ML20217J229
| ML20217J229 | |
| Person / Time | |
|---|---|
| Issue date: | 08/07/1997 |
| From: | Bangart R NRC OFFICE OF STATE PROGRAMS (OSP) |
| To: | Fowler J ADVISORY COUNCIL ON HISTORIC PRESERVATION |
| References | |
| NUDOCS 9708140082 | |
| Download: ML20217J229 (92) | |
Text
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. _ Mr. J:hn M. Fowl:;r Executive Dir;ctor Advisory Council 'on Historic Preservation feU0 - 71997 The Old Post Office Building 1100 Pennsylvania Avenue, NW, #809 ~
--Washington, DC 20004
Dear Mr. Fowler:
This is in response to your July 3 and 30,1997 memoranda to Federal Preservation Offliers soliciting comments on the Advisory Council's proposed revisions to Section 106 regal?tions under 36 CFR 800. Although we do not have any substantive comments to provide at this time on the proposed revisions to the regulhtlons, we thank you for t,+
opportunity to review them.
l.-
Sincerely, L
L orthelshned By IUCHARD L P>RGART Richard L. Bangart, Director c
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Mr. John M. FowlIr Executive Director Advisory Council on Historic Preservation The Old Post Office Building 1100 Pennsylvania Avenue, NW, #809 Washington, DC 20004
Dear Mr. Fowler:
/
7 This is in response to your July 3 and 30,1997 memoranda to Federal Pres,er/
vation Officers soliciting comments on the Advisory Council's proposed revisionp'to Section 106 l
regulations under 36 CFR 800. Although we do not have any substant,ive comments to provide at this time on the proposed revisions to the regulations, we hank you for the l
opportunity to review them.
I want to take this opportunity to inform you that, since her appbintment to Commissioner Nils Diaz' office, Maria Lopez-OtIn is no longer the NRC's Fedefal Preservation Officer of record. Therefore, please forward future such correspondence to the individual named below:
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Rosetta Virgilio Office of State Programs' U.S. Nuclear Regulatory Commission Mail Stop O 3-H-20/
Washington, DC 20555 (301) 415 2307/
Internet: rov @nrc. gov
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Sincerely,
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Richard L. Bangart, Director Office of State Programs j
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Mr. John M. Fowler Executive Director Advisory Council on Historic Preservation The Old Post Office Building 1100 Pennsylvania Avenue, NW, #809 Washington, DC 20004
Dear Mr. Fowler:
This is in response to your July 3 and 30,1997 memoranda to Federal Preservation Officers soliciting comments on the Advisory Council's proposed revisions to Section 106 regulations under 36 CFR 800. Although we do not have any substantive comments to provide at this time on the proposed revisions to the regulations, we thank you for the opportunity to review them.
Sincerely, l'
M fw f Of Richard L, Bangart, Director Office of State Programs t
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Re:
Follow-up to Inter-agency hieeting on Proposed Regulations On July 23, the Council held an infomtal inter-agency meeting to brief Federal agencies on the status of the Council's proposed regulations and to hear agencies' views on the proposal.
Attached is a list of attendees Ifyou were unable to attend the meeting and have comments you would like to submit, or if you attended the meeting and have additional comments, please forward them to me or Adina Kanefield no_later than August 15, i
o s
Federal Agency Name Phone / Fax ACHP John Fowler 202-606 8503-606-8672 ACHP Adina Kanefield 202-606-8503-606-8672 Rural Housing Service Don Lander 720-9656 HUD Joel Segal 708-0614 NRCS Mike Kaczor 720-4912/ fax 1814 BLM Marilyn Nickels 202-452 0331/ fax 7701 I
DOT Steve Shapiro 202-366-4866/7618 National Trust Elizabeth Merritt 202 588-6035/6272 FCC AraHolly Berland 202-418-1732/2882 1
NPS Laura Feller 202-343-9528/1244 OMB/OIRA David Rostker 202-395-3897/7235 U.S EPA Patricia E. Haman 202-564-7152 FERC Jean Potrin 202-219 0022 FERC Heather Campbell 202-219-3097 NAVY Bernard Murphy 703-325-7353 ACHP Ron Anzalone 202-606-8523/8672 GSA Connie Ramirez 202-501-1811
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Advisory Council On Historic Preservation C
' < 0 3: I 8 The Old Post Office Building 1100 Pennsylvania Avenue, NW, #809 I"I 3'l997 Y
whington, DC 20004 Memorandum to Federal Preservat n flicers From: John M. Fow9r Acting Execute /e Director On June 20,1997, the Council held its spring business meeting in Washington, D.C. A critical issue on the agenda was consideration ofrevisions to the Council's Section 106 regulations. In response to a motion made by Ray Soon, the Native Hawaiian / Native American representative to l
the Council, the members voted unanimously to defer formal action on the Council's revised regulations and directed the staff to conduct "immediate, serious, and thorough" consultation with the tribes. The members also directed the staff to initiate informal discussions with Federal agencies on the proposed changes and to continue consultation with the State Historic Preservation Officers. The members requested that the Section 106 regulations be brought back to the Council for consideration at its next meeting, planted to be held in late October. In large part, this action was taken in response to the concern raised by many tribes that the Council needed to provide further opportunities for government-to-govemment consultation with the tribes.
The process underway is a continuation of the re'gulatory revision process that commenced in -
early 1993! Much progress has been made in identifying desirable changes to the current regulations and drafting specific language. However, certain issues are still to be resoh>ed by the Council and the opportunity exists to bring the remaining concerns of Federal agencies, Indian tribes, SHPOs and others to the membership for their consideration in reaching a final decision. It is intended that this will lead to a final rule for action by the Council membership at its fall meeting.
This mailing provides you with regulatory materials for your review. The attached documents include the text of the latest draft of revised regulations, which has been prepared by the Council's Task Force on Regulations, but has not been acted upon by the full membership. It also includes materials to assist your analysis of the draft regulation.
You are invited to an informal meeting of Federal agencies on July 23,1997. This is being hosted by the Council, in coorJination with our desk officer at the Oilice of Management and Budget.
However, this is not part of the formal OMB reivew of our final regulation, which has not yet been initiated. The meeting will run from 9:00 am to noon. Please contact Adina Kanefield, -
Assistant General Counsel, to confirm your attendance and to get the room location, which is yet to be confirmed. Written comments or suggestions prior to the meeting are also welcome.
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SUMMARY
OF COMMENTS AT TRIBAL MEETINGS During the tribal meetings held in Boulder and Washington in June, attendees suggested specific language changes and raised broader policy issues. These are substsntive issues, in addition to the concerns raised about the adequacy of consultation. The following summary of those comments is being provided for your information as you review the regulations draft General Concerns Tribes should be given the same status in the Section 106 process as the State Historic Preservation OfTicer when a Federal undertaking affects historic properties of religious and cultural significance located ofTtribal lands.
Tribes should be given the ability to limit the ability of other groups to become consulting parties with regard to historic properties of religious and cultural significance.
1 The approval of a tribe for actions concerning undertakings on tribal lands should be required even if the duties of the State Historic Preservation Otlicer have not been assumed by a Tribal Historic Preservation Officer.
Specific Recommendations In Section 800.2(c)(2)(iii) the reference to "other groups" should be deleted.
In Section 800.3(c) language should be added to make it clear that the Federal agency has the duty to identify the appropriate tribes that may be affected by an undertaking.
Section 800.3(e)(iv)(4) should be clarified to require tribal consent in determining who should be a consulting party when a Federal undertaking is on tribal land.
Section 800.4(c)(2) should require a Federal agency to get a determination of eligibility from the Keeper of the National Register if the tribe so requests.
Section 800.7(a)(2) should be changed to show that a Memorandum of Agreement for an undertaking on tribal lands cannot go fonvard without the tribe's consent. If the tribe does not consent, then the Federal agency must seek Council comment.
Section 800.13 regarding discoveries should be revised to better reflect the requirements of the Native American Graves Protection and Repatriation Act.
Throughout the regulation the role of the Tribal Historic Presenation Officer should be clarified.
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c, Advisory Council On Historic Preservation The Old Post Office Building 1100 Pennsylvania Avenue, NW, #809 Nhington, DC 20004 i
Revised Section 106 Regulations:
A Status Report July 1,1997 i
The attached materials are being provided to persons interested in the Section 106 process to bring them up to date on the Council's regulatory reform efforts. The package includes the current working draft of revised regulations (June 5,1997) in two versions: a " clean version" and i
one that shows changes from the proposed rule published for public comment in the Ecdcral Register on September 13,1996; a summary of major changes from the current regulation; a section-by-section guide to changes between the June 5th draft and the September 13th proposal; and flow charts for the June 5th draft and the current regulation.
These materials are being made available in order to inform Section 106 users on changes that are under consideration. The Council is continuing to work on the draft and expects to take formal action at its next meeting, to be held in October,1997. 4 l
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f Advisory Council On Historic Preservation The Old Post Offim Building 1100 Wnnsylvania Avenue NW. #809 Washington, DC 20004 Comparison of Current Regulations to June 5,1997 Draft Regulation Major Changes Introduction. The proposed revisions included in the June 5,1997, draft would significantly modify the current regulation found at 36 C.F.R. Part 800. This document highlights the major revisions from that regulation. There are many other revisions and improvements that cumulatively improve the operation of the Section 106 process, but they are not detailed here.
l The Section by Section analysis, while it compares the current draft with the proposed regulation published for comment on September 13,1996, provides much more detail on changes.
+ Major changes.
Greater deference to agency-SHPO decisionmaking. The Council has withdrawn from review of routine decisions (no adverse effect findings and most Memoranda of Agreement agreed to by the Federal agency and the SHPO).
More focussed Councilinvolvement. The Council would get involved in the resolution of adverse effects when requested by the rgency, a SHPO, an Indian tribe, a local government or an applicant for Federal assistance or permission; when National Historic Landmarks were affected; or when an agency wished to develop a Programmatic Agreement, which customarily is used for multi-State or highly complex projects. The Council could also enter the process when it determined its involvement was necessary to ensure that the purposes of the NHPA were being met.
Better definition of participants' roles. The primary responsibility of the Federal agency for Section 106 decisions is emphasized, while the advisory roles of the Council and the SHPO are clarified. The roles of other participants are more clearly defined, i
particularly Indian tribes, local goverrunents and applicants, who may participate as
" consulting parties." Certain individuals and organizations are entitled to be consulting parties based on the nature of their interest in an undertaking, while others may request to be involved.
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f Early compliance enc 9uraged. Provisions have been added to encourage ageleies to initiate compliance with the Section 106 process early in project planning and to begin consultation with the SHPO and others at that early stage.
Coordination with other reviews advanced. Agencies are encouraged to integrate Section 106 review with that required under NEPA and relatd laws. Specific provisions that flex identification and evaluation, public participation and documentation requirements facilitate this.
V Substitution of NEPA compliance for Section 106 regulations authorized.' Agencies are authorized to use Environmental Impact Statements and Environmental Assessments prepared under the National Environmental Policy Act to meet Section 106 needs.
New techniques introduced to deal with marginal or routine cases. Agencies may seek exemptions from Section 106 or advisory comments on an entire program and the -
Council may establish standard methods of treating recurring situations, providing greater flexibility in applying the Section 106 process to important issues.
Public panielpation clarified. Opportunities for public involvement in the Section 106 process are more clearly dermed, with encouragement for agencies to use their established public involvement procedures. More detailed, non-binding guidance on how to involve the public in the various kinds of undertakings reviewed in the Section 106 process will be developed to be published at the same time as the regulation.
Native American roles defined and strengthened. Major emphasis is placed on the role ofIndian tribes and other Native Americans. The draft incorporates specific provisions for involving tribes when actions occur on tribal lands for consulting with Indian tribes and Native Hawaiian organizations, as required by the NHPA, throughout the process. The provisions recognize the needs of dealing with properties of traditional cultural importance. Provision is also made for the involvement of the Tribal Historic Preservation Officer when that official has assumed the responsibilities of the SHPO on tribal lands.
Role of applicants recognized; The proposal acknowledges the direct interests of applicants for Federal assistance or approval and specifies greater opportunities for active participation in the Section 106 process as consulting parties. Applicants are permitted to initiate and pursue the steps of the process, while the Federal agency remains responsible c for final decisions regarding historic properties.
4 Alternate Federal agency procedures flexed. The provisions allowing agencies to substitute their internal procedures for the Council's Section 106 regulations no longer require that the agency procedures be formal rules or regulations. Approval of such substitute procedures is linked to requirements of Section 110(a)(2)(E).
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y Proceduralstreamlining.
"No effect" step simplified. ' The "no historic properties" and "no effect" determinations l
of the current regulations are combined into'n single "no historic properties affected" findingc The separate "effect" detennination is dropped and the agency moves directly to
- assessing adverse effects when it appears historic propeities~ may be affected.
-Identification and evaluation of historic properties made more flexible. The proposal introduces concepts of phased identification and relating the level of l
. identification to the nature of the undertaking and its likely impacts on historic properties.
Adverse effect criteria and exceptions revamped. The criteria are revised to better define adverse effects, while the current " exceptions" to the criteria relating rehabilitation of historic properties meeting the Secretary's Standard and transfer of Federal properties with preservation restrictions have been incorporated into the adverse effect criteria and expanded. The archeological exception has been deleted as qualifying for No Adverse Effect treatment. Such cases will be treated as adverse efTects, but other changes to the process remove existing Council review of the outcomes. The proposed regulation authorizes the Council to specify " standard treatment" Memoranda of Agreement, which are intended to include a revised version of expedited treatment for cases involving 1
impacts on properties only significant for scientific research purposes.
Agency-SHPO resolution of adverse effects excluded from Council review. Council review of two-pany agreements is eliminated. Agencies are required to file the agreements with the Council to provide a basis for general Council oversight of agency compliance with Section 106.
Failure of agency-SHPO consultation leads to Councilinvolvement. Instead of resulting in formal Council comment, two-party consultation failing to reach a solution requires the Council tojoin to reach resolution. Termination and comment can follow.
Council comment provision reflects NHPA amendments. Council comments must be considered by the head of the agency receiving them, as required by Section 110(1) of NHPA.
- y Review of agency findings clarified. Recognizing that the Council's views on agency actions to comply with Section 106 are only_ advisory, a new provision allows anyone at anytime to seek the Council's opinion on agency findings and decisions under Section :
106. There is no obligation thdelay agency action while the Council conducts its review.
Emergency and post-review discoveries situations revised. Greater emphasis is placed on planning for unanticipated events and more flexible responses are allowed.
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f Council monitoring of overall Section 106 performance enhanced. The proposal shifts the emphasis of Council review from individual cases to assessments of the overall quality of a Federal agency's or SHPO's perfonv.4nce in the Section 106 process. An obligation for agencies to provide project info.mation to the Council is included and provisions are made for closer Council review of cases where a participant has been found to have shortcomings in complying with Section 106.
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c Advisory Council On Historic Preservation The Old Post Office Building 1100 Pennsylvania Avenue,NW, #809 Washington, DC 20004 Comparison of June 5,1997, and September 13,1996, Regulation Draftss Section by Section 800.1(a). Goal of consultation elaborated upon to make c' ear that the concept of consultation embraces the whole Section 106 process, from identification to resolution of adverse effects.
800.1(b). Editorial changes only.
800.1(c). Section deleted as unnecessary.
800.1(d). First sentence changed to track Act's language. " Field investigations" dropped as inconsistent with " nondestructive project planning activities."
800.2. Overall, the various categories of parties to the Section 106 process has been substantia'ly simplified, responding to a major concern of commenters.
800.2(a). " Principal parties" deleted as a category.
800.2(a)(1). Reference to Section 112 ofNHPA redrafted to conform to statutory language and National Park Service implementation of the statute.
800.2(a)(2). Language added to clarify what happens with multiple agency involvement when no lead Federal agency is designated.
800.2(a)(3). Section on use of contractors moved from 800.4(b)(3).
800.2(b). Editorial changes primarily, with language added to encourage participants to seek Council resolution of disputes.
800.2(c). " Consulting parties" becomes general term for all other participants with status in the Section 106 process, as compared to the "public." Section redrafted to emphasize rights and 1
L responsibilities of consulting parties, as distinguished from the process ofinvohing them in later j
parts of the regulations.
800.2(c)(1). Responsibilities of SHPOs revised in response to comments. SHPO role when Tribal Historic Preservation Officer assumes SHPO duties is redefined as potential " consulting party."
800.2(c)(2). Tribal section rewritten to incorporate certain provisions of former 800.12, designed to give more visibility to Native American involvement sections. Subsections moved from 800.12 and revised for clarity. Previous language of this section deleted.
Old 800.2(c). "Affected parties" deleted as a category of participants to clarify roles of parties.
800.2(c)(3). Editorial changes to specify rights of parties instead of process ofinvoMng them.
g800.2(c)(4). Same as preceding. Also changed to make clear that applicants can panicipate in all-pans of the Section 106 process and to require agency to notify other consulting parties when the applicant is assuming this role.
800.2(c)(5) New section to acknowledge that other individuals or organizations may qualify as consuhing panies.
800.2(d). Section edited to reduce unnecessary verbiage; non-regulatory material to be put in non-binding guidance document on public participation.
800.2(d)(1) & (2). Editorial changes to clarify agency responsibility.
800.2(d)(4). Section deleted as " interested panies" category has been eliminated in interest of simplifying process. These panies can enter process as " additional consulting parties" pursuant to Section 800.2(c)(5).
800.3(a). Editorial changes in response to comments to tie to definition in 800.16 and to avoid impression that an action has to have identifiable effects on specific historic properties to be an undertaking.
800.3(b). Agency obligation changed from "shall" to "should" to avoid setting formal legal requirement of coordination.
800.3(c). New language added to deal with undertakings affecting tribal lands and situations where a Tribal Historic Preservation Officer has formally assumed SHPO responsibilities.
800.3(c)(1). Language added to emphasize that all participating SHPOs must agree to designating lead SHPO and clarify authority oflead SHPO. Stricken language moved to 2
't.
800.3(cX3).
800.3(c)(2). Editorial changes to clarify combining steps in process.
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800.3(c)(3). Language moved from (cXI).
l-800.3(c)(4). Language added to make clear that agency can proceed to next step in process when l
SHPO fails to respond within 30 days, based on finding made by the agency. Also clarifies effect of SHPO failure to respond and what happens when SHPO rejoins consultation.
800.3(d). Language revised and simplified for public panicipation, with expectation that guidance will be incorporated into non-binding guidance document.
Old 800.3(d). Moved to 800.3(c).
800.3(e). Language changed to reflect consolidation of"affected panies" and " interested public" concepts into ' consulting panies." Language in subsections clarified to show process ofinviting censin parties to be consulting parties, deal with undenakings on tribal lands and set method for others to request consulting party status. Council decides on consult' g party status where SHPO m
and Agency Official disagree.
800.4(a)(1). Language added in response to comments to clarify the process of delineating the area of potential effects. Changes also made in definition in 800.16.
800.4(a)(3). Language amended to reflect change to consulting parties in 800.2.
800.4(b). Language added to require consultation with Indian tribes and Native Hawaiian organizations as specified in the NHPA.
800.4(b)(1). - Section edited for clarity. Language added to relate effort to degree of Federal involvement in the undertaking and reference relevant guidance beyond that issued by the Secretary.
1 800.4(b)(2). Language added to apply this section to evaluation of historic significance as well as identification, to deal with inaccessible sites and to require consideration of the views of the SHPO and other consulting parties.
~ 800.4(b)(3), Section moved to 800.2(a)(3).
800.4(c)(1). Language added to require consultation with Indian tribes and Native Hawaiian organizations as specified in the NHPA.
800.4(d)(1) & (2). Lant,uage mcdified in response to comments, to address change to consulting 3
parties and to extend SliPO review period from 15 to 30 days.
800.4(e). New section to deal with undertakings affecting tribal lands, giving tribe same status as SHPO has off triballands.
800.5(a). Language added to require consultation with Indian tribes and Native Hawaiian organizations as specified in the NHPA.
800.5(a)(1). Language added to make clear that all features of a property need to be evaluated for eligibility, including those that may have been identified subsequent to an initial evaluation of eligibility.
800.5(a)(2). Adverse effect criteria modified to:
(ii) Provide that certain alterations meeting the Secretary's Standards will not be adverse, thereby maintaining the current No Adverse Effect exception for restoration, rehabilitation, etc. Expanded to include stabilization, hazardous material remediation (e.g., lead paint abatement) and handicapped access.
(iv) Clarify when impacts on a property's setting are adverse.
(v) Clarify when visual and similar impacts to historic properties are adverse.
(vii) Provide that transfers of Federal property with adequate preservation restrictions will be treated as No Adverse Effects, maintaining the current exception.
800.5(b). Language added to clarify sequence of agency finding and SHPO resiew and to permit No Adverse Effect findings when the undertaking is modified to avoid adverse effects of when conditions are imposed by the SHPO, such a plan reviews when rehabilitations are conducted.
Old 800.5(a)(4). The whole section on standard treatment has been eliminated. The " standard treatments" for rehabilitation and the like and for transfers of Federal property have been incorporated into the adverse effect criteria, allowing No Adverse Effect findings when certain conditions are met. The remaining " standard treatment," dealing with archeological data recovery (ii) is now handled as a normal adverse effect situation. However, it would qualify for a Memorandum of Agreement without Council review or concurrence, unlike the current regulation's No Adverse Effect provision which requires 30-day Council review and concurrence.
800.5(c). New language requires agency to notify all consulting parties of a proposed No Adverse Effect determination when submitting it to the SHPO. " Standard treatment" language.
deleted 800.5(c)(2). Language added to require SHPO to specify reasons for disagreeing with a No 4
Adverse Effect finding, allow the agency to negotiate with the SIIPO to resolve the disagreement and point other consulting parties to their opponunity to bring the matter to Council attention under 800.9.
800.5(c)(3). Language added to clarify that the agency can either consider the effect adverse or seek Council review when the SliPO fails to respond in 30 days.
800.5(c)(4) New section to specify how Council reviews No Adverse EfTect findings when requested by the agency.
800.5(d)(1) & (2). Language changed to reflect deleting of standard treatrnent approach, mosing of notice to consulting panies to 800.5(c) and changing consequence of agency failure to carry out the undertaking in accordance with the finding.
800.5(e). New section to specify rights of tribes when undertaking affects triballands. Basically gives tribes same rights that SHPOs have off tribal lands.
800.6(n). Language added to emphasize consultation involves all consulting parties.
l 800.6(a)(1). Editorial changes, 800.6(a)(1)(i). Thresholds for involving Council changed by deleting requirement that agency request Council involvement when an undertaking is on tribal lands.
800.6(a)(1)(i) & (11). Language changed to al:cw SHPO and other consulting parties to directly request Council participation in consultation.
800.6(a)(iii). Requires Council to notify all consulting parties ofits decision on participation and clarifies how consultation with the Council is conducted.
800.6(a)(2). Language changed to reflect deletion of" interested parties" as a term.
800.6(a)(3). Agency responsibility changed to provide documentation to consulting parties.
800.6(a)(4). Specific reference to documentation public is entitled to see added and agency obligation to involve public made more flexible.
800.6(b)(1)(ii). Reference added to Council-specified " standard treatments" that may be used for expedited Memoranda of Agreement.
800.6(b)(1)(iv) & (v). Language added to require agreement of tribe to a Memorandum of Agreement (MOA) when the undertaking affects tribal lands.
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800.6(b)(2) & 800.6(c)(1). Same as preceding.
800.6(c)(2). Editorial changes to clarify concurrence by others in an MOA.
800.6(c)(5). Language added to make clear that an agency head does not have to " document any decision"if the Council is not signatory to an MOA, per Section 110(1) of the NiiPA. MOA does have to be filed with the Council.
800.6(c)(6) & (7). Editorial changes.
800.7(a). Language added to allow Indian tribe to terminate consultation when undertaking affects tribal lands and require that any terminating party provide reasons for the termination.
