PWS_Appendix_B__36_CFR_Part_800_1.pdf

PART 800—PROTECTION OF

HISTORIC PROPERTIES

Subpart A—Purposes and Participants

Sec.

800.1 Purposes.

800.2 Participants in the Section 106 proc-

ess.

Subpart B—The Section 106 Process

800.3 Initiation of the section 106 process.

800.4 Identification of historic properties.

800.5 Assessment of adverse effects.

800.6 Resolution of adverse effects.

800.7 Failure to resolve adverse effects.

800.8 Coordination with the National Envi-

ronmental Policy Act.

800.9 Council review of Section 106 compli-

ance.

800.10 Special requirements for protecting

National Historic Landmarks.

800.11 Documentation standards.

800.12 Emergency situations.

800.13 Post-review discoveries.

Subpart C—Program Alternatives

800.14 Federal agency program alternatives.

800.15 Tribal, State, and local program al-

ternatives. [Reserved]

800.16 Definitions.

APPENDIX A TO PART 800—CRITERIA FOR

COUNCIL INVOLVEMENT IN REVIEWING INDI-

VIDUAL SECTION 106 CASES

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

SOURCE: 65 FR 77725, Dec. 12, 2000, unless otherwise noted.

Subpart A—Purposes and Participants

§ 800.1 Purposes.

(a) Purposes of the section 106 process.

Section 106 of the National Historic Preservation Act requires Federal agencies to take into account the ef-fects of their undertakings on historic properties and afford the Council a rea-sonable opportunity to comment on such undertakings. The procedures in this part define how Federal agencies meet these statutory responsibilities.

The section 106 process seeks to accom-modate historic preservation concerns with the needs of Federal undertakings through consultation among the agen-cy official and other parties with an in-terest in the effects of the undertaking on historic properties, commencing at the early stages of project planning.

The goal of consultation is to identify historic properties potentially affected by the undertaking, assess its effects and seek ways to avoid, minimize or mitigate any adverse effects on his-toric properties.

(b) Relation to other provisions of the act. Section 106 is related to other pro-visions of the act designed to further the national policy of historic preser-vation. References to those provisions are included in this part to identify cir-cumstances where they may affect ac-tions taken to meet section 106 require-ments. Such provisions may have their own implementing regulations or guidelines and are not intended to be implemented by the procedures in this part except insofar as they relate to the section 106 process. Guidelines, policies, and procedures issued by other agencies, including the Secretary, have been cited in this part for ease of ac-cess and are not incorporated by ref-erence.

(c) Timing. The agency official must complete the section 106 process ‘‘prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license.’’ This does not prohibit agency official from conducting or authorizing non-destructive project planning activities before completing compliance with sec-tion 106, provided that such actions do not restrict the subsequent consider-ation of alternatives to avoid, mini-mize or mitigate the undertaking’s ad-verse effects on historic properties. The agency official shall ensure that the section 106 process is initiated early in the undertaking’s planning, so that a broad range of alternatives may be considered during the planning process for the undertaking.

§ 800.2 Participants in the Section 106 process.

(a) Agency official. It is the statutory obligation of the Federal agency to ful-fill the requirements of section 106 and to ensure that an agency official with jurisdiction over an undertaking takes legal and financial responsibility for section 106 compliance in accordance with subpart B of this part. The agency official has approval authority for the undertaking and can commit the Fed-eral agency to take appropriate action

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36 CFR Ch. VIII (7–1–24 Edition) § 800.2 for a specific undertaking as a result of section 106 compliance. For the pur-poses of subpart C of this part, the agency official has the authority to commit the Federal agency to any ob-ligation it may assume in the imple-mentation of a program alternative.

The agency official may be a State, local, or tribal government official who has been delegated legal responsibility for compliance with section 106 in ac-cordance with Federal law.

(1) Professional standards. Section 112(a)(1)(A) of the act requires each Federal agency responsible for the pro-tection of historic resources, including archeological resources, to ensure that all actions taken by employees or con-tractors of the agency shall meet pro-fessional standards under regulations developed by the Secretary.

(2) Lead Federal agency. If more than one Federal agency is involved in an undertaking, some or all the agencies may designate a lead Federal agency, which shall identify the appropriate of-ficial to serve as the agency official who shall act on their behalf, fulfilling their collective responsibilities under section 106. Those Federal agencies that do not designate a lead Federal agency remain individually responsible for their compliance with this part.

(3) Use of contractors. Consistent with applicable conflict of interest laws, the agency official may use the services of applicants, consultants, or designees to prepare information, analyses and rec-ommendations under this part. The agency official remains legally respon-sible for all required findings and de-terminations. If a document or study is prepared by a non-Federal party, the agency official is responsible for ensur-ing that its content meets applicable standards and guidelines.

