77698 Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations

ADVISORY COUNCIL ON HISTORIC

PRESERVATION

36 CFR Part 800

RIN 3010–AA05

Protection of Historic Properties

AGENCY: Advisory Council on Historic

Preservation.

ACTION: Final rule; revision of current

regulations.

SUMMARY: The Advisory Council on

Historic Preservation is publishing its

final rule, replacing the previous rule

which implemented the 1992

amendments to the National Historic

Preservation Act (NHPA), and improved

and streamlined the rule in accordance

with the Administration’s reinventing

government initiatives and public

comment. Litigation earlier this year

challenged that previous rule. This

rulemaking has addressed questions and

concerns raised by that litigation, and

has given the public a chance to provide

input to determine how the rule has

operated and revise the rule as

appropriate. The final rule modifies the

process by which Federal agencies

consider the effects of their

undertakings on historic properties and

provide the Council with a reasonable

opportunity to comment with regard to

such undertakings, as required by

section 106 of the NHPA. The Council

has sought to better balance the interests

and concerns of various users of the

section 106 process, including Federal

agencies, State Historic Preservation

Officers (SHPOs), Tribal Historic

Preservation Officers (THPOs), Native

Americans and Native Hawaiians,

industry, and the public.

DATES: This final rule is effective

January 11, 2001.

FOR FURTHER INFORMATION CONTACT: If

you have questions about the rule,

please call Frances Gilmore or Paulette

Washington at the regulations hotline

(202) 606–8508, or e-mail us at

regs@achp.gov. When calling or sending

e-mail, please state your name,

affiliation, and nature of your question,

so your call or e-mail can then be routed

to the correct staff person. Informational

materials about the new rule will be

posted on our web site (http://

www.achp.gov) as they are developed.

SUPPLEMENTARY INFORMATION: The

information that follows has been

divided into five sections. The first one

provides background information

introducing the agency and

summarizing the history of the

rulemaking process. The second section

highlights the changes incorporated into

the final rule. The third section

describes, by section and topic, the

Council’s response to public comments

on this rulemaking. The fourth section

provides a description of the meaning

and intent behind specific sections of

the final rule. Finally, the fifth section

provides the impact analysis section,

which addresses various legal

requirements, including the Regulatory

Flexibility Act, the Paperwork

Reduction Act, the National

Environmental Policy Act, the

Unfunded Mandates Act, the

Congressional Review Act and various

relevant Executive Orders.

I. Background

The Advisory Council on Historic

Preservation (‘‘Council’’) is the major

policy advisor to the Government in the

field of historic preservation. Twenty

members make up the Council. The

President appoints four members of the

general public, one Native American or

Native Hawaiian, four historic

preservation experts, and one governor

and one mayor. The Secretary of the

Interior and the Secretary of

Agriculture, four other Federal agency

heads designated by the President, the

Architect of the Capitol, the chairman of

the National Trust for Historic

Preservation and the president of the

National Conference of State Historic

Preservation Officers complete the

membership.

This final rule sets forth the revised

section 106 process. Section 106 of the

National Historic Preservation Act of

1966, as amended, 16 U.S.C. 470f

(NHPA), requires Federal agencies to

take into account the effect of their

undertakings on properties included in

or eligible for inclusion in the National

Register of Historic Places and to afford

the Council a reasonable opportunity to

comment on such undertakings.

Through Section 211 of the National

Historic Preservation Act, the Council is

authorized to ‘‘promulgate such rules

and regulations as it deems necessary to

govern the implementation of section

106 * * * in its entirety.’’

After publishing two Notices of

Proposed Rulemaking (59 FR 50396,

October 3, 1994; and 61 FR 48580,

September 13, 1996), the Council

published a final rule setting forth a

revised process implementing section

106 in its entirety (64 FR 27044–27084,

May 18, 1999). Such rule went into

effect on June 17, 1999, and superseded

the rule previously issued in 1986.

Two major forces behind that revision

process were the 1992 amendments to

the National Historic Preservation Act

(NHPA), and the Administration’s

reinventing government efforts. In

October, 1992, Public Law 102–575

amended the NHPA and affected the

way section 106 review is carried out.

Among other things, the 1992

amendments:

1. Clarified that ‘‘[p]roperties of

traditional religious and cultural

importance to an Indian tribe or Native

Hawaiian organization may be

determined to be eligible for inclusion

on the National Register.’’ 16 U.S.C.

470a(d)(6)(A);

2. Required that ‘‘[i]n carrying out its

responsibilities under section 106, a

Federal agency shall consult with any

Indian tribe or Native Hawaiian

organization that attaches religious and

cultural significance to properties

described’’ above. 16 U.S.C.

470a(d)(6)(B). Also see 36 CFR

800.2(c)(3) (granting such tribes and

Native Hawaiian organizations,

‘‘consulting party’’ status in the section

106 process). Implementation of this

statutory consultation requirement is

found throughout the proposed rule.

See, for example, 36 CFR 800.3(f)(2),

800.4(a)(4), 800.4(b), 800.4(c)(1),

800.5(a), 800.6(a)–(b).

3. Added a provision in the NHPA

prohibiting Federal agencies from

granting a license or assistance to

applicants who, with the intent to avoid

the requirements of section 106,

significantly adversely affected historic

properties related to the license or

assistance. In such cases, the Federal

agency can only grant the license or

assistance if it determines, after

consulting with the Council, that

circumstances justify granting the

license or assistance despite the effects

to the historic property. 16 U.S.C. 470h–

2(k). See 36 CFR 800.9(c).

4. Explicitly recognized the longstanding practice of having Federal

agencies develop agreements to address

adverse effects of their undertakings to

historic properties. This practice had

also been recognized in the earlier, 1980

amendments, where Section 205(b) of

the NHPA was changed to state that the

Council could be represented in court

by its General Counsel regarding

‘‘enforcement of agreements with

Federal agencies.’’ It also clarified that

where such an agreement is not reached,

the head of the relevant Federal agency

must document his/her decision

pursuant to section 106. Such agency

head cannot delegate that responsibility.

It also provided that agreements

executed pursuant to the section 106

process would govern the relevant

Federal undertaking and all its parts. 16

U.S.C. 470h–2(l). See 36 CFR 800.6,

800.7.

5. Added a member to the Council.

This Council member would be a Native

Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations 77699

American or Native Hawaiian appointed

by the President. 16 U.S.C. 470i(a)(11).

6. Explicitly clarified the fact that the

Council has authority to ‘‘promulgate

such rules and regulations as it deems

necessary to govern the implementation

of section 106 of this Act in its entirety.’’

16 U.S.C. 470s (emphasis added)

(highlighted text was added by the 1992

amendments); and

7. Amended the definition of the term

‘‘undertaking,’’ by adding ‘‘[projects,

activities, and programs] subject to State

or local regulation administered

pursuant to a delegation or approval by

a Federal agency’’ to the list of actions

constituting an ‘‘undertaking.’’ 16 U.S.C.

470w(7)(D). The amended, statutory

definition of ‘‘undertaking’’ was

adopted verbatim in the rule. 36 CFR

800.16(y).

Additionally, as part of the

Administration’s National Performance

Review and overall regulatory

streamlining efforts, the Council

undertook a review of its regulatory

process to identify potential changes

that could improve the operation of the

section 106 process and conform it to

the principles of the Administration. A

description of the Council’s revision

efforts from 1992, which led to the final

rule that went into effect in 1999 (‘‘1999

rule’’), is found in its preamble (64 FR

27044–27084, May 18, 1999). That

preamble extensively details its history,

purpose, intent, and response to public

comment.

On February 15, 2000, the National

Mining Association (‘‘NMA’’) filed a

lawsuit challenging the 1999 rule.

Among other things, the lawsuit alleged

violations of the Appointments Clause

of the Constitution and certain

provisions of the Administrative

Procedure Act pertaining to rulemaking.

After assessing the allegations contained

in the lawsuit, the Council decided to

move forward with the present

rulemaking process that culminates

today with this final rule. The Council

believed that this rulemaking would

provide an opportunity to address

assertions about the procedural

adequacy of the promulgation of the

1999 rule, including those about the

participation of the National Trust for

Historic Preservation (‘‘Trust’’) and the

National Conference of State Historic

Preservation Officers (‘‘NCSHPO’’), as

Council members, in the adoption of the

final, revised rule. It would also give the

public a chance to provide input to

determine how the rule has operated

and revise the rule as appropriate. This

rulemaking does not evidence Council

agreement with the merits of the

allegations but, rather, the Council’s

desire to remove these issues from

litigation.

Accordingly, at the June 23, 2000

Council meeting in Maine, the

Chairman of the Council asked the

Council members to take two actions.

The first action was a new vote on the

adoption of the 1999 rule, without the

participation of the Trust and NCSHPO.

The Council members voted 16–0 in

favor of the 1999 rule, with the Trust

and NCSHPO voluntarily recusing

themselves from the vote and any

deliberation on it.

The second action was a vote on

undertaking the present rulemaking

process, using the text of the 1999 rule

as the proposed rule. Again, the Council

members voted in favor of moving

forward with the rulemaking by a vote

of 16–0, with the Trust and NCSHPO

voluntarily recusing themselves from

the vote and any deliberation on it.

Accordingly, on July 11, 2000 the

Council published a proposed rule for

public comment (65 FR 42833–42849).

The public was given a 30-day period,

until August 10, in which to comment

on the proposed rule. All those who

filed a timely request for an extension

of the comment period were given until

August 31 to submit their comments.

We believe the extension granted was

reasonable in light of the circumstances.

As stated above, the text of the

proposed rule submitted for public

comment was the same as the one for

the final rule that had been in effect for

more than a year. That final rule, in

turn, was the product of a rulemaking

process that afforded the public ample

opportunity, throughout six years, to

participate and comment. The preamble

of that 1999 final rule (found at 64 FR

27044–27084, May 18, 1999) extensively

details its history, purpose, intent, and

response to public comment. It is a

lengthy document and will not be reprinted here.

After the close of the public comment

period, the Council, minus the Trust

and NCSHPO, considered the comments

and incorporated changes into a draft

rule as was deemed appropriate. On

November 17, 2000, the Council voted

on whether to adopt the draft rule as a

final rule. As stated before, the Council

members representing the Trust and

NCSHPO had already recused

themselves from the rulemaking process

and proposed suspension. They

accordingly removed themselves from

the table and took no part in the

deliberations and vote on this matter.

The Council voted to adopt the draft

rule as the final rule now being

published, by a vote of 17 for, 1

abstention, and none against.

The Council reiterates that the Trust

and NCSHPO did not participate in any

way whatsoever in the deliberations,

decisions, votes, or any other Council

activities regarding this rulemaking.

Their only participation in this

rulemaking took the form of a written

comment filed by NCSHPO on the

proposed rule. Such comment was

submitted by NCSHPO, as a member of

the general public, during the

commenting period provided by the

notice of proposed rulemaking.

II. Highlights of Changes

The Council retained the core

elements of the section 106 process that

have been its hallmark since 1974. The

Council also retained the major

streamlining improvements that were

adopted in June, 1999. Changes adopted

were primarily modifications to remove

operational impediments in the process

and clarifications of certain provisions

and terms. In addition, a number of

technical and informational edits were

made throughout the rule. Major

changes are as follows:

1. Clarification of the Role of State

Historic Preservation Officers.

Section 800.2(c)(1) was amended to

acknowledge the statutory responsibility

of SHPOs to cooperate with agencies,

local governments, and organizations

and individuals to ensure that historic

properties are considered in planning.

2. Clarification of the Role of Indian

Tribes and Tribal Historic Preservation

Officers

Section 800.2(c)(2) was completely

rewritten to better distinguish the roles

of Indian tribes that had assumed the

responsibilities of SHPOs on their tribal

lands under section 101(d)(2) of the Act

from that of Indian tribes which had

not. The Council notes that these

amendments do not change the

substantive role of non-101(d)(2) Tribes

or any other party in the section 106

process under the proposed rule, but

simply provide for a clearer rule.

Section 800.2(c)(2)(ii) was also amended

to clarify that the Act requires agency

consultation with Indian tribes and

Native Hawaiian organizations that

attach religious and cultural

significance to historic properties

regardless of whether the historic

properties are located on or off tribal

land. Section 800.2(c)(2)(ii)(B) was

amended to better reflect the

sovereignty of Indian tribes over their

tribal lands.

77700 Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations

3. More Flexibility To Involve

Applicants

Section 800.2(c)(5) was amended to

resolve a major problem regarding the

participation of applicants for Federal

assistance or permission in the Section

106 process. Under the change, an

agency may authorize a group of

applicants to initiate the section 106

process, rather than being required to

grant individual authorizations.

Language was also added to clarify that

such authorizations do not relieve the

Federal agency of its obligations to

conduct government-to-government

consultation with Indian tribes.

4. Clarification of Undertakings Covered

by the Section 106 Process

Section 800.3(a)(1) was amended to

better state the premise of the rule that

only an undertaking that presents a type

of activity that has the potential to affect

historic properties requires review. The

previous language implied that making

such a determination related to the

circumstances of the particular

undertaking, rather than the more

generic analysis of whether the type of

undertaking had the potential to affect

historic properties.

5. Reinforcement of the Federal

Agency’s Responsibilities in Identifying

Historic Properties

Section 800.4(a) was amended to

assert that determinations in this

subsection are made unilaterally by the

Agency Official, after consultation with

SHPO/THPO. Some had misunderstood

the previous version as providing for

consensus determinations.

6. Revision of the Role of Invited

Signatories

Section 800.6(c)(2) was rewritten to

remove confusion about the ability of

the Federal agency to invite other

parties to become formal signatories to

Memoranda of Agreement and to clarify

their rights and responsibilities as

invited signatories. Also regarding

memoranda of agreement, § 800.6(c)(8)

was amended to provide that the option

for their termination exists not only

when one party simply cannot comply

with its terms, but also when the terms

are not being followed for whatever

reason.

7. Revision of the Use of Environmental

Impact Statements (EIS) To Comply

With Section 106

Section 800.8(c)(4) was rewritten to

more clearly state the actions a Federal

agency must take in making a binding

commitment in an NEPA documents to

carry out measures to avoid, minimize

or mitigate adverse effects and thereby

use the NEPA process to comply with

section 106 requirements.

8. Redefinition of the Role of the

Council When Improving the Operation

of Section 106

Section 800.9(d)(2) was amended to

require the Council to participate in

section 106 reviews in a manner parallel

to SHPOs/THPOs when the Council

decides to join individual case reviews

it would not otherwise engage in. This

occurs when the Council has

determined that section 106

responsibilities are not being properly

carried out by an agency or SHPO/

THPO and the Council’s participation

can remedy the problem.

9. Modification of Documentation

Standards

Section 800.11(a) was amended to

state that a Federal agency’s

responsibility to provide documentation

was limited by legal authority and the

availability of funds. Section

800.11(c)(2) was also amended to

require Federal agencies to include the

views of the SHPO/THPO when

consulting with the Council on

withholding confidential information.

10. Inclusion of National Register

Eligibility Assessment in Consideration

of Post-Review Discoveries

Section 800.13(b)(3) was amended to

add a requirement that a Federal agency

seeking expedited section 106 review

for properties discovered after approval

of an undertaking provide information

on the eligibility of affected properties

for the National Register.

11. Increased Flexibility for

Programmatic Agreements

Section 800.14(b) was amended by the

addition of a new section authorizing

the Council to create ‘‘prototype

programmatic agreements’’ which could

be executed by a Federal agency and an

SHPO/THPO without Council

participation. This would permit

routine programmatic agreements that

follow an accepted model to be

completed more expeditiously.

12. Improved Consideration of

Stakeholder and Public Views on

Proposed Exemptions

Section 800.14(c)(5) was amended to

add Council consideration of the views

of SHPOs/THPOs and others consulted

when determining whether to approve

an exemption from the section 106

process. The Council was also required

to notify the agency and SHPOs/THPOs

of it decision on the requested

exemption.

13. More Flexibility for Federal Agencies

When Consulting With Indian Tribes on

Nationwide Program Alternatives

Section 800.14(f) was amended to

reemphasize a Federal agency’s

obligation under various authorities to

consult with Indian tribes and Native

Hawaiian organizations when

developing nationwide program

alternatives, but to acknowledge that it

is the agency’s responsibility to

determine the appropriate means of

meeting those obligations.

III. Response to Public Comments

Following is a summary of the public

comments received in response to the

notice of proposed rulemaking, along

with the Council’s response. The public

comments are printed in bold typeface,

while the Council response follows

immediately in normal typeface. They

are organized according to the relevant

section of the proposed rule or their

general topic.

Section 800.1

The Council should expand the

definition of SHPO responsibilities

beyond cooperation with the Secretary,

Advisory Council and Federal agencies

to include explicit reference to

organizations and individuals, such as

regulatees and their consultants. The

Council noted that such language was

warranted by the NHPA, and therefore

inserted language regarding such SHPO

duties per section 101(b)(3)(F) of the

NHPA.

The very last sentence of this section

should be changed to: ‘‘The Agency

Official is encouraged to initiate the

section 106 process as early as

practicable in the undertaking’s

planning so that it may consider

impacts on historic resources.’’ The

language on the proposed rule stated

that the Agency Official ‘‘shall ensure

that the section 106 process is initiated

early in the undertaking’s planning * *

*’’ The Council disagreed with the

commenter’s proposed change since it is

crucial that agencies initiate the section

106 process at a point where

alternatives have not yet been

foreclosed. Otherwise, the review would

be rendered meaningless.

