Regulations of the Advisory Council on Historic Preservation

8/3/2019 Regulations of the Advisory Council on Historic Preservation

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36 CFR PART 800 -- PROTECTION OFHISTORIC PROPERTIES (incorporatingamendments effective August 5, 2004)

Subpart A -- Purposes and Participants

Sec.800.1 Purposes.800.2 Participants in the Section 106process.

Subpart B -- The Section 106 Process

800.3 Initiation of the section 106process.

800.4 Identification of historicproperties.

800.5 Assessment of adverse effects.800.6 Resolution of adverse effects.800.7 Failure to resolve adverse effects.800.8 Coordination with the National

Environmental Policy act.800.9 Council review of Section 106

compliance.800.10 Special requirements for

protecting National HistoricLandmarks.

800.11 Documentation standards.800.12 Emergency situations.800.13 Post-review discoveries.

Subpart C -- Program Alternatives

800.14 Federal agency programalternatives.

800.15 Tribal, State and Local ProgramAlternatives. (Reserved)

800.16 Definitions.

Appendix A Criteria for Councilinvolvement in reviewing individualsection 106 cases

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

Subpart A-Purposes and Participants

800.1 Purposes.(a)Purposes of the section 106

process. Section 106 of the NationalHistoric Preservation Act requiresFederal agencies to take into account theeffects of their undertakings on historicproperties and afford the Council areasonable opportunity to comment on

such undertakings. The procedures inthis part define how Federal agenciesmeet these statutory responsibilities.The section 106 process seeks toaccommodate historic preservationconcerns with the needs of Federalundertakings through consultationamong the agency official and otherparties with an interest in the effects ofthe undertaking on historic properties,commencing at the early stages of

project planning. The goal ofconsultation is to identify historicproperties potentially affected by theundertaking, assess its effects and seekways to avoid, minimize or mitigate anyadverse effects on historic properties.

(b)Relation to other provisions of theact. Section 106 is related to otherprovisions of the act designed to furtherthe national policy of historicpreservation. References to thoseprovisions are included in this part toidentify circumstances where they mayaffect actions taken to meet section 106requirements. Such provisions mayhave their own implementingregulations or guidelines and are notintended to be implemented by theprocedures in this part except insofar asthey relate to the section 106 process.Guidelines, policies and proceduresissued by other agencies, including theSecretary, have been cited in this part

for ease of access and are notincorporated by reference.

(c) Timing. The agency official mustcomplete the section 106 process priorto the approval of the expenditure ofany Federal funds on the undertaking orprior to the issuance of any license.This does not prohibit agency officialfrom conducting or authorizingnondestructive project planningactivities before completing compliancewith section 106, provided that suchactions do not restrict the subsequentconsideration of alternatives to avoid,minimize or mitigate the undertaking's

adverse effects on historic properties.The agency official shall ensure that thesection 106 process is initiated early inthe undertaking's planning, so that abroad range of alternatives may beconsidered during the planning processfor the undertaking.

800.2 Participants in the Section 106process.

(a)Agency official. It is the statutoryobligation of the Federal agency to fulfillthe requirements of section 106 and toensure that an agency official withjurisdiction over an undertaking takeslegal and financial responsibility for

section 106 compliance in accordancewith subpart B of this part. The agencyofficial has approval authority for theundertaking and can commit the Federalagency to take appropriate action for aspecific undertaking as a result ofsection 106 compliance. For thepurposes of subpart C of this part, theagency official has the authority tocommit the Federal agency to anyobligation it may assume in the

implementation of a programalternative. The agency official may bea State, local, or tribal governmentofficial who has been delegated legalresponsibility for compliance withsection 106 in accordance with Federallaw.

(1)Professional standards. Section112(a)(1)(A) of the act requires eachFederal agency responsible for theprotection of historic resources,including archeological resources, toensure that all actions taken byemployees or contractors of the agencyshall meet professional standards underregulations developed by the Secretary.

(2)Lead Federal agency. If morethan one Federal agency is involved inan undertaking, some or all the agenciesmay designate a lead Federal agency,which shall identify the appropriateofficial to serve as the agency officialwho shall act on their behalf, fulfilling

their collective responsibilities undersection 106. Those Federal agenciesthat do not designate a lead Federalagency remain individually responsiblefor their compliance with this part.

(3) Use of contractors. Consistentwith applicable conflict of interest laws,the agency official may use the servicesof applicants, consultants, or designeesto prepare information, analyses andrecommendations under this part. Theagency official remains legallyresponsible for all required findings anddeterminations. If a document or studyis prepared by a non-Federal party, the

agency official is responsible forensuring that its content meetsapplicable standards and guidelines.

(4) Consultation. The agency officialshall involve the consulting partiesdescribed in paragraph (c) of thissection in findings and determinationsmade during the section 106 process.The agency official should planconsultations appropriate to the scale ofthe undertaking and the scope ofFederal involvement and coordinatedwith other requirements of otherstatutes, as applicable, such as theNational Environmental Policy Act, theNative American Graves Protection and

Repatriation Act, the American IndianReligious Freedom Act, theArcheological Resources Protection Actand agency-specific legislation. TheCouncil encourages the agency officialto use to the extent possible existingagency procedures and mechanisms tofulfill the consultation requirements ofthis part.

(b) Council. The Council issuesregulations to implement section 106,


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provides guidance and advice on theapplication of the procedures in thispart, and generally oversees theoperation of the section 106 process.The Council also consults with andcomments to agency officials onindividual undertakings and programsthat affect historic properties.

(1) Council entry into the section 106process. When the Council determinesthat its involvement is necessary toensure that the purposes of section 106and the act are met, the Council mayenter the section 106 process. Criteriaguiding Council decisions to enter thesection 106 process are found inappendix A to this part. The Councilwill document that the criteria havebeen met and notify the parties to thesection 106 process as required by thispart.

(2) Council assistance. Participantsin the section 106 process may seek

advice, guidance and assistance fromthe Council on the application of thispart to specific undertakings, includingthe resolution of disagreements,whether or not the Council is formallyinvolved in the review of theundertaking. If questions ariseregarding the conduct of the section 106process, participants are encouraged toobtain the Council's advice oncompleting the process.

(c) Consulting parties. The followingparties have consultative roles in thesection 106 process.

(1) State historic preservation officer.

(i) The State historic preservationofficer (SHPO) reflects the interests ofthe State and its citizens in thepreservation of their cultural heritage.In accordance with section 101(b)(3) ofthe act, the SHPO advises and assistsFederal agencies in carrying out theirsection 106 responsibilities andcooperates with such agencies, localgovernments and organizations andindividuals to ensure that historicproperties are taking into considerationat all levels of planning anddevelopment.

(ii) If an Indian tribe has assumedthe functions of the SHPO in the section

106 process for undertakings on triballands, the SHPO shall participate as aconsulting party if the undertaking takesplace on tribal lands but affects historicproperties off tribal lands, if requestedin accordance with 800.3(c)(1), or ifthe Indian tribe agrees to include theSHPO pursuant to 800.3(f)(3).

(2)Indian tribes and NativeHawaiian organizations.

(i) Consultation on tribal lands.

(A) Tribal historic preservationofficer. For a tribe that has assumed theresponsibilities of the SHPO for section106 on tribal lands under section101(d)(2) of the act, the tribal historicpreservation officer (THPO) appointedor designated in accordance with the actis the official representative for thepurposes of section 106. The agencyofficial shall consult with the THPO inlieu of the SHPO regarding undertakingsoccurring on or affecting historicproperties on tribal lands.

(B) Tribes that have not assumedSHPO functions. When an Indian tribehas not assumed the responsibilities ofthe SHPO for section 106 on tribal landsunder section 101(d)(2) of the act, theagency official shall consult with arepresentative designated by suchIndian tribe in addition to the SHPOregarding undertakings occurring on oraffecting historic properties on its tribal

lands. Such Indian tribes have the samerights of consultation and concurrencethat the THPOs are given throughoutsubpart B of this part, except that suchconsultations shall be in addition to andon the same basis as consultation withthe SHPO.

(ii) Consultation on historicproperties of significance to Indian tribesand Native Hawaiian organizations.Section 101(d)(6)(B) of the act requiresthe agency official to consult with anyIndian tribe or Native Hawaiianorganization that attaches religious andcultural significance to historic

properties that may be affected by anundertaking. This requirement appliesregardless of the location of the historicproperty. Such Indian tribe or NativeHawaiian organization shall be aconsulting party.

(A) The agency official shall ensurethat consultation in the section 106process provides the Indian tribe orNative Hawaiian organization areasonable opportunity to identify itsconcerns about historic properties,advise on the identification andevaluation of historic properties,including those of traditional religiousand cultural importance, articulate its

views on the undertaking's effects onsuch properties, and participate in theresolution of adverse effects. It is theresponsibility of the agency official tomake a reasonable and good faith effortto identify Indian tribes and NativeHawaiian organizations that shall beconsulted in the section 106 process.Consultation should commence early inthe planning process, in order toidentify and discuss relevant

preservation issues and resolveconcerns about the confidentiality ofinformation on historic properties.

