Protection of Historic Properties

Part VI

Advisory Council on Historic Preservation

_______________________________________________________________________

36 CFR Part 800

Protection of Historic Properties; Proposed Rule

Proposed Rules

ADVISORY COUNCIL ON HISTORIC PRESERVATION

36 CFR Part 800

Protection of Historic Properties

AGENCY: Advisory Council on Historic Preservation.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Advisory Council on Historic Preservation is proposing

changes to its regulations in order to implement the 1992 amendments to

the National Historic Preservation Act and to improve and streamline

the regulations in accordance with the Administration's reinventing

government initiatives. The proposed changes will modify the process by

which Federal agencies consider the effects of their undertakings on

historic properties. On October 3, 1994, the Council published for

comment in the Federal Register a notice of proposed rulemaking that

set forth changes to the Section 106 process. After reviewing the

comments on the October 1994 proposal and in response to agency

downsizing and restructuring, the Council substantially changed its

proposal to better meet the streamlining goals of the Council.

Therefore, the Council is publishing a new notice of proposed

rulemaking. In its streamlined proposal, the Council seeks to balance

the interests and concerns of various users of the Section 106 process,

including Federal agencies, State Historic Preservation Officers

(SHPOs), Native Americans and Native Hawaiians, industry and the

public.

DATES: Comments must be received on or before November 12, 1996. The

Council will provide on request an additional 30 days for an Indian

tribe to submit comments. A representative of the tribal government

must file a request with the Council no later than November 12, 1996.

agencies, State Historic Preservation Officers

(SHPOs), Native Americans and Native Hawaiians, industry and the

public.

DATES: Comments must be received on or before November 12, 1996. The

Council will provide on request an additional 30 days for an Indian

tribe to submit comments. A representative of the tribal government

must file a request with the Council no later than November 12, 1996.

ADDRESSES: Comments should be addressed to the Executive Director,

Advisory Council on Historic Preservation, 1100 Pennsylvania Avenue,

Suite 809, Washington, D.C. 20004. Fax 202- 606-8672. Comments may be

submitted via E-Mail to [email protected].

FOR FURTHER INFORMATION CONTACT: Stephanie Woronowicz, Information

Assistant, Advisory Council on Historic Preservation, 1100 Pennsylvania

Avenue, Suite 809, Washington, D.C. 20004 (202) 606-8503.

SUPPLEMENTARY INFORMATION:

I. Background

Section 106 of the National Historic Preservation Act of 1966, as

amended, 16 U.S.C. 470f, requires Federal agencies to take into account

the effect of their undertakings on properties included in or eligible

for inclusion in the National Register of Historic Places and to afford

the Council a reasonable opportunity to comment on such undertakings.

Public Law 102-575 was enacted in October 1992, and contains amendments

to the National Historic Preservation Act which affect the way Section

106 review is carried out under the Council's regulations.

Additionally, as part of the Administration's National Performance

Review and overall streamlining efforts, the Council undertook a review

of the current regulatory process to identify potential changes that

could improve the operation of the Section 106 process and conform it

to the principles of this Administration. The Council commenced an

information-gathering effort to assess the current Section 106 process

and to identify desirable changes

Performance

Review and overall streamlining efforts, the Council undertook a review

of the current regulatory process to identify potential changes that

could improve the operation of the Section 106 process and conform it

to the principles of this Administration. The Council commenced an

information-gathering effort to assess the current Section 106 process

and to identify desirable changes.

As a part of this effort, the Council sent a questionnaire to 1,200

users of the Section 106 process, including Federal agencies, SHPOs,

State and local governments, applicants for Federal assistance, Native

Americans, preservation groups, contractors involved in the process,

and members of the public. The questionnaires sought opinions on the

current regulatory process and ideas for enhancing the process. The

Council received over 400 responses. After analyzing the responses and

holding several meetings with Federal Preservation Officers and SHPOs,

the Council staff presented its preliminary findings to a special

Council member Task Force comprised of the Department of

Transportation, the National Conference of State Historic Preservation

Officers, the National Trust for Historic Preservation, and the

Council's Native American representative, expert member and chairman.

The Task Force adopted the following findings and attempted to

craft the regulations to reflect them: (1) Federal agencies and SHPOs

should be given greater authority to conclude Section 106 review; (2)

the Council should spend more time monitoring program trends and

overall performance of Federal agencies and SHPOs and less time

reviewing individual cases or participating in case-specific

consultation; (3) Section 106 review requirements should be integrated

with environmental review required by other statutes; (4) enforcement

of Section 106 should be increased and specific remedies should be

provided for failure to comply; and (5) there should be expanded

opportunities for public involvement in the Section 106 process

viewing individual cases or participating in case-specific

consultation; (3) Section 106 review requirements should be integrated

with environmental review required by other statutes; (4) enforcement

of Section 106 should be increased and specific remedies should be

provided for failure to comply; and (5) there should be expanded

opportunities for public involvement in the Section 106 process.

In the proposed regulations published in the Federal Register on

October 3, 1994, the Council sought to meet the stated findings and

objectives adopted by the Task Force. The Council received

approximately 370 comments on the October 1994 proposal. Generally,

commenters supported the overall goals and direction adopted by the

Task Force, but found that the proposed regulations failed to implement

the stated goals. Particularly, many commenters disagreed with the role

of the Council as arbiter of disputes over application of the

regulations, the public appeals process, and provisions dealing with

enforcement. At a Council membership meeting in February 1995, the

Council decided to continue its dialogue with major user groups of the

Section 106 process in an effort to resolve their concerns. The Council

membership also reaffirmed the objective of reducing regulatory burdens

on Federal agencies and SHPOs and focussing the review process on

important historic preservation issues. The Council solicited the views

of users of the Section 106 process once again by convening separate

focus groups with local governments, industry representatives, Native

Americans, and Federal agency officials in May 1995. As a result of

these meetings, and after considering the views of commenters, the

Council drafted a substantially revised proposal and circulated the

draft informally in July 1995 to the 370 commenters who had commented

on the October 1994 notice of proposed rulemaking.

The Council received approximately 80 comments on the informally

distributed draft

nd Federal agency officials in May 1995. As a result of

these meetings, and after considering the views of commenters, the

Council drafted a substantially revised proposal and circulated the

draft informally in July 1995 to the 370 commenters who had commented

on the October 1994 notice of proposed rulemaking.

The Council received approximately 80 comments on the informally

distributed draft. Generally, the commenters found the July 1995 draft

to be an improvement on the October 1994 proposal. Again, however,

Federal agencies noted that the Council did not go far enough in

removing itself from routine cases and in bringing finality to the

process. Federal agencies also remained concerned that the public

participation provisions were too open-ended and inadequately defined

the roles and rights of participants in the process. Federal agencies

also considered the (National Environmental Policy Act (NEPA)

integration section to be a step forward, but submitted that its

substitution provisions should be extended to environmental assessments

as well as environmental impact statements and, overall, could provide

better integration of NHPA and NEPA. In contrast, the majority of SHPOs

did not want the Council to remove itself further from the Section 106

process and did not want the NEPA integration section to be extended to

environmental assessments. The National Conference of State Historic

Preservation Officers, as well as many of its member SHPOs, supported

the public participation process as set forth in the July 1995 draft,

but sought clarification on the roles and responsibilities of Federal

agencies under Section 106. Industry commenters deemed the July 1995 a

vast improvement over the 1994 proposal, however, they remained

concerned with the appeals procedures and found the process too

burdensome. Industry also remained concerned about the public

participation provisions

s as set forth in the July 1995 draft,

but sought clarification on the roles and responsibilities of Federal

agencies under Section 106. Industry commenters deemed the July 1995 a

vast improvement over the 1994 proposal, however, they remained

concerned with the appeals procedures and found the process too

burdensome. Industry also remained concerned about the public

participation provisions. The current proposal is an attempt to balance

the many views of the Section 106 users on how to achieve the Task

Force's goals while fulfilling the Council's mission of ensuring

reasonable consideration of historic properties in agency decision-

making.

II. Summary of Regulatory Changes

The proposed regulations would significantly modify the current

Section 106 process. The regulations provide a greater opportunity for

Federal agencies to resolve historic preservation issues with the SHPO

and other involved parties, without direct Council involvement. As a

result, the proposed regulations redefine the role of the Council to

involve the Council in controversial cases where the Council's unique

perspective and expertise can facilitate effective solutions. The

proposed regulations also provide new flexible methods of obtaining

Council comment on certain undertakings or effects.

Subpart A--Background and Policy

This Subpart adds a section which describes the three methods of

complying with Section 106: alternate procedures, exemptions or

programmatic agreements, and general procedures set forth in Subpart B.

As one of those methods, it encourages Federal agencies to meet their

Section 110 (a)(2)(E) requirements by developing their own alternate

procedures for compliance. This Subpart also modifies the description

of the participants in the Section 106 process and the roles of the

participants. Participants fall into three categories: principal

parties, consulting parties, and the public

bpart B.

As one of those methods, it encourages Federal agencies to meet their

Section 110 (a)(2)(E) requirements by developing their own alternate

procedures for compliance. This Subpart also modifies the description

of the participants in the Section 106 process and the roles of the

participants. Participants fall into three categories: principal

parties, consulting parties, and the public. Principal parties are

those with statutory responsibilities under Section 106: the Federal

agency official and the Council. Consulting parties are those with

consultative responsibilities under the Act: the SHPO and Indian tribes

and Native Hawaiian organizations. Affected parties are those with

direct legal or financial interests in the effects on undertaking on

historic properties: local governments and applicants for Federal

assistance or permission.. The public, under the proposed regulations,

includes the general public at large and the ``interested public.'' The

proposed regulations define the interested public to include

individuals and organizations that have indicated to the agency

official a particular interest in the effect of the undertaking.

Interested public includes owners of real property affected directly by

the undertaking, traditional cultural authorities, the SHPO when the

Indian tribe has assumed the function of the SHPO under Section

101(d)(2) of the Act and others that request to be treated as such.

Subpart B--Section 106 Procedures

ndicated to the agency

official a particular interest in the effect of the undertaking.

Interested public includes owners of real property affected directly by

the undertaking, traditional cultural authorities, the SHPO when the

Indian tribe has assumed the function of the SHPO under Section

101(d)(2) of the Act and others that request to be treated as such.

Subpart B--Section 106 Procedures

This Subpart provides the standard general procedures for

compliance with the Act. It adds a new section which clarifies how a

Federal agency should initiate the 106 process in order to emphasize

the importance of early planning and coordination with reviews required

by other statutes. By emphasizing the importance of proper initiation

of the process, the Council seeks to address concerns regarding undue

delay in projects. The identification step at Section 800.4 has been

changed by adding two new concepts to enhance flexibility in the

regulations. First, when locating historic properties, the proposed

regulations provide that an agency must consider the scope and type of

identification necessary based on a variety of factors, including the

magnitude of the undertaking and its likely effects. It is intended

that Federal agencies will focus their identification efforts on those

portions of the area of potential effects most directly related to

their jurisdictional or financial control. Second, the proposed

regulations allow for ``phased identification'' to accommodate the

practice of choosing several alternatives in a project. As specific

aspects or locations of a project are determined, then the agency

official completes the identification.

This Subpart also removes the separate ``effect'' determination

step and now proposes combining the ``no historic properties'' finding

and the ``no effect'' finding into a single ``no historic properties

affected'' finding requiring 15 days for SHPO review

atives in a project. As specific

aspects or locations of a project are determined, then the agency

official completes the identification.

This Subpart also removes the separate ``effect'' determination

step and now proposes combining the ``no historic properties'' finding

and the ``no effect'' finding into a single ``no historic properties

affected'' finding requiring 15 days for SHPO review. The agency moves

directly to assessing adverse effects once it determines that historic

properties may be affected. The adverse effect criteria currently in

Section 800.9(b) have been revised to better define adverse effects and

have been moved to Section 800.5. The current exceptions to the

criteria have been transformed into ``standard treatments'' listed in

Section 800.5(a)(4) with the addition of a bridge replacement standard

treatment and a modification of the exception for archeological

resources that clarifies the basis for using the standard treatment and

ensures public dissemination of any resulting archeological studies.

The proposed regulations also remove the Council from review of no

adverse effect determinations and standard treatment agreements. The

amendments allow Federal agencies to conclude the Section 106 process

at this level without Council review, subject to specific requests for

Council review of agency findings under Section 800.9(a).

The proposed regulations, in Section 800.6(a)(1), specify instances

when an agency official must request the Council to become involved in

the consultation to resolve adverse effects. The Council may or may not

participate after receiving such a request. The proposed regulations

provide that the Council may enter the consultation on its own

initiative if the Council determines it is necessary to ensure that the

purposes of Section 106 are met, i.e., that an agency is properly

taking into account the effects of the undertaking on historic

properties and affording the Council its reasonable opportunity to

comment

fter receiving such a request. The proposed regulations

provide that the Council may enter the consultation on its own

initiative if the Council determines it is necessary to ensure that the

purposes of Section 106 are met, i.e., that an agency is properly

taking into account the effects of the undertaking on historic

properties and affording the Council its reasonable opportunity to

comment. The proposed regulations, in 800.6(b)(1)(ii), also allow any

principal party to request Council involvement in the consultation. If

the Council does not participate in consultation, then the Council does

not review two-party agreements negotiated between the SHPO and the

Federal agency, but the regulations do require Federal agencies to file

copies of the agreement with the Council as a basis for general Council

oversight of agency compliance with Section 106. If the SHPO and the

agency cannot reach a solution, the proposed regulations require that

the Council join the consultation to attempt resolution before allowing

for termination of consultation and the provision of formal comments by

the Council membership. The proposed regulations provide that these

formal Council comments be considered by the head of the agency in

accordance with Section 110(l) of the Act.