Council is urged to preserve

flexibility provision under the 1986

regulations, which stated: ‘‘The Council

recognizes that the procedures for the

Agency Official set forth in these

regulations may be implemented by the

Agency Official in a flexible manner

reflecting different program

requirements, as long as the purposes of

section 106 of the Act and these

regulations are met.’’ Specific areas of

Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations 77701

flexibility are incorporated in the

proposed rule to embody the general

flexibility term found in the 1986 rule.

Among these are: phased identification,

compression of steps, NEPA

coordination, and the various program

alternatives under § 800.14 of the rule.

Section 800.2(a)

The regulations should state that

Federal agencies that authorize

applicants to initiate consultation are

still responsible for their government to

government relationships with tribes.

The Council agreed and incorporated

such change at § 800.2(c)(5) since the

statement comports with Executive

Orders and Memoranda regarding the

government-to-government

responsibilities of Federal agencies

towards federally recognized tribes.

Requirements of § 800.14 preclude

implementation of § 800.2(a) insofar as

it calls for utilization of the agency’s

existing procedures to fulfill

consultation requirements. The Council

disagreed. The comment failed to

consider the difference between

procedures that implement 36 CFR part

800 (those under § 800.2(a)) and

procedures that actually substitute/

modify the process under 36 CFR part

800 (those under § 800.14).

Nothing in NHPA requires Federal

agencies to consult with a particular

party, thus, while such consultation

may be beneficial, it should be left to

the discretion of the Federal agency

under NHPA. The Council not only

believes that such consultation is

beneficial, but it also believes it has the

required authority to justify this and all

other sections of the proposed rule.

Consultation occurs in the section 106

process propounded by the rule in a

way that is fully consistent with the

statute. See, for example, the statutory

language under section 101 of the NHPA

regarding SHPO and THPO assistance to

Federal agencies in the section 106

process, the consultation requirements

with Indian tribes and Native Hawaiian

organizations under the 1992

amendments to the NHPA, and language

under Section 110 of the NHPA

ensuring that public involvement occurs

in the section 106 process. Such

consulting entities have the specialized

knowledge and interest that Federal

agencies may lack. Consultation with

these parties provides the Federal

agency with the information it needs to

make reasoned assessment of how its

undertakings affect historic properties.

Furthermore, it is clear to the Council

through its years of experience, that

such consultation is necessary and that

Federal agencies heavily rely on such

assistance (in particular that of the

SHPOs). Please also refer to responses

given under the legal topics.

Federal officials (and not State, local

or tribal government officials) are

responsible for taking into account the

effects of their undertakings on historic

properties. Furthermore, it is

inappropriate to mention Section 112 of

the NHPA in this section since the

Council has no authority to enforce it.

The Council agrees that the

responsibility for section 106

compliance lies with Federal agencies,

including the ‘‘take into account’’

responsibility. The Council clarifies that

section 112 is merely restated in the rule

for reference purposes (as opposed to

enforcement).

ACHP refusal to take a position

regarding delegation of authority have

resulted in SHPOs disregarding FCC’s

jurisdiction and emphasizes on

enforcement over historic preservation.

During the time frame of this

rulemaking, the Council issued a

memorandum to the FCC, all SHPOs

and the telecommunications industry

clarifying its position on delegations of

authority. This and several other issues

mentioned by the telecommunications

industry in this rulemaking process

have been or are in the process of being

addressed through ongoing discussions

with the industry, the FCC and SHPOs.

These discussions commenced before

the present rulemaking process. Such

ongoing discussions are referred

hereinafter as ‘‘Telecommunications

Working Group.’’

Although section 101 of the NHPA

establishes an advisory role for SHPOs

to assist Federal agencies, the rules fail

to establish consistent objective

standards for SHPOs to apply in

carrying out their duties. It undermines

the ability of SHPOs and Federal

agencies to adequately serve the

Council’s goal of protecting historic

properties. The Council believes that

the rule contains adequate standards

that guide SHPOs in carrying out their

functions. These standards can be found

in various parts of the rule (e.g., criteria

of adverse effect under § 800.5(a), and

various definitions of terms under

§ 800.16). Further standards, such as the

National Register Criteria of Eligibility

(36 CFR part 63), are referenced in the

present rule, and guide SHPO duties.

Furthermore, pursuant to the NHPA, the

Department of the Interior regularly

reviews SHPO programs and ensures

such programs and their personnel have

the necessary expertise to guide their

performance of their statutory duties,

which include ‘‘to consult with * * *

Federal agencies * * * on Federal

undertakings that may affect historical

properties.’’ 16 U.S.C. 470a(b)(3)(I).

‘‘Delegation authority’’ should be

expanded to include ‘‘approved’’ state

agencies and other pre-approved

designees to conduct section 106

coordination on behalf of the Agency

Official. The Council disagrees since the

comment fails to realize that such

authority can only come through statute.

Congress specifically placed section 106

compliance responsibilities on Federal

agencies. Only Congress can shift that

responsibility. The Council is only

aware of certain Department of Housing

and Urban Development programs

containing such a statutory delegation.

Section 800.2(b)

Licensees should be recognized as

consulting parties under the

regulations. Applicants for licenses,

permits, approvals or assistance are

specifically listed in the rule as

consulting parties (see §§ 800.2(c)(5)

and 800.3(f)(1)).

Add the following to § 800.2(b)(2):

‘‘Within 30 days of receipt of a request

for such advise, the Council shall reply

in writing with advise, or it shall reply

in writing that it will not offer advice

stating its reason(s) for so doing.’’ This

is needed to ensure Council responds in

a timely fashion. The Council disagreed

with this proposal. Time limits, and the

consequences of not replying in time,

are already specified in the proposed

rule as needed.

Section 800.2(c)

Remove the first sentence of

§ 800.2(c)(1)(I). It is unrealistic to

charge the SHPO with ‘‘reflecting the

interests of the State and its citizens in

the preservation of their cultural

heritage.’’ This only encourages

agencies to treat SHPO coordination as

the be-all and end-all of consultation,

even where large numbers of a State’s

citizens violently disagree with a SHPO

position. The rule reasonably supports

the idea that the SHPO reflects the

interests of the State by virtue of being

a State official appointed by the elected

State Governor.

Several comments requested that the

rule distinguish the roles of Tribes that

have an approved ‘‘Tribal Historic

Preservation Officer’ (THPO) pursuant

to section 101(d)(2) of the NHPA, and

those that do not. The use of the term

‘‘THPO’’ for both was deemed to be

highly confusing. As stated in the

highlight of changes above, § 800.2(c)(2)

was completely rewritten to better

distinguish the roles of Indian tribes

that had assumed the responsibilities of

SHPOs on their tribal lands under

section 101(d)(2) of the Act from that of

Indian tribes which had not. The

Council notes that these amendments do

77702 Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations

not change the substantive role of non101(d)(2) Tribes or any other party in

the section 106 process of the proposed

rule, but simply provide for a clearer

rule.

Many THPO’s have construed this

provision to mean that they must be

invited to participate as ‘‘consulting

parties’’ on all undertakings affecting

properties of traditional religious and

cultural importance, a position at odds

with the NHPA. It is requested that the

role of tribal representatives and

THPO’s in consultation off tribal land

to be clarified consistent with the

statute. The Council believes that

section 101(d)(6)(B) of the NHPA clearly

gives federally recognized tribes and

Native Hawaiian organizations a right to

be consulted regarding historic

properties of religious and cultural

significance to them. The cited section

of the statute does not qualify that right

depending on whether the historic

property is located on or off tribal lands.

It also does not qualify that right

depending on whether the tribe has a

THPO certified pursuant to section

101(d)(2) of the NHPA.

Too difficult to implement

requirements of § 800.2(c)(2) when the

project is not on reservation land. It is

unreasonable for each Federal agency

to develop on their own information as

to which tribe(s) may be associated

with specific geographic areas. While

the Council acknowledges certain initial

difficulties in identifying tribes to

consult outside tribal lands, it believes

the statute is clear in mandating such

consultation regardless of the location of

the historic property. The Council and

the National Park Service are currently

conducting a guidance project to assist

agencies in identifying Indian tribes to

be consulted.

Regulations do not create a

‘‘consultative’’ role for SHPO staff who

would prefer to spend their time and

efforts preserving historic properties

rather than enforcing procedures on

telecommunications projects. The

SHPOs have a specific statutory duty to

consult with Federal agencies and assist

them with their section 106 duties. 16

U.S.C. 470a(b)(3)(I). Moreover, the

SHPOs do spend their time directly

preserving historic properties through

their involvement in the section 106

process. The Council has not received

contrary views from any SHPOs.

Finally, similar issues of SHPO/

telecommunications industry work in

the section 106 process is being

addressed by the ongoing

Telecommunications Working Group.

Definition of ‘‘additional consulting

parties’’ is too open ended, since it

makes it possible for anyone who can

claim a ‘‘concern’’ to become a

consulting party, adding delays and

expenses to the process (§ 800.2(c)(6)).

Even if Council had authority over this

issue, at a minimum the rule should

require a demonstration of some form

of protectable interest similar to the

concept of legal standing. Standards for

additional consulting parties adequately

balance the project’s need for

expediency and the right of those with

defined interests in getting involved in

the process. To ensure this provision is

not abused, the rule gives the Agency

Official the ultimate discretion to invite

additional consulting parties or not. The

Council believes the Agency Official is

in a better position to balance the

benefits of including these parties

against the costs of so doing. The

Agency Official will be able to do this

on a case by case basis, according to the

particulars of the specific undertaking at

issue.

Use of the phrase ‘‘SHPO/THPO’’ has

led to misunderstandings concerning

the different regulatory roles of the

SHPOs and THPOs in consultation on

projects located off tribal lands.

Guidance is needed to clarify these

roles. The Council believes the rule is

clear in that Federally recognized tribes

have to be consulted regarding historic

properties of cultural and religious

significance to them, regardless of the

location of such properties. With the

changes regarding the use of the term

THPO, there should be no confusion as

to consultative rights of tribes.

Expanded definition of consulting

parties has made it difficult and time

consuming for agency officials to

establish an appropriate consultation

process. Guidelines for determining

formal consulting parties should be

developed. The Council believes that

§§ 800.2 and 800.3(f) set forth clear

standards for who should be a

consulting party, and a clear process for

who makes the determination and

when. A further expansion on this topic

to aid Federal agencies is better suited

for guidance.

Regulations give tribes a secondary

role to SHPOs with respect to tribal

cultural and sacred properties which

are not on tribal lands. The 1992

Amendments were intended to provide

tribes with rights at least equivalent to

SHPOs regardless of where the

properties are located. Tribes want

same consultation rights as SHPO for

tribal cultural properties located off

tribal lands. SHPO role is a creation of

the regulations and is not required in

the Act. The Council does not believe

that Tribes have a secondary role to

SHPOs. They do have a different role

however. The rule recognizes that

Tribes are entitled to consult regarding

historic properties of religious and

cultural significance to them that may

be affected by an undertaking. The

SHPO is also entitled to consult,

consistent with the definition of SHPO

responsibilities in the Act, regarding

historic properties. 16 U.S.C. 470a(b)(3).

The regulations assume that the

THPO is a regulatory/executive body of

a tribal government. Federal agencies

believe that consulting with the THPO

or tribal cultural resource manager

fulfills the government-to-government

responsibility. Agencies need to become

familiar with this responsibility. The

regulations fail to address or identify

the process for government-togovernment consultation. It is the duty

of the relevant Federal agency (and not

the Council) to specify how they meet

their government-to-government

responsibilities. See Executive

Memorandum on Government-toGovernment Relations with Native

American Governments, dated April 29,

1994.

Granting SHPOs a role on tribal

lands where there is no 101(d)(2) THPO

is an intrusion on tribal sovereignty

and is hypocritical since tribes are not

given an equivalent role for their

traditional cultural and sacred

properties off tribal lands. The Council

disagrees. Tribes that attach religious

and cultural significance to historic

properties must be invited to consult,

regardless of where the property is

located. The proposed rule follows

statutory roles given to Tribes and

SHPOs. See 16 U.S.C. 470a in general,

and 470a(d)(2)(D)(iii).

The regulations provide a significant

role for the THPO, above the tribal

government leader. Federal agencies

now have an ‘‘out’’ to avoid the

government-to-government

responsibility. Agencies need to learn,

and ACHP trainers need to emphasize,

the difference. The regulations should

include a section that requires agencies

to develop a process that recognizes the

THPO role. The Council reasonably

assumes 101(d)(2) THPOs are the

appropriate contact for government to

government relations. Nevertheless, the

Council will confirm this statement

with the Department of the Interior.

800.2(c)(3)(vi) is confusing. This

allows for the SHPO and Council to

ignore and avoid tribal involvement. It

also provides an outlet for Federal

agencies to disregard Federal law,

E.O.s, etc. Finally, the SHPO then

becomes a decision maker on tribal

lands. This provision was requested by

Tribal comments that wanted to avoid

Tribes being required to sign an

agreement if they chose not to sign it. A

Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations 77703

waiver under § 800.2(c)(3)(vi) requires

positive action from the Tribe, and

therefore does not present a loophole to

be used by Federal agencies or any other

entities.

A tribe that does not have a 101(d)(2)

THPO does not have the same authority

as a tribe that does. This gives the

SHPO the ability to come onto

reservation lands and dictate how the

tribe handles its preservation program

and individual projects. Would like the

regulations to provide tribes the option

of inviting the SHPO into consultation

on tribal lands. Section 101(d)(2) of the

NHPA provides for THPO substitution

of the SHPO on tribal lands if approved

by DOI. If there is no approved 101(d)(2)

THPO, NHPA provides that the SHPO

shall consult with Federal agencies on

any undertaking within the State. Also,

NHPA specifically states the right of

private owners of land within tribal

boundaries to request SHPO

involvement in undertakings on tribal

lands. See section 470a(d)(2)(D)(iii) of

NHPA.

Change last sentence to: Nothing in

this part alters, repels, interprets, or

modifies tribal sovereignty or preempts,

modifies, or limits the exercise of any

such rights. This change would delete

‘‘is intended to . . .’’ The Council

agreed with such a change since it was

needed to more properly accord with

tribal sovereign rights and the original

intent of the section.

Section 800.2(c)(5)

Several comments requested that the

rule be changed so that Federal

agencies will not be required to give

specific authorization for each

applicant to initiate consultation with

SHPO/THPOs. The Council supported

amending the proposed rule to allow

agencies to authorize applicants to

initiate consultation on a broader basis

than individual authorizations.

Because of the time and resources

required to consult with Tribes, more

Federal agencies are delegating their

consultation responsibilities, without

guidance, to consultants, applicants

and others. Many tribes, however,

refuse to interact with parties other

than the Federal agency or agency

director. The Council responds to this

concern by clarifying that such

insistence is due to the Federal

agencies’ government-to-government

responsibilities under Executive Orders

and Memoranda.

Delegating authority to applicants is

delegating Federal agency

responsibility. This process lacks the

integrity of upholding the intent of laws

and EOs. Generally, tribes are insisting

on formal consultation with Federal

agencies, not applicants. Federal

agencies are required to consult with

Indian Tribes on a government-togovernment basis pursuant to Executive

Orders, Presidential memoranda, and

other authorities. The proposed rule

therefore was amended to acknowledge

this responsibility. The authorization to

applicants to initiate consultation does

not include consultation with Tribes.

Section 800.2(d)

Proposed part 800 elaborate

procedures for public participation go

well beyond the provisions of NHPA.

NHPA does not require separate public

notice and comment requirements at

every stage of the review process.

Recommend that part 800 recognize

Federal agencies’ existing public

participation procedures and permit

agencies to rely on those procedures in

addressing adverse effects only. The

rule does not require separate public

notice and comment requirements at

each step. Also, the proposed rule

already allows for use of agency

procedures. Nevertheless, it is simply

impractical and illogical to solely rely

on agency procedures for public

involvement regarding section 106 if

such procedures fail to address historic

preservation issues.

Public participation provisions are

an improvement over the 1996

proposed rule, but still invite problems.

Council is not vested with authority to

regulate public participation. Section

106 does not address this topic. Council

has no authority to vest anyone, but

itself, with a reasonable opportunity to

comment on the Federal undertaking.

The Council believes it has the required

authority to justify this and all other

sections of the proposed rule. Please

refer to our response regarding legal

authority, below.

This provision lies outside of the

NHPA section 106 authority, and is a

back door mechanism to impose upon

Federal agencies the Council’s

interpretation of the interested public

instead of leaving the interpretation of

that role to the agencies, in consultation

with the Secretary of Interior as

provided for in section 110(a)(2)(E) of

the NHPA. Deleting this provision is

recommended. The Council disagrees.

As stated below, the Council has the

required authority to justify this and all

other sections of the proposed rule.

Furthermore, § 800.2(d)(3) allows the

use of agency procedures to the extent

they provide pertinent information on

historic preservation.

Section 800.3(a)

Several comments requested

clarification that under § 800.3(a) the

agency should not be considering casespecific issues, and that in this section

the reference is to ‘‘type and nature’’ of

the undertaking. In light of these

comments and practical experience, the

Council agreed that such a change was

necessary. The language in § 800.3(a)

was amended to state that the

determination is as to whether the

undertaking is a ‘‘type’’ of activity that

has the potential to cause effects on

historic properties, assuming such

properties would be present.

