[Federal Register Volume 69, Number 74 (Friday, April 16, 2004)]
[Notices]
[Pages 20576-20588]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8681]


 ========================================================================
 Notices
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains documents other than rules 
 or proposed rules that are applicable to the public. Notices of hearings 
 and investigations, committee meetings, agency decisions and rulings, 
 delegations of authority, filing of petitions and applications and agency 
 statements of organization and functions are examples of documents 
 appearing in this section.
 
 ========================================================================
 

  Federal Register / Vol. 69, No. 74 / Friday, April 16, 2004 / 
Notices  

[[Page 20576]]



ADVISORY COUNCIL ON HISTORIC PRESERVATION


Amendments to the Army Alternate Procedures

AGENCY: Advisory Council on Historic Preservation.

ACTION: Notice of approval of amendments to the Army Alternate 
Procedures.

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

SUMMARY: On March 25, 2004, the Advisory Council on Historic 
Preservation approved technical and administrative amendments to the 
Army Alternate Procedures. Those Army Alternate Procedures set forth a 
process that Army installations can follow in order to meet their 
historic preservation review responsibilities under the National 
Historic Preservation Act. The main purposes of the amendments are to 
conform the Alternate Procedures to the Army's internal reorganization, 
and clarify its exemption regarding designated surface danger zones.

DATES: The amendments to the Army Alternate Procedures went into effect 
on March 25, 2004.

FOR FURTHER INFORMATION CONTACT: Mr. David Berwick, Army Program 
Manager, Advisory Council on Historic Preservation, 1100 Pennsylvania 
Avenue, NW., Suite 809, Washington, DC 20004. [email protected].

SUPPLEMENTARY INFORMATION: Section 106 of the National Historic 
Preservation Act, 16 U.S.C. 470f, requires Federal agencies to consider 
the effects of undertakings on historic properties and provide the 
Advisory Council on Historic Preservation (ACHP) a reasonable 
opportunity to comment with regard to such undertakings. The ACHP has 
issued the regulations that set forth the process through which Federal 
agencies comply with these duties. The regulations are codified under 
36 CFR part 800 (``Section 106 regulations'').
    The section 106 regulations, under 36 CFR 800.14(a), provide that 
an agency may develop procedures to implement section 106 and 
substitute them for subpart B as long as they are consistent with the 
section 106 regulations.

I. Background

    On July 13, 2001, the ACHP approved the Army Alternate Procedures 
(AAP). These were subsequently adopted by the Army and published in the 
Federal Register on March 6, 2002. For further general background on 
the AAP as originally adopted, please refer to that Federal Register 
notice (67 FR 10138).
    Since then, the Army has internally reorganized in a way that 
directly affects the implementation of the AAP. This reorganization 
required revisions of the AAP to reflect the new management structure 
adopted by the Army. Without changes to the AAP, it would be difficult 
for the Army to implement the procedures as originally adopted. 
Furthermore, continued use of the AAP, as originally published, would 
create confusion with consulting parties who wish to contact Army 
personnel concerning AAP implementation, since the roles of Army staff 
have changed. Other technical amendments were also needed to clarify 
certain aspects of the AAP.
    Therefore, pursuant to section 7.1(d) of the AAP, the Chairman of 
the ACHP approved the technical and administrative amendments to the 
AAP outlined below. These amendments went into effect on March 25, 
2004.

II. Summary of Amendments

    This section summarizes the changes made to the AAP.
    The name ``Army Alternate Procedures to 36 CFR Part 800'' has been 
changed to ``Army Alternate Procedures for Historic Properties'' to 
more easily identify these procedures with the Army's historic 
preservation requirements.
    With the Army's new Installation Management Agency (IMA) structure, 
the responsibility for implementing the AAP has shifted from the 
installation commander to the garrison commander. As a result, all 
references to installation commander in the AAP have been changed to 
reflect this new structure. Likewise, IMA now assumes the roles and 
responsibilities given in the AAP to the major commands (MACOMs). 
Reference to MACOMs has been changed to reflect the new structure. 
Internal coordination, from garrison commanders, through the IMA, 
National Guard Bureau or applicable MACOM to the Assistant Chief of 
Staff for Installation Management has been clarified.
    Reference to AR 200-4 (a Cultural Resources Management policy of 
the Army) has been replaced with the more general term ``Army policy.'' 
AR 200-4 is scheduled to be incorporated into AR 200-1; however, this 
has not been completed at this time.
    The more cumbersome phrasing of ``commanders electing to comply 
with'' has been simplified by saying ``commanders complying with.'' 
Since the AAP clearly states that following its process (as opposed to 
the one outlined in subpart B of the Section 106 regulations) is 
optional, it was not necessary to reiterate this optional nature 
throughout the AAP.
    The following specific changes have been made to the AAP and are 
referenced here by the sections in which these changes can be found.
    Section 1.1(e) (Application): In the previously published version 
of the AAP, this section was a fairly lengthy discussion of the 
optional features of the AAP. This section has been shortened and more 
clearly states that the authority to operate, or not operate, under the 
AAP rests with the Army.
    Section 1.6 (Participants): This section was substantially changed 
to reflect the new Army structure. As explained above, the IMA, as the 
Army's installation management agency, is now responsible for ensuring 
that garrison commanders have identified and programmed the resources 
necessary to meet the installation's responsibilities under the AAP. 
The Assistant Chief of Staff for Installation Management (ACSIM) will 
not only be reviewing an installation's Historic Properties Component 
(HPC) but will endorse it before it is sent back to the installation. 
These changes will provide more consistency in application throughout 
the Army and will assist the ACHP and Army Headquarters in fulfilling 
program review responsibilities outlined in section 7.1 of the AAP.
    Section 4.5 (Exempted Undertakings): This section adds an example 
to the exemption regarding ``military activities in existing designated 
surface danger zones'' (subsection (a)(3)(iv)) to clarify

[[Page 20577]]

that surface danger zones are only exempt where there is imminent 
threat to human health and safety, such as in dudded impact areas where 
unexploded ordnance exists.

III. Text of AAP as Amended

    What follows is the full text of the AAP as amended (copies of the 
amended AAP can also be found on the ACHP Web site at www.achp.gov/army.html):

Army Alternate Procedures for Historic Properties

Table of Contents

Protection of Army Historic Properties
Section 1.0 Introduction
    1.1 Purpose and Introduction
    1.2 Methods of Complying with Section 106 of the Act
    1.3 Authority
    1.4 Scope
    1.5 Definitions
    1.6 Participants
Section 2.0 Applicability of Procedures
    2.1 Installation Determination
Section 3.0 Program Elements for Participating in the Army Alternate 
Procedures
    3.1 Designation of a Cultural Resource Manager and Coordinator 
for Native American Affairs
    3.2 Professional Standards for the Development of the HPC
    3.3 Identification of Consulting Parties for HPC Development
    3.4 Consultation and Coordination for HPC Development
    3.5 HPC Development
Section 4.0 Program Review and Certification
    4.1 Army Program Review
    4.2 Consulting Party and Public Review
    4.3 Council Review and Certification
    4.4 Effect of Certification
    4.5 Exempt Undertakings
Section 5.0 Amendment and Recertification
    5.1 Plan Amendment
    5.2 Recertification
Section 6.0 Administrative Remedies
    6.1 Evaluation of Council Determinations
    6.2 Evaluation of HPC Implementation
Section 7.0 Council Review of Army Section 106 Compliance
    7.1 Council Review of Army Alternate Procedures
    7.2 Council Review of Installation Compliance Appendix
A: Acronyms