800.7(a)(1)-(3). Editorial changes to reflect use of consulting party" term and reflect tribal involvement.
e 800.7(b). New section that permits Council to send formal comments on a case even when there is an MOA.
800.7(c)(1) & (3). Editorial changes to reflect use of" consulting party" term.
800,7(c)(4). Rewritten in response to comments to better delineate responsibilities of agency head under Section 110(1) of the NHPA.+
800.8. Entire section revised to respond ta ~9mments on coordination of NEPA and Section 106 compliance. Changes relate to reflecting mr -
'g party" terminology and using NEPA terms and concepts more precisely; 800.9(a). " Appeals" section drastically revi nnd to concerns about timing, standing and effect of Council reviews of agency findings. <
'n uage allows anyone at anytime to bring a matter to the Council, while acknowledging that woncil cannot delay agency action and that its response is advisory and not binding.
800.9(b). " Chairman" deleted, as no other section specifies a particular Council official. " Agency Official" added to who gets notified of a foreclosure by the Council.
800.9(d). 'Shall" changed to "may" to give Council discretion in conducting evaluations.
800.9(d)(1). Language changed to clarify that Council does not specify what documentation an agency maintains in its project files.
800.10. Editorial changes.
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800.11(a). Language added to require that when Council or SHPO determines agency documentation is inadequate, the necessary information will be specified.
800.11(c). Section modified to comport vith statutory language of Section 304 ofNHPA and to acknowledge that other authorities may require that access to information be limited.
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800.11(c). Presious Sections 800.11(e) & (f) combined. Language added in (4) to require inclusion of any conditions for subsequent resiews as a condition for a No Adverse Effect finding.
800.11(g)(3). Omitted as unnecessary.
Oid 800,12. Section deleted and most ofits constituent parts worked into other provisions to place Native American and Native Hawaiian involvement requirements in a more prominent place.
800.12(a)(2). Language added to require consultation with Indian tribes and Native Hawaiian organizations as specified in the NHPA.
800.12(e). New section to reflect role ofIndian tribe when undertaking affects tribal lands, giving them same rights to participate as SHPO has off tribal lands.
800,13(a)(1) & (2). New subsection to allow agency to use Programmatic Agreement to deal with post review discoveries.
800.13(b)(1). Language added to apply section to approved undertakings where construction has not commenced.
800.13(b)(2). Language added to require consultation with Indian tribes and Native Hawaiian organizations as specified in the NHPA.
800,13(b)(3). Language added to make clear this subsection applies only after construction has started.
800.13(d). New section that requires agency to comply with Native American Graves Protection and Repatriation Act for discoveries on triballands.
800.14(a). Language added to reference the Secretary's Section 110 guidelines.
800.14(a)(1). Language added to require agency to consult with other affected parties and seek public input when developing alternate procedures.
800.14(a)(2)(ii). Language giving Secretary final authority to determine consistency of alternate procedures with Council's regulations deleted in response to comment.
7
800.14(b)(1)(ii). Language added to clarify agency responsibility to involve public and others.
800,14(b)(1)(iii).- Language added to include NCSHPO as signatory to certain Programmatic
.. Agreements and to allow them to terminate them.
800.14(c)(1)(ii). " Adverse" changed to " minimal."
800.14(c)(2). New provision added to require agency to involve public when developing a proposed exemption.
- 800.14(c)(5). New provision allowing Council to terminate an exemption.
800.14(d)(1). New language allows others to request Council to develop standard treatments and specifies that they may take the form of mandard form MOAS.
800,14(d)(2). New provision requires public participation in developing standard treatments.
l 800.14(d)(4). New provision allows Council to terminate a standard treatment.
800.14(e). Language to allow Council to provide program comments on its own initiative moved from 800.14(e)(3).
800.14(e)(1) & (2). New language requires agency to involve public when seeking program comments.
800.16. Changes in definitions are:
-Additional language to clarify area of potential effects.
-New definition for " day".
- -Addition of" complex undertaking" to Programmatic Agreement.
-Moving of" tribal lands" due to insertion of" Historic"in Tribal Preservation Officer to conform to current terminology.
8
The Proposed S cti:n 106 Review Prccess (6/5/97)
INITIATE 106 i
. establish undertaking
. coordinate reviews
. consult with SHPOTTPO
. pian public involvernent
. determine consulting parties v
IDENTIFICATION *
. determine area of potential effect
. identity historic properties
. evaluate National Register eligitety
\\
PROPERTIES $ l HISTORIC NO HISTORIC PROPERTIES AFFECTED* -
SHPO/TPO n Sm
)
. assess adverse effects l
oblects AFFEED*
[
\\
. notify SHPOfrPO l SHPO/TPO NO obieces ADVERSE EFFECT+
ADVERSE EFFECT,
.notsoe to counca SHPOTTPO review v
- determine Council councli I'W#"WA NM v
SHPOITPO CONSULTATION
- h c "c""
No CONSULTATION +
s s
MOA without Council l
@ CouEil
[
\\
v
"^
COUNCIL
"^
(agency; SHPOITPO)
{
S
+ Opportunity for public input and consulting party imchunent, as appropnate
Currsnt S:ctisn 106 R:visw Process IDENTIFICATION *
- determine area of potential effect
- identify historic properties eevaluate National Register eligibility
/
\\
HISTORIC NO HISTORIC '
PROPERTIES FOUND PROPERTIES +
eapply criteria of effect edocurrent enotty SHPO o*o"je7, EFFECT*
NO EFFECT+
)
enotify SHPO espply criteria of u
adverse effect no PO SHPO concurs or objects objection 6
s NO ADVERSE EFFECT+[ '
4 ADVERSE EFFECT*
Councu
-s CONSULTATION +
CONSULTATION +
Councu comment without Council with Councii V
MOA Council goA C;:.;-l3HPO) comment 1
v accept Council Council MOA review comment
~
v recommend a n,
. c -
.u :- --.
--a
- ~.'--. -- -
\\
PROPOSED SECTION 106 REGULATIONS / June 5,1997 Draft (Clean Version)
Page1 1
ADVISORY COUNCIL ON HISTORIC PRESERVATION 2
3 PROTECTION OF HISTORIC PROPERTIES (36 C.F.R. PART 800) 4 5
SUBPART A PURPOSES AND PARTICIPANTS 6-7
{ 800.1 Purposes.
8 Q 800.2 Participants in the Section 106 process.
9 10 SUBPART B THE SECTION 106 PROCESS 11 12
{ 800.3 Initiation of the Section 106 process.
13 Q 800.4 Identification of historic properties.
14
{ 800.5 Assessment of adverse effects.
15
{ 800.6 Resolution of adverse effects.
16 Q 800.7 Failure to resolve adverse effects.
17 Q 800.8 Coordination with the National Environmental Policy Act.
18 0 800.9 Council review of Section 106 compliance.
19 Q 800.10 Special requirements for protecting National Historic Landmarks.
20 Q 800.11 Documentation standards.{ 800.12 Emergency situations.
21 Q 800.13 Post review discoveries.
22 23 SUBPART C-PROGRAM ALTERNATIVES 24 25
{ 800.14 Federal agency program alternatives.
26 800.15 State, Tribal and Local Program Alternatives. (Resen ed) 27
@ 800.16 Definitions.
28 29 SUBPART A-PURPOSES AND PARTICIPANTS 30.
31 800.1 Purposes.
32 33 (a) Purposes ofthe Section 106 process. Section 106 of the National Historic Preservation Act 34 requires Federal agencies to take into account the effects of their undertakings on historic 35 properties and afford the Council a reasonable opportunity to comment on such undertakings.
36 The procedures in this part define how Federal agencies meet these statutory responsibilities.
37 The Section 106 process seeks to accommodate historic preservation concerns with the needs of 38 Federal undertakings through consultation among the Agency Official and other parties with an 39 interest in the effects of the undertaking on historic properties, commencing at the early stages of 40 project planning. The goal of consultation is to identify historic properties potentially affected by 41 the undertaking, assess its effects and seek ways to avoid, minimize or mitigate any adverse
- PROPOSED SECTION 106 REGULATIONS / kne 5,1997 Draft (Clean Version)
Page 2 1
effects on historic properties.
2' 3
(b) - Relation to otherprovisions ofthe Act. Section 106 operates within a framework of 4-authorities of the Act designed to further the national policy of historic preservation. References 5
L to those authorities are included in this part to identify circumstances where actions may be -
6 affected by the independent obligations of those provisions. Such provisions may have their own 7
implementing regulations or guidelines and are not intended to be implemented by the 8
procedures in this part. Guidelines, policies and procedures issued by other agencies, including 9
the Secretary, have been cited in this part for case of access and are not incorporated by 10 reference.
11 1
-12 (c) Timink. The Act requires the Agency Official to complete the Section-106 process " prior to e 13 the appmval of the expenditure of any Federal funds on the undertaking or prior to the issuance 14 of any license". An Agency Official may expend funds on, or authorize, nondestructive project 15 planning activities before completing compliance with Section 1%, and may conduct phased 16 compliance with the procedures in subpart B at different stages of planning, provided that such 17 actions do not restrict the subsequent consideration of altematives to avoid, minimize or mitigate 18 the undertaking's adverse effects on historic properties. The Agency Official shall ensure that the 19 Section 1% process is initiated early in the undertaking's planning, so that a broad range of n 20 shernatives may be considered.
21 22 9800.2 Participeats la the Section 106 preeens I.
23 24 Y(a) Agency Ogicial.: It is the legal obligation of the Federal agency to fulfill the_requirernents of 25 Svetion 106 and to ensure that an Agency. Official withjurisdiction over an undertaking takes 26 legal and financial responsibility for Section 106 compliance in accordance,with subpart B.: The 27 Agency Official has final approval authority for the undertaking and may be a State, local, or 28
- tribal govemment official who has been delegated legal responsibility for compliance with-29-Section 106 in accordance with law.
30 31 (1) Professionalstandards. Section 112(a)(1)(A) of the Act requires each Federal agency
.32 responsible for the protection of historic resources, including archeological resources, to ensure
-33 that all actions taken by employees or contractors of the agency shall meet professional standards 34 under regulations developed by the Secretary. For the purposes of this part, these regulations are 35 the Secretary's Standards for Archeology and Historic Preservation (cite).
36 (2) Lead Federal agency. If more than one Federal agency is involved in an undertaking, the 37 -
agencies may designate a lead Federal agency. The lead Federal agency shall identify the 38=
appropriate official to serve as the Agency Official. Such Agency Official shall act on behalf of 39 all participating Federal agencies, fulfilling their collective responsibilities under Section 106 and 40 subpart B. If no lead Federal agency is designated, each Federal agency remains individually 41 responsible for compliance with this part.
PROPOSED SECTION 106 REGULATIONS / June 5,1997 Dran (Clean Version)
Page 3 1
(3) Usc ofcontractors. Consistent with applicable conflict ofinterest laws, the Agency Official 2
may use the services of applicants, consultants, or designees to preparc infonnation, analyses and 3
recommendations under this part, but remains legally responsible for all findings and determinations charged to the Agency Official, if a document or study is prepared by a non-4 5
Federal party, the Agency Official is responsible for its content and shall ensure that it meets 6
applicable standards and guidelines.
7 8
(b) Council. The Council issues regulations to implement Section 106, provides guidance and 9
advice on the application of the procedures in this part, and generally oversees the operation of 10 the Section 106 process. The Council also consults with and comments to Agency Officials on 11 individual undertakings that affect historic properties and assists participants in meeting their 12 legal obligations. Participants in the Section 106 process may seek advice and guidance from 13 the Council on the application of this part to specific undertakings, including the resolution of 14 disagreements, whether or not the Council is formally involved in the review of the undertaking.
15 16 (c) Consultingparties. The following parties have consultative roles in the Section 106 process.
l 17 The Agency Official shall involve these parties in consultation throughout the Section 106 18 process as specified in subpart B.
19 20 (1) State Historic Preservation Offlcer. The State Historic Preservation Officer reflects the 21 interests of the State and its citizens in the preservation of their cultural heritage. The State 22 Historic Preservation Officer advises and assists Federal agencies in canying out their Section 23 106 responsibilities. If an Indian tribe has assumed the functions of the State Historic 24 Preservation Officer in the Section 106 process for undertakings on tribal lands, the State 25 Historic Preservation Officer may request to participate in accordance with Q800.3(e)(iv)..
26 27 (2) Indian tribes and Native Hawaiian organizations. Section 101(d)(6)(B) of the Act requires 28 the Agency Official to consult with any Indian tribe or Native Hawaiian organization that 29 attaches religious and cultural significance to historic properties that may be affected by an 30 undertaking. Such Indian tribe or Native Hawaiian organization shall be a consulting party.
31 32-(i) The Agency Official shall ensure that consultation in the Section 106 process provides the 33 Indian tribe or Native Hawaiian organization a reasonable opportunity to identify its concerns 34 about historic properties, advise on the identification of historic properties, including associated 35 traditional religious and cultural importance, articulate its views on the undertaking's effects on 36 such properties and participate in the resolution of adverse effects. Consultation should 37 cornmence early in the planning process, in order to identify relevant preservation issues and 38 resolve concerns about the confidentiality ofinformation on historic properties pursuant to 39
{800.11(c) and to allow adequate time for discussion of relevant preservation issues.
40 41 (ii) Consultation with Indian tribes on tribal lands must recognize the sovereignty ofIndian tribes
PROPOSED SECTION 106 REGULATIONS / June 5,1997 Draft (Clean Version)
Page 4 1
over such lands. Where an Indian tribe has assumed the responsibilities of the State Historic 2
Preservation Officer under Section 101(d)(2) of the Act, the Agency Official shall consult with 3
the Tribal Historic Preservation Officer in lieu of the State Historic Preservation Officer and in 4
accordance with any plan prepared pursuant to that section regarding the effects of undertakings 5
on tribal lands. In other cases, the Agency Official shall involve the Indian tribe with 6
jurisdiction over the tribal lands as a consulting party.
7 8
(iii) The Agency Official shall consult with designated representatives of the Indian tribe's or 9
Native Hawaiian organization's goveming body. Traditional cultural authorities and other tribal 10 or organizational members, as identified by the designated representatives or by other groups, 11 may also request to become consulting parties under {800.3(e)(iv).
12 13 (3) Representatives oflocalgovernments. A representative of a local government with 14 jurisdiction over the area in which the effects of an undertaking may occur is entitled to 15 participate as a consulting party, Under other provisions of Federal law, the local government 16 may be authorized to act as the Agency Official for purposes of Section 106.
I7 18 (4) Applicantsfor Federal assistance, permits, licenses and othe, approvals. An applicant for 19 Federal assistance or for a Federal permit, license or other approval is entitled to participate as a 20 consulting party as defined in this part. The Agency Official may authorize an applicant to 21 initiate consultation with the State Historic Preservation Officer and others under (( 800.3-22 800.6, but remains legally responsible for all findings and determinations charged to the Agency 23 Oflicial. The Agency Official shall notify the State Historic Preservation Officer and other 24 consulting parties when an applicant is so authorized.
25 26 (5) Additional consultingparties. Certain individuals and organizations with a demonstrated 27 interest in the undertaking may participate as consulting parties due to the nature of their legal or 28 economic relation to the undertaking or affected properties, or due to their concern with the 29 undertaking's effects on historic properties.
30 31 (d) Thepublic. The views of the public are essential to informed Federal decisionmaking in the 32 Section 106 process.
33 34 (1) Responsibilities. The Agency Official is required at specific points in the Section 106 process 35 to provide the public with information about an undmaking and its effects on historic properties 36 and to seek public comment and input. Members of the public may also provide views on their 37 own initiative for the Agency Oflicial to consider in decisionmaking.
38 39 (2) Flexible application. The Agency Official shall seek and consider the views of the public in a 40 manner that reflects the nature and complexity of the undertaking and its effects on historic 41 properties, the likely interest of the public in the effects on historic properties, and the l
PROPOSED SECTION 196 RE00 TAT 10NS / June 5,1997 Draft (Clean Version)
Page5 i
relatforn. hip of the Federal involvement to the undertaking.
2 3
(3) Use ofagencyprocedurcs. The Agen$y Ometal may use the agency's procedures for public 4
involvement under the National Environmental Policy Act or other program requirements, if they 5
provide adequate opportunities for public involvement consistent with the procedures in subpart 6
U.
7 8
9 10 SUHPART H THE SECTION 106 ?ROCESS 11 12 6 800.3 Initiation of the Section 106 process.
13 14 (a) Establish undertaking. The Agency Omelal shall detennine whether the proposed Federal 15-action is an undertaking as defined in Section 800.16 and, if so, whether it is a type of activity 16 that has the potential to cause efrects on historic properties.
17 18 (1) LUnless the action is an undertaking that has the potential to cause effects on historic 19 properties, de Agency Omcial has no further obligations under Section 106.
20 21 (2)If the ri
.v of the undertaking is govemed by a Federal agency program attemative 22 established t. der ! 800,14, the Agency Ometal shall follow the program attemative.
23 24 (b) Coordinate with other reviews. The Agency Omcial should coordinate the steps of the 25 Section 106 process, as appropriate, with the overall planning schedule for the undertaking and 26 with any reviews required under other authorities such as the National Environmental Policy Act, 27 the Native American Oraves Protection and Repatriation Act, the American Indian Religious 28 Freedom Act, the Archeological Resources Protection Act and agency specific legislation, such 29 as Section 303(f) of the Department of Transportation Act. Where consistent with the procedures 30 in this subpart, the Agency Omcial may incorporate information developed for other reviews 31 under Federal, State or triballaw,
%/W[
32 Pt- $ su 90 33 (c) Initiate consultation with the State Historic Pre vation Oficer or TribalHistoric 34 Preservation Oficerc The Agency Omcial shall,detemiine the appropriate State liistoric 35 Preservation Omcer or Omcers to be involvedjn the Section 106 process. The Agency Omcial 36 shall also determine whether the undertaking kill occur on or affect tribal lands and, if so, y
37 whether a Tribal llistoric Preservation Omper has assumed the duties of the State Ilistoric 38 Preservation Omcer. The Agency Omcial4 hall then initiate consultation with the appropriate "j
OMccr or Omcers. gM <4 / /p/f ?%g d g# /M anhW-e 'W*f ff., f/
39
[h nMiW 6eaMA f 4 b%.,...
'40 41 (1) If more than one State is involved in an undertaking, the involved State 11istoric Preservation
~
PROPOSED SECTION 106 REOULATIONS / June 5,1997 Draft (Clean Version)
Page 6 l
Omcers may agree to designate a lead State llistoric Preservation OMcer to act on their behalfin 2
the Section 106 process, including taking actions that would conclude the Section 106 process 3
under this subpart.
4 5
(2) The Agency Omcial should consult with the State illstoric Presenation Omccr in a manner 6
appropriate to the agency planning process for the undertaking and to the nature of the 7
undertaking and its effects on historic properties. A consultation by 1 - Agency Omcial with the 5
8 State llistoric Preservation Omcer and other consulting parties may adJress multiple steps in 9
lQ800.3 800.5 where the Agency Omelal and the State illstoric Preservation Omcer agree it is 10 appropriate.
11 12 (3) If the State llistoric Preservation Omccr at any time declines in writing to participate in the 13 Section 106 process, the Agency Omelal shall request the Council to determine how to complete 14 the Section 106 process.
15 16 (4) Except as provided in {800.5(c)(3), if the State illstoric Preservation Omcer fails to respond 17 within 30 days to a request for review of a finding or determination, the Agency Omelp! may 18 either proceed to the next step in the process based on the finding or determination or consult 19 with the Council in lieu of the State llistoric Preservat'on Omccr. The absence of a response 20 does not constitute the State li!storic Preservation Omcer's concurrence with a finding or 21 determination by the Agency Omelal,if the State llistoric Preservation Officer re-enters the 22 Section 106 process, the Agency Omcial shall continue the consultation at that point in 23 accordance with this subpart.
24 i
25 (d) r/an to im>olvc the publics in consultation with the State liistoric Prearvation Omcer, the 26 Agency Omelal shall plan for involving the public in the Section 106 process, relating the steps 27 to be taken to the Ukcly level and nature of public interest in the undertaking and its effects on 28 historic properties. The Agency Official shall identify the appropriate points for seeking public l
29 input and for notifying the public of proposed actions, consistent with M800.3 800.6.
30 l
31 (e) / dent (fy consultingparties, in consultation with the State liistoric Preservation Omcer, the 32 Agency Omcial shall identify prospective consulting parties and invite them to participate as 33 such in the Section 106 process. Jhe Agency Omcial may invite others to participate as 34 consulting parties as the Section 106 process moves fonvard.
35 36 (1) The Agency Omcial shall invite any local governments or applicants that are entitled to be 37 consulting parties under {800.2(c).
38 39 (2) The Agency Omcial shall determine whether the undertaking will occur on or affect tribal 40 lands and, if so, invite the governing body of the Indian tribe to be a consulting party.
41 l
PROPOSED SECTION 106 REOULATIONS / June $,1997 Draft (Clean Version)
Page 7 I
(3) The Agency OfTicial shall invite any Indian tribes or Native llawaiian organizations that i
2
~lght attach religious and cultural significance to historic properties in the area of potential 3
effects to be consulting parties.
t 4
5 (4)The Agency Omelal shall consider all written requests ofindividuals and organizations to 6
participate as consulting panies and determine which should coasulting parties. If the Agency 7
Omelal and the State llistoric Preservation Omcer disagree on the participation of a consulting 8
pany, the Agency Omcial shall request the Council to dec!de.
9 10
% 800.4 Identification of historic properties.
I1 12 (a) Determine scope ofident(/lcation cforts. At the earliest feasible stage in planning an 13 undertaking and coordinated with any steps being taken to meet the requirements of the National, 14 Environmental Policy Act, the Agency Omcial shall consult with the State IIistoric Preservation 15 Officer top 16 17 (1) Determine the area of potential effects, as defined in Q 800.16, taking into account the scale l
18 and nature of the undertaking, the relationship of Federal involvement to the po'ential effects, 19 and the potential for and likely nature of historic properties that might exist within it; 20 21 (2) Review existing information on historic properties within the area of potential effects, 22 including any data concerning possible historic properties not yet identified; and 23 24 (3) Seek information, as appropriate, from consulting parties, the public and other individuals 25 and organizations likely to have knowledge of, or concerns with, historic properties in the area, 26 and identify issues relating to the undertaking's potential effects on historic properties.
27 28 (b)1 dent @ historicpropcrtics. Based on the information gathered under { 800.4(a), and in 29 consultation with the State llistone Preservation Omccr and any Indian tribe or Native llawaiian 30 organization that attaches religious and cultural significance to properties within the area of 31 potential efTects, the Agency Official shall take the steps necessary to identify historic properties 32 within the area of potential effects.
33 34 (1) Levelofdort. The Agency Omcial shall make a seasonable and good faith efTort to carry 35 out appropriate identification efrons. The Agency Official shall determine the appropriate scope 36 and type ofidentification efforts, which may include background research, consultation, sample 37 field investigation, and field survey. The Agency Official shall take into account past planning, 38 research and studies, the magnitude of the undertaking and the degree of Federal involvement, 39 the nature and extent of potential effects on historic properties, and the likely nature and location 40 of historic properties within the area of potential efTects. The Secretary's Standards and 41 Ouidelines for identification provide guidance on this subject. The Agency Official should also
- _. - -. _. _ -. _ _ _ _ _ - _ ~
j PROPOSED SECTION 106 REGULAT10NS / June 5,1997 Draft (Cb an Venion)
Page 8 1
consider other opp uble professional, State, tribal and local standards and guidelines.
2
)
3 (2) Thased identification andcvaluation. Where attemative locations are under consideration or 4
access to properties is restricted, the Agency Official may conduct identification and evaluation 5
efforts designed to establish the likely presence of historic properties within the area of potential 6
effects for each alternativeor inaccessible area through background research, consultation and an 7
appropriate level of field investigation, taking into account the number of alternatives under 8
consideration, the magnitude of the undertaking and its likely effects, and the views of the State 9
Illstoric Preservation Omcer and any other consulting parties. As specific aspects or locations of 10 a preferred alternative are refined or access is gained, the Agency Official shall complete the 11 identification and evaluation of historic properties in accordance with (0 800.4(b)(1) and (c).