Regulations should address what

happens with program alternatives or

PAs that were executed before the

effective date of the new regulations.

Such agreements are still valid and will

continue to be in effect according to

their terms.

Section 800.3(b)

The section should read that the

Agency Official ‘‘may coordinate

* * *.’’ Council cannot require such

coordination. The comment misreads

the proposed rule. It only states that the

Agency Official ‘‘should coordinate,’’

implying encouragement, but not

requirement.

Section 800.3(c)

30 day response period is too long

and only ensures the destruction or

damage to an archeological site where

the project went forward because of the

necessities of the mission. A 15 day

response period would be much more

appropriate in recognition of the rapid

forms of communication available. The

Council disagrees. The 30 day time

period reflects an adequate balance

between project need for expediency

and workload requirements on

reviewers.

Either delete section 3(c)(3)

altogether, or add further guidance or

regulatory definition of the phrase

‘‘* * * and to the nature of the

undertaking and its effects on historic

properties.’’ Also, delete any discussion

of timing in section 3(c)(4). It

erroneously implies that nearly

everything submitted to the SHPO falls

under a 30 day review period. Review

time periods should simply be

referenced in the various sections of

§§ 800.4–800.6. The rule indeed

imposes a 30 day limit on SHPO/THPO

at each step of the process where a

formal response is required to findings

and determinations, unless otherwise

noted. See § 800.3(c)(4). SHPO/THPO

cannot require the process to stop by

failing to respond by the end of this

period. On the other hand, there is no

such clock for consultation alone (e.g.,

regarding APE or for seeking ways to

avoid, minimize or mitigate adverse

77704 Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations

effects). All that the Federal agency

needs to do regarding such consultation

is to make a reasonable effort to consult

(which may or may not take 30 days)

and move forward with the process.

Section 800.3(d)

Once SHPO declines to participate,

Federal agencies should have no

further burdens. To the extent that the

Council is relying on SHPOs to

comment or consult on its behalf under

section 106, the agency complies with

section 106 by providing SHPO

(Council) an opportunity to comment.

Rule should also contain presumption

that SHPO concurs with a written

finding if it does not respond within 30

days. Accordingly, § 800(d) should

read: (1) If the SHPO declines in writing

to participate, or otherwise cooperate,

in the section 106 process, the Agency

Official shall proceed as it believes

appropriate; (2) If the SHPO does not

respond within 30 days to a written

finding under this part, or sooner if

reasonably requested by the Agency

Official, a presumption of concurrence

with such finding shall be created.

Federal agency obligations under

section 106 of the NHPA do not

terminate when the SHPO or any other

entity declines to continue

participating. SHPOs do not comment or

participate in consultation on behalf of

the Council. A process of allowing the

agency to proceed without any Council

review when SHPO declines to

participate or respond within the 30

days is inconsistent with the letter,

intent and spirit of the law. Nothing in

the NHPA indicates in any way

whatsoever that Federal agency

responsibilities under section 106

disappear once a SHPO refuses to

participate. The statute mandates

Federal agencies to take into account the

effects of their undertakings on historic

properties and afford the Council a

reasonable opportunity to comment

regardless of what any other entity does

or does not do. 16 U.S.C. 470f. It is

noted that the rule does have certain,

reasonable presumptions of concurrence

when a response does not come in time.

See particularly, § 800.3(c)(4).

Section 800.3(f)

The regulations do not give adequate

guidance regarding federally

designated THPO’s, Federally

recognized tribes without a designated

THPO, and federally recognized tribes

not occupying tribal lands. Guidance is

also needed to identify associated

tribes, crosscutting boundaries or

ancestral lands, differentiate among

differing views of ancestral lands to

ensure that tribes’ rights are addressed

without impinging upon the property

rights of private landowners. Such

information can be provided in

guidance but is not appropriate in a

rule. Furthermore, see information

above regarding Council/NPS project

regarding assistance to Federal agencies

regarding ancestral lands.

Section fails to establish who is

responsible for establishing the list of

consulting parties, setting a time limit

in which the SHPO should respond,

and defining what constitutes a good

faith effort in doing so. This comment

is incorrect. The proposed rule does

establish that the Agency Official is

ultimately responsible for establishing

the list of consulting parties. It also sets

forth the 30 day comment period. The

meaning of a ‘‘good faith effort’’ will be

better handled through guidance.

Section 800.4(a)

This is a useful and important

provision. Minor wording changes are

proposed to remove any suggestion that

the SHPO is responsible for the

decision: ‘‘(a) Determine scope of

identification efforts. In consultation

with the SHPO/THPO and other

consulting parties, the Agency Official

shall (1) Determine and document the

area of potential effects, as defined in

§ 800.16(d); etc.’’ The Council agreed

with this recommended amendment

since it clarifies that the ultimate

decision here is made by the Agency

Official. However, the phrase ‘‘and other

consulting parties’’ was removed from

the recommended language since the

obligation to consult at this stage would

not extend to other consulting parties.

Section on determining Area of

Potential Effect fails to include time

limit for a response by SHPO or other

consulting parties to an agency’s

determination of APE. As stated above,

the agency obligation is to consult.

Failure by SHPO/THPO to respond to

consultation within a reasonable time

would allow agency to finalize its

unilateral determination of the area of

potential effect and move forward in the

process.

Indian Tribes are given broad

discretion to designate any property to

which they attach religious and

cultural significance, whether or not

within tribal lands, as historic in the

context of the consultation process.

There are no standards directly

relevant to the eligibility of such

properties for the National Register.

The broad discretion creates great

uncertainty, delay, and costs. The rule

should contain criteria on designating

religiously or culturally significant

properties. This comment is incorrect.

These properties must be ‘‘historic

properties’’ and therefore meet the

National Register criteria. They must

follow the same process as other

potentially historic properties.

Requirement to consult with SHPO

regarding the APE should be deleted. It

needlessly extends the already

protracted consultation process without

any concomitant benefits. The Council

believes that consultation with SHPO is

valuable at this critical point to avoid

later problems. Furthermore,

consultation with the SHPO/THPO at

this critical decision making point has

always been viewed as an important

part of the process. The Council decided

to retain the duty to consult with the

SHPO/THPO since the Council believes

that SHPO/THPOs have special

expertise as to the historic areas in their

jurisdiction and the idiosyncracies of

such areas, and can greatly assist the

Agency Official, using such expertise, in

determining an accurate area of

potential effects. Nevertheless, it is

noted that the Federal agency is

ultimately responsible for making the

final determination about the area of

potential effect (i.e., the concurrence of

the SHPO/THPO in such determination

is not required).

In the case of scattered site housing

rehabilitation program, the Agency

Official should have the authority to

determine that (1) the area of potential

effect is limited to the property to be

rehabilitated, and (2) any structure to

be rehabilitated that is less than 50

years old is not considered eligible. The

result would allow scattered site

housing rehabilitation to proceed in a

responsible manner without adding a

time-consuming consultation process

with no apparent benefit to the public

or environment. The Council disagrees.

Not all scattered site projects are the

same. Where a block of properties are to

be rehabilitated, the historic district

may be affected. The less than 50 years

old exemption should be handled

during negotiation of a Programmatic

Agreement.

Given that some of the tribes with

ancestral interest in a project area are

no longer physically located within the

state, it is difficult or unfeasible to

comply with this provision. The reg

needs to set some practical limits on

consulting with Tribes in identifying

historic properties. The NHPA does not

set such limits on consultation. The

location of tribes and the boundaries of

tribal lands are consequences of history

to which tribes were subjected.

Accordingly, the fact that a tribe may

not live on or near a significant property

should not be an impediment to its

participation in consultation. As stated

above, this is the subject of a guidance

Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations 77705

project currently under way between the

Council and the National Park Service.

The regulations should set forth a

process to follow when the SHPO

disagrees with an agency determination

of the area of potential effects (APE)—

similar to the process for

determinations of eligibility. Also, we

need further guidance on what is

considered ‘‘documenting’’ the APE.

The Council believes the process in the

rule regarding APE should remain

unchanged. The determination of APE

should be ultimately done by the

Federal agency in consultation with the

SHPO. SHPO can seek informal advice

from the Council. Guidance could be

developed regarding what is considered

‘‘documenting’’ the APE.

Section 800.4(b)

Comments recommended that the

provisions of section 106 be extended

only to properties formally determined

eligible, and that this section should

therefore be deleted. The Council

disagrees. Both the Council and the

Department of the Interior have

interpreted the NHPA to require section

106 consideration of all properties that

are listed on the Register, as well as all

those that meet the criteria of eligibility

on the National Register, regardless of

whether a formal determination by the

Keeper has been made. Well established

Department of the Interior regulations

regarding formal determinations of

eligibility specifically acknowledge the

appropriateness of section 106

consideration of properties that Federal

agencies and SHPOs determine meet the

National Register criteria. See 36 CFR

63.3. The NHPA specifically defines

‘‘historic properties’’ as those that are

‘‘included in, or eligible for inclusion on

the National Register.’’ 16 U.S.C.

470W(5). Not only does the statute

allow this interpretation, but it is the

only interpretation that reflects (1) the

reality that not every single acre of land

in this country has been surveyed for

historic properties, and (2) the NHPA’s

intent to consider all properties of

historic significance. It has been

estimated that of the approximately 700

million acres under the jurisdiction or

control of Federal agencies, more than

85 percent of these lands have not yet

been investigated for historic properties.

Even in investigated areas, more than

half of identified properties have not

been evaluated against the criteria of the

National Register of Historic Places.

These estimates represent only a part of

the historic properties in the United

States since the section 106 process

affects properties both on Federal and

non-Federal land. Finally, the fact that

a property has never been considered by

the Keeper neither diminishes its

importance nor signifies that it lacks the

characteristics that would qualify it for

the National Register.

Rule should clarify that the section

106 process does not impose

identification burdens upon the private

applicant. Although identification

obligations are placed on Federal

agencies, in reality the burden is often

passed on to the applicant through

delays or conditioning the agency’s

decision until the applicant has funded

the identification efforts. Federal agency

ability to shift burden to applicant is

dependent on that agency’s independent

authority. The section 106 rule does not

confer such authority nor relieve

Federal agencies of its duties. This may

be an appropriate guidance topic to be

developed.

Regulations fail to respect the

National Register nomination and

listing process and grant unbridled

authority to impose section 106

requirements on properties already

deemed ineligible. Properties that are

determined ineligible are not subject to

section 106 consideration. Revisiting

eligibility determinations is encouraged

on certain occasions, but not mandatory.

Any imputation of a new substantive

duty under section 106 to discover

unidentified properties is negated by

the detailed provisions for the

discovery of unknown properties

contained elsewhere in NHPA. The

Council disagrees. The obligation to

identify during planning is different

than coming across something during

construction. Further obligation is

limited in scope, duration and intensity.

The ‘‘discovery’’ provisions of the

NHPA do impose a continuing duty to

survey and identify historic properties.

See 16 U.S.C. 470h–2(2)(A). However,

the reality is that such an effort has not

reached every acre of land of this

country that could be affected by a

Federal undertaking, and the NHPA

seeks to protect historic properties even

if they had not been identified prior to

the proposition of an undertaking. This

is clearly reflected in the statute where

it provides, for example, that agency

procedures implementing the Council’s

section 106 rule would provide a

process for identifying historic

properties. 16 U.S.C. 470h–2(a)(2)(E)(ii).

The NHPA would not contain this

language if it believed the other, general

surveying provisions were sufficient.

Since SHPOs are statutorily required

to conduct comprehensive statewide

surveys of historic properties (section

101(b)(3) of NHPA), Federal agencies

and permit applicants should not have

to be required to engage in field

investigations or surveys. SHPOs

should already know what historic

properties exist. No. Agency obligation

to ‘‘take into account’’ effects on historic

properties necessarily places an

affirmative duty to identify historic

properties. The Council notes that the

rule does not compel shifting of such

agency burden to applicants. Also,

please refer to the immediately

preceding response.

Although proposed rule on its face

may place identification efforts on

Federal agencies, the reality is that

these burdens are borne by applicants.

This is usually done by delaying or

conditioning the Federal decision until

the applicant has funded the

identification effort requested by the

SHPO or Council. This tactic is

improper and the rule should clarify

that the process does not impose the

burden upon applicants through either

direct or indirect means, including

delays. The rule does not compel

shifting of this or other Federal agency

burdens to applicants. Section 106

obligations lie with the Federal agency.

Although Federal agencies may be

requiring submissions, as a basis of

accepting applications, this is not

compelled by the rule.

Council only has authority to

promulgate rules regarding section 106.

Since section 106 does not address the

identification of historic properties or

evaluation of historic significance, the

Council has no authority to regulate

these activities. The duty to identify

historic properties are placed upon

Federal agencies, the Secretary of the

Interior, and SHPOs under other

sections of the NHPA (namely sections

101 and 110). The Council disagrees.

The NHPA grants the Council the

authority to promulgate regulations

regarding section 106 ‘‘in its entirety.’’

16 U.S.C. 470s. It would be impossible

for an agency to take into account the

effects of its undertakings on historic

properties (which include those listed

on the Register, as well as those eligible

for listing), as section 106 requires, if it

does not know what those historic

properties are in the first place.

Accordingly, the identification and

evaluation provisions of this rule are

reasonable under the authority. Also,

see response to comment above

regarding ongoing identification duties.

This provision for phased

identification and evaluation using an

MOA is inconsistent with our prior

understanding that an MOA should be

used exclusively to stipulate mitigation

measures for properties that have been

identified and fully evaluated. With this

change, why would an agency do a

project specific PA? Phased

identification acknowledges the reality

77706 Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations

of large projects. A programmatic

agreement may be an alternative, but

this provision expands the flexibility of

the rule.

Section 800.4(c)

This section should be revised to

overcome the current perception that

agencies are required to identify every

single specific property that may be

affected and study each sufficiently to

apply the National Register criteria.

This drives up the cost of S. 106

consultation, unnecessarily delays the

process, discourages consideration of

indirect and cumulative effects, and

complicates coordination with NEPA.

The provision for phased ID and

evaluation helps, but § 800.4(a) should

be revised to make it clear that it is

permissible to address eligibility

prospectively, and to focus on ‘‘types of

properties’’ rather than to identify

every single property. The phased

identification provisions of the rule are

intended to deal with this issue. The

Council intends to provide guidance

regarding phasing.

Section 800.4(c)(1) is misleading in

stating that tribes have ‘‘special

expertise in assessing the eligibility of

historic properties that may possess

religious and cultural significance to

them.’’ Their expertise is not in

applying the criteria of eligibility, it is

in identifying some kinds of historic

properties and in identifying effects

that might not be apparent to others.

The current wording sets up the tribes

to overrule decisions made by agencies

and SHPOs. The Council clarifies that

tribal expertise is not in applying the

eligibility criteria per se, but in bringing

a special perspective to how a property

possesses religious and cultural

significance. This reflects the fact that

such Tribes are particularly well placed

to provide insights and information on

those properties of religious and

cultural significance to them. It is

common sense to reach out to the Tribes

regarding these issues.

Requiring eligibility determination

from the Keeper when SHPO disagrees

with Agency Official determination

gives SHPO a veto over the project. The

Keeper eligibility process is so lengthy

that applicants have no alternative but

to go along with the SHPO’s position

regarding time-sensitive projects. SHPO

can delay projects simply by claiming

not to have sufficient information.

Department of the Interior regulations

require a response from the Keeper

within 45 days. Those regulations also

recognize the concurrent Agency/SHPO

determination scheme. See 36 CFR part

63. The section 106 rule does not

encourage wrongful delays by any party.

Cases where an abuse of the process is

suspected can always be brought to the

attention of the Federal agency

conducting the review and/or the

Council.

Proposed rule gives Tribes the de

facto ability to designate any property

to which they attach religious and

cultural significance as a historic

property. Tribes can then pressure the

Agency Official to take their concerns

into account above all others. Proposed

rule effectively requires Federal

agencies to defer to Indian tribes on

what properties are reached by section

106, and give added (if not dispositive)

weight to religious considerations in

that determination. The Council

disagrees. Properties of religious and

cultural significance to Tribes must

meet the National Register criteria in

order to be considered ‘‘historic’’ and

subject to section 106 consideration.

The fact that a Tribe attaches religious

and cultural significance to them does

not make them ‘‘historic,’’ but neither

does it preclude them from meeting the

National Register criteria. The Federal

agency makes the determination of

eligibility, and disputes are ultimately

resolved by the Keeper based on the

secular National Register criteria. The

Tribe is consulted but, again, the

ultimate decision in the case of a

dispute with the Federal agency finding

by a SHPO/THPO, is the Keeper.

The NHPA does not empower the

Council to require Agency Officials to

obtain a determination of eligibility

from the Keeper. In fact the NHPA

prohibits ‘‘any person or local

government’’ from providing a

nomination for inclusion of a property

on the Register unless such property is

located within a State where there is no

SHPO. Moreover, this is redundant

with 36 CFR part 63. There is no basis

for requiring SHPO concurrence or

agreement. Finally, the NHPA expressly

prohibits the nomination of any historic

property for the Register where the

owner objects. 16 U.S.C. 470(a)(6). Such

prohibition should be integrated into

the proposed rule to reflect that when

such objection is lodged with a Federal

agency, they may terminate their

section 106 review. The comment fails

to realize that a determination of

eligibility is not the same as a

nomination/listing on the National

Register. The Council also points out

that under the NHPA, an owner’s

objection to a nomination/listing still

can lead to the Secretary of the Interior

determining the eligibility of the

property. It should also be noted that

this rule provides that an owner of an

affected property can, and should be,

invited as an additional consulting party

in the section 106 process. See

§ 800.2(c)(6) of the rule. Finally, see

responses above to the issue of Agency/

SHPO concurrence determinations of

eligibility.