Section 1.0: Introduction

1.1 Purpose and Introduction

    (a) Purpose. Section 106 of the National Historic Preservation Act 
(Act) requires Federal agencies to take into account the effects of 
their undertakings on historic properties and afford the Advisory 
Council on Historic Preservation (Council) a reasonable opportunity to 
comment on such undertakings. The section 106 process seeks to 
accommodate historic preservation concerns with the needs of Federal 
undertakings through consultation between the Army, and consulting 
parties and the public. The purposes of these alternate procedures are 
to provide for more efficient, consistent and comprehensive Army 
compliance with the goals and mandates of section 106 of the Act, to 
encourage more thoughtful consideration and early planning for historic 
properties, and to better support the Army's ability to accomplish its 
national defense mission. These alternate procedures further these 
purposes by establishing a proactive planning and management approach 
that stands in place of the formal project-by-project review process 
prescribed by the Council's regulations at 36 CFR part 800. The 
approach set forth in these alternate procedures relies on the Army's 
existing internal planning, funding and decision making processes.
    (b) Relation to other provisions of the Act. Section 106 is related 
to other provisions of the Act designed to further the national policy 
on historic preservation. References to those related provisions are 
included in these procedures to identify circumstances where actions 
may be affected by the independent obligations of those other 
provisions.
    (c) Relation to internal Army Regulations. Internal agency policy 
sets forth the Army's requirements for complying with the Act, the 
Archeological Resources Protection Act (ARPA), the Native American 
Graves Protection and Repatriation Act (NAGPRA), the American Indian 
Religious Freedom Act (AIRFA), Indian Sacred Sites under Executive 
Order 13007 (Indian Sacred Sites), Executive Order 13175, (Consultation 
and Coordination with Indian Tribal Governments), and 36 CFR part 79 
(Curation of Federally-Owned and Administered Archaeological 
Collections). The Army requires all installations (other than those 
receiving a variance) to prepare an Integrated Cultural Resource 
Management Plan (ICRMP). The ICRMP integrates the entirety of the 
installation cultural resources program with the ongoing military 
mission, allows identification of potential conflicts between the 
installation's mission and cultural resources, and identifies actions 
necessary to meet statutory and regulatory requirements.
    (d) These procedures utilize to the maximum extent possible 
existing internal Army program requirements to meet section 106 
requirements. Each ICRMP developed by an installation shall have a 
Historic Properties Component (HPC) to ensure compliance with section 
106 of the Act on a programmatic, as opposed to project-by-project, 
basis. Individual installations shall coordinate with internal staff 
elements, consult with consulting parties, and, where appropriate, 
consider the views of the public, on development of the HPC to ensure 
that the HPC includes adequate procedures for identification, 
evaluation, and treatment of historic properties over the five-year 
ICRMP planning period. Installations shall substantially involve 
consulting parties on development of the HPC, not the entire ICRMP, 
since other components of the ICRMP involve management of cultural 
resources beyond the statutory and regulatory authority and 
jurisdiction of consulting parties. Neither these procedures nor a 
certified HPC relieves the Army of its responsibilities to comply with 
other cultural resources laws such as NAGPRA and ARPA.
    (e) Application. These alternate procedures recognize that certain 
installations may be operating under the review procedures in 36 CFR 
part 800. Application of these alternate procedures and the authority 
to revert to operation under 36 CFR part 800 rests with the Army.
    (f) Role of consulting parties. These alternate procedures promote 
early and effective participation of State Historic Preservation 
Officers (SHPOs), Tribal Historic Preservation Officers (THPOs), 
Federally recognized Indian Tribes, and Native Hawaiian organizations 
in Army planning and management of historic properties. These 
consulting parties play a regulatory role in development of and 
signature on the HPC. Once the HPC has been finalized, SHPOs, THPOs, 
Federally recognized Indian Tribes, and Native Hawaiian organizations 
will have continued opportunities to participate in implementation by 
reviewing and monitoring installation compliance and providing 
expertise concerning identification, evaluation, and management of 
historic properties. These alternate procedures establish minimum 
requirements for compliance. Installations are encouraged to tailor 
their planning documents to their particular needs, and, where 
appropriate, supplement these minimum requirements.
    (g) Role of the public. The public includes national, regional, or 
local organizations and individuals with an interest in historic 
preservation, and local governments when not participating as 
consulting parties. Public views are important to a fully

[[Page 20578]]

informed decision making process under these procedures. The process 
established by the National Environmental Policy Act (NEPA), as 
implemented by the regulations published by the Council on 
Environmental Quality and Army Regulation 200-2 ``Environmental Effects 
of Army Actions'' (AR 200-2) is designed to ensure meaningful public 
participation in Federal agency decision making. Installation 
commanders will use the NEPA process to the greatest extent practicable 
to provide for public participation under these procedures for 
installation activities.
    (h) Nothing in these procedures changes any rights reserved to any 
Indian Tribe by treaty or otherwise granted to any Indian Tribe, Native 
Hawaiian organization, or to their members by Federal law, including 
Statute, regulation or Executive Order. These procedures are designed 
to ensure that the Army fully meets its responsibilities to consult 
with Federally recognized Indian Tribes and Native Hawaiian 
organizations when Army activities may affect historic properties of 
traditional religious and cultural importance to them.
1.2 Methods of Complying With Section 106 of the Act
    (a) Each installation complying with section 106 of the Act through 
these procedures in lieu of 36 CFR part 800 will develop a Draft HPC, 
in consultation with consulting parties, and request certification of 
its HPC from the Council. Once certified, an installation shall comply 
with section 106 of the Act through implementation of its HPC for a 
five-year period.
    (b) Prior to HPC certification, installations shall continue to 
comply with section 106 of the Act by reviewing undertakings pursuant 
to 36 CFR part 800.
    (c) Installations that do not comply with section 106 of the Act 
through these procedures shall continue to comply with section 106 of 
the Act by following 36 CFR part 800.
    (d) Where the Army proposes to conduct any undertaking on Tribal 
land where a Federally recognized Indian Tribe has developed Tribal 
historic preservation regulations pursuant to section 101(d)(5) of the 
Act, and those regulations operate in place of review under 36 CFR part 
800, the Army shall follow those Tribal historic preservation 
regulations prior to approving and while conducting the undertaking.
1.3 Authority
    (a) These procedures are promulgated pursuant to section 
110(a)(2)(E) of the Act (16 U.S.C. 470h-2) which directs Federal 
agencies to develop procedures for implementing section 106 of the Act, 
and 36 CFR 800.14(a) which authorizes Federal agencies, in consultation 
with the Council, to develop alternative procedures to implement the 
section 106 process, that, after Council concurrence, substitute for 
the regulations set forth in 36 CFR part 800. The Council retains final 
authority to determine whether the Army's alternate procedures are 
consistent with 36 CFR part 800.
1.4 Scope
    (a) These procedures apply to all levels of the Active Army, the 
Army National Guard, the U.S. Army Reserve, including all installations 
and activities under the control of the Army by ownership, lease, 
license, public land withdrawal, or, any similar instrument, where the 
Agency Official elects to comply with these procedures in lieu of 36 
CFR part 800. All of the above shall be referred to in these procedures 
as the Army, unless otherwise noted.
    (b) These procedures do not apply to the Civil Works functions of 
the U.S. Army Corps of Engineers.
    (c) These procedures shall not apply to installations or activities 
where the Garrison commander has elected, pursuant to section 2.1, to 
continue to comply with section 106 of the Act through the process set 
forth under 36 CFR part 800.
1.5 Definitions
    Act means the National Historic Preservation Act of 1966, as 
amended (16 U.S.C. 470 et seq.).
    Adverse effects are those effects of an undertaking that may alter, 
directly or indirectly, any of the characteristics of a historic 
property that qualify the property for inclusion on the National 
Register of Historic Places (National Register) in a manner that would 
diminish the integrity of the property's location, design, setting, 
materials, workmanship, feeling, or association. The criteria of 
adverse effect also require consideration of all qualifying 
characteristics of a historic property, including those that may have 
been identified subsequent to the original evaluation of the property's 
eligibility for the National Register. Adverse effects may include 
reasonably foreseeable effects caused by the undertaking that may occur 
later in time, be farther removed in distance or be cumulative.
    Agency Official is the Army official with jurisdiction over an 
undertaking as set forth in section 1.6(a).
    Area of potential effects (APE) means the geographic area or areas 
within which an undertaking may directly or indirectly cause changes in 
the character or use of historic properties, if any such properties 
exist. The area of potential effects is influenced by the scale and 
nature of an undertaking and may be different for different kinds of 
effects caused by the undertaking.
    Army means Active Army, Army National Guard, U.S. Army Reserve, and 
all installations and activities as described in section 1.4.
    Comment, when used in relation to the Council, means the findings 
and recommendations of the Council formally provided in writing to the 
Secretary of the Army under section 106 of the Act.
    Consulting parties are those parties that have a consultative role 
in the section 106 process; these parties are the SHPO, the THPO, 
Federally recognized Indian Tribes, Native Hawaiian organizations, 
representatives of local governments, and applicants for Federal 
permits, licenses, assistance or other forms of Federal approval. 
Members of the public may participate as consulting parties upon the 
invitation of the Garrison commander.
    Consultation means the formal process of seeking, discussing, 
identifying and considering the views of consulting parties. For 
purposes of these procedures, consultation with Federally recognized 
Indian Tribes means consultation on a government-to-government basis as 
defined below.
    Coordination, for the purposes of these procedures, means the 
informal communication and exchange of information and ideas between 
consulting parties concerning historic preservation issues affecting 
the Army. Coordination is intended to be an informal process, on a 
staff-to-staff basis, for routine management issues as distinguished 
from the formal consultation and tribal consultation processes as 
defined by these procedures.
    Council means the Advisory Council on Historic Preservation or a 
Council member or employee designated to act for the Council.
    Day or days means calendar days.
    Effect means alteration to the characteristics of an historic 
property that qualify it for inclusion in or make it eligible for 
inclusion in the National Register.
    Federally recognized Indian Tribe, for the purposes of these 
procedures, means: (i) an Indian or Alaska Native Tribe, band, nation, 
pueblo, village or community within the continental United States 
presently acknowledged

