[Federal Register Volume 69, Number 128 (Tuesday, July 6, 2004)]
[Rules and Regulations]
[Pages 40544-40555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15218]


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ADVISORY COUNCIL ON HISTORIC PRESERVATION

36 CFR Part 800

RIN 3010-AA06


Protection of Historic Properties

AGENCY: Advisory Council on Historic Preservation.

ACTION: Final rule.

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SUMMARY: The Advisory Council on Historic Preservation (ACHP) has 
adopted amendments to the regulations setting forth how Federal 
agencies take into account the effects of their undertakings on 
historic properties and afford the ACHP a reasonable opportunity to 
comment, pursuant to Section 106 of the National Historic Preservation 
Act (NHPA). Most of the amendments respond to court decisions which 
held that the ACHP could not require a Federal agency to change its 
determinations regarding whether its undertakings affected or adversely 
affected historic properties, and that Section 106 does not apply to 
undertakings that are merely subject to State or local regulation 
administered pursuant to a delegation or approval by a Federal agency. 
Other amendments clarify an issue regarding the time period for 
objections to ``No Adverse Effect'' findings and establish that the 
ACHP can propose an exemption to the Section 106 process on its own 
initiative, rather than needing a Federal agency to make such a 
proposal.

DATES: These amendments are effective August 5, 2004.

FOR FURTHER INFORMATION CONTACT: If you have questions about the 
amendments, please call the Office of Federal Agency Programs at 202-
606-8503, or e-mail us at [email protected]. When calling or sending an 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.

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 amendments 
incorporated into the final rule. The third section describes, by 
section and topic, the ACHP's response to public comments on this 
rulemaking. The fourth 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. Finally, the fifth 
section includes the text of the actual, final amendments.

I. Background

    Section 106 of the National Historic Preservation Act of 1966, as 
amended, 16 U.S.C. 470f, requires Federal agencies to take into account 
the effects of their undertakings on properties included, or eligible 
for inclusion, in the National Register of Historic Places (``National 
Register'') and to afford the Advisory Council on Historic Preservation 
(``ACHP'') a reasonable opportunity to comment on such undertakings. 
The regulations implementing Section 106 are codified at 36 CFR part 
800 (2001) (``Section 106 regulations'').
    On September 18, 2001, the Federal District Court for the District 
of Columbia (``district court'') upheld the Section 106 regulations 
against several challenges. Nevertheless, the district court 
invalidated portions of two subsections of the Section 106 regulations 
insofar as they allowed the ACHP to reverse a Federal agency's findings 
of ``No Historic Properties Affected'' (previous Sec. 800.4(d)(2)) and 
``No Adverse Effects'' (previous Sec. 800.5(c)(3)). See National Mining 
Ass'n v. Slater, 167 F. Supp. 2d 265 (D.D.C. 2001)(NMA v. Slater); and 
Id. (D.D.C. Oct. 18, 2001)(order clarifying extent of original order 
regarding Section 800.4(d)(2) of the Section 106 regulations).
    Prior to the district court decision, an objection by the ACHP or 
the State Historic Preservation Officer / Tribal Historic Preservation 
Officer (``SHPO/THPO'') to a ``No Historic Properties Affected'' 
finding required the Federal agency to proceed to the next step in the 
process, where it would assess whether the effects were adverse. An 
ACHP objection to a ``No Adverse Effect'' finding required the Federal 
agency to proceed to the next step in the process, where it would 
attempt to resolve the adverse effects.
    On appeal by the National Mining Association, the D.C. Circuit 
Court of Appeals (``D.C. Circuit'') ruled that Section 106 does not 
apply to undertakings that are merely subject to State or local 
regulation administered pursuant to a delegation or approval by a 
Federal agency, and remanded the case to the district court. National 
Mining Ass'n v. Fowler, 324 F.3d 752 (D.C. Cir. 2003)(NMA v. Fowler). 
On September 4, 2003, the district court issued an order declaring 
sections 800.3(a) and 800.16(y) invalid to the extent that they applied 
Section 106 to the mentioned undertakings, and remanding the matter to 
the ACHP.
    On September 25, 2003, through a notice of proposed rulemaking 
(NPRM)(68 FR 55354-55358), the ACHP proposed amendments to the 
mentioned subsections of the Section 106 regulations so that they would 
comport with the mentioned court rulings, while still being consistent 
with the purpose of helping Federal agencies avoid proceeding with a 
project under an erroneous determination that the project would not 
affect or adversely affect historic properties, and still triggering 
Section 106 compliance responsibilities for Federal agencies when they 
approve or fund State-delegated programs. A related, proposed amendment 
would clarify that even if a SHPO/THPO concur in a ``No Adverse 
Effect'' finding, the ACHP and any consulting party still have until 
the end of the 30 day review period to file an objection. Such 
objections would require the Federal agency to either resolve the 
objection or submit the dispute to the ACHP for its non-binding 
opinion. Finally, the ACHP also took the opportunity in that notice to 
submit an amendment to clarify that the ACHP could propose an exemption 
to the Section 106 process on its own initiative, rather than needing a 
Federal agency to make such a proposal.
    After considering the public comments, during its business meeting 
on May 4, 2004, the ACHP unanimously adopted the final amendments to 
the Section 106 regulations that appear at the end of this notice of 
final rule.

[[Page 40545]]

II. Highlights of Amendments

ACHP Review of ``No Historic Properties Affected'' and ``No Adverse 
Effect'' Findings

    As stated above, the district court held that the asserted power of 
the ACHP to reverse Federal agency findings of ``No Historic Properties 
Affected'' and ``No Adverse Effect'' exceeded the ACHP's legal 
authority under the NHPA. Accordingly, the final amendments make it 
clear that ACHP opinions on these effect findings are advisory and do 
not require Federal agencies to reverse their findings.
    The final amendments still require a Federal agency that makes an 
effect finding and receives a timely objection to submit it to the ACHP 
for a specified review period. Within that period, the ACHP will then 
be able to give its opinion on the matter to the agency official and, 
if it believes the issues warrant it, to the head of the agency. The 
agency official, or the head of the agency, as appropriate, would take 
into account the opinion and provide the ACHP with a summary of the 
final decision that contains the rationale for the decision and 
evidence of consideration of the ACHP's opinion. However, the Federal 
agency would not be required to abide by the ACHP's opinion on the 
matter.
    The amendments also change the time period for the ACHP to issue 
its opinion regarding ``No Adverse Effect'' findings, by allowing the 
ACHP extend it 15 days. This change is deemed necessary since, among 
other things, the ACHP opinions may now be addressed to the head of the 
agency, and would therefore more likely be ultimately formulated by 
ACHP members, as opposed to such tasks being mostly delegated to the 
staff. Such formulation of opinions by ACHP members is expected to 
require more time considering that these ACHP members are Special 
Government Employees who reside in different areas of the country and 
whose primary employment lies outside the ACHP.
    In response to public comments, as detailed in the third section of 
this preamble, the ACHP made several changes to the originally proposed 
amendments:
    (1) When the ACHP decides to send its opinion regarding effect 
findings to the head of an agency, that decision must be guided by the 
criteria of appendix A of the Section 106 regulations;
    (2) If the ACHP decides to object on its own initiative to an 
agency finding of effect within the initial 30-day review period open 
to SHPO/THPOs and consulting parties, the ACHP must present its opinion 
to the agency at that time, rather than merely objecting and triggering 
the separate ACHP review period for objection referrals;
    (3) The head of an agency that has received an ACHP opinion on an 
effect finding may delegate the responsibility of preparing the 
response to that opinion to the Senior Policy Official of his/her 
agency;
    (4) When requesting the ACHP to review effect findings, Federal 
agencies must notify all consulting parties about the referral and make 
the request information available to the public;
    (5) Regarding findings of ``no adverse effect,'' the default period 
for ACHP review is 15 days. However, the ACHP may extend that time an 
additional 15 days so long as it notifies the Federal agency prior to 
the end of the initial 15 day period;
    (6) The amendments now clarify that, when an agency and SHPO/THPO 
disagree regarding a finding of ``no historic properties affected,'' 
the Federal agency has the option of either resolving the disagreement 
or submitting the matter for ACHP review; and
    (7) The ACHP will retain a record of agency responses to ACHP 
opinions on findings of effect, and make such information available to 
the public.