Various comments comment

suggested that in the last sentence, the

word ‘‘special’’ should be changed to ‘‘unique.’’

The Council disagreed. The word

‘‘unique’’ excludes everyone else and

gives the incorrect impression that

Tribes have the final word that cannot

really be challenged by the Agency.

Also, see response above regarding the

need of properties of ‘‘religious and

cultural significance’’ to Tribes to meet

National Register criteria in order to be

considered ‘‘historic.’’

Section 800.4(d)

The addition of a 30 day waiting

period, even when no historic

properties are identified, is

unreasonable. Suggest that the waiting

period after submission to SHPO/THPO

be eliminated consistent with previous

regulations. The Council disagreed.

This period is necessary so the

consulting parties and the Council can

review the finding responsibly and

object if appropriate. Such review also

allows mistakes to be caught in time

before they potentially lead to costly

litigation.

Move this subsection under § 800.5

and re-title § 800.5 to ‘‘Assessment of

Effects.’’ The proposed change was

rejected since these are outcomes of

identification and effect assessments.

However, the Council may draft

guidance on the topic of assessment of

effects.

Section 800.5(a)

A tribal comment stated that the

exemption of properties of religious and

cultural significance from the

demolition by neglect provision

(§ 800.5(a)(2)(vi)) is so broadly written

that it could lead to the loss of National

Register districts in pueblos and other

Native communities. This provision had

been added at the request of Indian

tribes. It specifies that the exception

only applies where neglect and

deterioration are recognized qualities of

the property. A further safety valve is

that a ‘‘no adverse effect’’ determination

is subjected to review by consulting

parties (which would include Tribes

that attach religious and cultural

significance to the historic property at

issue). See § 800.5(c). Lastly, the

Council is not aware of this provision

having been applied inappropriately or

over the objections of Tribes.

Criteria of adverse effect too broad,

and encompasses activities of benefit to

the public. Accordingly, such activities

Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations 77707

are delayed. Examples of such activities

are: reclamation of abandoned mines,

creation of wetlands, ‘‘hazardous

material remediation’’ (§ 800.5(a)(2)(ii)),

rehabilitation of historic properties,

and provision of handicapped access.

Adverse effect criteria are linked

specifically to objective National

Register criteria published by the

National Park Service, which are used to

determine characteristics that contribute

to a property’s historic significance. If

those characteristics are adversely

affected, then the historic significance is

impaired. It is noted that program

alternatives under § 800.14 are intended

to deal with repetitive or minimal

impact situations. Finally, while the

listed activities may be of benefit to the

public, it does not necessarily follow

that such positive activities could not

also cause an adverse effect on historic

properties. Again, all that the section

106 process requires is that such effects

be taken into account. The section 106

process does not prohibit any projects,

beneficial or otherwise.

Proposed rule uses impermissibly

vague and overbroad terms, in violation

of the Due Process Clause. Its definition

of ‘‘adverse effects’’ includes those

when an undertaking ‘‘may’’ alter

‘‘indirectly’’ ‘‘any’’ of the

characteristics making the property

eligible in a way that would diminish

the integrity of the property’s ‘‘feeling’’

or ‘‘association.’’ Such definition does

not give fair notice as to what it

requires, and is not grounded on

intelligible principles. This further

complicates, expands, and lengthens

the process, adding difficulties, costs

and uncertainty. As stated above,

adverse effect criteria are linked

specifically to objective National

Register criteria published by the

National Park Service. The National

Register criteria itself expands on the

meaning of its terms and provides

various examples. These criteria have

been fleshed out through consideration

and application countless times, over

the years, since the program began, and

explained through various guidance

documents. For example, see National

Register Bulletin 15, ‘‘How to Apply the

National Register Criteria for

Evaluation,’’ which includes definitions

of the terms ‘‘feeling’’ and

‘‘association.’’

Criteria of adverse effect should

exclude ‘‘insignificant’’ transfers of

property. De minimis transfers of

property are being subjected to lengthy

section 106 process. The rule provides

for an avenue, under § 800.14(c),

whereby the appropriate agency can

pursue an exemption.

The criteria of Adverse Effect is

devoid of any limitations on the

proximity of an undertaking to a

historic site, allowing the SHPO to be

inconsistent and subjective when

evaluating effects. The standard set

forth under section 106 is effect, not

proximity. While it is possible that

distance separating an undertaking from

a particular historic property may

remove any effects, such a

determination should be made on a case

by case basis, and is not suitable for a

generalization. Different undertakings

simply have different areas of potential

effects according to several factors such

as the nature of the undertaking itself,

the nature of the historic property at

issue and topography.

The current and proposed rule do not

take into account the fact the

cumulative impact of adding a

monopole to areas with modern

intrusions would not be an adverse

effect. The proposed rules, therefore,

will lead to consultative gridlock as the

expansion of wireless services

continues. This and several other issues

mentioned by the telecommunications

industry in this rulemaking process

have been or are in the process of being

addressed through ongoing discussions

with the industry, the FCC and SHPOs.

These discussions commenced before

the present rulemaking process. Such

ongoing discussions are referred

hereinafter as ‘‘Telecommunications

Working Group.’’

Section 800.5(b)

Final decision regarding adverse

effects is charged on the Agency

Official. Council has no authority to

impose its determination on this matter.

Council may comment on the issue, but

the final decision is to be made by the

Agency Official. The Council has used

its expertise in setting up the criteria of

adverse effects on this rule. It therefore

has a justifiable role and the expertise

in ensuring the correct interpretation of

its rule. Section 800.7 of the rule is clear

in stating that the Agency Official can

terminate consultation on ways to

avoid, minimize or mitigate adverse

effects, and request Council comments.

The Agency Official can then proceed

with its undertaking in any way it

wants, after taking the Council’s expert

comments into account.

There is no basis for mandating

consultation regarding adverse effects.

To the extent that other sections of the

NHPA require Agency Official

consultation with the SHPO, these

provisions are not to be implemented

by section 106 regulations of the

Council. The Council believes this

consultation is reasonable and necessary

in that it provides the Federal agency

with the information and considerations

needed for it to take into account the

effects of its undertakings on historic

properties. Consulting parties are

defined in such a way as to ensure they

have the necessary interest and

competence in informing Federal

agency decisions on historic properties.

As elsewhere in the process,

consultation ensures that correct and

informed decisions are made and that

mistakes are not overlooked. See

response regarding legal authority,

below.

To address agreements like

Community Development Block Grant

(CDBG) Programmatic Agreements, the

Council should add language which

recognizes situations where the specific

details of future activities are unknown

and the consulting parties agree that

adverse effects will be avoided through

review and standard mitigation

measures. Such language can, and many

times is, used and provided for in the

Programmatic Agreements themselves.

There is no need to add this language to

the process under the rule to reach such

agreements. As stated before, the

Council has revised the rule to provide

for prototype agreements, which could

be particularly helpful in the CDBG

context.

Section 800.5(c)

Proposed rule gives Tribes power to

require further analysis (and therefore

delay) under the process whenever they

attach religious or cultural significance

to a property. Tribes are provided the

same consultative opportunities to

review an agency’s findings that other

consulting parties are provided. The

rule only encourages, but clearly does

not require, the agency to reach such

concurrence. See response above to

comments regarding properties of

‘‘cultural and religious significance.’’

Also see section 101(d)(6)(B) of the

NHPA.

Subsection (c)(1) is directly contrary

to NHPA since NHPA only requires

documentation when an adverse effect

is found. 16 U.S.C. 470(l). This

comment misreads the statute. Section

110(l) of the NHPA simply indicates

that when no solution to adverse effects

is reached and embodied in an

agreement in accordance with this rule,

the Federal agency must document its

decision after considering Council

comment. This is completely different

than providing the documentation

necessary for reviewers to understand

agency decisions in the normal section

106 process, which is reasonable and

not precluded by anything in the

statute.

77708 Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations

Subsection (c)(2) must clarify that a

finding of adverse effect does not

require consultation under section 106.

The Council is provided a reasonable

opportunity to comment under section

106. The Council disagrees. Section

110(l) of the NHPA explicitly indicates

its blessing of the Memorandum of

Agreement consultation concept when it

states that when no such solution is

reached in accordance with this rule,

then the agency head must document its

decision after considering Council

comment. Furthermore, the rule clearly

states that once a Federal agency has

entered into such consultation, it can

terminate and proceed to Council

comment.

Regarding § 800.5(c)(2)(i), anytime a

consulting party objects to a finding, the

Federal agency should notify all

consulting parties and consult again

with all parties prior to seeking

consultation with the Council.

Regarding 5(c)(3), the Council should

also notify all consulting parties of its

determination. Regarding the

§ 800.5(c)(2)(i) point, the Council

clarifies that if consultation with the

objecting party leads to changes

affecting other parties, the Agency

should go back to them. The Council

also notes that it would notify all

consulting parties regarding its

§ 800.5(c)(3) determination.

Section 800.6(a)

The regulations grant an

unconstrained authority to require

mitigation to avoid adverse effects with

no constraints on cost and without

requiring any nexus between the

mitigation and actual adverse effect.

Comment is incorrect. The agency can,

based on the applicant’s position, refuse

any mitigation measures and terminate

consultation. Furthermore, the rule is

quite clear in that the consultation that

may lead to an agreement is to avoid,

minimize or mitigate the adverse effects

on the historic properties.

Rules should provide that any

Adverse Effect comment should include

recommendations and core criteria for

mitigation to reduce the effects to No

Adverse Effect. While this is

permissible, the Council believed the

rule should not require it as a duty of

SHPO/THPO at the determination of

adverse effect step. Review at that point

is intended to focus on identifying

whether adverse effects exist, and not to

provide a full range of mitigation

options.

Section 800.6(b)

Proposed rule inappropriately

attempts to require parties to sign an

MOA to avoid additional delays from

Council comment on the undertaking.

Federal Register Council has no

authority to require execution of a

binding contractual agreement of any

kind. Section 110(l) does not mean that

the Council may compel the use of

MOAs. This is beyond Council

authority and must be deleted from the

rule. The rule does not require or

compel execution of an MOA.

Furthermore, section 110(l) of the NHPA

explicitly indicates its endorsement of

the Memorandum of Agreement (MOA)

consultation concept when it states that

(1) when no such solution is reached in

accordance with this rule, then the

agency head must document its decision

after considering Council comment, and

(2) when such an agreement is reached,

it shall govern the undertaking and all

its parts.

There is no specific time period for

Council review of a MOA when Council

is participating in consultation which

can significantly lengthen the section

106 compliance process. Regulatory

time limits or guidelines (30–45 days)

should be promulgated. Similarly, there

is no review time specified for Council

response to the submission of an

executed MOA. Recommend time limit

or guidelines of 30 days. The Council

consults regarding MOAs but does not

‘‘review’’ them. The Council does not

review executed MOAs, so there are no

delays of agency action.

Section 800.6(c)

Several comments requested changes

to the rule to clarify the issue of invited

signatories. The Council agreed that this

section needed to be changed. The

changes to the rule indicate that the

Agency Official is the one that

ultimately decides who is an invited

signatory, and that the rights to seek

amendment or termination of an MOA

attach to those that actually sign the

MOA.

A comment regarding 36 CFR

800.6(c)(2)(I) supported retention of the

permissive ‘‘may’’ in allowing agency to

invite an Indian Tribe or Native

Hawaiian organization to become a

signatory to a MOA, but would find a

language such as ‘‘should’’ or ‘‘shall’’ to

be unacceptable. Several tribal

comments, on the other hand, requested

that the tribes be given a signatory

right. This was a major issue during the

development of the 1999 rule. After

careful consideration, the

Administration made a policy decision

that is reflected in the proposed rule.

Indian tribes are not mandatory

signatories to an MOA dealing with

effects on historic properties off tribal

lands. The Council has no new evidence

to support changing that position.

SHPOs are given broad discretion to

determine appropriate mitigation for an

MOA, resulting in the process being

unregulated. This comment is incorrect.

The Federal agency has the discretion to

agree or disagree with SHPO/THPO

views regarding an MOA. When an

agreement is not reached, the agency

goes for Council comment to wrap up

the process.

Section 800.7(c)

There is no authority for the Council

to dictate to Federal agencies how they

consider Council comments, how they

document or prepare records of

decisions, nor how or whether they

notify the public, nor require the

agency to provide the Council with the

decision prior to approving the

undertaking. The NHPA specifically

grants the Council the authority to

promulgate rules to implement section

106 in its entirety. Section 106 requires

Federal agencies to give the Council a

reasonable opportunity to comment.

Section 110(l) of the NHPA explicitly

requires the Federal agency to document

its decision made pursuant to section

106. The Council is well within its

authority to implement these

requirements and determine how such

opportunity is provided the Council,

and how the required documentation is

provided.

Time for Council comment should be

limited to 30 days, and the Agency

Official could decide to grant an

extension if it so desired. The Council

believes the 45 day comment period is

reasonable, takes into account the

reality of staff and Council workload

and need for adequate consideration,

and reflects a shorter time period than

previous rules (the section 106 rule

adopted in 1986 set a 60 day period).

Section 800.8(a)

Rule contravenes NEPA by seeking to

require processing under NEPA of

undertakings that have no significant or

no adverse impact on historic

properties. The Council emphasizes that

the rule clearly does not require NEPA

processing for anything. That is

something the Federal agency must

decide independently.

Rule contravenes NEPA in that it

undermines the categorical exclusion

provisions of NEPA by requiring section

106 processing for all categorically

excluded Federal actions and failing to

provide a compatible process for

excluding from section 106 those

actions that have small or insignificant

impacts, thus causing waste of

enormous public and private

compliance resources struggling with

the least measurable and least

Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations 77709

important Federal actions. The

statement is incorrect. Section 106 of

the NHPA covers ‘‘undertakings’’

regardless of NEPA categorical

exclusions. The NHPA and NEPA are

independent statutes with separate

obligations for Federal agencies.

Furthermore, § 800.14(c) provides for a

way that agencies can request and

obtain exemptions.

Section 800.8(c)

Comments suggested need for

guidance to facilitate use of provisions

allowing substitution of NEPA for

section 106 process. The Council is

committed to develop such guidance

and assist Federal agencies that desire to

follow these provisions of the rule.

Any integration of the NEPA process

with section 106 should allow EAs as

well as EISs to constitute full

compliance with section 106. Section

800.8(c) of the rule allows just that

when certain reasonable standards are

met. Those standards ensure that

historic properties are taken into

account in a manner consistent with the

NHPA.

Council has no authority to prescribe

rules regulating Federal agencies’ use of

NEPA to comply with section 106. Such

an approach was rejected during the

1992 amendments. The Council notes

that the NEPA coordination provisions

of this rule only apply when the Federal

agency independently chooses NEPA

documents/process to substitute for the

regular section 106 process that they

would have had to follow otherwise.

The Council has the authority to set

conditions for an agency to substitute

another process for the Council’s

government-wide rule.

Requirement that the NEPA

documents include mitigation measures

should be deleted. The Supreme Court

has stated repeatedly that NEPA

mandates that mitigation measures be

discussed, but that there is no

requirement that a detailed mitigation

plan be adopted. The Council has no

authority to attach such a requirement

to the NEPA process. Again, the NEPA/

106 substitution provisions of this rule

apply only when the NEPA process is

used to substitute regular section 106

process that the Federal agency would

have had to follow otherwise. Nothing

in the rule requires adoption of

mitigation measures since the option of

getting formal Council comments

instead is still available.

Section 800.9(a)

It is not the responsibility of the

Council to decide whether or not their

procedures have been followed

regarding Agency determinations. The

only Council right is to expect a

reasonable opportunity to comment and

that its comments will be considered

before the agency proceeds with the

undertaking. The rule makes it clear

that this is not a binding ‘‘decision’’ by

the Council, but an advisory opinion

(see section 202 of the NHPA). The

Council, as the agency promulgating the

section 106 rule, has the specific

expertise and interest in opining as to

whether its rule has been correctly

followed.

Section 800.9(b)

The process in § 800.9(b) regarding

the Council’s determination of a

foreclosure lies outside of the Council’s

authority. A finding of foreclosure is an

advisory opinion within the Council’s

authority (see Section 202 of the NHPA).

The Council, as the agency

promulgating the section 106 rule, has

the specific expertise and interest in

opining as to whether its rule has been

correctly followed.

Section 800.9(c)

Comments questioned the statutory

authority for Council to promulgate

regulations implementing section

110(k) of the NHPA. Section 211 of the

NHPA authorizes the Council to

promulgate regulations to implement

section 106 in its entirety. Section

110(k) directly relates to the section 106

and what an agency must do when an

applicant’s actions may have precluded

section 106 review. Moreover, section

110(k) specifies a requirement that the

Council be consulted. The rule simply

re-states Section 110(k), sets forth how

the Council will be consulted, and

reminds agencies of their further section

106 responsibilities.

Section 800.9(d)

Council’s assertion, under

§ 800.9(d)(2), that it can participate in

individual case reviews, however it

deems appropriate, finds no support in

any section of the NHPA and should be

deleted. The Council changed the rule

in response to this comment. The

change expressly limits the role of the

Council in such reviews to accord with

the role already given to the Council

under subpart B and parallel to that of

SHPO/THPOs.