Subpart B provides a new section on coordination with the National

Environmental Policy Act (NEPA). It allows for the use of the NEPA

process and documentation for the preparation

the provision of formal comments by

the Council membership. The proposed regulations provide that these

formal Council comments be considered by the head of the agency in

accordance with Section 110(l) of the Act.

Subpart B provides a new section on coordination with the National

Environmental Policy Act (NEPA). It allows for the use of the NEPA

process and documentation for the preparation

of an environmental impact statement (EIS) and environmental assessment

(EA) to comply with Section 106 procedures as long as the draft EIS or

EA meets certain specific standards. The agency must submit the EA or

draft EIS to the Council, the SHPO, other consulting parties, and the

interested public during the public comment period and any agreed upon

mitigation measures must be incorporated in the record of decision. The

purpose of this section is to encourage the integration of the

resolution of adverse effects on historic properties into agency NEPA

compliance.

The proposed regulations also clarify in Section 800.9 the process

for assessing certain agency findings under Sections 800.4 and 800.5.

Such requests may only be made by the SHPO, another consulting party or

a member of the interested public that has participated in the Section

106 process and must be made before the undertaking is approved by the

agency. The proposed regulations also provide strict time limits for

the Council to act on the request and provide its views to the agency

official. The Council may request the agency official to delay final

action for up to 30 days while the Council considers the matter, but

the agency official is not required to do so.

In shifting the emphasis from Council review of individual cases to

assessing the overall quality of Federal agency or SHPO performance,

the proposed regulations add a provision that requires agencies to

maintain documentation of actions taken in compliance with Section 106

and to provide the Council with such information upon Council request

but

the agency official is not required to do so.

In shifting the emphasis from Council review of individual cases to

assessing the overall quality of Federal agency or SHPO performance,

the proposed regulations add a provision that requires agencies to

maintain documentation of actions taken in compliance with Section 106

and to provide the Council with such information upon Council request.

Section 800.10 addresses special requirements for National Historic

Landmarks and remains unchanged for the most part.

Documentation standards have been clarified to provide general

requirements regarding adequacy, format and confidentiality in Section

800.11(a)-(c). Sections 800.11(d)-(h) remain largely unchanged from the

current 800.8(a)-(d) except that a new documentation requirement has

been added for a finding of no historic properties present or affected.

In order to comply with the 1992 amendments which mandated

participation of Indian tribes and Native Hawaiian organizations, the

Council added a new section in 800.12 on involving Indian tribes and

Native Hawaiians in the consultation process. This section sets forth

specific requirements for involvement at each step of the Section 106

process and is designed to facilitate participation and agency planning

for involvement.

Section 800.13 changes the Council's current emergency procedures

contained in 800.12 by encouraging agencies to develop internal

procedures, in consultation with the Council and the SHPO, which

address how historic properties will be considered during emergencies.

If an agency has not developed such procedures, the regulations

encourage agencies to develop programmatic agreements that include

provisions for dealing with historic properties during emergencies. If

there is no applicable programmatic agreement, then the agency shall

give the Council seven days to comment prior to the undertaking where

the agency determines circumstances permit

ergencies.

If an agency has not developed such procedures, the regulations

encourage agencies to develop programmatic agreements that include

provisions for dealing with historic properties during emergencies. If

there is no applicable programmatic agreement, then the agency shall

give the Council seven days to comment prior to the undertaking where

the agency determines circumstances permit.

Section 800.14 is similar to the current Section 800.11 which

addresses post review discoveries except that it adds the requirement

that agencies must make reasonable efforts to avoid or minimize adverse

effects on unplanned-for discoveries.

Subpart C--Program Alternatives

This Subpart provides new options for agencies to pursue in

streamlining their Section 106 compliance activities and incorporates

the current practice of developing Programmatic Agreements to

facilitate coordination between Section 106 and an agency's particular

program.

Section 800.15 provides five alternative methods of fulfilling

Section 106 responsibilities, instead of following the procedures set

forth in Subpart B. First, Section 800.15(a) states that Federal

agencies may develop procedures and, when they are determined to be

consistent with the Council's regulations, substitute them for

comparable portions of the Council's regulations. Second, Section

800.15(b) provides for the development of Programmatic Agreements to

govern particular agency programs or complex or multiple undertakings;

this section is substantively unchanged from the current programmatic

agreement section in 800.13 of the Council's regulations, but does

change minor standards and requirements in the development of such

agreements. Third, Section 800.15(c) allows for agencies to establish

exempted categories for undertakings that have foreseeable effects

which are not likely to be adverse

iple undertakings;

this section is substantively unchanged from the current programmatic

agreement section in 800.13 of the Council's regulations, but does

change minor standards and requirements in the development of such

agreements. Third, Section 800.15(c) allows for agencies to establish

exempted categories for undertakings that have foreseeable effects

which are not likely to be adverse. Fourth, Section 800.15(d) allows

the Council to offer a streamlined method of treating a category of

historic properties or a category of effects by allowing for standard

treatments. Finally, Section 800.15(e) provides an efficient mechanism

for fulfilling the requirement of seeking Council comment. This section

allows agencies to request Council comment on a category of routine or

repetitive undertakings instead of conducting individual reviews.

The Council has reserved Section 800.16 to address state, tribal

and local program alternatives, but has deleted the current Section

800.7 on state agreements.

Section 800.17 contains definitions. Several definitions have been

changed or deleted. ``Agency official'' has been deleted as redundant

in light of Section 800.2(a)(1). ``Approval of the expenditure of

funds'' has been added to clarify the triggering event for many Section

106 reviews. ``Area of potential effects'' has been changed in light of

the removal of the ``effect'' determination step in the process and is

now limited to the area where adverse effects may occur. ``Comment''

and ``consultation'' and ``effect'' have been added for clarification.

``Head of the agency'' has been added as a result of the 1992

amendments. ``Historic properties'' definition has been changed to

include properties of traditional religious and cultural importance to

Indian tribes or Native Hawaiian organizations that meet the National

Register criteria. ``Indian lands'' has been changed to ``tribal

lands'' and redefined as in the statute. ``Indian tribe'' is changed

and tracks the exact language in the statute

c an adequate chance to

voice its concerns to Federal decision makers while recognizing

legitimate concerns about avoiding

unnecessary procedural burdens and delays and protecting the privacy of

non-governmental parties involved in the Section 106 process. How can

the regulations be enhanced to provide for meaningful public

involvement in a timely and effective fashion?

2. Local Governments

Several agencies seek an enhanced role for certified local

governments in the Section 106 process and find that the regulations do

not go far enough in providing for their involvement. The definition of

``Head of the agency'' provides that the head of a local government

shall be considered the head of the agency where it has been delegated

responsibility for Section 106 compliance. How can we better

incorporate local governments into the process without confusing the

regulations?

3. Council Involvement

In this proposal, the Council has removed itself from review of no

adverse effect determinations and routine Memoranda of Agreement with

the intent of deferring to agency-SHPO decision making as a general

rule. At the same time, as the Federal agency assigned to review the

policies and programs of Federal agencies on historic preservation

matters, the Council has retained the right to enter the consultative

process on its own motion or when asked requested by the Agency

Official. The regulations set forth in 800.6 several criteria which

indicate when an Agency Official must invite the Council to become

involved in the consultation. They also set a general standard for when

the Council will enter the process without a request. The Council

intends on exercising its right to enter the process sparingly. Are the

criteria set forth in 800.6(a)(1)(i) workable? Can the regulations

better define when the Council will intervene on its own initiative?

4. Council Review of Agency Findings

l to become

involved in the consultation. They also set a general standard for when

the Council will enter the process without a request. The Council

intends on exercising its right to enter the process sparingly. Are the

criteria set forth in 800.6(a)(1)(i) workable? Can the regulations

better define when the Council will intervene on its own initiative?

4. Council Review of Agency Findings

Section 800.9 provides for Council review of agency findings where

the Council has not participated in the consultative process pursuant

to 800.6. The Council's right to review agency findings is limited to

whether the agency followed the appropriate procedures when making an

eligibility determination under 800.4(c)(2), a no historic properties

present or affected finding under 800.4(d), or a no adverse effect

finding or resolution by standard treatment under 800.5(c). The right

to review is also limited by the requirement that the request be made

prior to the agency approval of the expenditure of funds or the

issuance of a license, permit or other approval. The Council has 10

days to decide if the request warrants Council review and 30 days to

decide the merits of the case. The Council finds that the above review

process strikes a balance between allowing review of procedurally

deficient agency decisions and limiting review to situations that could

not have been corrected earlier in the process. Some Federal agencies

find that the review process in 800.9 provides the Council too much

authority to second guess agency decisions and promotes a lack of

finality to the process. How can the regulations accommodate the

Council's concerns and those of other Federal agencies?

5. Time Frames

decisions and limiting review to situations that could

not have been corrected earlier in the process. Some Federal agencies

find that the review process in 800.9 provides the Council too much

authority to second guess agency decisions and promotes a lack of

finality to the process. How can the regulations accommodate the

Council's concerns and those of other Federal agencies?

5. Time Frames

Throughout the regulations, time frames are set for reviews

conducted by SHPOs and the Council. Generally, they allow thirty days

for responding to agency requests, although some are shorter. These

have been established in an effort to balance the need for an

expeditious process for Federal agencies and applicants with the

recognition of the need for adequate time to evaluate submissions (as

well as the limits on resources available in SHPO offices and at the

Council to respond within the specified time). Do the time frames

achieve this balance or should specific ones be increased or decreased?

6. Alternate Procedures

The proposed regulations allow Federal agencies to substitute their

own procedures for those contained in subpart B. Section 110(a)(2)(E)

of the Act requires that procedures implementing Section 106, including

these substitute procedures, be consistent with the Council's

regulations. The proposed regulations charge the Secretary with making

final determinations on consistency. This is based on the Secretary's

primary responsibility for implementing Section 110. Alternatively, the

Council, as the agency charged by Section 211 of the Act with issuing

the regulations to guide implementation of Section 106, could make such

a determination. A third option is allowing the Federal agency itself

to make a determination of consistency. Is the proposed approach the

best solution?

IV. Impact Analysis

Regulatory Flexibility Act

y for implementing Section 110. Alternatively, the

Council, as the agency charged by Section 211 of the Act with issuing

the regulations to guide implementation of Section 106, could make such

a determination. A third option is allowing the Federal agency itself

to make a determination of consistency. Is the proposed approach the

best solution?

IV. Impact Analysis

Regulatory Flexibility Act

The proposed rules will not have a significant economic impact on a

substantial number of small entities. The Council's regulations, in

their current and revised form, only impose mandatory obligations on

Federal agencies. If a Federal agency is legally authorized and chooses

to delegate its responsibility to local governments, then that Federal

agency must determine whether or not its delegation will have a

significant economic impact on a substantial number of small entities.

The Paperwork Reduction Act

The proposed regulations do not impose reporting requirements or

the collection of information as defined in the Paperwork Reduction

Act.

National Environmental Policy Act

Pursuant to 36 CFR Part 805, the Council is developing a draft

Environmental Assessment and will complete the NEPA evaluation prior to

publication of its final rule.

Executive Orders 12866 and 12875

The Council is exempt from compliance with Executive Orders 12866

pursuant to a memorandum issued by the Office of Management and

Budget's Office of Information and Regulatory Affairs on October 12,

1993. The Council is also exempt from the documentation requirements of

Executive Order 12875 pursuant to a memorandum issued by the same

office on January 11, 1994. Although the Council is exempt, it has

adhered to the principles in both orders by involving State, local and

tribal entities, members of the public, and industry groups in the

development of the proposed regulations as discussed above in the

Background section of this preamble

ation requirements of

Executive Order 12875 pursuant to a memorandum issued by the same

office on January 11, 1994. Although the Council is exempt, it has

adhered to the principles in both orders by involving State, local and

tribal entities, members of the public, and industry groups in the

development of the proposed regulations as discussed above in the

Background section of this preamble. The proposed regulations, like the

current regulations, do not mandate State, local and tribal governments

to participate in the Section 106 process. The State, local and tribal

governments have the option of declining to participate, although the

State Historic Preservation Officers are required to advise and assist

Federal agencies, as appropriate, as part of their duties under Section

101(b)(3)(E) of the National Historic Preservation Act and as a

condition of their Federal grant assistance. In accordance with

Executive Order 12875, the proposed regulations provide flexible

approaches to consideration of historic properties in Federal agency

decision making by allowing for categorical exemptions, standard

treatments, program comments, and programmatic agreements in Section

800.15 of the proposed regulations.

Unfunded Mandates Reform Act of 1995

The Council has determined that its regulations do not fall within

the definition of a Federal mandate as defined in Section 421(6) of the

Unfunded Mandates Reform Act of 1995.