(4) Consultation. The agency official shall involve the consulting parties de-scribed in paragraph (c) of this section in findings and determinations made during the section 106 process. The agency official should plan consulta-tions appropriate to the scale of the undertaking and the scope of Federal involvement and coordinated with other requirements of other statutes, as applicable, such as the National En-vironmental Policy Act, the Native American Graves Protection and Repa-triation Act, the American Indian Reli-gious Freedom Act, the Archeological Resources Protection Act, and agency-specific legislation. The Council en-courages the agency official to use to the extent possible existing agency procedures and mechanisms to fulfill the consultation requirements of this part.

(b) Council. The Council issues regu-lations to implement section 106, pro-vides guidance and advice on the appli-cation of the procedures in this part, and generally oversees the operation of the section 106 process. The Council also consults with and comments to agency officials on individual under-takings and programs that affect his-toric properties.

(1) Council entry into the section 106 process. When the Council determines that its involvement is necessary to ensure that the purposes of section 106 and the act are met, the Council may enter the section 106 process. Criteria guiding Council decisions to enter the section 106 process are found in appen-dix A to this part. The Council will document that the criteria have been met and notify the parties to the sec-tion 106 process as required by this part.

(2) Council assistance. Participants in the section 106 process may seek ad-vice, guidance and assistance from the Council on the application of this part to specific undertakings, including the resolution of disagreements, whether or not the Council is formally involved in the review of the undertaking. If questions arise regarding the conduct of the section 106 process, participants are encouraged to obtain the Council’s advice on completing the process.

(c) Consulting parties. The following parties have consultative roles in the section 106 process.

(1) State historic preservation officer. (i) The State historic preservation officer (SHPO) reflects the interests of the State and its citizens in the preserva-tion of their cultural heritage. In ac-cordance with section 101(b)(3) of the act, the SHPO advises and assists Fed-eral agencies in carrying out their sec-tion 106 responsibilities and cooperates with such agencies, local governments and organizations and individuals to

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Advisory Council on Historic Preservation § 800.2 ensure that historic properties are tak-ing into consideration at all levels of planning and development.

(ii) If an Indian tribe has assumed the functions of the SHPO in the section 106 process for undertakings on tribal lands, the SHPO shall participate as a consulting party if the undertaking takes place on tribal lands but affects historic properties off tribal lands, if requested in accordance with § 800.3(c)(1), or if the Indian tribe agrees to include the SHPO pursuant to § 800.3(f)(3).

(2) Indian tribes and Native Hawaiian organizations. (i) Consultation on tribal lands. (A) Tribal historic preservation of-ficer. For a tribe that has assumed the responsibilities of the SHPO for section 106 on tribal lands under section 101(d)(2) of the act, the tribal historic preservation officer (THPO) appointed or designated in accordance with the act is the official representative for the purposes of section 106. The agency of-ficial shall consult with the THPO in lieu of the SHPO regarding under-takings occurring on or affecting his-toric properties on tribal lands.

(B) Tribes that have not assumed SHPO functions. When an Indian tribe has not assumed the responsibilities of the SHPO for section 106 on tribal lands under section 101(d)(2) of the act, the agency official shall consult with a representative designated by such In-dian tribe in addition to the SHPO re-garding undertakings occurring on or affecting historic properties on its trib-al lands. Such Indian tribes have the same rights of consultation and con-currence that the THPOs are given throughout subpart B of this part, ex-cept that such consultations shall be in addition to and on the same basis as consultation with the SHPO.

(ii) Consultation on historic properties of significance to Indian tribes and Native Hawaiian organizations. Section 101(d)(6)(B) of the act requires the agency official to consult with any In-dian tribe or Native Hawaiian organi-zation that attaches religious and cul-tural significance to historic properties that may be affected by an under-taking. This requirement applies re-gardless of the location of the historic property. Such Indian tribe or Native

Hawaiian organization shall be a con-sulting party.

(A) The agency official shall ensure that consultation in the section 106 process provides the Indian tribe or Na-tive Hawaiian organization a reason-able opportunity to identify its con-cerns about historic properties, advise on the identification and evaluation of historic properties, including those of traditional religious and cultural im-portance, articulate its views on the undertaking’s effects on such prop-erties, and participate in the resolution of adverse effects. It is the responsi-bility of the agency official to make a reasonable and good faith effort to identify Indian tribes and Native Ha-waiian organizations that shall be con-sulted in the section 106 process. Con-sultation should commence early in the planning process, in order to iden-tify and discuss relevant preservation issues and resolve concerns about the confidentiality of information on his-toric properties.

(B) The Federal Government has a unique legal relationship with Indian tribes set forth in the Constitution of the United States, treaties, statutes, and court decisions. Consultation with Indian tribes should be conducted in a sensitive manner respectful of tribal sovereignty. Nothing in this part al-ters, amends, repeals, interprets, or modifies tribal sovereignty, any treaty rights, or other rights of an Indian tribe, or preempts, modifies, or limits the exercise of any such rights.

