Council shall specify the basis for its 
determination. The agency official shall proceed in accordance with the 
Council's determination. If the Council does not respond within 15 days 
of receipt of the finding, the agency official may assume concurrence 
with the agency official's findings and proceed accordingly.
    (d) Results of assessment.
    (1) No adverse effect. The agency official shall maintain a record 
of the finding and provide information on the finding to the public on 
request, consistent with the confidentiality provisions of 
Sec. 800.11(c). Implementation of the undertaking in accordance with 
the finding as documented fulfills the agency official's 
responsibilities under section 106 and this part. If the agency 
official will not conduct the undertaking as proposed in the finding, 
the agency official shall reopen consultation under paragraph (a) of 
this section.
    (2) Adverse effect. If an adverse effect is found, the agency 
official shall consult further to resolve the adverse effect pursuant 
to Sec. 800.6.


Sec. 800.6  Resolution of adverse effects.

    (a) Continue consultation. The agency official shall consult with 
the SHPO/THPO and other consulting parties, including Indian tribes and 
Native Hawaiian organizations, to develop and evaluate alternatives or 
modifications to the undertaking that could avoid, minimize, or 
mitigate adverse effects on historic properties.
    (1) Notify the Council and determine Council participation. The 
agency official shall notify the Council of the adverse effect finding 
by providing the documentation specified in Sec. 800.11(e).
    (i) The notice shall invite the Council to participate in the 
consultation when:
    (A) The agency official wants the Council to participate;
    (B) The undertaking has an adverse effect upon a National Historic 
Landmark; or
    (C) A programmatic agreement under Sec. 800.14(b) will be prepared;
    (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

[[Page 77731]]