[[Page 20579]]

by the Secretary of the Interior to exist as an Indian Tribe pursuant 
to the Federally Recognized Indian Tribe List Act, Public Law 103-454; 
and (ii) Regional Corporations or Village Corporations, as those terms 
are defined in section 3 of the Alaskan Native Claims Settlement Act 
(43 U.S.C. 1602), which are recognized as eligible for the special 
programs and services provided by the United States to Indians because 
of their status as Indians.
    Government-to-government relations, for the purposes of these 
procedures, means relations formally established between the Army and 
Federally recognized Indian Tribes through their respective 
governmental structures. In recognition of a Federally recognized 
Indian Tribe's status as a sovereign nation, formal government-to-
government relations are established and maintained directly between 
Garrison commanders and the heads of Tribal governments. Garrison 
commanders initiate government-to-government relations with Federally 
recognized Indian Tribes by means of formal, written communication to 
the heads of Tribal governments. Such letters should designate an 
installation official who is authorized to conduct follow-on 
consultations with the Tribe's designated representative. Garrison 
commanders are encouraged to meet face-to-face with the heads of Tribal 
governments as part of the process to initiate government-to-government 
consultation. Any final decisions on installation HPCs that have been 
the subject of government-to-government consultation will be formally 
transmitted from the Garrison commander to the head of the Tribal 
government.
    Historic preservation or preservation includes identification, 
evaluation, recordation, documentation, curation, acquisition, 
protection, management, rehabilitation, restoration, stabilization, 
maintenance, research, interpretation, conservation, and education and 
training regarding the foregoing activities or any combination of the 
foregoing activities.
    Historic property means any prehistoric or historic district, site, 
building, structure, or object included in, or eligible for inclusion 
in, the National Register maintained by the Secretary of the Interior. 
The term includes artifacts, records, and remains that are related to 
and located within such properties. The term includes historic 
properties of traditional religious and cultural importance to a 
Federally recognized Indian Tribe or Native Hawaiian organization. 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.
    Historic Properties Component (HPC) means, in accordance with these 
procedures, that portion of the ICRMP which relates directly to the 
implementation of section 106 of the Act. The HPC is a five-year plan 
that provides for installation identification, evaluation, assessment 
of effects, treatment, and management of historic properties, including 
those of traditional religious and cultural importance to a Federally 
recognized Indian Tribe or Native Hawaiian organization. The HPC is the 
basis upon which an installation's program is evaluated for 
certification for purposes of these procedures. While the HPC remains a 
component of the ICRMP, it stands alone as a legal compliance document 
under these procedures.
    Installation means a grouping of facilities located in the same 
vicinity, which are under control of the Army and used by Army 
organizations. This includes land and improvements. In addition to 
those used primarily by soldiers, the term ``installation'' applies to 
real properties such as depots, arsenals, ammunition plants (both 
contractor and government operated), hospitals, terminals, and other 
special mission installations. The term may also be applied to a state 
or a region in which the Army maintains facilities. For example, the 
Army National Guard may consider National Guard facilities within a 
state to be one installation and the U.S. Army Reserve may consider 
Regional Support Centers to be installations. Under these procedures, a 
subinstallation may be certified individually or as part of its support 
installation.
    Integrated Cultural Resources Management Plan (ICRMP) is a five-
year plan developed and implemented by a Garrison commander to provide 
for the management of cultural resources in a way that maximizes 
beneficial effects on such resources and minimizes adverse effects and 
impacts without impeding the mission of the Army.
    National Historic Landmark (NHL) means a historic property that the 
Secretary of the Interior has designated a National Historic Landmark 
pursuant to the Historic Sites Act of 1935, Public Law 100-17.
    National Register means the National Register of Historic Places 
maintained by the Secretary of the Interior.
    National Register Criteria means the criteria established by the 
Secretary of the Interior for use in evaluating the eligibility of 
properties for the National Register (36 CFR part 60).
    Native Hawaiian 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.
    Native Hawaiian organization means any organization which (1) 
serves and represents the interests of Native Hawaiians, (2) has as a 
primary and stated purpose the provision of services to Native 
Hawaiians, and (3) has demonstrated expertise in aspects of historic 
preservation that are significant to Native Hawaiians. Such 
organizations include the Office of Hawaiian Affairs and Hui Malama I 
Na Kupuna 'O Hawai'i Nei.
    NEPA process means the decision making process established by the 
National Environmental Policy Act as implemented by the regulations 
published by the Council on Environmental Quality and AR 200-2. The 
NEPA process involves preparation of a NEPA document, either a Record 
of Environmental Consideration, an Environmental Assessment (EA) or an 
Environmental Impact Statement (EIS), followed by a decision document. 
An EA results in either a Finding of No Significant Impact or Notice of 
Intent to prepare an EIS. An EIS results in a Record of Decision.
    Professional standards means, for the purposes of these procedures, 
those standards set forth in the Secretary of Interior's Standards and 
Guidelines for Archeology and Historic Preservation (48 FR 44716), 
which apply to individuals conducting technical work for the Army. 
Tribal members and Native Hawaiians are uniquely qualified to identify 
and assist in the evaluation, assessment of effect, and treatment of 
historic properties to which they attach traditional religious and 
cultural importance. When the Army requests assistance from Federally 
recognized Indian Tribes and Native Hawaiian organizations to aid in 
the identification, evaluation, assessment of effects and treatment of 
historic properties of traditional religious and cultural importance, 
such Tribal members and Native Hawaiians need not meet the Secretary of 
Interior's Professional Qualifications Standards (48 FR 44738-44739).
    Review and monitoring means an informal process in which an 
installation shall coordinate with consulting parties to discuss 
proposed undertakings for the upcoming year, results of plan 
implementation during the previous year, the overall

[[Page 20580]]

effectiveness of the installation's HPC, and the need for making 
amendments to it. At a minimum, this review and monitoring shall be 
conducted annually.
    Sovereign or sovereignty, with respect to Federally recognized 
Indian Tribes means the exercise of inherent sovereign powers over 
their members and territories.
    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.
    Surface Danger Zone means the area designated on the ground of a 
training complex (to include associated safety areas) for the vertical 
and lateral containment of projectiles, fragments, debris, and 
components resulting from the firing or detonation of weapon systems to 
include exploded and unexploded ordnance.
    Tribal consultation means seeking, discussing, identifying and 
considering Tribal views through good faith dialogue with Federally 
recognized Indian Tribes on a government-to-government basis in 
recognition of the unique relationship between Federal and Tribal 
governments and the status of Federally recognized Indian Tribes as 
sovereign nations (see government-to-government relations). The Tribal 
Historic Preservation Officer (THPO) serves as the Tribal official for 
government-to-government consultation for undertakings affecting 
historic properties off Tribal lands only where the Tribal government 
has designated the THPO as the Tribe's designated representative 
responsible for carrying out such functions.
    Tribal Historic Preservation Officer (THPO) means the Tribal 
official, appointed by the head of the Tribal government or as 
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.
    Tribal lands mean all lands within the exterior boundaries of any 
Indian reservation and all dependent Indian communities.
    Undertaking means a project, activity, or program that is funded in 
whole or in part under the direct or indirect jurisdiction of the Army, 
including those carried out by or on behalf of the Army, those carried 
out in whole or in part with Army funds, and those requiring Army 
approval.
1.6 Participants
    (a) Army.
    (1) The Army Agency Official with jurisdiction over an undertaking 
takes legal and financial responsibility for section 106 compliance 
either through implementing these alternate procedures or continuing 
operation under 36 CFR part 800. For purposes of these procedures, the 
Army Agency Official with jurisdiction over an undertaking is the 
Garrison commander or official representative designated by the 
Garrison commander. The Army Agency Official shall ensure that 
professional standards, as defined in section 1.5, are met in the 
conduct of identification, evaluation, assessment of effects, and 
treatment of historic properties.
    (i) Deputy Assistant Secretary of the Army (Environment, Safety and 
Occupational Health) (DASA (ESOH)) is the Army Federal Preservation 
Officer (FPO), pursuant to designation by the Assistant Secretary of 
the Army (Installations and Environment), responsible for policy, 
program direction and oversight of the Army's responsibilities under 
the Act. The DASA (ESOH) is responsible for ensuring the Army's 
implementation of these alternate procedures.
    (ii) The ACSIM is the Army staff proponent for implementing the Act 
and development of Army-specific guidance implementing the Act. 
Proponents for execution of ACSIM responsibilities under these 
procedures are the Director of Environmental Programs (DEP) and the 
Commander, U.S. Army Environmental Center (USAEC). The ACSIM shall:
    (A) Carry out the ACSIM's assigned staff functions for NHPA 
compliance in accordance with Army regulations;
    (B) Review and endorse AAP notices, HPCs, associated documents, and 
installation historic preservation programs in accordance with these 
procedures and,
    (C) Serve as the Agency Official for the Army for purposes of 
consultation and coordination with consulting parties and the public on 
development of these alternate procedures, amendment and implementing 
guidance.
    (iii) Installation Management Activity (IMA), National Guard Bureau 
(NGB) or applicable MACOM shall:
    (A) Ensure Garrison commanders (includes Adjutants General) 
identify and program resources necessary to meet the requirements of 
these procedures. Staff all actions in accordance with these 
procedures.
    (B) Review HPCs prepared by Garrison Commanders to ensure that HPCs 
provide equitable, efficient and effective resource management.
    (C) Forward AAP notices and HPCs to the ACSIM for review and 
endorsement.
    (iv) Garrison Commanders (includes Commanders of U.S. Army Reserve 
Regional Support Centers and Adjutants General) shall:
    (A) Carry out their assigned historic property management and 
compliance responsibilities set forth in Army policy;
    (B) As the Agency Officials responsible for installation 
undertakings, ensure that such undertakings are implemented in 
accordance with either these procedures or 36 CFR part 800;
    (C) Develop a historic preservation program, including an HPC, in 
accordance with section 3.0 and Army policy;
    (D) Serve as the Agency Official responsible for consulting on HPC 
and its implementation with SHPOs, THPOs, Native Hawaiian 
organizations, and Federally recognized Indian Tribes when required 
under these procedures. Tribal consultation shall occur with Federally 
recognized Indian Tribes on a government-to-government basis, as 
defined in section 1.5; and,
    (E) Ensure that such consultation provides a reasonable opportunity 
for the SHPO, THPO, Federally recognized Indian Tribes, and Native 
Hawaiian organizations to identify their concerns with the 
identification, evaluation, assessment of effect and treatment of 
historic properties, and after consideration, address such concerns.
    (F) When implementing these procedures:
    (1) Sign the HPC and amendments thereto, recognizing that the HPC 
is the installation's procedure for complying with section 106 of the 
Act;
    (2) Invite the SHPO, THPO, Federally recognized Indian Tribe or 
Native Hawaiian organization to consult in development of and sign the 
HPC;
    (3) Implement a signed HPC to comply with section 106 of the Act; 
and,
    (4) Prior to certification, comply with section 106 of the Act 
through review of undertakings under 36 CFR part 800.
    (b) Advisory Council on Historic Preservation.
    (1) The Council issues regulations to implement section 106 of the 
Act; provides guidance and advice on the application of its 
regulations, 36 CFR part 800; oversees the operation of the section 106 
process; enters into agreements with Federally recognized Indian Tribes 
under section 101(d)(5) of the Act; and approves Federal agency 
procedures for substitution of the Council's regulations. Consulting 
parties and the public, may at any time seek