Executive Order 12898

The regulations implementing Section 106 do not pose environmental

risks, but rather, seek to avoid adverse effects on historic properties

in all areas of the United States.

Memorandum Concerning Government-to-Government Relations with Native

American Tribal Governments

tion of a Federal mandate as defined in Section 421(6) of the

Unfunded Mandates Reform Act of 1995.

Executive Order 12898

The regulations implementing Section 106 do not pose environmental

risks, but rather, seek to avoid adverse effects on historic properties

in all areas of the United States.

Memorandum Concerning Government-to-Government Relations with Native

American Tribal Governments

The Council has fully complied with this Memorandum. A Native

American representative served on the Council and was a member of the

Council's Regulations Task Force. The proposed regulations enhance the

opportunity for Native American involvement in the Section 106 process

and clarify the obligation of Federal agencies to consult with Native

Americans.

List of Subjects in 36 CFR Part 800

Administrative practice and procedure, Historic preservation,

Indians, Inter-governmental relations.

Dated: September 10, 1996.

Robert D. Bush,

Executive Director.

Title 36, chapter VIII is amended by revising part 800 to read as

follows:

PART 800--PROTECTION OF HISTORIC AND CULTURAL PROPERTIES

Subpart A--Purposes and Participants

Sec.

800.1 Purposes.

800.2 Participants in the Section 106 process.

Subpart B--Section 106 Procedures

800.3 Initiation of the Section 106 process.

800.4 Identification of historic properties.

800.5 Assessment of adverse effects.

800.6 Resolution of adverse effects.

800.7 Failure to resolve adverse effects.

800.8 Coordination with the National Environmental Policy Act.

800.9 Council review of Section 106 compliance.

800.10 Special requirements for protecting National Historic

Landmarks.

800.11 Documentation standards.

800.12 Consultation with Indian tribes and Native Hawaiian

organizations.

800.13 Emergency situations.

800.14 Post-review discoveries.

Subpart C--Program Alternatives

800.15 Federal agency program alternatives.

800.16 State, Tribal and Local Program Alternatives. (Reserved)

800.17 Definitions.

Subpart A--Purposes and Participants

Sec. 800.1 Purposes.

Landmarks.

800.11 Documentation standards.

800.12 Consultation with Indian tribes and Native Hawaiian

organizations.

800.13 Emergency situations.

800.14 Post-review discoveries.

Subpart C--Program Alternatives

800.15 Federal agency program alternatives.

800.16 State, Tribal and Local Program Alternatives. (Reserved)

800.17 Definitions.

Subpart A--Purposes and Participants

Sec. 800.1 Purposes.

(a) Purposes of the Section 106 process. Section 106 of the

National Historic Preservation Act requires Federal agencies to take

into account the effects of their undertakings on historic properties

and afford the Council a reasonable opportunity to comment on such

undertakings. The procedures in this part define how Federal agencies

meet these statutory responsibilities. The Section 106 process seeks to

accommodate historic preservation concerns with the needs of Federal

undertakings through consultation between the Agency Official and other

parties with an interest in the effects of the undertaking on historic

properties, commencing at the early stages of project planning. The

goal of consultation is to avoid or minimize adverse effects on

historic properties.

(b) Relation to other provisions of the Act. Section 106 is one of

several provisions of the Act designed to further the national policy

of historic preservation. References to those related provisions are

included in the procedures in this part to identify circumstances where

actions under the procedures in this part may be affected by the

independent obligations of those other provisions. Such provisions may

have their own implementing regulations or guidelines and are not

intended to be implemented by the procedures in this part. Guidelines,

policies and procedures issued by other agencies, including the

Secretary, have been cited in the procedures in this part for ease of

access and are not incorporated by reference.

by the

independent obligations of those other provisions. Such provisions may

have their own implementing regulations or guidelines and are not

intended to be implemented by the procedures in this part. Guidelines,

policies and procedures issued by other agencies, including the

Secretary, have been cited in the procedures in this part for ease of

access and are not incorporated by reference.

(c) Methods of complying with section 106 of the Act. The

procedures in this part provide several methods for Federal agencies to

meet their Section 106 responsibilities.

(1) Alternate procedures. Section 110(a)(2)(E) of the Act directs

Federal agencies to develop procedures for implementing section 106 of

the Act that are consistent with the Council's regulations and meet

standards specified in the Act. The Council encourages Federal agencies

to adopt such procedures and, where appropriate, substitute them for

the procedures in subpart B of this part in accordance with

Sec. 800.15(a).

(2) Exemptions and programmatic agreements. If a Federal agency

does not have alternate procedures in place, it should consider the use

of exemptions (Sec. 800.15(c)) and programmatic agreements

(Sec. 800.15(b)) to tailor Section 106 compliance to its program needs.

(3) General procedure. If a Federal agency has not adopted

alternate procedures and the undertaking is not exempted or governed by

a programmatic agreement, the Agency Official shall comply with the

process set forth in subpart B of this part.

ld consider the use

of exemptions (Sec. 800.15(c)) and programmatic agreements

(Sec. 800.15(b)) to tailor Section 106 compliance to its program needs.

(3) General procedure. If a Federal agency has not adopted

alternate procedures and the undertaking is not exempted or governed by

a programmatic agreement, the Agency Official shall comply with the

process set forth in subpart B of this part.

(d) Timing. Section 106 of the Act requires the Agency Official to

complete the section 106 process prior to the approval of the

expenditure of funds or prior to the issuance of any license, permit or

other approval. An Agency Official may expend funds on, or authorize,

nondestructive project planning activities, including field

investigations, before completing compliance with section 106 of the

Act, and may conduct phased compliance with the procedures in subpart B

of this part at different stages of planning, provided that such

actions do not restrict the subsequent consideration of alternatives to

avoid or minimize the undertaking's adverse effects on historic

properties. The Agency Official shall ensure that the section 106

process is initiated early in the undertaking's planning, so that a

broad range of alternatives may be considered.

Sec. 800.2 Participants in the section 106 process.

(a) Principal parties. The following parties have statutory

responsibilities in the section 106 process:

(1) Agency Official. It is the legal obligation of the Federal

agency to fulfill the requirements of section 106 of this Act and to

ensure that an Agency Official with jurisdiction over an undertaking

takes legal and financial responsibility for section 106 compliance in

accordance with subpart B of this part

. The following parties have statutory

responsibilities in the section 106 process:

(1) Agency Official. It is the legal obligation of the Federal

agency to fulfill the requirements of section 106 of this Act and to

ensure that an Agency Official with jurisdiction over an undertaking

takes legal and financial responsibility for section 106 compliance in

accordance with subpart B of this part. The Agency Official has final

approval authority for the undertaking and may be a State, local, or

tribal government official who has been delegated legal responsibility

for compliance with section 106 of the Act in accordance with law or

agency procedures established under section 110(a)(2)(E) of the Act.

(i) Section 112 of the Act requires each Federal agency to ensure

that all actions taken by employees or contractors of the agency shall

meet professional standards under applicable regulations of the

Secretary and that agency personnel and contractors responsible for

historic resources meet applicable qualification standards

established by the Office of Personnel Management.

(ii) If more than one Federal agency is involved in an undertaking,

the agencies may designate a lead Federal agency. The lead Federal

agency shall identify the appropriate official to serve as the Agency

Official. Such Agency Official shall act on behalf of all participating

Federal agencies, fulfilling their collective responsibilities under

section 106 of the Act and subpart B of this subpart.

If more than one Federal agency is involved in an undertaking,

the agencies may designate a lead Federal agency. The lead Federal

agency shall identify the appropriate official to serve as the Agency

Official. Such Agency Official shall act on behalf of all participating

Federal agencies, fulfilling their collective responsibilities under

section 106 of the Act and subpart B of this subpart.

(2) Council. The Council is responsible for issuing regulations to

implement section 106, provides guidance and advice on the application

of the procedures in this part, and generally oversees the operation of

the section 106 process. The Council also consults with and comments to

Agency Officials on undertakings that affect historic properties and

assists participants in meeting their legal obligations. Participants

in the section 106 process may seek advice and guidance from the

Council on the application of this part to specific undertakings even

though the Council is not formally involved in the review of the

undertaking.

(b) Consulting parties. The following parties have consultative

roles in the section 106 process as defined in the Act.

(1) State Historic Preservation Officer. The State Historic

Preservation Officer advises and assists Federal agencies in carrying

out their historic preservation responsibilities and consults with

Federal agencies on undertakings that affect historic properties and on

the content and sufficiency of plans to protect, manage or mitigate

harm to historic properties. If an Indian tribe has assumed the

functions of the State Historic Preservation Officer for the section

106 process on tribal lands, the State Historic Preservation Officer

shall participate in accordance with any plan referenced in

Sec. 800.2(b)(2) and may also participate as a member of the interested

public. The role of the State Historic Preservation Officer with regard

to effects on historic properties located off tribal lands is

unchanged.

te Historic Preservation Officer for the section

106 process on tribal lands, the State Historic Preservation Officer

shall participate in accordance with any plan referenced in

Sec. 800.2(b)(2) and may also participate as a member of the interested

public. The role of the State Historic Preservation Officer with regard

to effects on historic properties located off tribal lands is

unchanged.

(2) Indian tribes and Native Hawaiian organizations. The Agency

Official is required to consult with any Indian tribe or Native

Hawaiian organization that attaches religious and cultural significance

to historic properties that may be affected by an undertaking. To meet

this responsibility, the Agency Official shall identify Indian tribes

and Native Hawaiian organizations likely to have such interests in

accordance with Sec. 800.3(e) and consult with them in accordance with

Sec. 800.12 to ensure that their views are fully considered by the

Agency Official in reaching findings and decisions in the section 106

process. An Indian tribe may assume the functions of a State Historic

Preservation Officer in the section 106 process with respect to tribal

lands under section 101(d)(2) of the Act. If so, the Agency Official

shall consult with the Tribal Preservation Officer in accordance with

the plan prepared pursuant to that section regarding the effects of

undertakings on tribal lands.

(c) Affected parties. The following parties have direct legal or

financial interests in the effects of an undertaking on historic

properties and may participate in the section 106 process as consulting

parties when they so request.

(1) Representatives of local governments. If a representative of a

local government with jurisdiction over the area in which the effects

of an undertaking may occur so requests, the Agency Official shall

involve the local government as a consulting party. Under certain

authorities, the local government may be authorized to act as the

Agency Official for purposes of section 106 of the Act.

t.

(1) Representatives of local governments. If a representative of a

local government with jurisdiction over the area in which the effects

of an undertaking may occur so requests, the Agency Official shall

involve the local government as a consulting party. Under certain

authorities, the local government may be authorized to act as the

Agency Official for purposes of section 106 of the Act.

(2) Applicants for Federal assistance, permits, licenses and other

approvals. If an applicant for Federal assistance or permission so

requests, the Agency Official shall involve the applicant as a

consulting party. The Agency Official may authorize an applicant to

initiate consultation with the State Historic Preservation Officer and

others under Secs. 800.3 and 800.4, but remains legally responsible for

all findings charged to the Agency Official. Where not inconsistent

with the rights of the public to access the information that is the

basis for the Agency Official's decisions under the procedures in this

part, the Agency Official may take reasonable steps to protect the

privacy of non-governmental applicants in accordance with applicable

agency procedures.

(d) The public. The views of the public are essential to informed

Federal decisionmaking as to taking into account effects of

undertakings. The Act directs Federal agencies to consult with the

interested public, as appropriate, in steps taken to comply with

section 106 of the Act. The procedures in this part provide for

notification and involvement of the public in the section 106 process

and for the identification of and consultation with the interested

public as appropriate.

g as to taking into account effects of

undertakings. The Act directs Federal agencies to consult with the

interested public, as appropriate, in steps taken to comply with

section 106 of the Act. The procedures in this part provide for

notification and involvement of the public in the section 106 process

and for the identification of and consultation with the interested

public as appropriate.

(1) Responsibilities. The Agency Official is required at specific

points in the section 106 process to provide the public with

information about an undertaking and its effects on historic properties

and to seek public comment and input. Members of the public may also

provide views on their own initiative and the Agency Official should

consider those views in decisionmaking.

(2) Flexible application. The Agency Official's efforts to seek and

consider the views of the public should reflect the nature and

complexity of the undertaking and its effects on historic properties,

the likely interest of the public in the effects on historic

properties, and the nature of the Federal involvement in the

undertaking. Evaluation of these factors for an individual undertaking

may warrant the Agency Official to apply the specific public

involvement requirements of subpart B of this part in a flexible

manner.

(3) Use of agency procedures. The Agency Official may use the

agency's procedures for public involvement under the National

Environmental Policy Act or other program requirements, if they provide

adequate opportunities for public involvement consistent with the

procedures in subpart B of this part.

the specific public

involvement requirements of subpart B of this part in a flexible

manner.

(3) Use of agency procedures. The Agency Official may use the

agency's procedures for public involvement under the National

Environmental Policy Act or other program requirements, if they provide

adequate opportunities for public involvement consistent with the

procedures in subpart B of this part.