(C) Consultation with an Indian tribe must recognize the government-to-gov-ernment relationship between the Fed-eral Government and Indian tribes. The agency official shall consult with rep-resentatives designated or identified by the tribal government or the governing body of a Native Hawaiian organiza-tion. Consultation with Indian tribes and Native Hawaiian organizations should be conducted in a manner sen-sitive to the concerns and needs of the Indian tribe or Native Hawaiian orga-nization.

(D) When Indian tribes and Native Hawaiian organizations attach reli-gious and cultural significance to his-toric properties off tribal lands, section 101(d)(6)(B) of the act requires Federal agencies to consult with such Indian

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36 CFR Ch. VIII (7–1–24 Edition) § 800.2 tribes and Native Hawaiian organiza-tions in the section 106 process. Federal agencies should be aware that fre-quently historic properties of religious and cultural significance are located on ancestral, aboriginal, or ceded lands of Indian tribes and Native Hawaiian organizations and should consider that when complying with the procedures in this part.

(E) An Indian tribe or a Native Ha-waiian organization may enter into an agreement with an agency official that specifies how they will carry out re-sponsibilities under this part, including concerns over the confidentiality of in-formation. An agreement may cover all aspects of tribal participation in the section 106 process, provided that no modification may be made in the roles of other parties to the section 106 proc-ess without their consent. An agree-ment may grant the Indian tribe or Na-tive Hawaiian organization additional rights to participate or concur in agen-cy decisions in the section 106 process beyond those specified in subpart B of this part. The agency official shall pro-vide a copy of any such agreement to the Council and the appropriate SHPOs.

(F) An Indian tribe that has not as-sumed the responsibilities of the SHPO for section 106 on tribal lands under section 101(d)(2) of the act may notify the agency official in writing that it is waiving its rights under § 800.6(c)(1) to execute a memorandum of agreement.

(3) Representatives of local govern-ments. A representative of a local gov-ernment with jurisdiction over the area in which the effects of an under-taking may occur is entitled to partici-pate as a consulting party. Under other provisions of Federal law, the local government may be authorized to act as the agency official for purposes of section 106.

(4) Applicants for Federal assistance, permits, licenses, and other approvals. An applicant for Federal assistance or for a Federal permit, license, or other ap-proval is entitled to participate as a consulting party as defined in this part. The agency official may authorize an applicant or group of applicants to initiate consultation with the SHPO/ THPO and others, but remains legally responsible for all findings and deter-minations charged to the agency offi-cial. The agency official shall notify the SHPO/THPO when an applicant or group of applicants is so authorized. A Federal agency may authorize all ap-plicants in a specific program pursuant to this section by providing notice to all SHPO/THPOs. Federal agencies that provide authorizations to applicants remain responsible for their govern-ment-to-government relationships with Indian tribes.

(5) Additional consulting parties. Cer-tain individuals and organizations with a demonstrated interest in the under-taking may participate as consulting parties due to the nature of their legal or economic relation to the under-taking or affected properties, or their concern with the undertaking’s effects on historic properties.

(d) The public—(1) Nature of involve-ment. The views of the public are essen-tial to informed Federal decision-making in the section 106 process. The agency official shall seek and consider the views of the public in a manner that reflects the nature and complexity of the undertaking and its effects on historic properties, the likely interest of the public in the effects on historic properties, confidentiality concerns of private individuals and businesses, and the relationship of the Federal involve-ment to the undertaking.

(2) Providing notice and information.

The agency official must, except where appropriate to protect confidentiality concerns of affected parties, provide the public with information about an undertaking and its effects on historic properties and seek public comment and input. Members of the public may also provide views on their own initia-tive for the agency official to consider in decisionmaking.

(3) Use of agency procedures. The agen-cy official may use the agency’s proce-dures for public involvement under the National Environmental Policy Act or other program requirements in lieu of public involvement requirements in subpart B of this part, if they provide adequate opportunities for public in-volvement consistent with this sub-part.

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Advisory Council on Historic Preservation § 800.3

Subpart B—The section 106 Process

§ 800.3 Initiation of the section 106 process.

(a) Establish undertaking. The agency official shall determine whether the proposed Federal action is an under-taking as defined in § 800.16(y) and, if so, whether it is a type of activity that has the potential to cause effects on historic properties.

(1) No potential to cause effects. If the undertaking is a type of activity that does not have the potential to cause ef-fects on historic properties, assuming such historic properties were present, the agency official has no further obli-gations under section 106 or this part.

(2) Program alternatives. If the review of the undertaking is governed by a Federal agency program alternative es-tablished under § 800.14 or a pro-grammatic agreement in existence be-fore January 11, 2001, the agency offi-cial shall follow the program alter-native.

(b) Coordinate with other reviews. The agency official should coordinate the steps of the section 106 process, as ap-propriate, with the overall planning schedule for the undertaking and with any reviews required under other au-thorities such as the National Environ-mental Policy Act, the Native Amer-ican Graves Protection and Repatri-ation Act, the American Indian Reli-gious Freedom Act, the Archeological Resources Protection Act, and agency-specific legislation, such as section 4(f) of the Department of Transportation Act. Where consistent with the proce-dures in this subpart, the agency offi-cial may use information developed for other reviews under Federal, State, or tribal law to meet the requirements of section 106.