(B) The Federal Government has aunique legal relationship with Indiantribes set forth in the Constitution of theUnited States, treaties, statutes, andcourt decisions. Consultation withIndian tribes should be conducted in asensitive manner respectful of tribalsovereignty. Nothing in this part alters,amends, repeals, interprets or modifiestribal sovereignty, any treaty rights, orother rights of an Indian tribe, orpreempts, modifies or limits the exerciseof any such rights.

(C) Consultation with an Indiantribe must recognize the government-to-government relationship between theFederal Government and Indian tribes.The agency official shall consult withrepresentatives designated or identifiedby the tribal government or the

governing body of a Native Hawaiianorganization. Consultation with Indiantribes and Native Hawaiianorganizations should be conducted in amanner sensitive to the concerns andneeds of the Indian tribe or NativeHawaiian organization.

(D) When Indian tribes and NativeHawaiian organizations attach religiousand cultural significance to historicproperties off tribal lands, section101(d)(6)(B) of the act requires Federalagencies to consult with such Indiantribes and Native Hawaiianorganizations in the section 106 process.

Federal agencies should be aware thatfrequently historic properties ofreligious and cultural significance arelocated on ancestral, aboriginal, orceded lands of Indian tribes and NativeHawaiian organizations and shouldconsider that when complying with theprocedures in this part.

(E) An Indian tribe or a NativeHawaiian organization may enter intoan agreement with an agency officialthat specifies how they will carry outresponsibilities under this part,including concerns over theconfidentiality of information. Anagreement may cover all aspects of tribal

participation in the section 106 process,provided that no modification may bemade in the roles of other parties to thesection 106 process without theirconsent. An agreement may grant theIndian tribe or Native Hawaiianorganization additional rights toparticipate or concur in agencydecisions in the section 106 processbeyond those specified in subpart B ofthis part. The agency official shall


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provide a copy of any such agreement tothe Council and the appropriate SHPOs.

(F) An Indian tribe that has notassumed the responsibilities of theSHPO for section 106 on tribal landsunder section 101(d)(2) of the act maynotify the agency official in writing thatit is waiving its rights under 800.6(c)(1) to execute a memorandum ofagreement.

(3)Representatives of localgovernments. A representative of a localgovernment with jurisdiction over thearea in which the effects of anundertaking may occur is entitled toparticipate as a consulting party. Underother provisions of Federal law, thelocal government may be authorized toact as the agency official for purposes ofsection 106.

(4)Applicants for Federal assistance,permits, licenses and other approvals.An applicant for Federal assistance or

for a Federal permit, license or otherapproval is entitled to participate as aconsulting party as defined in this part.The agency official may authorize anapplicant or group of applicants toinitiate consultation with theSHPO/THPO and others, but remainslegally responsible for all findings anddeterminations charged to the agencyofficial. The agency official shall notifythe SHPO/THPO when an applicant orgroup of applicants is so authorized. AFederal agency may authorize allapplicants in a specific programpursuant to this section by providing

notice to all SHPO/THPOs. Federalagencies that provide authorizations toapplicants remain responsible for theirgovernment to government relationshipswith Indian tribes.

(5)Additional consulting parties.Certain individuals and organizationswith a demonstrated interest in theundertaking may participate asconsulting parties due to the nature oftheir legal or economic relation to theundertaking or affected properties, ortheir concern with the undertaking'seffects on historic properties.

(d) The public.(1)Nature of involvement. The views

of the public are essential to informedFederal decisionmaking in the section106 process. The agency official shallseek and consider the views of thepublic in a manner that reflects thenature and complexity of theundertaking and its effects on historicproperties, the likely interest of thepublic in the effects on historicproperties, confidentiality concerns ofprivate individuals and businesses, and

the relationship of the Federalinvolvement to the undertaking.

(2)Providing notice and information.The agency official must, except whereappropriate to protect confidentialityconcerns of affected parties, provide thepublic with information about anundertaking and its effects on historicproperties and seek public commentand input. Members of the public mayalso provide views on their owninitiative for the agency official toconsider in decisionmaking.

(3) Use of agency procedures. Theagency official may use the agency'sprocedures for public involvementunder the National EnvironmentalPolicy Act or other programrequirements in lieu of publicinvolvement requirements in subpart Bof this part, if they provide adequateopportunities for public involvementconsistent with this subpart.

Subpart B-The section 106 Process

800.3 Initiation of the section 106process.

(a)Establish undertaking. Theagency official shall determine whetherthe proposed Federal action is anundertaking as defined in 800.16(y)and, if so, whether it is a type of activitythat has the potential to cause effects onhistoric properties.

(1)No potential to cause effects. Ifthe undertaking is a type of activity thatdoes not have the potential to cause

effects on historic properties, assumingsuch historic properties were present,the agency official has no furtherobligations under section 106 or thispart.

(2)Program alternatives. If thereview of the undertaking is governedby a Federal agency program alternativeestablished under 800.14 or aprogrammatic agreement in existencebefore January 11, 2001, the agencyofficial shall follow the programalternative.

(b) Coordinate with other reviews.The agency official should coordinatethe steps of the section 106 process, as

appropriate, with the overall planningschedule for the undertaking and withany reviews required under otherauthorities such as the NationalEnvironmental Policy Act, the NativeAmerican Graves Protection andRepatriation Act, the American IndianReligious Freedom Act, theArcheological Resources Protection Actand agency-specific legislation, such assection 4(f) of the Department of

Transportation Act. Where consistentwith the procedures in this subpart, theagency official may use informationdeveloped for other reviews underFederal, State or tribal law to meet therequirements of section 106.

(c)Identify the appropriate SHPOand/or THPO. As part of its initialplanning, the agency official shalldetermine the appropriate SHPO orSHPOs to be involved in the section 106process. The agency official shall alsodetermine whether the undertaking mayoccur on or affect historic properties onany tribal lands and, if so, whether aTHPO has assumed the duties of theSHPO. The agency official shall theninitiate consultation with theappropriate officer or officers.

(1) Tribal assumption of SHPOresponsibilities. Where an Indian tribehas assumed the section 106responsibilities of the SHPO on tribal

lands pursuant to section 101(d)(2) ofthe act, consultation for undertakingsoccurring on tribal land or for effects ontribal land is with the THPO for theIndian tribe in lieu of the SHPO.Section 101(d)(2)(D)(iii) of the actauthorizes owners of properties on triballands which are neither owned by amember of the tribe nor held in trust bythe Secretary for the benefit of the tribeto request the SHPO to participate in thesection 106 process in addition to theTHPO.

(2) Undertakings involving more thanone State. If more than one State is

involved in an undertaking, theinvolved SHPOs may agree to designatea lead SHPO to act on their behalf in thesection 106 process, including takingactions that would conclude the section106 process under this subpart.

(3) Conducting consultation. Theagency official should consult with theSHPO/THPO in a manner appropriate tothe agency planning process for theundertaking and to the nature of theundertaking and its effects on historicproperties.

(4)Failure of the SHPO/THPO torespond. If the SHPO/THPO fails torespond within 30 days of receipt of a

request for review of a finding ordetermination, the agency official mayeither proceed to the next step in theprocess based on the finding ordetermination or consult with theCouncil in lieu of the SHPO/THPO. Ifthe SHPO/THPO re-enters the section106 process, the agency official shallcontinue the consultation without beingrequired to reconsider previous findingsor determinations.


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(d) Consultation on tribal lands.Where the Indian tribe has not assumedthe responsibilities of the SHPO ontribal lands, consultation with theIndian tribe regarding undertakingsoccurring on such tribe's lands or effectson such tribal lands shall be in additionto and on the same basis as consultationwith the SHPO. If the SHPO haswithdrawn from the process, the agencyofficial may complete the section 106process with the Indian tribe and theCouncil, as appropriate. An Indian tribemay enter into an agreement with aSHPO or SHPOs specifying the SHPO'sparticipation in the section 106 processfor undertakings occurring on oraffecting historic properties on triballands.

(e)Plan to involve the public. Inconsultation with the SHPO/THPO, theagency official shall plan for involvingthe public in the section 106 process.

The agency official shall identify theappropriate points for seeking publicinput and for notifying the public ofproposed actions, consistent with 800.2(d).

(f)Identify other consulting parties.In consultation with the SHPO/THPO,the agency official shall identify anyother parties entitled to be consultingparties and invite them to participate assuch in the section 106 process. Theagency official may invite others toparticipate as consulting parties as thesection 106 process moves forward.

(1)Involving local governments and

applicants. The agency official shallinvite any local governments orapplicants that are entitled to beconsulting parties under 800.2(c).