is conducted in accordance with paragraph (b)(2) of this section.
    (iv) If the Council does not join the consultation, the agency 
official shall proceed with consultation in accordance with paragraph 
(b)(1) of this section.
    (2) Involve consulting parties. In addition to the consulting 
parties identified under Sec. 800.3(f), the agency official, the SHPO/
THPO and the Council, if participating, may agree to invite other 
individuals or organizations to become consulting parties. The agency 
official shall invite any individual or organization that will assume a 
specific role or responsibility in a memorandum of agreement to 
participate as a consulting party.
    (3) Provide documentation. The agency official shall provide to all 
consulting parties the documentation specified in Sec. 800.11(e), 
subject to the confidentiality provisions of Sec. 800.11(c), and such 
other documentation as may be developed during the consultation to 
resolve adverse effects.
    (4) Involve the public. The agency official shall make information 
available to the public, including the documentation specified in 
Sec. 800.11(e), subject to the confidentiality provisions of 
Sec. 800.11(c). The agency official shall provide an opportunity for 
members of the public to express their views on resolving adverse 
effects of the undertaking. The agency official should use appropriate 
mechanisms, taking into account the magnitude of the undertaking and 
the nature of its effects upon historic properties, the likely effects 
on historic properties, and the relationship of the Federal involvement 
to the undertaking to ensure that the public's views are considered in 
the consultation. The agency official should also consider the extent 
of notice and information concerning historic preservation issues 
afforded the public at earlier steps in the section 106 process to 
determine the appropriate level of public involvement when resolving 
adverse effects so that the standards of Sec. 800.2(d) are met.
    (5) Restrictions on disclosure of information. Section 304 of the 
act and other authorities may limit the disclosure of information under 
paragraphs (a)(3) and (a)(4) of this section. If an Indian tribe or 
Native Hawaiian organization objects to the disclosure of information 
or if the agency official believes that there are other reasons to 
withhold information, the agency official shall comply with 
Sec. 800.11(c) regarding the disclosure of such information.
    (b) Resolve adverse effects.
    (1) Resolution without the Council.
    (i) The agency official shall consult with the SHPO/THPO and other 
consulting parties to seek ways to avoid, minimize or mitigate the 
adverse effects.
    (ii) The agency official may use standard treatments established by 
the Council under Sec. 800.14(d) as a basis for a memorandum of 
agreement.
    (iii) If the Council decides to join the consultation, the agency 
official shall follow paragraph (b)(2) of this section.
    (iv) If the agency official and the SHPO/THPO agree on how the 
adverse effects will be resolved, they shall execute a memorandum of 
agreement. The agency official must submit a copy of the executed 
memorandum of agreement, along with the documentation specified in 
Sec. 800.11(f), to the Council prior to approving the undertaking in 
order to meet the requirements of section 106 and this subpart.
    (v) If the agency official, and the SHPO/THPO fail to agree on the 
terms of a memorandum of agreement, the agency official shall request 
the Council to join the consultation and provide the Council with the 
documentation set forth in Sec. 800.11(g). If the Council decides to 
join the consultation, the agency official shall proceed in accordance 
with paragraph (b)(2) of this section. If the Council decides not to 
join the consultation, the Council will notify the agency and proceed 
to comment in accordance with Sec. 800.7(c).
    (2) Resolution with Council participation. If the Council decides 
to participate in the consultation, the agency official shall consult 
with the SHPO/THPO, the Council, and other consulting parties, 
including Indian tribes and Native Hawaiian organizations under 
Sec. 800.2(c)(3), to seek ways to avoid, minimize or mitigate the 
adverse effects. If the agency official, the SHPO/THPO, and the Council 
agree on how the adverse effects will be resolved, they shall execute a 
memorandum of agreement.
    (c) Memorandum of agreement. A memorandum of agreement executed and 
implemented pursuant to this section evidences the agency official's 
compliance with section 106 and this part and shall govern the 
undertaking and all of its parts. The agency official shall ensure that 
the undertaking is carried out in accordance with the memorandum of 
agreement.
    (1) Signatories. The signatories have sole authority to execute, 
amend or terminate the agreement in accordance with this subpart.
    (i) The agency official and the SHPO/THPO are the signatories to a 
memorandum of agreement executed pursuant to paragraph (b)(1) of this 
section.
    (ii) The agency official, the SHPO/THPO, and the Council are the 
signatories to a memorandum of agreement executed pursuant to paragraph 
(b)(2) of this section.
    (iii) The agency official and the Council are signatories to a 
memorandum of agreement executed pursuant to Sec. 800.7(a)(2).
    (2) Invited signatories.
    (i) The agency official may invite additional parties to be 
signatories to a memorandum of agreement. Any such party that signs the 
memorandum of agreement shall have the same rights with regard to 
seeking amendment or termination of the memorandum of agreement as 
other signatories.
    (ii) The agency official may invite an Indian tribe or Native 
Hawaiian organization that attaches religious and cultural significance 
to historic properties located off tribal lands to be a signatory to a 
memorandum of agreement concerning such properties.
    (iii) The agency official should invite any party that assumes a 
responsibility under a memorandum of agreement to be a signatory.
    (iv) The refusal of any party invited to become a signatory to a 
memorandum of agreement pursuant to paragraph (c)(2) of this section 
does not invalidate the memorandum of agreement.
    (3) Concurrence by others. The agency official may invite all 
consulting parties to concur in the memorandum of agreement. The 
signatories may agree to invite others to concur. The refusal of any 
party invited to concur in the memorandum of agreement does not 
invalidate the memorandum of agreement.
    (4) Reports on implementation. Where the signatories agree it is 
appropriate, a memorandum of agreement shall include a provision for 
monitoring and reporting on its implementation.
    (5) Duration. A memorandum of agreement shall include provisions 
for termination and for reconsideration of terms if the undertaking has 
not been implemented within a specified time.
    (6) Discoveries. Where the signatories agree it is appropriate, a 
memorandum of agreement shall include provisions to deal with the 
subsequent discovery or identification of additional historic 
properties affected by the undertaking.
    (7) Amendments. The signatories to a memorandum of agreement may 
amend it. If the Council was not a signatory to the original agreement 
and the signatories execute an amended agreement, the agency official 
shall file it with the Council.

[[Page 77732]]

    (8) Termination. If any signatory determines that the terms of a 
memorandum of agreement cannot be or are not being carried out, the 
signatories shall consult to seek amendment of the agreement. If the 
agreement is not amended, any signatory may terminate it. The agency 
official shall either execute a memorandum of agreement with 
signatories under paragraph (c)(1) of this section or request the 
comments of the Council under Sec. 800.7(a).
    (9) Copies. The agency official shall provide each consulting party 
with a copy of any memorandum of agreement executed pursuant to this 
subpart.


Sec. 800.7  Failure to resolve adverse effects.

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


Sec. 800.8  Coordination With the National Environmental Policy Act.

    (a) General principles.
    (1) Early coordination. Federal agencies are encouraged to 
coordinate compliance with section 106 and the procedures in this part 
with any steps taken to meet the requirements of the National 
Environmental Policy Act (NEPA). Agencies 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