Section 800.10

A comment questioned the statutory

authority for Council to promulgate

regulations implementing Section 110

of the NHPA. Section 211 of the NHPA

authorizes the Council to promulgate

regulations to implement section 106 in

its entirety. The Council notes that

undertakings affecting National

Historical Landmarks (NHLs) are subject

to section 106 review. NHLs are

‘‘historic properties’’ listed on the

National Register. The provisions of

§ 800.10 lay out how the Council may

participate in the section 106 review of

these particularly important historic

properties, how the Council may request

a report from the Secretary of the

Interior pursuant to section 213 of the

NHPA, and how the Council will

provide a report to the Secretary on the

outcome of the consultation.

Section 800.11(a)

NHPA section 470k limits the

substance and extent of any

documentation requirement dependent

upon each Federal agency’s authority

and funding; therefore the proposed

§ 800.11 should be revised to clarify

that the rules’ documentation

requirements are not mandatory but are

recommended guidelines consistent

with NHPA 470k and the Council’s

advisory role. To better comport with

statutory language, § 800.11 was

changed by adding language that

clarifies that documentation

requirements are mandatory but limited

‘‘to the extent permitted by law and

within available funds.’’ 16 U.S.C. 470k.

The documentation provisions remain

mandatory since the Council and other

reviewers simply cannot comment

without a basis, which can only be

provided by adequate documents. The

Council believes that the document

requirements are not only minimal, but

should be readily available to any

agency as its record supporting its

decisions in the process.

When a documentation dispute is

presented to the Council, it must be

resolved in a timely manner. When

documentation disputes are referred to

the Council, the Council is committed to

expeditiously providing a resolution to

them. The resolution provided by the

Council will include guidance as to

when the relevant party should

complete their review of the finding or

determination at issue—taking into

account how long the party disputing

the documentation has had the

documentation, particularly in cases

where such documentation is deemed

by the Council to have been adequate.

Documentation standards are

extremely broad, and likely to create

confusion. Specific standards should be

included that reference and adopt, at a

minimum, documentation sufficient to

satisfy the definition of ‘‘sacred site’’ in

EO 13007 (‘‘any specific, discrete,

narrowly delineated location on

Federal land that is identified by’’ an

authoritative Indian tribal source).

Documentation standards are

77710 Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations

adequately specific and far more

specific than those of past regulations.

The matter about defining ‘‘sacred sites’’

is better handled through guidance.

Nevertheless, the Council clarifies once

more that sites, sacred or otherwise,

must meet the National Register criteria

in order to be considered in the section

106 process.

Questions statutory authority for

Council to impose extensive

documentation requirements. Section

110(l) of the NHPA requires agencies to

document their section 106 decisions,

but does not authorize Council to

elaborate. Section 203 of the NHPA

authorizes the Council to obtain

information from Federal agencies, but

does not require those agencies to

provide the information. Section 203 of

the NHPA would be meaningless if it

authorized the Council to obtain

documents from Federal agencies, but

did not require such agencies to comply

according to the law. Furthermore, the

Council is within its statutory authority

to promulgate regulations implementing

section 106 in its entirety, in setting the

rule’s reasonable documentation

requirements. Documenting decisions

not only assures meaningful compliance

with the requirement to take into

account effects to historic properties,

but it produces the necessary

information for consulting parties to

assist the Federal agency in meeting its

duties. Furthermore, the Council would

not have a reasonable opportunity to

comment on an undertaking without

having adequate documentation on the

undertaking and relevant historic

properties, as provided in this section of

the rule.

Section 800.11(c)

It is too cumbersome for the agency

to be required to consult the Secretary

of the Interior and the Council every

time it wishes to withhold information

under this provision. This consultative

process is set forth and mandated by

section 304 of the NHPA. The rule

simply outlines a reasonable process for

the Council participation required by

section 304.

Regarding § 800.11(c)(2), the Agency

official should also submit to Council

the views of SHPO regarding the

confidentiality of information. The

Council agreed and changed the rule to

reflect this. SHPOs views as to

confidentiality and harm to resources

are relevant, and confidentiality is not

limited to tribal issues.

Section 800.11(d)

Documentation level for a finding of

no Historic Properties Affected is

unreasonable. The Council believes the

level of documentation is more than

reasonable, if not minimal, since the

agency should already have the listed

documentation readily on hand in order

to have been able to reach such a

decision.

Section 800.11(e)

Section 800.11(e)(5) should require

that each criteria of adverse effect be

explained, whether found applicable or

inapplicable, to ensure consistency in

agency documentation. The Council

disagreed with this proposal. Many

criteria may have no relevance

whatsoever to a particular project.

Nevertheless, the Council believes some

guidance may be warranted in the future

to promote consistency in agency

documentation.

Section 800.12(a)

It is not clear how the regulations

apply during rehabilitation work,

monitoring the emergency from a

cultural resources perspective, or when

to implement the regulations during

emergency situations. The Council

believes the rules are clear that the

emergency provisions are triggered

when an agency proposes an emergency

undertaking in response to a declared

disaster. The provisions require

notification and a seven day review

period.

Section 800.12(d)

Implementation time for emergency

procedures should be extended from 30

days for a formally declared event to 90

days in order to allow for limited

agency resources to adequately address

all the issues that arise from a disaster

related event. The longer an

implementation time is extended, the

lesser the justification for emergency,

abbreviated procedures. Furthermore,

the rule already allows requests for

extensions of time when needed. The

Council has not declined any such

extension requests.

Section 800.13(b)

Agencies often do not often want to

assume a new find to be National

Register eligible. To address this, the

comment offered a proposed change.

The Council believed the suggested

concept was useful and incorporated

changes to the rule. The changes state

that the subject of eligibility can be

raised (and be considered by agency) in

comments. As explained above, section

106 applies to those properties listed or

eligible for listing on the National

Register. This change acknowledges the

importance of National Register

eligibility at this point.

Section 800.13(b)(2) should be

removed for the same reason that the

data recovery exemption was removed

from the 86 regulations. The Council

disagreed. A short cut for these postreview discoveries of archaeological

resources of value only for their data is

necessary. The Council believes that

tribal involvement will provide an

adequate safeguard.

Section 800.14

The program alternative provisions

are too rigid, intimidating and difficult

to apply and create a one-size-fits all

approach. The revised regulations

should make this provision more useful

so that it can be applied more

productively to Federal agencies and

industry. What the alternatives under

§ 800.14 do is to provide vehicles to

tailor the section 106 process to the

particular needs of each agency, agency

program or group of undertakings.

While the intent is to provide such

flexibility in the final product, it is still

essential to maintain the role of the

public, preservation officers and other

stakeholders in providing necessary

input in shaping those products.

Section 800.14(a)

Include a provision for Council

monitoring and evaluation of whether

Federal agency program alternatives

are working or not. Council monitoring

of program alternatives should be on a

regular basis, including, but not limited

to, how agencies implement the

‘‘exempted categories’’ projects. Also,

add a provision for the Council to

publish a list of acceptable Federal

Agency alternative programs and make

them available to the public.

Monitoring measures would be

included, as appropriate, in the

alternatives’ agreements themselves.

Regarding a list of Council approved

alternatives, the Council does not need

a change to its rule to publish such a

list.

Since agency must submit any

proposed alternate procedures for

review by Council and NCSHPO,

requirement for publication in the

Federal Register should be eliminated.

The Council disagrees. Federal Register

notice of final adoption of these

alternatives is needed to notify the

public as to these changes in how

Federal agencies comply with section

106.

Regarding all of § 800.14, the Council

is granted no rights under the NHPA to

be consulted with about Federal agency

development of their procedures.

Section 110(a)(2) requires consultation

with the Secretary of the Interior, but

not with the Council. Federal agencies

Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations 77711

may find consultation with the Council

desirable, but it is not required by the

statute. The comment simply misreads

section 110(a)(2) of the NHPA. That

section deals with non-binding

procedures that agencies may use to

implement the Council’s binding,

section 106 regulations under 36 CFR

part 800. The alternatives under section

800.14 directly modify or substitute for

the Council’s binding regulations

regarding certain programs or

undertakings, and therefore require our

direct involvement. The Council

believes it has the internal experience

and expertise to make such evaluations.

Also, the diversity of its membership

ensures that a balanced perspective is

brought to final determinations

regarding consistency. Section 211 of

the NHPA states that the Council ‘‘is

authorized to promulgate such rules and

regulations as it deems necessary to

govern implementation of section 106

* * * in its entirety.’’ Section 110(a)(2)

of the NHPA states that the ‘‘(Federal

agency historic preservation) program[s]

shall ensure * * * that the agency’s

procedures for compliance with section

106 * * * are consistent with

regulations issued by the Council

* * *’’ (emphasis added). It must be

understood, among other things and

upon closer examination, that section

110 of the NHPA does not specifically

provide for Federal agencies to

substitute their programs for the section

106 regulations promulgated by the

Council. Through § 800.14 of the rule,

the Council is allowing for such

substitution, believing this may help

agencies in their section 106

compliance. However, the Council will

not allow such substitution if the agency

procedures are inconsistent with the

Council’s 106 regulations. The Council,

in its expertise, holds that its

regulations correctly implement section

106, and that it would therefore be

inimical to its mandate and contrary to

the spirit and letter of section

100(a)(2)(E) of the NHPA, for the

Council to allow inconsistent

procedures to substitute the Council’s

section 106 regulations.

The Council should seek the views of

affected SHPOs and notify them of final

adoption when an Indian tribe enters

into an agreement with the Council to

substitute tribal regulations for Council

regs. The Council notes that section

101(d)(5) of NHPA already requires such

consultation with the affected SHPO,

and that the Council would obviously

notify such affected SHPO as to a final

substitution.

Section 800.14(b)

These regulations require more steps,

more paperwork, and therefore more

time to process routine CDBG

Programmatic Agreements. Under the

new regulations, the Council must

participate more actively in these

highly routine and repetitive

agreements; and the Council treats the

activities covered by CDBG agreements

as ‘‘adverse effects.’’ We request

Council reconsider its procedures for

routine PAs. In response to this

comment, the Council agreed to provide

a new procedure for routine

Programmatic Agreements. See

§ 800.14(b)(4).

It is not clear that Programmatic

Agreements under § 800.14(b)(3) are

developed by an agency official in

consultation with the SHPO. Additional

guidance is needed beyond simply

referencing § 800.6. The Council notes

that the SHPO and other consulting

parties must be consulted, just as they

would be consulted for a Memorandum

of Agreement under § 800.6.

Section 800.14(c)

The Council should modify the

proposed rule to accommodate and

promote voluntary habitat conservation

efforts under the ESA. It should

establish as an ‘‘exempted category’’,

exempting from section 106 review, all

voluntary incidental take and

enhancement of survival permits issued

by either FWS or NMFS under section

10 of the ESA. Also, approval of and

voluntary participation in a ‘‘take

limitation’’ or exemption created under

a special conservation rule adopted by

either the FWS or NMFS under section

4(d) of the ESA should also be

exempted from NHPA review. These

and other specific alternatives and

exemptions recommended by the

commenting public should be decided

after the appropriate § 800.14 process is

followed, and not through the

rulemaking itself. The Council

encourages Federal agencies to submit

proposed exemptions and other

alternatives.

Under § 800.14(c)(5), the Agency

Official should submit the views of

SHPO/THPO to the Council along with

the other required documentation. The

Council should also notify SHPO/THPO

of the Council decision. In

§ 800.14(c)(7), SHPO’s and others

should be able to request that the

Council review an Agency’s activities to

determine if the exemption no longer

meets the criteria. The Council decided

to change this section to explicitly add

SHPO/THPO comments to those that

need to be submitted. The Council

assures the commenting public that it

will notify SHPO/THPOs of final

decisions regarding exemption

decisions. Finally, the Council notes

that anyone can request the Council to

conduct a review of a program

alternative without need of amendment

to the rule.

Section 800.14(f)

Requiring comment from all Indian

tribes is unnecessarily broad. Section

800.14(f)(1) should be amended so as to

provide an appropriate government-togovernment consultation with affected

Indian tribes and consultation with

Native Hawaiian organizations when a

nationwide Programmatic Agreement is

being developed, adding language to the

effect that ‘‘when a proposed program

alternative has nationwide

applicability, the Agency Official shall

identify an appropriate government-togovernment consultation with Indian

tribes and consultation with Native

Hawaiian organizations.’’ The Council

agreed with the concept and rationale of

the proposed change. It therefore added

language to § 800.14(f) regarding tribal

consultation for nationwide agreements,

while honoring the underlying intent of

meaningful consultation with Indian

tribes and Native Hawaiian

organizations.

Section 800.16(d)

Rule is unclear, and allows area of

potential effect for a one acre wetland

permit, to encompass entire

development site (which could be over

one hundred acres). The area of

potential effects should be the one acre

of wetland. Vagueness of rule leaves

applicants vulnerable to high costs and

long permit delays. The issue of area of

potential effects and wetlands permits is

one that needs to be worked out

between the Council and the Corps of

Engineers. The Council notes that

section 106 requires Federal agencies to

take into account the effects of

undertakings on historic properties. An

undertaking is defined by the statute to

include a ‘‘project (or) activity * * *

requiring a Federal permit, license or

approval.’’ The effects to be considered

are those of the ‘‘project’’ that required

the permit. Moreover, in most instances

the effects of projects are felt by historic

properties beyond the immediate

footprint of a project. To illustrate, a

historic property whose integrity would

be affected by increased noise is affected

even though it is not itself located on

the site of the source of that noise. The

Federal agency must take into account

such effects. Having said this, the

Council understands the need for

guidance on the subject of establishing

areas of potential effects regarding the

77712 Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations

particular concerns reflected in this

comment and others. The Council will

be developing such guidance.

Definition of APE is too broad, adding

expense for surveys (usually borne by

applicants), and unlawfully

encompassing private or State lands.

See answer above. Also, section 106

requires Federal agencies to take into

account effects on historic properties

regardless of whether they are located in

private or public lands.

Section 800.16(e)

To the extent the Council seeks to

prescribe a role for SHPOs, this

definition should include in the

alternative the comments of the SHPO.

The comment is incorrect. The term

‘‘comment,’’ as use on the rule, means

the formal comments by the Council.

The SHPO is never entrusted with that

responsibility. The SHPO role through

the process comes from its assistance

responsibilities in the section 106

process (see section 101(b) of the

NHPA).

Section 800.16(I)

The definition of effect should be

consistent with language used to define

area of potential effect (§ 800.16(d)) and

the criteria of adverse effect

(§ 800.5(a)(1)). The Council agreed and,

for consistency, changed the rule so that

the ‘‘alterations’’ is used for both

definitions.

Section 800.16(w)

Several comments requested the

Council to revise the rule to distinguish

between section 101(d)(2), NPS

approved THPOs and non-101(d)(2)

tribes. They strongly recommend that

different terms be used for these two

types of tribes in order to more clearly

reflect their different authorities on

tribal lands. The Council agreed and

changed the rule accordingly. In

summary, the Council (1) deleted the

reference to non-101(d)(2) tribes from

the definition of ‘‘THPOs’’ on this

section of the rule, and (2) revised the

language regarding these consulting

parties under section of § 800.2(c).

Section 800.16(x)

A definition of ‘‘dependent Indian

communities’’ for the purposes of this

regulation is needed. Folks need a legal

definition from the Council. The

Council used the definition of Indian

tribes provided by the statute. The

Council will bring this issue to the

attention of the Department of the

Interior and work on clarification.

Section 800.16(y)

The term ‘‘undertaking’’ needs to be

better defined within the regulation so

as to clearly eliminate actions with no

potential to affect historic properties.

Section 800.3(a)(1) provides at the

beginning of the process that Federal

agencies have no further section 106

responsibilities if the undertaking is not

a type of activity that has the potential

to affect historic properties.

Various comments requested in

different forms that the Council should

clarify that Federal funding is a

condition precedent to the application

of the section 106 process. The Council

notes that there is case law supporting

that position as well as case law stating

that funding is not a prerequisite. The

Council has maintained the statutory

definition of ‘‘undertaking,’’ verbatim,

in the regulations. The Agency Official

is responsible, in accordance with

§ 800.3(a), for making the determination

as to whether a proposed Federal action

is an undertaking. As appropriate, an

agency should examine the nature of its

Federal involvement taking into

consideration factors such as the degree

of Federal agency control or discretion;

the type of Federal involvement or link

to the action; and whether or not the

action could move forward without

Federal involvement. An agency should

seek the advice of the Council when

uncertain about whether or not its

action falls within the definition of an

undertaking.

Do not want incidental take permits

(ITPs) under the Endangered Species

Act to be subject to section 106 review.

As stated before, the Council notes that

this and other specific alternatives and

exemptions should be decided after the

appropriate § 800.14 process is followed

and not through rulemaking itself. The

Council encourages Federal agencies to

submit proposed exemptions and other

alternatives.

Various comments argued in various

forms that Surface Mining Control and

Reclamation Act (SMCRA) permits

issued by States, after Office of Surface

Mining (OSM) delegation of the

program, are not subject to the section

106 process. The Council believes that

it is the responsibility of the Federal

agency, rather than the State, to comply

with section 106. The Council intends

to continue working with OSM to

develop and finalize a solution to this

issue.