12 13 (c) Evaluate historic significance. (l) Apply National Register Criteria. In consultation with the 14 State llistoric P. :servation Officer and any Indian tribe or Native llawaiian organization that 15 attaches religious and cultural significance to identified properties, guided by the Secretary's 16 Standards and Guidelines for Evaluation and with consideration for the potential of the proposed 17 undertaking to affect identified properties, the Agency Omcial shall apply the National Register 18 Criteria to properties identified within the area of potential effects that have not been previously 19 cvaluated for National Register cligibility The passage of time, changing perceptions of 20 significance, or incomplete prior evaluations may require reevaluation of properties previously 21 determined eligible or ineligible.
22 23 (2) Determlnc whether aproperty is eligible, if the Agency Official determines the criteria are 24 met and the State liistoric Preservation Officer agrees, the property shall be considered eligible 25 for the National Register for Section 106 purposes. If the Agency Official determines the criteria 26 are not met and the State illstoric Preservation Officer agrees, the property shall be considered 27 not eligible, if the Agency Official and the State liistoric Preservation Officer do not agree, or if 28 the Council or the Secretary so request, the Agency Omcial shall obtain a determination of 29 eligibility from the Secretary pursuant to 36 CFR part 63.
30 31 (d) Results ofidentification and evaluation. (l)No historicproperties afected. If the Agency 32 Omcial finds that either there are no historic properties present or there are historic properties 33 present but the undertaking will have no efrect upon them, the Agency Official shall provide 34 documentation of this finding as set forth in { 800.11(d) to the State llistoric Preservation 35 Officer. The Agency Official shall notify all consulting parties and make the documentation 36 available for public inspection prior to approving the undertaking. If the State liistoric 37 Preservation Officer does not object within 30 days of receipt of an adequately documented 38 finding, the Agency Official's responsibilities under Section 106 are fulfilled.
1 39
(
40 (2) Historicproperfics afected, if the Agency Ofiicial finds that there are historic properties 41 which may be afTected by the undertaking or the State Ilistoric Preservation Omcer objects to the
PROPOSED SECTION 106 REGULATlONS / June 5,1997 Draft (Clean Version)
Page 9 1
Agency Official's finding under ( 800.4(d)(1), the Agency Omcial shall notify all consulting 2
parties, invite their views on the effects and assess adverse effects in accordance with ( 800.5.
3 4
(e) Undertakings on or afecting triballands. When canying out the provisions of this 5
subsection for an undertaking on or affecting tribal lands, the Agency Omcial shall consult with the Indian tribe when determining the area of potential effects, identifying historic properties and 6
7 evaluating the historic significance ofidentified properties. The Agency Omelal shall consult the 8
Indian tribe when reaching any detennination of eligibility under ( 800.4(c)(2) for properties on 9
tribal lands. If the Indian tribe objects to an Agency Official's determination, the Agency Official 10 shall obtain a determination of eligibility from the Secretary pursuant to 36 CFR Part 63. The 11 Agency Official shall provide documentation of any finding that there are no historic properties 12 affected to the Indian tribe. If the Indian tribe objects within 30 days of receipt of an adequately 13 documented finding, the Agency Omcial shall proceed in accordance with ( 800.4(d)(2).
14 15
$ 800.5 Assessment of adverse effects.
16 17 (a) Apply crlicria ofadverse efect. In consultation with the State Ilistoric Presnvation Officer 18 and any Indian tribe or Native llanlian organization that attaches religious and cultural 19 significance to identified properties, the Agency Official shall apply the criteria of adverse effect 20 to historic properties within the area of potential efTects. The Agency Omcial shall consider any 21 views concerning such effects provided by consulting parties and the public.
22 23 (1) Criteria ofadverse efcct. An adverse effect is found when an undertaking may alter the 24 characteristics of a historic property that qualify the property for inclusion in the National 25 Register in a manner that would diminish the integrity of the property's location, design, setting, 26 materials, workmanship, feeling, or association: Consideration shall be given to all qualifying 27 characteristics of a historic property, including those that have been identified subsequent to the 28 original evaluation of the property's eligibility for the National Register. Adverse effects may 29 include reasonably foreseeable effects caused by the undertaking that are later in time or farther 30 removed in distance.
31 32 (2) Eramples ofadverse effects. Adverse effects on historic properties include, but are not 33 limited to:
34 35 (i) Physical destruction or damage of all or part of the propertyt 36 37 (ii) Alteration of a property, including restoration, rehabilitation, repair, maintenance, 38 stabilization, hazardous material remediation and provision of handicapped access, that is not 39 consistent with the Secretary's Standardsfor the Treatment ofHistoric Properties (36 C.F.R.
40 Part 68) and applicable guidelines; 41
e PROPOSED SECTION 106 REGULATIONS / June $.1997 Draft (Clean Version)
Page 10 1
(iii) Removal of the property from its historic location; 2
3 (iv) Change of the character of the property's use or of physical features within the property's 4
setting that contribute to its historic significance ;
5 6
(v) Introduction of visual, atmospheric or audible elements that diminish the integrity of the 7
property's signl0 cant historic features; 8
9 (vi) Neglect of a property which causes its deterioration; and 10 11 (vil) Transfer, lease, or sale of property out of Federal ownership or control without adequate 12 and legally enforceable restrictions or conditions to ensure long tenn preservation of the 13 property's historic significance.
14 15 (b) Finding ofno adverse effect. The Agency Omelal, in consultation with the Strate liistoric 16 Preservation Omcer, may propose a finding of no adverse effect when the undertaking's cfrects 17 do not meet the criteria of {800.5(a)(1) or the undertaking is modified or conditions imposed, 18 such as the subsequent review of plans by the State Ilistoric Preservation Officer, to avoid 19 adverse effects.
20 21 (c) State Historic Prescrvation Officer review.' If the Agency Official proposes a finding of no 22 adverse effect, the Agency Official shall notify all consulting parties of the finding and submit' 23 the finding with the documentation specified in (800. l l(e) to the State liistoric Preservation 24 Officer for a 30-day review period.
25 l
26 (1) Agrccment withfinding. If the State liistoric Preservation Officer agrees with the finding, the 27 Agency Official may proceed and shall carry out the undertaking in accordance with p l
28 800.5(d)(1).
29 30 (2) Disagrccment withfinding.. lf the State liistoric Preservation Officer disagrees within the 30-31 day review period, the State 1listoric Preservation Omcer shall specify the reasons for 32 disagreeing with the finding. The Agency Official shall consider the effect adverse, consult with 33 the State llistoric Preservation Officer to resolve the disagreement or request the Council to 34 review the finding pursuant to (800.5(c)(4). Consulting parties that disagree with the finding l
35 may make their views known to the Council under Q 800.9(a).
36 37 (3) Failurc to respond. If the State liistoric Preservation Officer falls to respond within 30 days 38 of receipt of the finding, the Agency Official may either consider the effect adverse or request the 39 Council to review the finding pursuant to (800.5(c)(4).
40 41 (4) Council rcticw offindings. When requested by the Agency Official, the Council shall review l
J PROPOSED SECTION 106 REGULATIONS / June 5,1997 Draft (Clean Version)
Pageil I
the finding and notify the Agency Omcial ofits opinion within 30 days of receiving the 2
documentation specified in $800.ll(e). The Agency Official shall proceed in accordance with 3
the Council's opinion as to whether the effect is adverse.
4 5
(d) Results ofassessment. (1) No adverse #cct. The Agency Omelal shall maintain a record of 6
the f'mding, and make the record available for public inspection before approving the 7
undertaking. Implementation of the undertaking in accordance with the finding as documented 8
fulfills the Agency Omelal's responsibilities under Section 106 and this part. If the Agency 9
Official does not cany out the undertaking as proposed in the finding, the Agency Official shall 10 reopen consultation under { 800.5(a).
I1 12 (2) Adverse efect. If an adverse effect is found, the Agency Omelal shall consult further to 13 resolve the adverse effect pursuant to { 800.6.
14 15 (c) Undertakings on or afecting triballands. When carrying out the provisions of this 16 subsection for an undertaking on or affecting tribal lands, the Agency Omcial shall consult with 17 the Indian tribe when applying the Criteria of Adverse Effect. The Agency Omelal shall provide 18 any proposed finding of no adverse efTect concerning a historic property on tribal lands, along 19 with documentation specified in $800.11(c), to the Indian tribe for a 30-day review period when 20 submitting it to the State liistoric Preservation Omccr. If the Indian tribe objects to an Agency 21 Omcial's finding, the Agency Omelal shall cor. sider the effect adverse, consult with the Indian 22 tribe to resolve the disagreement or request the Council to review the finding pursuant to 23
{800.5(c)(4).
24 25 g 8005 Resolution of adverse effects.
26 27 (a) Continue consultation. The Agency Official shall consult with the State llistoric Preservation 28 Oflicer and other consulting parties to develop and evaluate alternatives or modifications to the 29 undertaking to avoid, minimize or mitigate adverse effects on historic properties.
30 31 (1) Determine Councilparticipation. The Agency Oflicial shall determine whether to request 32 Council participation in the consultation and shall notify the Council of the adverse effect finding 33 by providing the documentation specified in { 800.11(c).
34 35 (i) The notice shall include a request for the Council to participate in the consultation:
36 37 (A) When the Agency Oflicial wants the Council to participate ;
38 39 (B) When the undertaking has an adverse effect upon a National llistoric Landmark; or 40 41 (C) When a Programmatic Agreement under Q 800,14(b) will be prepared;
PROPOSED SECTION 106 REG 1)LATIONS /Junc 5,1997 Draft (Clean Version)
Page 12 1
(ii) The State llistoric Preservation or any other consulting party may independently request the 2
Council to participate in the consultation.
3 4
(iii) The Council shall advise the Agency OMcial and all consulting parties whether or not it will 5
panicipate within 15 days of receipt of notice or other request. The Council may request 6
information about any undedaking and enter the consultation on its own initiative at any point 7
when it determines that Council involvement is necessary to ensure that the purposes of Section 8
106 and the Act are rnet. Consultation with Council participation is conducted in accordance with 9
{ 800.6(b)(3).
10 11 (iv)If the criteria in { 800.6(a)(1)(i) are not met or the Council does not elect tojoin the 12 consultation, the Agency Omelal shall complete consultation in accordance with 6 800.6(b)(1).
13 14 (2)lnvolve consultingparties. In addition to the consulting parties identified under 6 800.3(e),
15 the Agency Official, the State llistoric Preservation Omcer and the Council, if participating, may 16 invite other individuals or organizations to become consulting parties. If the Agency Omcial and 17 the State llistoric Preservation Officer do not agree, the Agency Official shall request the 18 Council to decide. The Agency Omcial shall invite any individual or organization that will 19 assume a specific role or responsibility in a Memorandum of Agreement to participate as a 20 consulting party.
21 22 (3) Provide documentation. The Agency Official shall provide to all consulting parties the 23 documentation specified in { 800.11(c) and such other documentation as may be developed 24 during the consultation to resolve adverse efTects.
25 26 (4)lnvolve thepublic. The Agency Omcial shall make available information to the public, 27 including the documentation specified in { 800.11(c), and provide an opportunity for members of 28 the public to express their views on resolving adverse effects of the undertaking. The Agency 29 Omcial should use appropriate mechanisms, taking into account the magnitude of the 30 undertaking and the nature ofits effects upon historic properties, to ensure that the public's 31 views are represented and considered in the consultation.
32 33 (b) Resolve adverse efects. (1) Resolution without the Council.
34 35 (i) The Agency Omcial shall consult with the State Historic Preservation Officer and other 36 consulting parties to seek ways to avoid, m%imize or mitigate the adverse effects.
37 38 (ii) The Agency Omcial may use standard treatments specified by the Council under { 800.14(d) 39 as a basis for a Memorandum of Agreement where the circumstances are appropriate.
40 41 (iii)If during the consultation the Council decides tojoin the consultation, the Agency Omcial
! o I
PROIOSED SECTION 106 REGULATIONS / June 5,1997 Draft (Clean Version)
Page 13 l
1 shall continue the consultation in accordance with { 800.6(b)(3).
2 3
(iv) If the Agency Omcial and the State llistoric Preservation Oflicer agree on how the adverse 4
effects will be resolved, they shall execute a Memorandum of Agreement. If the undertaking 5
occurs on or affects a historic property on tribal lands, the appropriate Indian tribe must also 6
agree to and execute the Memorandum of Agreement. The Agency Omcial must file a copy of 7
the executed Memorandura of Agreement, along with the documentation specified in (800.ll(f),
8 with the Council prior to approving the undertaking in order to meet the requirements of Section 9
106 and this subpart.
10 11 (v) If the Agency Official, the State Illstoric Preservation Officer and an Indian tribe,if the 12 undertaking occurs on or affects a historic property on tribal lands, fall to agree on the terms of a 13 Memorandum of Agreement, the Agency Official shall request the Council tojoin the 14 consultation and proceed in accordance with Q 800.6(b)(2).
15 16 (2) Resolution with Councilparticipation. If the Council decides to participate in the 17 consultation, the Agency Official shall consult with the State Historic Preservation Oflicer, the i
18 Council, and other consulting parties to avoid, rninimize or mitigate the adverse effects. if the 19 Agency Official, the State llistoric Preservation Omcer, and the Council agree on how the 20 adverse effects will be resolved, they shall execute a Memorandum of Agreement. If the 21 undertaking occurs on or affects a historic property on tribal lands, the appropriate Indian tribe 22 must also agree to and execute the Memorandum of Agreement.
23 24 (c) Memorandum ofAgreement. (1) Signatorics. The Agency Oflicial and the State llistoric 25 Preservation Officer are the signatories to a Memorandum of Agreement executed pursuant to 26 QQ800.6(b)(1) and (2). The Agency Official, the State llistoric Preservation Officer, and the 27 Council are the signatories to a Memorandum of Agreement executed pursuant to Q 800.6(b)(2).
28 An Indian tribe is a signatory to any Memorandum of Agreement that concerns an undertaking 29 that occurs on or affects a historic property on tribal lands. The signatories have sole authority to 30 execute, amend or terminate the agreement in accordance with this subpart.
31 32 (2) Concurrence by others. The Agency Official shall invite all consulting parties to concur in 33 the Memorandum of Agreement. The signatories may agree to invite others to concur. The 34 refusal of an invited party to concur in the Memorandum of Agreement shall not affect its 35 execution by the signatoria;.
36 37 (3) Reports on Implementation. Where the signatories agree it is appropriate, a Memorandum of 38 Agreement shall include a provision for monitoring and reporting on its implementation.
39 40 (4) Duration. A Memorandum of Agreement shall include provisions for termination and for 41 reconsideration of terms if the undertaking has not been implemented within a specified time.
PROPOSED SECTION 106 REGUI.ATIONS / June 5.1997 Draft (Clean Venlon)
Page 14 1
(5) Legalstatus A hiemorandum of Agreement executed and implemented pursuant to this 3
section evidences the Agency Omcial's compliance with Section 106 and this part and shall 3
govern the undertaking and all ofits parts. A hiemorandum of Agreement executed pursuant to 4
6 800.6(b)(1) that is filed with the Council shall be considered to meet the requirements of 5
Section 110(1) of the Act that the head of the agency document any decision made pursuant to 6
Section 106. The Agency Omcial shall ensure that the undertaking is carried out in accordance 7
with the hiemorandum of Agreement.
8 9
(6) Amendments. The signatories to a hiemorandum of Agreement rnay amend it. If the Council 10 was not a signatory to the original agreement and the signatories execute an amended agreement, 11 the Agency Official shall file it with the Council.
12 13 (7) Termination. If any signatory detennines that the terms of a hiemorandum of Agreement 14 cannot be carried out, the signatories shall consult to seek amendment of the agreement. If the 15 agreement is not amended, any signatory may terminate it and the Agency Official shall request 16 the comments of the Council under y 800.7(a).
17 18 6 800.7 Failure to resolve adverse effects.
19 20 (a) Termination ofconsultation. After consulting to resolve adverse effects pursuant to ((
21 800.6(b)(1) or (2), the Agency Official, the State llistoric Preservation Officer, or the Council 22 may determine that further consultation will not be productive and terminate consultation. An 23 Indian tribe may temiinate consultation if the undertaking occurs on or affects historic properties 24 on its tribal lands. Any party that terminates consultation shall provide to the other consulting
?.5 parties the reasons for tenninating in writing 26 27 (1) If the Agency Omcial terminates consultation, the head of the agency or an Assistant 28 Secretary or other omeer with major department wide or agency wide responsibilities shall 29 request the Council's comments accompanied by the documentation in G 800.11(h), and notify 30 all consulting parties of the request.
31 32 (2) If the State llistoric Preservation OMccr or an Indian tribe tenninates consultation, the 33 Agency Official and the Council may execute a hiemorandum of Agreement without the State 34 IIistoric Preservation Officer's or the Indian tribe's involvement or either may terminate 35 consultation.
36 37 (3) If the Council terminates consultation, the Council shall notify the Agency Oflicial and all 38 consulting parties of the termination and comment under 6 800.7(c).
39 40 (b) Comments without termination. The Council may determine that it is appropriate to provide 41 additional advisory comments upon an undertaking for which a hiemorandum of Agreement will
PROPOSED SECTION 106 REGULATIONS / June 5,1997 Draft (Clean Version)
Pagel$
1 be executed. The Council shall prepare its comments pursuant to (800.7(c) and provide them to 2
the Agency Omelal when it executes the Memorandum of Agreement.
3 4
(c) Comments by the Council. (1) frcparation. The Council shall provide an opportunity for 5
the Agency Omcial, all consulting parties, and the public to provide their views within the time 6
frame for developing its comments. Upon request of the Council, the Agency Omelal shall 7
provide additional existing information concerning the undertaking and assist the Council in 8
arranging an onsite inspection and an opportunity for public participation.
9 10 (2) T/ ming. The Council shall transmit its comments within 45 days of receipt of a request under 11 6 800.7(a)(1) or termination by the Council tmder 6 800.7(a)(3), unless otherwise agreed to by 12 the Agency Omcial.
13 14 (3) Transmittal. The Council shall provide its comments to the head of the agency requesting 15 comment with copies to the Agency Omcial, all consulting parties, and others as appropriate.
16 17 (4) Response to Council comment. The head of the agency shall take into account the Council's 18 comments in reaching a final decision on the undertaking. Section 110(1) of the Act directs that, 19 the head of the egency shall docurnent this decision and may not delegate his or her 20 responsibilities pursuant to Section 106. Documenting the agency head's decision shall include:
21 22 (i) Preparing a summary of the decision that contains the rationale for the decision and evidence 23 of consideration of the Council's comments and providing it to the Council prior to approval of 24 the undertaking; 25 26 (ii) Providing a copy of the summary to all consulting parties; and 27 28 (iii) Notifying the public and making the record available for public inspection.
29 30 5800.8 Coordination with the National Environmental Policy Act.
31 32 (a) Gencral coordination. Federal agencies are encouraged to coordinate, when appropriate, 33 compliance with Section 106 and the procedures in this part with any steps taken to meet the 34 requirement; of the National Environmental Policy Act (42 U.S.C. 4231 et seq.)(NEPA).
35 36 (b) Actions categorically excluded undcr NEPA. Whether or not a project, activity or program is s[
.p 37 categorically excluded from NEPA review under an agency's NEPA procedures, the Agency 38 Omcial shall determine ifit qualifies as an undertaking requiring review under Section 106 39 pursuant to @ 800.3(a), if so, the Agency Official shall comply with the procedures in this 40 subpart.
41
4 s
PROPOSED SECTION 106 REGUIATIONS / June 5,1997 Draft (Clean Version)
Page 16 1
(c) Use q(the NEM procenfor Section 106 purposes. An Agency OfTicial may use the process 2
and documentation for the preparation of an Environmental Assessment (EA) or an 3
Environmental Impact Statement (EIS) to comply with Section 106 in lieu of the procedures set 4
forth in il 800.3 through 800.6 if the following conditions are met.-
5 6
(1) Preparation of the EA or DraA EIS (DEIS) meets the following standar' s:
d 7
8 (1) The Agency Omcial has identified consulting parties pursuant to i 800.3(e) or through the 9
NEPA scoping process with results consistent with j 800.3(c);
10 1I (ii) The Agency Offloial has notified the Council, the State Historic Preservation Officer, 12 consulting parties and the public during the preparation of the DEIS or EA that Section 106 13 requirements will be met through NEPA compliance in accordance with {800.8(c);
14 15 (iii) Historic pmputies are identified and effects of the undertaking are===a==ad in a manner 16 consistent with the standards and criteria of 66 800.4 through 800.5; 17 18-(iv) The Agency Omcial has consulted with the State Historic Presen ation Officer, other 19 consulting parties, and the Council where appropriate during NEPA scoping, environmental 20 analysis, and the preparation of NEPA documents; 21 22 (v) The Agency Official has involved the public in accordance with the agency's published 23 NEPA procedures; and 24 25 (vi) Allematives and proposed measures that might avoid, minimize or mitigate any adverse 26-effects of the undertaking on historic properties and that are being considered by the Agency --
27 Omelal are described in the EA or DEIS.
-28 29 (2) The Agency Omcial shall submit the EA or DEIS to the State Historic Preservation Officer, g 30 other consulting parties, and the Council, whwe appropriate, when making the document 31 available for public comment. The Agency Official shall indicate that the EA or DEIS is
'32 intended to fulfill the requirements of Section 106.
33 34 (3) If the Agency Official receives an objection fmm the State Historic Preservation Omcer, (
35.
another consulting party, or the Council within the time allowed for public comment on the 36
_ document, the Agency Official shall refer the matter to the Council. Within 30 days, the Council 37 shall notify the Agency Omcial either that it agrees with the objection, in which case the Agency 38 Omelal shall enter into consultation in accordance with i 800.6(b)(2) or seek Council comments 39 in accordance with 6 800.7(c), or that it disagrees with the objection, in which case the Agency 40 Omcial shall complete its compliance with this section.
41
PROPOSED SECTION 106 REGULATIONS / June 5,1997 Draft (Clean Version)
Page 17 1
(4) The Agency Official shall specify in the finai document resulting from the EA or Final EIS 2
(FEIS) the proposed measures to avoid, minimizo or mitigate adverse effects on historie 3
properties. Adoption of the proposed measures turough a commitment, binding on the agency or 4
the applicant for Federal assistance or permission, as appropriate, to carry them out and 5
embodied in a Record of Decision (ROD) following or accompanying the final document 6
resulting from the EA or FEIS satisfies the Agency Official's responsibilities under Section 106 7
and the procedures in this subpart.
8 9
(5) If the undertaking is modified after approval of the ROD in a manner that alters the effects 10 on historic properties or if the Agency Official fails to ensure that the measures to avoid, 11 minimize or mitigate adverse effects as specified in the ROD are carried out, the Agency Official 12 shall either take into account the effects of the undertaking in completing compliance with NEPA l
13 or follow g 800.6.
l 14 15 6 800.9 Council review of Section 106 (ompliance.
16 17 (a) Assessment ofAgency Oficial compliancefor individual undertakings. The Council may 18 provide to the Agency Official its advisory opinion regarding the substance of any finding, 19 determination or decision made under this part or regarding the adequacy of the Agency 20 Official's compliance with the procedures leading to such finding, determination or decision.
21 The Council may provide such advice at anytime at the request of any individual, agency er 22 organization or on its own initiative. The Agency Official shall consider the views of the Council 23 in reaching a final decision on the undertaking.
24 25 (b) Agencyforeclosure ofthe Council's opportunity to comment. Where an Agency Official has 26 failed to complete the requirements of Section 106 in accordance with the procedures in this part 27 prior to the approval of an undertaking, the Council's opportunity to comment may be 28 foreclosed. The Council may review a case to determine whether a foreclosure has occurred.