[[Page 77733]]

consideration of project alternatives in the NEPA process and the 
effort is commensurate with the assessment of other environmental 
factors;
    (iii) Consult regarding the effects of the undertaking on historic 
properties with the SHPO/THPO, Indian tribes, and Native Hawaiian 
organizations that might attach religious and cultural significance to 
affected historic properties, other consulting parties, and the 
Council, where appropriate, during NEPA scoping, environmental 
analysis, and the preparation of NEPA documents;
    (iv) Involve the public in accordance with the agency's published 
NEPA procedures; and (v) Develop in consultation with identified 
consulting parties alternatives and proposed measures that might avoid, 
minimize or mitigate any adverse effects of the undertaking on historic 
properties and describe them in the EA or DEIS.
    (2) Review of environmental documents.
    (i) The agency official shall submit the EA, DEIS, or EIS to the 
SHPO/THPO, Indian tribes, and Native Hawaiian organizations that might 
attach religious and cultural significance to affected historic 
properties, and other consulting parties prior to or when making the 
document available for public comment. If the document being prepared 
is a DEIS or EIS, the agency official shall also submit it to the 
Council.
    (ii) Prior to or within the time allowed for public comment on the 
document, a SHPO/THPO, an Indian tribe or Native Hawaiian organization, 
another consulting party or the Council may object to the agency 
official that preparation of the EA, DEIS, or EIS has not met the 
standards set forth in paragraph (c)(1) of this section or that the 
substantive resolution of the effects on historic properties proposed 
in an EA, DEIS, or EIS is inadequate. If the agency official receives 
such an objection, the agency official shall refer the matter to the 
Council.
    (3) Resolution of objections. Within 30 days of the agency 
official's referral of an objection under paragraph (c)(2)(ii) of this 
section, the Council shall notify the agency official either that it 
agrees with the objection, in which case the agency official shall 
enter into consultation in accordance with Sec. 800.6(b)(2) or seek 
Council comments in accordance with Sec. 800.7(a), or that it disagrees 
with the objection, in which case the agency official shall continue 
its compliance with this section. Failure of the Council to respond 
within the 30 day period shall be considered disagreement with the 
objection.
    (4) Approval of the undertaking. If the agency official has found, 
during the preparation of an EA or EIS that the effects of an 
undertaking on historic properties are adverse, the agency official 
shall develop measures in the EA, DEIS, or EIS to avoid, minimize, or 
mitigate such effects in accordance with paragraph (c)(1)(v) of this 
section. The agency official's responsibilities under section 106 and 
the procedures in this subpart shall then be satisfied when either:
    (i) A binding commitment to such proposed measures is incorporated 
in:
    (A) The ROD, if such measures were proposed in a DEIS or EIS; or
    (B) An MOA drafted in compliance with Sec. 800.6(c); or
    (ii) The Council has commented under Sec. 800.7 and received the 
agency's response to such comments.
    (5) Modification of the undertaking. If the undertaking is modified 
after approval of the FONSI or the ROD in a manner that changes the 
undertaking or alters its effects on historic properties, or if the 
agency official fails to ensure that the measures to avoid, minimize or 
mitigate adverse effects (as specified in either the FONSI or the ROD, 
or in the binding commitment adopted pursuant to paragraph (c)(4) of 
this section) are carried out, the agency official shall notify the 
Council and all consulting parties that supplemental environmental 
documents will be prepared in compliance with NEPA or that the 
procedures in Secs. 800.3 through 800.6 will be followed as necessary.


Sec. 800.9  Council review of section 106 compliance.

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

[[Page 77734]]

    (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 process in this part, the Council may participate in 
individual case reviews conducted under such process in addition to the 
SHPO/THPO for such period that it determines is necessary to improve 
performance or correct deficiencies. If the Council finds a pattern of 
failure by a Federal agency in carrying out its responsibilities under 
section 106, the Council may review the policies and programs of the 
agency related to historic preservation pursuant to section 202(a)(6) 
of the act and recommend methods to improve the effectiveness, 
coordination, and consistency of those policies and programs with 
section 106.


Sec. 800.10  Special requirements for protecting National Historic 
Landmarks.