[[Page 20581]]

advice, guidance, and assistance from the Council on the application of 
these procedures.
    (2) For the purposes of these procedures, the Council reviews and 
evaluates HPCs and certifies that an installation is authorized to 
implement an approved HPC.
    (c) State Historic Preservation Officer.
    (1) The SHPO administers the national preservation program at the 
State level and is responsible for conducting comprehensive statewide 
surveys of historic properties and for maintaining inventories of these 
properties. Under section 101(b)(3)(E) of the Act, SHPOs are directly 
responsible for advising and assisting Federal agencies, such as the 
Army, in carrying out their historic preservation responsibilities. For 
purposes of these procedures, the SHPO advises and consults with 
individual installations in the development, implementation, 
recertification and Major Amendment of the HPC.
    (2) The SHPO has access to expertise regarding historic properties 
within the State. The SHPO, throughout HPC implementation, may provide 
assistance to the Garrison commander and ensure access to and 
application of such expertise.
    (3) When participating as a consulting party, the SHPO is invited 
to sign the HPC.
    (d) Federally Recognized Indian Tribes and Native Hawaiian 
Organizations.
    (1) Section 101(d)(6)(B) of the Act requires the Army to consult 
with any Federally recognized Indian Tribe and Native Hawaiian 
organization that attaches traditional religious and cultural 
importance to historic properties that may be affected by an 
undertaking. For Federally recognized Indian Tribes, this consultation 
may take place for historic properties located both on and off Tribal 
lands. Consultation with Federally recognized Indian Tribes shall be 
conducted as Tribal consultation and initiated on a government-to-
government basis, and shall occur through the provisions of these 
procedures. While Garrison commanders must invite Federally recognized 
Indian Tribes to participate in government-to-government consultation, 
as sovereign nations, such Tribes may decline to participate.
    (2) Where an installation's undertakings may affect historic 
properties of traditional religious and cultural importance to a 
Federally recognized Indian Tribe or Native Hawaiian organization, that 
Tribe or organization shall be invited to participate as a consulting 
party on the development, implementation, recertification and Major 
Amendment to the HPC.
    (3) When participating as consulting parties, Federally recognized 
Indian Tribes and Native Hawaiian organizations shall be invited to 
sign the HPC.
    (e) Tribal Historic Preservation Officer.
    (1) Where the Secretary of the Interior has authorized a Federally 
recognized Indian Tribe to carry out some or all of the SHPO 
responsibilities on Tribal lands pursuant to section 101(d)(2) of the 
Act, the THPO acts as a consulting party on the development, 
implementation, recertification and Major Amendment to the HPC. The 
THPO participates as a consulting party when:
    (i) An installation's undertakings occur on or affect historic 
properties on Tribal lands; or,
    (ii) An installation's undertakings may affect a historic property 
of traditional religious and cultural importance to the Tribe both on 
and off Tribal lands, and the THPO is the Tribe's designated 
representative for government-to-government consultation.
    (2) When the THPO has participated as a consulting party, the 
Federally recognized Indian tribe which he or she represents is invited 
to sign the HPC.
    (f) The Public.
    (1) The Garrison commander shall seek and consider the views of the 
general public regarding the development, implementation, and 
recertification of the HPC in a manner consistent with section 3.5 and 
section 5.2 below.

Section 2.0: Applicability of Procedures

2.1 Installation Determination
    (a) Garrison commanders complying with these procedures in lieu of 
36 CFR part 800 shall document that determination in writing and 
provide notice to:
    (1) The ACSIM, through the IMA, NGB or applicable MACOM;
    (2) The SHPO;
    (3) The Council;
    (4) The head of any Federally recognized Indian Tribe or Native 
Hawaiian organization that attaches traditional religious and cultural 
importance to any historic property on the installation or affected by 
installation activities; and,
    (5) The THPO for any Federally recognized Indian Tribe where 
historic properties on Tribal land will be affected by installation 
activities, including those properties of traditional religious and 
cultural importance to the Tribe.
    (b) Garrison commanders continuing compliance with section 106 of 
the Act through 36 CFR part 800 may revisit their decision at any time 
thereafter and comply with these procedures by:
    (1) Filing the notice required by section 2.1(a);
    (2) Establishing the necessary program elements set forth in 
section 3.0; and,
    (3) Completing the certification process established by section 
4.0.
    (c) When an Garrison commander operating under a certified HPC 
decides that the HPC is no longer appropriate, the Garrison commander 
may terminate the HPC by taking the following actions:
    (1) Provide a notice of the Garrison commander's intent to 
terminate to all consulting parties 45 days prior to the effective date 
of termination. The notice of intent to terminate should provide a 
brief explanation for the decision to terminate;
    (2) Invite the Council, ACSIM, and consulting parties to provide 
their views on the proposed termination during the 45-day notification 
period, and consider those views during the 45-day period. The Garrison 
commander will only furnish additional notice to consulting parties 
when a decision to continue operation under the HPC is made; and,
    (3) At the end of the 45-day period, revert to compliance with 
section 106 through 36 CFR part 800.
    (d) Garrison commanders who have terminated their HPC may implement 
these procedures at a later time through the certification process in 
section 4.3.

Section 3.0: Program Elements for Installations Participating in the 
Alternate Procedures

3.1 Designation of Cultural Resource Manager (CRM) and Coordinator for 
Native American Affairs
    (a) Each Garrison commander shall designate an installation CRM to 
coordinate the section 106 responsibilities required under these 
procedures. The Garrison commander will ensure that the CRM has 
appropriate knowledge, skills, and professional training and education 
to carry out installation cultural resources management 
responsibilities. The CRM shall ensure that all historic properties 
technical work, including identification and evaluation of historic 
properties, assessment and treatment of effects, and preparation of 
HPCs, is conducted by individuals who meet the applicable professional 
standards defined in section 1.5.
    (b) Each Garrison commander shall designate a Coordinator for 
Native

[[Page 20582]]