Clarification of the 30-Day Review Period for No Adverse Effect 
Findings

    As stated in the NPRM, questions had arisen under the Section 106 
regulations as to whether a Federal agency could proceed with its 
undertaking immediately after the SHPO/THPO concurred in a finding of 
``No Adverse Effect.'' The Section 106 regulations specify a 30-day 
review period, during which the SHPO/THPO, the ACHP and other 
consulting parties can lodge an objection. The result of such an 
objection is that the Federal agency must submit the finding to the 
ACHP for review. If the SHPO/THPO concurs, for example, on the fifth 
day of the 30 day period, the language prior to these final amendments 
may have given some the erroneous impression that this would cut off 
the right of other parties to object thereafter within the 30 day 
period (e.g., on the 15th or 28th day).
    The final amendment provides clearer language, consistent with the 
original intent expressed in the preamble to the previous iteration of 
the Section 106 regulations (``the SHPO/THPO and any consulting party 
wishing to disagree to the [no adverse effect] finding must do so 
within the 30 day review period,'' 65 FR 77720 (December 12, 2000) 
(emphasis added)) and in subsequent ACHP guidance on the regulations 
(``Each consulting party has the right to disagree with the [no adverse 
effect] finding within that 30-day review period;'' www.achp.gov/106q&a.html#800.5). All consulting parties have the full 30 day review 
period to object to a no adverse effect finding regardless of SHPO/THPO 
concurrence earlier in that period.
    As explained below, a few public comments objected to this 
amendment. However, the ACHP decided to leave the language regarding 
this issue as it was proposed in the NPRM.

Authorization of the ACHP to Initiate Section 106 Exemptions

    Under the Section 106 regulations prior to these final amendments, 
in order for the ACHP to begin its process of considering an exemption, 
the ACHP needed to wait for a Federal agency to propose such an 
exemption. Under the final amendments, the ACHP will be able to 
initiate the process for an exemption on its own.
    As stated in the NPRM, the ACHP believes it is in a unique 
position, as overseer of the Section 106 process, to find situations 
that call for a Section 106 exemption and to propose such exemptions on 
its own. There may also be certain types of activities or types of 
resources that are involved in the undertakings of several different 
Federal agencies that would be good candidates for exemptions when 
looking at the undertakings of all of these agencies, but that may not 
be a high enough priority for any single one of those agencies to 
prompt it to ask for an exemption or to ask for it in a timely fashion. 
The ACHP will now be able to step into those situations and propose 
such exemptions on its own, and then follow the already established 
process and standards for such exemptions.
    As detailed in the third section of this notice, there were several 
comments on this part of the amendments. However, as explained below, 
the ACHP decided to not make any changes to this part of the proposed 
amendments.

ACHP Review of Objections Within the Process for Agency Use of the NEPA 
Process for Section 106 Purposes

    A public comment correctly pointed out that the proposed amendments 
failed to adjust the process regarding NEPA/106 reviews (under section 
800.8(c)) in accordance with the NMA v. Slater decision. If left 
unchanged, that process could have been interpreted as allowing the 
ACHP to overturn agency findings of effect.
    Accordingly, the final amendments change that process to comport 
with the NMA v. Slater decision, in a manner consistent with the final 
amendments

[[Page 40546]]

regarding the review of effects under the regular Section 106 process 
at sections 800.4(d) and 800.5(c).

Applicability of Section 106 to Undertakings That Are Merely Subject to 
State or Local Regulation Administered Pursuant To a Delegation or 
Approval by a Federal Agency

    As explained above and in the NPRM, the D.C. Circuit held that 
Section 106 does not apply to undertakings that are merely subject to 
State or local regulation administered pursuant to a delegation or 
approval by a Federal agency. Accordingly, the final amendment removes 
those types of undertakings from the definition of the term 
``undertaking'' on section 800.16(y).
    Formerly, an individual project would trigger Section 106 due to 
its regulation by a State or local agency (through such actions as 
permitting) pursuant to federally-delegated programs such as those 
under the Surface Mining Control and Reclamation Act, 30 U.S.C. 1201 et 
seq. Under the final amendment, such State or local regulation will 
not, by itself, trigger Section 106 for those projects.
    Nevertheless, it is the opinion of the ACHP that the Federal agency 
approval and/or funding of such State-delegated programs does require 
Section 106 compliance by the Federal agency, as such programs are 
``undertakings'' receiving Federal approval and/or Federal funding. 
Accordingly, Federal agencies need to comply with their Section 106 
responsibilities regarding such programs before an approval and/or 
funding decision on them. Agencies that are approaching a renewal or 
periodic assessment of such programs may want to do this at such time.
    Due to the inherent difficulties in prospectively foreseeing the 
effects of such programs on historic properties at the time of the 
program approval and/or funding, the ACHP believes that Section 106 
compliance in those situations should be undertaken pursuant to a 
program alternative per 36 CFR 800.14. For example, that section of the 
regulations provides that ``Programmatic Agreements'' may be used when 
``* * * effects on historic properties cannot be fully determined prior 
to approval of an undertaking; [or] * * * when nonfederal parties are 
delegated major decisionmaking responsibilities * * *'' 36 CFR 
800.14(b)(1). The ACHP stands ready to pursue such alternatives with 
the relevant Federal agencies.
    While there were various comments on this part of the amendments 
and the explanatory material of the NPRM, the ACHP decided not to 
change the amendments regarding this issue. See the discussion of those 
comments, below.

III. Response to Public Comments

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

NMA v. Slater and Sayler Park Case

    Several public comments asked the ACHP to mention a case out of a 
District Court in Ohio. In that case, Sayler Park Village Council v. 
U.S. Army Corps of Engineers, 2002 WL 32191511 (S.D. Ohio Dec. 30, 
2002); 2003 WL 22423202 (S.D. Ohio Jan. 17, 2003) (Sayler Park), the 
judge specifically disagreed with the NMA v. Slater decision regarding 
the ACHP's authority to overturn agency effect findings. These public 
comments also argued that the Sayler Park decision relieved the ACHP 
from amending the Section 106 regulations.
    The Sayler Park case involved a Corps of Engineers (Corps) Clean 
Water Act permit needed for the construction of a barge loading 
facility. A group of residents who lived near the proposed facility 
sued the Corps alleging that it had issued the permit in violation of 
Section 106. While the Corps determined that the undertaking would not 
have an effect on historic properties, the SHPO and others disagreed 
and argued that the Corps should continue the Section 106 process. The 
Corps upheld its determination of no effect and, based on the NMA v. 
Slater decision, decided its Section 106 responsibilities were 
concluded. It then issued the permit and this lawsuit followed.
    The Sayler Park court expressly disagreed with the NMA v. Slater 
holding that section 800.4(d)(2) of the Section 106 regulations was 
substantive and therefore beyond the scope of the ACHP's authority. As 
explained above, that section required an agency to move to the next 
step of the Section 106 process if, among other things, the ACHP and/or 
SHPO/THPO disagreed with its finding that no historic properties would 
be affected by the undertaking. The court in Sayler Park held that this 
provision of the regulations was not substantive because, rather than 
restraining the agency's ability to act, it merely added a layer of 
consultation (``* * * no matter the process, the agency never loses 
final authority to make the substantive determination * * *'').
    The ACHP presented a similar argument to the NMA v. Slater judge. 
The ACHP continues to believe that neither this provision nor the 
similar one regarding ``no adverse effects'' (nor any other provisions 
of the regulations for that matter) were substantive. None of these 
provisions imposed an outcome on a Federal agency as to how it would 
decide whether or not to approve an undertaking. They merely provided a 
process that assured that the Federal agency took into account the 
effects of the undertaking on historic properties. They did not impose 
in any way whatsoever how such consideration would affect the final 
decision of the Federal agency on the undertaking. They did not provide 
anyone with a veto power over an undertaking. See 65 FR 77698, 77715 
(Dec. 12, 2000).
    While the ACHP still disagrees with the NMA v. Slater partial 
invalidation of sections 800.4(d)(2) and 800.5(c)(3), it nevertheless 
believes it must proceed with the amendments in this rulemaking. The 
NMA v. Slater court (the D.C. District Court) has direct jurisdiction 
over the ACHP and has issued specific orders (1) partially invalidating 
the provisions that are the main subject of these amendments and (2) 
remanding these matters to the ACHP for action consistent with its 
decisions. Moreover, as opposed to the situation in the Sayler Park 
cases, the ACHP was a party before the court in the NMA cases. The ACHP 
is not confronted with conflicting orders from different courts. Under 
these circumstances, the ACHP did not believe it had the option of 
ignoring the NMA v. Slater and NMA v. Fowler decisions and orders, 
despite the ACHP's disagreement with them. It therefore has proceeded 
with this rulemaking, which now has culminated with the amendments 
described herein.