    (a) Statutory requirement. Section 110(f) of the act requires that 
the agency official, to the maximum extent possible, undertake such 
planning and actions as may be necessary to minimize harm to any 
National Historic 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 under the procedures in 
this subpart is supported by sufficient documentation to enable any 
reviewing parties to understand its basis. The agency official shall 
provide such documentation to the extent permitted by law and within 
available funds. When an agency official is conducting phased 
identification or evaluation under this subpart, the documentation 
standards regarding description of historic properties may be applied 
flexibly. If the Council, or the SHPO/THPO when the Council is not 
involved, determines the applicable documentation standards are not 
met, the Council or the SHPO/THPO, as appropriate, shall notify the 
agency official and specify the information needed to meet the 
standard. At the request of the agency official or any of the 
consulting parties, the Council shall review any disputes over whether 
documentation standards are met and provide its views to the agency 
official and the consulting parties.
    (b) Format. The agency official may use documentation prepared to 
comply with other laws to fulfill the requirements of the procedures in 
this subpart, if that documentation meets the standards of this 
section.
    (c) Confidentiality.
    (1) Authority to withhold information. Section 304 of the act 
provides that the head of a Federal agency or other public official 
receiving grant assistance pursuant to the act, after consultation with 
the Secretary, shall withhold from public disclosure information about 
the location, character, or ownership of a historic property when 
disclosure may cause a significant invasion of privacy; risk harm to 
the historic property; or impede the use of a traditional religious 
site by practitioners. When the head of a Federal agency or other 
public official has determined that information should be withheld from 
the public pursuant to these criteria, the Secretary, in consultation 
with such Federal agency head or official, shall determine who may have 
access to the information for the purposes of carrying out the act.
    (2) Consultation with the Council. When the information in question 
has been developed in the course of an agency's compliance with this 
part, the Secretary shall consult with the Council in reaching 
determinations on the withholding and release of information. The 
Federal agency shall provide the Council with available information, 
including views of the SHPO/THPO, Indian tribes and Native Hawaiian 
organizations, related to the confidentiality concern. The Council 
shall advise the Secretary and the Federal agency within 30 days of 
receipt of adequate documentation.
    (3) Other authorities affecting confidentiality. Other Federal laws 
and program requirements may limit public access to information 
concerning an undertaking and its effects on historic properties. Where 
applicable, those authorities shall govern public access to information 
developed in the section 106 process and may authorize the agency 
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;

[[Page 77735]]

    (3) A description of the affected historic properties, including 
information on the characteristics that qualify them for the National 
Register;
    (4) A description of the undertaking's effects on historic 
properties;
    (5) An explanation of why the criteria of adverse effect were found 
applicable or inapplicable, including any conditions or future actions 
to avoid, minimize or mitigate adverse effects; and
    (6) Copies or summaries of any views provided by consulting parties 
and the public.
    (f) Memorandum of agreement. When a memorandum of agreement is 
filed with the Council, the documentation shall include, any 
substantive revisions or additions to the documentation provided the 
Council pursuant to Sec. 800.6(a)(1), an evaluation of any measures 
considered to avoid or minimize the undertaking's adverse effects and a 
summary of the views of consulting parties and the public.
    (g) Requests for comment without a memorandum of agreement. 
Documentation shall include:
    (1) A description and evaluation of any alternatives or mitigation 
measures that the agency official proposes to resolve the undertaking's 
adverse effects;
    (2) A description of any reasonable alternatives or mitigation 
measures that were considered but not chosen, and the reasons for their 
rejection;
    (3) Copies or summaries of any views submitted to the agency 
official concerning the adverse effects of the undertaking on historic 
properties and alternatives to reduce or avoid those effects; and
    (4) Any substantive revisions or additions to the documentation 
provided the Council pursuant to Sec. 800.6(a)(1).


Sec. 800.12  Emergency situations.

    (a) Agency procedures. The agency official, in consultation with 
the appropriate SHPOs/THPOs, affected Indian tribes and Native Hawaiian 
organizations, and the Council, is encouraged to develop procedures for 
taking historic properties into account during operations which respond 
to a disaster or emergency declared by the President, a tribal 
government, or the Governor of a State or which respond to other 
immediate threats to life or property. If approved by the Council, the 
procedures shall govern the agency's historic preservation 
responsibilities during any disaster or emergency in lieu of 
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 Council, the SHPO/THPO and the Indian tribe 
or Native Hawaiian organization and invite any comments within the time 
available.
    (c) Local governments responsible for section 106 compliance. When 
a local government official serves as the agency official for section 
106 compliance, paragraphs (a) and (b) of this section also apply to an 
imminent threat to public health or safety as a result of a natural 
disaster or emergency declared by a local government's chief executive 
officer or legislative body, provided that if the Council or SHPO/THPO 
objects to the proposed action within seven days, the agency official 
shall comply with 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 archeological 
data, the agency official may comply with the Archeological and 
Historic Preservation Act instead of the procedures in this part and 
provide the Council, the SHPO/THPO, and the Indian tribe or Native 
Hawaiian organization with a report on the actions within a reasonable 
time after they are completed; or
    (3) If the agency official has approved the undertaking and 
construction has commenced, determine actions that the agency official 
can take to resolve adverse effects, and notify the SHPO/THPO, any 
Indian tribe or Native Hawaiian organization that might attach 
religious and cultural significance to the affected property, and the 
Council within 48 hours of the discovery. The notification shall 
describe the agency official's assessment of National Register 
eligibility of the property and proposed actions to resolve the adverse 
effects. The SHPO/THPO, the Indian tribe or Native Hawaiian 
organization and the Council shall respond within 48 hours of the 
notification. The agency official shall take into account their 
recommendations regarding National

[[Page 77736]]