(c) Identify the appropriate SHPO and/ or THPO. As part of its initial plan-ning, the agency official shall deter-mine the appropriate SHPO or SHPOs to be involved in the section 106 proc-ess. The agency official shall also de-termine whether the undertaking may occur on or affect historic properties on any tribal lands and, if so, whether a THPO has assumed the duties of the SHPO. The agency official shall then initiate consultation with the appro-priate officer or officers.

(1) Tribal assumption of SHPO respon-sibilities. Where an Indian tribe has as-sumed the section 106 responsibilities of the SHPO on tribal lands pursuant to section 101(d)(2) of the act, consulta-tion for undertakings occurring on tribal land or for effects on tribal land is with the THPO for the Indian tribe in lieu of the SHPO. Section 101(d)(2)(D)(iii) of the act authorizes owners of properties on tribal lands which are neither owned by a member of the tribe nor held in trust by the Secretary for the benefit of the tribe to request the SHPO to participate in the section 106 process in addition to the

THPO.

(2) Undertakings involving more than one State. If more than one State is in-volved in an undertaking, the involved SHPOs may agree to designate a lead SHPO to act on their behalf in the sec-tion 106 process, including taking ac-tions that would conclude the section 106 process under this subpart.

(3) Conducting consultation. The agen-cy official should consult with the SHPO/THPO in a manner appropriate to the agency planning process for the undertaking and to the nature of the undertaking and its effects on historic properties.

(4) Failure of the SHPO/THPO to re-spond. If the SHPO/THPO fails to re-spond within 30 days of receipt of a re-quest for review of a finding or deter-mination, the agency official may ei-ther proceed to the next step in the process based on the finding or deter-mination or consult with the Council in lieu of the SHPO/THPO. If the SHPO/THPO re-enters the Section 106 process, the agency official shall con-tinue the consultation without being required to reconsider previous find-ings or determinations.

(d) Consultation on tribal lands. Where the Indian tribe has not assumed the responsibilities of the SHPO on tribal lands, consultation with the Indian tribe regarding undertakings occurring on such tribe’s lands or effects on such tribal lands shall be in addition to and on the same basis as consultation with the SHPO. If the SHPO has withdrawn from the process, the agency official may complete the section 106 process

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36 CFR Ch. VIII (7–1–24 Edition) § 800.4 with the Indian tribe and the Council, as appropriate. An Indian tribe may enter into an agreement with a SHPO or SHPOs specifying the SHPO’s par-ticipation in the section 106 process for undertakings occurring on or affecting historic properties on tribal lands.

(e) Plan to involve the public. In con-sultation with the SHPO/THPO, the agency official shall plan for involving the public in the section 106 process.

The agency official shall identify the appropriate points for seeking public input and for notifying the public of proposed actions, consistent with § 800.2(d).

(f) Identify other consulting parties. In consultation with the SHPO/THPO, the agency official shall identify any other parties entitled to be consulting par-ties and invite them to participate as such in the section 106 process. The agency official may invite others to participate as consulting parties as the section 106 process moves forward.

(1) Involving local governments and ap-plicants. The agency official shall in-vite any local governments or appli-cants that are entitled to be consulting parties under § 800.2(c).

(2) Involving Indian tribes and Native Hawaiian organizations. The agency of-ficial shall make a reasonable and good faith effort to identify any Indian tribes or Native Hawaiian organiza-tions that might attach religious and cultural significance to historic prop-erties in the area of potential effects and invite them to be consulting par-ties. Such Indian tribe or Native Ha-waiian organization that requests in writing to be a consulting party shall be one.

(3) Requests to be consulting parties.

The agency official shall consider all written requests of individuals and or-ganizations to participate as con-sulting parties and, in consultation with the SHPO/THPO and any Indian tribe upon whose tribal lands an under-taking occurs or affects historic prop-erties, determine which should be con-sulting parties.

(g) Expediting consultation. A con-sultation by the agency official with the SHPO/THPO and other consulting parties may address multiple steps in §§ 800.3 through 800.6 where the agency official and the SHPO/THPO agree it is appropriate as long as the consulting parties and the public have an ade-quate opportunity to express their views as provided in § 800.2(d).

§ 800.4 Identification of historic prop-erties.

(a) Determine scope of identification ef-forts. In consultation with the SHPO/ THPO, the agency official shall:

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

(2) Review existing information on historic properties within the area of potential effects, including any data concerning possible historic properties not yet identified;

(3) Seek information, as appropriate, from consulting parties, and other indi-viduals and organizations likely to have knowledge of, or concerns with, historic properties in the area, and identify issues relating to the under-taking’s potential effects on historic properties; and

(4) Gather information from any In-dian tribe or Native Hawaiian organi-zation identified pursuant to § 800.3(f) to assist in identifying properties, in-cluding those located off tribal lands, which may be of religious and cultural significance to them and may be eligi-ble for the National Register, recog-nizing that an Indian tribe or Native Hawaiian organization may be reluc-tant to divulge specific information re-garding the location, nature, and ac-tivities associated with such sites. The agency official should address concerns raised about confidentiality pursuant to § 800.11(c).