(4) Interested public. The interested public includes those

individuals and organizations that have indicated to the Agency

Official an interest in the effects of an undertaking on historic

properties. Certain individuals and organizations may warrant direct

involvement in the consultations conducted by the Agency Official due

to the nature of their legal or economic relation to the undertaking or

affected properties, or due to their representation of citizens or

organizations concerned with the undertaking and its effects on

historic properties. The Agency Official is required to take steps to

identify the interested public and involve them at specific points in

the section 106 process. The interested public includes:

(i) Owners of real property affected directly by the undertaking,

provided that the Agency Official may limit participation to

organizations representing such owners if necessary;

(ii) Traditional cultural authorities with an interest in the

undertaking's effects on historic properties of traditional cultural

and religious importance;

(iii) The State Historic Preservation Officer when an Indian tribe

has assumed the functions of the State Historic Preservation Officer

under section 101(d)(2) of the Act; and

(iv) Other individuals, organizations or entities that request to

be treated as members of the interested public.

Subpart B--Section 106 Procedures

Sec. 800.3 Initiation of the Section 106 process.

igious importance;

(iii) The State Historic Preservation Officer when an Indian tribe

has assumed the functions of the State Historic Preservation Officer

under section 101(d)(2) of the Act; and

(iv) Other individuals, organizations or entities that request to

be treated as members of the interested public.

Subpart B--Section 106 Procedures

Sec. 800.3 Initiation of the Section 106 process.

(a) Establish undertaking. The Agency Official shall determine

whether the proposed Federal action is an undertaking and, if so,

whether it has the potential to affect historic properties and whether

review is governed by a Federal agency program alternative established

under Sec. 800.15.

(1) If the action is not an undertaking or an undertaking that has

no potential to affect historic properties, the Agency Official has no

further obligations under section 106 of the Act.

(2) If the review of the undertaking is governed by a Federal

agency program alternative, the Agency Official shall follow that

alternative.

(b) Coordinate with other reviews. The Agency Official shall

coordinate the steps of the Section 106 process, as appropriate, with

the overall planning schedule for the undertaking and with any reviews

required under other authorities such as the National Environmental

Policy Act, the Native American Graves Protection and Repatriation Act,

the American Indian Religious Freedom Act, the Archeological Resources

Protection Act and agency specific legislation, such as section 303(f)

of the Department of Transportation Act. Where consistent with the

procedures in this subpart, the Agency Official may use information

developed for other reviews under Federal or State law to meet the

requirements of the section 106 process.

tion Act,

the American Indian Religious Freedom Act, the Archeological Resources

Protection Act and agency specific legislation, such as section 303(f)

of the Department of Transportation Act. Where consistent with the

procedures in this subpart, the Agency Official may use information

developed for other reviews under Federal or State law to meet the

requirements of the section 106 process.

(c) Plan to involve the public. The Agency Official shall begin

planning for involving the public in the Section 106 process, relating

the steps to be taken to the likely level and nature of public interest

in the undertaking and its effects on historic properties. The Agency

Official shall consider what individuals and organizations may have an

interest in the undertaking and its effects on historic properties and

plan to involve them in the Section 106 process as members of the

interested public. The Agency Official should give special attention to

identifying those members of the interested public who should be

consulted as the section 106 process proceeds and involve them as

appropriate.

(d) Initiate consultation with the State Historic Preservation

Officer. The Agency Official shall determine the appropriate State

Historic Preservation Officer or Officers to be involved in the section

106 process and initiate consultation.

(1) If the State Historic Preservation Officer declines in writing

to participate in the Section 106 process or fails to respond in a

timely manner at any point in these procedures, the Agency Official

shall consult with the Council to complete the Section 106 process

without the State Historic Preservation Officer.

(2) If more than one State is involved in an undertaking, the

involved State Historic Preservation Officers may designate a lead

State Historic Preservation Officer to act on behalf of all

participating State Historic Preservation Officers in the Section 106

process.

Official

shall consult with the Council to complete the Section 106 process

without the State Historic Preservation Officer.

(2) If more than one State is involved in an undertaking, the

involved State Historic Preservation Officers may designate a lead

State Historic Preservation Officer to act on behalf of all

participating State Historic Preservation Officers in the Section 106

process.

(3) Requirements for consultation with the State Historic

Preservation Officer should be implemented in a manner appropriate to

the agency planning process for the undertaking and the nature and

effect of the undertaking on historic properties. A single consultation

by the Agency Official with the State Historic Preservation Officer may

address multiple steps in the Section 106 process where it is

consistent with the purposes of the procedures in this part.

(e) Identify consulting parties. The Agency Official shall

determine whether there are any local governments or applicants that

are entitled to be involved in consultations conducted under this

subpart and plan to involve them as appropriate. The Agency Official

shall identify the Indian tribes or Native Hawaiian organizations that

might attach religious and cultural significance to historic properties

in the area of potential effects and plan for their participation in

accordance with Sec. 800.12 .

Sec. 800.4 Identification of historic properties.

onsultations conducted under this

subpart and plan to involve them as appropriate. The Agency Official

shall identify the Indian tribes or Native Hawaiian organizations that

might attach religious and cultural significance to historic properties

in the area of potential effects and plan for their participation in

accordance with Sec. 800.12 .

Sec. 800.4 Identification of historic properties.

(a) Determine scope of identification efforts. At the earliest

feasible stage in planning an undertaking and coordinated with any

steps being taken to meet the requirements of the National

Environmental Policy Act, the Agency Official shall consult with the

State Historic Preservation Officer and:

(1) Determine the area of potential effects;

(2) Review existing information on historic properties within the

area of potential effects, including any data concerning possible

historic properties not yet identified; and

(3) Seek information from individuals and organizations likely to

have knowledge of, or concerns with, historic properties in the area

and identify issues relating to historic properties.

(b) Identify historic properties. Based on the information gathered

under Sec. 800.4(a) and in consultation with the State Historic

Preservation Officer, the Agency Official shall take the steps

necessary to identify historic properties within the area of potential

effects.

(1) Level of effort. The Agency Official, in consultation with the

State Historic Preservation Officer, shall make a reasonable and good

faith effort to carry out appropriate identification efforts

800.4(a) and in consultation with the State Historic

Preservation Officer, the Agency Official shall take the steps

necessary to identify historic properties within the area of potential

effects.

(1) Level of effort. The Agency Official, in consultation with the

State Historic Preservation Officer, shall make a reasonable and good

faith effort to carry out appropriate identification efforts. The

Agency Official shall determine the appropriate scope and type of

identification efforts, including background research, consultation,

sample field investigation, and field survey, taking into account past

planning or research studies and results, and based on the magnitude of

the undertaking, the nature and extent of its potential effects on

historic properties and the likely nature and location of historic

properties within the area of potential effects. The Secretary's

Standards and Guidelines for Identification provide guidance on this

subject.

(2) Phased identification. Where alternative locations are under

consideration or access to properties is restricted, the Agency

Official may conduct identification efforts designed to establish the

likely presence of historic properties within the area of potential

effects for each alternative through background research, consultation

and an appropriate level of field investigation, taking into account

the number of alternatives under consideration and the magnitude of the

undertaking and likely effects. As specific aspects or location of a

preferred alternative are determined, the Agency Official shall

complete the identification of historic properties in accordance with

Sec. 800.4(b)(1).

ackground research, consultation

and an appropriate level of field investigation, taking into account

the number of alternatives under consideration and the magnitude of the

undertaking and likely effects. As specific aspects or location of a

preferred alternative are determined, the Agency Official shall

complete the identification of historic properties in accordance with

Sec. 800.4(b)(1).

(3) Consistent with applicable conflict of interest laws, the

Agency Official may use the services of applicants, consultants, or

designees to prepare information and analyses under this subpart, but

remains legally responsible for all findings charged to the Agency

Official. If a document or study is prepared by a non-Federal party,

the Agency Official shall evaluate the document prior to its approval

and be responsible for its content.

(c) Evaluate historic significance. (1) Apply National Register

Criteria. In consultation with the State Historic Preservation Officer,

guided by the Secretary's Standards and Guidelines for Evaluation and

with consideration for the potential of the proposed undertaking to

affect identified properties, the Agency Official shall apply the

National Register Criteria to properties identified within the area of

potential effects that have not been previously evaluated for National

Register eligibility. The passage of time, changing perceptions of

significance, or

incomplete prior evaluations may require reevaluation of properties

previously determined eligible or ineligible.

tified properties, the Agency Official shall apply the

National Register Criteria to properties identified within the area of

potential effects that have not been previously evaluated for National

Register eligibility. The passage of time, changing perceptions of

significance, or

incomplete prior evaluations may require reevaluation of properties

previously determined eligible or ineligible.

(2) Determine whether a property is eligible. If the Agency

Official determines the criteria are met and the State Historic

Preservation Officer agrees, the property shall be considered eligible

for the National Register for Section 106 purposes. If the Agency

Official determines the criteria are not met and the State Historic

Preservation Officer agrees, the property shall be considered not

eligible. If the Agency Official and the State Historic Preservation

Officer do not agree, or if the Council or the Secretary so request,

the Agency Official shall obtain a determination of eligibility from

the Secretary pursuant to 36 CFR part 63.

(d) Results of identification and evaluation. (1) No historic

properties present or affected. If the Agency Official finds that there

are no historic properties either present or that may be affected by

the undertaking, the Agency Official shall provide documentation of

this finding as set forth in Sec. 800.11(d) to the State Historic

Preservation Officer. The Agency Official shall notify any consulting

party and the interested public and make the documentation available

for public inspection prior to approving the undertaking. If the State

Historic Preservation Officer does not object within 15 days of receipt

of an adequately documented finding, this completes the Agency

Official's responsibilities under section 106 of the Act.

ation Officer. The Agency Official shall notify any consulting

party and the interested public and make the documentation available

for public inspection prior to approving the undertaking. If the State

Historic Preservation Officer does not object within 15 days of receipt

of an adequately documented finding, this completes the Agency

Official's responsibilities under section 106 of the Act.

(2) Historic properties affected. If there are historic properties

that may be affected by the undertaking, the Agency Official shall

notify any consulting party and the interested public and assess

adverse effects in accordance with Sec. 800.5.

Sec. 800.5 Assessment of adverse effects.

(a) Apply criteria of adverse effect. In consultation with the

State Historic Preservation Officer, the Agency Official shall apply

the criteria of adverse effect to historic properties within the area

of potential effects. The Agency Official shall consider any views

concerning such effects provided by consulting parties, the interested

public and the public at large.

(1) Criteria of adverse effect. An undertaking is considered to

have an adverse effect when it may alter the characteristics of a

historic property that qualify the property for inclusion in the

National Register in a manner that would diminish the integrity of the

property's location, design, setting, materials, workmanship, feeling,

or association. Adverse effects may include reasonably foreseeable

effects caused by the undertaking that are later in time or farther

removed in distance.

(2) Examples of adverse effects. Adverse effects on historic

properties include, but are not limited to:

Register in a manner that would diminish the integrity of the

property's location, design, setting, materials, workmanship, feeling,

or association. Adverse effects may include reasonably foreseeable

effects caused by the undertaking that are later in time or farther

removed in distance.

(2) Examples of adverse effects. Adverse effects on historic

properties include, but are not limited to:

(i) Physical destruction, damage, or alteration of all or part of

the property;

(ii) Removal of the property from its historic location;

(iii) Alteration of the character of the property's setting or use

when that character contributes to the property's qualification for the

National Register;

(iv) Introduction of visual or audible elements that are out of

character with the property ;

(v) Neglect of a property which causes its deterioration; and

(vi) Transfer, lease, or sale of property out of Federal ownership

or control.

(3) Avoidance of adverse effects. The Agency Official, in

consultation with the State Historic Preservation Officer, may make a

finding of no adverse effect when the Agency Official modifies the

undertaking to avoid adverse effects.

(4) Standard treatment of potential adverse effects. The Agency

Official may find, in consultation with the State Historic Preservation

Officer, that certain adverse effects are satisfactorily resolved in

accordance with one of the following standard treatments:

vation Officer, may make a

finding of no adverse effect when the Agency Official modifies the

undertaking to avoid adverse effects.

(4) Standard treatment of potential adverse effects. The Agency

Official may find, in consultation with the State Historic Preservation

Officer, that certain adverse effects are satisfactorily resolved in

accordance with one of the following standard treatments:

(i) The undertaking is limited to maintenance, repair,

rehabilitation, or restoration of buildings or structures, including

hazardous materials remediation or modifications for handicapped

access, and will be conducted in accordance with construction plans and

specifications that meet the Secretary's Standards for the Treatment of

Historic Properties and applicable guidelines and that are reviewed by

the State Historic Preservation Officer prior to implementation;

(ii) The undertaking is limited to construction or ground

disturbance that would destroy, damage or alter an archaeological

property of value only for its contribution to knowledge of the past,

and a plan for studying the property with archeological methods,

collecting important information, and disseminating the results to the

public, or a plan for preserving the property for future study is

prepared and implemented in accordance with applicable professional

standards and guidelines;

(iii) The undertaking is limited to the transfer, sale or lease of

a Federal historic property and adequate and legally enforceable

restrictions or conditions are included to ensure preservation of the

property's significant historic features;

(iv) The undertaking is limited to the rehabilitation or

replacement of a bridge and, in accordance with a State inventory and

plan for historic bridges approved by the State Historic Preservation

Officer, specific measures are provided for recordation and marketing,

relocation or reuse of the bridge; or

(v) The undertaking meets another standard treatment specified by

the Council under Sec. 800.15(d).

dertaking is limited to the rehabilitation or

replacement of a bridge and, in accordance with a State inventory and

plan for historic bridges approved by the State Historic Preservation

Officer, specific measures are provided for recordation and marketing,

relocation or reuse of the bridge; or

(v) The undertaking meets another standard treatment specified by

the Council under Sec. 800.15(d).