Register eligibility and proposed actions, and then carry out 
appropriate actions. The agency official shall provide the SHPO/THPO, 
the Indian tribe or Native Hawaiian organization and the Council a 
report of the actions when they are completed.
    (c) Eligibility of properties. The agency official, in consultation 
with the SHPO/THPO, may assume a newly-discovered property to be 
eligible for the National Register for purposes of section 106. The 
agency official shall specify the National Register criteria used to 
assume the property's eligibility so that information can be used in 
the resolution of adverse effects.
    (d) Discoveries on tribal lands. If historic properties are 
discovered on tribal lands, or there are unanticipated effects on 
historic properties found on tribal lands, after the agency official 
has completed the section 106 process without establishing a process 
under paragraph (a) of this section and construction has commenced, the 
agency official shall comply with applicable tribal regulations and 
procedures and obtain the concurrence of the Indian tribe on the 
proposed action.

Subpart C--Program Alternatives


Sec. 800.14  Federal agency program alternatives.

    (a) Alternate procedures. An agency official may develop procedures 
to implement section 106 and substitute them for all or part of subpart 
B of this part if they are consistent with the Council's regulations 
pursuant to section 110(a)(2)(E) of the act.
    (1) Development of procedures. The agency official shall consult 
with the Council, the National Conference of State Historic 
Preservation Officers, or individual SHPO/THPOs, as appropriate, and 
Indian tribes and Native Hawaiian organizations, as specified in 
paragraph (f) of this section, in the development of alternate 
procedures, publish notice of the availability of proposed alternate 
procedures in the Federal Register and take other appropriate steps to 
seek public input during the development of alternate procedures.
    (2) Council review. The agency official shall submit the proposed 
alternate procedures to the Council for a 60-day review period. If the 
Council finds the procedures to be consistent with this part, it shall 
notify the agency official and the agency official may adopt them as 
final alternate procedures.
    (3) Notice. The agency official shall notify the parties with which 
it has consulted and publish notice of final alternate procedures in 
the Federal Register.
    (4) Legal effect. Alternate procedures adopted pursuant to this 
subpart substitute for the Council's regulations for the purposes of 
the agency's compliance with section 106, except that where an Indian 
tribe has entered into an agreement with the Council to substitute 
tribal historic preservation regulations for the Council's regulations 
under section 101(d)(5) of the act, the agency shall follow those 
regulations in lieu of the agency's procedures regarding undertakings 
on tribal lands. Prior to the Council entering into such agreements, 
the Council will provide Federal agencies notice and opportunity to 
comment on the proposed substitute tribal regulations.
    (b) Programmatic agreements. The Council and the agency official 
may negotiate a programmatic agreement to govern the implementation of 
a particular program or the resolution of adverse effects from certain 
complex project situations or multiple undertakings.
    (1) Use of programmatic agreements. A programmatic agreement may be 
used:
    (i) When effects on historic properties are similar and repetitive 
or are multi-State or regional in scope;
    (ii) When effects on historic properties cannot be fully determined 
prior to approval of an undertaking;
    (iii) When nonfederal parties are delegated major decisionmaking 
responsibilities;
    (iv) Where routine management activities are undertaken at Federal 
installations, facilities, or other land-management units; or
    (v) Where other circumstances warrant a departure from the normal 
section 106 process.
    (2) Developing programmatic agreements for agency programs.
    (i) The consultation shall involve, as appropriate, SHPO/THPOs, the 
National Conference of State Historic Preservation Officers (NCSHPO), 
Indian tribes and Native Hawaiian organizations, other Federal 
agencies, and members of the public. If the programmatic agreement has 
the potential to affect historic properties on tribal lands or historic 
properties of religious and cultural significance to an Indian tribe or 
Native Hawaiian organization, the agency official shall also follow 
paragraph (f) of this section.
    (ii) Public participation. The agency official shall arrange for 
public participation appropriate to the subject matter and the scope of 
the program and in accordance with subpart A of this part. The agency 
official shall consider the nature of the program and its likely 
effects on historic properties and take steps to involve the 
individuals, organizations and entities likely to be interested.
    (iii) Effect. The programmatic agreement shall take effect when 
executed by the Council, the agency official and the appropriate SHPOs/
THPOs when the programmatic agreement concerns a specific region or the 
president of NCSHPO when NCSHPO has participated in the consultation. A 
programmatic agreement shall take effect on tribal lands only when the 
THPO, Indian tribe, or a designated representative of the tribe is a 
signatory to the agreement. Compliance with the procedures established 
by an approved programmatic agreement satisfies the agency's section 
106 responsibilities for all individual undertakings of the program 
covered by the agreement until it expires or is terminated by the 
agency, the president of NCSHPO when a signatory, or the Council. 
Termination by an individual SHPO/THPO shall only terminate the 
application of a regional programmatic agreement within the 
jurisdiction of the SHPO/THPO. If a THPO assumes the responsibilities 
of a SHPO pursuant to section 101(d)(2) of the act and the SHPO is 
signatory to programmatic agreement, the THPO assumes the role of a 
signatory, including the right to terminate a regional programmatic 
agreement on lands under the jurisdiction of the tribe.
    (iv) Notice. The agency official shall notify the parties with 
which it has consulted that a programmatic agreement has been executed 
under paragraph (b) of this section, provide appropriate public notice 
before it takes effect, and make any internal agency procedures 
implementing the agreement readily available to the Council, SHPO/
THPOs, and the public.
    (v) If the Council determines that the terms of a programmatic 
agreement are not being carried out, or if such an agreement is 
terminated, the agency official shall comply with subpart B of this 
part with regard to individual undertakings of the program covered by 
the agreement.
    (3) Developing programmatic agreements for complex or multiple 
undertakings. Consultation to develop a programmatic agreement for 
dealing with the potential adverse effects of complex projects or 
multiple undertakings shall follow Sec. 800.6. If consultation pertains 
to an activity involving multiple undertakings and the parties fail to 
reach agreement, then the agency official shall comply with the