Sections 800.4(d) and 800.5(c)--Review of ``No Historic Properties 
Affected'' and ``No Adverse Effect'' Findings

    Make the stipulation regarding ``no historic properties affected'' 
consistent with that regarding ``no adverse effect'' objections, and 
direct an agency and SHPO/THPO to continue to consult when there is 
disagreement with an agency's determination, as opposed to requiring 
automatic referral to the ACHP. It was not the purpose of the ACHP to 
foreclose the opportunity of Federal agencies and SHPO/THPOs to attempt 
to work out their differences regarding this finding. Therefore, the 
amendments now explicitly state that, upon disagreement, Federal 
agencies

[[Page 40547]]

``shall either consult with the objecting party to resolve the 
disagreement, or forward the finding and supporting documentation to 
the Council'' for review. See Section 800.4(d)(1)(ii).
    If the option is invoked by the ACHP to require decisions from 
agency heads in other than very rare instances, the work of Federal 
agencies could be seriously impeded (particularly those agencies with 
multi-member agency heads like the FCC). Even if used sparingly, this 
would delay the deployment of needed service to the public, and could 
also delay FCC consideration of other important issues of 
telecommunications policy having no historic preservation implications. 
If the ACHP concludes that these provisions are necessary and within 
its statutory authority, we urge the ACHP to invoke the proposed rules 
sparingly with a view toward requiring a response from agency heads 
only in cases presenting the most significant questions of law or 
policy or having such magnitude as to potentially cause the destruction 
of, or other very significant impact on, historic properties. The ACHP 
believes it has the legal authority to issue comments on agency effect 
findings to the heads of agencies. Among other things, the statutory 
language of Section 106 specifies that ``[t]he head of any such Federal 
agency shall afford the Advisory Council on Historic Preservation * * * 
a reasonable opportunity to comment with regard to such undertaking.'' 
16 U.S.C. 470f (emphasis added). A more than reasonable interpretation 
of that statutory language would indicate that the ACHP could provide 
its opinion on the effects of an undertaking to the head of an agency. 
Now that such ACHP's opinions on effects are advisory, this could be 
the ACHP's last reasonable opportunity to comment on the undertaking 
within the Section 106 process. Nevertheless, in response to this and 
other similar comments, the ACHP has changed the proposed amendments so 
that the head of an agency can delegate the duty of responding to the 
ACHP's opinions on effects to the agency's Senior Policy Official. The 
Senior Policy Official, as now defined in the Section 106 regulations, 
is the senior policy level official designated by the head of the 
agency pursuant to Section 3(e) of Executive Order 13287. In addition, 
the final amendments provide that ACHP decisions to issue opinions to 
heads of agencies must be guided by the criteria of appendix A to the 
regulations.
    In consultations where the ACHP has entered the process, there 
appears to be no good reason to allow the ACHP to object and appeal to 
itself. Doing so merely adds unnecessary expense and delay to an 
already overly burdensome process. * * * If the ACHP desires to object 
to the finding, it should do so and communicate its comments to the 
agency within the original 30-day review period. The ACHP has changed 
the proposed amendments in response to this and other similar comments. 
The amendments regarding effect findings, as originally proposed, could 
allow the ACHP to object twice to Federal agency findings of effect: 
once during the initial 30-day period for parties to review the 
finding, and a second time once the agency finalized its finding and, 
upon objection, needed to refer the matter to the ACHP for an advisory 
opinion within a separate review period. This could have allowed the 
ACHP to object in the initial period and then object again, thereby 
giving the ACHP two independent opportunities to review and object to 
the finding. This was not intended. The amendments were edited so that 
if the ACHP provides a written objection to the agency within the 
initial 30-day review period, the agency does not need to refer the 
same matter to the ACHP for the ``second'' review. However, the ACHP 
written objection in the initial 30-day period would be subject to the 
same conditions that would have applied for the ``second'' referral 
(e.g., ACHP discretion to send the opinion to the head of the agency; 
and requirement that a response come from the agency head or the Senior 
Policy Official if the matter is sent to the head of the agency).
    The ACHP is not required to respond to frivolous or unfounded 
objections, or in fact to objections of any kind, but as written in 
these amendments, the full 30-day delay from the filing of such 
objections is automatic and unavoidable. In order to limit unnecessary 
objections and minimize wasteful delay, objections that trigger a 30-
day review ought to be limited to written objections that assert and 
substantiate a substantial likelihood of significant adverse effect, 
consisting of damage or destruction to a highly important historic 
property. Another proposed idea is to add a process for agencies or 
applicants to dismiss insufficiently supported objections. The ACHP 
disagrees. While the ACHP may (and does) disagree with certain SHPO/
THPO objections from time to time, it does not believe such objections 
are frivolous or unfounded. Moreover, with regard to objections to ``no 
adverse effect'' findings, the ACHP has changed the proposed amendments 
so that the default time period for ACHP response is 15 days. An 
objection that is frivolous or unfounded would, at worst, only cause a 
15 day delay in the process. The documentation that agencies are 
already required to provide the ACHP would adequately show the 
seriousness (or lack thereof) of objections. Particularly with regard 
to the idea of a motion to dismiss process, the ACHP also does not 
believe that adding such an additional layer of process would achieve 
much in terms of saving time or providing for predictability. As the 
comment itself points out, time (the comment suggests ten days) would 
be needed for the ACHP to consider and dispose of such motions to 
dismiss, not to mention the time for the agency or applicant to draft 
and provide the ACHP with the motion itself. In addition, this 
additional layer of process would provide a further area of potential, 
time-consuming litigation for those who want to challenge an ACHP's 
decision to dismiss their objection. Moreover, inserting this motion to 
dismiss process into the regulations would further clutter what many 
industry commenting parties deem to be an overly complicated process. 
Finally, the comment provides no basis for limiting the analysis to 
``significant'' adverse effects or ``highly important'' historic 
properties. As explained in the preambles to previous iterations of the 
Section 106 regulations and case law, the ACHP believes it has properly 
defined the ``adverse effects'' that should be considered in the 
Section 106 process, and properly defined the scope of ``historic 
properties'' to be considered in the process. See NMA v. Slater.
    The proposal exceeds the standards explained in the NMA v. Slater 
case, in that it imposes a further procedural requirement, after the 
agency has made a determination of effect, which additional requirement 
is obviously designed to put pressure on the agency to reconsider or 
reverse its decision. The ACHP disagrees. The amendments do not exceed 
the standards explained in the NMA v. Slater case. The court partially 
invalidated sections 800.4(d)(2) and 800.5(c)(3) insofar as they forced 
an agency to proceed to the next step of the process when the ACHP 
objected to such agency's effect finding, because the court viewed this 
as the ACHP effectively reversing the agency's substantive effect 
findings. The amendments make it clear that the ACHP's opinions on 
effect findings are not binding on the agency and that only the agency 
can reverse its own findings. If the agency disagrees with the ACHP's 
opinion as to whether there is an effect or an adverse effect, the 
agency