29 The Council shall notify the Agency Official and allow 30 days for the Agency Official to 30 provide information as to whether foreclosure has occurred. If the Council determines 31 foreclosure has occurred, the Council shall transmit the determination to the Agency Official and 32 the head of the agency.
33 34 (c) Intentional adverse efects by applicants. (l) Agency responsibility.> Section 110(k) of the 35 Act prohibits a Federal agency from granting a loan, loan guarantee, p rmit, license or other 36 assistance to an applicant who, with intent to avoid the requirements of Section 106, has 37 intentionally significantly adversely affected a historic property to which the grant would relate, 38 or having legal power to prevent it, has allowed such significant adverse effect to occur, unless 39 the agency, after consultation with the Council, determines that circumstances justify granting 40 such assistance despite the adverse effect created or permitted by the applicant. Guidance issued 41 by the Secretary pursuant to Section 110 of the Act govems its implementation.
l
\\
f' PROPOSED SECTION 106 REGULATIONS / June 5,1997 Drafl(Clean Version)
Page 18 1
(2) Compl/ancc with Section 106. If an Agency Omcial, after consulting with the Council, 2
determines to grant the assistance, the Agency Official shall comply with the procedures in this 3
part to take into account the effects of the undertaking on any other historic properties.
4 5
(d) Evaluation ofSection 106 operations. The Council may evaluate the operation of the Section 6
106 process by periodic reviews of how participants have fulmled their legal responsibilities and 7
how effectively the outcomes reached advance the purposes of the Act.
8 9
(1)Irtformationfromparticipants. Section 203 of the Act authorizes the Council to obtain 10 information from Federal agencies necessary to conduct evaluation of the Section 106 process, 11 The Agency Omcial shall make documentation of actions taken to comply with Section 106 12 available to the Council upon request. The Council may request available information and 13 documentation from other participants in the Section 106 process.
14 15 (2) Peer review. The Council may use professional peer review to assist in any evaluation.
16 17 (3) Improving the operation ofSection 106. Based upon any evaluation of the Section 106 18 process, the Council may make recommendations to participants, the heads of Federal agencies, 19 and the Secretary of actions to improve the emeiency and effectiveness of the process. Where 20 the Council determines that an Agency Omcial, a State 111storic Preservation Officer or a Tribal 21 111storic Preservation Omcer who has assumed the role of the State liistoric Preservation Omcer 22 has failed to properly carry out the responsibilities assigned under the procedures in this part, the 23 Council may participate in individual case reviews in a manner and for a period that it determines 24 is necessary to improve performance or correct deficiencies.
25 26 Q 800,10 Special requirements for protecting National llistoric Landmarks.
27 28 Section i10(f) of the Act requires that the Agency Omcial, to the maximum extent possible, 29 undertake such planning and actions as may be necessary to minimize harm to any National 30 Historic Landmark that may be directly and adversely affected by an undertaking. When 31 commenting on such undertakings, the Council shall use the process set forth in (( 800.6 through 32 800.7 and give special consideration to protecting National liistoric Landmarks as specified in 33 this section.
34 35 (a) Resolution ofadverse efects. The Agency Omcial shall request the Council to participate in 36 any consultation to resolve adverse effects conducted under 800.6.
37 38 (b)lnvolvement ofthe Secretary. The Agency Official shall notify the Secretary of consultations 39 involving National Historic Landmarks and invite the Secretary to participate in the 40 consultation. The Council may request a report from the Secretary under Section 213 of the Act 41 to assist in the consultation.
PROPOSED SECTION 106 REGULATIONS / June 5,1997 Draft (Clean Version)
Page 19 1
(c) Peport qfoutcome. The Council shall report the outcome of the Section 106 process, 2
including its comments or any Memoranda of Agreement, to the Secretary and the head of the 3
agency responsible for the undertaking.
1 A
5 6 800.11 Documentation standards.
l 6
7 (a) Adequacy ofdocumentation. The Agency Omelal shall ensure that any determination, 8
finding or agreement under the procedures in this subpart is supported by suffielent 9
documentation to enable any reviewing parties to understand its basis. If the Council, or the 10 State 111storic Preservation Omcer in those situations where the Council is not involved, i
11 determines the applicable documentation standards are not met, the Council, or the State 111storie 12 Preservation Officer or Indian tribe, as appropriate, shall notify the Agency Official and specify 13 the information needed to meet the standard. In such cases, the time period specified in the 14 relevant section of this subpart shall be suspended until specified information is submitted.
15 16 (b) Format. The Agency Official may use documentation prepared to meet the needs of other 17 authorities to fulfill the requirements of the procedures in this subpart, provided that resulting 18 documentation meets the standards of this section.
19 20 (c) Con /ldenflality. (1) Section 304 of the Act requires an Agency Official or other public 21 official receiving grant assistance pursuant to the Act to withhold from public disclosure 22 information about the location, character, or ownership of a historic property when disclosure 23 may cause a significant invasion of privacy; risk harm to the historic property; or impede the use 24 of a traditional rellglous site by practitioners. When a decision to withhold information has been 25 made, the Secretary, in consultation with the Agency Official or public official and the Council, 26 shall determine who may have access to the information for the purposes of carrying out the Act.
27 28 (ii) Other Federal laws and program requirements may limit public access to information 29 conceming an undertaking and its efTects upon historic properties. Where applicable, those 30 authorities shall govern public access to information developed in the Section 106 process and 31 may authorize the Agency Official to protect the privacy of non govemmental applicants.
32 33 (d) Finding ofno historicproperties afected. Documentation shal1 include:
34 35 (1) A description of the undertaking and its area of potential effects, including photographs, 36' maps, and drawings, as necessary; 37 38 (2) A description of the efforts used to identify historic properties; and 39 40 (3) The basis for determining that no historic properties are present or affected.
41
PROPOSED SECTION 106 REGULAT10NS / June $.1997 Draft (Clean Venion)
Page 20 1
(e) Finding o/no adverse cgcci or advctsc cfkct. Documentation shall include:
2 3
(1) A description of the undertaking and its area of potential effects, including photographs, 4
maps, and drawings, as necessary; 5
6 (2) A description of the affected historic properties, including information on the characteristics 7
that qualify them for the National Register; and 8
9 (3) A description of the undertaking's effects on historic properties.
10 11 (4) A description of why the criteria of adverse effect were found applicable or inapplicable, 12 including any conditions or future actions to be taken designed to avoid, minimize or mitigate 13 adverse effects; and 14 15 (5) Copics or summaries of any views provided by consulting parties and the public.
16
, 17 (f) Mcmorandum ofAgreement. When a memorandum is filed with the Council, the 18 documentation shall include an evaluation of any measures considered to avoid or minimize the 19 undertaking's adverse effects and a summary of the views of consulting parties and the public, 20 21 (g) Requestsfor comment when consultation is terminated. Documentation shall include that 22 specified in paragraph (f) of this section and:
23 24 (1) A description and evaluation of any alternatives or mitigation measures that the Agency i
25 Omelal proposes to resolve the undertaking's adverse effects; I
26 u
27 (2) A description of any reasonable attematives or mitigation measures that were considered but l
28 not chosen, and the reasons for their rejection; and i
29 l
30 (3) Copies or summaries of any views submitted to the Agency Omcial concerning the effects of i
31 the undertaking on historic properties and alternatives to reduce or avoid those effects.
l 32 33
.Q 800.12 Emergency situations.
34 35 (a) Agencyprocedurcs.= The Agency Omcial,in consultation with the appropriate State liistoric 36 preservation Omcer or Officers and the Council, is encouraged to develop procedures for taking 37 historic properties into account during operations which respond to a disaster or emergency 38 declared by the President or the governor of a State or which respond to other immediate threats 39 to life or property, If approved by the Council, the prmdures shall govern the agency's historie l
40 preservation responsibilities during any disaster or emergency in lieu of (( 800.3 through 800.7.
l 41 1
_7.,_.,
PROPOSED SECTION 106 REOtJLATIONS / June $,1997 Draft (Clean Version) l' age 21 1
(b) Altctnatives to agencyprocedurcs. In the event an Agency Official proposes an emergency 3
undertaking as an essential and immediate response to a disaster or emergency declared by the 3
President, the Agency Official or the govemor of a State, and the agency has not developed 4
procedures pursuant to { 800.12(a), the Agency Omcial may comply with Section 106 by:
l 6
(1) Following a programmatic agreement developed pursuant to 6 800.14(b) that contains 7
specific provisions for dealing with historic properties in emergency situations; or 8
9 (2) Notifying the Council,'the appropriate State Ilistoric Preservation Oflicer and any Indian tribe 10 or Native llawaiian organization that attaches religious or cultural significance to historic 11 properties likely to be affected prior to the undenaking and affording them an opportunity to 12 comment within seven days of notification. If the Agency Omelal determines that circumstances l
13 do not permit seven days for comment, the Agency Omcial shall notify the Council, the State i
14 llistoric Preservation Omcer and the Indian tribe or Native llawaiian organization and invite any 15 comments within the time available.
16 17 (c) Localgovernments responsiblefor Section 106 compliance. When a local government is 18 statutorily delegated responsibility for Section 106 compliance, Q 800.12(a) and (b) also apply to 19 an imminent threat to public health or safety as a result of a natural disaster or emergency 20 declared by a local government's chief executive omeer or legislative body, provided that if the 21 Council or State llistoric Preservation Officer objects within seven days, the Agency Omcial 22 shall comply with (( 800.3 through 800.7.
23 24 (d) Applicability. This section applies only to undertakings that will be implemented within 30 25 days aller the disaster or emergency has been formally declared by the appropriate authority. An 26 agency may request an extension of the period of applicability from the Council prior to the 27 expiration of the 30 days. Inunediate rescue and salvage operations conducted to preserve life or 28 property are exempt from the provisions of Section 106 and this pan.
29 30 (e) Emergency situations on or afecting triballands. When an agency complies with the 31 provisions of this section for an undertaking on or affecting tribal lands, the Agency Omelal shall 32 provide the Indian tribe with the same opportunities to panicipate as the State llistoric 33 Preservation Officer. The Agency Omcial shall also coordinate actions proposed under this 34 section with the requirements of the Native American Graves Protection and Repatriation Act.
35 36
$ 800,13 Post review discoveries.
37 38 (a) Planningfor discoverics. (1) An Agency Official may develop a Programmatic Agreement 39 pursuant to {800,14(b) to govern the actions to be taken when historic properties are discovered 40 during the implementation of an undenaking.
41
PROPOSED SECTION 106 REGULATIONS / June 5.1997 Draft (Clean Version)
Page 22 1
(2) When the Agency Omcial's identification efforts in accordance with i 800.4 indicate that 2
historic properties are likely to be discovered during implementation of an undertaking and no 3
Programmatic Agreement has been developed pursuant to (800.13(a)(1), the Agency Omcial 4
shall include in any finding of no adverse effect or Memorandum of Agreernent a process to 5
resolve any adverse effects upon such properties. Actions in conformance with the process 6
satisfy the Agency Omcial's responsibilities under Section 106 and this part.
7 8
(b) Unplarmedfor discover /cs. If historic properties are discovered or unanticipated effects on 9
historic properties found after the Agency Omcial has completed the Section 106 process 10 without establishing a process under 6800.13(a), the Agency Omelal shall make reasonable 11 efforts to avoid, minimize or mitigate adverse effects to such properties and :
12 13 (1)If the Agency Omcial has not approved the undertaking or if construction on an approved 14 undertaking has not commenced, consult to resolve adverse efrects pursuant to 6 800.6; or 15 16 (2)If the Agency Omcial determines, in consultation with the State llistoric Preservation Omccr 17 and any Indian tribe or Native llawaiian organization that may attach religious or cultural 18 significance to the affected property, that such property is significant solely for its scientific, 19 prehistoric, historic or archeological data, comply with the Archeological and llistoric 20 Preservation Act,16 U.S.C. 469(a)-(c) instead of the procedures in this part, provided that the 21 Agency Omcial shall consult with the State 111storic Preservation Officer on the actions proposed 22 and provide the Council with a report on the actions aller they are completed; or 23 24 (3) If the Agency Omelal has approved the undertaking and construction has commenced, 25 determine actions that the Agency Official can take to resolve adverse effects; notify the State 26 llistoric Preservation Omcer and the Council within 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> of the discovery; describe the 27 actions proposed to resolve the adverse effects; take into account any recommendations provided 28 by the Council and the State l{istoric Preservation Omcer within 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> of the notification; 29 carry out appropriate actions; and provide the Council and the State IIistoric Preservation Officer 30 a report of the actions when completed.
31 32 (c) Eligibility ofpropertics. When a newly discovered historic property has not previously been 33 included in or determined eligible for the National Register, the Agency Omcial, in consultation 34 with the State llistoric Preservation omeer, may assume the property to be eligible for purposes 35 of Section 106.
36 37 (d) Discoveries on triballands. If historic properties are discovered or unanticipated effects on 38 historic properties found on tribal lands after the Agency Official has completed the Section 106 39 process without establishing a process under (800,13(a) and construction has commenced, the 40 Agency Omcial shall comply with the provisions of the Native American Graves Protection and 41 Repatriation Act and applicable tribal regulations and procedures.
PRCPOSED SECTION 106 REGULATIONS / June 5,1997 Draft (Clean Version)
Page 23 1
3 SUllPAllT C.PROGitAM ALTERNATIVES 3
4 6 800,14 Federal agency program alternatives.
6 7
(a) Alternateprocedurcs. A Federal agency may develop procedures to implement Section 106 8
and substitute them for the comparable provisions of subpart D if they are found consistent with 9
the Council's regulations in accordance with Section 110(n)(2)(E) of the Act and guidelines 10 issued by the Secretary to guide implementation of Section i10 of the Actc 11 13 (1) Dcyclopment ofproccdures. The Federal agency shall consult with the Council, the National 13 Conference of State IIistoric Preservation Omcers or individual State illstoric Preservation 14 Omcers, as appropriate, and Indian tribes and Native llawaiian organizations, as appropriate, in,
15 the development of alternate procedures, publish notice of the availability of proposed attemate 16 procedures in the Federal Reghter and take other appropriate steps to seek public input during 17 the development of alternate procedures.
18 19 (2) Councilrevicw. The Federal agency shall submit the proposed attemate procedures to the 20 Council for review. If the Council finds the regulations to be consistent with this part, it shall 21 notify the Federal agency and the Federal agency may adopt them as fmal altemate procedures.
22 23 (3) Notice. The Federal agency shall publish notice of fmal alternate procedures in the Federal 24 llegister.
25 26 (4)Legalefect. Altemate procedures adopted pursuant to this section substitute for the 27 Council's regulations for the purposes of the agency's compliance with Section 106, except that, 28 where an Indian tribe has entered into an agreement with the Council to substitute tribal historic 29 preservation regulations for the Council's procedures, the agency shall follow those regulations 30 in lieu of the agency's procedures regarding undertakings on tribal lands.
31 32 (b)frogrammatic Agreements. The Council and the Agency Omcial may negotiate a 33 Programmatic Agreement to govern the implementation of a particular program or certain 34 complex project situations that justify departure from the normal Section 106 process.
35 36 (1) Programmatic Agrccmentsfor agencyprograms. (i) The consultation shall involve State 37 ilistoric Preservation Officers or the National Conference of State Historic Preservation Officers, 38 Indian tribes and Native 11awaiian organizations, other Federal agencies, and other members of
(
39 the interested public, as appropriate.
40 41 (ii) The Agency Official shall arrange for public participation appropriate to the subject matter
PROPOSED SECTION 106 REGULATIONS / June $,1997 Draft (Clean VerSlon)
Page 24 I
and the scope of the program. The Agency Official shall consider the nature of the program and 2
its likely effects on historic properties and the individuals, organizations and entities likely to be 3
interested.
4 5
(iii) The Programmatic Agreement shall take effect when executed by the Council, the Agency 6
Official and the President of the National Conference of State illstoric Preservation 7
Officers (NCSilPO) when NCSilPO has participated in the consultation developing it.
8 Compliance with the procedures established by an approved Programmatic Agreement satisfies 9
the agency's Section 106 responsibilities for all individual undertakings covered by the agreement 10 until it expires or is terminated by the agency, the President of the NCSHPO when a signatory or 11 the Council.
12 13 (iv) The Agency Official shall publish notice of an approved Programmatic Agreement executed 14 under this subsection in the Federal 8sgista and make any agency procedures implementing the 15 agreement readily available to the Council, State Historic Preservation Officers, and the public.
16 17 (v)If the Council determines that the terms of a Programmatic Agreement are not being carried 18 out, or if such an agreement is terminated, the Agency Official shall comply with subpan B with 19 regard to individual undertakings covered by the agreement.
20 21 (2) Programmatic Agreementsfor complex or multiple undertakings. (i) A Programmatic 22 Agreement is a Memorandum of Agreement that establishes a process for dealing with the 23 potential adverse effects of complex projects or multiple undertakings carried out over an 24 extended period of time. Examples of when a Programmatic Agreement may be used include:
25 26 (A) When efTects on historic properties are similar and repetitive or are multi State or regional in 27 scope; 28 29 (B) When effects on historic properties cannot be fully determined prior to approval; 30 31 (C) When nonfederal parties are delegated major decisionmaking responsibilities; or 32 33 (D) Where routine management activities are undertaken at Federal installations, facilities, or 34 other land management units.
35 36 (ii) Such a Programmatic Agreement shall be developed in the same manner as other 37 Memoranda of Agreement under { 800.6, provided that if consultation pertains to an activity 38 involving multiple undertakings and the parties fail to reach agreement, then the Agency Official 39 shall comply with the provisions of subpart B of this part for each individual undertaking.
40 41 (c) Exempted categories. (1) Criterlafor establishing. An Agency Official may propose a
t o
i PROPOSED SECTION 106 REGULATIONS / June 5,1997 Draft (Clean Version)
Page 25 1
program or category of agency undertakings that may be exempted from review under the 2
provisions of subpart B of this part,if the program or category meets the following criteria:
3 4
(i) The actions within the program or category would otherwise qualify as " undertakings" as 5
defined in { 800.16; 6
7 (ii) The potential effects of the undertakings within the program or category upon historic 8
properties are foreseeable and likely to be minimal; and 9
10 (iii) Exemption of the program or category is consistent with the purposes of the Act.
Ii 12 (2) Publ/cparticipation. The Agency Official shall arrange for public participation appropriate 13 to the subject matter and the scope of the exemption. The Agency Omcial shall consider the 14 nature of the exemption and its likely effects on historic properties and the individuals, 15 organizations and entitics likely to be interested.
16 17 (3) Council review ofproposed exemptions. The Council shall review a request for an exemption 18 that is supponed by documentation describing the program or category for which the exemption 19 is sought, dernonstrating that the criteria of { 800.14(c)(1) have been met and summarizing any 20 views submitted by the public. Unless it requests further information, the Council shall approve 21 or reject the proposed exemption within 30 days of receipt. The Council decision shall be based 22 on whether the exemption is consistent with the purposes of the Act, taking into consideration 23 the magnitude of the exempted undertaking or program and the likelihood ofimpairment of 24 historic properties in accordance with Section 214 of the Act.
25 26 (4) Legal consequences. Any undertaking that falls within the exempted program or category 27 approved by the Council shall require no further review pursuant to subpart B of this part, unless 28 the Agency Official or the Council determines that there are circumstances under which the 29 normally excluded undertaking should be reviewed under subpart B.
30 31 (5) Termination. The Council may terminate an exemption when it determines that the 32 exemption no longer meets the criteria of { 800.14(c)(1). The Council shall notify the Agency 33 Official 30 days before termination becomes efTective.
34 35 (d) Standard treatments. (1) Establishment. The Council, on its own initiative or at the request 36 of another party, may establish standard methods for the treatment of a category of historie 37 properties or a category of effects on historic properties to satisfy the requirements of subpart B 38 of this part. The Council shall specify such treatments, conditions for their application and any 39 procedural modifications attendant to their use, including standard form Memoranda of 40 Agreement, in a notice published in the Federal Register.
41 Y
PROPOSED SECTION 106 REOULAT10NS / Junc 5,1997 Draft (Clean Version)
Page 26 l
t I
(2) Publieparticipation. The Council shall arrange for public participation appropriate to the 2
subject matter and the scope of the standard treatment. The Council shall consider the nature of 3
the exemption and its likely effects on historic properties and the individuals, organizations and 4
entitles likely to be interested. Where an Agency Omcial has proposed a standard treatment, the 5
Council may request the Agency Omelal to arrange for public involvement.
6 7
(3) LegaIconsequence. An Agency Omelal may elect to follow a standard treatment to meet 8
Section 106 responsibilities for a qualifying undertaking in accordance with f 800.5.
9 10 (4) Termination. The Council may terminate standard treatment by publication of a notice in the
!I Federal Register 30 days before the termination takes efTect.
12 13 (e) Program comments. An Agency Omelal may request the Council to comment on a category 14 of routine or repetitive undertakings in lieu of conducting individual reviews under {f 800.4 15 through 800.7. The Council may provide program comments at its own initiative.
16 17 (1) Agencyrequest. The Agency ORicial shall identify the category ofundertakings, specify the 18 likely effects on historic properties, specify the steps the Agency Omelal will take to ensure that 19 the effects are taken into account, identify the time period for which the comment is requested 20 and summarize any views submitted by the public.
21 22 (2) Publicparticipation. The Agency Omelal shall arrange for public participation appropriate 23 to the subject matter and the scope of the category. The Agency Omcial shall consider the nature 24 of the undertakings and their likely effects on historic properties and the individuals, 25 organizations and entitles likely to be interested.
26 27 (3) Councilaction. Unless the Council requests additional documentation or notifies the Agency 28 Omcial that it will decline to comment, the Council shall comment to the Agency Omcial within 29 45 days of the request. The Agency Official shall take into account the comments of the Council 30 in carrying out the undertakings within the category and provide appropriate notice of the 31 Council's comments and the Agency Omcial's action in response. If the Council objects to the 32 proposed treatment or declines to comment, the Agency Omcial shall continue to comply with 33 the requirements of {f 800.4 through 800.7 for the individual undertakings.
34 35 9800.15 State, Tribal and Local Program Alternatives. (Reserved) 36 37 9800.16 Definitions.
38 39 "Act" means the National Historic preservation Act of 1966, as amended.16 U.S.C.
40 470-470w-6.
41
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a PROPOSED SECTION 106 REGULATIONS / June $.1997 Draft (Clean Vmion)
Page 27 1
" Agency" means agency as defined in 5 U.S.C. 551.
2 3
" Approval of the expenditure of funds" means any final agency decision authorizing or 4
permitting the expenditure of Federal funds or financial assistance on an undertaking, including any agency decision that may be subject to an administrative appeal,
6 7
" Area of potential effects" means the geographic area or areas within which an undertaking may 8
directly or indirectly cause changes in the character or use of historic properties, if any such 9
properties exist. The area of potential effects for an undertaking may be different for different 10 kinds of effects caused by the undertaking.
I1 12
" Comment" means the findings and recommendations of the Council formally provided in 13 writing to the head of a Federal agency under Section 106.
1 1
14 15
" Consultation" means the process of seeking and considering the views of other participants in a 16 manner appropriate to the particular participants and the specific steps in the Section 106 17
- process, 18 19
" Council" means the Advisory Council on llistoric Preservation or a Council member or 20 employee designated to act for the Council.
21 22
" Day" or " days" rneans calendar days.
23 24
'Effect" means alteration to the characteristics of a historic property that qualified it for 25 inclusion in or eligibility for the National Register, 26 27 "liend of the agency" means the chief official of the Federal agency responsible for all aspects of 28 the agency's actions. If a State, local or tribal government has been delegated responsibility for 29 Section 106 compliance, the head of that unit of govemment shall be considered the head of the 30 agency.