(b) State Historic Preservation Officer review. If the Agency

Official makes either a finding of no adverse effect or that adverse

effects can be satisfactorily resolved by a standard treatment, the

Agency Official shall submit the finding with the documentation

specified in Sec. 800.11(e) to the State Historic Preservation Officer

for a 30-day review period.

(1) Agreement with finding. If the State Historic Preservation

Officer agrees with the Agency Official's finding, the Agency Official

may proceed and shall carry out the undertaking in accordance with

Sec. 800.5(c)(1).

(2) Disagreement with finding. If the State Historic Preservation

Officer disagrees within 30 days of receipt of the finding, the Agency

Official shall consider the effect adverse. The State Historic

Preservation Officer shall specify the reasons for disagreeing with the

finding. The Agency Official may request the Council to review the

disagreement and shall proceed in accordance with the Council's opinion

as to whether the effect is adverse.

Preservation

Officer disagrees within 30 days of receipt of the finding, the Agency

Official shall consider the effect adverse. The State Historic

Preservation Officer shall specify the reasons for disagreeing with the

finding. The Agency Official may request the Council to review the

disagreement and shall proceed in accordance with the Council's opinion

as to whether the effect is adverse.

(c) Results of assessment. (1) Finding of no adverse effect or

resolution by standard treatment. The Agency Official shall maintain a

record of the finding, notify any participating local government or

applicant and the interested public, and make the record available for

public review before approving the undertaking. Implementation of the

undertaking in accordance with the finding as documented completes the

Agency Official responsibilities under Section 106 of the Act. If the

Agency Official fails to carry out the undertaking in accordance with

the finding, the Agency Official shall follow Sec. 800.6.

(2) Adverse effect found. If an adverse effect is found and not

resolved by a standard resolution in accordance with this section, the

Agency Official shall consult further to resolve the adverse effect

pursuant to Sec. 800.6.

Sec. 800.6 Resolution of adverse effects.

(a) Continue consultation. The Agency Official shall consult with

the State Historic Preservation Officer to develop and evaluate

alternatives or modifications to the undertaking to avoid or minimize

adverse effects on historic properties.

(1) Determine Council involvement. The Agency Official shall

determine whether to request Council involvement in the consultation

and notify the Council by providing the documentation specified in

Sec. 800.11(f).

t with

the State Historic Preservation Officer to develop and evaluate

alternatives or modifications to the undertaking to avoid or minimize

adverse effects on historic properties.

(1) Determine Council involvement. The Agency Official shall

determine whether to request Council involvement in the consultation

and notify the Council by providing the documentation specified in

Sec. 800.11(f).

(i) The Agency Official shall request the Council to become

involved in the consultation in accordance with Sec. 800.6(b)(2):

(A) When the Agency Official determines that Council involvement

will facilitate resolution of adverse effects;

(B) When the undertaking has an adverse effect upon a National

Historic Landmark or is to be carried out on tribal lands;

(C) When a Programmatic Agreement under Sec. 800.15(b) is prepared;

or

(D) When the State Historic Preservation Officer, an Indian Tribe,

a Native Hawaiian organization, a local government or an applicant

requests Council involvement.

(ii) The Council shall advise the Agency Official of its decision

to participate within 15 days of receipt of notice. The Council may

enter the consultation on its own initiative when it determines that

Council involvement is necessary to ensure that the purposes of section

106 and the Act are met.

(iii) If the criteria in Sec. 800.6(a)(1)(i) are not met or the

Council does not elect to join the consultation, the Agency Official

may complete consultation in accordance with Sec. 800.6(b)(1).

ceipt of notice. The Council may

enter the consultation on its own initiative when it determines that

Council involvement is necessary to ensure that the purposes of section

106 and the Act are met.

(iii) If the criteria in Sec. 800.6(a)(1)(i) are not met or the

Council does not elect to join the consultation, the Agency Official

may complete consultation in accordance with Sec. 800.6(b)(1).

(2) Involve consulting parties and the interested public. The

Agency Official shall involve consulting parties in the consultation as

determined under Sec. 800.3. When agreed to by the Agency Official, the

State Historic Preservation Officer and the Council, if participating,

members of the interested public may become consulting parties. If the

Agency Official and the State Historic Preservation Officer do not

agree, the Agency Official shall request the Council to decide. The

Agency Official shall involve any member of the interested public that

will assume a specific role or responsibility in a Memorandum of

Agreement.

(3) Provide documentation. The Agency Official shall make available

to the State Historic Preservation Officer and other consulting parties

the documentation specified in Sec. 800.11(f) and such other

documentation as may be developed during the consultation to resolve

adverse effects.

(4) Involve the public. The Agency Official shall make available

information to the public and provide an opportunity for members of the

public to express their views on resolving adverse effects of the

undertaking. The Agency Official shall use appropriate mechanisms,

taking into account the magnitude of the undertaking and the nature of

its effects upon historic properties, to ensure that the full range of

the public's views is represented in the consultation.

(b) Resolve adverse effects. (1) Resolution without the Council.

public to express their views on resolving adverse effects of the

undertaking. The Agency Official shall use appropriate mechanisms,

taking into account the magnitude of the undertaking and the nature of

its effects upon historic properties, to ensure that the full range of

the public's views is represented in the consultation.

(b) Resolve adverse effects. (1) Resolution without the Council.

(i) The Agency Official shall consult with the State Historic

Preservation Officer and other consulting parties to seek ways to avoid

or minimize the adverse effects.

(ii) If during the consultation the Council decides to join the

consultation, the Agency Official shall continue the consultation in

accordance with Sec. 800.6(b)(2).

(iii) If the Agency Official and the State Historic Preservation

Officer agree on how the adverse effects will be resolved, they shall

execute a Memorandum of Agreement. The Agency Official shall file a

copy of the executed Memorandum of Agreement with the Council prior to

approving the undertaking.

(iv) If the Agency Official and the State Historic Preservation

Officer fail to agree on the terms of a Memorandum of Agreement, the

Agency Official shall request the Council to join the consultation and

proceed in accordance with Sec. 800.6(b)(2).

(2) Resolution with Council participation. If the Council decides

to participate, the Agency Official shall consult with the State

Historic Preservation Officer, the Council, and other consulting

parties to avoid or minimize the adverse effects. If the Agency

Official, the State Historic Preservation Officer, and the Council

agree on how the adverse effects will be resolved, they shall execute a

Memorandum of Agreement.

articipation. If the Council decides

to participate, the Agency Official shall consult with the State

Historic Preservation Officer, the Council, and other consulting

parties to avoid or minimize the adverse effects. If the Agency

Official, the State Historic Preservation Officer, and the Council

agree on how the adverse effects will be resolved, they shall execute a

Memorandum of Agreement.

(c) Memorandum of Agreement. (1) Signatories. The Agency Official

and the State Historic Preservation Officer are the signatories to a

Memorandum of Agreement executed pursuant to Sec. 800.6(b)(1). The

Agency Official, the State Historic Preservation Officer, and the

Council are the signatories to a Memorandum of Agreement executed

pursuant to Sec. 800.6(b)(2). The signatories have sole authority to

execute, amend or terminate the agreement.

(2) Concurrence by others. The signatories may agree to invite

others to concur in the Memorandum of Agreement. The Agency Official

shall invite any consulting parties to concur.

(3) Reports on implementation. Where the signatories agree it is

appropriate, a Memorandum of Agreement shall include a provision for

monitoring and reporting on its implementation.

(4) Duration. A Memorandum of Agreement shall include provisions

for termination and for reconsideration of terms if the undertaking has

not been implemented within a specified time.

(5) Legal status. A Memorandum of Agreement executed pursuant to

this section evidences the Agency Official's compliance with Section

106 and this part and shall govern the undertaking and all of its

parts. The Agency Official shall ensure that the undertaking is carried

out in accordance with the Memorandum of Agreement.

s if the undertaking has

not been implemented within a specified time.

(5) Legal status. A Memorandum of Agreement executed pursuant to

this section evidences the Agency Official's compliance with Section

106 and this part and shall govern the undertaking and all of its

parts. The Agency Official shall ensure that the undertaking is carried

out in accordance with the Memorandum of Agreement.

(6) Amendments. The signatories to a Memorandum of Agreement may

amend it. If the Council was not a signatory to the original agreement

and the signatories execute an amended agreement, the Agency Official

shall file it with the Council. Failure to agree on amendments leaves

the existing agreement in effect.

(7) Termination. If any signatory determines that the terms of a

Memorandum of Agreement cannot be carried out, the signatories shall

consult to seek amendment of the agreement. If the agreement is not

amended, the Agency Official, the State Historic Preservation Officer,

or the Council if a signatory, may terminate it and the Agency Official

shall request the comments of the Council under Sec. 800.7(b).

Sec. 800.7 Failure to resolve adverse effects.

(a) Termination of consultation. After consulting to resolve

adverse effects pursuant to Sec. 800.6(b)(2), the Agency Official, the

State Historic Preservation Officer, or the Council may determine that

further consultation will not be productive and terminate consultation.

(1) If the Agency Official terminates consultation, the head of the

agency or an Assistant Secretary or other officer with major

department-wide or agency-wide responsibilities shall request the

Council's comments, accompanied by the documentation in Sec. 800.11(h),

and notify the State Historic Preservation Officer, other consulting

parties and the interested public of the request.

ltation.

(1) If the Agency Official terminates consultation, the head of the

agency or an Assistant Secretary or other officer with major

department-wide or agency-wide responsibilities shall request the

Council's comments, accompanied by the documentation in Sec. 800.11(h),

and notify the State Historic Preservation Officer, other consulting

parties and the interested public of the request.

(2) If the State Historic Preservation Officer terminates

consultation, the Agency Official and the Council may execute a

Memorandum of Agreement without the State Historic Preservation

Officer's involvement or either may terminate consultation.

(3) If the Council terminates consultation, the Council shall

notify the Agency Official, the State Historic Preservation Officer,

other consulting parties, and the interested public of the termination

and comment under Sec. 800.7(b).

(b) Comments by the Council. (1) Preparation. The Council shall

prepare its comments with an adequate opportunity for the Agency

Official, the State Historic Preservation Officer, other consulting

parties, and the public to provide their views. Upon request of the

Council, the Agency Official shall provide additional existing

information concerning the undertaking and assist the Council in

arranging an onsite inspection and an opportunity for public

participation.

(2) Timing. The Council shall transmit its comments within 45 days

of receipt of a request under Sec. 800.7(a)(1) or termination by the

Council under Sec. 800.7(a)(3), unless otherwise agreed to by the

Agency Official.

(3) Transmittal. The Council shall provide its comments to the head

of the agency requesting comment with copies to the Agency Official,

the State Historic Preservation Officer, other consulting parties, the

interested public, and others as appropriate.

of a request under Sec. 800.7(a)(1) or termination by the

Council under Sec. 800.7(a)(3), unless otherwise agreed to by the

Agency Official.

(3) Transmittal. The Council shall provide its comments to the head

of the agency requesting comment with copies to the Agency Official,

the State Historic Preservation Officer, other consulting parties, the

interested public, and others as appropriate.

(4) Response to Council comment. The head of the agency shall

consider the Council's comments in reaching a final decision on the

undertaking. The head of the agency may not delegate his or her

responsibilities pursuant to this paragraph. The head of the agency

shall document the decision by:

(i) Preparing a record of the decision and the rationale for the

decision, evidencing consideration of the Council's comments and

providing it to the Council prior to approving the undertaking;

(ii) Providing a copy of the record of decision to the State

Historic Preservation Officer, other consulting parties, and the

interested public; and

(iii) Notifying the public and making the record available for

public inspection.

Sec. 800.8 Coordination with the National Environmental Policy Act.

(a) General coordination. Federal agencies are encouraged to

coordinate compliance with section 106 of the Act and the procedures in

this part with any steps taken to meet the requirements of the National

Environmental Policy Act (42 U.S.C. 4231 et seq.)(NEPA).

(b) Actions categorically excluded under NEPA. If a project,

activity or program is categorically excluded from NEPA review under an

agency's NEPA procedures, the Agency Official shall determine if it

qualifies as an undertaking requiring review under section 106 of the

Act pursuant to Sec. 800.3(a). If so, the Agency Official shall comply

with the procedures in this subpart.

et seq.)(NEPA).

(b) Actions categorically excluded under NEPA. If a project,

activity or program is categorically excluded from NEPA review under an

agency's NEPA procedures, the Agency Official shall determine if it

qualifies as an undertaking requiring review under section 106 of the

Act pursuant to Sec. 800.3(a). If so, the Agency Official shall comply

with the procedures in this subpart.