[[Page 40548]]

responds to the ACHP opinion and is done with the Section 106 process.
    The ACHP should be required to keep and report statistics, as a 
part of its annual report, on the number of times that federal agencies 
have bypassed the Section 106 process by maintaining initial findings 
of no effect and no adverse effect despite SHPO/THPO and ACHP 
objections. This and similar comments reflected the opinion that 
certain Federal agencies, knowing that the ACHP could no longer 
``overturn'' their findings of effect, would take advantage of the 
situation and be more willing to make questionable findings of ``no 
historic properties affected'' or ``no adverse effects.'' The ACHP has 
changed the proposed amendments so that they now include a requirement 
for the ACHP to keep track of how agencies respond to ACHP opinions 
regarding effects, and make a report of such data available to the 
public. This will help the ACHP in overseeing the Section 106 process. 
The ACHP intends to use this information in order to, among other 
things, bring any recurring problems to the heads of the relevant 
agencies and suggest ways in which they can improve the effectiveness, 
coordination, and consistency of their policies and programs with those 
of the NHPA. See 16 U.S.C. 470j(a)(6). The ACHP decided that, in order 
to present a fuller and more accurate picture, the information to be 
collected must include not only the occasions where an agency proceeds 
in disagreement with the ACHP, but also those occasions where an agency 
changes its finding in accordance with the ACHP advice. The ACHP will 
also keep track of the instances where the ACHP decides to not respond 
to an agency referral of an objection. Finally, while the ACHP will 
maintain discretion as to how it makes this information available to 
the public, its intent is to be flexible in using mechanisms such as 
its web-site or other means. The ACHP will not require members of the 
public to file Freedom of Information Act requests in order to get that 
information.
    While there is great value in a process that would allow time for 
the ACHP to comment to the head of a federal agency where the issue 
warrants, many of the review requests that the ACHP will receive will 
not warrant such attention. In the interest of streamlining the 
compliance process, a 15-day review period for ``no adverse effect'' 
determinations is adequate for most of these requests, and an amendment 
could provide for a 30-day review period in certain situations. 
Specific criteria, such as those contained in Appendix A of the current 
regulations, are needed to provide a threshold between standard staff 
review and full ACHP involvement. The ACHP received this and other 
similar comments. In response, the ACHP decided to change the 
amendments so that when it receives a referral for review of a ``no 
adverse effect'' objection, the default time period for such review is 
15 days. If the ACHP deems that it needs more time, it can extend the 
review period an additional 15 days so long as it notifies the agency. 
This allows simple or weak objections to be dispatched sooner, while 
also allowing the ACHP staff and/or membership to better manage their 
workload so that they can dedicate the necessary time to properly 
review and respond to objections that present more significant and 
complex issues. The ACHP does not believe that the 15 additional days, 
when actually invoked by the ACHP, would seriously affect project 
planning and could be accommodated by agencies in their establishment 
of the project review and approval schedule. Finally, in response to 
this and similar comments, the ACHP changed the amendments so that an 
ACHP decision to send its opinion to the head of an agency must be 
guided by appendix A of the regulations.
    At the very least, agencies should be required to copy SHPOs on the 
documentation submitted to the ACHP when an objection is referred to 
the ACHP. Absent this, the SHPOs will have no assurance that their 
position has been accurately represented to the ACHP or that the 
documentation provided by the agency is the same as that submitted to 
the SHPO for review--or, for that matter, that the project has been 
forwarded to the ACHP. In response to this and other similar comments, 
the ACHP changed the proposed amendments so that agencies are now 
required to notify consulting parties (which includes SHPO/THPOs) that 
a referral has been made to the ACHP and to make the information packet 
sent to the ACHP available to the public. It is the understanding of 
the ACHP that many agencies already proceed in this way anyhow.
    Provide for Tribes and THPOs to request additional time for review, 
rather than allowing the federal agency to wait out an absolute cut-off 
time of thirty (30) days. The ACHP believes that the amendments strike 
an appropriate balance between the need for an adequate time period for 
review, and the need for projects decisions to be made in a timely 
manner and within a predictable time frame. However, the ACHP strongly 
encourages Federal agencies to facilitate effective tribal involvement 
by being receptive to tribal requests for additional time for review.
    Strike ``assume concurrence with the agency's finding'' and replace 
with ``proceed in accordance with the agency official's original 
finding.'' No reason for the agency to assume anything about the ACHP's 
position due to its silence. The ACHP agrees that the terminology 
regarding ``assuming concurrence'' may not necessarily reflect the 
position of the entity that fails to respond within the regulatory time 
frame. Accordingly, that terminology has been removed. Nevertheless, 
the legal and procedural effect of a failure to respond within the 
provided time frame remains exactly the same as before (e.g., ``the 
agency official's responsibilities under section 106 are fulfilled'' if 
neither the ACHP nor the SHPO/THPO object to a no historic properties 
affected finding within the 30-day review period).
    Concerned about the requirement that the agency provide 
``evidence'' that the agency considered the ACHP's opinion. We 
understand the need of the agency to provide a responsive reply to the 
ACHP, however the Department finds this requirement confusing, overly 
burdensome, and unjustified. The ACHP clarifies that this requirement 
for providing ``evidence'' simply means that the agency's written 
response must explain the agency's rationale for either following or 
not following the ACHP opinion so that the document reflects the fact 
that the agency actually considered the ACHP opinion.
    Require the agency to prepare additional documentation for the 
ACHP's review, beyond the existing requirements of 36 CFR 800.11(d)-
(e). This should specifically include responses from the agency to any 
objections raised by a consulting party or the SHPO/THPO, for both ``no 
historic properties affected'' and ``no adverse effect'' findings. 
Several comments raised this issue. However, it has been the ACHP's 
experience that the current documentation requirements at the cited 
provision of the regulations are sufficient for the ACHP to carry out 
an informed and adequate review. Moreover, it is the ACHP's experience 
that in most, if not all, cases of objection referrals to the ACHP, the 
Federal agencies explain why they believe the objection is incorrect. 
This explanation necessarily responds to the objection itself.
    If the SHPO/THPO or a consulting party disagrees with the agency's 
determination regarding effects, require the finding to be certified by 
the Federal Preservation Officer, and/or another agency official who is 
a historic preservation professional, meeting the

[[Page 40549]]

Secretary of the Interior's Professional Qualifications Standards, 62 
FR 33707 (June 20, 1997), prior to sending the finding to the ACHP for 
review. The ACHP declined to follow the recommendation in this comment. 
Many Federal agencies have historic preservation professionals in their 
staff who review and/or develop agency findings in the Section 106 
process. In addition, other professionals at the SHPO/THPO offices, and 
sometimes the ACHP, also review the findings in the course of the 
normal process. Accordingly, the ACHP did not believe that the delay 
that could be created by such an additional layer of process would be 
justified.
    Actual comments should be required from the ACHP to help rule on 
effect disagreements. The ACHP simply does not have the staff resources 
that would be needed to respond to every objection referred to it 
regardless of merit.