(2)Involving Indian tribes andNative Hawaiian organizations. Theagency official shall make a reasonableand good faith effort to identify anyIndian tribes or Native Hawaiianorganizations that might attach religiousand cultural significance to historicproperties in the area of potential effectsand invite them to be consulting parties.Such Indian tribe or Native Hawaiianorganization that requests in writing tobe a consulting party shall be one.

(3)Requests to be consulting parties.The agency official shall consider allwritten requests of individuals andorganizations to participate asconsulting parties and, in consultationwith the SHPO/THPO and any Indiantribe upon whose tribal lands anundertaking occurs or affects historicproperties, determine which should beconsulting parties.

(g)Expediting consultation. Aconsultation by the agency official withthe SHPO/THPO and other consultingparties may address multiple steps in 800.3 through 800.6 where the agencyofficial and the SHPO/THPO agree it isappropriate as long as the consultingparties and the public have an adequateopportunity to express their views asprovided in 800.2(d).

800.4 Identification of historicproperties.

(a)Determine scope of identificationefforts. In consultation with theSHPO/THPO, the agency official shall:

(1) Determine and document thearea of potential effects, as defined in 800.16(d);

(2) Review existing information onhistoric properties within the area ofpotential effects, including any dataconcerning possible historic properties

not yet identified;(3) Seek information, as appropriate,

from consulting parties, and otherindividuals and organizations likely tohave knowledge of, or concerns with,historic properties in the area, andidentify issues relating to theundertaking's potential effects onhistoric properties; and

(4) Gather information from anyIndian tribe or Native Hawaiianorganization identified pursuant to 800.3(f) to assist in identifyingproperties, including those located offtribal lands, which may be of religious

and cultural significance to them andmay be eligible for the National Register,recognizing that an Indian tribe orNative Hawaiian organization may bereluctant to divulge specific informationregarding the location, nature, andactivities associated with such sites.The agency official should addressconcerns raised about confidentialitypursuant to 800.11(c).

(b)Identify historic properties. Basedon the information gathered underparagraph (a) of this section, and inconsultation with the SHPO/THPO andany Indian tribe or Native Hawaiianorganization that might attach religious

and cultural significance to propertieswithin the area of potential effects, theagency official shall take the stepsnecessary to identify historic propertieswithin the area of potential effects.

(1)Level of effort. The agencyofficial shall make a reasonable andgood faith effort to carry out appropriateidentification efforts, which mayinclude background research,consultation, oral history interviews,

sample field investigation, and fieldsurvey. The agency official shall takeinto account past planning, researchand studies, the magnitude and natureof the undertaking and the degree ofFederal involvement, the nature andextent of potential effects on historicproperties, and the likely nature andlocation of historic properties within thearea of potential effects. The Secretary'sStandards and Guidelines forIdentification provide guidance on thissubject. The agency official should alsoconsider other applicable professional,State, tribal and local laws, standardsand guidelines. The agency officialshall take into account anyconfidentiality concerns raised byIndian tribes or Native Hawaiianorganizations during the identificationprocess.

(2)Phased identification andevaluation. Where alternatives under

consideration consist of corridors orlarge land areas, or where access toproperties is restricted, the agencyofficial may use a phased process toconduct identification and evaluationefforts. The agency official may alsodefer final identification and evaluationof historic properties if it is specificallyprovided for in a memorandum ofagreement executed pursuant to 800.6,a programmatic agreement executedpursuant to 800.14 (b), or thedocuments used by an agency official tocomply with the NationalEnvironmental Policy Act pursuant to

800.8. The process should establish thelikely presence of historic propertieswithin the area of potential effects foreach alternative or inaccessible areathrough background research,consultation and an appropriate level offield investigation, taking into accountthe number of alternatives underconsideration, the magnitude of theundertaking and its likely effects, andthe views of the SHPO/THPO and anyother consulting parties. As specificaspects or locations of an alternative arerefined or access is gained, the agencyofficial shall proceed with theidentification and evaluation of historic

properties in accordance withparagraphs (b)(1) and (c) of this section.

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

In consultation with the SHPO/THPOand any Indian tribe or Native Hawaiianorganization that attaches religious andcultural significance to identifiedproperties and guided by the Secretary'sStandards and Guidelines forEvaluation, the agency official shall


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apply the National Register criteria (36CFR part 63) to properties identifiedwithin the area of potential effects thathave not been previously evaluated forNational Register eligibility. Thepassage of time, changing perceptions ofsignificance, or incomplete priorevaluations may require the agencyofficial to reevaluate propertiespreviously determined eligible orineligible. The agency official shallacknowledge that Indian tribes andNative Hawaiian organizations possessspecial expertise in assessing theeligibility of historic properties that maypossess religious and culturalsignificance to them.

(2)Determine whether a property iseligible. If the agency officialdetermines any of the National Registercriteria are met and the SHPO/THPOagrees, the property shall be consideredeligible for the National Register for

section 106 purposes. If the agencyofficial determines the criteria are notmet and the SHPO/THPO agrees, theproperty shall be considered noteligible. If the agency official and theSHPO/THPO do not agree, or if theCouncil or the Secretary so request, theagency official shall obtain adetermination of eligibility from theSecretary pursuant to 36 CFR part 63. Ifan Indian tribe or Native Hawaiianorganization that attaches religious andcultural significance to a property offtribal lands does not agree, it may askthe Council to request the agency

official to obtain a determination ofeligibility.(d)Results of identification and

evaluation.(1)No historic properties affected. If

the agency official finds that either thereare no historic properties present orthere are historic properties present butthe undertaking will have no effectupon them as defined in 800.16(i), theagency official shall providedocumentation of this finding, as setforth in 800.11(d), to the SHPO/THPO.The agency official shall notify allconsulting parties, including Indiantribes and Native Hawaiian

organizations, and make thedocumentation available for publicinspection prior to approving theundertaking.

(i) If the SHPO/THPO, or theCouncil if it has entered the section 106process, does not object within 30 daysof receipt of an adequately documentedfinding, the agency official'sresponsibilities under section 106 arefulfilled.

(ii) If the SHPO/THPO objectswithin 30 days of receipt of anadequately documented finding, theagency official shall either consult withthe objecting party to resolve thedisagreement, or forward the findingand supporting documentation to theCouncil and request that the Councilreview the finding pursuant toparagraphs (d)(1)(iv)(A) through(d)(1)(iv)(C) of this section. When anagency official forwards such requestsfor review to the Council, the agencyofficial shall concurrently notify allconsulting parties that such a requesthas been made and make the requestdocumentation available to the public.

(iii) During the SHPO/THPO 30 dayreview period, the Council may object tothe finding and provide its opinionregarding the finding to the agencyofficial and, if the Council determinesthe issue warrants it, the head of the

agency. A Council decision to provideits opinion to the head of an agencyshall be guided by the criteria inappendix A to this part. The agencyshall then proceed according toparagraphs (d)(1)(iv)(B) and (d)(1)(iv)(C)of this section.

(iv)(A) Upon receipt of the requestunder paragraph (d)(1)(ii) of thissection, the Council will have 30 days inwhich to review the finding and providethe agency official and, if the Councildetermines the issue warrants it, thehead of the agency with the Council'sopinion regarding the finding. A

Council decision to provide its opinionto the head of an agency shall be guidedby the criteria in appendix A to thispart. If the Council does not respondwithin 30 days of receipt of the request,the agency official's responsibilitiesunder section 106 are fulfilled.

(B) The person to whom the Counciladdresses its opinion (the agency officialor the head of the agency) shall take intoaccount the Council's opinion before theagency reaches a final decision on thefinding.

(C) The person to whom the Counciladdresses its opinion (the agency officialor the head of the agency) shall then

prepare a summary of the decision thatcontains the rationale for the decisionand evidence of consideration of theCouncil's opinion, and provide it to theCouncil, the SHPO/THPO, and theconsulting parties. The head of theagency may delegate his or her dutiesunder this paragraph to the agency'ssenior policy official. If the agencyofficial's initial finding will be revised,the agency official shall proceed in

accordance with the revised finding. Ifthe final decision of the agency is toaffirm the initial agency finding of nohistoric properties affected, once thesummary of the decision has been sentto the Council, the SHPO/THPO, andthe consulting parties, the agencyofficial's responsibilities under section106 are fulfilled.

(D) The Council shall retain a recordof agency responses to Council opinionson their findings of no historicproperties affected. The Council shallmake this information available to thepublic.

(2)Historic properties affected. If theagency official finds that there arehistoric properties which may beaffected by the undertaking, the agencyofficial shall notify all consultingparties, including Indian tribes orNative Hawaiian organizations, invitetheir views on the effects and assess

adverse effects, if any, in accordancewith 800.5.