[[Page 77737]]

provisions of subpart B of this part for each individual undertaking.
    (4) Prototype programmatic agreements. The Council may designate an 
agreement document as a prototype programmatic agreement that may be 
used for the same type of program or undertaking in more than one case 
or area. When an agency official uses such a prototype programmatic 
agreement, the agency official may develop and execute the agreement 
with the appropriate SHPO/THPO and the agreement shall become final 
without need for Council participation in consultation or Council 
signature.
    (c) Exempted categories.
    (1) Criteria for establishing. An agency official may propose a 
program or category of agency undertakings that may be exempted from 
review under the provisions of subpart B of this part, if the program 
or category meets the following criteria:
    (i) The actions within the program or category would otherwise 
qualify as ``undertakings'' as defined in Sec. 800.16;
    (ii) The potential effects of the undertakings within the program 
or category upon historic properties are foreseeable and likely to be 
minimal or not adverse; and
    (iii) Exemption of the program or category is consistent with the 
purposes of the act.
    (2) Public participation. The agency official shall arrange for 
public participation appropriate to the subject matter and the scope of 
the exemption and in accordance with the standards in subpart A of this 
part. The agency official shall consider the nature of the exemption 
and its likely effects on historic properties and take steps to involve 
individuals, organizations and entities likely to be interested.
    (3) Consultation with SHPOs/THPOs. The agency official shall notify 
and consider the views of the SHPOs/THPOs on the exemption.
    (4) Consultation with Indian tribes and Native Hawaiian 
organizations. If the exempted program or category of undertakings has 
the potential to affect historic properties on tribal lands or historic 
properties of religious and cultural significance to an Indian tribe or 
Native Hawaiian organization, the Council shall follow the requirements 
for the agency official set forth in paragraph (f) of this section.
    (5) Council review of proposed exemptions. The Council shall review 
a request for an exemption that is supported by documentation 
describing the program or category for which the exemption is sought, 
demonstrating that the criteria of paragraph (c)(1) of this section 
have been met, describing the methods used to seek the views of the 
public, and summarizing any views submitted by the SHPO/THPOs, the 
public, and any others consulted. Unless it requests further 
information, the Council shall approve or reject the proposed exemption 
within 30 days of receipt, and thereafter notify the agency official 
and SHPO/THPOs of the decision. The decision shall be based on the 
consistency of the exemption with the purposes of the act, taking into 
consideration the magnitude of the exempted undertaking or program and 
the likelihood of impairment of historic properties in accordance with 
section 214 of the act.
    (6) Legal consequences. Any undertaking that falls within an 
approved exempted program or category shall require no further review 
pursuant to subpart B of this part, unless the agency official or the 
Council determines that there are circumstances under which the 
normally excluded undertaking should be reviewed under subpart B of 
this part.
    (7) Termination. The Council may terminate an exemption at the 
request of the agency official or when the Council determines that the 
exemption no longer meets the criteria of paragraph (c)(1) of this 
section. The Council shall notify the agency official 30 days before 
termination becomes effective.
    (8) Notice. The agency official shall publish notice of any 
approved exemption in the Federal Register.
    (d) Standard treatments.
    (1) Establishment. The Council, on its own initiative or at the 
request of another party, may establish standard methods for the 
treatment of a category of historic properties, a category of 
undertakings, or a category of effects on historic properties to assist 
Federal agencies in satisfying the requirements of subpart B of this 
part. The Council shall publish notice of standard treatments in the 
Federal Register.
    (2) Public participation. The Council shall arrange for public 
participation appropriate to the subject matter and the scope of the 
standard treatment and consistent with subpart A of this part. The 
Council shall consider the nature of the standard treatment and its 
likely effects on historic properties and the individuals, 
organizations and entities likely to be interested. Where an agency 
official has proposed a standard treatment, the Council may request the 
agency official to arrange for public involvement.
    (3) Consultation with SHPOs/THPOs. The Council shall notify and 
consider the views of SHPOs/THPOs on the proposed standard treatment.
    (4) Consultation with Indian tribes and Native Hawaiian 
organizations. If the proposed standard treatment has the potential to 
affect historic properties on tribal lands or historic properties of 
religious and cultural significance to an Indian tribe or Native 
Hawaiian organization, the Council shall follow the requirements for 
the agency official set forth in paragraph (f) of this section.
    (5) Termination. The Council may terminate a standard treatment by 
publication of a notice in the Federal Register 30 days before the 
termination takes effect.
    (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 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