 American Affairs if there are Native American issues. The Garrison 
commander will ensure that the Coordinator for Native American Affairs 
has appropriate knowledge, skills, and professional training and 
education to conduct installation consultation responsibilities with 
Federally recognized Indian Tribes and Native Hawaiian organizations. 
The Coordinator for Native American Affairs is responsible for 
facilitating the government-to-government relationship and, when 
designated, carry out staff-to-staff consultation responsibilities with 
Federally recognized Indian Tribes. The Coordinator for Native American 
Affairs will have access to the Garrison command staff in order to 
facilitate direct government-to-government consultation.
    (c) If the Garrison commander deems it appropriate, he or she will 
fill the Coordinator for Native American Affairs position with an 
individual other than the CRM.
3.2 Professional Standards for the Development of the HPC
    (a) Prior to developing the HPC, the Garrison commander shall 
ensure that:
    (1) The CRM is either qualified under the standards set forth in 
the Secretary of the Interior's Standards and Guidelines for Archeology 
and Historic Preservation, and/or has access to technical experts who 
meet these standards to identify, evaluate, assess effects to, and 
treat historic properties, and for certification purposes in section 
4.0 below; and,
    (2) When such expertise is provided by Federally recognized Indian 
Tribes and Native Hawaiian organizations regarding identification of 
properties of traditional religious and cultural importance, they need 
not meet the Secretary of Interior's Standards and Guidelines for 
Archeology and Historic Preservation.
    (b) The Army is responsible for all findings and determinations 
made by external parties. When an external party prepares a document or 
study, the Army is responsible for its content and ensuring that it 
meets applicable standards and guidelines.
3.3 Identification of Consulting Parties for HPC Development
    (a) Prior to the development of the HPC, the Garrison commander 
shall:
    (1) Identify the SHPO(s) associated with the installation;
    (2) Identify the THPO(s) when installation activities may affect 
historic properties on Tribal lands;
    (3) Identify any Federally recognized Indian Tribes who may attach 
traditional religious and cultural importance to any historic 
properties on or off Tribal lands that may be affected by installation 
activities;
    (4) Identify any Native Hawaiian organization that may attach 
traditional religious and cultural importance to any historic 
properties that may be affected by installation activities;
    (5) In consultation with the SHPO(s), THPO(s), Federally recognized 
Indian Tribes, and Native Hawaiian organizations, identify other 
parties that are entitled, or should be invited to be consulting 
parties, including interested members of the public; and,
    (6) Invite consulting parties to participate in the development of 
the installation's HPC.
    (b) Garrison commanders should contact Federally recognized Indian 
Tribes early to establish a schedule and protocol for conducting 
consultation on a government-to-government basis for development of the 
HPC.
3.4 Consultation and Coordination for HPC Development
    (a) Each Garrison commander shall develop a draft HPC in 
consultation with the parties identified in section 3.3, above, and, in 
coordination with appropriate installation staff (including natural 
resource management; facilities/housing management; range management, 
testing, training, and operations; master planning; public affairs 
office; the CRM, the Coordinator for Native American Affairs, and the 
Staff Judge Advocate).
    (b) The Garrison commander shall ensure that all parties 
participating in consultation are provided adequate documentation early 
in the process regarding the installation's mission and operations, 
historic properties under its control, and the installation command 
structure. The documentation should be provided to consulting parties 
at least 30 days in advance of the initial consultation meeting to 
allow for a full review prior to participation in HPC development.
    (c) HPC development begins with an initial consultation meeting 
between installation staff and consulting parties to identify issues 
that should be addressed in the HPC. Consultation and coordination 
shall continue throughout HPC development to ensure adequate 
opportunity for these parties to fully participate in development of 
the HPC. Installations are encouraged to invite consulting parties to 
participate in workgroups for drafting the HPC, but, at a minimum, 
must, provide opportunities for periodic review, and comment on draft 
work products.
3.5 HPC Development
    The Garrison commander shall prepare an HPC to include the 
following:
    (a) Introduction: This is a description of the installation's past 
and present mission(s) to include information that describes the types 
of activities associated with each mission that might have an effect on 
historic properties. The introduction shall also identify where the CRM 
position, and, when appropriate, the Coordinator for Native American 
Affairs position, is located within the installation's organizational 
structure.
    (b) Planning Level Survey (PLS): The PLS, based on review of 
existing literature, records, and data, identifies the historic 
properties that are known, or may be expected to be present, on the 
installation. The PLS shall be updated as necessary to include 
additional information made available through the identification and 
evaluation of historic properties. The PLS shall, as appropriate:
    (1) Provide locations of known historic properties, including 
historic properties having traditional religious and cultural 
importance to Federally recognized Indian Tribes or Native Hawaiian 
organizations, that have been listed in the National Register, or 
determined eligible for inclusion in the National Register, and those 
properties that require evaluation for determination of eligibility for 
the National Register;
    (2) Be constructed in such a way that sensitive site information 
shall be excluded from the HPC, where distribution might jeopardize 
either the historic property or the confidentiality concerns of 
Federally recognized Indian Tribes and Native Hawaiian organizations;
    (3) Establish an annual inventory schedule that identifies and 
prioritizes those areas of the installation that are programmed for 
undertakings in the next fiscal year to ensure that inventories and 
analyses of alternatives are completed early in the planning processes 
for these activities;
    (4) Provide locations that have been previously inventoried where 
no historic properties have been identified;
    (5) Provide information on current and projected future conditions 
of identified historic properties;
    (6) Contain or provide reference to existing historic contexts, 
archeological sensitivity assessments, predictive models, and other 
relevant reports addressing historic properties on the installation;
    (7) Provide a listing of any affiliated Federally recognized Indian 
Tribes or

[[Page 20583]]

Native Hawaiian organizations, other consulting parties and members of 
the public having an interest in the historic properties associated 
with the installation.
    (c) Categorized Undertakings: This section shall include:
    (1) A summary of the categories of undertakings that the 
installation anticipates conducting over the five-year planning period 
and should serve as the basis for development of standardized 
treatments, under section 3.5(e), where such activities have the 
potential to result in effects to historic properties. Categories of 
undertakings should include maintenance and repair, ground-disturbing 
activities, renovation, adaptive reuse, rehabilitation, substantial 
alteration, demolition, disposal through transfer, sale, or lease, and 
mothballing. This is not a list of individual undertakings;
    (2) If available, a list of potential undertakings that the 
installation has programmed over the five-year planning period; and,
    (3) Past and proposed undertakings that should be considered by 
consulting parties through the HPC's review and monitoring process 
required by section 3.5(f)(2).
    (d) Categorical Exclusions: The HPC should include a list of 
undertakings that are categorically excluded from review. This list of 
categorical exclusions, developed in consultation with consulting 
parties, is supplemental to the Army-wide exempt undertakings listed in 
section 4.5. Final approval of an HPC's categorical exclusions, as 
provided for in 36 CFR Sec.  800.14(c), will be made by the Council as 
part of the certification process; however, the Council may terminate a 
categorical exclusion at the Army's request or when the Council 
determines that the exclusion no longer meets the criteria of 36 CFR 
800.14(c)(1). The Council shall notify the Army 30 days before 
termination becomes effective.
    (e) Management Goals and Practices: The purpose of this section is 
to establish proactive consideration of preservation concerns carried 
out by management practices that are integrated into day-to-day 
installation activities to avoid adverse effects to historic 
properties. This section shall include:
    (1) A description of the installation's desired future condition 
for historic properties over the course of the planning period;
    (2) A description of goals for management and preservation of the 
installation's historic properties to be achieved over the course of 
the planning period; and,
    (3) A list of management practices that can be employed to best 
meet the desired future condition and stated management goals. These 
management practices should:
    (i) Be comparable with preservation standards and guidelines 
included in DA PAM 200-4 and the relevant Secretary of the Interior's 
Standards and Guidelines for Archeology and Historic Preservation;
    (ii) Focus on the major activities of an installation, including 
those identified in the Categorized Undertakings section of the HPC; 
and,
    (iii) Focus on standardizing effective historic preservation 
practices and procedures for installation properties that, at a 
minimum, include preservation, adaptive reuse, rehabilitation 
standards, and, as appropriate, interpretation for historic properties.
    (f) Standard Operating Procedures (SOPs): SOPs are critical to an 
installation's proper management of its undertakings and must be 
developed in close consultation with consulting parties, including 
SHPOs, THPOs, Federally recognized Indian Tribes, and Native Hawaiian 
organizations. SOPs shall be developed to provide consistent 
implementation of management goals, historic preservation standards, 
coordination, consultation, and mitigation procedures for historic 
properties that may be affected by installation undertakings. Where 
Federally recognized Indian Tribes attach traditional religious and 
cultural importance to historic properties, consultation with Tribes 
may take place for properties both on and off Tribal lands. These 
procedures shall be tailored for the particular conditions and specific 
requirements at an installation. At a minimum, HPCs shall include the 
following:
    (1) SOPs for Installation Decision Making Process: These SOPs 
define the progressive steps which an installation shall take in its 
internal decision making process in order to manage its undertakings 
and their potential to affect historic properties. The goal of this SOP 
should be to avoid adverse effects in the first instance; to mitigate 
such effects where avoidance is not feasible; and to proceed with 
notification when adverse effects cannot be mitigated. In order to 
document this process, a Garrison commander should complete each step 
of the process before proceeding to the next.
    (i) Identifying Undertakings and Defining APEs: This SOP shall 
provide for identifying undertakings and defining the APE for each 
undertaking.
    (ii) Identifying and Evaluating Historic Properties: This SOP shall 
contain procedures for identifying historic properties within the APE, 
evaluating their eligibility for the National Register and assessing 
the effects on them, including those properties having traditional 
religious and cultural importance to Federally recognized Indian Tribes 
or Native Hawaiian organizations (recognizing that such properties may 
be eligible under any of the National Register criteria). This SOP 
should also contain a procedure for resolving any disputes over the 
eligibility of a property to the National Register. Any unresolved 
disputes concerning eligibility shall be forwarded to the Keeper of the 
National Register in accordance with 36 CFR part 63.
    (iii) Applying Best Management Practices: This SOP shall provide 
for the consideration and application of historic preservation 
management practices established pursuant to section 3.5(e) to avoid 
adverse effects in the first instance and to meet identified HPC 
preservation goals. Avoidance of adverse effects would preclude the 
need to proceed with a more detailed alternatives review. Avoidance of 
adverse effects includes, for example, rehabilitating historic 
buildings following the Secretary of the Interior's Standards for the 
Treatment of Historic Properties (1995), and modifying project plans to 
physically avoid and protect archeological sites and historic 
properties of traditional religious and cultural importance to a 
Federally recognized Indian Tribe or Native Hawaiian organization.
    (iv) Alternatives Review: This SOP shall provide a process for the 
review of project alternatives for undertakings where application of 
best management practices is not feasible or would not avoid adverse 
effects. Prior to applying mitigation measures to minimize unavoidable 
adverse effects to historic properties, application of this SOP is 
required. This SOP will:
    (A) Conduct a review of project alternatives, using the NEPA 
process, when practical, to consider whether other feasible 
alternatives to avoid or reduce impacts to a historic property can be 
implemented. Alternatives should include the relocation or modification 
of project features, or the rehabilitation, renovation, adaptive reuse, 
transfer, or mothballing of historic buildings; and,
    (B) Conduct an economic analysis for historic buildings proposed 
for demolition that addresses and compares the economic costs 
associated with alternatives, including the life-cycle