800.5 Assessment of adverse effects. (a)Apply criteria of adverse effect. In

consultation with the SHPO/THPO andany Indian tribe or Native Hawaiianorganization that attaches religious andcultural significance to identifiedhistoric properties, the agency officialshall apply the criteria of adverse effectto historic properties within the area ofpotential effects. The agency officialshall consider any views concerningsuch effects which have been provided

by consulting parties and the public.(1) Criteria of adverse effect. Anadverse effect is found when anundertaking may alter, directly orindirectly, any of the characteristics of ahistoric property that qualify theproperty for inclusion in the NationalRegister in a manner that woulddiminish the integrity of the property'slocation, design, setting, materials,workmanship, feeling, or association.Consideration shall be given to allqualifying characteristics of a historicproperty, including those that may havebeen identified subsequent to theoriginal evaluation of the property's

eligibility for the National Register.Adverse effects may include reasonablyforeseeable effects caused by theundertaking that may occur later intime, be farther removed in distance orbe cumulative.

(2)Examples of adverse effects.Adverse effects on historic propertiesinclude, but are not limited to:

(i) Physical destruction of or damageto all or part of the property;


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(ii) Alteration of a property,including restoration, rehabilitation,repair, maintenance, stabilization,hazardous material remediation andprovision of handicapped access, that isnot consistent with the SecretarysStandards for the Treatment of HistoricProperties (36 CFR part 68) andapplicable guidelines;

(iii) Removal of the property from itshistoric location;

(iv) Change of the character of thepropertys use or of physical featureswithin the property's setting thatcontribute to its historic significance;

(v) Introduction of visual,atmospheric or audible elements thatdiminish the integrity of the property'ssignificant historic features;

(vi) Neglect of a property whichcauses its deterioration, except wheresuch neglect and deterioration arerecognized qualities of a property of

religious and cultural significance to anIndian tribe or Native Hawaiianorganization; and

(vii) Transfer, lease, or sale ofproperty out of Federal ownership orcontrol without adequate and legallyenforceable restrictions or conditions toensure long-term preservation of theproperty's historic significance.

(3)Phased application of criteria.Where alternatives under considerationconsist of corridors or large land areas,or where access to properties isrestricted, the agency official may use aphased process in applying the criteria

of adverse effect consistent with phasedidentification and evaluation effortsconducted pursuant to 800.4(b)(2).

(b)Finding of no adverse effect. Theagency official, in consultation with theSHPO/THPO, may propose a finding ofno adverse effect when theundertaking's effects do not meet thecriteria of paragraph (a)(1) of thissection or the undertaking is modifiedor conditions are imposed, such as thesubsequent review of plans forrehabilitation by the SHPO/THPO toensure consistency with the SecretarysStandards for the Treatment of HistoricProperties (36 CFR part 68) and

applicable guidelines, to avoid adverseeffects.

(c) Consulting party review. If theagency official proposes a finding of noadverse effect, the agency official shallnotify all consulting parties of thefinding and provide them with thedocumentation specified in 800.11(e).The SHPO/THPO shall have 30 daysfrom receipt to review the finding.

(1)Agreement with, or no objectionto, finding. Unless the Council isreviewing the finding pursuant toparagraph (c)(3) of this section, theagency official may proceed after theclose of the 30 day review period if theSHPO/THPO has agreed with thefinding or has not provided a response,and no consulting party has objected.The agency official shall then carry outthe undertaking in accordance withparagraph (d)(1) of this section.

(2)Disagreement with finding.(i) If within the 30 day review period

the SHPO/THPO or any consulting partynotifies the agency official in writingthat it disagrees with the finding andspecifies the reasons for thedisagreement in the notification, theagency official shall either consult withthe party to resolve the disagreement, orrequest the Council to review thefinding pursuant to paragraphs (c)(3)(i)

and (c)(3)(ii) of this section. The agencyofficial shall include with such requestthe documentation specified in 800.11(e). The agency official shall alsoconcurrently notify all consultingparties that such a submission has beenmade and make the submissiondocumentation available to the public.

(ii) If within the 30 day reviewperiod the Council provides the agencyofficial and, if the Council determinesthe issue warrants it, the head of theagency, with a written opinion objectingto the finding, the agency shall thenproceed according to paragraph (c)(3)(ii)

of this section. A Council decision toprovide its opinion to the head of anagency shall be guided by the criteria inappendix A to this part.

(iii) The agency official should seekthe concurrence of any Indian tribe orNative Hawaiian organization that hasmade known to the agency official thatit attaches religious and culturalsignificance to a historic propertysubject to the finding. If such Indiantribe or Native Hawaiian organizationdisagrees with the finding, it may withinthe 30 day review period specify thereasons for disagreeing with the f indingand request the Council to review and

object to the finding pursuant toparagraph (c)(2)(ii) of this section.

(3) Council review of findings.(i) When a finding is submitted to

the Council pursuant to paragraph(c)(2)(i) of this section, the Council shallreview the finding and provide theagency official and, if the Councildetermines the issue warrants it, thehead of the agency with its opinion as towhether the adverse effect criteria have

been correctly applied. A Councildecision to provide its opinion to thehead of an agency shall be guided by thecriteria in appendix A to this part. TheCouncil will provide its opinion within15 days of receiving the documentedfinding from the agency official. TheCouncil at its discretion may extend thattime period for 15 days, in which case itshall notify the agency of suchextension prior to the end of the initial15 day period. If the Council does notrespond within the applicable timeperiod, the agency official'sresponsibilities under section 106 arefulfilled.

(ii)(A) The person to whom theCouncil addresses its opinion (theagency official or the head of theagency) shall take into account theCouncil's opinion in reaching a finaldecision on the finding.

(B) The person to whom the Council

addresses its opinion (the agency officialor the head of the agency) shall preparea summary of the decision that containsthe rationale for the decision andevidence of consideration of theCouncil's opinion, and provide it to theCouncil, the SHPO/THPO, and theconsulting parties. The head of theagency may delegate his or her dutiesunder this paragraph to the agency'ssenior policy official. If the agencyofficial's initial finding will be revised,the agency official shall proceed inaccordance with the revised finding. Ifthe final decision of the agency is to

affirm the initial finding of no adverseeffect, once the summary of the decisionhas been sent to the Council, theSHPO/THPO, and the consulting parties,the agency official's responsibilitiesunder section 106 are fulfilled.

(C) The Council shall retain a recordof agency responses to Council opinionson their findings of no adverse effects.The Council shall make this informationavailable to the public.

(d)Results of assessment.(1)No adverse effect. The agency

official shall maintain a record of thefinding and provide information on thefinding to the public on request,

consistent with the confidentialityprovisions of 800.11(c).Implementation of the undertaking inaccordance with the finding asdocumented fulfills the agency official'sresponsibilities under section 106 andthis part. If the agency official will notconduct the undertaking as proposed inthe finding, the agency official shallreopen consultation under paragraph (a)of this section.


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(2)Adverse effect. If an adverseeffect is found, the agency official shallconsult further to resolve the adverseeffect pursuant to 800.6.

800.6 Resolution of adverse effects.(a) Continue consultation. The

agency official shall consult with theSHPO/THPO and other consultingparties, including Indian tribes andNative Hawaiian organizations, todevelop and evaluate alternatives ormodifications to the undertaking thatcould avoid, minimize or mitigateadverse effects on historic properties.

(1)Notify the Council and determineCouncil participation. The agencyofficial shall notify the Council of theadverse effect finding by providing thedocumentation specified in 800.11(e).

(i) The notice shall invite theCouncil to participate in theconsultation when:

(A) The agency official wants theCouncil to participate;

(B) The undertaking has an adverseeffect upon a National HistoricLandmark; or

(C) A programmatic agreementunder 800.14(b) will be prepared;

(ii) The SHPO/THPO, an Indian tribeor Native Hawaiian organization, or anyother consulting party may at any timeindependently request the Council toparticipate in the consultation.

(iii) The Council shall advise theagency official and all consulting partieswhether it will participate within 15

days of receipt of notice or otherrequest. Prior to entering the process,the Council shall provide written noticeto the agency official and the consultingparties that its decision to participatemeets the criteria set forth in appendixA to this part. The Council shall alsoadvise the head of the agency of itsdecision to enter the process.Consultation with Council participationis conducted in accordance withparagraph (b)(2) of this section.

(iv) If the Council does not join theconsultation, the agency official shallproceed with consultation inaccordance with paragraph (b)(1) of this

section.(2)Involve consulting parties. In

addition to the consulting partiesidentified under 800.3(f), the agencyofficial, the SHPO/THPO and theCouncil, if participating, may agree toinvite other individuals or organizationsto become consulting parties. Theagency official shall invite anyindividual or organization that willassume a specific role or responsibility

in a memorandum of agreement toparticipate as a consulting party.

(3)Provide documentation. Theagency official shall provide to allconsulting parties the documentationspecified in 800.11(e), subject to theconfidentiality provisions of 800.11(c),and such other documentation as maybe developed during the consultation toresolve adverse effects.