[[Page 77738]]

Register of the Council's comments and steps the agency will take to 
ensure that effects to historic properties are taken into account.
    (ii) If the Council declines to comment, the agency official shall 
continue to comply with the requirements of Secs. 800.3 through 800.6 
for the individual undertakings.
    (6) Withdrawal of comment. If the Council determines that the 
consideration of historic properties is not being carried out in a 
manner consistent with the program comment, the Council may withdraw 
the comment and the agency official shall comply with the requirements 
of Secs. 800.3 through 800.6 for the individual undertakings.
    (f) Consultation with Indian tribes and Native Hawaiian 
organizations when developing program alternatives. Whenever an agency 
official proposes a program alternative pursuant to paragraphs (a) 
through (e) of this section, the agency official shall ensure that 
development of the program alternative includes appropriate government-
to-government consultation with affected Indian tribes and consultation 
with affected Native Hawaiian organizations.
    (1) Identifying affected Indian tribes and Native Hawaiian 
organizations. If any undertaking covered by a proposed program 
alternative has the potential to affect historic properties on tribal 
lands, the agency official shall identify and consult with the Indian 
tribes having jurisdiction over such lands. If a proposed program 
alternative has the potential to affect historic properties of 
religious and cultural significance to an Indian tribe or a Native 
Hawaiian organization which are located off tribal lands, the agency 
official shall identify those Indian tribes and Native Hawaiian 
organizations that might attach religious and cultural significance to 
such properties and consult with them. When a proposed program 
alternative has nationwide applicability, the agency official shall 
identify an appropriate government to government consultation with 
Indian tribes and consult with Native Hawaiian organizations in 
accordance with existing Executive orders, Presidential memoranda, and 
applicable provisions of law.
    (2) Results of consultation. The agency official shall provide 
summaries of the views, along with copies of any written comments, 
provided by affected Indian 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 
alterations in the character or use of historic properties, if any such 
properties exist. The area of potential effects is influenced by the 
scale and nature of an undertaking and may be different for different 
kinds of effects caused by the undertaking.
    (e) Comment means the findings and recommendations of the Council 
formally provided in writing to the head of a Federal agency under 
section 106.
    (f) Consultation means the process of seeking, discussing, and 
considering the views of other participants, and, where feasible, 
seeking agreement with them regarding matters arising in the section 
106 process. The Secretary's ``Standards and Guidelines for Federal 
Agency Preservation Programs pursuant to the National Historic 
Preservation Act'' provide further guidance on consultation.
    (g) Council means the Advisory Council on Historic Preservation or 
a Council member or employee designated to act for the Council.
    (h) Day or days means calendar days.
    (i) Effect means alteration to the characteristics of a historic 
property qualifying it for inclusion in or eligibility for the National 
Register.
    (j) Foreclosure means an action taken by an agency official that 
effectively precludes the Council from providing comments which the 
agency official can meaningfully consider prior to the approval of the 
undertaking.
    (k) Head of the agency means the chief official of the Federal 
agency responsible for all aspects of the agency's actions. If a State, 
local, or tribal government has assumed or has been delegated 
responsibility for section 106 compliance, the head of that unit of 
government shall be considered the head of the agency.
    (l)(1) Historic property means any prehistoric or historic 
district, site, building, structure, or object included in, or eligible 
for inclusion in, the National Register of Historic Places maintained 
by the Secretary of the Interior. This term includes artifacts, 
records, and remains that are related to and located within such 
properties. The term includes properties of traditional religious and 
cultural importance to an Indian tribe or Native Hawaiian organization 
and that meet the National Register criteria.
    (2) The term eligible for inclusion in the National Register 
includes both properties formally determined as such in accordance with 
regulations of the Secretary of the Interior and all other properties 
that meet the National Register criteria.
    (m) Indian tribe means an Indian tribe, band, nation, or other 
organized group or community, including a native village, regional 
corporation, or village corporation, as those terms are defined in 
section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602), 
which is recognized as eligible for the special programs and services 
provided by the United States to Indians because of their status as 
Indians.
    (n) Local government means a city, county, parish, township, 
municipality, borough, or other general purpose political subdivision 
of a State.
    (o) Memorandum of agreement means the document that records the 
terms and conditions agreed upon to resolve the adverse effects of an 
undertaking upon historic properties.
    (p) National Historic Landmark means a historic property that the 
Secretary of the Interior has designated a National Historic Landmark.
    (q) National Register means the National Register of Historic 
Places maintained by the Secretary of the Interior.
    (r) National Register criteria means the criteria established by 
the Secretary of the Interior for use in evaluating the eligibility of 
properties for the National Register (36 CFR part 60).
    (s)(1) Native Hawaiian organization means any organization which 
serves and represents the interests of Native Hawaiians; has as a 
primary and stated purpose the provision of services to Native 
Hawaiians; and has demonstrated expertise in aspects of historic 
preservation that are significant to Native Hawaiians.
    (2) Native Hawaiian means any individual who is a descendant of the 
aboriginal people who, prior to 1778, occupied and exercised 
sovereignty in the area that now constitutes the State of Hawaii.
    (t) Programmatic agreement means a document that records the terms 
and