The proposed rule does not apply to

the siting of wireless facilities, since the

construction of communications towers

does not constitute a Federal

undertaking. As stated before, this and

several other issues mentioned by the

telecommunications industry in this

rulemaking process have been or are in

the process of being addressed through

ongoing discussions with the industry,

the FCC and SHPOs. These discussions

commenced before the present

rulemaking process. Such ongoing

discussions are referred hereinafter as

‘‘Telecommunications Working Group.’’

Appendix A

Various comments stated that

Council participation in consultation

should be mandatory when requested

by a tribe, particularly because tribes

are not mandatory signatories off tribal

lands. The Council disagreed. The

Council needs to retain discretion, just

as it has in any other Section 106

reviews. Such discretion is necessary

not only to allow the Council to manage

its limited resources, but also to further

encourage the goal of Agency and

SHPO/THPO independence in the

process. We have no evidence that this

discretion is not being exercised

appropriately.

The Council should change its rule to

allow it to comment on the most

important cases, involving the SHPOs/

THPOs in an advisory capacity, not a

managerial role. The Council believes

the rule accomplishes this. Under the

rule, the Council only gets involved in

some of the cases meeting Appendix A

criteria. The rule requires the Council to

explain how such criteria is met before

entering consultation, and provides

SHPOs/THPOs with an advisory role.

General Consultation

THE COUNCIL’S ‘‘HANDBOOK ON

TREATMENT OF ARCHAEOLOGICAL

PROPERTIES’’ IS WOEFULLY OUT OF DATE

AND SHOULD BE UPDATED AS SOON AS

POSSIBLE. ALSO ‘‘PREPARING AGREEMENT

DOCUMENTS’’ SHOULD BE REVISED TO

REFLECT THE CHANGES IN THE NEW

REGULATIONS. THE COUNCIL SHOULD ALSO

EXPLORE ESTABLISHING PEER REVIEW

SYSTEMS IN RESOLVING DISPUTES THAT

INVOLVE THE IDENTIFICATION, EVALUATION

AND/OR TREATMENT OF ARCHAEOLOGICAL

SITES. The Council agrees that the

mentioned documents should be

updated. Regarding the establishment of

peer review systems, such an option

could be explored.

Overly burdensome consultation

requirements. Commenter cites seven

different points of notification or

consultation even when there are no

historic properties present, and a dozen

or more if there should be historic

properties, resulting in unnecessary

delays for thousands of routine

projects. The commenter estimates that

implementation and documentation of

the numerous consultation points

Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations 77713

requires 1⁄4 to 1⁄2 FTE on every National

Forest in the Southwest. The rule

provides for ways to tailor the process.

The Council notes that a Programmatic

Agreement under Section 800.14 should

be suggested to the Forest Service. Such

Programmatic Agreements have proved

effective in the past in further

streamlining and fitting the section 106

process to the particular needs of agency

programs. The comment also raised an

issue on the number of consultation

points for situations where there are no

historic properties affected.

Consultation is necessary for an agency

to learn whether historic properties are

present or not, and then whether and

how those present would be affected.

Section 106, again, requires the effects

of undertakings on historic properties be

taken into account. For that to happen,

there has to be a process for identifying

the properties and assessing the effects

on such properties. As stated before,

Section 800.14 presents several options

an agency can pursue to advance an

alternative way of complying with

Section 106 which better fits the

realities of their particular programs.

Some SHPO’s have attempted to

implement the Council’s proposed Part

800 rules by treating the regulations as

a springboard for additional,

mandatory compliance steps and

unreasonable documentation

requirements that only serve to delay

the review process. Clarify that SHPO’s

must follow proposed part 800’s

regulatory deadlines. Please refer to

earlier responses regarding the 30 day

time limits, above.

Proposed rules discourage SHPOs/

THPOs from consulting with private

sector companies and individuals

seeking consultation regarding their

projects. Government to government

consultation if invoked by Tribes may

prevent historic preservation matters

from receiving their full consideration.

As stated before, the rule has been

changed to facilitate Federal agency

authorizations for applicants to initiate

the section 106 process. Government-togovernment relationships between the

Federal Government and Tribes is based

on Presidential Memoranda, Executive

Order 13084, treaties, and statutes.

Furthermore, the Council believes that

consultation with Tribes assures full

consideration regarding historic

properties on tribal lands or of

significance to tribes.

Numerous provisions of proposed

rule attempt to confer upon SHPO

consultation, agreement (i.e.,

concurrence) or virtual veto powers.

Section 106 does not mention any role

for the SHPOs, let alone a requirement

that the SHPO concur in agency

determinations. SHPO’s

responsibilities, like the Council, are to

assist and to advise. Proposed rule

confers unauthorized powers on SHPOs

and the Council, and result in

additional administrative requirements

and delays. The SHPO’s role is limited

in the rule to consulting and advising,

based in their responsibilities pursuant

to section 101(b)(3) of the NHPA. When

a step calls for concurrence, SHPO

concurrence can end the process from

further evaluation. When the SHPO

does not concur, a project is not vetoed;

rather, the Federal agency is moved to

the next, logical step in the process.

Nothing in the rule gives anyone veto

power over an undertaking. The Federal

agency ultimately decides by itself what

to do with the undertaking, once it has

complied with its Section 106

responsibilities.

Council should confirm that SHPOs

have no legal authority over private

parties. Neither the Council nor this

rule gives SHPOs the legal authority to

require any action from private parties.

Nothing in the NHPA requires that

every party that finds preservation to

be interesting to be given a formal role

in the section 106 process, with the

ability to delay or derail Federal

undertakings. The Council agrees, and

believes that the rule reflects that

regarding who are consulting parties

and how the Federal agency can control

who becomes an additional consulting

party.

Proposed rules provide a mechanism

for a Federal agency to proceed over

the objections of SHPO/THPO or

without an MOA, however, the Federal

agency and its regulatees would have

already paid a steep price for their

efforts through project delays,

duplicative legal reviews and other

expenses associated with earlier

consultation with SHPOs, THPOs, and

ACHP. Section 106 of the NHPA

requires Federal agencies to take into

account the effects of their undertakings

on historic properties and afford the

Council a reasonable opportunity to

comment. Just as with NEPA and other

laws, Federal agency compliance with

such obligations necessarily requires

effort and time. Through various

methods, such as time limits and

program alternatives (which give

Federal agencies the tools to further

streamline and adapt the process to

their needs), the Council has provided

for cutting down such compliance costs.

Federal agencies often have no

cultural resources expertise and

therefore rely on SHPO to make

findings for them. Although Council

staff has urged SHPO offices not to be

forced into this position, it is just too

much work to get agencies to obtain the

necessary expertise. This is an

important program issue, but not a

regulatory one. The Council and the

National Park Service should work with

agencies in this area.

Additional guidance may be needed

to further clarify the roles of

participating parties in the consultation

process. The Council agrees that such

guidance should be developed.

The length of the comment periods

are well founded and prudent because

they insures that the parties respond in

a timely manner. The rule also clarifies

and emphasizes opportunities for

Tribes, Native American organizations,

and the interested public to participate

in consultation. The Council agrees.

General Negative

The regulations have strayed from

the consultation and advisory process

envisioned by Congress for ‘‘nationally

significant historic sites.’’ It is

evidenced by Congress’ enactment of

section 101(a) of the NHPA that a site

does not have to be of ‘‘national’’

significance in order to meet National

Register criteria and be considered

under section 106 review (sites of State

or local significance can meet the

criteria as well).

Section 106 process is unnecessary

because it duplicates an existing local

zoning review/approval process for

radio towers (a process that considers

the impact that proposed towers might

have on nearby historic properties).

Therefore, it imposes unnecessary costs

on carriers, and those costs are

invariably passed on to the consumers.

Congress has determined that local

governments—not the Federal

Government—should resolve such

issues as the location, height and design

of communications facilities. While

certain local zoning measures may

address historic preservation concerns,

Federal agency undertakings are still

subject to section 106. The NHPA does

not relieve them of this duty. As stated

before, this and several other issues

mentioned by the telecommunications

industry in this rulemaking process

have been or are in the process of being

addressed through ongoing discussions

with the industry, the FCC and SHPOs.

One objective of this exercise is to better

coordinate Federal and local review

processes. These discussions

commenced before the present

rulemaking process.

Instead of imposing overly-detailed

proscriptive regulations that are

difficult to understand and enforce, the

Council should work with agencies and

others to develop incentive programs

that encourage innovative and effective

77714 Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations

protection and preservation

procedures. These could encourage

compliance much more efficiently than

the present enforcement model. This

can be done pursuant to the program

alternatives under § 800.14 of the rule.

Council should suspend this

rulemaking, and develop a new rule

that contains: (1) Procedures that the

Federal and State agencies can process

and apply; (2) provisions that assign

burdens and responsibilities that nonFederal entities can understand and

reasonably support; and (3) an

approach to preservation that equitably

apportions responsibility and cost, and

provides positive incentives for

compliance. The Council believes the

rule presents reasonable procedures that

Federal agencies can process and apply.

The vast majority of the thousands of

section 106 reviews under the current

and past rules have been conducted and

concluded by Federal agencies without

serious problems. The fact that

disagreements sometimes arise

regarding certain findings and

determinations does not mean the

process cannot be applied but, rather,

reflects that it is being applied correctly.

Disagreements and working out

solutions is simply a part of a

consultative process. The Council notes

that, like section 106 itself, the rule only

place requirements on Federal agencies.

The incentive for Federal agency

compliance, beyond meeting legal

obligations set by the NHPA, is the

furtherance of the historic preservation

policies of the Federal Government, as

expressed in the NHPA.

I do not think that the 1999

regulations have resulted in, or will in

the foreseeable future result in, much

streamlining of the process. The

reduction in Council involvement has

created a void. SHPOs do not carry

sufficient respect to fill that authority

void. I recommend that the regulations

require the Council be notified as soon

as either the Agency official or the

SHPO expresses an opinion that an

effect will be adverse; and that the

Council be a signatory to all MOAs and

PAs. The notification requirement is

already in the rule (see § 800.6(a)(1)).

The Council will not become a signatory

to all MOAs, since a decision has been

made to streamline the process by

relying more on the Federal agency and

SHPO/THPO for routine cases.

General Positive

General positive comments are

summarized below, without a Council

response beyond stating its agreement.

A comment asked that the Council

refrain from further restricting public

participation or ‘‘other consulting

party’’ involvement in any way. It also

ask, that the Council not vest any

further authority in the SHPO or reduce

the involvement of SHPOs, THPOs, and

other consulting parties in agency

decision making.

Other comments stated that: (1) the

elimination of the distinction between

‘‘no historic properties’’ and ‘‘no effect’’

was a move in the right direction; (2) the

rule is working well and that positive

responses by certain Federal agencies

had been noted; (3) the rule is very

specific and provides sound guidance

for federal agencies and other parties;

(4) the rule clearly establishes the roles

and responsibilities of the parties; (4)

the rule works well and provides an

efficient framework for the

administration of the Act; (5) project

review has been streamlined by

reducing the need for Council review;

(6) the rule is operating well, has

appropriately defined the role of Federal

agencies as the responsible party for

section 106 compliance, achieves the

objective of streamlining the process,

and incorporates changes enacted in the

1992 amendments; (7) Federal agencies

are beginning to assume their

appropriate role as the lead in the

process, and the Council can focus on

difficult cases and problem agencies; (8)

the rules are an improvement over the

1986 regs; (9) the rule offers a

constructive framework for consultation

among SHPO, tribes and all interested

parties.

Miscellaneous

Since implementing NHPA

necessarily affects the agencies’

regulatees, FCC recommends that the

proposed rule include a ‘‘reasonable’’

time period for Federal agencies to

develop their own implementing

procedures. Federal agencies have

always had the authority to develop

implementing procedures pursuant to

section 110(a)(2)(E). The Council has no

role in setting deadlines for Federal

agencies to develop these implementing

procedures.

The deadlines for response from

Council and SHPOs (15 days and 30

days) are reasonable—assuming

adequate personnel to handle the

workload. Because SHPO’s are

inadequately funded, they are

understaffed to meet these time frames.

Therefore, a 30 day review period for

the Council and a 45-day review period

for SHPOs is recommended. The

Council disagrees. The current

deadlines adequately balance the project

need for expediency and the workloads

of the Council and SHPO/THPOs.

General Tribal

In requesting that the role of THPO’s

and tribal representatives be clarified

for those situations affecting properties

of religious and cultural significance off

tribal land, it is suggested that section

101(d)(2) limits THPO responsibilities

and authority to tribal lands and does

not require a Federal agency to consult

with those tribes regarding properties

of religious and cultural significance.

The Council disagrees. Section

101(d)(6)(B) of the NHPA requires tribal

consultation regarding historic

properties of religious and cultural

significance. Nothing in the statute

makes a distinction that would limit

such consultation to tribal lands.

It is inappropriate and illegal for

Council to implement 1992

amendments regarding Indian Tribes

through its proposed rule. Section 106

itself was not amended, and the

Secretary of the Interior is the agency

charged with promulgating regulations

to implement the tribe-related

amendments. The comment misreads

the NHPA. The rule appropriately deals

with tribal requirements as they directly

relate to the section 106 process. The

Council is authorized to promulgate

rules to govern the implementation of

section 106 ‘‘in its entirety.’’ This

authority necessarily covers all aspects

that directly relate to the section 106

process. The 1992 amendments require

Federal agencies to consult with tribes

and Native Hawaiian Organizations in

carrying out their Section 106

responsibilities. While the Department

of the Interior provides assistance to

tribes and fosters communication among

tribes, SHPOs and agencies, it does not

oversee the section 106 process nor have

the requisite authority. It is noted that

the Department of the Interior sits on

the Council and voted in favor of

adopting this rule.

Several THPOs have begun to request

payment of fees for Section 106

consultation and have asserted THPO

powers outside of tribal lands. Council

could remove uncertainty and avoid

delays by clarifying that THPOs are

bound by the same rules as SHPOs and

THPO authority extends only over

tribal lands. This is a topic being

addressed by the ongoing

Telecommunications Working Group.

Once the Council reaches a decision on

this matter, it will be disseminated.

Concerned about several THPOs and

tribal representatives requesting

payment for the section 106

consultation required in the regulations

and believes such actions are contrary

to the regulations. This issue was raised

by the wireless industry, and will be

Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations 77715

addressed by the Telecommunications

Working Group.

We would not support changes to

grant expanded authority to tribes off

tribal lands. We strongly support

current provisions which enable tribes

to participate, as appropriate. The

Council agrees with this comment and

did not expand the tribal role in this

rule.

The proposed rule will impact us

resulting in the consultation with

Native Hawaiian organizations. The

requirement for consultation with

Native Hawaiian organizations will

require expenditure of time and funds

spent on EIS studies. The rule fails to

specify which Hawaiian Native

organizations (NHO) we would have to

consult with, which may be many. The

statute requires Federal agencies to

conduct such consultation. The rule is

not the appropriate venue for

identifying specific NHOs. That is the

responsibility of the Federal agency

based on the potential to affect

properties of significance to specific

organizations.

E.O. 13084 has language that should

be utilized in the section 106 process.

EO 13084 addresses the development of

Federal agency policies and regulations.

The Council rule addresses individual

projects and programs, and not these

overall policies and rules developed by

other agencies.

The regulations took a positive step

regarding tribal input and

participation. It works when the agency

is truly in compliance with the

regulations. Need to work on how tribes

can be more involved; are legally

involved in decision making without a

specific agreement; and can be funded

to conduct the work demanded by

agencies and the regulations. The

Council is developing guidance on tribal

consultation.

The regulations conflict with the

language and purpose of the Act by

creating an artificial distinction

between tribal properties depending on

their location (on or off tribal lands).

Tribes are provided lesser consultation

rights where traditional cultural

properties are located off tribal lands.

The rule acknowledges tribal

sovereignty on tribal lands, which

necessarily distinguishes a tribe’s role

on and off tribal lands. The rule does

not distinguish where properties are

located, but only the scope of tribal

involvement.

The regulations suggest that tribal

governments and the interested public

are at the same level of importance.

This concept ignores the sovereign

status of tribes and, as a result, Federal

agencies are disrespecting some tribal

treaties. An important statement of the

tribal government role is missing. With

the public on the same level as tribes,

the public can gain access to documents

that may compromise the

confidentiality provisions of section

106. The Council disagrees. Section

800.2(c)(3) of the rule provides

information for Federal agencies

regarding sovereignty and the

government-to-government

responsibility. The public is simply

notified and involved as appropriate

but, unlike tribes in their land or

regarding historic properties of

significance to them, is not an entitled

consulting party.

Legal Authority

Several comments questioned the

Council’s legal authority to issue the

rule. The main arguments were that: (1)

The Council was given advisory

functions by the statute, and that the

proposed rule transformed the role of

the Council from purely advisory to one

with substantive regulatory authority

over other Federal agencies and parties;

(2) the Council could only issue

regulations regarding how it issued its

comments (from the ‘‘reasonable

opportunity to comment’’ provided by

section 106); and (3) there was no

statutory basis for a rule that dictates

how an agency takes into account the

effects of its undertakings or the

Council’s comments.

The Council believes that the rule is

properly characterized as one providing

a process to be followed. Nowhere does

the rule impose an outcome on a

Federal agency as to how it will decide

whether or not to approve an

undertaking, or how. The rule merely

provides a process that assures that the

Federal agency takes into account the

effects of the undertaking on historic

properties. It does not impose in any

way whatsoever how such consideration

will affect the final decision of the

Federal agency on the undertaking. The

rule does not provide anyone with a

veto power over an undertaking.