(4)Involve the public. The agencyofficial shall make information availableto the public, including thedocumentation specified in 800.11(e),subject to the confidentiality provisionsof 800.11(c). The agency official shallprovide an opportunity for members ofthe public to express their views onresolving adverse effects of theundertaking. The agency official shoulduse appropriate mechanisms, taking intoaccount the magnitude of theundertaking and the nature of its effects

upon historic properties, the likelyeffects on historic properties, and therelationship of the Federal involvementto the undertaking to ensure that thepublic's views are considered in theconsultation. The agency officialshould also consider the extent of noticeand information concerning historicpreservation issues afforded the publicat earlier steps in the section 106process to determine the appropriatelevel of public involvement whenresolving adverse effects so that thestandards of 800.2(d) are met.

(5)Restrictions on disclosure of

information. Section 304 of the act andother authorities may limit thedisclosure of information underparagraphs (a)(3) and (a)(4) of thissection. If an Indian tribe or NativeHawaiian organization objects to thedisclosure of information or if theagency official believes that there areother reasons to withhold information,the agency official shall comply with 800.11(c) regarding the disclosure ofsuch information.

(b)Resolve adverse effects.(1)Resolution without the Council.(i) The agency official shall consult

with the SHPO/THPO and other

consulting parties to seek ways to avoid,minimize or mitigate the adverse effects.

(ii) The agency official may usestandard treatments established by theCouncil under 800.14(d) as a basis fora memorandum of agreement.

(iii) If the Council decides to join theconsultation, the agency official shallfollow paragraph (b)(2) of this section.

(iv) If the agency official and theSHPO/THPO agree on how the adverse

effects will be resolved, they shallexecute a memorandum of agreement.The agency official must submit a copyof the executed memorandum ofagreement, along with thedocumentation specified in 800.11(f),to the Council prior to approving theundertaking in order to meet therequirements of section 106 and thissubpart.

(v) If the agency official, and theSHPO/THPO fail to agree on the termsof a memorandum of agreement, theagency official shall request the Councilto join the consultation and provide theCouncil with the documentation setforth in 800.11(g). If the Councildecides to join the consultation, theagency official shall proceed inaccordance with paragraph (b)(2) of thissection. If the Council decides not tojoin the consultation, the Council willnotify the agency and proceed to

comment in accordance with 800.7(c).(2)Resolution with Council

participation. If the Council decides toparticipate in the consultation, theagency official shall consult with theSHPO/THPO, the Council, and otherconsulting parties, including Indiantribes and Native Hawaiianorganizations under 800.2(c)(3), toseek ways to avoid, minimize ormitigate the adverse effects. If theagency official, the SHPO/THPO, andthe Council agree on how the adverseeffects will be resolved, they shallexecute a memorandum of agreement.

(c)Memorandum of agreement. Amemorandum of agreement executedand implemented pursuant to thissection evidences the agency official'scompliance with section 106 and thispart and shall govern the undertakingand all of its parts. The agency officialshall ensure that the undertaking iscarried out in accordance with thememorandum of agreement.

(1) Signatories. The signatories havesole authority to execute, amend orterminate the agreement in accordancewith this subpart.

(i) The agency official and theSHPO/THPO are the signatories to a

memorandum of agreement executedpursuant to paragraph (b)(1) of thissection.

(ii) The agency official, theSHPO/THPO, and the Council are thesignatories to a memorandum ofagreement executed pursuant toparagraph (b)(2) of this section.

(iii) The agency official and theCouncil are signatories to a


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memorandum of agreement executedpursuant to 800.7(a)(2).

(2)Invited signatories.(i) The agency official may invite

additional parties to be signatories to amemorandum of agreement. Any suchparty that signs the memorandum ofagreement shall have the same rightswith regard to seeking amendment ortermination of the memorandum ofagreement as other signatories.

(ii) The agency official may invite anIndian tribe or Native Hawaiianorganization that attaches religious andcultural significance to historicproperties located off tribal lands to be asignatory to a memorandum ofagreement concerning such properties.

(iii) The agency official shouldinvite any party that assumes aresponsibility under a memorandum ofagreement to be a signatory.

(iv) The refusal of any party invited

to become a signatory to a memorandumof agreement pursuant to paragraph(c)(2) of this section does not invalidatethe memorandum of agreement.

(3) Concurrence by others. Theagency official may invite all consultingparties to concur in the memorandum ofagreement. The signatories may agree toinvite others to concur. The refusal ofany party invited to concur in thememorandum of agreement does notinvalidate the memorandum ofagreement.

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

appropriate, a memorandum ofagreement shall include a provision formonitoring and reporting on itsimplementation.

(5)Duration. A memorandum ofagreement shall include provisions fortermination and for reconsideration ofterms if the undertaking has not beenimplemented within a specified time.

(6)Discoveries. Where thesignatories agree it is appropriate, amemorandum of agreement shallinclude provisions to deal with thesubsequent discovery or identificationof additional historic properties affectedby the undertaking.

(7)Amendments. The signatories toa memorandum of agreement mayamend it. If the Council was not asignatory to the original agreement andthe signatories execute an amendedagreement, the agency official shall fileit with the Council.

(8) Termination. If any signatorydetermines that the terms of amemorandum of agreement cannot be orare not being carried out, the signatories

shall consult to seek amendment of theagreement. If the agreement is notamended, any signatory may terminateit. The agency official shall eitherexecute a memorandum of agreementwith signatories under paragraph (c)(1)of this section or request the commentsof the Council under 800.7(a).

(9) Copies. The agency official shallprovide each consulting party with acopy of any memorandum of agreementexecuted pursuant to this subpart.

800.7 Failure to resolve adverseeffects.

(a) Termination of consultation.After consulting to resolve adverseeffects pursuant to 800.6(b)(2), theagency official, the SHPO/THPO, or theCouncil may determine that furtherconsultation will not be productive andterminate consultation. Any party thatterminates consultation shall notify the

other consulting parties and providethem the reasons for terminating inwriting.

(1) If the agency official terminatesconsultation, the head of the agency oran Assistant Secretary or other officerwith major department-wide or agency-wide responsibilities shall request thatthe Council comment pursuant toparagraph (c) of this section and shallnotify all consulting parties of therequest.

(2) If the SHPO terminatesconsultation, the agency official and theCouncil may execute a memorandum of

agreement without the SHPOsinvolvement.(3) If a THPO terminates

consultation regarding an undertakingoccurring on or affecting historicproperties on its tribal lands, theCouncil shall comment pursuant toparagraph (c) of this section.

(4) If the Council terminatesconsultation, the Council shall notifythe agency official, the agencys Federalpreservation officer and all consultingparties of the termination and commentunder paragraph (c) of this section. TheCouncil may consult with the agencysFederal preservation officer prior to

terminating consultation to seek toresolve issues concerning theundertaking and its effects on historicproperties.

(b) Comments without termination.The Council may determine that it isappropriate to provide additionaladvisory comments upon anundertaking for which a memorandumof agreement will be executed. TheCouncil shall provide them to the

agency official when it executes thememorandum of agreement.

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

provide an opportunity for the agencyofficial, all consulting parties, and thepublic to provide their views within thetime frame for developing its comments.Upon request of the Council, the agencyofficial shall provide additional existinginformation concerning the undertakingand assist the Council in arranging anonsite inspection and an opportunity forpublic participation.

(2) Timing. The Council shalltransmit its comments within 45 days ofreceipt of a request under paragraph(a)(1) or (a)(3) of this section or 800.8(c)(3), or termination by theCouncil under 800.6(b)(1)(v) orparagraph (a)(4) of this section, unlessotherwise agreed to by the agencyofficial.

(3) Transmittal. The Council shallprovide its comments to the head of theagency requesting comment with copiesto the agency official, the agency'sFederal preservation officer, allconsulting parties, and others asappropriate.

(4)Response to Council comment.The head of the agency shall take intoaccount the Council's comments inreaching a final decision on theundertaking. Section 110(l) of the actdirects that the head of the agency shalldocument this decision and may notdelegate his or her responsibilities

pursuant to section 106. Documentingthe agency head's decision shallinclude:

(i) Preparing a summary of thedecision that contains the rationale forthe decision and evidence ofconsideration of the Council's commentsand providing it to the Council prior toapproval of the undertaking;

(ii) Providing a copy of the summaryto all consulting parties; and

(iii) Notifying the public and makingthe record available for publicinspection.

800.8 Coordination With the

National Environmental Policy Act.(a) General principles.(1)Early coordination. Federal

agencies are encouraged to coordinatecompliance with section 106 and theprocedures in this part with any stepstaken to meet the requirements of theNational Environmental Policy Act(NEPA). Agencies should consider theirsection 106 responsibilities as early aspossible in the NEPA process, and plan


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their public participation, analysis, andreview in such a way that they can meetthe purposes and requirements of bothstatutes in a timely and efficientmanner. The determination of whetheran undertaking is a major Federalaction significantly affecting the qualityof the human environment, andtherefore requires preparation of anenvironmental impact statement (EIS)under NEPA, should includeconsideration of the undertaking's likelyeffects on historic properties. A findingof adverse effect on a historic propertydoes not necessarily require an EISunder NEPA.