(b) Identify historic properties. Based on the information gathered under paragraph (a) of this section, and in consultation with the SHPO/THPO and any Indian tribe or Native Hawaiian organization that might attach reli-gious and cultural significance to prop-erties within the area of potential ef-fects, the agency official shall take the steps necessary to identify historic properties within the area of potential effects.

(1) Level of effort. The agency official shall make a reasonable and good faith effort to carry out appropriate identi-fication efforts, which may include background research, consultation, VerDate Sep<11>2014 11:21 Mar 07, 2025 Jkt 262147 PO 00000 Frm 00108 Fmt 8010 Sfmt 8010 Y:\SGML\262147.XXX 262147js pe ar s on D

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Advisory Council on Historic Preservation § 800.4 oral history interviews, sample field investigation, and field survey. The agency official shall take into account past planning, research and studies, the magnitude and nature of the under-taking and the degree of Federal in-volvement, the nature and extent of potential effects on historic properties, and the likely nature and location of historic properties within the area of potential effects. The Secretary’s standards and guidelines for identifica-tion provide guidance on this subject.

The agency official should also con-sider other applicable professional, State, tribal, and local laws, standards, and guidelines. The agency official shall take into account any confiden-tiality concerns raised by Indian tribes or Native Hawaiian organizations dur-ing the identification process.

(2) Phased identification and evalua-tion. Where alternatives under consid-eration consist of corridors or large land areas, or where access to prop-erties is restricted, the agency official may use a phased process to conduct identification and evaluation efforts.

The agency official may also defer final identification and evaluation of his-toric properties if it is specifically pro-vided for in a memorandum of agree-ment executed pursuant to § 800.6, a programmatic agreement executed pur-suant to § 800.14(b), or the documents used by an agency official to comply with the National Environmental Pol-icy Act pursuant to § 800.8. The process should establish the likely presence of historic properties within the area of potential effects for each alternative or inaccessible area through background research, consultation and an appro-priate level of field investigation, tak-ing into account the number of alter-natives under consideration, the mag-nitude of the undertaking and its like-ly effects, and the views of the SHPO/ THPO and any other consulting par-ties. As specific aspects or locations of an alternative are refined or access is gained, the agency official shall pro-ceed with the identification and eval-uation of historic properties in accord-ance with paragraphs (b)(1) and (c) of this section.

(c) Evaluate historic significance—(1) Apply National Register criteria. In con-sultation with the SHPO/THPO and any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to identified properties and guided by the Sec-retary’s standards and guidelines for evaluation, the agency official shall apply the National Register criteria (36 CFR part 63) to properties identified within the area of potential effects that have not been previously evalu-ated for National Register eligibility.

The passage of time, changing percep-tions of significance, or incomplete prior evaluations may require the agency official to reevaluate properties previously determined eligible or ineli-gible. The agency official shall ac-knowledge that Indian tribes and Na-tive Hawaiian organizations possess special expertise in assessing the eligi-bility of historic properties that may possess religious and cultural signifi-cance to them.

(2) Determine whether a property is eli-gible. If the agency official determines any of the National Register criteria are met and the SHPO/THPO agrees, the property shall be considered eligi-ble for the National Register for sec-tion 106 purposes. If the agency official determines the criteria are not met and the SHPO/THPO agrees, the prop-erty shall be considered not eligible. If the agency official and the SHPO/ THPO do not agree, or if the Council or the Secretary so request, the agency official shall obtain a determination of eligibility from the Secretary pursuant to 36 CFR part 63. If an Indian tribe or Native Hawaiian organization that at-taches religious and cultural signifi-cance to a property off tribal lands does not agree, it may ask the Council to request the agency official to obtain a determination of eligibility.

(d) Results of identification and evalua-tion—(1) No historic properties affected. If the agency official finds that either there are no historic properties present or there are historic properties present but the undertaking will have no effect upon them as defined in § 800.16(i), the agency official shall provide docu-mentation of this finding, as set forth in § 800.11(d), to the SHPO/THPO. The agency official shall notify all con-sulting parties, including Indian tribes and Native Hawaiian organizations, and make the documentation available

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36 CFR Ch. VIII (7–1–24 Edition) § 800.5 for public inspection prior to approving the undertaking.

(i) If the SHPO/THPO, or the Council if it has entered the section 106 process, does not object within 30 days of re-ceipt of an adequately documented finding, the agency official’s respon-sibilities under section 106 are fulfilled.