Clarification of the 30-Day Review Period for No Adverse Effect 
Findings

    Federal agencies should not have to wait until the end of the 30-
day period if the agency obtains the agreement of all the consulting 
parties within that period. This concept was rejected since there was a 
concern that it could motivate agencies to allow fewer consulting 
parties into the process in order to increase the chances of having a 
shorter review period. The ACHP also wanted to provide those who may 
have been denied consulting party status or who may not have found out 
about the undertaking until late, a better opportunity to bring their 
concerns to the ACHP.
    Conferring authority to trigger ACHP review on every consulting 
party would be counterproductive and inefficient since the mere 
assertion of a disagreement, regardless of its merit, could result in 
the elevation of the dispute to the ACHP. This would create delays. The 
proposed amendments do not change this aspect of the process. Assessing 
the merit (or lack thereof) of disagreements would insert uncertainty 
in the process. Once the ACHP has received a referral of a 
disagreement, it could dispose of those which it deems to have no merit 
with little delay.

Section 800.14(c)--Exemptions

    Suggest that the ACHP provide a specific mechanism that ensures 
notification of and input from the affected agency. The ACHP will 
notify and consult with those agencies affected by any exemption 
proposed by it.
    Authorizing the ACHP to exempt ``certain'' arbitrary projects from 
Section 106 weakens the Act. The process for exemptions retains the 
high standard that has to be met by any program or category of 
undertakings seeking an exemption. Their potential effects upon 
historic properties must be ``foreseeable and likely to be minimal or 
not adverse'' and the exemption must be consistent with the purposes of 
the NHPA. See 16 U.S.C. 470v and 36 CFR 800.14(c)(1).
    Since the members of the ACHP are presidential appointees, it would 
be disingenuous to contend that political partisanship would have no 
effect on these exemptions. There also seems to be a conflict of 
interest in the ACHP proposing an exemption, and then deciding on it. 
``Partisanship'' plays no role in these decisions. As stated above, 
exemptions must meet high, non-partisan standards in order to be 
adopted. See 16 U.S.C. 470v and 36 CFR 800.14(c)(1). Moreover, even 
without the amendments, Federal agencies other than the ACHP could 
propose exemptions. Those Federal agencies are led by presidential 
appointees. Finally, under the ACHP's operating procedures, ACHP 
Federal agency members are not permitted to vote on matters in which 
their agency has a direct interest not common to the other members.
    The exemptions process should be amended to include a procedure for 
SHPOs/THPOs or other consulting parties to request a determination from 
ACHP that a specific undertaking that would normally be exempt should 
be reviewed. The ACHP believes this is unnecessary. The exemptions 
themselves, as adopted by the ACHP, can contain such a process. 
Moreover, the exemptions can be drafted so that they place situations 
that could present adverse effects beyond their scope. Finally, the 
regulations allow the ACHP to revoke exemptions. Section 800.14(c)(7). 
Those who believe an exemption should be revoked can ask the ACHP to do 
so under the cited section.
    If the ACHP is authorized to propose and approve exemptions on its 
own initiative, where will we turn with our objections to these 
exemptions? The consultation process regarding exemptions has not 
changed. Those who object to the exemptions can present such objections 
to the ACHP. Much like the rulemaking process, the fact that the ACHP 
has submitted a proposal does not necessarily mean that the ACHP will 
adopt the proposal without changes or adopt the proposal in the first 
place. The ACHP will consider objections to exemptions it proposes the 
same way it will consider those regarding exemptions other agencies 
propose.
    The ACHP fails to make a persuasive case as to why it needs 
additional authority to search out and adopt exemptions from Section 
106. There is no claim that the current regulation has caused any 
particular problems, or has been found inadequate in some way. If a 
potential Section 106 exemption is ``not * * * a high enough priority 
for any single * * * agenc[y] to prompt it to ask for an exemption or 
to ask for it in a timely fashion,'' it is not clear why it should be a 
priority for the ACHP. As opposed to most of the other agencies of the 
Federal government, the ACHP has a mission focused on historic 
preservation matters and assisting other agencies regarding such 
matters. Other agencies have missions that are focused on other 
matters. It is not surprising, therefore, that their priorities are not 
focused on historic preservation issues. This does not mean, however, 
that such issues are unimportant or not deserving of the ACHP's 
attention. If a program or category of undertakings meet the standards 
for an exemption, such exemptions should be considered by the ACHP 
whether or not the relevant agency can focus its energies on the issue. 
Also, due to its size and flatter management structure, the ACHP can 
address these issues more promptly. Furthermore, the ACHP believes this 
amendment appropriately and responsibly promotes the goal of 
environmental streamlining. Finally, as stated in the NPRM, the ACHP is 
in an unique position to identify cross-cutting exemptions that could 
benefit several agencies.
    The ACHP should be required to keep and report statistics, as a 
part of its annual report, on the number and name of project exemptions 
that it has initiated. The ACHP does not see a reason for such 
reporting considering the fact that exemptions must be published in the 
Federal Register before they go into effect. See Section 800.14(c)(8).
    This is an unreasonably indefinite provision that short-circuits 
protection of historic properties encouraged by current regulations 
requiring Federal agencies to propose exemptions individually rather 
than in broad classes. The proposed amendments will inevitably result 
in failures to appreciate unique characteristics of individual 
properties subsumed in exempted categories or affected by an 
unacceptably undefined ``certain types of activities,'' and therefore, 
a significant erosion of preservation standards. The amendments do not 
alter the scope of possible exemptions (e.g., program or category of 
agency undertakings). They also do not change the high standards that 
exemptions must meet. See 16 U.S.C. 470v and 36

[[Page 40550]]

CFR 800.14(c)(1). Finally, they do not change the consultative process 
through which proposed exemptions are considered.
    The rule does not allot a specific time period for the THPOs/SHPOs 
to comment on the proposed exemptions. THPOs/SHPOs should be given the 
same period of time to comment on proposed exemptions as the ACHP. The 
THPOs/SHPOs review and comment period should occur prior to the ACHP 
review and comment period so that the ACHP may take into account the 
input of the THPOs/SHPOs in their decision-making. The exemptions 
process does not specify a time period for THPO/SHPOs to comment 
because different exemptions, due to their varying complexity and 
impact, may call for widely different comment periods. The process 
points to section 800.14(f), which fleshes out the details of 
consulting with tribes and specifies that the agency official and the 
ACHP must take tribal views into account in reaching a final decision.

ACHP Review of Objections Within the Process for Agency Use of the NEPA 
Process for Section 106 Purposes

    36 CFR 800.8(c)(3) states that 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 
800.6(b)(2) ...''. This appears to contradict the court decision that 
the asserted power of the ACHP to reverse Federal agency determinations 
of effect exceeded the ACHP's legal authority under the Act. This was 
an oversight. The ACHP agreed that the referred section of the 
regulations needed to be edited to better comport with the NMA v. 
Slater decision and therefore added an amendment to incorporate into 
that section changes similar to those incorporated by the amendments to 
the review process for effect findings at sections 800.4(d) and 
800.5(c).