(2) Consulting party roles.SHPO/THPOs, Indian tribes and NativeHawaiian organizations, otherconsulting parties, and organizationsand individuals who may be concernedwith the possible effects of an agencyaction on historic properties should be

prepared to consult with agencies earlyin the NEPA process, when the purposeof and need for the proposed action aswell as the widest possible range ofalternatives are under consideration.

(3)Inclusion of historic preservationissues. Agency officials should ensurethat preparation of an environmentalassessment (EA) and finding of nosignificant impact (FONSI) or an EISand record of decision (ROD) includesappropriate scoping, identification ofhistoric properties, assessment of effectsupon them, and consultation leading toresolution of any adverse effects.

(b) Actions categorically excludedunder NEPA. If a project, activity orprogram is categorically excluded fromNEPA review under an agency's NEPAprocedures, the agency official shalldetermine if it still qualifies as anundertaking requiring review undersection 106 pursuant to 800.3(a). If so,the agency official shall proceed withsection 106 review in accordance withthe procedures in this subpart.

(c) Use of the NEPA process forsection 106 purposes. An agency officialmay use the process and documentationrequired for the preparation of anEA/FONSI or an EIS/ROD to comply

with section 106 in lieu of theprocedures set forth in 800.3 through800.6 if the agency official has notifiedin advance the SHPO/THPO and theCouncil that it intends to do so and thefollowing standards are met.

(1) Standards for developingenvironmental documents to comply withSection 106. During preparation of theEA or draft EIS (DEIS) the agencyofficial shall:

(i) Identify consulting parties eitherpursuant to 800.3(f) or through theNEPA scoping process with resultsconsistent with 800.3(f);

(ii) Identify historic properties andassess the effects of the undertaking onsuch properties in a manner consistentwith the standards and criteria of 800.4 through 800.5, provided that thescope and timing of these steps may bephased to reflect the agency official'sconsideration of project alternatives inthe NEPA process and the effort iscommensurate with the assessment ofother environmental factors;

(iii) Consult regarding the effects ofthe undertaking on historic propertieswith the SHPO/THPO, Indian tribes andNative Hawaiian organizations thatmight attach religious and culturalsignificance to affected historicproperties, other consulting parties, andthe Council, where appropriate, during

NEPA scoping, environmental analysis,and the preparation of NEPAdocuments;

(iv) Involve the public inaccordance with the agency's publishedNEPA procedures; and

(v) Develop in consultation withidentified consulting parties alternativesand proposed measures that mightavoid, minimize or mitigate any adverseeffects of the undertaking on historicproperties and describe them in the EAor DEIS.

(2)Review of environmentaldocuments.

(i) The agency official shall submitthe EA, DEIS or EIS to the SHPO/THPO,Indian tribes and Native Hawaiianorganizations that might attach religiousand cultural significance to affectedhistoric properties, and other consultingparties prior to or when making thedocument available for public comment.If the document being prepared is aDEIS or EIS, the agency official shallalso submit it to the Council.

(ii) Prior to or within the timeallowed for public comment on thedocument, a SHPO/THPO, an Indiantribe or Native Hawaiian organization,another consulting party or the Council

may object to the agency official thatpreparation of the EA, DEIS or EIS hasnot met the standards set forth inparagraph (c)(1) of this section or thatthe substantive resolution of the effectson historic properties proposed in anEA, DEIS or EIS is inadequate. If theagency official receives such anobjection, the agency official shall referthe matter to the Council.

(3)Resolution of objections. Within30 days of the agency official's referralof an objection under paragraph(c)(2)(ii) of this section, the Councilshall review the objection and notify theagency as to its opinion on theobjection.

(i) If the Council agrees with theobjection:

(A) The Council shall provide theagency official and, if the Councildetermines the issue warrants it, thehead of the agency with the Council'sopinion regarding the objection. ACouncil decision to provide its opinionto the head of an agency shall be guidedby the criteria in appendix A to thispart. The person to whom the Counciladdresses its opinion (the agency officialor the head of the agency) shall take intoaccount the Council's opinion inreaching a final decision on the issue ofthe objection.

(B) The person to whom the Counciladdresses its opinion (the agency officialor the head of the agency) shall preparea summary of the decision that containsthe rationale for the decision andevidence of consideration of theCouncil's opinion, and provide it to theCouncil. The head of the agency maydelegate his or her duties under thisparagraph to the agency's senior PolicyOfficial. If the agency official's initialdecision regarding the matter that is thesubject of the objection will be revised,the agency official shall proceed inaccordance with the revised decision. If

the final decision of the agency is toaffirm the initial agency decision, oncethe summary of the final decision hasbeen sent to the Council, the agencyofficial shall continue its compliancewith this section.

(ii) If the Council disagrees with theobjection, the Council shall so notify theagency official, in which case theagency official shall continue itscompliance with this section.

(iii) If the Council fails to respond tothe objection within the 30 day period,the agency official shall continue itscompliance with this section.

(4)Approval of the undertaking. If

the agency official has found, during thepreparation of an EA or EIS that theeffects of an undertaking on historicproperties are adverse, the agencyofficial shall develop measures in theEA, DEIS, or EIS to avoid, minimize, ormitigate such effects in accordance withparagraph (c)(1)(v) of this section. Theagency official's responsibilities undersection 106 and the procedures in this


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subpart shall then be satisfied wheneither:

(i) a binding commitment to suchproposed measures is incorporated in

(A) the ROD, if such measures wereproposed in a DEIS or EIS; or

(B) an MOA drafted in compliancewith 800.6(c); or

(ii) the Council has commentedunder 800.7 and received the agency'sresponse to such comments.

(5)Modification of the undertaking.If the undertaking is modified afterapproval of the FONSI or the ROD in amanner that changes the undertaking oralters its effects on historic properties,or if the agency official fails to ensurethat the measures to avoid, minimize ormitigate adverse effects (as specified ineither the FONSI or the ROD, or in thebinding commitment adopted pursuantto paragraph (c)(4) of this section) arecarried out, the agency official shall

notify the Council and all consultingparties that supplementalenvironmental documents will beprepared in compliance with NEPA orthat the procedures in 800.3 through800.6 will be followed as necessary.

800.9 Council review of section 106compliance.

(a)Assessment of agency officialcompliance for individual undertakings.The Council may provide to the agencyofficial its advisory opinion regardingthe substance of any finding,determination or decision or regarding

the adequacy of the agency official'scompliance with the procedures underthis part. The Council may providesuch advice at any time at the request ofany individual, agency or organizationor on its own initiative. The agencyofficial shall consider the views of theCouncil in reaching a decision on thematter in question.

(b)Agency foreclosure of theCouncil's opportunity to comment.Where an agency official has failed tocomplete the requirements of section106 in accordance with the proceduresin this part prior to the approval of anundertaking, the Council's opportunity

to comment may be foreclosed. TheCouncil may review a case to determinewhether a foreclosure has occurred.The Council shall notify the agencyofficial and the agency's Federalpreservation officer and allow 30 daysfor the agency official to provideinformation as to whether foreclosurehas occurred. If the Council determinesforeclosure has occurred, the Councilshall transmit the determination to the

agency official and the head of theagency. The Council shall also make thedetermination available to the publicand any parties known to be interestedin the undertaking and its effects uponhistoric properties.

(c)Intentional adverse effects byapplicants.

(1)Agency responsibility. Section110(k) of the act prohibits a Federalagency from granting a loan, loanguarantee, permit, license or otherassistance to an applicant who, withintent to avoid the requirements ofsection 106, has intentionallysignificantly adversely affected ahistoric property to which the grantwould relate, or having legal power toprevent it, has allowed such significantadverse effect to occur, unless theagency, after consultation with theCouncil, determines that circumstancesjustify granting such assistance despite

the adverse effect created or permittedby the applicant. Guidance issued bythe Secretary pursuant to section 110 ofthe act governs its implementation.

(2) Consultation with the Council.When an agency official determines,based on the actions of an applicant,that section 110(k) is applicable and thatcircumstances may justify granting theassistance, the agency official shallnotify the Council and providedocumentation specifying thecircumstances under which the adverseeffects to the historic property occurredand the degree of damage to the

integrity of the property. Thisdocumentation shall include any viewsobtained from the applicant,SHPO/THPO, an Indian tribe if theundertaking occurs on or affects historicproperties on tribal lands, and otherparties known to be interested in theundertaking.

(i) Within thirty days of receivingthe agency official's notification, unlessotherwise agreed to by the agencyofficial, the Council shall provide theagency official with its opinion as towhether circumstances justify grantingassistance to the applicant and anypossible mitigation of the adverse

effects.(ii) The agency official shall

consider the Council's opinion inmaking a decision on whether to grantassistance to the applicant, and shallnotify the Council, the SHPO/THPO,and other parties known to be interestedin the undertaking prior to granting theassistance.