(c) Use of the NEPA process for section 106 of the Act purposes. An

Agency Official may use the process and documentation for the

preparation of an Environmental Impact Statement or an Environmental

Assessment (EA) to comply with section 106 of the Act in lieu of the

procedures set forth in Secs. 800.3 through 800.6 if the following

conditions are met.

(1) Preparation of the Draft Environmental Impact Statement (DEIS)

or EA meets the following standards:

(i) The Agency Official has notified the Council, the State

Historic Preservation Officer and the interested public during the

preparation of the DEIS or EA that this section is being used to comply

with section 106 of the Act;

(ii) Historic properties are identified and effects of the

undertaking are evaluated in a manner consistent with the criteria and

procedures of Secs. 800.3 through 800.5 and the documentation standards

of Sec. 800.11;

(iii) The Agency Official has consulted with the State Historic

Preservation Officer, other consulting parties, and the Council where

appropriate as required by Secs. 800.3 through 800.6 and Sec. 800.12

when identifying historic properties, evaluating potential adverse

effects, and considering measures to avoid or minimize adverse effects;

(iv) The Agency Official has involved the interested public and the

public in accordance with the agency's NEPA procedures; and

on Officer, other consulting parties, and the Council where

appropriate as required by Secs. 800.3 through 800.6 and Sec. 800.12

when identifying historic properties, evaluating potential adverse

effects, and considering measures to avoid or minimize adverse effects;

(iv) The Agency Official has involved the interested public and the

public in accordance with the agency's NEPA procedures; and

(v) Alternatives and measures that would avoid or minimize any

adverse effects of the undertaking on historic properties are described

in the DEIS or EA.

(2) The Agency Official shall submit the DEIS or EA to the Council,

the State Historic Preservation Officer, other consulting parties, and

the interested public when circulating it for public comment. The

Agency Official shall indicate that the DEIS or EA is intended to meet

the requirements of section 106 of the Act under this section.

(3) If within the time allowed for public comment on the DEIS or EA

the Council objects to how the Agency Official has taken into account

the effects of the undertaking on historic properties, the Agency

Official shall comply with Sec. 800.6(b)(2). If the Agency Official

receives an objection from the State Historic Preservation Officer, a

consulting party, or a member of the interested public within the time

allowed for public comment on the document, the Agency Official shall

provide the objection to the Council. Within 30 days, the Council shall

notify the Agency Official either that it agrees with the objection, in

which case the Agency Official shall comply with Sec. 800.6(b)(2), or

that it disagrees with the objection, in which case the Agency Official

shall continue to follow this section.

allowed for public comment on the document, the Agency Official shall

provide the objection to the Council. Within 30 days, the Council shall

notify the Agency Official either that it agrees with the objection, in

which case the Agency Official shall comply with Sec. 800.6(b)(2), or

that it disagrees with the objection, in which case the Agency Official

shall continue to follow this section.

(4) The Agency Official shall incorporate into the Final

Environmental Impact Statement (FEIS) or final document resulting from

the EA measures to avoid or minimize adverse effects on historic

properties. Adoption of the proposed measures through a commitment,

binding on the agency or the applicant for Federal assistance or

permission, as appropriate, to carry them out and embodied in a Record

of Decision (ROD) following or accompanying the FEIS or final document

resulting from the EA satisfies the Agency Official's responsibilities

under section 106 of the Act and the procedures in this part.

(5) If the undertaking is subsequently modified in a manner that

alters the treatment of effects on historic properties or if the Agency

Official fails to carry out the measures to avoid or minimize adverse

effects as specified in the ROD, the Agency Official shall notify the

State Historic Preservation Officer, any other consulting party, and

the interested public and consult with the Council. The Council may

either require the Agency Official to follow Sec. 800.6 or provide

comments to the Agency Official within 30 days of the request for

consultation.

Sec. 800.9 Council review of section 106 of the Act compliance.

the ROD, the Agency Official shall notify the

State Historic Preservation Officer, any other consulting party, and

the interested public and consult with the Council. The Council may

either require the Agency Official to follow Sec. 800.6 or provide

comments to the Agency Official within 30 days of the request for

consultation.

Sec. 800.9 Council review of section 106 of the Act compliance.

(a) Assessment of Agency Official findings for individual

undertakings. (1) Basis for request. If the Council has not

participated in the review of an undertaking under the procedures in

this subpart, a State Historic Preservation Officer, a consulting party

or a member of the interested public that has participated in the

section 106 of the Act process may request the Council to assess

whether an Agency Official has complied with the procedures in this

subpart when making a determination whether a property is eligible for

the National Register under Sec. 800.4(c)(2), a finding that there are

no historic properties present or affected under Sec. 800.4(d), or a

finding of no adverse effect or resolution by standard treatment under

Sec. 800.5(c). The request shall be in writing, state specific reasons

why the finding is not consistent with the provisions of the procedures

in this subpart and include such documentation as the requestor may

have available to support the request.

(2) Timing. The request must be made prior to the approval of the

expenditure of funds or the issuance of any license, permit or other

approval by the Agency Official.

est shall be in writing, state specific reasons

why the finding is not consistent with the provisions of the procedures

in this subpart and include such documentation as the requestor may

have available to support the request.

(2) Timing. The request must be made prior to the approval of the

expenditure of funds or the issuance of any license, permit or other

approval by the Agency Official.

(3) Council review of the finding. (i) The Council shall decide

within 10 days of receipt of the request whether it states reasons

that, if true, would warrant the Council determining that the finding

was inconsistent with the procedures in this subpart.

(ii) If the Council decides that the request states reasons which

would warrant the Council determining that the finding was inconsistent

with the procedures in this subpart, the Council shall review the

finding on its merits. The Council shall notify the Agency Official,

provide a copy of the request and any accompanying supporting

documentation and invite the views of the Agency Official on the merits

of the request. The Council shall complete its assessment of the

finding within 30 days of notifying the Agency Official and may request

the Agency Official to refrain from taking final action on the

undertaking during that period. The Council shall provide its views to

the requestor, the Agency Official, the State Historic Preservation

Officer, consulting parties and other members of the interested public,

as appropriate.

(iii) If the Council decides that the request does not state

reasons that would warrant the Council determining that the finding was

inconsistent with these procedures, the Council shall decline to assess

the finding and notify the requestor.

(4) Questions of eligibility. When the finding concerns the

eligibility of a property for the National Register, the Council shall

refer the matter to the Secretary.

ouncil decides that the request does not state

reasons that would warrant the Council determining that the finding was

inconsistent with these procedures, the Council shall decline to assess

the finding and notify the requestor.

(4) Questions of eligibility. When the finding concerns the

eligibility of a property for the National Register, the Council shall

refer the matter to the Secretary.

(b) Agency foreclosure of the Council's opportunity to comment.

Where an Agency Official has failed to complete the requirements of

section 106 of the Act in accordance with the procedures in this part

prior to the approval of an undertaking, the Council's opportunity to

comment may be foreclosed. The Council may review a case to determine

whether a foreclosure has occurred. The Council shall notify the Agency

Official and allow 30 days for the Agency Official to provide

information as to whether foreclosure has occurred. If the Council

determines foreclosure has occurred, the Chairman of the Council shall

transmit the determination to the head of the agency.

(c) Intentional adverse effects by applicants. (1) Agency

responsibility. Section 110(k) of the Act prohibits a Federal agency

from granting a loan, loan guarantee, permit, license or other

assistance to an applicant who, with intent to avoid the requirements

of section 106 of the Act, has intentionally significantly adversely

affected a historic property to which the grant would relate, or having

legal power to prevent it, has allowed such significant adverse effect

to occur, unless the agency, after consultation with the Council,

determines that circumstances justify granting such assistance despite

the adverse effect created or permitted by the applicant. Guidance

issued by the Secretary pursuant to Section 110 of the Act governs its

implementation.

he grant would relate, or having

legal power to prevent it, has allowed such significant adverse effect

to occur, unless the agency, after consultation with the Council,

determines that circumstances justify granting such assistance despite

the adverse effect created or permitted by the applicant. Guidance

issued by the Secretary pursuant to Section 110 of the Act governs its

implementation.

(2) Compliance with section 106 of the Act. If an Agency Official,

after consulting with the Council, determines to grant the assistance,

the Agency Official shall comply with the procedures in this subpart to

take into account the effects of the undertaking on any other historic

properties.

(d) Evaluation of Section 106 operations. The Council shall

evaluate the operation of the Section 106 process by periodic reviews

of how participants have fulfilled their legal responsibilities and how

effectively the outcomes reached advance the purposes of the Act.

(1) Information from participants. Section 203 of the Act

authorizes the Council to obtain information from Federal agencies

necessary to conduct oversight and evaluation of the Section 106

process. The Agency Official shall maintain documentation of actions

taken to comply with section 106 of the Act that meet the standards of

Sec. 800.11 and applicable agency procedures. The Agency Official shall

make such documentation available to the Council upon request. The

Council may request available information and documentation from other

participants in the Section 106 process.

(2) Peer review. The Council may use professional peer review to

assist in any evaluation.

th section 106 of the Act that meet the standards of

Sec. 800.11 and applicable agency procedures. The Agency Official shall

make such documentation available to the Council upon request. The

Council may request available information and documentation from other

participants in the Section 106 process.

(2) Peer review. The Council may use professional peer review to

assist in any evaluation.

(3) Improving the operation of section 106 of the Act. Based upon

any evaluation of the Section 106 process, the Council may make

recommendations to participants, the heads of Federal agencies, and the

Secretary of actions to improve the efficiency and effectiveness of the

process. Where the Council determines that an Agency Official, a State

Historic Preservation Officer or a Tribal Preservation Officer who has

assumed the role of the State Historic Preservation Officer has failed

to properly carry out the responsibilities assigned under the

procedures in this part, the Council may participate in individual case

reviews in a manner and for a period that it determines is necessary to

improve performance or correct deficiencies.

Sec. 800.10 Special requirements for protecting National Historic

Landmarks.

(a) Agency official's responsibilities. Section 110(f) of the Act

requires that the Agency Official, to the maximum extent possible,

undertake such planning and actions as may be necessary to minimize

harm to any National Historic Landmark that may be directly and

adversely affected by an undertaking. When commenting on such

undertakings, the Council shall use the process set forth in

Secs. 800.6 through 800.7 and give special consideration to protecting

National Historic Landmarks in accordance with this section.

(b) Resolution of adverse effects. Any consultation to resolve

adverse effects conducted under Sec. 800.6 shall include the Council,

if the Council chooses to participate.

king. When commenting on such

undertakings, the Council shall use the process set forth in

Secs. 800.6 through 800.7 and give special consideration to protecting

National Historic Landmarks in accordance with this section.

(b) Resolution of adverse effects. Any consultation to resolve

adverse effects conducted under Sec. 800.6 shall include the Council,

if the Council chooses to participate.

(c) Involvement of the Secretary. The Agency Official shall notify

the Secretary of consultations involving National Historic Landmarks

and invite the Secretary to participate in the consultation. The

Council may request a report from the Secretary under Section 213 of

the Act to assist in the consultation.

(d) Report of outcome. The Council shall report the outcome of the

Section 106 process, including its comments or any Memoranda of

Agreement, to the Secretary and the head of the agency responsible for

the undertaking.

Sec. 800.11 Documentation standards.

(a) Adequacy of documentation. The Agency Official shall ensure

that any determination, finding or agreement under the procedures in

this subpart is supported by sufficient documentation to enable

reviewing parties to understand its factual and logical basis. If the

Council, or the State Historic Preservation Officer in those situations

where the Council is not involved, determines the applicable

documentation standards are not met, the time period specified in the

relevant section of this subpart shall be suspended until adequate

documentation is submitted.

(b) Format. The Agency Official may use documentation prepared to

meet the needs of other authorities to fulfill the requirements of the

procedures in this subpart, provided that resulting

documentation meets the standards of this section.

ion standards are not met, the time period specified in the

relevant section of this subpart shall be suspended until adequate

documentation is submitted.

(b) Format. The Agency Official may use documentation prepared to

meet the needs of other authorities to fulfill the requirements of the

procedures in this subpart, provided that resulting

documentation meets the standards of this section.

(c) Confidentiality. Section 304 of the Act requires an Agency

Official to withhold from public disclosure information about the

location, character, or ownership of a historic property when

disclosure may cause a significant invasion of privacy, risk harm to

the historic resource, or impede the use of a traditional religious

site by practitioners.

(d) Finding of no historic properties present or affected.

Documentation shall include:

(1) A description of the undertaking and its area of potential

effects, including photographs, maps, and drawings, as necessary;

(2) A description of the efforts used to identify historic

properties; and

(3) The basis for determining that no historic properties are

present or affected.

(e) Finding of no adverse effect or standard treatment of potential

adverse effects. Documentation shall include:

(1) A description of the undertaking and its area of potential

effects, including photographs, maps, and drawings, as necessary;

(2) A description of historic properties that may be affected by

the undertaking, including appropriate information on the nature of

their significance;

(3) A description of the efforts used to identify historic

properties;

(4) A description of why the criteria of adverse effect were found

inapplicable, or how potential adverse effects would be resolved; and

(5) Any views provided by consulting parties, the interested public

and the public.

affected by

the undertaking, including appropriate information on the nature of

their significance;

(3) A description of the efforts used to identify historic

properties;

(4) A description of why the criteria of adverse effect were found

inapplicable, or how potential adverse effects would be resolved; and

(5) Any views provided by consulting parties, the interested public

and the public.