Section 800.16(y)--State Permits Under Delegated Programs

    It is difficult for us to understand the basis for the proposed 
rule change given that the rule's definition of ``undertaking'' was 
taken verbatim from the 1992 revisions to the NHPA. With regard to 
licensing, the appellant in the NMA v. Fowler case argued that Section 
106, by its own terms, only applied to ``Federal . . . agenc[ies] 
having authority to license any undertaking.'' 16 U.S.C. 470f. 
Accordingly, it argued that no matter how broadly Congress defined the 
term undertaking, Section 106 only deals with the subset of 
undertakings that actually receive a license from a Federal agency, as 
opposed to a State agency. The appellants, and the court, saw Section 
106 itself as placing a limit on the ``undertakings'' subject to its 
provision. The court also believed that the case of Sheridan Kalorama 
Historical Association v. Christopher, 49 F.3d 750 (D.C. Cir. 1995), 
barred it from a different interpretation. In that opinion, the court 
held that ``however broadly the Congress or the [ACHP] define 
``undertaking,'' Section 106 applies only to: (1) ``any Federal agency 
having * * * jurisdiction over a proposed Federal or federally assisted 
undertaking'; and (2) ``any Federal * * * agency having authority to 
license any undertaking.' '' Although the ACHP disagrees with the NMA 
v. Fowler interpretation of the NHPA, the ACHP is bound by the court's 
decision.
    The ACHP should disclose contrary legal interpretations. This 
comment referred to the case of Indiana Coal Council v. Lujan, 774 F. 
Supp. 1385 (D.D.C. 1991), vacated in part and appeal dismissed, Nos. 
91-5397, 91-5405, 91-5406, 1993 U.S. App. LEXIS 14561, 1993 WL 184022 
(D.C. Cir. Apr. 26, 1993), appeal dismissed, No. 91-5398 (D.C. Cir. 
Dec. 2, 1993). In that case, the court held that permits issued by 
State agencies pursuant to a delegated authority from the Office of 
Surface Mining were undertakings requiring compliance with Section 106. 
Soon after that decision was issued, Congress amended the NHPA 
definition of ``undertaking'' to specifically include ``those subject 
to State or local regulation administered pursuant to a delegation or 
approval by a Federal agency.'' 16 U.S.C. 470w(7). Some, including the 
ACHP, argue that Congress did this to codify the ruling in the Indiana 
Coal Council case. See 138 Cong. Rec. S17681 (Oct. 8, 1992). In fact, 
the Indiana Coal Council, the National Coal Association, and the 
American Mining Congress asked the D.C. Circuit to dismiss their appeal 
of the Indiana Coal Council case based on the 1992 amendment to the 
NHPA definition of ``undertaking.'' As a result, the appeal was 
dismissed and the decision vacated in part by the D.C. Circuit because 
the 1992 amendments made the case moot.
    A new section should be added to the regulations that specifically 
addresses ``State and Local Delegated Programs.'' The ACHP should 
provide Federal agencies and the public with clear and unambiguous 
language concerning these programs and their level of consideration, 
consistent with the Federal Court ruling, under Section 106 of the Act. 
As stated in the NPRM, the ACHP believes that Federal agency approval 
of, amendments or revisions to, and funding of delegated programs 
trigger Section 106 review. The ACHP does not believe a new section in 
the regulations would be required for such programs because it believes 
the already existing processes in those regulations can be used to 
adequately cover such Federal agency approvals and/or funding. 
Specifically, the delegated programs could be covered by Programmatic 
Agreements under section 800.14(b) of the regulations. The ACHP looks 
forward to working with the Department of the Interior, the 
Environmental Protection Agency, and other agencies in developing such 
agreements.
    The proposed changes to the regulation itself at 36 CFR 800.16(y) 
are appropriate and consistent with the D.C. Circuit's opinion in NMA 
v. Fowler. However, the Preamble discussion of the rule is 
inappropriate (decision on whether there is an undertaking is up to the 
agency), improperly characterizes the nature of the Federal 
government's role in annual funding of State programs (while initial 
approval may be an undertaking, it is a leap to say each renewal, 
assessment or funding event will trigger Section 106), and is 
inconsistent with the ACHP's official position set forth in its brief 
before the court (regarding the agency having the final word on whether 
it has an undertaking). The discussion is not inappropriate since, 
while procedurally the agency makes the determination as to whether it 
has an undertaking, the ACHP has the right (and the expertise) to 
provide its opinion on that issue. Furthermore, the Office of Surface 
Mining (OSM) has long acknowledged that its approval, amendment, and at 
least the initial funding of State-delegated programs triggers Section 
106 review. See Indiana Coal Council, 774 F.Supp. at 1400 (this portion 
of the opinion was not vacated by the D.C. Circuit). The ACHP looks 
forward to working with the affected agencies, historic preservation 
officers, industries, and other stakeholders in reaching an agreement 
for handling these programs under Section 106.
    Objects to the suggestion that ``For existing programs, this 
[compliance with section 106] could occur during renewal or periodic 
assessment of such programs.'' There will be no way to know that the 
delegation includes adequate and enforceable provisions until after the 
``renewal or periodic assessment'' occurs at some uncertain date years 
in the future. Waiting on renewal or periodic reviews in such instances 
means that untold damage to

[[Page 40551]]

the Nation's heritage will occur in the intervening years. Improper 
delegations must immediately be rescinded until such time as the agency 
official has properly complied with section 106 and 36 CFR Part 800. 
While the ACHP desires to move quickly and reach adequate agreements on 
these programs, the ACHP does not have the authority to rescind other 
agencies' approvals of programs. The idea of pursuing an agreement at 
the moment of renewal or reassessment (to cover a delegated program as 
a whole) was mostly a practical recommendation, so that agencies that 
are nearing such stages would take advantage of such occasions (when 
they may be preparing to undergo some form of review process anyhow) to 
work on and resolve this issue.
    Concerned with the ACHP's ``opinion'' that Federal agency approval 
and/or funding of such delegated programs does require Section 106 
compliance by the Federal agency, as such programs are ``undertakings'' 
receiving Federal approval and/or Federal funding. This appears as an 
attempt to accomplish through the back door what the ACHP has been 
barred by the courts from doing through the front door. The ACHP is not 
aware of any court opinion barring its interpretation of such Federal 
approval and funding decisions as being undertakings subject to Section 
106. The D.C. Circuit specifically mentioned this interpretation, 
without ruling on it, when it quoted the appellant's brief: ``For 
example, although the NMA concedes that `[t]he Federal government's 
approval of a State's overall SMCRA permitting program may arguably be 
an action subject to Section 106, because the federal government 
contributes funds to the general administration of state permitting 
programs and approves those programs,' it contends that individual 
state mining permits do not fall within that section since `the Federal 
government does not retain the authority to approve or reject any one 
mining project application.' '' In any event, OSM has long 
acknowledged, and the U.S. District Court for the District of Columbia 
has ruled, that OSM approval, amendment, and at least the initial 
funding of delegated programs triggers Section 106 review. See Indiana 
Coal Council, 774 F.Supp. at 1400 (this portion of the opinion was not 
vacated by the D.C. Circuit).
    Section 106 reviews should definitely be required for individual 
permits issued by state agencies under delegation by federal agencies. 
Our cities and counties receive large amounts of money wherein they are 
allowed to issue permits under delegation by federal agencies (e.g., 
HUD programs). The ACHP wants to clarify that under certain Housing and 
Urban Development (HUD) programs, such as the Community Development 
Block Grant (CDBG) program, Federal statute specifically provides that 
States or local agencies act on behalf of HUD in meeting HUD's Section 
106 responsibilities. Those HUD grant programs are not affected by the 
issue of delegated programs being addressed in these amendments, which 
pertain only to regulatory and permitting programs.

Rulemaking Process

    Urges ACHP to engage in consultation with preservation stakeholders 
when developing a revised draft of the regulations, rather than 
drafting them behind closed doors, as was done with the current 
proposal. The ACHP engaged in the consultation required by the 
Administrative Procedure Act for rulemaking. It published the proposed 
amendments on the Federal Register and provided the public with 30 days 
in which to provide comments. In response to requests, this period was 
thereafter extended an additional 30 days. As reflected in this 
preamble, the ACHP seriously considered all public comments and, in 
response to those comments, edited the proposed amendments in several 
ways. Moreover, the ACHP membership, composed by representatives of 
various stakeholders in the process (including Federal agencies, the 
National Trust for Historic Preservation, the National Conference of 
State Historic Preservation Officers, citizen members, a Native 
Hawaiian organization representative and expert members), fully vetted 
the proposed amendments and changes to them. In the end, as explained 
above, the ACHP had to amend the regulations and respond in a timely 
manner to the court's order. Moreover, it is important to note that 
this rulemaking involved a fairly limited scope of issues.