(3) Compliance with Section 106. Ifan agency official, after consulting with

the Council, determines to grant theassistance, the agency official shallcomply with 800.3 through 800.6 totake into account the effects of theundertaking on any historic properties.

(d)Evaluation of Section 106operations. The Council may evaluatethe operation of the section 106 processby periodic reviews of how participantshave fulfilled their legal responsibilitiesand how effectively the outcomesreached advance the purposes of the act.

(1)Information from participants.Section 203 of the act authorizes theCouncil to obtain information fromFederal agencies necessary to conductevaluation of the section 106 process.The agency official shall makedocumentation of agency policies,operating procedures and actions takento comply with section 106 available tothe Council upon request. The Councilmay request available information and

documentation from other participantsin the section 106 process.

(2)Improving the operation of section106. Based upon any evaluation of thesection 106 process, the Council maymake recommendations to participants,the heads of Federal agencies, and theSecretary of actions to improve theefficiency and effectiveness of theprocess. Where the Council determinesthat an agency official or a SHPO/THPOhas failed to properly carry out theresponsibilities assigned under theprocess in this part, the Council mayparticipate in individual case reviews

conducted under such process inaddition to the SHPO/THPO for suchperiod that it determines is necessary toimprove performance or correctdeficiencies. If the Council finds apattern of failure by a Federal agency incarrying out its responsibilities undersection 106, the Council may review thepolicies and programs of the agencyrelated to historic preservation pursuantto section 202(a)(6) of the act andrecommend methods to improve theeffectiveness, coordination, andconsistency of those policies andprograms with section 106.

800.10 Special requirements forprotecting National HistoricLandmarks.

(a) Statutory requirement. Section110(f) of the act requires that the agencyofficial, to the maximum extentpossible, undertake such planning andactions as may be necessary to minimizeharm to any National Historic Landmarkthat may be directly and adverselyaffected by an undertaking. When


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commenting on such undertakings, theCouncil shall use the process set forth in 800.6 through 800.7 and give specialconsideration to protecting NationalHistoric Landmarks as specified in thissection.

(b)Resolution of adverse effects. Theagency official shall request the Councilto participate in any consultation toresolve adverse effects on NationalHistoric Landmarks conducted under 800.6.

(c)Involvement of the Secretary. Theagency official shall notify the Secretaryof any consultation involving a NationalHistoric Landmark and invite theSecretary to participate in theconsultation where there may be anadverse effect. The Council may requesta report from the Secretary undersection 213 of the act to assist in theconsultation.

(d)Report of outcome. When the

Council participates in consultationunder this section, it shall report theoutcome of the section 106 process,providing its written comments or anymemoranda of agreement to which it isa signatory, to the Secretary and thehead of the agency responsible for theundertaking.

800.11 Documentation standards.(a)Adequacy of documentation. The

agency official shall ensure that adetermination, finding, or agreementunder the procedures in this subpart issupported by sufficient documentation

to enable any reviewing parties tounderstand its basis. The agencyofficial shall provide suchdocumentation to the extent permittedby law and within available funds.When an agency official is conductingphased identification or evaluationunder this subpart, the documentationstandards regarding description ofhistoric properties may be appliedflexibly. If the Council, or theSHPO/THPO when the Council is notinvolved, determines the applicabledocumentation standards are not met,the Council or the SHPO/THPO, asappropriate, shall notify the agency

official and specify the informationneeded to meet the standard. At therequest of the agency official or any ofthe consulting parties, the Council shallreview any disputes over whetherdocumentation standards are met andprovide its views to the agency officialand the consulting parties.

(b)Format. The agency official mayuse documentation prepared to complywith other laws to fulfill the

requirements of the procedures in thissubpart, if that documentation meets thestandards of this section.

(c) Confidentiality.(1)Authority to withhold information.

Section 304 of the act provides that thehead of a Federal agency or other publicofficial receiving grant assistancepursuant to the act, after consultationwith the Secretary, shall withhold frompublic disclosure information about thelocation, character, or ownership of ahistoric property when disclosure maycause a significant invasion of privacy;risk harm to the historic property; orimpede the use of a tradit ional religioussite by practitioners. When the head ofa Federal agency or other public officialhas determined that information shouldbe withheld from the public pursuant tothese criteria, the Secretary, inconsultation with such Federal agencyhead or official, shall determine who

may have access to the information forthe purposes of carrying out the act.

(2) Consultation with the Council.When the information in question hasbeen developed in the course of anagency's compliance with this part, theSecretary shall consult with the Councilin reaching determinations on thewithholding and release of information.The Federal agency shall provide theCouncil with available information,including views of the SHPO/THPO,Indian tribes and Native Hawaiianorganizations, related to theconfidentiality concern. The Council

shall advise the Secretary and theFederal agency within 30 days of receiptof adequate documentation.

(3) Other authorities affectingconfidentiality. Other Federal laws andprogram requirements may limit publicaccess to information concerning anundertaking and its effects on historicproperties. Where applicable, thoseauthorities shall govern public access toinformation developed in the section106 process and may authorize theagency official to protect the privacy ofnon-governmental applicants.

(d)Finding of no historic propertiesaffected. Documentation shall include:

(1) A description of the undertaking,specifying the Federal involvement, andits area of potential effects, includingphotographs, maps, drawings, asnecessary;

(2) A description of the steps takento identify historic properties,including, as appropriate, efforts to seekinformation pursuant to 800.4(b); and

(3) The basis for determining that nohistoric properties are present oraffected.

(e)Finding of no adverse effect oradverse effect. Documentation shallinclude:

(1) A description of the undertaking,specifying the Federal involvement, andits area of potential effects, includingphotographs, maps, and drawings, asnecessary;

(2) A description of the steps takento identify historic properties;

(3) A description of the affectedhistoric properties, includinginformation on the characteristics thatqualify them for the National Register;

(4) A description of theundertaking's effects on historicproperties;

(5) An explanation of why thecriteria of adverse effect were foundapplicable or inapplicable, including

any conditions or future actions toavoid, minimize or mitigate adverseeffects; and

(6) Copies or summaries of anyviews provided by consulting partiesand the public.

(f)Memorandum of agreement.When a memorandum of agreement isfiled with the Council, thedocumentation shall include, anysubstantive revisions or additions to thedocumentation provided the Councilpursuant to 800.6(a)(1), an evaluationof any measures considered to avoid orminimize the undertaking's adverse

effects and a summary of the views ofconsulting parties and the public.(g)Requests for comment without a

memorandum of agreement.Documentation shall include:

(1) A description and evaluation ofany alternatives or mitigation measuresthat the agency official proposes toresolve the undertaking's adverseeffects;

(2) A description of any reasonablealternatives or mitigation measures thatwere considered but not chosen, and thereasons for their rejection;

(3) Copies or summaries of anyviews submitted to the agency official

concerning the adverse effects of theundertaking on historic properties andalternatives to reduce or avoid thoseeffects; and

(4) Any substantive revisions oradditions to the documentationprovided the Council pursuant to 800.6(a)(1).

800.12 Emergency situations.


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(a)Agency procedures. The agencyofficial, in consultation with theappropriate SHPOs/THPOs, affectedIndian tribes and Native Hawaiianorganizations, and the Council, isencouraged to develop procedures fortaking historic properties into accountduring operations which respond to adisaster or emergency declared by thePresident, a tribal government, or theGovernor of a State or which respond toother immediate threats to life orproperty. If approved by the Council,the procedures shall govern the agency'shistoric preservation responsibilitiesduring any disaster or emergency in lieuof 800.3 through 800.6.

(b)Alternatives to agency procedures.In the event an agency official proposesan emergency undertaking as anessential and immediate response to adisaster or emergency declared by thePresident, a tribal government, or the

Governor of a State or anotherimmediate threat to life or property, andthe agency has not developedprocedures pursuant to paragraph (a) ofthis section, the agency official maycomply with section 106 by:

(1) Following a programmaticagreement developed pursuant to 800.14(b) that contains specificprovisions for dealing with historicproperties in emergency situations; or

(2) Notifying the Council, theappropriate SHPO/THPO and anyIndian tribe or Native Hawaiianorganization that may attach religious

and cultural significance to historicproperties likely to be affected prior tothe undertaking and affording them anopportunity to comment within sevendays of notification. If the agencyofficial determines that circumstancesdo not permit seven days for comment,the agency official shall notify theCouncil, the SHPO/THPO and theIndian tribe or Native Hawaiianorganization and invite any commentswithin the time available.

(c)Local governments responsible forsection 106 compliance. When a localgovernment official serves as the agencyofficial for section 106 compliance,

paragraphs (a) and (b) of this sectionalso apply to an imminent threat topublic health or safety as a result of anatural disaster or emergency declaredby a local government's chief executiveofficer or legislative body, provided thatif the Council or SHPO/THPO objects tothe proposed action within seven days,the agency official shall comply with 800.3 through 800.6.