31 32 "llistoric property" means any prehistoric or historic district, site, building, structure, or object 33 included in, or eli(ble for inclusion in, the National Register ofIlistoric places maintained by 34 the Secretary of the Interior. This term includes artifacts, records, and remains that are related to 35 and located within such properties. The term includes properties of traditional religious and 36 cultural importance to an Indian tribe or Native llawaiian organization that meet the National 37 Register criteria. The term " eligible for inclusion in the National Register" includes both 38 properties fomially determined as such in accordance with regulations of the Secretary of the 39 Interior and all other properties that meet the National Register criteria.
40 41
" Indian tribe" means an Indian tribe, band, nation, or other organized group or community,
a PROPOSED SECTION 106 REGULATIONS / June 5,1997 Draft (Clean Version)
Page 28 1
including a Native village, Regional Corporation or Village Corporation, as those terms are 2
defined in Section 3 of the Alaska Native Claims Settlement Act (43 U.S.C.1602), which is 3
recognized as eligible for the special programs and services provided by the United States to 4
Indians because of their status as Indians.
5 6
" Local government" means a city, county, parish, township, municipality, borough, or other 7
general purpose political subdivision of a State.
8 9
" Memorandum of Agreement" means the document that records the terms and conditions agreed 10 upon to resolve the adverse effects of an undertaking upon historic properties.
11 12
" National flistoric Landmark" means a historic property that the Secretary of the Interior has 13 designated a National }{istoric Landmark.
14 15
" National Register" means the National Register ofIlistoric Places maintained by the Secretary 16 of the Interior.
17 18
" National Register Criteria" means the criteria established by the Secretary of the Interior for use 19 in evaluating the eligibility of properties for the National Register (36 CFR Part 60).
20 21
" Native llawaiian organization" means any organization which serves and represents the 22 interests of Native llawaiians; has as a primary and stated purpose the provision of services to 23 Native 11awaiians; and has demonstrated expertise i : upects of historic preservation that are 24 significant to Native llawaiians. " Native 11awallan* acans any individual who is a descendant of 25 the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now 26 constitutes the State ofilawaii.
27 28
" Programmatic Agreement" means a document that records the terms and conditsns agreed 29 upon to resolve the potential adverse effects of a Federal agency program, complex undertaking 30 or other situations in accordance with (800.14, 31 32 Secretary" means the Secretary of the Interior acting through the Director of the National Park 33 Service except where otherwise specided.
34 35
" State llistoric Preservation Officer" means the official appointed or designated pursuant to 36 Se'etion 101(b)(1) of the Act to administer the State historic preservation program or a 37 representative designated to act for the State Ilistoric Preservation Officer.
38 39
" Traditional cultural authority" means an individual or a group ofindividuals in an Indian tribe, 40 Native llawaiian organization, or other social or ethnic group who is recognized by members of 41 the group as knowledgeable in the group's traditional history, cultural practices and living human
t PROPOSED SECTION 106 REGULATIONS / June $.1997 Drah (Clean Venlon)
Page 29 1
- values, 3
3-
" Tribal llistoric Preservation Omcer" means the tribal official appointed by the tribe's chief 4
governing authority or as designated by a tribal ordinance or preservation program as provided 5
for and approved under the provisions of Section 101 of the Act.
6 7
" Tribal lands" means all lands within the exterior boundaries of any Indian reservation and all 8
dependent Indian communities.
9 10 "Undenaldng'! means a project, activity, or program funded in whole or in part under the direct or 11
- indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal 12 agency; those financed in whole or in part with Federal financial assistance; those requiring a 13 Federal permit, license or appmval; and those subject to State or local regulation administered 14 pursuant to a delegation or approval by a Federal agency,
+
COhtPARISON OP PROPOSED REOULATIONS WIT 11 DRAIT PUBLiSi!ED I'OR COhihiENT ON SEPTEhiBER 13,1996 (REDLINIVSTRlREOUT)
Page1 l
l 1
ADVISORY COUNCIL ON lilSTORIC PRESERVATION 2
3 PROTECTION OF IIISTORIC PROPERTIES (36 C.F.R. PART 800) 4 5
SUI 3PART A PURPOSES AND PARTICIPANTS 6
7 6 800.1 Purposes.
8
{ 800.2 Participants in the Section 106 process.
9 10 SUI 3PART D Tile SECTION 106 PROCCDURESPROCESS 11 12 6 800.3 Initiation of the Section 106 process.
13 6 800.4 Identification of historic properties.
14
{ 800.5 Assessment of adverse effects.
15
{ 800.6 Resolution of adverse effects.
16 6 800.7 Failure to resolve adverse effects.
17
{ 800.8 Coordination with the National Environmental Policy Act.
18
% 800,9 Council review of Section 106 compliance.
19
{ 800.10 Special requirements for protecting National liistoric Landmarks.
20
$ 800.11 Documentation standards.-
21 s 800.12 Cei.5nltoi;eii w;i!. l.id;ei ti;t,.s id Netiw !!ew ;iwi eis Jmi;e. 3.
22 Q 800.12 Emetgency situations, 23
{ 800,13 Post-review discoi cries.
24 25 SUBPART C PROGRAM ALTERNATIVES 26 27
{ 800.14 Federal agency program alternatives.
28 6 800.15 State. Tribal and Local Program Alternatives. (Reserved) 29
{ 800.16 Definitions.
30 31 SUHPART A PURPOSES AND PARTICIPANTS -
32 33
$800.1 Purposes.
34 35 (a) Purposes ofthe Section 106 process. Section 106 of the National Historic Preservation Act 36 requires Federal agencies to take into account the efTects of their undertakings on historic 37 properties and afford the Council a reasonable opportunity to comment on such undertakings.
38 The procedures in this part define how Federal agencies meet these statutory responsibilities.
39 The Section 106 process seeks to accommodate historic preservation concerns with the needs of
COhf PARISON OF PROPOSED REGUL.ATIONS WHil DRATT PUBLISilED TOR COhthiENT ON SEPTEhiDER 13,1996 (REDLINT/ STRIKEOUT)
Pap 2 1
Federal undertakings through consultation twiaccaamong the Agency Official and other parties 2
with an interest in the effects of the undertaking on historic properties, commencing at the early 3
stages of project planning. The goal of consultation is to identify historic properties potentially 4
affected by the undertaking, assess its effects and seek Ways to avoidu, minimize or mitigate 5
any adverse effects on historic properties.
6 7
(b) Relation to otherprovisions ofthe Act. Section 106 operates within a framework of 8
authorities of the Act designed to further the national policy of historic preservation. References 9
to those scletcd piosisionsauthorities are included in 11w proceduiss in this part to identify 10 circumstances where actions undciils piuccdun3 in this pen niay be affected by the independent 11 obligations of those other provisions. Such provisions may have their own implementing 12 regulations or guidelines and are not intended to be implemented by the procedures in this part.
13 Ouidelines, policies and procedures issued by other agencies, including the Secretary, have been 14 cited in ils pissdu,cs-in this part for ease of access and are not incorporated by reference.
15 16 (c) Alis! ods i,fcoziipl.,ing u lil, Sectisii 106. Thc3c piyccdums p.yciac 3cwiel nicthods for 17 fcdciel escncies te nwet t!Kii Ssciien 100 sc3punsibilitier:
I8 19 (itAltrinoic,uccdui(s. Osction 10(e)(2)(I) of thc Aci d!iwis Tcdciel ep.wics to dcwlop c
20 piuccanics foi inipicngnting Sstien 106 thet me consistent isith the Cvuucil's agnietions cuid 21 incct eiendeids 3gc;Gcd in t!w Act. Thc Conis;l cnconiegcs Tcdcrel esencics to edopt such 22 pixcdnics end, wiwie eypiopiietc, substituic incai foi ils pixcJu.c3 in this pert in escideiwe 23 isith i 80044(ab 24 25 (2) Dciuri ous undpivy u,,i, uni c ng,iciiic,ita. ;f e Tcaciel egc,wy dui i ot heu elicinetc 26 pruccduics in lecc, li shonid cous; der the nec of cunipiions (i 800M(c)) end p.vgriunnistic e
27 egisnwnts (s 800.14(b)) to teilor Scciion 100 con ylierwc to its piogieni iacas.
28 29 (3) Ceiicio!pioccdi,ic, if cui egency Le5 noinidopica encineic pissduas sud i!w uuduiding is 30 not c.unipica or gewiisd by e pivguunnietic egiccnwnt, the Agency OfGcie! sheli cornply with 31 the mccss set foith in subpart4h e
32 33 (d) Timing. Section-106The Act requires the Agency Official to complete the Section 106 34 process prior to the approval of the expenditure of any Federal funds on the undertaking or prior 35 to the issuance of any licens, gnuit ei ether epy.ovel". An Agency Official may expend funds 36 on, or authorize, nondestructive project planning activities, liwlnding Scid inw3tigetions, before 37 completing compliance with Section 106, and may conduct phased compliance with the 38 procedures in subpart B at different stages of planning, provided that such actions do not restrict 39 the subsequent consideration of alternatives to avoid or, minimize or mitigate the undertaking's
COMPARISON OF PROPOSED REOULATIONS WITil DRAIT PUBLISHED l'OR COMMENT ON SEPTEMBER 13.1996 (REDLINE / STRIKEOUT)
Page 3 1
adverse effects on historic properties. The Agency Omcial shall ensure that the Section 106 2
process is initiated early in the undertaking's planning, so that a broad range of alternatives may 3
be considered.
4 5
$800.2 Participants in the Section 106 process.
6 7-(a)T,l,,,l,,.',,,.lu. 'ik felle,;..n, ;;;e he,,.;.;...,...yv..e;b;ll;;e. in ;L, %;;en l00 8
y.
9 10
_ (+) Agency O(ficial.: it is the legal obligation of the Federal agency to fulfill the requirements of 11 Section 106 and to ensure that an Agency Official withjurisdiction over an undertaking takes 13-legal and financial responsibility for Section 106 compliance in accordance with subpart B. The 13 Agency Official has final approval authority for the undertaking and may be a State, local, or 14-tribal government ofilcial who has been delegated legal responsibility for compliance with 15 Section 106 in accordance with law vi
.., y.
d....;.L :.: d
.d.. L;;. ;;0(eX2XC) 16 ef;L,. Act.
17 (il) Pr'feutonalstandardr.ESection 112(a)(1)(A) of the Act requires each Federal agency 18 a
19 responsible for the protection of historic resources;includin~g~archeolcigical tesouices, to ensure 20-that all actions taken by employees or contractors of the agency shall meet professional standards 21 under.yyl: Lle regulations efdevel6 ped tiy the Secretary / For tE hurposes bf this~part,1those 22 reigulations are the Secretary's Standards for Archeology and Historic Preservation (cite).snd 23
- ;h et e....e, y.. ~.. ; e d e...;..,;e.....y. ;b;e f.,.:.; ;,., ~ m e n.ee:. y y :,e b;,
24 3.l:T.ce;;en.
.d de,e;.L;;.l.ed by ;h, 00:ee of T,.~...,1 M
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25 26 (ii2) LeadFederal agency. If more than one Federal agency is involved in an undertaking the 27 agencies may designate a lead Federal agency. The lead Federal agency shall identify the 28
-appropriate official to serve as the Agency Official. Such Agency Official shall act on behalf of 29 all participating Federal agencies, fulfilling their collective responsibilities under Section 106 and 30.
subpart B. If no lead Federal' agency is designated,'each Federal agency remains' individually 31 responsible for compliance with this part.
32 (3) Use bfcontractors. Consisteniwith'a~ p!! cable conflict ofinterest laws, the Agency Official 33 p
134?
may use the services of applicants, consultants, or designees to prepare information, analyses and 35 recommendations under this part; but remains legally responsible for all findings and 36 determinations charged to the Agency Official? If a document or study is prepared by a non-
~
37 Federal party, the Agency Official is responsible for its content and shall ensure that it meets 38
. applicable standards and guidelines.
39
.n zu
f:
6 l
.c k-COMPARISON OF PROPOSED REGULATIONS WITil DRAFT PUBLISHED FOR COMMENT ON SEPTEMBER 13.1996 (REDLINE /STNKEOUT)
Page 4 1
($) Council, The Council is ic3 puns;bic fer issuinges regulations to implement Section 106, 2
providinges guidance and advice on the application of the procedures in this part, and general!y 3
oversees Oc operation of the Section 106 process. The Council also consults with and' 4
comments to Agency Oflicials on individual undertakings that affect historic properties and 5
assists panicipants in meeting their legal obligations. Participants in the Section 106 process 6
may seek advice and guidance from the Council on the application of this part to specific 7
' undertakings, including ths resolution of disagreemens, c icu d vughwhether or et the Council 8
ismet formally involved in the review of the undertaking.
9 10 (bc) Consultingparties. The following parties have consultative roles in the Section 106 11 process es derumd in d.c Act. The AgencyTOfficial shall involve these parties in consultation 12 through6ut the. Section 106 process as specified in subpart B.
13 14 (1) State' Historic Preservation Oficer. The State Historic Preservation Oflicer reflecis the 15 interests of th5 State and its citizenslin the piciervition 6f their cultural ~hieritaje.jThe _ State 16 Histdric Preservati6n Officer advises and assists Federal agencies in carrying out their :J.vi;c 17 p.seco eConSection 106 responsibilitice ioid cen, its n;0. Tcdc. l..sucics eu imden.L;ugs d.et i8 effeci;J3icik y vps.iics..d'en 0.c ce.usm -.4 su%dency of ela ie.v.cci, me gc or e
19 ni;i;goi h cm tc IJ...;c y.vy. rties. If an Indian tribe has assumed the functions of the State 20 Historic Preservation Officer forin the Section 106 process for undiftakings on tribal lands, the 21 State Historic Preservation Officer shallmay n. quest io participate in accordance with 22
{800.3(e)(iv)..nj pl-. refmuced hi 500.2(e)(4)i.id niey idse mi;dpet os - nicelm. er dic e
23 ini.s.md y Llic. The roic of dm Stoi!!;5iv ;c Pic~ <encn Ofrcs, n;d. ic d iv cffscie en e
24 historieT..vys.iics 'usemJ eff Liba! L.ude.. uushimesd. -
25 26 (2)1ndian tribes andNative Hawallan organhations. Shetion 101(d)(6)(B) of the Act requires 27 tThe Agency Official is.cquusd to consult with any Indian tribe or Native Hawaiian organization 28 that attaches religious and cultural significance to historic properties that may be affected by an 29 undertaking. Such Indian tribe or Native Hawaiian organization shall be a consulting party.
30 31 (i) The' Agency Official shall ensiire that consultation in ths Sistion 106 frocess provides the 32 Indian tribe or Native Hawaiian organization a reasonable opportunity to identify its concerns 33 about historic properties, sdvise on the identifieation of historic properties, including associated 34 traditional religious and cultural importance, articulate its views on the undertakmg's effects on 35 such properties and participate in the resolution of adverse effects.E Consultation should 36 commence early in the planning process, in order to identify relevant preservation issues and 37 res'm concerns about the confidentiality ofinformation on historic properties pursuant to 38 Q8R M and to allow adequaie time for' discussion of relevani preser'vati6n issues.
39 1
1
I D
COMPARISON OF PROPOSED REGULAT10NS WIT}l DRAFT PUBLISl!ED FOR COMMENT ON SEPTEMBER 13,1996 (REDLINE / STRIKEOUT) -
Page5 1
(ii) Consultation with Indian tribes on tribal. lands must recognize the sovereignty ofIndian" tribes
~
2 over such lands.-- Where an In lian tribe has assumed the responsibilities of the State Historic 3
Preservitiori Officer under Section 101(d)(2) of the Act, the Agency Official shall consult with 4
the Tribal Historic Preservation Officer in lieu of the State Historic Preservation Officer and in 5
accordance.with any plan prepared pursuant to that'section regarding ths effects of undertakings 6
on tribal lands,J In other cases, the Agency Official shall: involve the Indian tribe'with 7-jurisdiction over the tribal lands as a consultink party.
8 9
(iiiRrhiAgency Official shaliionsulfwithilesignsted iepresentaitiies of tiie'Indlariiribe's'6r 10
- Native Hawaiian organization's governing bodys Traditional cultural auth6rities and other tribal 11 or organizational membecs,'as identified by the designated representatives.or by other groups,
~
-12 may alssrequest to become consultitig'partiss under 6800.3(c)(iv)?
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25 cen.u:Gu. p.Jcs nhm. do, se.cy,~;;.
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27
(+3) Representatives oflocal goverr:ments, ifaA representative of a local government with 28 jurisdiction over the area in which the effects of an undertaking may occui se icy.~a;.,0.c 29-Apucy Off.cl.J ehe ! ;uvvive 0.c lusel.u,m.ousu; is entitled to participate as a consulting party, 30 Under emi ;u oud e.L ether provisions of Federal law, the local government may be.
31 authorized to act as the Agency Official for purposes of Section 106.
L 32 l
33 (24) Applicantsfor Federal assistance, permits, licenses and other approvals. :-i eyylic e foi
-34 TcJm.i
.;em.mc vi ymuJ55;vu se is+cs's, sqArucy 05c:el shell Live;vc dic An applicant 1
i
~35 for Federal assistance or for a Federal permit, license or other approval is entitled to participate
'36; as a consulting party as defined in this part. The Agency Official may authorize an applicant to 37 initiate consultation with the State Historic Preservation Officer and others under Q 800.3 and-38-800.46, but remains legally responsible for all firidings and de' erminations charged to the Agency t
39 Official. The Agency Official shall notify the State Historic Preservation Officer and other 1
e b
(-
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L COMPARISON OF PROPOSED REGULAT10NS WITH DRAFT PUBLISHED FOR COMMENT ON SEPTEMBER lh 1996 CEDLINE/ STRIKEOUT)
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(5) Addittsnal consultingparties.ECedain individuals and organizations with a demonstrated 8
laterest in 6 undertaking niap participate as consulting padies'due to the nature of their legal or
-9 ocdnomisMMion Wthe undertaking or affected propsrties, or due toitheifconcomiwith the 10 undertaking's effects on historic properties -
11 12 (d) The public. The views of the public are essential to informed Federal decisionmaking with 1_
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17 18 (1) Responsibilitics. The Agency Official is required at specific points in the Section 106 process 19 to provide the public with information about an undertaking and its effects on historic properties 20 and to seek public comment and input. Membm of the public may also provide views on their 21
- own initiative andfor the Agency Official shouRa consider dm.,.1;.. in decisionmaking.
22 23 (2) Flexible application. The Agency Official's offm;. ;e,shall seek and consider the views of the 24 public e m :,' a,f.mG alsinner thit rsflehis the nature and complexity of the undertaking and its
-25 effects on historic properties, the likely interest of the public in the effects on historic properties, 26 and the relationship of the Federal involvement into the undertaking. ",. um;en of d.,.3s. f.Gers
- de7
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29 30 (3) Use ofagencyprocedures. The Agency Official may use the agency's procedures for public 31 involvement under the National Environmental Policy Act or other program requirements, if they 32 provide adequate opportunities for public involvement consistent with the procedures in subpart 33 D.-
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t COMPARISON OF PROPOSED REOULAT,0NS WITil DRAFT PUBLISIIED FOR COMMENT ON -
SEPTEMBER 13,1996 (REDLINE / STRIKEOUT)
Page 7 1
eigeuiz.tions concerned widi the m.deteking eid he cffccie en IJ3tei;c pie si;ce. The Agenc,,
r 2
Ofddel is icquiicd totake 5tcp3 te idendfy shc uia.ssted piib!;c mid involvc dicni ei sysdf.c 3
pu iito in d.c Sccuei 100 piocc33. Thc inisceted public 'indedc3.
4 5
(i) Onne. of.ce p ups.iy effscied dhscdy by dic u dotadng, y.uv;ded 0.et the Agencj n
6 OfGciel niey ihnh piutidgedeii te v.gmd2.1. ens.sy.mndn3 oech enncre if nccc33my, 7
8 (ii) Tiedh;enel cuhmoi endie.;i;ce n hh ou intec3t hi the undcitokhig's cicts en historic 9
pic s.dce vf1.edidenel enhmo! &nd idigieus iniyuitoucc, e
10 11 (iii) Tu; Stois !!!3:ei;c ".seciveden Officci when nn Ind;&i t ;hs Les 3wncd dic fm.cdone of 12 tiic Stei IIistu ;c l'.cse, eden Off.se uudes Scction 101(d)(2) of 0.c Act, oud 13 14 (iv) Other individuels, eismu2.nons ei cundes d.eiicq cst te he t esied os nicinhs.. of 0.c 15 interested puh!;c.
16 17 18 SUBPART B-THE SECTION 106 PROEEDURESPROCESS 19 20 f 800.3 Initiation of the Section 106 process.
21 22 (a) Establish undertaking The Agency Oflicial shall determine whether the proposed Federal 23 action is an undertaking as defined in Section 800.16 and, if so, whether it is a type of activity 24 that has the potential to r.ffeet-cause effects on historic properties zuid whethe isv;c n is gew.ued 25 hy e Tcded egency y.vgimu elicumnic c3tebi!3hed tuidci i 800.15, 26 27 (il) if Unless the action is not ou mideioking ei an undertaking that has no-the potential to affect 28 cause effects on historic properties, the Agency Official has no further obligations under Section 29
- 106, 30 31 (ii2) If the review of the undertaking is governed by a Federal agency program alternative 32 established under 800.14, the Agency Official shall follow the eheniete pieccumcprogram 33 alternative.
34 35 (b) Coordinate with other reviews. The Agency OfficialshaHshould coordinate the steps of the 36 Section 106 process, as appropriate, with the overall planning schedule for the undertaking and 37 with any reviews required under other authorities such as the National Environmental Policy Act, 38 the Native American Graves Protection and Repatriation Act, the American Indian Religious 39 Freedom Act, the Archeological Resources Protection Act and agency specific legislation, such s
4 COMPARISON OF PROPOSED REGULATIONS WITH DRAFT PUBLISHED FOR COMMENT ON SEPTEMBER 13,1996 (REDLINE / STRIKEOUT)
Page 8 1
as Section 303(f) of the Department of Transportation Act. Where consistent with the procedures 2
in this subpart, the Agency Official may incorporate information developed for other reviews 3
under Federal, or State or tribal law.
4-5 (dc) Initiate consultation with the State Historic Preservation Oficer or Tribal Historic 6
Preservation Ofider. The Agency Omcial shall determine the appropriate State Historic 7
- Preservation Officer or Officers to be involved in the Section 1% process
.d ;.JG..
8
.....,Ji.J... The Egency Official shall alsoLdetennine whetbiithe undertaking will occur on 6r 9
affe'Et triSil lands ad if so, whstber a Tribal Hist 6ric P5servatiobl Officer has assumed the
~
10 dsti6s of the State Historic Preservation' Officer. 'thelgencp Official shall then initiate
-11 consultation with the appropriate Officer or Officers.
12 13 (1) If more than one State is involved in an underttking, the involved State Historic Preservation 14 Officers may agree to designate a lead State Historic Presersation Officer to act on their behalfef 15 rd! y G,.Gug 06.,.
asii6si'td;,Would cBuctudi thiSeetiod 106 ~prsceis'uhder'thisiubpan.Lm.;c P..
... Jeu OL.. in the Section 106 processiinch. ding taking
~~
-16 17
- If Om 06.e Lm.;, P.s...Gvu OLc. dem;;m. ;u -..Jo ie y iic;e.i ;u 0.c Sc, Gen 1%
i 18-
- y.
., v. fe;Je te...,med ;n e uu.,;, u
...i., im;..i ie Jm v.v,. d.a dis. Age.m, 19 OL;el 3;wd; ceu. J; m;0. Om Cem.s.;; te svu y;ck Om Cection 1% y.v,...,;Cmm Om 06i 20
- stu.;,. P...,.weden OL,.s.
21 22-(2) Pw,J.,m-m fe.
,v...