Miscellaneous Issues

    Several public comments addressed issues beyond the limited scope 
of this rulemaking. Again, this rulemaking was intended to respond 
primarily to the issues raised by the NMA v. Slater and NMA v. Fowler 
decisions regarding the authority of the ACHP to overturn agency effect 
determinations and the issue of delegated programs. The ACHP decided to 
respond to the following comments, even though they were not 
particularly germane to the present rulemaking. The ACHP may consider 
some of those issues in future rulemakings.
    If the dispute is over eligibility for inclusion on the National 
Register, the Keeper should be included in the process. Several members 
of the public made this comment. However, it is unclear what was meant 
since the Section 106 regulations already provide for referral to the 
Keeper when an agency and SHPO/THPO disagree regarding the eligibility 
of a property for listing on the National Register of Historic Places. 
36 CFR 800.4(c)(2). To the extent that the comment advocates that such 
referral be made when consulting parties other than the SHPO/THPO 
dispute a determination regarding a property's eligibility, the ACHP 
disagrees. The practice of agency and SHPO/THPO eligibility 
determinations has been long establish in practice and in law (see 36 
CFR 63.3), and there is no indication of such an arrangement having 
presented problems in the Section 106 process.
    The ACHP rules contain no significance or materiality limitations, 
such as those contained in the National Environmental Policy Act that 
limit most of that statute's key provisions only to actions that might 
significantly affect the environment. In contrast, the ACHP Section 106 
rules seek to require agencies to examine all effects of any intensity, 
whether or not the effects are significant. Where there is an 
alteration of a historic property, any diminishment of any aspect of 
its historic integrity, however measured and however great or small, 
can support a finding of adverse effect. While the NEPA statute itself 
contains the limiting factors of ``major'' Federal actions and 
``significant'' effects, the NHPA does not. Regardless, the Section 106 
regulations allow agencies to weed out at the very start of the process 
those undertakings that generically would not affect historic 
properties (Section 800.3(a)), and provides a shortened process for 
those undertakings that would not affect historic properties within 
their area of potential effects (Section 800.4(d)).
    Opponents of the Section 4(f) review process claimed its 
protections were unnecessary because Section 106 was in place. Now the 
opponents of responsible procedure aim to significantly weaken Section 
106. Section 4(f) could still be eliminated when the Transportation Act 
comes before Congress in January. If Section 4(f) is removed and 
Section 106 severely weakened, there will be no meaningful protection 
for significant historic resources. Several members of the public 
repeated this comment verbatim. The ACHP does not believe the 
amendments in this rulemaking ``significantly weaken'' the Section 106

[[Page 40552]]

process. Moreover, as of the date of this notice, Congress has not 
taken action on the legislation mentioned in these comments. Various 
versions of the bill are under consideration by the Congress. Due to 
the uncertainty of the actual legislation that may or may not be passed 
by Congress, the ACHP can only speculate on the eventual relationship 
between Section 106 and Section 4(f). Once Congress and the President 
have acted on the legislation, the ACHP will be able to assess the 
situation and determine whether any future regulatory action is needed.
    Restrict the ability of agencies to exclude consulting parties in 
order to silence objections: This could be accomplished, for example, 
by allowing the SHPO/THPO or the ACHP to invite a consulting party to 
participate in the Section 106 review if the federal agency has 
rejected the party's request. Several members of the public endorsed 
this concept. In light of the limited scope of this rulemaking and the 
fact that this issue was not identified in the NPRM, the ACHP does not 
believe it is appropriate to address this issue in the final 
rulemaking. The ACHP also notes that the current provision was the 
subject of extensive comment and negotiation in the previous rulemaking 
and any alteration of it would require thorough public airing.
    Very concerned with the ACHP's rules extending the protections of 
Section 106 to properties only ``potentially eligible'' for the 
National Register of Historic Places. Only those properties actually 
listed on the National Register or formally determined eligible for 
such listing by the Keeper should be within the scope of Section 106. 
This very same issue was raised in the NMA v. Slater case. That court 
sided with the ACHP's interpretation of the NHPA that the properties 
within the scope of Section 106 include those that meet the criteria 
for listing on the National Register, even though they have not been 
formally determined eligible by the Keeper and that the process for 
identifying them in the Section 106 regulations is appropriate. As the 
ACHP stated in a previous preamble to the Section 106 regulations 
(which the court specifically cited approvingly in its decision): 
``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. * * * 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.'' 65 FR 77705.

IV. Impact Analysis

The Regulatory Flexibility Act

    The ACHP certifies that the amendments will not have a significant 
economic impact on a substantial number of small entities. The 
amendments in their proposed version only impose mandatory 
responsibilities on Federal agencies. As set forth in Section 106 of 
the NHPA, the duties to take into account the effect of an undertaking 
on historic resources and to afford the ACHP a reasonable opportunity 
to comment on that undertaking are Federal agency duties. Indirect 
effects on small entities, if any, created in the course of a Federal 
agency's compliance with Section 106 of the NHPA, must be considered 
and evaluated by that Federal agency.

The Paperwork Reduction Act

    The amendments do not impose reporting or record-keeping 
requirements or the collection of information as defined in the 
Paperwork Reduction Act.

The National Environmental Policy Act

    It is the determination of the ACHP that this action is not a major 
Federal action significantly affecting the environment. Regarding the 
National Environmental Policy Act (NEPA) documents for the rule that is 
being amended, as a whole, please refer to our Notice of Availability 
of Environmental Assessment and Finding of No Significant Impact at 65 
FR 76983 (December 8, 2000). A supplemental Environmental Assessment 
and Finding of No Significant Impact are not deemed necessary because 
(1) these amendments do not present substantial changes in the rule 
that are relevant to environmental concerns; (2) most of the amendments 
are a direct result of a court order; and (3) there are no significant 
new circumstances or information relevant to environmental concerns and 
bearing on the rule or its impacts.

Executive Orders 12866 and 12875

    The ACHP is exempt from compliance with Executive Order 12866 
pursuant to implementing guidance issued by the Office of Management 
and Budget's (OMB) Office of Information and Regulatory Affairs in a 
memorandum dated October 12, 1993. The ACHP 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 Unfunded Mandates Reform Act

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

Executive Order 12898

    The amendments do not cause adverse human health or environmental 
effects, but, instead, seek to avoid adverse effects on historic 
properties throughout the United States. The participation and 
consultation process established by the Section 106 process 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 ACHP 
considers environmental justice issues in reviewing analysis of 
alternatives and mitigation options, particularly when Section 106 
compliance is coordinated with NEPA compliance.

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

[[Page 40553]]

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 August 5, 2004.

V. Text of Amendments

List of Subjects in 36 CFR Part 800

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

0
For the reasons stated in the preamble, the Advisory Council on 
Historic Preservation amends 36 CFR part 800 as set forth below:

PART 800--PROTECTION OF HISTORIC PROPERTIES

0
1. The authority citation for part 800 continues to read as follows:

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


0
2. Amend Sec.  800.4 by revising paragraph (d) to read as follows:


Sec.  800.4  Identification of historic properties.