[[Page 20584]]

costs associated with rehabilitation and reuse; demolition and new 
construction; and mothballing and reuse.
    (v) Treatment of Adverse Effects: This SOP shall provide for 
treating/mitigating adverse effects that cannot be avoided through the 
application of best management practices or implementation of a project 
alternative. This SOP should include HABS/HAER recordation, 
archeological data recovery, and mitigation procedures for transfer, 
sale or lease of historic properties out of Army ownership to a non-
federal entity.
    (vi) Documenting Acceptable Loss: This SOP shall provide for 
determinations to proceed with an undertaking having an adverse effect 
where the Garrison commander has determined that treatment/mitigation 
is not in the best public interest or is not financially or otherwise 
feasible. The Garrison commander's determination, including a 
discussion as to how the preceding steps in the decision making process 
were carried out and a rationale as to why mitigation measures will not 
be applied, shall be provided to consulting parties and the Council for 
a 30-day review, prior to implementing the undertaking. Upon receiving 
the written views of the Council, the Garrison commander must consider 
the Council's comments and provide written documentation of his or her 
decision to the Council and the consulting parties.
    (2) Review and Monitoring: This SOP shall establish an annual 
review and monitoring coordination process among appropriate 
installation staff and consulting parties. Review and monitoring shall:
    (i) Provide in advance, sufficient information to allow meaningful 
participation of consulting parties in the review and monitoring 
process;
    (ii) Include review of the installation's programmed undertakings 
for the upcoming fiscal year to provide consulting parties an advanced 
opportunity to express their views on specific methods for 
identification, evaluation, and treatment of historic properties 
affected by such undertakings;
    (iii) Include evaluation of past undertakings for the concluded 
fiscal year and the results of historic preservation efforts related to 
those undertakings;
    (iv) Include evaluation of the effectiveness of the installation's 
HPC and the need to make amendments to it; and,
    (v) Rely to the greatest extent practicable, on information 
generated by existing Army auditing, programming, and reporting 
systems.
    (3) Obtaining Technical Assistance in HPC Implementation: 
Recognizing the importance of consulting parties' expertise in the 
management of historic properties, this SOP may be used to establish a 
process for the continued involvement of consulting parties and 
qualified organizations with a demonstrated interest in management of 
the installation's historic properties during HPC implementation 
through use of reimbursable arrangements.
    (i) This SOP should establish reimbursable arrangements, such as 
cooperative agreements and procurement contracts, to obtain technical 
assistance from SHPOs, THPOs, Federally Recognized Indian Tribes, 
Native Hawaiian organizations, and other qualified organizations with a 
demonstrated interest in management of the installation's historic 
properties.
    (ii) This SOP will ensure that the installation obtains necessary 
technical assistance in identification, evaluation, assessment of 
effects, and treatment of historic properties, using, to the maximum 
extent practicable, reimbursable arrangements such as procurement 
contracts and cooperative agreements with consulting parties and 
qualified organizations with a demonstrated interest in management of 
the installation's historic properties.
    (iii) This SOP will recognize that:
    (A) Federally recognized Indian Tribes are uniquely qualified to 
identify, evaluate, and treat historic properties to which they attach 
traditional religious and cultural importance on and off Tribal lands;
    (B) Native Hawaiian organizations are uniquely qualified to 
identify, evaluate, and treat historic properties to which they attach 
traditional religious and cultural importance; and,
    (C) SHPOs and THPOs possess indispensable professional expertise 
for identification and evaluation of historic properties as well as 
assessment and treatment of effects.
    (iv) This SOP shall ensure that all actions to implement the HPC 
will be taken by individuals who meet professional standards under 
regulations established by the Secretary of Interior in accordance with 
section 112 (a)(1)(A) of the Act. The Army Agency Official shall ensure 
that professional standards, as defined in section 1.5 of these 
procedures, are met in the conduct of identification, evaluation, and 
assessment of effects and treatment of historic properties. When the 
Army requests assistance from Federally recognized Indian Tribes and 
Native Hawaiian organizations in the identification, evaluation, 
assessment of effects and treatment of historic properties of 
traditional religious and cultural importance, they need not meet the 
Secretary of Interior's Professional Qualifications Standards.
    (4) Consultation for Inadvertent Discovery and for Emergency 
Actions: This SOP shall establish an expeditious consultation process 
between the installation and the consulting parties for emergency 
actions and for the inadvertent discovery of historic properties, 
including those of traditional religious and cultural importance to 
Federally recognized Indian Tribes or Native Hawaiian organizations. 
Consultation with Federally recognized Indian Tribes shall take place 
for such properties both on and off Tribal lands.
    (5) Categorical Exclusions: This SOP shall provide for a process to 
determine when an approved categorical exclusion is applicable to an 
undertaking.
    (6) National Historic Landmarks: This SOP shall contain provisions 
to give special consideration to installation undertakings that may 
directly and adversely affect NHLs by taking such planning and actions, 
where feasible, to minimize harm to the NHL. This SOP shall afford the 
Council and the National Park Service a reasonable opportunity to 
comment on the NEPA document(s) prepared for or associated with the 
undertaking prior to its approval.
    (7) Shared Public Data: This SOP shall provide for the sharing of 
data between the installation and consulting parties and the public.
    The procedure should, at a minimum, identify the categories of data 
to be shared, the format in which the data will be provided and the 
standards of data accuracy that will be met. To the greatest extent 
permitted by law, including section 304 of the Act and section 9 of 
ARPA, this SOP shall also ensure that shared data concerning the 
precise location and nature of historic properties, properties of 
traditional religious and cultural importance, and sacred sites 
identified pursuant to Executive Order 13007 are protected from public 
disclosure through NEPA or the Freedom of Information Act. Particular 
care should be taken to safeguard electronic data.

Section 4.0: Program Review and Certification

    The Garrison commander shall develop a final HPC only after 
completing internal Army review and consultation with consulting 
parties and public participation in accordance with the procedures set 
forth in this section. The Garrison commander shall sign and implement 
the final HPC in recognition of its status as a section 106 legal

[[Page 20585]]

compliance document. Should the Garrison commander change during HPC 
implementation, the CRM or Native American Affairs Coordinator, shall 
advise the incoming Garrison commander of the HPC, its content, 
commitments and legal effect.
4.1 Army Program Review
    (a) Garrison commanders complying with these procedures in lieu of 
36 CFR part 800 shall forward a Draft HPC, meeting the requirements set 
forth in section 3.0, through the IMA, NGB or applicable MACOM to the 
ACSIM for review and comment through the following procedures.
    (b) The Garrison commander shall forward the Draft HPC and 
supporting documentation that will include:
    (1) The Draft HPC addressing all program elements set forth in 
section 3.0;
    (2) The Draft NEPA document, generally an EA, developed to consider 
the environmental impacts of adopting and developing the Draft HPC;
    (3) Confirmation that relevant installation level staff, including 
legal, operations and training, facilities and public works, have 
reviewed the Draft HPC;
    (4) Summary of consultation with consulting parties and the results 
of such consultation, including the written comments, if any; and,
    (5) An explanation of outstanding issues of concern when the Draft 
HPC does not reflect the mutual agreement of the installation and 
consulting parties.
    (c) The IMA, NGB or applicable MACOM shall transmit the review 
package and any comments they may have to the ACSIM within 30 days.
    (d) The ACSIM shall conduct Army staff review of the Draft HPC and 
supporting documentation and provide the Army staff review comments, or 
endorsement, of the draft HPC through the IMA, NGB or applicable MACOM 
to the Garrison commander regarding the Draft HPC's consistency with 
Army technical, legal and policy practices.
    (e) The Garrison commander shall release the Draft HPC and NEPA 
document for review by the public and consulting parties in accordance 
with the procedures set forth in section 4.2 after receiving ACSIM 
endorsement. The Garrison commander shall withhold sensitive site data 
to the greatest extent permitted by ARPA and the Act.
4.2 Consulting Party and Public Review
    (a) Public Review. After consultation with consulting parties in 
accordance with section 3.4, and internal Army program review pursuant 
to section 4.1, the installation shall release the Draft HPC and NEPA 
document, including, if appropriate, a draft Finding of No Significant 
Impact to the public for 30-day review and comment. The installation 
shall publicize the availability of these documents using appropriate 
public notification procedures established by the Army's published NEPA 
regulations, 32 CFR part 651. In addition, the installation shall 
forward copies of the Draft HPC and Draft NEPA document to any members 
of the public who have been identified as having an interest in the 
effects of Army activities on historic properties located on the 
installation or affected by installation activities, and local 
government officials.
    (b) Tribal, Native Hawaiian organization, SHPO, THPO and Council 
Review:
    (1) Concurrent with public review, the Garrison commander shall 
forward the Draft HPC and NEPA document to the following entities and 
invite their views:
    (i) The Council;
    (ii) The SHPO;
    (iii) The THPO for any Federally recognized Indian Tribe where 
historic properties on Tribal lands will be affected by installation 
activities, including those properties of traditional religious and 
cultural importance to the Tribe;
    (iv) The Tribal government and Native Hawaiian organization that 
attaches traditional religious and cultural importance to any historic 
property on the installation or affected by installation activities;
    (v) any other consulting parties that have taken part in 
development of the HPC; and,
    (2) Within 30 days of receipt of Draft HPC and NEPA document, 
consulting parties shall:
    (i) Provide their written views to the installation;
    (ii) Indicate whether or not they intend to be a signatory to the 
HPC; and,
    (iii) Identify specific objections to the HPC.
    (3) If any consulting party fails to provide written response 
within the 30-day review period, the Garrison commander may presume 
there is no objection by that consulting party to the Draft HPC.
    (4) Garrison commanders shall consider the comments from the public 
and the written views and recommendations of the Council, SHPO, THPO, 
Tribal government or Native Hawaiian organization, and make adjustments 
to the Draft HPC and NEPA document, if appropriate.
    (5) Where a SHPO, THPO, Tribal government or Native Hawaiian 
organization has objected in writing to the Draft HPC and refused to be 
a signatory, Garrison commanders shall consult with the objecting party 
to resolve the objection, prior to forwarding the Draft HPC and 
supporting documentation to the Council for review and certification.
4.3 Council Review and Certification
    (a) After considering, and where appropriate, addressing the views 
of other consulting parties and the public, and consulting to resolve 
objections, the Garrison Commander shall sign the final HPC. The 
Garrison Commander shall then obtain the signature of consulting 
parties (other than those with outstanding objections), and forward the 
signed HPC to the Council with a request to review and certify the 
installation's HPC. The following supporting documentation will be 
included:
    (1) Final NEPA documentation,
    (2) Written views, if any, of consulting parties, including SHPO, 
THPO, Tribal governments or Native Hawaiian organizations,
    (3) Summary of consultation with consulting parties, including 
SHPO, THPO, Tribal governments or Native Hawaiian organization(s),
    (4) Any views expressed by the public; and,
    (5) Where a consulting party has declined to participate as a 
signatory to the HPC, a summary of the party's objections and the 
installation's efforts to resolve the objections.
    (b) The Council shall review the HPC to determine whether it meets 
the following certification criteria:
    (1) Establish the Program Elements set forth in section 3.0;
    (2) Include appropriate SOPs to ensure that the installation will 
effectively manage its historic properties, identify and consider the 
effects of its undertakings on historic properties, including those of 
traditional religious and cultural importance to a Federally recognized 
Indian Tribe or Native Hawaiian organization, apply appropriate 
treatment standards, and coordinate and consult with consulting 
parties;
    (3) Demonstrate that it was developed in consultation with the 
SHPO, THPO, Tribal governments or Native Hawaiian organizations that 
attach traditional religious and cultural importance to historic 
properties on the installation or affected by installation activities;
    (4) Demonstrate that the public participated in development and/or 
review;