6denThe Agency Official should consult with the State Historic 23 Preservation Officer eliv,Jd 1,.u.y cm-uid in a manner appropriate to the agency planning process for the undertaking and 'o the nature -ud,Let of the undertaking and its effects on 24
~
t 25 historic properties.' A single consultation by the Agency _ Official with the State Historic 26 Preservation Officer and other consulting parties may address multiple steps in dic OsGen 1%
27 y.
ces jQ800.3 800.5 wherc it is cene;. m m;d. 0.c mev s.a ef do. y.v,.cdm. ;n 0J3 ym; the e
28 AgeIncy Official and the State Historic Preservation Officer agree it is appropriate 29
~
- 30-(3) _ If the State Historic Preseivation Officer st sny tirhe~ declines in Writing tsparticipate in the 31 Section 106 process, the Agency Official shall request the Council 164etermine how to complete 32 the Section 106 process;
~33-
.34 (4) Except as provided in {800.5(c)(3), if the State Historic Pieservation Officer fails to respond 35' within 30 days to a request for review of a finding or determination, the Agency Official may 36 cithat proceed to the next step in the process based on the finding or determination or consult 37
- with the Council in lieu of the State Historic Preservation Officer.,The absence of a response 38-does not constitute the State Historic Preservation Offiser's' concurrence with a finding or 39 determination b~y the Agency Official. If the' State Histeic Preservation Officer re-enters the i
COMPARISON OF PROPOSED REOULATIONS WITH DRAFT PUBLISIIED FOR COMMENT ON SEPTEmlER 13,1996 (REDLINE / STRIKEOUT)
Page 9 Se6tionT06 ' i6 cess,'the Agency [Omcial shall continue'the consultation at that point in 1
p 2
accordance with this subpart.
3 4
(ed) Plan to involve the public. In consultation with the State Historic Pieservation Omcer, Tthe 5
Agency Omelal shall begin planning for involving the public in the Section 106 process, relating 6
the steps to be taken to the likely level and nature of public interest in the undertaking and its
- 7 effects on historic properties. The Agency Omcial shall idsntify the appropriate points for 8
seeking public inpuland for notifying the public ofHoposed actions, consistent.with 9
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33 34 (e)1dentify consultingparties. In consultition witlithe State Historic Preservation Officer, the 35 Agency Official shall identify prospective consulting parties and' invite them t'o participate as 36 such in the'Section 106 processt The Agency Official may invite others to participate as 37 consulting parties as the Section 106 process moves' forward.
38 39 (1) The Agency Official shall iLb&uac Tici.. O&cw mbinvite any local governments or
.=
COMPARISON OF PROPOSED REGULATIONS WITH DRAFT PUBLISHED TOR COMMENT ON SEPTEMBER 13,1996 (REDLINE / STRIKEOUT)
Page 10 applicants that are entitled to be ' onsulting parties under Q800.2(c);nvolved in consul 6i.ons 1
c 2
conducted under dds snLpsi wid pien to involic dicni s egpmpuetc.
3 4
(2) The Agency Official shall determine whether the undertaking will occur on or affect tribal 5
lands and, if so, invite the governing body of the Indian tribe to be a consulting party.
6 7
(3) The Agency Official shall idendfy d,cinvite any Indian tribes or Native Hawaiian 8
organizations that might attach religious and cultural significance to historic properties in the l
l 9
area of potential effects to be consulting partiessid p!wi for dico pw-dc;pedon in eccordwice -40.
I 10 9 800,12.
I1 12 (4)The Agency Official shall consider all written requdsts ofindividuals and brganizations to 13 participate as consulting parties and determine which should consulting parties.' ~1f the Agency 14 Official and the State Historic Preservation Officer disagree on the participation of a consulting
(
15 party, the Agency Official shall request the Council to decide.
16 17 Q 800.4 Identification of historic properties.
18 19 (a) Determine scope ofidentifcation egarts. At the earliest feasible stage in pinnning an 20 undertaking and coordinated with any steps being taken to meet the requirements of the National 21 Environmental Policy Act, the Agency Official shall consult with the State Historic Preservation 22 Officer andto:
23 24 (1) Determine the area of potential effects, as defined in Q 800.16, taking idio account the scale 25 and nature of the undertaking, the relationship of Federal involvement to the potential effects, 26 and the potential for and likely nature of historic properties that might exist within it; 27 28 (2) Review existing information on historic properties within the area of potential effects, 29 including any data concerning possible historic properties not yet identified; and 30 31 (3) Seek information, as appropriate, from consulting parties, the public and 'other individuals 32 and organizations likely to have knowledge of, or concerns with, historic properties in the area, 33 and identify issues relating to the undertaking's potential effects on historic properties.
34 35 (b) Identify historicproperties. Based on the information gathered under G 800.4(a), and in 36 consultation with the State Historic Preseration Officer and any Indiari tribe or Native Hawaiian 37 organization that attaches religious and cultural significance to properties within the area of 38 potential effects, the Agency Official shall take the steps necessary to identify historic properties 39 within the area of potential effects.
i COMPARISON OF PROPOSED REGULATIONS WITil DRAFT PUBLISHED FOR COMMENT ON SEPTEMBER 13,1996 (REDLINE / STRIKEOUT)
Page!I-1 (1) Level ofeffort. The Agency Official, in ceu3dioi;en n.d. die Stok 1 ;3te ;c F.ssc.. mien 2
05ce, shall make a reasonable and good faith effort to carry out appropriate identification 3
efforts. The Agency Official shall determine the appropriate scope and type ofidentification 4
efforts, indudin3which may include background research, consultation, sample field 5
investigation, and field survey;. The Agency Official shall takinge into account past planningu, 6
research and studies mid icedts, e,d be3cd en the magnitude of the undertaking; and the degree 7
of Federal involvement, the nature and extent ofits potential effects on historic properties, and 8
the likely nature and location of historic properties within the area of potential effects. The 9
Secretary's Standards and Guidelines for Identification provide guidance on this subject. The 10
- Agency Official should also.considst 6ther al plicable piofessional, State, tribal and local i
11 standards and guidelines.
12 13 (2) Phased identification.and evaluation. Where attemative locations are under consideration or 14 access to properties is restricted, the Agency Official may conduct identification and evaluation 15 efforts designed to establish the likely presence of historic properties within the area of potential
~
16 effects for each attemativeor iriasessibleiris through background research, consultation and an 17 appropriate level of field investigation, taking into account the number of altematives under 18 consideration,md, the magnitude of the undertaking and its likely effects, and tlie3iews'of the 19 State _ Historic Preservation Officer and any othsr consulting pa'rtiis. As specific aspects or 20 locations of a preferred altemative are deiuuiucdrefined or accesils gained, the Agency Official 21 shall complete the identification and evaluation of historic properties in accordance with {Q 22 -
800.4(b)(1)'and (c).
23 24 (3) CenM3 ant w;di oeynceL;c seudict of;utes3;lews, d.c Assocy Omda niey nes d.c 3s.cc3 25 e r o y y S c m ns, c e nsul m ute, v. d se.3 n 3 to y c y oic.n fu.n.et;e u cuid e i d 3,3 m.dci d J3 e n b y m t, f
26 but.su.eiu ;cgdly sc3yun3;Lic fe oli Gndius3 ch-s d to dic Ascncy 05 del. If n docunient er c
27_
sindy,3 en.ymed L,7 o non-r;dcid emij, do. Arucy 05cid Lell cvauoi dic downicnt priniio 28 ito eyy.uve oud L,.cayuns;Lic for its couuni.
_29 30 (c) Evaluate historic sigmficance. (l) Apply National Register Criteria. In consultation with the 31 State Historic Preservation Officer and 'any Indian tribe or Native Hawaiian organization that 32 attabhes religious and cultural significance to identified properties, guided by the Secretary's i
33 Standards and Guidelines for Evaluation and with consideration for the potential of the proposed 34 undertaking to affect identified properties, the Agency Official shall apply the National Register 3
35 Criteria to properties identified within the area of potential effects that have not been previously 36 evaluated for National Register eligibility. The passage of time, changing perceptions of 37 significance, or incomplete prior evaluations may require reevaluation of properties previously 38 determined eligible or ineligible.
39
COMPARISON OF PROPOSED REGULATIONS WITil DRAFT PUBLISTIED FOR COMMENT ON SEPTEMBER 13,1996 (REDLINE / STRIKEOUT)
Page 12 1
(2) Determine whether aproperty is eligible. If the Agency Official determines the criteria are 2
met and the State Historic Preservation Officer agrees, the property shall be considered eligible 3
for the National Register for Section 106 purposes. If the Agency Official determines the criteria 4
are not met and the State Historic Preservation Officer agrees, the property shall be considered 5
not eligible. If the Agency Official and the State Historic Preservation Officer do not agree, or if 6
the Council or the Secretary so request, the Agency Official shall obtain a determination of 7
eligibility from the Secretary pursuant to 36 CFR part 63.
8 9
(d) Results ofidentification and evaluation. (l) No historicproperties ya wa v, afected. If the 10 Agency Official finds that ' ither there are no historic properties either present or ' here are e
t 1
historic pr' perties present but d.ei n.ey y effsc;cd by the undertaking will hsa so effect upon 1i o
12 them, the Agency Official shall provide documentation of this finding as set forth in 6 800.11(d) 13 to the State Historic Preservation Officer. The Agency Official shall notify anyill consulting 14 particsy m,d 0.c L,i. eid publ;c and make the documentation available for public inspection 15 prior to approving the undertaking. If the State Historic Preservation Officer does not object 16 within M30 days of receipt of an adequately documented finding,003 cen+1ae the Agency 17 Official's responsibilities under Section 106'am fulfilled'.
18 19 (2) Historieproperties afected. If the' Agency Official finds that there are historic properties 20 thatwhich may be affected by the undertaking or the State Historic Preservation Officer objects to
~
21 the Agency Official's finding under 800.4(d)(1), the Agency Oflicial shall notify anyall 22 consulting parties, invite their views on the cifectsy m,d 0.c hussad public and assess adverse 23 effects in accordance with 800.5.
24 25 (e) Undertakings on or afecting triballands.J When carrying out ths provisions of this 26 subsection" for an undertaking on or afTecting tribal lands, the Agency Official shall consult with 27 the Indian tribe when determining the area of potential effects, identifying historic properties and 28 evaluating the historic significance ofidentified properties. The Agency Official shall consult the 29 Indian tribe when reaching any determination of eligibility under { 800.4(c)(2) for properties on 30 tribal lands. -.If the Indian tribe objects to an Agency Official's determination, the Agency Official 31 shall obtain a determinatio'n'of eligibility from the Secretary pursuant to 36 CFR'Part 63. The 32 Agency Official shall provide documentation of any finding that there are no historic properties 33 affected to the Indian tribe.- If the Indian tribe objects within 30' days ofreceipt of an adequately 34 documented finding, the Agency Official shall proceed in accordance with $ 800.4(d)(2).
35 36
{ 800.5 Assessment of adverse effects.
37-38 (a) Apply criteria ofadverse efect. In consultation with the State Historic Preservation Officer 39 and any Indian tribe or Native HawaiiaE organization that attashes religious and' cultural l
l
COMPARISON OF PROPOSED REGULATIONS WITil DRAFT PUBLISHED FOR COMMENT ON SFPTEMBER 13,1996 (REDLINE / STRIKEOUT)
Page 13 1
significance to identified properties, the Agency Official shall apply the criteria of adverse effect 2
to historic properties within the area of potential effects. The Agency Official shall consider any 3
views conceming such effects provided by consulting parties, the inic.csica public and the public 4
et leisc.
5 6
(1) Criteria ofadverse cgcct. An undutaing is cvnsidcicd to heve en adverse effect is found 7
when it-an undertaking may alter the characteristics of a historic property that qualify the 8
property for inclusion in the National Register in a manner that would diminish the integrity of 9
the property's location, design, setting, materials, workmanship, feeling, or association.
10 Consideration shall be given to all qualifying characteristics of a historic property, including 11 those that have been identified subsequent to the original evaluation of the property's eligibility 12 for the National Register, Adverse effects may include reasonably foreseeable effects caused by 13 the undertaking that are later in time or farther removed in distance.
14 15 (2) Examples ofadverse efects. Adverse effects on historic properties include, but are not 16 limited to:
17 18 (i) Physical destruction; or damage, or ehmoi;en of all or part of the property; 19 20 (ii)' Alteration of a property, including restorstion, rehabilitation, repair, maintenance, I
21 stabilization, hazardous material remediation and provision of handicapped access, that is not 22 consistent with the Secretary's Standardsfor the Treatment ofHistoric Properties (36 C.F.R.
23 Part 68) and applicable guidelines; 24 25 (iii) Removal of the property from its historic location; 26 27 (iiiiv) AlicistionChange of the character of the property's use or of physical features within the 28 property's setting ei use v, hen that cheiecici contributes to theits historic significance r vr.i/s 29 quelificetion for the Netienel Regisici, 30 31 (iv) Introduction of visual, atmospheric or audible elements that are out of checectcr 32 withdiminish the integrity of the property's significant historic features; 33 34 (vi) Neglect of a property which causes its deterioration; and 35 36 (vii) Transfer, lease, or sale of property out of Federal ownership or control without adequate 37 and legally enforceable restrictions or conditions to ensure long-term preservation of the 38 property's historic significance.
39
1 l
i t
COMPARISON OF PROPOSED REGULATIONS WITil DRAl'T PUBLISilED FOR COMMENT ON SEPTEMBER 13,1996 (REDLINE / STRIKEOUT)
Page 14 1
(9b) A,eMern EFinding ofno adverse efects. The Agency Official,in consultation with the 2
State Historic Preservation Officer, may-make propose a finding of no adverse effect when the 3
Arucy enciel c5edT5cs the undertaking's effects do not meet the criteria of {800.5(a)(1) or the 4
undertaking is modified 'or conditions imposed, such as the subsequent review of plus by the 5
State Historic Preservation Officer, to avoid adverse effects.
6 7
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34 35 (bc) State Historic Preservation Oficer review, if the Agency Official proposesinokes mi' ci a 36 finding of no adverse effect e4 ihet od,mJc effbcia con 1,c sodsfociVib u.JVh cd 1,y e sioudmd 37 treatment, the Agency Official shall notify all consulting parties of the finding and submit the 38 finding with the documentation specified in {800.11(e) to the State Historic Preservation Officer 39 for a 30-day review period.
1
't C,
COMPARISON OF PROPOSED REGULATIONS WITil DRAFT PUBLISHED FOR COMMENT ON SEPTEMBER 13,1996 (REDLINE / STRIKEOUT)
Page 15 1-i
- 2 (1) Agreement withfinding. If the State Historic Preservation Omccr agrees with the A..sf 3
Omc;el's finding, the Agency Official may proceed and shall carry out the undertaking in :
4-accordance with Q 800.5(ed)(1).-
5 6
(2) Disagreement withfinding. If the State Historic Preservation Officer disagrees within the 30-7 days oficec;y; ef Og Ond;i.g review period, ' he State Hisioric Preservaiion Officer shall specify t
~
l 8
the reasons for disagreeing with the finding. Tthe Agency Official shall consider the effect 9
adverse; consult with'the State Historic Preservati6n Offiser 16 esolFe th 'disagriement or
~
10-requsst the Council to review the finding pursuant to (800.5(c)(4).; Consulting paities that Il-disagre{with the finding may make their views known to the Council under.) 800.9(a). %e 12=
Si-, i :e;..;c P.m.
Gen Omce.,: :: sym;fy 04.. une fer d;..w;u.
- d. Ox Ond;.... Tlx 13
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-14 w.d-.m
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- md. C., "m; is d...
15 16 (3fFal/ike to Fes) sad.Olf the StitiHist6ric PrsseRatisdOffisiifailitshisi6ndwithid 30' days 17 of receipt'of the finding,'the Agency Official'may either consider the~effect'ad. verse'or request the
.18 Council to reviewLthe finding pursuant to.6800.5(cX4).
~~
19 20 (4) Council rebles offiiulingi.;When requested byW A ency 'Offibial, thiC61incil shall redew
~
F 21-
- the finding and notifythe Agency: Official ofits opinion;within 30 daps of receiving the 22 documentation specified in {800.11(c).TThe Agency Official'shall proceed in acc6rdance with 23.
the Council's opinion as.to whether the effect is adverset 24 ~
25 (d) Results ofassess>nent, (l) Dnd;ns vf nNo adverse efect ei i uu:.an lv ano.JaiJ
-. 26 rreatment The Agency Official shall maintain a record of the finding, nudfj.., y G,.y. Jug 27 lvsel ge,,u-ma v. oyy!;c-4 s.d 04 ;um.md yet;;c, and make the record available for public 28 reviewinspection before approving the undertaking, implementation of the undertaking in 29-accordance with the finding as documented cu.uy:. afulfills the Agency Official's 30 responsibilities under Section 106 and this part. If the Agency Official fe;;; te does not carry out 31
. the undertaking in ecemd-we wic.es proposed in the finding, the Agency Official shall fe;;ew i 32 000.Gieopen consultation under g 800.5(a).
.33 34 (2) Adverse efectftnmd If an adverse effect is found oud uet.ssel1,d L, o i-ud d ic,eluGen 35
- in ecce.d-Kc wig. OJ5 socGon, the Agency OMcial shall consult further to resolve the adverse 36
, effect pursuant to { 800.6.
37
'38 (e) Undertakings on or afecting telhallands? When carrying out the provisions 6f this 39 subsection for an undertaking on or affecting tribal lands, the Agency Official shall consult with
,m.
,e-m,
-w--.
e
f e
COMPARISON OF PROPOSED REGULATIONS WITH DRAFT PUBLISHED FOR COMMENT ON -
SEPTEMBER 13,1996 (REDUNE/ STRIKEOUT)
Page 16 1
the lndian tribi sheri applying the Crithria of Adverse Effect.T The Agency Official shall ~ provide 2
any proposed finding of no adverse effect concerning a historic property on tribal lands, along 3
with documentation spe' ified in 6800.11(e), to the Indian tribe for a 30-day review period when c
4 submitting it to the State Historic Preservation Officer. If the Indian tribe objects to an Agency 5
Official's finding, the Agency Official shall consider the effect adverse, consult with"the Indian tribb to resolve the' disagreement or requbst the Council to review the finding pursuant to
~
6 7
{800.5.(c)(4).
8 9
i 800.6 Resolution of adverse effects.
10-11 (a) Continue consultation. The Agency Official shall consult with the State Historic Preservation 12 Oflicer srid other consulting parties to develop and evaluate alternatives or modifications to the 13 undertaking to avoidW, minimize or mitigafe adverse effects on historic properties.
14 15 (1) Determine Council l,..v.',m,..,,igahicip3 tion. The Agency Official shall determine whether 16 to request Council invelismsu@ticipation in the consultation and IEaH! notify the Council bf thiadverse sffect fidding'by providing the documentation specified in { 800.11(fe).
17 18 19 (i) The Agenc., Off.c.einotice shallinclude a request for the Council to kcemc 20 invulicde ticipate in the consultation in ecsmdoucc w J. ; 300.0(h)(2):
ar 21 22 (A) When the Agency Official dc.suumc3 timiwants the Council invelismen;to 23 participate will foci!!ime is3eloGen of od Ams offscie, 24 25 (B) When the undertaking has an adverse effect upon a National Historic Landmark ons 26 10 k seuica eut eu ti!Loi leiids, or 27 28 (C) When a Progranunatic Agreement under 800.14(b)iswill be prepared; or
-29 30 (D) Wkn ik Stoic !!!sie ic P. css. cenou Of!;cc., ou ndiou Tiik, e Neilic Ilewenau 31 eis d m Gen,elece; ge,suuncni e on eyeliconiicqocei C euucillaveh smcut.
32 33 (ii) The State Historic Preservation or any other consulting party may independently request the 34 Council to participate in the consultation.
35 36 (iii) The Council shall advise the Agency Official and all consulting parties whether or not it 37 willeflio Jcc.3;en to participate within 15 days of receipt of notice or other request. The Council 38 may request information about any undertaking and enter the consultation on its own initiative at 39_
_ any point when it determines that Council involvement is necessary to ensure that the purposes of l
COMPARISON OF PROPOSED REGULATIONS WITH DRAFT PUBLISIIED FOR COMMENT ON SEPTEMBER 13,1996 (REDLINE / STRIKEOUT)
Page 17 1
Section 106 and the Act are met. Consultation with Council participation is conducted in 2
accordance with 800.6(b)(3).
3
'4 (iiiiv) If the criteria in 6 800.6(a)(1)(i) are not met or the Council does not elect to join the 5
consultation, the Agency Official mayshall complete consultation in accordance with Q 6
800.6(b)(1).
7 8
(2) Involve consultingpartica unu aus ausmmuruvuw. a us opusy muu a ouan iiaolycln 9
additian to the consulting parties in dic cousultoi.en.5 dcicuuinedidentified under Q 800.3(e),-
10 When egiced to by the Agency Official, the State Historic Preservation Officer and the Council, 11 if participating, nicnibsis of dic uits.csisd public may invite'other individuals or organizations to 12 become consulting parties. If the Agency Official and the State Historic Preservation Officer do 13 not agree, the Agency Official shall request the Council to decide. The Agency Official shall 14 immiveinvite any individual or org'anization nicnibst of dic ia.ssied peb!!c that will assume a 15 specific role or responsibility in a Memorandum of Agreement io participate las a coirisultibg 16 paity.
17 18 (3) Provide documentation. The Agency Official shallin Lc eve;;ebisguvide to die Stois 19
!!!ste ;c P socneGen Of!;cc. wid ud cill consulting parties the documentation specified in Q 20 800.11(fe) and such other documentation as may be developed during the consultation to resolve 21 adverse efTects.
22 23 (4)1nvolve the public. The Agency Official shall make available information to the public, 24 16clu'dirig tluidocumedtation specified in { 800.11(e), and provide an opportunity for members of 25 the public to express their views on resching adverse effects of the undertaking. The Agency 26 Official shaHshould use appropriate mechanisms, taking into account the magnitude of the 27 undertaking and the nature ofits effects upon historic properties, to ensure that dic full rwisc of 28 the public's views isare represented and considered in the consultation.
29 30 (b) Resolve adverse efects. (1) Resolution without the Council.
31 32 (i) The Agency Official shall consult with the State Historic Preservation Officer and other 33 consulting parties to seek ways to avoidu, minimize or mitigate the adverse effects.
34
~
35 (ii) The Agency Official may use standard treatments specified by the Council under 800.14(d) 36 as a basis for a Memorandum of Agreement where the circumstances are appropriate.
37 38 (iii) If during the consultation the Council decides to join the consultation, the Agency Official 39 shall continue the consultation in accordance with { 800.6(b)(23).
COMPARISON OF PROPOSED REGULATIONS WITit DRAFT PUBLISHED FOR COMME SEPTEMBER 13,1996 (REDLINE / STRIKEOUT)
Page 18 (iiiiv) If the Agency Oflicial and the State Historic Preservation Officer agree on how the adverse 1
effects will be resolved, they shall execute a Memorandum of Agreement. If the undertaking 2
occurs on or affects a historic property on tribal lands, the appropriate Indian tribe must also 3
agree to and execute the Memorandtun of Agreement The Agency Officialshahmust file a copy 7
4 of the executed Memorandum of Agreement, along with the documentation specified in 5
{800.11(f), witly the Council prior to approving the undertaking in order to meet the requiremen 6
7 of Section 106 and this subpart.
~
(iv)If the Agency Officiul-and, the State Historic Preservation Officer and anIndian tribe,if th 8
undertaking occurs on or affects a historic property on tribal lands, fail to agree on the terms of a 9
10 Memorandum of Agreement, the Agency OtTicial shall request the Council to join the 11 12 consultation and proceed in accordance with { 800.6(b)(2).
(2) Resolution with Councilparticipation. If the Council decides to participate in tiie 13 14 cbtisilitition, the Agency Official shall consult with the State Historic Preservation Officer, the 15 Council, and other consulting parties to avoidd, minimize orTniiiga'te the adverse effects. If the
~
16 Agency Official, the State Historic Preservation Officer, and the Council agree on how the 17 adverse effects will be resolved, they shall execute a Memorandum of Agreement. If the undertaking occurs on or affects a historic property on tribal lands, the appropriate Indian tribe 18 19 20 must also agree to and execute the Memorandum of Agreement.