(d)Applicability. This sectionapplies only to undertakings that will beimplemented within 30 days after thedisaster or emergency has been formallydeclared by the appropriate authority.An agency may request an extension ofthe period of applicability from theCouncil prior to the expiration of the 30days. Immediate rescue and salvageoperations conducted to preserve life orproperty are exempt from the provisionsof section 106 and this part.

800.13 Post-review discoveries.(a)Planning for subsequent

discoveries.(1) Using a programmatic agreement.

An agency official may develop aprogrammatic agreement pursuant to 800.14(b) to govern the actions to betaken when historic properties arediscovered during the implementationof an undertaking.

(2) Using agreement documents.When the agency official's identificationefforts in accordance with 800.4indicate that historic properties arelikely to be discovered duringimplementation of an undertaking andno programmatic agreement has beendeveloped pursuant to paragraph (a)(1)of this section, the agency official shallinclude in any finding of no adverseeffect or memorandum of agreement aprocess to resolve any adverse effectsupon such properties. Actions inconformance with the process satisfythe agency official's responsibilities

under section 106 and this part.(b)Discoveries without priorplanning. If historic properties arediscovered or unanticipated effects onhistoric properties found after theagency official has completed thesection 106 process without establishinga process under paragraph (a) of thissection, the agency official shall makereasonable efforts to avoid, minimize ormitigate adverse effects to suchproperties and:

(1) If the agency official has notapproved the undertaking or ifconstruction on an approvedundertaking has not commenced,

consult to resolve adverse effectspursuant to 800.6; or

(2) If the agency official, theSHPO/THPO and any Indian tribe orNative Hawaiian organization that mightattach religious and culturalsignificance to the affected propertyagree that such property is of valuesolely for its scientific, prehistoric,historic or archeological data, theagency official may comply with the

Archeological and Historic PreservationAct instead of the procedures in thispart and provide the Council, theSHPO/THPO, and the Indian tribe orNative Hawaiian organization with areport on the actions within areasonable time after they arecompleted; or

(3) If the agency off icial hasapproved the undertaking andconstruction has commenced, determineactions that the agency official can taketo resolve adverse effects, and notify theSHPO/THPO, any Indian tribe or NativeHawaiian organization that might attachreligious and cultural significance to theaffected property, and the Councilwithin 48 hours of the discovery. Thenotification shall describe the agencyofficial's assessment of National Registereligibility of the property and proposedactions to resolve the adverse effects.The SHPO/THPO, the Indian tribe or

Native Hawaiian organization and theCouncil shall respond within 48 hoursof the notification. The agency officialshall take into account theirrecommendations regarding NationalRegister eligibility and proposedactions, and then carry out appropriateactions. The agency official shallprovide the SHPO/THPO, the Indiantribe or Native Hawaiian organizationand the Council a report of the actionswhen they are completed.

(c)Eligibility of properties. Theagency official, in consultation with theSHPO/THPO, may assume a newly-

discovered property to be eligible for theNational Register for purposes of section106. The agency official shall specifythe National Register criteria used toassume the property's eligibility so thatinformation can be used in theresolution of adverse effects.

(d)Discoveries on tribal lands. Ifhistoric properties are discovered ontribal lands, or there are unanticipatedeffects on historic properties found ontribal lands, after the agency official hascompleted the section 106 processwithout establishing a process underparagraph (a) of this section andconstruction has commenced, the

agency official shall comply withapplicable tribal regulations andprocedures and obtain the concurrenceof the Indian tribe on the proposedaction.

Subpart C-Program Alternatives

800.14 Federal agency programalternatives.


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(a)Alternate procedures. An agencyofficial may develop procedures toimplement section 106 and substitutethem for all or part of subpart B of thispart if they are consistent with theCouncil's regulations pursuant tosection 110(a)(2)(E) of the act.

(1)Development of procedures. Theagency official shall consult with theCouncil, the National Conference ofState Historic Preservation Officers orindividual SHPO/THPOs, asappropriate, and Indian tribes andNative Hawaiian organizations, asspecified in paragraph (f) of this section,in the development of alternateprocedures, publish notice of theavailability of proposed alternateprocedures in the Federal Register andtake other appropriate steps to seekpublic input during the development ofalternate procedures.

(2) Council review. The agency

official shall submit the proposedalternate procedures to the Council for a60-day review period. If the Councilfinds the procedures to be consistentwith this part, it shall notify the agencyofficial and the agency official mayadopt them as final alternateprocedures.

(3)Notice. The agency official shallnotify the parties with which it hasconsulted and publish notice of finalalternate procedures in the FederalRegister.

(4)Legal effect. Alternateprocedures adopted pursuant to this

subpart substitute for the Council'sregulations for the purposes of theagency's compliance with section 106,except that where an Indian tribe hasentered into an agreement with theCouncil to substitute tribal historicpreservation regulations for theCouncil's regulations under section101(d)(5) of the act, the agency shallfollow those regulations in lieu of theagency's procedures regardingundertakings on tribal lands. Prior tothe Council entering into suchagreements, the Council will provideFederal agencies notice and opportunityto comment on the proposed substitute

tribal regulations.(b)Programmatic agreements. The

Council and the agency official maynegotiate a programmatic agreement togovern the implementation of aparticular program or the resolution ofadverse effects from certain complexproject situations or multipleundertakings.

(1) Use of programmatic agreements.A programmatic agreement may beused:

(i) When effects on historicproperties are similar and repetitive orare multi-State or regional in scope;

(ii) When effects on historicproperties cannot be fully determinedprior to approval of an undertaking;

(iii) When nonfederal parties aredelegated major decisionmakingresponsibilities;

(iv) Where routine managementactivities are undertaken at Federalinstallations, facilities, or other land-management units; or

(v) Where other circumstanceswarrant a departure from the normalsection 106 process.

(2)Developing programmaticagreements for agency programs.

(i) The consultation shall involve, asappropriate, SHPO/THPOs, the National

Conference of State HistoricPreservation Officers (NCSHPO), Indiantribes and Native Hawaiianorganizations, other Federal agencies,and members of the public. If theprogrammatic agreement has thepotential to affect historic properties ontribal lands or historic properties ofreligious and cultural significance to anIndian tribe or Native Hawaiianorganization, the agency official shallalso follow paragraph (f) of this section.

(ii)Public Participation. The agencyofficial shall arrange for publicparticipation appropriate to the subject

matter and the scope of the program andin accordance with subpart A of thispart. The agency official shall considerthe nature of the program and its likelyeffects on historic properties and takesteps to involve the individuals,organizations and entities likely to beinterested.

(iii)Effect. The programmaticagreement shall take effect whenexecuted by the Council, the agencyofficial and the appropriateSHPOs/THPOs when the programmaticagreement concerns a specific region orthe president of NCSHPO whenNCSHPO has participated in the

consultation. A programmaticagreement shall take effect on triballands only when the THPO, Indiantribe or a designated representative ofthe tribe is a signatory to the agreement.Compliance with the proceduresestablished by an approvedprogrammatic agreement satisfies theagency's section 106 responsibilities forall individual undertakings of theprogram covered by the agreement until

it expires or is terminated by the agency,the president of NCSHPO when asignatory, or the Council. Terminationby an individual SHPO/THPO shall onlyterminate the application of a regionalprogrammatic agreement within thejurisdiction of the SHPO/THPO. If aTHPO assumes the responsibilities of aSHPO pursuant to section 101(d)(2) ofthe act and the SHPO is signatory toprogrammatic agreement, the THPOassumes the role of a signatory,including the right to terminate aregional programmatic agreement onlands under the jurisdiction of the tribe.

(iv)Notice. The agency official shallnotify the parties with which it hasconsulted that a programmaticagreement has been executed underparagraph (b) of this section, provideappropriate public notice before it takeseffect, and make any internal agencyprocedures implementing the agreement

readily available to the Council,SHPO/THPOs, and the public.

(v) If the Council determines thatthe terms of a programmatic agreementare not being carried out, or if such anagreement is terminated, the agencyofficial shall comply with subpart B ofthis part with regard to individualundertakings of the program covered bythe agreement.

(3)Developing programmaticagreements for complex or multipleundertakings. Consultation to develop aprogrammatic agreement for dealingwith the potential adverse effects of

complex projects or multipleundertakings shall follow 800.6. Ifconsultation pertains to an activityinvolving multiple undertakings and theparties fail to reach agreement, then theagency official shall comply with theprovisions of subpart B of this part foreach individual undertaking.

(4)Prototype programmaticagreements. The Council may designatean agreement document as a prototypeprogrammatic agreement that may beused for the same type of program orundertaking in more than one case orarea. When an agency official uses sucha prototype programmatic agreement,

the age

Documents

Regulations of the Advisory Council on Historic Preservation