(ii) If the SHPO/THPO objects within 30 days of receipt of an adequately doc-umented finding, the agency official shall either consult with the objecting party to resolve the disagreement, or forward the finding and supporting doc-umentation to the Council and request that the Council review the finding pursuant to paragraphs (d)(1)(iv)(A) through (d)(1)(iv)(C) of this section.

When an agency official forwards such requests for review to the Council, the agency official shall concurrently no-tify all consulting parties that such a request has been made and make the request documentation available to the public.

(iii) During the SHPO/THPO 30 day review period, the Council may object to the finding and provide its opinion regarding the finding to the agency of-ficial and, if the Council determines the issue warrants it, the head of the agency. A Council decision to provide its opinion to the head of an agency shall be guided by the criteria in ap-pendix A to this part. The agency shall then proceed according to paragraphs (d)(1)(iv)(B) and (d)(1)(iv)(C) of this sec-tion.

(iv) (A) Upon receipt of the request under paragraph (d)(1)(ii) of this sec-tion, the Council will have 30 days in which to review the finding and provide the agency official and, if the Council determines the issue warrants it, the head of the agency with the Council’s opinion regarding the finding. A Coun-cil decision to provide its opinion to the head of an agency shall be guided by the criteria in appendix A to this part. If the Council does not respond within 30 days of receipt of the request, the agency official’s responsibilities under section 106 are fulfilled.

(B) The person to whom the Council addresses its opinion (the agency offi-cial or the head of the agency) shall take into account the Council’s opinion before the agency reaches a final deci-sion on the finding.

(C) The person to whom the Council addresses its opinion (the agency offi-cial or the head of the agency) shall then prepare a summary of the decision that contains the rationale for the de-cision and evidence of consideration of the Council’s opinion, and provide it to the Council, the SHPO/THPO, and the consulting parties. The head of the agency may delegate his or her duties under this paragraph to the agency’s senior policy official. If the agency of-ficial’s initial finding will be revised, the agency official shall proceed in ac-cordance with the revised finding. If the final decision of the agency is to affirm the initial agency finding of no historic properties affected, once the summary of the decision has been sent to the Council, the SHPO/THPO, and the consulting parties, the agency offi-cial’s responsibilities under section 106 are fulfilled.

(D) The Council shall retain a record of agency responses to Council opinions on their findings of no historic prop-erties affected. The Council shall make this information available to the pub-lic.

(2) Historic properties affected. If the agency official finds that there are his-toric properties which may be affected by the undertaking, the agency official shall notify all consulting parties, in-cluding Indian tribes or Native Hawai-ian organizations, invite their views on the effects and assess adverse effects, if any, in accordance with § 800.5.

[65 FR 77725, Dec. 12, 2000, as amended at 69 FR 40553, July 6, 2004]

§ 800.5 Assessment of adverse effects.

(a) Apply criteria of adverse effect. In consultation with the SHPO/THPO and any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to identified historic properties, the agency official shall apply the criteria of adverse ef-fect to historic properties within the area of potential effects. The agency official shall consider any views con-cerning such effects which have been provided by consulting parties and the public.

(1) Criteria of adverse effect. An ad-verse effect is found when an under-taking may alter, directly or indi-rectly, any of the characteristics of a

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Advisory Council on Historic Preservation § 800.5 historic property that qualify the prop-erty for inclusion in the National Reg-ister in a manner that would diminish the integrity of the property’s loca-tion, design, setting, materials, work-manship, feeling, or association. Con-sideration shall be given to all quali-fying characteristics of a historic prop-erty, including those that may have been identified subsequent to the origi-nal evaluation of the property’s eligi-bility for the National Register. Ad-verse effects may include reasonably foreseeable effects caused by the under-taking that may occur later in time, be farther removed in distance or be cu-mulative.

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

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

(ii) Alteration of a property, includ-ing restoration, rehabilitation, repair, maintenance, stabilization, hazardous material remediation, and provision of handicapped access, that is not con-sistent with the Secretary’s standards for the treatment of historic properties (36 CFR part 68) and applicable guide-lines;

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

(iv) Change of the character of the property’s use or of physical features within the property’s setting that con-tribute to its historic significance;

(v) Introduction of visual, atmos-pheric or audible elements that dimin-ish the integrity of the property’s sig-nificant historic features;

(vi) Neglect of a property which causes its deterioration, except where such neglect and deterioration are rec-ognized qualities of a property of reli-gious and cultural significance to an Indian tribe or Native Hawaiian orga-nization; and

(vii) Transfer, lease, or sale of prop-erty out of Federal ownership or con-trol without adequate and legally en-forceable restrictions or conditions to ensure long-term preservation of the property’s historic significance.

(3) Phased application of criteria.

Where alternatives under consideration consist of corridors or large land areas, or where access to properties is re-stricted, the agency official may use a phased process in applying the criteria of adverse effect consistent with phased identification and evaluation efforts conducted pursuant to § 800.4(b)(2).