~
21 (c) Memorandum ofAgreement. (1) Signatories. The Agency Official and the State Historie 22 Preservation Officer are the signatories to a Memorandum of Agreement executed pursuant to 23
((800.6(b)(1) and (2). The Agency Official, the State Historic Preservation Officer, and the 24 Council are the signatories to a Memorandum of Agreement executed pursuant to { 800.6(b)(2).
An Indian tribe is a signatory to any Memorandtun of Agre'ement that concerns an undertaking 25 that occurs on or affects a historic property on triballands. The signatories have sole authority to 26 27 execute, amend or terminate the agreement in accordance with this subpart.
28 29 netuuco nwj egem to Agency Official shall inviteothersall (2) Concurrence by others. The sis 30 consulting parties to concur in the Memorandum of Agreement. The A ncy Offwel ohs!!
3 signatories may agree to invite auf sondnn3 pcdcsothers to concur. The refusal of an in 31 32 party to concur in the Memorandum of Agreement shall not affect its execution by the 33 34 signatories.
(3) Reports on implementation. Where the signatories agree it is appropriate, a Mem 35 36 Agreement shall include a provision for monitoring and reporting on its implementation.
37 38
? '
rp COMPARISON OF PROPOSED REGULATIONS WITH DRAFT PUBLISHED FOR COMMENT ON SEPTEMBER 13,1996 (REDLINE / STRIKEOUT)
Page 19 1
2-
. (4) Duration. A Memorandum of Agreement shall include provisions for termination and for 3
reconsideration of terms if the undertaking has not been implemented within a specified time.
4 5
. (5) Legalstatus. A Memorandum of Agreement executed 'and implemented pursuant to this
-6
' section evidences the Agency Oflicial's compliance with Section 106 and this part and shall 7
govern the undertaking and all ofits parts. A Mimorandum of Agreement'execut'ed pursuant to
~
8
{ 800.6(b)(1) that is filed with the Council shall be considered to meet thesequimments of -
9 Section 110(1) of the Act that the head of the agency document any decision rnade pursuant to 10 Section?l06,$The Agency Official shall ensure that the undertaking is canied out in accordance
. I l--
with the Memorandum of Agreement.
.12 -
-13 (6) Amendments. The signatories to a Memorandum of Agreement may amend it. If the Council 14 was not a signatory to the original agreement and the signatories execute an amended agreement, 15 the Agency Official shall file it with the Council. T.Jh, ;e
., ve
.~..d..mm. ;e.... Om 16 s;.J........... m ;o. A c;.
I7L 18 (7) Termination. If any signatory determines that the terms of a Memorandum of Agreement 19 cannot be carried out, the signatories shall consult to seek amendment of the agreement. If the 20 agreement is not amended,0 Ar..cy 05,.;el,0. 0;.i : b;u.;,. P.
.. Ju.. OCei, ei ih, 21 Cu.e;; if.eny signatory; may terminate it and the Agency Official shall request the comments 22 of the Council under { 800.7(ba).
23 24
. 6 800.7 Failure to resolve adverse effects.
25 26 (a) Termination ofconsultation. After consulting to resolve adverse effects pursuant to ((
~27 800.6(b)(1) or (2), the Agency Official, the State Historic Preservation Officer, or the Council 28 may determine that further consultation will not be productive and terminate consultation. An
~
~
29 Indian tribe may terminate consultation if the undertaking occurs on 'or affests historic properties 39 on'its ' tribal lands.fAny partp that teiminates consultation shall provide to the other consulting -
31 parties the reasons foi terminating in writing 32 33'
- (1) If the Agency OfTicial terminates consultation, the head of the agency or an Assistant 34 Secretary or other officer with major department.-wide or agency wide responsibilities shall 35 request the Council's comments, accompanied by the documentation in { 800.11(h), and notify 36
- Om Sai :16v.;,. P..~neden OCs., ed.s. mil consulting parties ed Om im id y Wh. af the 37 request.
38
/
-._.m
)
COMPARISON OF PROPOSED REGULATIONS WITil DRAIT PUBLISHED FOR COMMENT ON i
SEPTEMBER 13,1996 (REDLINE / STRIKEOUT)
Page 20 1
(2) If the State 11istoric Preservation Officer or an Indian tribe terminates consultation, the 2
Agency Official and the Council may execute a Memorandum of Agreement without the State 3
llistoric Preservation Officer's or the Indian tribe's involvement or either may terminate i
4 consultation.
5 6
(3) If the Council terminates consultation, the Council shall notify the Agency Official, d.c Siste 7
Historic Pic3civeden Ofr.cci, ed erand all consulting parties andic inimssica public of the 8
termination and comment under Q 800.7(bb).
9 10 (b) Comments without scrmination. The Council may determine tliat it is appropriate to provide 11 additional advisory comments mon an undertaking for which a Memorandum of Agreement will 12 be executed. The Council shall prepare its comments pursuant to {800.7(c) and proside them to 13 the Agency Official whenit executes the Memorandum of Agreement.
14 15 (c) Comments by the Council. (1) Preparation. The Council shall ymyon. its conuun.is Wu. on 16 edcquoi5tovide an opportunity for the Agency Official, die Sieic II;5ioric..ese,ouvu mmw, 17 otherall con ulting parties, and the public to provide their views within tlie time frame for 18 developing its commen'ts. Upon request of the Council, the Agency Official shall provide 19 additional existing information conceming the undertaking and assist the Council in arranging an 20 onsite inspection and an opportunity for public participation.
21 22 (2) Timing. The Council shall transmit its comments within 45 days of receipt of a request under 23
{ 800.7(a)(1) or termination by the Council under { 800.7(a)(3), unless otherwise agreed to by 24 the Agency Official.
25 26 (3) Transmittal. The Council shall provide its comments to the head of the agency requesting 27 comment with copies to the Agency Official, dic Steic IIistoiic Picso (stion Offico, udierall 28 consulting partiesrthe intussica puh!!c, and others as appropriate.
29 30 (4) Response to Council comment. The head of the agency shall considcrtake into account the 31 Council's comments in reaching a final decision on the undertaking. Section 110(1) of the Act 32 directs that tThe head of the agency shall document this decision and may not delegate his or her 33 responsibilities pursuant to Section 106.005 p.uogoyh. The !.ced of 0.c secucy shs!! documnit 34 dic dccision by Documenting the agency head's decision shall include:
35 36 (i) Preparing a ivco d summary of the decisiorrand that contains the rationale for the decisioniand 37 evidencinge of consideration of the Council's comments and providing it to the Council prior to 38 approvingal of the undertaking; 39
s
_.n,
COMPARISON OF PROPOSED REGULATIONS WITH DRAFT PUBLISHED FOR COMMENT ON SEPTEMBER 13,1996 (REDLINE / STRIKEOUT)
Page 21 1
. (ii) Providing a copy of the recy.d of deci3lensummary to d.c Stoi, !!!s;esic P c csoden Off.cci, 2
otherall consulting parties, m.d 0.c inicic3ted pouic; and 3
4 (iii) Notifying the public and making the record available for public inspection.
S 6
$800.8 Coordination with the National Environmental Policy Act.
7 8
(a) Generalcoordination. Federal agencies are encouraged to coordinate',,when appropriate, 9
compliance with Section 106 and the procedures in this part with any steps taken to meet the 10 requirements of the National Environmental Policy Act (42 U.S.C. 4231 et seq.)(NEPA).
I1 12 (b) Actions categorically excluded under NEPA. Mo^riait a project, activity or program 13 is categorically excluded from NEPA review under an agency's NEPA procedures, the Agency 14 Official shall determine ifit qualifies as an undertaking requiring review under Section 106 15 pursuant to Q 800.3(a) If so, the Agency Official shall comply with the procedures in this 16 subpart.
17 18 (c) Use ofthe NEPA processfor Section 106 purposes. An Agency Official may use the process 19 and documentation for the preparation of ariEnidrorimenial'Assiismeni(EA)'or an 20 Environmental Impact Statement (EIS) e, mi EnGerosuto! A3,s...uso; (EA) to comply with 21 Section 106 in lieu of the procedures set forth in i@ 800.3 through 800.6 if the following 22 conditions are met.
23-24 (1) Preparation of the'EA or Draft EISEinuemus..; !nipoet Stot u.cnt (DEIS)erEA meets the 25 following standards:
26 27 (i) The' Agency' Official has identified consulting parties pursuant to. 800.3(e) or through the 28 NEPA scoping process with results consistent with { 800.3(e);
29 30 (ii) The Agency Official has notified the Council, the State Historic Preservation Officer, 31 considting parties and the inic.c3ted public during the preparation of the DEIS or EA that this 32 3cct.en is kin 3 necd to coniply Wdi Section 106 requirements will be met through NEPA 33-compliance in accordance with 800.8(c);
i 34 l
35-
- (iii) Historic properties are identified and effects of the undertaking are cio:moicdassessed in a l
36 manner consistent with the standards and criteria ond recums3 ef { 800.34 through 800.5 and 37 d c dxenisuionen oimid do er 300.1;; j l
l l
~
COMPARISON OF PROPOSED REGULATIONS WITH DRAFT PUBLISHED FOR COMMENT ON SEPTEMBER 13.1996 (REDLINE / STRIKEOUT)
Page 22 1
2 (iiiiv) The Agency Official has consulted with the State Historic Preservation Officer, other 3
. consulting parties, and the Council where appropriate es icvL,d by ss ^0.3 d.v..L 300.0 And
.4 s000.12 Lu ;4m.0f,L.g h;;;.;c y.vemi;,s,,seh du. yo.,m;.; ed m., c%ci., ud 5
ceu,;du;og ns te eiv;d ei n.Ldm;m dim,,,1ci during NEPA scoping, environmental -
6 inalysik and thipreparation ofNEPA documents;
~
7 8
(iv) The Agency Official has involved 04 La...; d p.L;;c
.d the public in accordance with the 9
agency's published NEPA procedures; and 10-(vi) Alternatives and proposed measures that -v.;d. night avoidw, minimize or mitigate'any
'11 12 adverse effects of the undertaking on historic properties and that are beisg cbasidered by the 13-
- Sgencf9fficial are described in the EA or DEIS er EA.
(2) The Agency Official shall submit the EA or DEIS er EA te um Cv-s;;, the State Historic
.16 Preservation Officer, other consulting parties, and the L..m ;;ed y L;;dTui~cil[wlieri
-17 appropriate, when,Lm.;ed... ;m.aking the ddcument available for public comment. The Agency
~
18 Official shall indicate that the EA or DEIS or-EA is intended to meetfulfill the requirements of 19 Section 106 oudm Ods secdon.
20 21 (3) If ;ddu es dum a;;u d fei y.L;;c mmm m eu dm OE;'; e. CA Om Cems;; ebj,m. te hvo 22 dm Agcimy Offm;.; L i.Lu.ntu ecce.m de cim, of;;s dm LL.g eu l0,im;c myerties; e
-23 Os A.msy OL;&; ahe;; comy;j ;d. s 200.0(b)(2). If the Agency Official receives an 24 objection from the State Historic Preservat!on Officer, adotlier consulting party, or the Csuncila 25 m,mb. of ds LA..;,4 p L;;c within the time allowed for public comment on the document, 26 the Agency Official shall y.vi;dt d4 vbjeci.eurefer the matter to the Council. Within 30 days, 27
- the Council shall notify the Agen:y Official either that it agrees with the objection, in which case 28-the Agency Official shall complyenter int 6 consultation in accoidahde with Q 800.6(b)(2); or seek 29 Council comments in accordance with { 800.7(c), or that it disagrees with the objection, in which 30 case the Agency Official shall cuoihmc iv fv;;e aomplete its compliance with this section.
31 32 (4) The Agency Official shall ;uw.yviem iu;especify in the T;ee; Eui;mi-o,m.: Luy.ct 33-S;e;musm (FEIS) ei final document resulting from the EA or Final EIS (FEIS)'the proposed
~
34 trasures to avoidw, minimize or mitigate adverse effects on Fistoric properties. Adoption of
- 35 tLs proposed measures through a commitment, binding on the agency or the applicant for Federal-36 assistance or permission, as appropriate, to carry them out and embodied in a Record of Decision
- 37 (ROD) following or accompanying the FEIS vi final document resulting from the EA or FEIS 38 satisfies the Agency Official's responsibilities under Section 106 and the procedures in this
-39
- subpart, i
COMPARISON OF PROPOSED REGULATIONS WITil DRAFT PUBLISHED FOR COMMENT ON SEPTEM13ER 13,1996 (REDLINF/ STRIKEOUT)
Page 23 1
(5) If the undertaking is eu'v3cqubudy modified 'after approval of the ROD in a manner that alters 2
the t.b.ouent of effects on historic properties or if the Agency Official fails to ensure thateany 3
out the measures to avoider, minimize or mitigate adverse effects as specified in the ROD are 4
cairied out, the Agency Official shall either'take intb account the effects' of the undertaking in 5
completing compliance with NEPA or neGT, Om Rek :Liede.".ma veden Of&.cci, on, udici 6
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10 g 800.9 Council review of Section 106 compliance.
I1 12 (a) Assessment ofAgency Opicialj?,5J;,5shcmpillmcefor individual undertakings. The Council 13
- map pr'biide to the' Agency Official its advis6ry' opinion regardiiig tE sufistance of any finding,
^
14 determination or decision made.undenthis pat 6r regaiding the adequacy of tis Asency 15 Official!i conipliance with the Mires >eading 'to'such findingFdetennination 'or decision:j Tlii C6 basil mayjro' Vide 'such a' vice s anytime dthe risinisiefiniyLindiiidualfagency' o' 16 d
r 17 organization or on its 'oWn initiativeiThe AgencyLOfficialTshall cosider the viewiof the Council in resching'a final decision on the undertakins (1) a.;5;fv, s.,._Ji, 18 If Om Counc;;
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39 th.:,byubJ,oum ou, obbv ______.._.uyou,4u3 Joeyu4 uus uubu4ubusouuu muu iu, Am u,b..bnJvi um nebub,
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COMPARISON OF PROPOSED REGULATIONS WITil DRAFT PUBLISHED FOR COMMENT ON SEPTEMBER 13,1996 (REDLINF/ STRIKEOUT)
Page 24 1
Ofndel en the nw.do of de sqs,t. Tre Cemsi; shell ceing,6 ite
..usia of Os nuding 2
w;dJn 30 defs of noi;T,u.g 04 Ap.s, OZdel -nd niey.sqwet Os Ags.sy OZdel te.sf.. n 3
f.v.u i. Ling nnel ection en ds -.deneug dming diei ys.;vd. The Coms;! sh." inv,-;de its 4
vswe to um sqw te., as Assucy 05c.e!, dw Steic In3;e.;c P.c. vet;en 05s., censolt;ug 5
ym dos m.d edst iucu.hsis of Om ;ui.,sted yohi;c, es.yiove :ei.
r 6
7 (iii)If de Cems;l dw;dc3 0..t Os syusst des not otow icesen; d.et evold wm.ma Os Comw;;
8 de.udmng thet de nudhig woo ;isens;.mm w;ih Ogsc y.wedmss, Ow Cei-K;; 3h :1deliocto 9
e23,.. Og nnding nd nutify de icqosste..
10 11 (4) G e3nens,fe!!gib!!!i,,. W wn um nnding censium 04 cug;h!!!tj ere pieysaj fu.114 12 Net.eno; Itcg.5xi, de Cemnd; 31 mil.cfs. de metic.10 04 Se.sm.;.
13 14 (b) Agencyforeclosure ofthe Council's opportunity to comment. Where an Agency Oflicial has 15 failed to complete the requirements of Section 106 in accordance with the procedures in this part 16 prior to the approval of an undertaking, the Council's opportunity to comment may be 17 foreclosed. The Council may review a case to determine whether a foreclosure has occurred.
18 The Council shall notify the Agency Official and allow 30 days for the Agency Official to 19 provide information as to whether foreclosure has occurred, if the Council determines 20 foreclosure has occurred, the Cheumm. of dw Council shall transmit the determination to the -
~
d Agency Official an' the head of the agency.
21 22 23 (c) Intentional adverse effects by applicants. (1) Agency responsibility. Section 110(k) of the 24 Act prohibits a Federal agency from granting a loan, loan guarantee, permit, license or other
-25 assistance to an applicant who, with intent to avoid the requirements of Section 106, has 26 intentionally significantly adversely affected a historic property to which the grant would relate, 27 or having legal power to prevent it, has allowed such significant adverse effect to occur, unless 28 the agency, after consultation with the Council, determines that circumstancesjustify granting 29 such assistance despite the adverse effect created or permitted by the applicant. Guidance issued 30 by the Secretary pursuant to Section 110 of the Act govems its implementation.
31 c
32 (2) Compliance with Section 106. If an Agency Official, after consulting with the Council, 33 determines to grant the assistance, the Agency Official shall comply with the procedures in this 34 part to take into account the effects of the undertaking on any other historic properties.
35 36 (d) Evaluation ofSection 106 operations. The Council shaHmay evaluate the operation of the 37 Section 106 process by periodic reviews of how participants have fulfilled their legal 38 responsibilities and how effectively the outcomes reached advance the purposes of the Act.
39 1
~.-
4:S
+
4 COMPARISON OF PROPOSED REGULATIONS Wini DRAFT PUBLISHED FOR COMMENT ON 3
SEPTEMBER 13.1996 (REDLINE / STRIKEOUT)
Page 25
- 1 (1) fr((ormationfrompart/c/ pants. Section 203 of the Act authorizes the Council to obtain -
2 information from Federal agencies necessary to conduct....:.:.;.e4 evaluation of the Section 3
106 processc The Agency Omcial shall n..:.. ;-nake documentation of actions taken to comply 4-
_ with Section 106 ? ;...,,;5 24.i.d de of s 300.11.ed eyy :ceMc.p.sy y.v,,,d-,.. Tis 5_
Ap..,.y OL.;e: a..:: n..L. 54. Jum..... ;;vn available to the Council upon request. The
- 6
. Council may request available information and documentation from other participants in the 7
' Section 106 process.
8 9
(2) Peer review. The Council may use professional peer review to assist in any evaluation.
10 11 (3) Improving the operation ofSection 106. Based upon any evaluation of the Section 106 12 process, the Council may make recommendations to participants, the heads of Federal agencies, 13 and the Secretary of actions to improve the efficiency and e Tectiveness of the process, Where 14 the Council determines that an Agency Official, a State Historic Preservation Officer or a Tribal -
15 Hisj6ric Preservation Officer who has assumed the role of the State Historic Preservation Officer 16 has failed to properly cany out the responsibilities assigned under the procedures in this part, the 17
- Council may participate in individual case reviews in a manner and for a period that it determines L
18 is necessary to improve performance or correct deficiencies, 19 i
20;
- $ 800.10 Special requirements for protecting National Historic Landmarks.
21 7 22 Section 110(f) of the Act requires that the Agency Official, to the maximum extent possible,-
23 undertake such planning and actions as may be necessary to minimize harm to any National r-l 24-Historic Landmark that may be directly and adversely affected by an undertaking. When
- 25-commenting on such undertakings, the Council shall use the process set forth in {Q 800.6 through 26 800.7 and give special consideration to protecting National Historic Landmarks as t
27 fv::e.,hecified in thissection.
28-29 (a) Resolution ofadverse efects. The Agency _ Official 'shall requist the Council io participate in -
- 30;
. aAny consultation'to resolve adverse effects conducted under Q 800.6. 3:. ell ;.d.d Os Cv-s::,
31 ifd.,Ce -,;;c vu ~ ie y Ge:v ;-.
e 32 l
33 (b) Involvement ofthe Secretary. The Agency Official shall notify the Secretary of consultations 34
. involving National Historic Landmarks and invite the Secretary to participate in the-35 consultation. The Council may request a report from the Secretary under Section 213 of the Act j-
-36
to assist in the consultation.
37' i
i
..~
l COMPARISON OF PROPOSED REGULATIONS Wim DRAFT PUBLISHED FOR COMMENT ON SEPTEMBER 13,1996 (REDLINE / STRIKEOUT)
Page 26 1
(c) Report ofoutcome. The Council shall report the outcome of the Section 106 process, 2
including its comments or any Memoranda of Agreement, to the Secretary and the head of the 3
agency responsible for the undertaking.
4 5
Q 800.11 Documentation standards.
6 7
(a) Adequacy ofdocumentation. The Agency Official shall ensure that any determination, 8
finding or agreement under the procedures in this subpart is supported by sufficient 9
documentation to enable any reviewing parties to understand its f&ctuel aid 10gicel basis. L the 10 Council, or the State Historic Preservation Officer in those situations where the Council is not 11 involved, determines the applicable documentation standards are not met, thtCouncil,'or the 12 State Historic Preservation Oflicer or Indian tribe, as appropriate, shall notify the Agency 13 Official and specify the information needed t' meet the standard. In such cases, the time period o
14 specified in the relevant section of this subpart shall be suspended until adequete 15 decmucinoGoispecified info ~rmation is submitted.
16 17 (b) Format. The Agency Official may use documentation prepared to meet the needs of other 18 authorities to fulfill the requirements of the procedures in this subpart, provided that resulting 19 documentation meets the standards of this section.
20 21 (c) Confidentiality. (i) Section 304 of the Act requires an Agency Ofiicial or other public 22 official receiving grant assistance pursuant to the Act to withhold from public disclosure 23 information about the location, character, or ownership of a historic property when disclosure 24 may cause a significant invasion of privacy; risk harm to the historic resource' roperty; or impede p
25 the use of a traditional religious site by practitioners. When a decision to withhold information 26 has been made, the Secretary, in consultation with the Agency Official or public official and the 27 Council, shall detennine who may have access to the information for the purposes of carrying out 28 the Act.
29 30 (ii) Other Federal laws and program requirements may limit public access to information 31 conceming an undertaking and its effects upon historic properties. Where applicable, those 32 authorities shall govern public access to information developed in the Section 106 process and 33 may authorize the Agency Official to protect the privacy of non govemmental applicants.
34 35 (d) Finding ofno historicproperties prvsent or afected. Documentation shall include:
36 37 (1) A description of the undertaking and its area of potential effects, including photographs, 38 maps, and drawings, as necessary; 39 I
i COMPARISON OF PROPOSED REGULATIONS WITil DRAFT PUBLISilED FOR COMMENT ON SEPTEMBER 13,1996 (REDLINF/ STRIKEOUT)
Page 27 1
(2) A description of the efforts used to identify historic properties; and 2
3 (3) The basis for determining that no historic properties are present or affected.
4 5
(e) Finding ofno adverse efect or adverse efecisiundai J ii cuianiiii vfpoiciii a ' ad. o a c e5 cis.
6 Documentation shallinclude:
7 8
(1) A dc3s;pi.en of 0.5 uudenoldng oud ;12 o ce of putenGel cffecie, ;ucluding phetug.oglis, 9
roeps, oud die n iug3, e5 necc33eq,
10 11 (2) A dceciyGen of L;3toi;c p vgn c3 diei niej hc effccica by 0.c uudotaking,.ucluding 12 epy.ep.;etc infennetion en d c netms of 0,cir 3.gn;f.cm.ce, 13 14 (M A dc3a;pGen of the cffuns n3cd to idcuGf h 3ter.c y.vycit;c,
f 15 16 (4) A dcenigt.en of ehj d.c a;io;e of eds nec cffcci es., fem.d Liepplicetic, ei Len puts.t.el 17 edio,c cffccio ;,vuld 1~ ic3elved, oud 18 19 (5) Any..cs, pieiided by consulGug genics, d.; iniuc3;cd public eud d.c public.-
20 21 (f) Tl,iding ufod.cise e;ci. Docu.ucutoGen shell 'nciedc.
22 23 (1) A description of the undertaking and its area of potential effects, including photographs, 24 maps, and drawings, as necessary; 25 26 (2) A description of the affected historic properties, wrthincluding information on the 27 characteristics that qualify them for the National Register; and 28 29 (3) A description of the undertaking's edioas effects on historic properties.