[[Page 20586]]

    (5) Establish procedures for coordination to facilitate review and 
monitoring;
    (6) Establish procedures for obtaining Council and National Park 
Service comments through the NEPA process where an undertaking will 
have a direct and adverse effect on an NHL; and,
    (7) For installations with identified NHLs, establish procedures, 
where feasible, for minimizing the effects of undertakings that may 
have a direct and adverse effect on an NHL.
    (c) Within 30 days of its receipt of the HPC and supporting 
documentation, the Council shall apply the certification criteria set 
forth in section 4.3(b)(1)-(7), and shall:
    (1) Determine that the installation's HPC meets the criteria and 
sign the HPC, certifying the installation to comply with section 106 of 
the Act through implementation of the HPC. Within 30 days of receiving 
the Council's certification, the Garrison commander shall provide 
signed copies of the certified HPC to consulting parties; or,
    (2) Determine that the installation historic preservation program 
shall meet the certification criteria with minor adjustments; and,
    (i) Provide views to the installation with suggested changes, and,
    (ii) Sign the HPC, subject to the installation's incorporation of 
changes, certifying the installation to comply with section 106 of the 
Act through implementation of the HPC. Within 60 days of receipt of the 
Council's certification, the Garrison commander, unless an extension 
period is agreed to, shall make the recommended changes and shall 
provide copies of the revised HPC to the Council, and the consulting 
parties. If the Council does not receive the installation changes 
within 60 days or the extension period, the Council shall notify the 
Garrison commander and consulting parties that the HPC has failed to 
meet certification criteria, and the installation shall follow section 
4.3(d), below.
    (3) Determine that the installation has failed to meet one or more 
of the certification criteria set forth in section 4.3(b)(1)-(7), and:
    (i) Provide the installation with formal written views that 
identify the specific criterion and related deficiency; and,
    (ii) Make specific recommendations to the installation for 
addressing the identified deficiency.
    (d) Where the Council has determined that the installation's HPC 
has failed to meet the certification criteria, the Garrison commander 
shall:
    (1) Address the identified deficiency and resubmit the HPC and 
supporting documentation to the Council for certification in accordance 
with section 4.3(a), in which case the Council shall conduct the review 
and provide a certification determination pursuant to section 4.3(b)-
(c); or,
    (2) Object, in writing, to the Council's recommendations and 
consult with the Council to resolve the objections.
    (i) If, after good faith consultation, the Council and Garrison 
commander agree that the objection(s) cannot be resolved, the 
installation shall notify the ACSIM through the IMA, NGB or applicable 
MACOM.
    (ii) If, 30 days after ACSIM notification, objections remain 
unresolved, consultation under these procedures shall terminate and the 
Garrison commander will notify consulting parties and continue to 
operate under 36 CFR part 800.
    (3) The Garrison commander may resubmit his request for 
certification and reinitiate consultation at any time after 
termination.
4.4 Effect of Certification
    (a) Installations with a certified HPC shall operate under the 
procedures set forth herein as implemented by that HPC. The provisions 
of the certified HPC shall substitute for the requirements of 36 CFR 
part 800 for a period of five years from the date of certification.
    (b) Installations applying these procedures that have not met 
certification requirements shall review undertakings in accordance with 
the procedures set forth in 36 CFR part 800.
    (c) Installations shall implement treatment and mitigation 
commitments made in existing project-specific Memoranda of Agreement 
(MOAs) and Programmatic Agreements (PAs). Upon completion of pre-
existing mitigation and treatment requirements, such agreements shall 
terminate. Requirements of other installation level Programmatic 
Agreements shall terminate upon certification. However, successful 
procedures in such agreements for the identification, evaluation, 
assessment of effects and treatment of historic properties should be 
considered during consultation, and if appropriate, integrated in the 
SOPs.
4.5 Exempt Undertakings
    (a) The following categories of undertakings are exempt from 
further review by an installation operating under a certified HPC:
    (1) Undertakings addressed through a fully executed nationwide 
Programmatic Agreement or other Program Alternative executed in 
accordance with 36 CFR part 800.14.
    (2) Undertakings categorically excluded by an installation's HPC 
pursuant to section 3.5(d).
    (3) Undertakings where there is an imminent threat to human health 
and safety. Such actions include:
    (i) In-place disposal of unexploded ordnance;
    (ii) Disposal of ordnance in existing open burning/open detonation 
units;
    (iii) Emergency response to releases of hazardous substances, 
pollutants and contaminants; and,
    (iv) Military training and testing activities in existing 
designated surface danger zones (e.g. dudded impact areas).
    (b) Where a Federally recognized 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 Army shall follow those Tribal historic preservation 
regulations for undertakings occurring on or affecting historic 
properties on Tribal lands.
    (c) In instances where another Federal agency is involved with the 
Army in an undertaking, the Army and the other agency may mutually 
agree that the other agency be designated as lead Federal agency. In 
such cases, undertakings will be reviewed in accordance with 36 CFR 
part 800.

Section 5.0: Amendment and Recertification

5.1 Plan Amendment
    (a) At any time after obtaining Council certification, a consulting 
party may identify changed circumstances and propose an HPC amendment 
to the Garrison commander.
    (b) If the Garrison commander determines that an amendment to an 
HPC may be necessary, the installation shall continue to review 
undertakings and treat adverse effects in accordance with the 
established HPC, unless he/she determines that the HPC is insufficient 
to meet its responsibilities under section 106 of the Act. If the 
Garrison commander determines that the HPC is no longer sufficient to 
meet those responsibilities, it shall review its undertakings in 
accordance with 36 CFR part 800 until the proposed HPC amendment is 
completed.
    (c) Where the Garrison commander determines that an amendment 
proposed by a consulting party is not necessary, and agreement cannot 
be reached between the Garrison commander and the consulting party to 
amend the HPC, the consulting party may request Council review under 
section 7.2.