* * * * *
    (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.
    (i) 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.
    (ii) If the SHPO/THPO objects within 30 days of receipt of an 
adequately documented finding, the agency official shall either consult 
with the objecting party to resolve the disagreement, or forward the 
finding and supporting documentation to the Council and request that 
the Council review the finding pursuant to paragraphs (d)(1)(iv)(A) 
through (d)(1)(iv)(C) of this section. When an agency official forwards 
such requests for review to the Council, the agency official shall 
concurrently notify all consulting parties that such a request has been 
made and make the request documentation available to the public.
    (iii) During the SHPO/THPO 30 day review period, the Council may 
object to the finding and provide its opinion regarding the finding to 
the agency official and, if the Council determines the issue warrants 
it, the head of the agency. A Council decision to provide its opinion 
to the head of an agency shall be guided by the criteria in appendix A 
to this part. The agency shall then proceed according to paragraphs 
(d)(1)(iv)(B) and (d)(1)(iv)(C) of this section.
    (iv) (A) Upon receipt of the request under paragraph (d)(1)(ii) of 
this section, the Council will have 30 days in which to review the 
finding and provide the agency official and, if the Council determines 
the issue warrants it, the head of the agency with the Council's 
opinion regarding the finding. A Council decision to provide its 
opinion to the head of an agency shall be guided by the criteria in 
appendix A to this part. If the Council does not respond within 30 days 
of receipt of the request, the agency official's responsibilities under 
section 106 are fulfilled.
    (B) The person to whom the Council addresses its opinion (the 
agency official or the head of the agency) shall take into account the 
Council's opinion before the agency reaches a final decision on the 
finding.
    (C) The person to whom the Council addresses its opinion (the 
agency official or the head of the agency) shall then prepare a summary 
of the decision that contains the rationale for the decision and 
evidence of consideration of the Council's opinion, and provide it to 
the Council, the SHPO/THPO, and the consulting parties. The head of the 
agency may delegate his or her duties under this paragraph to the 
agency's senior policy official. If the agency official's initial 
finding will be revised, the agency official shall proceed in 
accordance with the revised finding. If the final decision of the 
agency is to affirm the initial agency finding of no historic 
properties affected, once the summary of the decision has been sent to 
the Council, the SHPO/THPO, and the consulting parties, the agency 
official's responsibilities under section 106 are fulfilled.
    (D) The Council shall retain a record of agency responses to 
Council opinions on their findings of no historic properties affected. 
The Council shall make this information available to the public.
    (2) Historic properties affected. If the agency official finds that 
there are historic properties which may be affected by the undertaking, 
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.

0
3. Amend Sec.  800.5 by revising paragraphs (c)(1), (2) and (3) to read 
as follows:


Sec.  800.5  Assessment of adverse effects.

* * * * *
    (c) * * *
    (1) Agreement with, or no objection to, finding. Unless the Council 
is reviewing the finding pursuant to papagraph (c)(3) of this section, 
the agency official may proceed after the close of the 30 day review 
period if the SHPO/THPO has agreed with the finding or has not provided 
a response, and no consulting party has objected. The agency official 
shall then carry out the undertaking in accordance with paragraph 
(d)(1) of this section.
    (2) Disagreement with finding.
    (i) If within the 30 day review period the SHPO/THPO or any 
consulting party notifies the agency official in writing that it 
disagrees with the finding and specifies the reasons for the 
disagreement in the notification, the agency official shall either 
consult with the party to resolve the disagreement, or request the 
Council to review the finding pursuant to paragraphs (c)(3)(i) and 
(c)(3)(ii) of this section. The agency official shall include with such 
request the documentation specified in Sec.  800.11(e). The agency 
official shall also concurrently notify all consulting parties that 
such a submission has been made and make the submission documentation 
available to the public.
    (ii) If within the 30 day review period the Council provides the 
agency official and, if the Council determines the issue warrants it, 
the head of the agency, with a written opinion objecting to the 
finding, the agency shall then proceed according to paragraph 
(c)(3)(ii) of this section. A Council decision to provide its opinion 
to the head of an agency shall be guided by the criteria in appendix A 
to this part.
    (iii) The agency official should seek the concurrence of any Indian 
tribe or

[[Page 40554]]

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 and object to the finding pursuant to 
paragraph (c)(2)(ii) of this section.
    (3) Council review of findings.
    (i) When a finding is submitted to the Council pursuant to 
paragraph (c)(2)(i) of this section, the Council shall review the 
finding and provide the agency official and, if the Council determines 
the issue warrants it, the head of the agency with its opinion as to 
whether the adverse effect criteria have been correctly applied. A 
Council decision to provide its opinion to the head of an agency shall 
be guided by the criteria in appendix A to this part. The Council will 
provide its opinion within 15 days of receiving the documented finding 
from the agency official. The Council at its discretion may extend that 
time period for 15 days, in which case it shall notify the agency of 
such extension prior to the end of the initial 15 day period. If the 
Council does not respond within the applicable time period, the agency 
official's responsibilities under section 106 are fulfilled.
    (ii) (A) The person to whom the Council addresses its opinion (the 
agency official or the head of the agency) shall take into account the 
Council's opinion in reaching a final decision on the finding.
    (B) The person to whom the Council addresses its opinion (the 
agency official or the head of the agency) shall prepare a summary of 
the decision that contains the rationale for the decision and evidence 
of consideration of the Council's opinion, and provide it to the 
Council, the SHPO/THPO, and the consulting parties. The head of the 
agency may delegate his or her duties under this paragraph to the 
agency's senior policy official. If the agency official's initial 
finding will be revised, the agency official shall proceed in 
accordance with the revised finding. If the final decision of the 
agency is to affirm the initial finding of no adverse effect, once the 
summary of the decision has been sent to the Council, the SHPO/THPO, 
and the consulting parties, the agency official's responsibilities 
under section 106 are fulfilled.
    (C) The Council shall retain a record of agency responses to 
Council opinions on their findings of no adverse effects. The Council 
shall make this information available to the public.
* * * * *

0
4. Amend Sec.  800.8 by revising paragraph (c)(3) to read as follows:


Sec.  800.8  Coordination with the National Environmental Policy Act.

* * * * *
    (c) * * *
    (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 review the objection and notify the agency 
as to its opinion on the objection.
    (i) If the Council agrees with the objection:
    (A) The Council shall provide the agency official and, if the 
Council determines the issue warrants it, the head of the agency with 
the Council's opinion regarding the objection. A Council decision to 
provide its opinion to the head of an agency shall be guided by the 
criteria in appendix A to this part. The person to whom the Council 
addresses its opinion (the agency official or the head of the agency) 
shall take into account the Council's opinion in reaching a final 
decision on the issue of the objection.
    (B) The person to whom the Council addresses its opinion (the 
agency official or the head of the agency) shall prepare a summary of 
the decision that contains the rationale for the decision and evidence 
of consideration of the Council's opinion, and provide it to the 
Council. The head of the agency may delegate his or her duties under 
this paragraph to the agency's senior Policy Official. If the agency 
official's initial decision regarding the matter that is the subject of 
the objection will be revised, the agency official shall proceed in 
accordance with the revised decision. If the final decision of the 
agency is to affirm the initial agency decision, once the summary of 
the final decision has been sent to the Council, the agency official 
shall continue its compliance with this section.
    (ii) If the Council disagrees with the objection, the Council shall 
so notify the agency official, in which case the agency official shall 
continue its compliance with this section.
    (iii) If the Council fails to respond to the objection within the 
30 day period, the agency official shall continue its compliance with 
this section.
* * * * *

0
5. Amend Sec.  800.14 by revising paragraph (c) to read as follows:


Sec.  800.14  Federal agency program alternatives.

* * * * *
    (c) Exempted categories.
    (1) Criteria for establishing. The Council or an agency official 
may propose a program or category of 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 proponent of the exemption 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 proponent of the exemption 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 proponent of the exemption 
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 
an exemption proposal 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 relevant 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

[[Page 40555]]

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 proponent of the exemption shall publish notice of 
any approved exemption in the Federal Register.
* * * * *

0
6. Amend Sec.  800.16 by revising paragraph (y) and adding paragraph 
(z) to read as follows:


Sec.  800.16  Definitions.

* * * * *
    (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; and those 
requiring a Federal permit, license or approval.
    (z) Senior policy official means the senior policy level official 
designated by the head of the agency pursuant to section 3(e) of 
Executive Order 13287.

    Dated: June 30, 2004.
John M. Fowler,
Executive Director.
[FR Doc. 04-15218 Filed 7-2-04; 8:45 am]
BILLING CODE 4310-10-P