30
~
31 (4) A description of why the criteria of adverse effect were found applicable or inapplicable, 32 including any conditions or future actions to be taken designed to avoid, minimize or mitigate 33 adverse effects; and 34 35 (5) Copies or summaries of any views provided by consulting parties and the public.
36 37 (gf) Memorandum ofAgreement. When a memorandum is filed with the Council, the 38 documentation shall include an evaluation of any measures considered to avoid or minimize the 39 l
_~
t 4
. i COMPARISON OF PROPOSED REGULATIONS WITH DRAFT PUBLISHED FOR COMMENT ON SEPTEMBER 13,1996 (REDLINE / STRIKEOUT)
Page 28 1
undertaking's adverse effects and a summary of the views of consulting parties, d&c li&tcicsica 2
public and the public.
3 4
(hg) Requestsfor comment when consultation is terminated. Documentation shall include that 5
specified in paragraph (f) of this section and:
6 7
(1) A description and evaluation of any alternatives or mitigation measures that the Agency 8
Official proposes to resolve the undertaking's adverse effects; 9
10 (2) A description of any reasonable altematives or mitigation measures that were considered but 11 not chosen, and the reasons for their rejection; and 12 13 m,A &&b g1&R&u143 AS Jb&&bkab44b &VA- - -
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14 15
(+) Copies or summaries of any views submitted to the Agency Official concerning the effects of 16 the undertaking on historic propertics and alternatives to reduce or avoid those effects.
17 18
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Page 31 1
6 800.12 Emergency situations.
2 3
(a) Agencyprocedures. The Agency Official, in consultation with the appropriate State Historic 4
Preservation Officer or Officers and the Council,is encouraged to develop procedures for taking 5
historic properties into account during operations which respond to a disaster or emergency 6
declared by the President,ic Agc% OZck! or the governor of a State or which respond to 7
other immediate threats to life or property. If approved by the Council, the procedures shall 8
govern the agency's historic preservation responsibilities during any disaster or emergency in lieu 9
of f 6 800.3 through 800.7.
10 11 (b) Alternatives to agencyprocedures. In the event an Agency Official proposes an emergency 12 undertaking as an essential and immediate response to a disaster or emergency declared by the 13 President, the Agency Official or the governor of a State, and the agency has not developed 14 procedures pursuant to { 800,12(a), the Agency Official may comply with Section 106 by:
15 16 (1) Following a programmatic agreement developed pursuant to f 800.14(b) that contains 17 specific provisions for dealing with historic properties in emergency situations; or 18 19 (2) Notifying the Council and, the appropriate State Historic Preservation Officer aEd any Indian 20 tribe or Native Hawaiian organization that attaches religious or~ cultural 3ignificance to historic
)
21 properties likely to be affected prior to the undertaking and affording them an opportimity to l
22 comment within seven days of notification. If the Agency Official determines that circumstances i
23 do not permit seven days for comment, the Agency Official shall notify the Council and, the 24 State Historic Preservation Officer and the Indian tribe 6F Natiie'H6aliaiiorganizatioli and 25 invite any comments within the time available.
26 27 (c) Localgovernments responsiblefor Section 106 compliance. When a local government is 28 statutorily delegated responsibility for Section 106 compliance, { 800.12(a) and (b) also apply to 29 an imminem threat to public health or safety as a result of a natural disaster or emergency 30 declared by a local government's chief executive officer or legislative body, provided that if the 31 Council or State Historic Preservation Officer objects within seven days, the Agency Official 32 shall comply with { 800.3 through 800.7.
33 34 (d) Applicability. This section applies only to undertakings that will be implemented within 30 35 days after the disaster or emergency has been formally declared by the appropriate authority. An i
36 agency may request an extension of the period of applicability from the Council prior to the 37 expiration of the 30 days. Immediate rescue and salvage operations conducted to preserve life or 38 property are exempt from the provisions of Section 106 and this part.
39
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COMPARISON OF PROPOSED REOULATlONS WITH DRAFT PUBLISHED FOR COMMENT ON SEPTEMBER 13,1996 (REDLINF/STR!KEOUT)
Page 32 l
(e)l Emergency situations on or~qfecting triballands. Wben an agency coinpliek with~the 2
provisions of this section for an undertaking'on or affecting tribal lands, the Agency Omelal shall 3
provide the Indian tribe with the same opponunities to participate' as the State Historic 4
Preservation Omcor. De Agency Official shall also coordinate actions proposed 'uuder this 5
section with the requirements of the Native Amedcan Oraves Pr6tection and Repatriation Act.
l 6
7 8 800.13 Post review discoverles.
8-9 (a) flann/ngfor discoveries. (1)?^n Agency Official may develop a Piogrammatic Ag sement l
10 buisuanito 1800.14(b)la go~vem the i.ctions to be taken when historic properties are discovered 11-dudag the implementation of an undanaking; j
13 13 (2);When the Agency Official's identification efforts in accordance with i 800.4 indicate that 14 historic properties are likely to be discovered during i Pisgrainmatic Agnissiiiit hia.bbiiidiivolopedfpursunmplementatim of an unde 15.
~
t tiif800j13(ski), the Agency OfYicial 16 shall include in any finding ofno adverse efTec;,1.J J ;. ;......; Jg.;...J : J..
17 or Memorandum of Agreement a process to resolve any adverse effects upon such properties.
18 Actions in conformance with the process satisfy the Agency Official's responsibilit!es under 19 Sec*lon 1% and this part.
20 21 (b) Unplannedfor discoveries. If historic properties are discovered or unanticipated effects on 22 historic properties found after the Agency Official has completed the Section 106 process 23 withcut establishing a process under 6800.13(a), the Agency Official shall make reasonable i
24 efforts to avoidw, minimize bi'initigatiadverse effects to such properties and t 1
- 25 t
26 (1) If the Agency Official has not approved the undertaking br if cosstruction'on iaiapproved 27 undertaking has nst commenced, ?on ult to resolve adverse effects pursuant to 9 800.6; or 28 29-
- (2)If the Agency Official determine, la consultation with the State Historic Preservation Omcer 30
. and any Indian tribe or Native Hawallan organtiationi that map attach religious or cultural a
31 istgalficance to that the affected property, that such propeny is significant solely for its scientific, l
32 prehistoric, historic or archeological data, comply with the Archeological and Historic 33 Preservation Act,16 U.S.C. 469(a)-(c) instead of the procedures in this part, provided that the 34 Agency Omcial shall consult with the State Historic Preservation Omcer on the actions proposed -
35 and provide the Council with a report on the actions after they are completed; or 36
- 37 (3) If the Agency OfYicial has approved the undertaking and construction has commenced,
-38 determine actions that the Agency Official can take to resolve adverse effects; notify the State 39 Historic Preservation Officer and the Council within 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> of the discovery; describe the v-
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e COMPARISON OF PROPOSED REGULATIONS W1111 DRAFT PUDL1311ED TOR COMMENT ON SEPTEMBER 13,1996 (REDLINE / STRIKEOUT)
Page 33 l
l 1
actions proposed to resolve the adverse effects; take into account any recommendations provided 3
by the Council and the State llistoric Preservation Officer within 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> of the notification; 3
carry out appropriate actions, and provide the Council;and the State llistoric Preservation Officer 1
4
&nd thc h.ic.seica i,et,3c a report of the actions when completed.
5 6
(c) Eligibility ofpropertics. When a newly discovered historic property has not previously been 7
included in or determined eligible for the National Register, the Agency Official,in consultation 8
with the State llistoric Preservation omcer, may assume the property to be eligible for purposes 9
of Section 106.
10 11 (d) D/s'coverles on triballands.. If historic properties are discovered or unanticipated effects on
~
13 historic properties found on tribal lands aftsr the Agency Omelal has completed the Section 106 13 process without ' establishing a process under (800,13(a) and' construct'lon has ~ commenced, the 14 Agency Official shall comply with the provisions of the Native American Omves Protection and 15 Repatriation Act'a' dlapplionble tribal regulations land procedures.)
a 16 17 SUHPART C-PROGRAM ALTERNATIVES 18 19 i 800,14 Federal agency program alternatives.
20 21 22 (a) Alternateproccdurcs. A Federal agency may develop procedures to implement Section 106 23 and substitute them for the comparable provisions of subpart B if they are found consistent with 24 the Council's regulations in accordance with Section 110(si)(2)(E) of the Act(arid guidelities 25 issued bithe Secretary to guide implementation of Section 110 of the Act.
26 27 (1) Development ofprocedurcs. The Federal agency shall consult with the Council, the National 28 Conference of State Ilistoric Preservation Officers or individual State Historic Preservation 29 Officers, as appropriate, and Indian tribes and Native Hawaiian organizations, as appropriate, in 30 the development of alternate procedures-and, publish notice of the availability of proposed 31 alternate procedures in the Federal Register and take other appropriate steps to seek public input 32 during the development of alternate procedures.
33 34 (2) Council rcview. The Federal agency shall submit the fmalproposed alternate procedures to 35 the Council for review.
36 37 (i) If the Council finds the regulations to be consistent with this part, it shall notify the Federal 38 agency and the Federal agency may adopt them as final alternate procedures.
39 j
1
^
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COMPARISON OF PROPOSED REGULATIONS WITil DRAPT PUDt.lSilED FOR COMMENT ON SEPTEMBER 13,1996 (REDLINT/ STRIKEOUT)
Page 34 1
(ii)-if t!.c Conneil doc 5 net Gnd1h; procedures consistsni,ilic Cennsil 5liell scsjuc51il.c Scciciwy 2
te niekc e Gnal dcim..dnatiertes to consistcncy. !f the Secciary dcicin.incs the p.wdms to bc 3
consisient, ihc Tcdcrel egcncy niey edopt theni es-altcinetc pioccdures:
4 5
(3) Notice. The Federal agency shall publish notice of final attemate procedures in the Federal 6
Register.
7 8
(4) Legal ef/cct. Altemate procedures adopted pursuant to this section substitute for the 9
Council's regulations for the purposes of the agency's compliance with Section 106, except that, 10 where an Indian tribe has entered into an agreement with the Council to substitute tribal historic 11 preservation regulations for the Council's procedures, the agency shall follow those regulations 13 in lieu of the agency's procedures regarding undertaldngs on tribal lands.
13 14 (b) frogrammatic Agreements. The Council and the Agency Official may negotiate a 15 Programmatic Agreement to govern the implementation of a particular program or certain 16 complex project situations that justify departure from the normal Section 106 process.
17 18 (1) Programmatic Agreementsfor agencyprograms. (i) The consultation shall involve State 19 111storic Preservation Officers or the National Conference of State liistoric Preservation Omcers, 20 Indian tribes and Native 11awallan organizations, other Federal agencies, and other members of 21 the interested public, as appropriate, 22 23 (ii) The Agency Omelal shall arrange for public part cipation appropriate to the subject matter 24 and the scope of the program. The Agency Ometal shalfconsider the natme of the program and 25 its likely effects on historic properties and the individuals, organizations and entities likely to be 26 interested.
27 28 (iii) The Programmatic Agreernent shall take effect when executed by the Council-and, the 29 Agency Official-T and the President of the National Conference of State liistoric Preservation 30 Omcers shell bc invited to 5:si. eiy esicc. icnt(NCSliPO) when the ConfecoceNCSIIPO has 31 participated in the consultation developing it. Compliance with the procedures established by an 32 approved Programmatic Agreement satisfies the agency's Section 106 responsibilities for all 33 individual undertakings covered by the agreement until it expires or is terminated by the agency, 34 the President of the NCSiiPO when a signatory or the Council.
35 36 (iv) The Agency Official shall publish notice of an approved Programmatic Agreement executed 37 under this subsection in the Ftderal Register and make any agency procedures implementing the 38 agreement readily available to the Council, State Historic Preservation Officers, and the public.
l 39 1
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e COMPARISON OF PROPOSED REGULATIONS WITil DRAFT PUBLISilED TOR COMMENT ON l
SEPTEMllER 13,1996 (REDt. INT / STRIKEOUT)
Page 35 1
(v)If the Council determines that the terms of a Programmatic Agreement are not being carried 2
out, or if such an agreement is terminated, the Agency Official shall comply with subpart B with 3
regard to individual undertakings covered by the agreement.
4 5
(2) Programmatic Agreementsfor complex or multiple undertakings. (i) A Programmatic 6
Agreement is a Memorandum of Agreement that establishes a process for dealing with the 7
potential adverse effects of complex projects or multiple undertakings carried out over an 8
extended period of time. Examples of when ah Programmatic Agreement shaHmay be used 9
Indude:
10 11 (A) When effects on historic properties are similar and repetitive or are multi State or regional in 12 scope; 13 14 (B) When effects on historic properties cannot be fully determined prior to approval; 15 16 (C) When nonfederal parties are delegated major decisionmaking responsibilities; or 17 18 (D) Where routine management activities are undertaken at Federal installations, facilities, or 19 other land management units.
20 21 (ii) Such a Programmatic Agreement shall be developed in the same manner as other 22 Memoranda of Agreement under f 800.6, provided that if consultation pertains to an activity 23 involving multiple undertakings and the parties fail to reach agreement, then the Agency Official 24 shall comply with the provisions of subpart B of this part for each individual undertaking.
25 26 (c) Exempted categories. (1) Critcriafor establishing. An Agency Official may propose a 27 program or category of agency undertakings that may be exempted from review under the 28 provisions of subpart B of this part, if the program or category meets the following criteria:
29 30 (i) The actions within the program or category would otherwise qualify as " undertakings" as 31 defined in f 800.16; 32 33 (ii) The potential effects of the undertakings within the program or category upon historie 34 properties are foreseeable and not-likely to be minimal edw w; and 35 36 (iii) Exemption of the program or category is consistent with the purposes of the Act.
37
COMPARISON OF PROPOSED REGULATIONS WIT 1{ DRAl'T PUBLISilED FOR COMMENT ON SEPTEMBER 13.1996 (REDLINE / STRIKEOUT)
Page 36 1
(2) Publicpart/c/pallan. The Agency Omelal shall arrange for public participation appropriate 3
to the subject matter and the scope of the exemption. The Agency Omelal shall consider the 2
nature of the exemption and its likely effects on historic properties and the individuals, 4
organizations and entitles likely to be interested.
5 6
(3) Council review ofproposed excmptions. The Council shall review a request for an exemption 7
that is supported by documentation describing the program or category for which the exemption is sought-and, demonstrating that the criteria of { 800.14(c)(1) have been met and surnmarizing 8
9 ariy~ views submitted by the public. Unless it requests further information, the Council shall 10 approve or reject the proposed exemption within 30 days of receipt. The Council decision shall 11 be based on whether the exemption is consistent with the purposes of the Act, taking into 12 consideration the magnitude of the exempted undertaking or program and the likelihood of 13 impairment of historic properties in accordance with Section 214 of the Act.
14
($) Legal conscquences. Any undertaking that falls within the exempted program or category 15 16 approved by the Council shall require no further review pursuant to subpart B of this part, unless 17 the Agency Omcial or the Council determines that there are circumstances under which the 18 normally excluded undertaking should be reviewed under subpart B.
19 20 (5) Termination. The Council may terminate an exemption wherili deiermines that the 21 exemption no longer meets the criteria of f 800.14(c)(1). The Council shall notify the Agency 22 Omelal 30 days before tennination becomes efrective.
23 24 (d) Standard treatments. (1) Establishment. The Council,'on its osiiinitiatise or at'the request 25 of another party, may establish standard methods for the treatment of a category of historie 26 properties or a category of effects on historic properties to satisfy the requirements of subpart B 27 of this part. The Council shall specify such treatments, conditions for their application and any 28 procedural modifications attendant to their use, including standard form Memoranda of 39 Agreement, in a notice published in the Federal Register.
30 31 (2) Publ/cparticipattoir. The Council shall arrange for public participation appropriate to the 32 subject matter and the scope of the standard treatment. The Council shall consider the nature of 33 the exemption and its likely effects on historic properties and the individuals, organizations and 34 entities likely to be interested. Where an Agency Official has proposed a standard treatment, the 35 Council may request the Agency Official to arrange for public involvement.
36 37 (3) Legal conscquence. An Agency Official may elect to follow a standard treatment to meet i
38 Section 106 responsibilities for a qualifying undertaking in accordance with { 800.5.
39
COMPARISON OF PROPOSED REGULATIONS WITil DRAFT PUllLISilED FOR COMMENT ON SEPTEMilER 13,1996 (REDLINE / STRIKEOUT)
Page 37 1
(4) Termination. The Council may terminate standard treatment by publication of a notice in the 2
Federal Register 30 days before the termination takes effect.
3 4
(c) Program comments. An Agency Omelal may request the Council to comment on a category 5
of routine or repetitive undertak.ings in lieu of conductir.a individual reviews under 6Q 800.4 6
through 800.7. The Council may provide program comments at'its own initiative.
7 8
(1) Agencyrequest, The Agency Omelal shall identify the category of undertakings, specify the 9
likely effects on historic properties, specify the steps the Agency Omelal will take to ensure that 10 the effects are taken into account-and, identify the time period for which the comment is 11 requested and summarize any vicws submitted by the public.
12 1
13 (2) Publicparticipation. The Agency Omcial shall arraig~e for public participation appropriate 14 to the subject matter and the scope of the category. %e Agency Official shall consider the nature 15 of the undertakings and their likely effects on historic properties and.the individuals, 16 organizations and entitles likely to be interestedi 17 18 (3) Council action. Unless the Council requests additional documentation or notifies the Agency 19 Omelal that it will decline to comment, the Council shall comment to the Agency Omcial within 20 45 days of the request. The Agency Omcial shall take into account the comments of the Council 21 in carrying out the undertakings within the category and provide appropriate notice of the 22 Council's comments and the Agency Omcial's action in response. If the Council objects to the 23 proposed treatment or declines to comment, the Agency Omcial shall continue to comply with 24 the requirements of (( 800.4 through 800.7 for the individual undertakings. Tlic Cou.icil iiiey 25 piov;de piogimii coiiiii.ciits et its emi !isistive-26 27
{800.15 State, Tribal and Local Program Alternatives. (Reserved) 28 29
{800.16 Definitions.
30 31 "Act" means the National Historic Preservation Act of 1966, as amended,16 U.S.C.
32 470-470w 6.
33 34
" Agency" means agency as defined in 5 U.S.C. 551.
35 36
" Approval of the expenditure of funds" means any final agency decision authorizing or 37 permitting the expenditure of Federal funds or financial assistance on an undertaking, including 38 any agency decision that may be subject to an administrative appeal oi.clied..g pioccduie.
39
)
COMPARISON OF PROPOSED REGULATIONS WITil DRAIT PUI1LISIIED FOR COMMENT ON SEPTEMilER 13,1996 (REDLINE / STRIKEOUT)
Page 38 1
" Area of potential effects" means the geographic area or areas within which an undertaking 2
couldmay directly or indirectly cause s&cisc ducts enchanges in the charader or use of 3
historic properties, if any such properties exist. The area of potential effects for an undertaking 4
may be different for different kinds of effects caused by the undertaking.
5 6
" Comment" means the findings and recommendations of the Council formally provided in 7
writing to the head of a Federal agency under Section 106.
8 9
" Consultation" means the process of seeking and considering the views of other participants in a 10 manner appropriate to the panicular panicipants and the specific steps in the Section 106 11 process.
12 13
" Council" means the Advisory Council on llistoric preservation or a Council member or 14 employee designated to act for the Council, 15 16 f! Day"WNays"meansialendar" days.
17 18 "Effect" means alteration to the characteristics of a historic property that qualified it for 19 inclusion in or cligibility for the National Register.
20 21 "licad of the agency" means the chief oflicial of the Federal agency responsible for all aspects of 22 the agency's actions, if a State, local or tribal government has been delegated responsibility for 23 Section 106 compliance, the head of that ttnit of government shall be considered the head of the 24 agency.
25 26 "l{istoric property" means any prehistoric or historic district, site, building, structtre, or object 27 included in, or eligible for inclusion in, the National Register of thstoric places maintained by 28 the Secretary of the Interior. This term includes artifacts, records, and remains that are related to 29 and located within such properties. The term includes properties of traditional religious and 30 cultural importance to an Indian tribe or Native Hawaiian organization that meet the National 31 Register criteria. The term " eligible for inclusion in the National Register" includes both 32 33 properties formally determined as such in accordance with regulations of the Secretary of the 34 Interior and all other properties that meet the National Register criteria.
35 36
" Indian tribe" means an Indian tribe, band, nation, or other organized group or commtmity, 37 including a Native village, Regional Corporation or Village Corporation, as those terms are 38 39
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'o COMPARISON OF PROPOSED REGULATIONS WITil DRAIT PUBLISilED TOR COMMENT ON SEPTEMBER 13,1996 (REDLINE / STRIKEOUT)
Page 39 1
defined in Section 3 of the Alaska Native Claims Settlement Act (43 U.S C.1602), which is 2
recognized as eligible for the special programs and senices provided by the United States to 3
Indians because of their status as Indians.
4 5
" Local government" means a city, county, parish, township, municipality, borough, or other 6
general purpose political subdivision of a State.
7 8
" Memorandum of Agreement" means the document that records the tenns and conditions agreed 9
upon to resolve the adverse effects of an undertaking upon historic propenies.
10 11
" National llistoric Landmark" means a historic property that the Secretary of the Interior has 12 designated a National IIistoric Landmark.
13 14
" National Register" means the National Register ofIlistoric Places maintained by the Secretary 15 of the Interior.
16 17
" National Register Criteria" means the criteria established by the Secretary of the Interior for use 18 in evaluating the eligibility of properties for the National Register (36 CFR Part 60),
i 19 l
20
" Native llawaiian organization" means any organization which serves and represents the 21 interests of Native llawaiians; has as a primary and stated purpose the provision of services to 22 Native llawaiians; and has demonstrated expertise in aspects of historic preservation that are 23 significant to Native litwaiians. " Native 11awaiian" means any individual who is a descendant of 24 the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now 25 constitutes the State ofliawaii.
26 s
27
" Programmatic Agreement" means a document that records the terms and conditions agreed
)
28 upon to resolve the potential adverse efTects of a Federal agency program, complex undertaking 29 or other situations in accordance with {800.14.
30
)
31
" Secretary" means the Secretary of the Interior acting through the Director of the National Park 32 Service except where otherwise specified.
33 34
" State llistoric Preservation Officer" means the oflicial appointed or designated pursuant to 35 Section 101(b)(1) of the Act to administer the State historic preservation program or a 36 representative designated to act for the State liistoric Preservation Officer, 37 38
" Traditional cultural authority" means an individual or a group ofindividuals in an Indian tribe, 39 Native liawaiian organization, or other social or ethnic group who is recognized by members of a
.,e' C '
COMPARISON OF PROPOSED REGULATIONS WIT 11 DRAIT PUBLISilED TOR COMMENT ON SEPTEMBER 13,1996 (REDLINE / STRIKEOUT)
Page 40 1
the group as knowledgeable in the group's traditional history, cultural practices and living human 2
- values, 3
4
' Tribal !&iids" ii.cm.s ell 132 ids w;ddi, dic wci;oi 'wmidarics of siiy indimo =, atioi; And sll 5
degiidciit liidiaii coi.mimdties-6 7
" Tribal Historic Preservation Officer" means the tribal official appointed by the tribe's chief 8
governing authority or as designated by a tribal ordinance or preservation program as provided 9
for and approved under the provisions of Section 101 of the Act.
10 11
" Tribal lands" means all lands within the exterior boundaries of any Indian reservation and all 12 dependent Indian conununities; 13 14
" Undertaking" means a project, activity, or program funded in whole or in part under the direct or 15 indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal 16 agency; those financed in whole or in part with Federal financial assistance; those requiring a i
17 Federal permit, license or approval; and those subject to State or local regulation administered 18 pursuant to a delegation or approval by a Federal agency.
I i