(b) Finding of no adverse effect. The agency official, in consultation with the SHPO/THPO, may propose a finding of no adverse effect when the under-taking’s effects do not meet the cri-teria of paragraph (a)(1) of this section or the undertaking is modified or con-ditions are imposed, such as the subse-quent review of plans for rehabilitation by the SHPO/THPO to ensure consist-ency with the Secretary’s standards for the treatment of historic properties (36 CFR part 68) and applicable guidelines, to avoid adverse effects.

(c) Consulting party review. If the agency official proposes a finding of no adverse effect, the agency official shall notify all consulting parties of the finding and provide them with the doc-umentation specified in § 800.11(e). The SHPO/THPO shall have 30 days from re-ceipt to review the finding.

(1) Agreement with, or no objection to, finding. Unless the Council is reviewing the finding pursuant to papagraph (c)(3) of this section, the agency offi-cial may proceed after the close of the 30 day review period if the SHPO/THPO has agreed with the finding or has not provided a response, and no consulting party has objected. The agency official shall then carry out the undertaking in accordance with paragraph (d)(1) of this section.

(2) Disagreement with finding. (i) If within the 30 day review period the SHPO/THPO or any consulting party notifies the agency official in writing that it disagrees with the finding and specifies the reasons for the disagree-ment in the notification, the agency of-ficial shall either consult with the party to resolve the disagreement, or request the Council to review the find-ing pursuant to paragraphs (c)(3)(i) and (c)(3)(ii) of this section. The agency of-ficial shall include with such request the documentation specified in § 800.11(e). The agency official shall also concurrently notify all consulting par-ties that such a submission has been made and make the submission docu-mentation available to the public.

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36 CFR Ch. VIII (7–1–24 Edition) § 800.6

(ii) If within the 30 day review period the Council provides the agency offi-cial and, if the Council determines the issue warrants it, the head of the agen-cy, with a written opinion objecting to the finding, the agency shall then pro-ceed according to paragraph (c)(3)(ii) of this section. A Council decision to pro-vide its opinion to the head of an agen-cy shall be guided by the criteria in ap-pendix A to this part.

(iii) The agency official should seek the concurrence of any Indian tribe or Native Hawaiian organization that has made known to the agency official that it attaches religious and cultural sig-nificance to a historic property subject to the finding. If such Indian tribe or Native Hawaiian organization dis-agrees with the finding, it may within the 30 day review period specify the reasons for disagreeing with the find-ing and request the Council to review and object to the finding pursuant to paragraph (c)(2)(ii) of this section.

(3) Council review of findings. (i) When a finding is submitted to the Council pursuant to paragraph (c)(2)(i) of this section, the Council shall review the finding and provide the agency official and, if the Council determines the issue warrants it, the head of the agency with its opinion as to whether the ad-verse effect criteria have been cor-rectly applied. A Council decision to provide its opinion to the head of an agency shall be guided by the criteria in appendix A to this part. The Council will provide its opinion within 15 days of receiving the documented finding from the agency official. The Council at its discretion may extend that time period for 15 days, in which case it shall notify the agency of such exten-sion prior to the end of the initial 15 day period. If the Council does not re-spond within the applicable time pe-riod, the agency official’s responsibil-ities under section 106 are fulfilled.

(ii)(A) The person to whom the Coun-cil addresses its opinion (the agency of-ficial or the head of the agency) shall take into account the Council’s opinion in reaching a final decision on the find-ing.

(B) The person to whom the Council addresses its opinion (the agency offi-cial or the head of the agency) shall prepare a summary of the decision that contains the rationale for the decision and evidence of consideration of the Council’s opinion, and provide it to the Council, the SHPO/THPO, and the con-sulting parties. The head of the agency may delegate his or her duties under this paragraph to the agency’s senior policy official. If the agency official’s initial finding will be revised, the agen-cy official shall proceed in accordance with the revised finding. If the final de-cision of the agency is to affirm the initial finding of no adverse effect, once the summary of the decision has been sent to the Council, the SHPO/ THPO, and the consulting parties, the agency official’s responsibilities under section 106 are fulfilled.

(C) The Council shall retain a record of agency responses to Council opinions on their findings of no adverse effects.

The Council shall make this informa-tion available to the public.

(d) Results of assessment—(1) No ad-verse effect. The agency official shall maintain a record of the finding and provide information on the finding to the public on request, consistent with the confidentiality provisions of § 800.11(c). Implementation of the un-dertaking in accordance with the find-ing as documented fulfills the agency official’s responsibilities under section 106 and this part. If the agency official will not conduct the undertaking as proposed in the finding, the agency of-ficial shall reopen consultation under paragraph (a) of this section.

(2) Adverse effect. If an adverse effect is found, the agency official shall con-sult further to resolve the adverse ef-fect pursuant to § 800.6.

[65 FR 77725, Dec. 12, 2000, as amended at 69 FR 40553, July 6, 2004]

§ 800.6 Resolution of adverse effects.