Furthermore, the Council believes it

has the authority to promulgate the

present rule. Section 211 of the NHPA

states that: ‘‘The Council is authorized

to promulgate such rules and

regulations as it deems necessary to

govern the implementation of section

106 of [the NHPA] in its entirety.’’ The

phrase ‘‘in its entirety’’ was added by

the 1992 amendments to the NHPA.

Directly talking to the meaning of the

‘‘in its entirety’’ amendment, the

summary of the amendments stated that:

‘‘This makes clear that the ACHP has

the authority to define not only how

agencies will afford the Council a

reasonable opportunity to comment, but

also how agencies should take effects on

historic properties into account in their

planning.’’ Congressional Record,

Senate, S 3575, March 19, 1991. This

amendment was specifically introduced

to address the authority issues raised

earlier. Thus, it is clear that Congress

has given the Council the authority to

promulgate rules, such as the present

one, setting forth how Federal agencies

are to meet all their section 106

responsibilities to take into account the

effects of their undertakings on historic

properties, as well as to provide the

Council with a reasonable opportunity

to comment.

Moreover, the rule is solidly based on

the requirements of the statute and, as

Congress intended, provides a

predictable framework which fleshes

out those requirements. As stated

before, section 106 specifically requires

Federal agencies to take into account the

effects of their undertakings on historic

properties. 16 U.S.C. 470f. The first

general step in the process under the

rule requires Federal agencies to

identify the historic properties that may

be affected by the undertaking. 36 CFR

800.4. It is simply impossible for an

agency to take into account the effects

of its undertaking on historic properties

if it does not even know what those

historic properties are in the first place.

The second general step in the

process is for the Federal agency to

assess the effects of the undertaking on

the historic property. 36 CFR 800.5.

Again, an agency cannot take into

account effects on historic properties if

it does not first assess the nature of

those effects. The Council has utilized

its considered expertise on historic

preservation to create the criteria of

adverse effect that guides the end of this

step.

The third general step in the process

under the challenged rule is to consult

to attempt resolving adverse effects to

historic properties (through what is

called a Memorandum of Agreement), if

it has been determined the effects are

actually adverse. 36 CFR 800.6. Such an

approach is explicitly sanctioned by the

statute under Section 110(l) of the

National Historic Preservation Act. 16

U.S.C. 470h–2(l). Specifically, Section

110(l) of the statute states that:

With respect to any undertaking subject to

section 106 which adversely affects any

[historic property], and for which a Federal

agency has not entered into an agreement

pursuant to regulations issued by the

Council, the head of such agency shall

document any decision made pursuant to

section 106. . . . Where a section 106

memorandum of agreement has been

executed with respect to an undertaking,

77716 Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations

such memorandum shall govern the

undertaking and all its parts.

Id. (emphasis added). It bears

mentioning that this section was

amended by Congress after the section

106 rule that went into effect in 1999.

The amendment further conformed the

statute to that 1999 rule, which was

used as the proposal in the present

rulemaking. Specifically, section 5(a)(8)

of HR 834, amended the language of

section 110(l) by striking ‘‘with the

Council’’ and inserting ‘‘pursuant to

regulations issued by the Council.’’

In the last general step in the process,

the Council issues comments to the

Federal agencies that fail to resolve

adverse effects. Such a step is obviously

contemplated in the requirements of

section 106 that the Council be given ‘‘a

reasonable opportunity to comment.’’ 16

U.S.C. 470f.

The rule does provide for consultation

with various parties throughout the

process. Such consultation requirements

with State Historic Preservation

Officers, Tribal Historic Preservation

Officers and certain federally recognized

Indian Tribes and Native Hawaiian

Organizations are solidly anchored on

statutory requirements that Federal

agencies consult with such parties. See

e.g. 16 U.S.C. 470a(b)(3)(I), 470a(d)(2),

and 470a(d)(6)(B). The general public is

also given a general role under the rule,

although such role does not rise to the

level of that of consulting parties. The

Council believes this role for the public

is reasonable and authorized. The

Federal agency’s consideration of how

its undertaking affects historic

properties is enhanced and better

informed by the participation of the

consulting parties and the general

public, for whose enjoyment and

enrichment the NHPA seeks to protect

historic properties. It must be kept in

mind that such public is the one that

lives in the communities and areas

where the historic properties are

located, and therefore may have

uniquely informed viewpoints as to

such properties. As stated above, the

rule specifically states that Federal

agencies can use their own procedures

for public involvement in lieu of those

under subpart B of this rule, so long as

they provide adequate opportunities

consistent with the rule. Such

procedural consistency is no more than

what the NHPA requires under 16

U.S.C. 470h–2(a)(2)(E).

Appointments Clause

Some comments argued that the

present rulemaking process violates the

Appointments Clause of the

Constitution. This argument is

summarized as follows: (a) The section

106 rule that went into effect in 1999

(1999 rule) was developed and adopted

in violation of the Appointments Clause

due to the participation of the Chairman

of the National Trust on Historic

Preservation (the Trust) and the

President of the National Conference of

State Historic Preservation Officers

(NCSHPO) (both of whom are members

of the Council not appointed by the

President) in the development and

adoption of that 1999 rule; and (b) since

the content of that 1999 rule was used

as the proposed rule in the present

rulemaking, the present rulemaking

process is incurably tainted and

unconstitutional.

The Council strongly disagrees with

such arguments. As has been stated

before, the Trust and NCSHPO have not

participated in any way whatsoever in

the deliberations, decisions, votes, or

any other Council activities related to

this rulemaking. On June 23, 2000, the

Council membership, minus the

representatives of the Trust and

NCSHPO, took a new vote on the

adoption of the 1999 rule. It voted 16–

0 in favor of the 1999 rule. As has been

stated above, that 1999 rule was the

culmination of six years of work by the

Council members, Council staff, public

comments and public meetings.

Again without the participation of the

representatives of the Trust and

NCSHPO, the Council proceeded to vote

unanimously in favor of proceeding

with the present rulemaking process,

using the text of the 1999 rule as the

proposed rule. Many of these Council

members (all Presidential appointees)

had participated in the drafting and

original, unanimous adoption of the

1999 rule on February of 1999. On June

23, 2000, they decided to use that 1999

rule as the proposed rule. On November

17, 2000, after taking into account

public comment and changing the

proposed rule as they deemed

appropriate, these Presidentially

appointed Council members (without

the participation of the representatives

of the Trust and NCSHPO) voted to

adopt the final rule now being

published.

Any prior involvement in the rule

does not represent the exercise of

significant authority pursuant to the

laws of the United States contemplated

by the Appointments Clause. The

Presidential appointees considering the

draft, proposed rule during the 2000

rulemaking process were at full liberty

to vote against it, amend it, or adopt it.

In the end, the final decision to move

forward with such draft was in their

power.

In the present rulemaking, any act

that could arguably be deemed an

exercise of significant authority has

been carried out solely by the Council’s

Presidential appointees.

Other Legal Issues

Certain comments indicated a belief

that the proposed rule violates the

Establishment Clause of the

Constitution. The arguments stated that

to the extent the proposed rule requires

Federal agencies to conform their

decisionmaking under section 106 based

on the ‘‘religious and cultural

significance’’ of properties (as

determined by Tribes) it results in an

excessive entanglement between the

government and religion, impermissibly

restricts the use of public lands on the

basis of religion, and impermissibly

establishes or favors religion, in

violation of the Establishment Clause.

The Council strongly disagrees. The

rule does not require Federal agencies to

conform their decisionmaking based on

the religious and cultural significance of

properties. As stated before, the NHPA

and the rule only clarify that properties

of religious and cultural significance to

Tribes ‘‘may be determined to be

eligible for inclusion on the National

Register.’’ section 101(d)(6)(A) of the

NHPA. Like any other property of any

kind, in order for properties with such

significance to be considered in the

section 106 process, they must first meet

the established, objective, secular

criteria of the National Register of

Historic Places. The determination as to

whether a property meets that criteria is

made by the Federal agency in

concurrence with the SHPO/THPO or,

in the case of disagreement, by the

Keeper of the National Register.

Furthermore, once a historic property

has been so identified, all that Federal

agencies are required to do is to take

into account the effects of their

undertaking on such property. Nothing

whatsoever in the rule imposes an

obligation on the Federal agency to

change, reject or approve an

undertaking based on the religious and

cultural significance of a property.

The rule and section 101(d)(6) of the

NHPA only require consultation with

Indian Tribes regarding those historic

properties of significance to them. The

Federal agency must consult with such

Tribes, but is nowhere required to abide

by the opinions expressed by the Tribes

in such consultations. Furthermore,

such consultation provisions are fully

justified and reasonable. They do not

provide Tribes with a ‘‘special

treatment,’’ but rather a rational

treatment. Just as it would be common

sense for a person to consult, for

example, with the Navy in order to seek

a better understanding of the history of

Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations 77717

Pearl Harbor, it is more than rational to

go to Tribes to seek a better

understanding of historic properties to

which they attach a religious and

cultural significance. Due to their

history and experience with such

properties, such Tribes are in a specially

advantageous position to provide

valuable information about them. At the

very least, the Council believes that

these Tribal consultation provisions of

the rule and of section 101(d)(6) of the

NHPA are tied rationally to the

fulfillment of the Federal Government’s

unique obligations towards Tribes. See

Morton v. Mancari, 417 U.S. 535 (1974).

IV. Description of Meaning and Intent

of Specific Sections

The following information clarifies

the meaning and intent behind

particular sections of the final rule.

Subpart A—Purposes and Participants

Section 800.1(b). This section makes

clear that references in the section 106

regulations are not intended to give any

additional authority to implementing

guidelines, policies or procedures

issued by any other Federal agency.

Where such provisions are cited, they

are simply to assist users in finding

related guidance, which is non-binding,

or requirements of related laws, which

may be mandatory depending on the

particular law itself.

Section 800.1(c). The purpose of this

section is to emphasize the flexibility an

Agency Official has in carrying out the

steps of the section 106 process, while

acknowledging that early initiation of

the process is essential and that actions

taken to meet the procedural

requirements must not restrict the

effective consideration of alternatives

related to historic preservation issues in

later stages of the process.

Section 800.2(a). The term ‘‘Agency

Official’’ is intended to include those

Federal officials who have the effective

decision making authority for an

undertaking. This means the ability to

agree to such actions as may be

necessary to comply with section 106

and to ensure that any commitments

made as a result of the section 106

process are indeed carried out. This

authority and the legal responsibilities

under section 106 may be assumed by

non-Federal officials only when there is

clear authority for such an arrangement

under Federal law, such as under

certain programs administered by the

Department of Housing and Urban

Development. This subsection indicates

that the Federal Agency must ensure

that the Agency Official ‘‘takes . . .

financial responsibility for section 106

compliance . . .’’ This phrase is not to

be construed as prohibiting Federal

agencies from passing certain section

106 compliance costs to applicants.

Such a construction of the regulation

would contravene section 110(g) of the

NHPA and 16 U.S.C. 469c–2. The intent

behind the reference to ‘‘financial

responsibility’’ in the regulation is, as

stated above, to ensure that the Agency

Official has the effective decision

making authority for an undertaking.

Section 800.2(a)(1). This reference to

the Secretary’s professional standards is

intended to remind Federal agencies

that this independent but related

provision of the Act may affect their

compliance with section 106.

Section 800.2(a)(2). This provision

allows, but does not require, Federal

agencies to designate a lead agency for

section 106 compliance purposes. The

lead agency carries out the duties of the

Agency Official for all aspects of the

undertaking. The other Federal agencies

may assist the lead agency as they

mutually agree. When compliance is

completed, the other Federal agencies

may use the outcome to document their

own compliance with section 106 and

must implement any provisions that

apply to them. This provision does not

prohibit an agency to independently

pursue compliance with section 106 for

its obligations under section 106,

although this should be carefully

coordinated with the lead agency. A

lead agency can sign the Memorandum

of Agreement for other agencies, so long

as that is part of the agreement among

the agencies for creating the lead agency

arrangement. It should also be clear in

the Memorandum of Agreement.

Section 800.2(a)(4). This section sets

forth the general concepts of

consultation. It identifies the duty of

Federal agencies to consult with other

partes at various steps in the section 106

process and acknowledges that

consultation varies depending on a

variety of factors. It also encourages

agencies to coordinate section 106

consultation with that required under

other Federal laws and to use existing

agency processes to promote efficiency.

Section 800.2(b). The Council will

generally not review the determinations

and decisions reached in accordance

with these regulations by the Agency

Official and appropriate consulting

parties and not participate in the review

of most section 106 cases. However,

because the statutory obligation of the

Federal agency is to afford the Council

a reasonable opportunity to comment on

its undertaking’s effects upon historic

properties, the Council will oversee the

section 106 process and formally

become a party in individual

consultations when it determines there

are sufficient grounds to do so. These

are set forth in Appendix A. The

Council also will provide participants in

the section 106 process with its advice

and guidance in order to facilitate

completion of the section 106 review.

Section 800.2(c). This section sets a

standard for involving various

consulting parties. The objective is to

provide parties with an effective

opportunity to participate in the section

106 process, relative to the interest they

have to the historic preservation issues

at hand.

Section 800.2(c)(1). This section

recognizes the central role of the SHPO

in working with the Agency Official on

section 106 compliance in most cases. It

also delineates the manner in which the

SHPO may get involved in the section

106 process when a THPO has assumed

SHPO functions on tribal lands.

Section 800.2(c)(2). The role of THPO

was created in the 1992 amendments to

the Act. This section tracks the statutory

provision relating to THPO assumption

of the SHPO’s section 106 role on tribal

lands. In such circumstances, the THPO

substitutes for the SHPO and the SHPO

participates in the section 106 process

only as specified in 800.2(c)(1) or as a

member of the public. This section also

specifies that in those instances where

an undertaking occurs on or affects

properties on tribal lands and a tribe has

not officially assumed the SHPO’s

section 106 responsibilities on those

lands, the Agency Official still consults

with the SHPO, but also consults with

a representative designated by the

Indian tribe. Such designation is made

in accordance with tribal law and

procedures. However, if the tribe has

not designated such a representative,

the Agency Official would consult with

the tribe’s chief elected official, such as

the tribal chairman.

Section 800.2(c)(3). This section

embodies the statutory requirement for

Federal agencies to consult with Indian

tribes and Native Hawaiian

organizations throughout the section

106 process when they attach religious

and cultural significance to historic

properties that may be affected by an

undertaking. It is intended to promote

continuing and effective consultation

with those parties throughout the

section 106 process. Such consultation

is intended to be conducted in a manner

that is fully cognizant of the legal rights

of Indian tribes and that is sensitive to

their cultural traditions and practices.

Section 800.2(c)(3)(i). This subsection

has two main purposes. First, it

emphasizes the importance of involving

Indian tribes and Native Hawaiian

organizations early and fully at all

stages of the section 106 process.

77718 Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations

Second, Federal agencies should solicit

tribal views in a manner that is sensitive

to the governmental structures of the

tribes, recognizing that confidentiality

and communication issues may require

Federal agencies to allow more time for

the exchange of information. Also, this

section states that the Agency Official

must make a ‘‘reasonable and good faith

effort’’ to identify interested tribes and

Native Hawaiian organizations. This

means that the Agency Official may

have to look beyond reservations and

tribal lands in the project’s vicinity to

seek information on tribes that had been

historically located in the area, but are

no longer there.

Section 800.2(c)(3)(iii). This

subsection emphasizes the need to

consult with Indian tribes on a

government-to-government basis. The

Agency Official must consult with the

appropriate tribal representative, who

must be selected or designated by the

tribe to speak on behalf of the tribe.

Matters of protocol are important to

Indian tribes. Indian tribes and Native

Hawaiian organization may be reluctant

to share information about properties to

which they attach religious and cultural

significance. Federal agencies should

recognize this and be willing to identify

historic properties without

compromising concerns about

confidentiality. The Agency Official

should also be sensitive to the internal

workings of a tribe and allow the time

necessary for the tribal decision making

process to operate.

Section 800.2(c)(3)(iv). This

subsection reminds Federal agencies of

the statutory duty to consult with Indian

tribes and Native Hawaiian

organizations whether or not the

undertaking or its effects occur on tribal

land. Agencies should be particularly

sensitive in identifying areas of

traditional association with tribes or a

Native Hawaiian organizations, where

historic properties to which they attach

religious and cultural significance may

be found.

Section 800.2(c)(3)(v). Some Federal

agencies have or may want to develop

special working relationships with

Indian tribes or Native Hawaiian

organization to provide specific

arrangements for how they will adhere

to the steps in the section 106 process

and enhance the participation of tribes

and Native Hawaiian organizations.

Such agreements are not mandatory;

they may be negotiated at the discretion

of Federal agencies. The agreements

cannot diminish the rights set forth in

the regulations for other parties, such as

the SHPO, without that party’s express

consent.

Section 800.2(c)(3)(vi). The signature

of tribes is required where a

Memorandum of Agreement concerns

tribal lands. However, if a tribe has not

formally assumed the SHPO’s

responsibilities under section 101(d)(2)

the tribe may waive its signature rights

at its discretion. This will allow tribes

the flexibility of allowing agreements to

go forward regarding tribal land, but

without condoning the agreement with

their signature.

Section 800.2(c)(4). Affected local

governments must be given consulting

party status if they so request. Under

§ 800.3(f)(1), Agency Officials are

required to invite such local

governments to be consulting parties.