(f) Finding of adverse effect. Documentation shall include:

(1) A description of the undertaking and its area of potential

effects, including photographs, maps, and drawings, as necessary;

(2) A description of the affected historic properties, with

information on the characteristics that qualify them for the National

Register; and

(3) A description of the undertaking's adverse effects on historic

properties.

(g) Memorandum of Agreement. When a memorandum is filed with the

Council , the documentation shall include an evaluation of any measures

considered to avoid or minimize the undertaking's adverse effects and a

summary of the views of consulting parties, the interested public and

the public.

(h) Requests for comment when consultation is terminated.

Documentation shall include that specified in paragraph (f) of this

section and:

(1) A description and evaluation of any alternatives or mitigation

measures that the Agency Official proposes to resolve the undertaking's

adverse effects;

(2) A description of any reasonable alternatives or mitigation

measures that were considered but not chosen, and the reasons for their

rejection;

(3) The planning schedule for the undertaking; and

(4) Copies or summaries of any views submitted to the Agency

Official concerning the effects of the undertaking on historic

properties and alternatives to reduce or avoid those effects.

Sec. 800.12 Consultation with Indian tribes and Native Hawaiian

organizations.

res that were considered but not chosen, and the reasons for their

rejection;

(3) The planning schedule for the undertaking; and

(4) Copies or summaries of any views submitted to the Agency

Official concerning the effects of the undertaking on historic

properties and alternatives to reduce or avoid those effects.

Sec. 800.12 Consultation with Indian tribes and Native Hawaiian

organizations.

(a) Objectives. Consultation shall be designed to:

(1) Provide the Indian tribe or Native Hawaiian organization a

reasonable opportunity to identify its concerns about historic

properties, advise on the identification of historic properties,

including associated traditional religious and cultural importance, and

articulate its views on the undertaking's effects on such properties.

(2) Involve designated representatives of the Indian tribe's or

Native Hawaiian organization's governing body and those traditional

cultural authorities and other tribal or organizational members

identified by the designated representatives.

(3) Commence early in the planning process, in order to identify

relevant preservation issues and resolve concerns about the

confidentiality of information on historic properties and to allow

adequate time for discussion of relevant preservation issues. Upon

request, the Agency Official, after consultation with the Secretary,

shall withhold information about historic properties in accordance with

section 304 of the Act.

nning process, in order to identify

relevant preservation issues and resolve concerns about the

confidentiality of information on historic properties and to allow

adequate time for discussion of relevant preservation issues. Upon

request, the Agency Official, after consultation with the Secretary,

shall withhold information about historic properties in accordance with

section 304 of the Act.

(b) Undertakings on tribal lands. Consultation with Indian tribes

on tribal lands requires special consideration, as set forth in this

paragraph, of the sovereignty of Indian tribes over such lands. Where

an Indian tribe has not assumed the responsibilities of the State

Historic Preservation Officer under section 101(d)(2) of the Act, the

Agency Official shall involve the Indian tribe with jurisdiction over

the tribal lands as a consulting party in accordance with this

subsection.

(1) Identification of historic properties. When carrying out the

provisions of Sec. 800.4, the Agency Official shall consult with the

Indian tribe when determining the area of potential effects, locating

historic properties and evaluating the historic significance of

identified properties. The Indian tribe shall be consulted when

reaching any determination of eligibility under Sec. 800.4(c)(2) and

its timely objection to an Agency Official's determination shall

require the Agency Official to obtain a determination of eligibility

from the Secretary pursuant to 36 CFR part 63. The Agency Official

shall provide documentation of any finding that there are no historic

properties present or affected to the Indian tribe. If the Indian tribe

objects within 15 days of receipt of an adequately documented finding,

the Agency Official shall consider that historic properties are

affected by the undertaking.

nation of eligibility

from the Secretary pursuant to 36 CFR part 63. The Agency Official

shall provide documentation of any finding that there are no historic

properties present or affected to the Indian tribe. If the Indian tribe

objects within 15 days of receipt of an adequately documented finding,

the Agency Official shall consider that historic properties are

affected by the undertaking.

(2) Assessment of adverse effects. When carrying out the provisions

of Sec. 800.5, the Agency Official shall consult with the Indian tribe

when applying the criteria of adverse effect to historic properties

within the area of potential effects, making findings of avoidance of

adverse effect and determining satisfactory resolution of adverse

effects. The Agency Official shall provide a copy of any findings of no

adverse effect or that adverse effects have been satisfactorily

resolved by a standard treatment to the Indian tribe when submitting

them to the State Historic Preservation Officer for review. If the

Indian tribe objects to the finding within 30 days of receipt and

specifies the reasons for disagreeing, the effect shall be considered

adverse, provided that the Agency Official may request the Council to

review the disagreement and proceed in accordance with the Council's

opinion as to whether the effect is adverse.

(3) Resolution of adverse effects. When carrying out the

responsibilities of Sec. 800.6, the Agency Official shall consult with

the Indian tribe along with the State Historic Preservation Officer

when determining participants in the consultation and resolving adverse

effects. The Indian tribe shall be a signatory to any agreement reached

under Sec. 800.6.

(4) Failure to resolve adverse effects. When an Agency Official

follows the provisions of Sec. 800.7, the Indian tribe shall have the

same opportunities to terminate consultation and participate in the

Council comment process as the State Historic Preservation Officer.

consultation and resolving adverse

effects. The Indian tribe shall be a signatory to any agreement reached

under Sec. 800.6.

(4) Failure to resolve adverse effects. When an Agency Official

follows the provisions of Sec. 800.7, the Indian tribe shall have the

same opportunities to terminate consultation and participate in the

Council comment process as the State Historic Preservation Officer.

(c) Undertakings not on tribal lands. Where the Agency Official has

identified an Indian tribe or Native Hawaiian organization that

attaches religious or cultural significance to historic properties

within the area of potential effects under Sec. 800.3(e), including one

that does not reside in the

vicinity of the undertaking, the Agency Official shall involve them in

accordance with this paragraph.

(1) Identification of historic properties. When carrying out the

provisions of Sec. 800.4, the Agency Official shall consult with the

Indian tribe or Native Hawaiian organization when determining the area

of potential effects, locating historic properties that may possess

religious or cultural significance and applying the National Register

Criteria to such properties when identified.

(2) Assessment of adverse effects. When carrying out the provisions

of Sec. 800.5, the Agency Official shall consult with the Indian tribe

or Native Hawaiian organization when applying the criteria of adverse

effect to historic properties that may possess religious or cultural

significance within the area of potential effects, making findings of

avoidance of adverse effect to such properties and determining

satisfactory treatment of adverse effects to such properties.

00.5, the Agency Official shall consult with the Indian tribe

or Native Hawaiian organization when applying the criteria of adverse

effect to historic properties that may possess religious or cultural

significance within the area of potential effects, making findings of

avoidance of adverse effect to such properties and determining

satisfactory treatment of adverse effects to such properties.

(3) Resolution of adverse effects. When carrying out the

responsibilities of Sec. 800.6, the Agency Official shall consult with

the Indian tribe or Native Hawaiian organization when determining

Council involvement and resolving adverse effects with or without the

Council. The governing body of the Indian tribe or Native Hawaiian

organization shall be invited to concur in any Memorandum of Agreement

reached when it concerns properties that possess religious or cultural

significance.

(4) Failure to resolve adverse effects. When the Agency Official

follows the provisions of Sec. 800.7, the Indian tribe or Native

Hawaiian organization shall have the same opportunities to provide

views and receive information in the Council comment process as the

State Historic Preservation Officer.

(d) Emergency situations and post-review discoveries. (1) Tribal

lands. When an agency complies with the provisions of Sec. 800.13 or

Sec. 800.14 for an undertaking on tribal lands, the Indian tribe shall

have the same opportunities to participate as the State Historic

Preservation Officer. The Agency Official shall also coordinate

requirements under Sec. 800.13 or Sec. 800.14 with any applicable

actions taken to meet the requirements of the Native American Graves

Protection and Repatriation Act.

ovisions of Sec. 800.13 or

Sec. 800.14 for an undertaking on tribal lands, the Indian tribe shall

have the same opportunities to participate as the State Historic

Preservation Officer. The Agency Official shall also coordinate

requirements under Sec. 800.13 or Sec. 800.14 with any applicable

actions taken to meet the requirements of the Native American Graves

Protection and Repatriation Act.

(2) Non-tribal lands. Where the Agency Official has identified an

Indian tribe or Native Hawaiian organization that attaches religious or

cultural significance to historic properties within the area of

potential effects under Sec. 800.3(e) and subsequently complies with

the provisions of Sec. 800.13 or Sec. 800.14, the Agency Official shall

consult with them in carrying out the provisions of those sections.

Sec. 800.13 Emergency situations.

(a) Agency procedures. The Agency Official, in consultation with

the appropriate State Historic Preservation Officer or Officers and the

Council, is encouraged to develop procedures for taking historic

properties into account during operations which respond to a disaster

or emergency declared by the President, the Agency Official or the

governor of a State or which respond to other immediate threats to life

or property. If approved by the Council, the procedures shall govern

the agency's historic preservation responsibilities during any disaster

or emergency in lieu of Secs. 800.3 through 800.7.

rties into account during operations which respond to a disaster

or emergency declared by the President, the Agency Official or the

governor of a State or which respond to other immediate threats to life

or property. If approved by the Council, the procedures shall govern

the agency's historic preservation responsibilities during any disaster

or emergency in lieu of Secs. 800.3 through 800.7.

(b) Alternatives to agency procedures. In the event an Agency

Official proposes an emergency undertaking as an essential and

immediate response to a disaster or emergency declared by the

President, the Agency Official or the governor of a State, and the

agency has not developed procedures pursuant to Sec. 800.13(a), the

Agency Official may comply with section 106 of the Act by:

(1) Following a programmatic agreement developed pursuant to

Sec. 800.15(b) that contains specific provisions for dealing with

historic properties in emergency situations; or

(2) Notifying the Council and the appropriate State Historic

Preservation Officer prior to the undertaking and affording them an

opportunity to comment within seven days of notification. If the Agency

Official determines that circumstances do not permit seven days for

comment, the Agency Official shall notify the Council and the State

Historic Preservation Officer and invite any comments.

(c) Local governments responsible for Section 106 compliance. When

a local government is statutorily delegated responsibility for Section

106 compliance, Sec. 800.13 (a) and (b) also apply to an imminent

threat to public health or safety as a result of a natural disaster or

emergency declared by a local government's chief executive officer or

legislative body, provided that if the Council or State Historic

Preservation Officer objects within seven days, the Agency Official

shall comply with Secs. 800.3 through 800.7.

r Section

106 compliance, Sec. 800.13 (a) and (b) also apply to an imminent

threat to public health or safety as a result of a natural disaster or

emergency declared by a local government's chief executive officer or

legislative body, provided that if the Council or State Historic

Preservation Officer objects within seven days, the Agency Official

shall comply with Secs. 800.3 through 800.7.

(d) Applicability. This section applies only to undertakings that

will be implemented within 30 days after the disaster or emergency has

been formally declared by the appropriate authority. An agency may

request an extension of the period of applicability from the Council

prior to the expiration of the 30 days. Immediate rescue and salvage

operations conducted to preserve life or property are exempt from the

provisions of section 106 of the Act and this subpart.

Sec. 800.14 Post-review discoveries.

(a) Planning for discoveries. When the Agency Official's

identification efforts in accordance with Sec. 800.4 indicate that

historic properties are likely to be discovered during implementation

of an undertaking, the Agency Official shall include in any finding of

no adverse effect, standard treatment of potential adverse effects or

Memorandum of Agreement a process to resolve any adverse effects upon

such properties. Actions in conformance with the process satisfy the

Agency Official's responsibilities under section 106 of the Act and

this subpart.

discovered during implementation

of an undertaking, the Agency Official shall include in any finding of

no adverse effect, standard treatment of potential adverse effects or

Memorandum of Agreement a process to resolve any adverse effects upon

such properties. Actions in conformance with the process satisfy the

Agency Official's responsibilities under section 106 of the Act and

this subpart.

(b) Unplanned for discoveries. If historic properties are

discovered or unanticipated effects on historic properties found after

the Agency Official has completed the Section 106 process without

establishing a process under Sec. 800.14(a), the Agency Official shall

make reasonable efforts to avoid or minimize adverse effects to such

properties and:

(1) If the Agency Official has not approved the undertaking,

consult to resolve adverse effects pursuant to Sec. 800.6;

(2) If the Agency Official determines in consultation with the

State Historic Preservation Officer that the affected property is

significant solely for its scientific, prehistoric, historic or

archeological data, comply with the Archeological and Historic

Preservation Act, 16 U.S.C. 469 (a)-(c) instead of the procedures in

this part, provided that the Agency Official shall consult with the

State Historic Preservation Officer on the actions proposed and provide

the Council with a report on the actions after they are completed; or

(3) If the Agency Official has approved the undertaking, the Agency

Official shall:

(i) Determine actions that the Agency Official can take to resolve

adverse effects;

(ii) Notify the State Historic Preservation Officer and the Council

within 48 hours of the discovery;

(iii) Describe the actions proposed to resolve the adverse effects;

(iv) Take into account any recommendations provided by the Council

and the State Historic Preservation Officer within 48 hours of the

notification.

rmine actions that the Agency Official can take to resolve

adverse effects;

(ii) Notify the State Historic Preservation Officer and the Council

within 48 hours of the discovery;

(iii) Describe the actions proposed to resolve the adverse effects;

(iv) Take into account any recommendations provided by the Council

and the State Historic Preservation Officer within 48 hours of the

notification.