(a) Continue consultation. The agency official shall consult with the SHPO/ THPO and other consulting parties, in-cluding Indian tribes and Native Ha-waiian organizations, to develop and evaluate alternatives or modifications to the undertaking that could avoid, minimize, or mitigate adverse effects on historic properties.

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Advisory Council on Historic Preservation § 800.6

(1) Notify the Council and determine Council participation. The agency offi-cial shall notify the Council of the ad-verse effect finding by providing the documentation specified in § 800.11(e).

(i) The notice shall invite the Council to participate in the consultation when:

(A) The agency official wants the Council to participate;

(B) The undertaking has an adverse effect upon a National Historic Land-mark; or

(C) A programmatic agreement under § 800.14(b) will be prepared;

(ii) The SHPO/THPO, an Indian tribe or Native Hawaiian organization, or any other consulting party may at any time independently request the Council to participate in the consultation.

(iii) The Council shall advise the agency official and all consulting par-ties whether it will participate within 15 days of receipt of notice or other re-quest. Prior to entering the process, the Council shall provide written no-tice to the agency official and the con-sulting parties that its decision to par-ticipate meets the criteria set forth in appendix A to this part. The Council shall also advise the head of the agency of its decision to enter the process.

Consultation with Council participa-tion is conducted in accordance with paragraph (b)(2) of this section.

(iv) If the Council does not join the consultation, the agency official shall proceed with consultation in accord-ance with paragraph (b)(1) of this sec-tion.

(2) Involve consulting parties. In addi-tion to the consulting parties identi-fied under § 800.3(f), the agency official, the SHPO/THPO and the Council, if participating, may agree to invite other individuals or organizations to become consulting parties. The agency official shall invite any individual or organization that will assume a spe-cific role or responsibility in a memo-randum of agreement to participate as a consulting party.

(3) Provide documentation. The agency official shall provide to all consulting parties the documentation specified in § 800.11(e), subject to the confiden-tiality provisions of § 800.11(c), and such other documentation as may be devel-oped during the consultation to resolve adverse effects.

(4) Involve the public. The agency offi-cial shall make information available to the public, including the documenta-tion specified in § 800.11(e), subject to the confidentiality provisions of § 800.11(c). The agency official shall pro-vide an opportunity for members of the public to express their views on resolv-ing adverse effects of the undertaking.

The agency official should use appro-priate mechanisms, taking into ac-count the magnitude of the under-taking and the nature of its effects upon historic properties, the likely ef-fects on historic properties, and the re-lationship of the Federal involvement to the undertaking to ensure that the public’s views are considered in the consultation. The agency official should also consider the extent of no-tice and information concerning his-toric preservation issues afforded the public at earlier steps in the section 106 process to determine the appropriate level of public involvement when re-solving adverse effects so that the standards of § 800.2(d) are met.

(5) Restrictions on disclosure of infor-mation. Section 304 of the act and other authorities may limit the disclosure of information under paragraphs (a)(3) and (a)(4) of this section. If an Indian tribe or Native Hawaiian organization objects to the disclosure of information or if the agency official believes that there are other reasons to withhold in-formation, the agency official shall comply with § 800.11(c) regarding the disclosure of such information.

(b) Resolve adverse effects—(1) Resolu-tion without the Council. (i) The agency official shall consult with the SHPO/ THPO and other consulting parties to seek ways to avoid, minimize or miti-gate the adverse effects.

(ii) The agency official may use standard treatments established by the Council under § 800.14(d) as a basis for a memorandum of agreement.

(iii) If the Council decides to join the consultation, the agency official shall follow paragraph (b)(2) of this section.

(iv) If the agency official and the SHPO/THPO agree on how the adverse effects will be resolved, they shall exe-cute a memorandum of agreement. The agency official must submit a copy of

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36 CFR Ch. VIII (7–1–24 Edition) § 800.6 the executed memorandum of agree-ment, along with the documentation specified in § 800.11(f), to the Council prior to approving the undertaking in order to meet the requirements of sec-tion 106 and this subpart.

(v) If the agency official, and the SHPO/THPO fail to agree on the terms of a memorandum of agreement, the agency official shall request the Coun-cil to join the consultation and provide the Council with the documentation set forth in § 800.11(g). If the Council de-cides to join the consultation, the agency official shall proceed in accord-ance with paragraph (b)(2) of this sec-tion. If the Council decides not to join the consultation, the Council will no-tify the agency and proceed to com-ment in accordance with § 800.7(c).

(2) Resolution with Council participa-tion. If the Council decides to partici-pate in the consultation, the agency of-ficial shall consult with the SHPO/ THPO, the Council, and other con-sulting parties, including Indian tribes and Native Hawaiian organizations under § 800.2(c)(3), to seek ways to avoid, minimize or mitigate the ad-verse effects. If the agency official, the SHPO/THPO, and the Council agree on how the adverse effects will be re-solved, they shall execute a memo-randum of agreement.

(c) Memorandum of agreement.