[[Page 20587]]

    (d) Major Amendments: Any proposal to alter, delete, or add to an 
HPC's list of categorical exclusions, best management practices, or 
established standard operating procedures shall be considered a Major 
Amendment to the HPC.
    (1) The Garrison commander shall:
    (i) Forward the proposed amendment to consulting parties;
    (ii) Consult with such parties and invite them to be signatories on 
the HPC Major Amendment; and,
    (iii) Seek and consider views of the public through the NEPA 
process, if applicable.
    (2) Within 45 days of its receipt of the proposed HPC Major 
Amendment, each consulting party shall:
    (i) Provide written comments to the installation;
    (ii) Indicate whether it intends to be a signatory to the proposed 
HPC Major Amendment; and, if not,
    (iii) Provide written objections to both the Garrison commander and 
the Council.
    (3) When a consulting party fails to provide written response 
within the 45-day review period, the Garrison commander may presume 
that there is no objection to the proposed HPC Major Amendment by that 
consulting party.
    (4) If all consulting parties and the Garrison commander concur 
with the proposed HPC Major Amendment, the Garrison commander shall 
obtain the consulting parties signatures on the final HPC major 
amendment and forward it to the Council for review, approval, and 
signature. If the Council does not respond within 30 days of its 
receipt of the amendment, then the amendment shall be considered final. 
The Garrison commander shall send copies of the final signed HPC Major 
Amendment to consulting parties and the ACSIM through the IMA, NGB or 
applicable MACOM.
    (5) If all consulting parties do not concur with the proposed HPC 
Major Amendment and/or the Council objects within 30 days of the 
proposed amendment, the Council shall provide its written views and 
recommendations on the proposed HPC Major Amendment to the Garrison 
commander;
    (i) If the Garrison commander considers the Council's views and 
implements the Council's recommendations, then the HPC Major Amendment 
shall be considered final.
    (ii) If the Garrison commander objects to the Council's 
recommendations, the Garrison commander shall consult with the Council 
to resolve the objections.
    (A) If the Council and the Garrison commander agree that the 
objection cannot be resolved, installation shall notify the ACSIM 
through the IMA, NGB or applicable MACOM.
    (B) If, 30 days after ACSIM notification, objections remain 
unresolved, consultation shall terminate and the installation shall 
either continue implementation of its certified HPC without the 
amendment or, where that is not feasible, comply with 36 CFR part 800. 
The Garrison commander shall notify consulting parties of the final 
decision.
    (iii) The Garrison commander may reinitiate consultation on the 
proposed amendment to the HPC any time after termination.
    (e) Minor Amendments: When circumstances at an installation change, 
requiring Minor Amendment(s) to an administrative provision in the 
installation's HPC, such as identification of the CRM, Coordinator for 
Native American Affairs, changes to the planning level survey, changes 
to the list of categorized undertakings, and technical editorial 
changes, the Garrison commander shall:
    (1) Amend the HPC without further consultation or coordination; 
and,
    (2) Provide a Notice of Change to consulting parties and the 
Council.
5.2 Recertification
    (a) No later than six months prior to expiration of the five-year 
term of certification, the Garrison commander shall initiate the 
process for obtaining renewed certification through the procedures set 
forth in sections 3.0 and 4.0 of these procedures.
    (b) The installation shall continue to operate under its certified 
HPC during the recertification process unless the five-year term of the 
HPC has expired. Where the five-year term of the HPC has expired, the 
Garrison commander shall:
    (1) Continue to operate under the certified HPC for a period of 
time to be determined by the Council, in consultation with the Garrison 
commander; and,
    (2) Inform consulting parties of the time extension, and work with 
them towards completing the recertification process; or,
    (3) Inform consulting parties and review individual undertakings in 
accordance with 36 CFR part 800 until recertification of the HPC is 
completed.

Section 6.0: Administrative Remedies

6.1 Evaluation of Council Determinations
    (a) Within 30 days of the Council's final determination to certify 
or recertify an installation to operate under its HPC, or approve a 
Major Amendment, a consulting party may object in writing to the 
Council's determination. The objection must:
    (1) Be forwarded to the Council, and the Garrison commander;
    (2) Be specifically related to a deficiency in:
    (i) Consultation with the consulting party; and/or,
    (ii) Consideration of historic properties of importance to that 
objecting party.
    (b) The Council shall review the objection, obtain the 
installation's views, and within 30 days provide the Council's written 
determination to both the objecting party and the Garrison commander.
    (c) The Council's written determination shall either:
    (1) Validate the Council's previous determination to certify or 
recertify the HPC, or to approve a Major Amendment;
    (2) Allow the installation to continue implementation while 
resolving objections; or,
    (3) Revoke the previous determination and require the installation 
to review its undertakings in accordance with 36 CFR part 800.
6.2 Evaluation of HPC Implementation
    (a) Any time subsequent to Council certification or 
recertification, if a consulting party believes that an installation 
has failed to implement its HPC, the consulting party shall first 
notify the Garrison commander, in writing, of its objection. The 
consulting party must provide information and documentation sufficient 
to set forth the basis for its objection. The Garrison commander and 
consulting party shall attempt to resolve the objection informally 
before proceeding with the formal procedures set forth below.
    (b) If a consulting party has raised an objection with the Garrison 
commander and the objection has not been resolved informally, the 
objecting party may elevate its objection to the Council, in writing. 
The written objection must:
    (1) Be forwarded to the Council and the Garrison commander;
    (2) Be specifically related to an installation's failure to 
implement an identified SOP in the HPC; and,
    (3) Describe the objecting party's efforts to resolve the objection 
informally at the installation level.
    (c) Where the consulting party has objected to a specific 
undertaking, the Garrison commander shall, during the 15-day Council 
review period set forth below, defer that discrete portion of the 
undertaking which may cause adverse effects to historic properties. 
This deferral provision will not apply where

[[Page 20588]]

the activity at issue is an exempt undertaking under section 4.5 or 
where the adverse effects have been documented as acceptable loss under 
an installation's HPC implementing section 3.5(f)(1)(vi) of these 
procedures.
    (d) The Council, within 15 days of receiving the written objection 
of a consulting party, shall provide a written response to the 
consulting party and the Garrison commander, expressing its views, and, 
if appropriate, making specific recommendations for resolution of the 
consulting party's objections.
    (e) If the Council does not provide its written views within the 
15-day review period, the Garrison commander shall assume that there is 
no Council objection and proceed with the undertaking.
    (f) If the Council does provide its written views within the 15 day 
review period, the Garrison commander shall document Army consideration 
of the Council's views, provide copies of the documentation to the 
Council and the objecting consulting party, and proceed with the 
undertaking.
    (g) The Council may also object to an installation's implementation 
of its HPC, in which case the Council will provide its written views 
and specific recommendations for resolution to the Garrison commander 
for his or her consideration. The Garrison commander shall document 
Army consideration of the Council's views, and provide copies of the 
documentation to the Council and the consulting parties.

Section 7.0: Council Review of Army Section 106 Compliance

7.1 Council Review of Army Alternate Procedures
    (a) The Council may periodically evaluate the effectiveness of 
these procedures in meeting the mandates, goals and objectives of 
section 106 of the Act and make recommendations to the Army to improve 
the efficiency and effectiveness of its compliance with section 106, 
under these procedures.
    (b) As required by section 203 of the Act, the Army shall assist 
the Council in their evaluation by providing requested documentation on 
Army policies, procedures, and actions taken to comply with section 106 
of the Act.
    (c) The Council shall make the results of any evaluation conducted 
under this section available for public inspection.
    (d) Upon request by Headquarters, Department of the Army, the 
Council may adopt technical and/or administrative amendments to the 
Army Alternate Procedures. Such amendments will take effect upon 
approval by the Council's Chairman. The Council shall publish in the 
Federal Register a notice of such amendment within 30 days after their 
approval. Technical and administrative amendments shall not modify the 
role of consulting parties in the Army Alternate Procedures.
7.2 Council Review of Installation Compliance
    (a) The Council may review an installation's compliance with its 
HPC only where a documented pattern of failure to implement the 
installation's HPC is evident. The Council's review may be undertaken 
on its own initiative or at the request of a consulting party based in 
part on the objections rising from evaluation under section 6.2. Based 
on its review, the Council shall:
    (1) Determine that the installation is substantially complying with 
the HPC and make recommendations for program improvements; or,
    (2) Initiate consultation with the Garrison commander, and 
recommend a course of action to ensure installation implementation of 
its HPC.
    (3) Provide a copy of any written recommendations to consulting 
parties.
    (b) The Garrison commander, after receiving Council 
recommendations, shall either:
    (1) Conclude consultation and implement its HPC in accordance with 
Council recommendations; or, (2) Obtain ACSIM endorsement to revert to 
operation under 36 CFR part 800 and provide notice to consulting 
parties and the Council.

Appendix A: Acronyms

Acronyms Used in Army Alternate Procedures for Historic Properties

AAP Army Alternate Procedures
ACSIM Assistant Chief of Staff for Installation Management
AR 200-2 Army Regulation 200-2: Environmental Effects of Army 
Actions
Act The National Historic Preservation Act
APE Area of Potential Effects
ARPA The Archeological Resources Protection Act
CRM Cultural Resources Manager
DA PAM 200-4 Department of the Army Pamphlet 200-4: Cultural 
Resources Management
DEP Director of Environmental Programs
EA Environmental Assessment
EIS Environmental Impact Statement
FPO Federal Preservation Officer
HPC Historic Properties Component (the section 106 portion of an 
ICRMP)
HQDA Headquarters, Department of the Army
ICRMP Integrated Cultural Resources Management Plan
IMA Installation Management Agency
MACOM Major Command
MOA Memorandum of Agreement
NAGPRA The Native American Graves Protection and Repatriation Act
NEPA The National Environmental Policy Act
NGB National Guard Bureau
NHL National Historic Landmark
NHPA The National Historic Preservation Act
PA Programmatic Agreement
PLS Planning Level Survey
SHPO State Historic Preservation Officer
SOP Standard Operating Procedure
THPO Tribal Historic Preservation Officer

    Authority: 16 U.S.C. 470s; 36 CFR 800.14(a).

    Dated: April 13, 2004.
John M. Fowler,
Executive Director.

[FR Doc. 04-8681 Filed 4-15-04; 8:45 am]
BILLING CODE 4310-10-P