(v) Carry out appropriate actions; and

(vi) Provide the Council, the State Historic Preservation Officer

and the interested public a report of the actions when completed.

(c) Eligibility of properties. When a newly discovered historic

property has not previously been included in or determined eligible for

the National Register, the Agency Official, in consultation with the

State Historic Preservation officer, may assume the property to be

eligible for purposes of section 106 of the Act.

Subpart C--Program Alternatives

Sec. 800.15 Federal agency program alternatives.

(a) Alternate procedures. A Federal agency may develop procedures

to implement Section 106 and substitute them for the comparable

provisions of subpart B if they are found consistent with the Council's

regulations in accordance with section 110(a)(2)(E) of the Act.

(1) Development of procedures. The Federal agency shall consult

with the Council in the development of alternate procedures and publish

notice of the availability of proposed alternate procedures in the

Federal Register.

(2) Council review. The Federal agency shall submit the final

alternate procedure to the Council for review.

regulations in accordance with section 110(a)(2)(E) of the Act.

(1) Development of procedures. The Federal agency shall consult

with the Council in the development of alternate procedures and publish

notice of the availability of proposed alternate procedures in the

Federal Register.

(2) Council review. The Federal agency shall submit the final

alternate procedure to the Council for review.

(i) If the Council finds the regulations to be consistent with this

part, it shall notify the Federal agency and the Federal agency may

adopt them as alternate procedures.

(ii) If the Council does not find the procedures consistent, the

Council shall request the Secretary to make a final determination as to

consistency. If the Secretary determines the procedures to be

consistent, the Federal agency may adopt them as alternate procedures.

(3) Notice. The Federal agency shall publish notice of final

alternate procedures in the Federal Register.

(4) Legal effect. Alternate procedures adopted pursuant to this

section substitute for the Council's regulations for the purposes of

the agency's compliance with section 106 of the Act, except that, where

an Indian tribe has entered into an agreement with the Council to

substitute tribal historic preservation regulations for the Council's

procedures, the agency shall follow those regulations in lieu of the

agency's procedures regarding undertakings on tribal lands.

bstitute for the Council's regulations for the purposes of

the agency's compliance with section 106 of the Act, except that, where

an Indian tribe has entered into an agreement with the Council to

substitute tribal historic preservation regulations for the Council's

procedures, the agency shall follow those regulations in lieu of the

agency's procedures regarding undertakings on tribal lands.

(b) Programmatic Agreements. The Council and the Agency Official

may negotiate a Programmatic Agreement to govern the implementation of

a particular program or certain complex project situations that justify

departure from the normal Section 106 process.

(1) Programmatic Agreements for agency programs. (i) The

consultation shall involve State Historic Preservation Officers or the

National Conference of State Historic Preservation Officers, Indian

tribes and Native Hawaiian organizations, other Federal agencies, and

other members of the interested public, as appropriate.

(ii) The Agency Official shall arrange for public participation

appropriate to the subject matter and the scope of the program.

(iii) The Programmatic Agreement shall take effect when executed by

the Council and the Agency Official. The President of the National

Conference of State Historic Preservation Officers shall be invited to

sign any agreement when the Conference has participated in the

consultation developing it. Compliance with the procedures established

by an approved Programmatic Agreement satisfies the agency's Section

106 responsibilities for all individual undertakings covered by the

agreement until it expires or is terminated by the agency or the

Council.

(iv) The Agency Official shall publish notice of an approved

Programmatic Agreement in the Federal Register and make any agency

procedures implementing the agreement readily available to the Council,

State Historic Preservation Officers, and the public.

06 responsibilities for all individual undertakings covered by the

agreement until it expires or is terminated by the agency or the

Council.

(iv) The Agency Official shall publish notice of an approved

Programmatic Agreement in the Federal Register and make any agency

procedures implementing the agreement readily available to the Council,

State Historic Preservation Officers, and the public.

(v) If the Council determines that the terms of a Programmatic

Agreement are not being carried out, or if such an agreement is

terminated, the Agency Official shall comply with subpart B with regard

to individual undertakings covered by the agreement.

(2) Programmatic Agreements for complex or multiple undertakings.

(i) A Programmatic Agreement is a Memorandum of Agreement that

establishes a process for dealing with the potential adverse effects of

complex projects or multiple undertakings carried out over an extended

period of time. A Programmatic Agreement shall be used:

(A) When effects on historic properties are similar and repetitive

or are multi-State or regional in scope;

(B) When effects on historic properties cannot be fully determined

prior to approval;

(C) When nonfederal parties are delegated major decisionmaking

responsibilities; or

(D) Where routine management activities are undertaken at Federal

installations, facilities, or other land-management units.

(ii) Such a Programmatic Agreement shall be developed in the same

manner as other Memoranda of Agreement under Sec. 800.6, provided that

if consultation pertains to an activity involving multiple undertakings

and the parties fail to reach agreement, then the Agency Official shall

comply with the provisions of subpart B of this part for each

individual undertaking.

(c) Exempted categories. (1) Criteria for establishing. An Agency

Official may propose a program or category of agency undertakings that

may be exempted from review under the provisions of subpart B, if the

program or category meets the following criteria:

to reach agreement, then the Agency Official shall

comply with the provisions of subpart B of this part for each

individual undertaking.

(c) Exempted categories. (1) Criteria for establishing. An Agency

Official may propose a program or category of agency undertakings that

may be exempted from review under the provisions of subpart B, 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. 800.17;

(ii) The potential effects of the undertakings within the program

or category upon historic properties are foreseeable and not likely to

be adverse; and

(iii) Exemption of the program or category is consistent with the

purposes of the Act.

(2) Council review of proposed exemptions. The Council shall review

a request for an exemption that is supported by documentation

describing the program or category for which the exemption is sought

and demonstrating that the criteria of Sec. 800.15(c)(1) have been met.

Unless it requests further information, the Council shall approve or

reject the proposed exemption within 30 days of receipt. The Council

decision shall be based on whether the exemption is consistent with the

purposes of the Act, taking into consideration the magnitude of the

exempted undertaking or program and the likelihood of impairment of

historic properties in accordance with section 214 of the Act.

(3) Legal consequences. Any undertaking that falls within the

exempted program or category approved by the Council shall require no

further review pursuant to subpart B, 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.

ties in accordance with section 214 of the Act.

(3) Legal consequences. Any undertaking that falls within the

exempted program or category approved by the Council shall require no

further review pursuant to subpart B, 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.

(d) Standard treatments. (1) Establishment. The Council may

establish standard methods for the treatment of a category of historic

properties or a category of effects on historic properties to satisfy

the requirements of subpart B of this part. The Council shall specify

such treatments, conditions for their application and any procedural

modifications attendant to their use in a notice published in the

Federal Register.

(2) Legal consequence. An Agency Official may elect to follow a

standard treatment to meet Section 106

responsibilities for a qualifying undertaking in accordance with

Sec. 800.5.

(e) Program comments. An Agency Official may request the Council to

comment on a category of routine or repetitive undertakings in lieu of

conducting individual reviews under Secs. 800.4 through 800.7. The

Agency Official shall identify the category of undertakings, specify

the likely effects on historic properties, specify the steps the Agency

Official will take to ensure that the effects are taken into account

and the time period for which the comment is requested. Unless the

Council requests additional documentation or notifies the Agency

Official that it will decline to comment, the Council shall comment to

the Agency Official within 45 days of the request. The Agency Official

shall take into account the comments of the Council in carrying out the

undertakings within the category and provide appropriate notice of the

Council's comments and the Agency Official's action in response

dditional documentation or notifies the Agency

Official that it will decline to comment, the Council shall comment to

the Agency Official within 45 days of the request. The Agency Official

shall take into account the comments of the Council in carrying out the

undertakings within the category and provide appropriate notice of the

Council's comments and the Agency Official's action in response. If the

Council objects to the proposed treatment or declines to comment, the

Agency Official shall continue to comply with the requirements of

Secs. 800.4 through 800.7 for the individual undertakings. The Council

may provide program comments at its own initiative.

Sec. 800.16 State, Tribal and Local Program Alternatives. (Reserved)

Sec. 800.17 Definitions.

Act means the National Historic Preservation Act of 1966 (16 U.S.C.

470-470w-6).

Agency means agency as defined in 5 U.S.C. 551.

Approval of the expenditure of funds means any final agency

decision authorizing or permitting the expenditure of Federal funds or

financial assistance on an undertaking, including any agency decision

that may be subject to an administrative appeal or rehearing procedure.

Area of potential effects means the geographic area or areas within

which an undertaking could cause adverse effects on historic

properties.

Comment means the findings and recommendations of the Council

formally provided in writing to the head of a Federal agency under

section 106 of the Act.

Consultation means the process of seeking and considering the views

of other participants in a manner appropriate to the particular

participants and the specific steps in the Section 106 process.

Council means the Advisory Council on Historic Preservation or a

Council member or employee designated to act for the Council.

Effect means alteration to the characteristics of a historic

property that qualified it for inclusion in or eligibility for the

National Register

er participants in a manner appropriate to the particular

participants and the specific steps in the Section 106 process.

Council means the Advisory Council on Historic Preservation or a

Council member or employee designated to act for the Council.

Effect means alteration to the characteristics of a historic

property that qualified it for inclusion in or eligibility for the

National Register.

Head of the agency means the chief official of the Federal agency

responsible for all aspects of the agency's actions. If a State, local

or tribal government has been delegated responsibility for Section 106

compliance, the head of that unit of government shall be considered the

head of the agency.

Historic property means any prehistoric or historic district, site,

building, structure, or object included in, or eligible for inclusion

in, the National Register of Historic Places maintained by the

Secretary of the Interior. This term includes artifacts, records, and

remains that are related to and located within such properties. The

term includes properties of traditional religious and cultural

importance to an Indian tribe or Native Hawaiian organization that meet

the National Register criteria. The term ``eligible for inclusion in

the National Register'' includes both properties formally determined as

such in accordance with regulations of the Secretary of the Interior

and all other properties that meet the National Register criteria.

Indian tribe means an Indian tribe, band, nation, or other

organized group or community, including a Native village, Regional

Corporation or Village Corporation, as those terms are defined in

section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602),

which is recognized as eligible for the special programs and services

provided by the United States to Indians because of their status as

Indians.

Local government means a city, county, parish, township,

municipality, borough, or other general purpose political subdivision

of a State

ration, as those terms are defined in

section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602),

which is recognized as eligible for the special programs and services

provided by the United States to Indians because of their status as

Indians.

Local government means a city, county, parish, township,

municipality, borough, or other general purpose political subdivision

of a State.

Memorandum of Agreement means the document that records the terms

and conditions agreed upon to resolve the adverse effects of an

undertaking upon historic properties.

National Historic Landmark means a historic property that the

Secretary of the Interior has designated a National Historic Landmark.

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 organization means any organization which serves

and represents the interests of Native Hawaiians; has as a primary and

stated purpose the provision of services to Native Hawaiians; and has

demonstrated expertise in aspects of historic preservation that are

significant to Native Hawaiians. ``Native Hawaiian'' means any

individual who is a descendant of the aboriginal people who, prior to

1778, occupied and exercised sovereignty in the area that now

constitutes the State of Hawaii.

Programmatic Agreement means a document that records the terms and

conditions agreed upon to resolve the potential adverse effects of a

Federal agency program or other situations in accordance with

Sec. 800.15.

Secretary means the Secretary of the Interior acting through the

Director of the National Park Service except where otherwise specified

area that now

constitutes the State of Hawaii.

Programmatic Agreement means a document that records the terms and

conditions agreed upon to resolve the potential adverse effects of a

Federal agency program or other situations in accordance with

Sec. 800.15.

Secretary means the Secretary of the Interior acting through the

Director of the National Park Service except where otherwise specified.

State Historic Preservation Officer 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.

Traditional cultural authority means an individual or a group of

individuals in an Indian tribe, Native Hawaiian organization, or other

social or ethnic group who is recognized by members of the group as

knowledgeable in the group's traditional history, cultural practices

and living human values.

Tribal lands means all lands within the exterior boundaries of any

Indian reservation and all dependent Indian communities.

Tribal Preservation Officer means the tribal official appointed by

the tribe's chief governing authority or as designated by a tribal

ordinance or preservation program as provided for and approved under

the provisions of section 101 of the Act.

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 financed in whole or in part with Federal financial

assistance; those requiring a Federal permit, license or approval; and

those subject to State or local regulation administered pursuant to a

delegation or approval by a Federal agency.

[FR Doc. 96-23532 Filed 9-12-96; 8:45 am]

BILLING CODE 4310-10-P