[[Page 77739]]

conditions agreed upon to resolve the potential adverse effects of a 
Federal agency program, complex undertaking or other situations in 
accordance with Sec. 800.14(b).
    (u) Secretary means the Secretary of the Interior acting through 
the Director of the National Park Service except where otherwise 
specified.
    (v) State Historic Preservation Officer (SHPO) means the official 
appointed or designated pursuant to section 101(b)(1) of the act to 
administer the State historic preservation program or a representative 
designated to act for the State historic preservation officer.
    (w) Tribal Historic Preservation Officer (THPO) means the tribal 
official appointed by the tribe's chief governing authority or 
designated by a tribal ordinance or preservation program who has 
assumed the responsibilities of the SHPO for purposes of section 106 
compliance on tribal lands in accordance with section 101(d)(2) of the 
act.
    (x) Tribal lands means all lands within the exterior boundaries of 
any Indian reservation and all dependent Indian communities.
    (y) Undertaking means a project, activity, or program funded in 
whole or in part under the direct or indirect jurisdiction of a Federal 
agency, including those carried out by or on behalf of a Federal 
agency; those carried out with Federal financial assistance; those 
requiring a Federal permit, license or approval; and those subject to 
State or local regulation administered pursuant to a delegation or 
approval by a Federal agency.

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

    (a) Introduction. This appendix sets forth the criteria that 
will be used by the Council to determine whether to enter an 
individual section 106 review that it normally would not be involved 
in.
    (b) General policy. The Council may choose to exercise its 
authorities under the section 106 regulations to participate in an 
individual project pursuant to the following criteria. However, the 
Council will not always elect to participate even though one or more 
of the criteria may be met.
    (c) Specific criteria. The Council is likely to enter the 
section 106 process at the steps specified in the regulations in 
this part when an undertaking:
    (1) Has substantial impacts on important historic properties. 
This may include adverse effects on properties that possess a 
national level of significance or on properties that are of unusual 
or noteworthy importance or are a rare property type; or adverse 
effects to large numbers of historic properties, such as impacts to 
multiple properties within a historic district.
    (2) Presents important questions of policy or interpretation. 
This may include questions about how the Council's regulations are 
being applied or interpreted, including possible foreclosure or 
anticipatory demolition situations; situations where the outcome 
will set a precedent affecting Council policies or program goals; or 
the development of programmatic agreements that alter the way the 
section 106 process is applied to a group or type of undertakings.
    (3) Has the potential for presenting procedural problems. This 
may include cases with substantial public controversy that is 
related to historic preservation issues; with disputes among or 
about consulting parties which the Council's involvement could help 
resolve; that are involved or likely to be involved in litigation on 
the basis of section 106; or carried out by a Federal agency, in a 
State or locality, or on tribal lands where the Council has 
previously identified problems with section 106 compliance pursuant 
to Sec. 800.9(d)(2).
    (4) Presents issues of concern to Indian tribes or Native 
Hawaiian organizations. This may include cases where there have been 
concerns 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: December 4th, 2000.
John M. Fowler,
Executive Director.
[FR Doc. 00-31253 Filed 12-11-00; 8:45 am]
BILLING CODE 4310-10-P