This subsection provides for that status

and also reminds Federal agencies that

some local governments may act as the

Agency Official when they have

assumed section 106 legal

responsibilities, such as under certain

programs administered by the

Department of Housing and Urban

Development.

Section 800.2(c)(5). Applicants for

Federal assistance or for a Federal

permit, license or other approval are

entitled to be consulting parties. Under

§ 800.3(f)(1), Agency Officials are

required to invite them to be consulting

parties. Also, Federal agencies have the

legal responsibility to comply with

section 106 of the NHPA. In fulfilling

their responsibilities, Federal agencies

sometimes choose to rely on applicants

for permits, approvals or assistance to

begin the 106 process. The intent was to

allow applicants to contact SHPOs and

other consulting parties, but agencies

must be mindful of their government-togovernment consultation

responsibilities when dealing with

Indian tribes. If a Federal agency

implements its 106 responsibilities in

this way, the Federal agency remains

legally responsible for the

determinations. Applicants that may

assume responsibilities under a

Memorandum of Agreement must be

consulting parties in the process leading

to the agreement.

Section 800.2(c)(6). This section

allows for the possibility that other

individuals or entities may have a

demonstrated special interest in an

undertaking and that Federal agencies

and SHPO/THPOs should consider the

involvement of such individuals or

entities as consulting parties. This might

include property owners directly

affected by the undertaking, non-profit

organizations with a direct interest in

the issues or affected businesses. Under

§ 800.3(f)(3), upon written request and

in consultation with the SHPO/THPO

and any Indian tribe upon whose tribal

lands an undertaking occurs or affects

historic properties, an Agency Official

may allow certain individuals under

§ 800.2(c)(6) to become consulting

parties.

Section 800.2(d)(1). Public

involvement is a critical aspect of the

106 process. This section is intended to

set forth a standard that Federal

agencies must adhere to as they go

through the section 106 process. The

type of public involvement will depend

upon various factors, including but not

limited to, the nature of the

undertaking, the potential impact, the

historic property, and the likely interest

of the public. Confidentiality concerns

include those specified in section 304 of

the Act and legitimate concerns about

proprietary information, business plans

and privacy of property owners.

Section 800.2(d)(2). This subsection is

intended to set the notice standard.

Notice, with sufficient information to

allow meaningful comments, must be

provided to the public so that the public

can express its views during the various

stages and decision making points of the

process.

Section 800.2(d)(3). It is intended that

Federal agencies have flexibility in how

they involve the public, including the

use of NEPA and other agency planning

processes, as long as opportunities for

such public involvement are adequate

and consistent with subpart A of the

regulations.

Subpart B—The section 106 Process

Section 800.3. This new section is

intended to encourage Federal agencies

to integrate the section 106 process into

agency planning at its earliest stages.

Section 800.3(a). The determination

of whether or not an undertaking exists

is the Agency Official’s determination.

The Council may render advice on the

existence of an undertaking, but

ultimately this remains a Federal agency

decision.

Section 800.3(a)(1). This section

explains that if there is an undertaking,

but it is not a type of activity that has

the potential to affect a historic

property, then the agency is finished

with its section 106 obligations. There is

no consultation requirement for this

decision.

Section 800.3(a)(2). This is a reminder

to Federal agencies that adherence to

the standard 106 process in Subpart B

is inappropriate where the undertaking

is governed by a program alternative

established pursuant to § 800.14.

Section 800.3(b). This section does

not impose a mandatory requirement on

Federal agencies. It emphasizes the

benefit of coordinating compliance with

related statutes so as to enhance

Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations 77719

efficiency and avoid duplication of

efforts, but the decision is up to the

Agency Official. Agencies are

encouraged to use the information

gathered for these other processes to

meet section 106 needs, but the

information must meet the standards in

these regulations.

Section 800.3(c). This sets forth the

responsibility to properly identify the

appropriate SHPO or THPO that must be

consulted. If the undertaking is on or

affects historic properties on tribal

lands, then the agency must determine

what tribe is involved and whether the

tribe has assumed the SHPO’s

responsibilities for section 106 under

section 101(d)(2) of the Act. A list of

such tribes is available from the

National Park Service.

Section 800.3(c)(1). This section

reiterates that the tribe may assume the

role of the SHPO on tribal land and

tracks the language of the Act in

specifying how certain owners of

property on tribal lands can request

SHPO involvement in a section 106 case

in addition to the THPO.

Section 800.3(c)(2). This section is the

State counterpart to Federal lead

agencies and has the same effect. It

allows a group of SHPOs to agree to

delegate their authority under these

regulations for a specific undertaking to

one SHPO.

Section 800.3(c)(3). This section

reinforces the notion that the conduct of

consultation may vary depending on the

agency’s planning process, the nature of

the undertaking and the nature of its

effects.

Section 800.3(c)(4). This section

makes it clear that failure of an SHPO/

THPO to respond within the time

frames set by the regulation permit the

agency to assume concurrence with the

finding or to consult about the finding

or determination with the Council in the

SHPO/THPO’s absence. It also makes

clear that subsequent involvement by

the SHPO/THPO is not precluded, but

the SHPO/THPO cannot reopen a

finding or determination that it failed to

respond to earlier.

Section 800.3(d). This section

specifies that, on tribal lands, the

Agency Official consults with both the

Indian tribe and the SHPO when the

tribe has not formally assumed the

responsibilities of the SHPO under

section 101(d)(2) of the Act. It also

allows the section 106 process to be

completed even when the SHPO has

decided not to participate in the

process, and for the SHPO and an

Indian tribe to develop tailored

agreements for SHPO participation in

reviewing undertakings on the tribe’s

lands.

Section 800.3(e). This section requires

the Agency Official to decide early how

and when to involve the public in the

section 106 process. It does not require

a formal ‘‘plan,’’ although that might be

appropriate depending upon the scale of

the undertaking and the magnitude of

its effects on historic properties.

Section 800.3(f). This is a particularly

important section, as it requires the

Agency Official at an early stage of the

section 106 process to consult with the

SHPO/THPO to identify those

organizations and individuals that will

have the right to be consulting parties

under the terms of the regulations.

These include local governments,

Indian tribes and Native Hawaiian

organizations and applicants for Federal

assistance or permits, especially those

who may assume a responsibility under

a Memorandum of Agreement (see

§ 800.6(c)(2)(ii)). Others may request to

be consulting parties, but that decision

is up to the Agency Official.

Section 800.3(g). This section makes it

clear that an Agency Official can

combine individual steps in the section

106 process with the consent of the

SHPO/THPO. Doing so must protect the

opportunity of the public and

consulting partes to participate fully in

the section 106 process as envisioned in

§ 800.2.

Section 800.4(a). This section sets

forth the consultative requirements

involved in the scoping efforts at the

beginning stages of the identification

process. The Agency Official must

consult with the SHPO/THPO in

fulfilling the steps in subsections (1)

through (4). This section emphasizes the

need to consult with the SHPO/THPO at

all steps in the scoping process. It also

highlights the need to seek information

from Indian tribes and Native Hawaiian

organizations with regard to properties

to which they attach religious and

cultural significance, while being

sensitive to confidentiality concerns.

Where Federal agencies are engaged in

an action that is on or may affect

ancestral, aboriginal or ceded lands,

Federal agencies must consult with

Indian tribes and Native Hawaiian

organizations with regard to historic

properties of traditional religious and

cultural significance on such lands.

Section 800.4(b). This section sets out

the steps an Agency Official must follow

to identify historic properties. It is close

to the section 106 process under the

1986 regulations, with increased

flexibility of timing and greater

involvement of Indian tribes and Native

Hawaiian organizations in accordance

with the 1992 amendments to the Act.

Section 800.4(b)(1). This section on

level of effort required during the

identification processes has been added

to allow for flexibility. It sets the

standard of a reasonable and good faith

effort on behalf of the agency to identify

properties and provides that the level of

effort in the identification process

depends on numerous factors including,

among others listed, the nature of the

undertaking and its corresponding

potential effects on historic properties.

Section 800.4(b)(2). This new section

is also intended to provide Federal

agencies with flexibility when several

alternatives are under consideration and

the nature of the undertaking and its

potential scope and effect has therefore

not yet been completely defined. The

section also allows for deferral of final

identification and evaluation if

provided for in an agreement with the

SHPO/THPO or other circumstances.

Under this phased alternative, Agency

Officials are required to follow up with

full identification and evaluation once

project alternatives have been refined or

access has been gained to previously

restricted areas. Any further deferral of

final identification would complicate

the process and jeopardize an adequate

assessment of effects and resolution of

adverse effects.

Section 800.4(c). This section sets out

the process for determining the National

Register eligibility of properties not

previously evaluated for historic

significance.

Section 800.4(c)(2). This section

provides that if an Indian tribe or Native

Hawaiian organization disagrees with a

determination of eligibility involving a

property to which it attaches religious

and cultural significance, then the tribe

can ask the Council to request that the

Agency Official obtain a determination

of eligibility. The Council retains the

discretion as to whether or not it should

make the request of the Agency Official.

This section was intended to provide a

way to ensure appropriate

determinations regarding properties,

located off tribal lands, to which tribes

attach religious and cultural

significance.

Section 800.4(d)(1). This section

describes the closure point in the

section 106 process where no historic

properties are found or no effects on

historic properties are found. Consulting

parties must be specifically notified of

the determination, but members of the

public need not receive direct

notification; the Federal agency must

place its documentation in a public file

prior to approving the undertaking, and

provide access to the information when

requested by the public. Once the

consulting parties are notified, the

SHPO/THPO has 30 days to object to the

determination. The Council may also

77720 Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations

object on its own initiative within the

time period. Lack of such objection

within the 30 day period means that the

agency need not take further steps in the

Section 106 process.

Section 800.4(d)(2). This section

requires that the Federal agency proceed

to the adverse effect determination step

where it finds that historic properties

may be affected or the SHPO/THPO or

Council objects to a no historic

properties affected finding. The agency

must notify all consulting parties.

Section 800.5(a). This section

provides for Indian tribe and Native

Hawaiian organization consultation

where historic properties to which they

attach religious and cultural

significance are involved. This section

also requires the Agency Official to

consider the views of consulting parties

and the public that have already been

provided to the Federal agency.

Section 800.5(a)(1). This section

codifies the practice of the Council in

considering both direct and indirect

effects in making an adverse effect

determination. This section allows for

consideration of effects on the

qualifying characteristics of a historic

property that may not have been part of

the property’s original eligibility

evaluation. The last sentence in this

section is intended to amplify the

indirect effects concept, similar to the

NEPA regulations, which calls for

consideration of such effects when they

are reasonably foreseeable effects.

Section 800.5(a)(2)(ii). The list of

examples of adverse effects has been

modified by eliminating the exceptions

to the adverse effect criteria. However,

if a property is restored, rehabilitated,

repaired, maintained, stabilized,

remediated or otherwise changed in

accordance with the Secretary’s

standards, then it will not be considered

an adverse effect.

Section 800.5(a)(2)(iii). This

subsection, along with § 800.5(a)(2)(I),

would encompass recovery of

archeological data as an adverse effect,

even if conducted in accordance with

the Secretary’s standards. This

acknowledges the reality that

destruction of a site and recovery of its

information and artifacts is adverse. It is

intended that in eliminating data

recovery as an exception to the adverse

effect criteria, Federal agencies will be

more inclined to pursue other forms of

mitigation, including avoidance and

preservation in place, to protect

archeological sites.

Section 800.5(a)(2)(iv). This section

tracks the National Register criteria

regarding the relation of alterations to a

property’s use or setting to the

significance of the property.

Section 800.5(a)(2)(v). This section

tracks the language of the National

Register criteria as it pertains to the

property’s integrity.

Section 800.5(a)(2)(vi). This section

acknowledges that where properties of

religious and cultural significance to

Indian tribes or Native Hawaiian

organizations are involved, neglect and

deterioration may be recognized as

qualities of those properties and thus

may not necessarily constitute an

adverse effect.

Section 800.5(a)(2)(vii). If a property

is transferred leased or sold out of

Federal ownership with proper

preservation restrictions, then it will not

be considered an adverse effect.

Transfer between Federal agencies is not

an adverse effect per se; the purpose of

the transfer should be evaluated for

potential adverse effects, so that they

can be considered before the transfer

takes place.

Section 800.5(a)(3). This section is

intended to allow flexibility in Federal

agency decision making processes and

to recognize that phasing of adverse

effect determinations, like identification

and evaluation, is appropriate in certain

planning and approval circumstances,

such as the development of linear

projects where major corridors are first

assessed and then specific route

alignment decisions are made

subsequently.

Section 800.5(b). This section allows

SHPO/THPO’s the ability to suggest

changes in a project or suggest

conditions so that adverse effects can be

avoided and thus result in a no adverse

effect determination. It is also written to

emphasize that a finding of no adverse

effect is only a proposal when the

Agency Official submits it to the SHPO/

THPO for review. This provision also

acknowledges that the practice of

‘‘conditional No Adverse Effect

determinations’’ is acceptable.

Section 800.5(c). The Council will not

review ‘‘no adverse effect’’

determinations on a routine basis. The

Council will intervene and review no

adverse effect determinations if it deems

it appropriate based on the criteria

listed in Appendix A or if the SHPO/

THPO or another consulting party and

the Federal agency disagree on the

finding and the agency cannot resolve

the disagreement. The SHPO/THPO and

any consulting party wishing to disagree

to the finding must do so within the 30-

day review period. If Indian tribes or

Native Hawaiian organizations disagree

with the finding, they can request the

Council’s review directly, but this must

be done within the 30 day review

period. If a SHPO/THPO fails to respond

to an Agency Official finding within the

30 day review period, then the Agency

Official can consider that to be SHPO/

THPO agreement with the finding.

When a finding is submitted to the

Council, it will have 15 days for review;

if it fails to respond within the 15 days,

then the Agency Official may assume

Council concurrence with the finding.

When it reviews no adverse effect

determinations, the Council will limit

its review to whether or not the criteria

have been correctly applied.

Section 800.5(d). Agencies must

retain records of their findings of no

adverse effect and make them available

to the public. This means that the public

should be given access to the

information, subject to FOIA and other

statutory limits on disclosure such as

section 304 of the NHPA, when they so

request. Failure of the agency to carry

out the undertaking in accordance with

the finding requires the Agency Official

to reopen the section 106 process and

determine whether the altered course of

action constitutes an adverse effect. A

finding of adverse effect requires further

consultation on ways to resolve it.

Section 800.6(a)(1). When adverse

effects are found, the consultation must

continue among the Federal agency,

SHPO/THPO and consulting parties to

attempt to resolve them. The Agency

Official must notify the Council when

adverse effects are found and should

invite the Council to participate in the

consultation when the circumstances in

§ 800.6(a)(1)(i)(A)–(C) exist. A

consulting party may also request the

Council to join the consultation. The

Council will decide on its participation

within 15 days of receipt of a request,

basing its decision on the criteria set

forth in Appendix A. Whenever the

Council decides to join the consultation,

it must notify the Agency Official and

the consulting parties. It must also

advise the head of the Federal agency of

its decision to participate. This is

intended to keep the policy level of the

Federal agency apprized of those cases

that the Council has determined present

issues significant enough to warrant its

involvement.

Section 800.6(a)(2). This section

allows for the entry of new consulting

parties if the agency and the SHPO/

THPO (and the Council, if participating)

agree. If they do not agree, it is desirable

for them to seek the Council’s opinion

on the involvement of the consulting

party. Any party, including applicants,

licensees or permittees, that may have

responsibilities under a Memorandum

of Agreement must be invited to

participate as consulting parties in

reaching the agreement.

Section 800.6(a)(3). This section

specifies the Agency Official’s

Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations 77721

obligation to provide project

documentation to all consulting partes

at the beginning of the consultation to

resolve adverse effects. Particular note

should be made of the reference to the

confidentiality provisions.

Section 800.6(a)(4). The Federal

agency must provide an opportunity for

members of the public to express their

views on an undertaking. The provision

embodies the principles of flexibility,

relating the agency effort to various

aspects of the undertaking and its effects

upon historic properties. The Federal

agency must provide them with notice

such that the public has enough time

and information to meaningfully

comment. If all relevant information

was provided at earlier stages in the

process in such a way that a wide

audience was reached, and no new

information is available at this stage in

the process that would assist in the

resolution of adverse effects, then a new

public notice may not be warranted.

However, this presumes that the public

had the opportunity to make its views

known on ways to resolve the adverse

effects.

Section 800.6(a)(5). Although it is in

the interest of the public to have as

much information as possible in order

to provide meaningful comments, this

section acknowledges that information

may be withheld in accordance with

section 304 of the NHPA.

Section 800.6(b). If the Council is not

a part of the consultation, then a copy

of the Memorandum of Agreement must

be sent to the Council so that the

Council can include it in its files to have

an understanding of a Federal agency’s

implementation of section 106. This

does not provide the Council an

opportunity to reopen the specific case,

but may form the basis for other actions

or advice related to an agency’s overall

performance in the section 106 process.

Section 800.6(b)(1). When resolving

adverse effects without the Council, the

Agency Official consults with the

SHPO/THPO and other consulting

parties to develop a Memorandum of

Agreement. If this is achieved, the

agreement is executed between the

Agency Official and the SHPO/THPO

and filed with required documentation

with the Council. This filing is the

formal conclusion of the section 106

process and must occur before the

undertaking is approved. Standard

treatments adopted by the Council may

set expedited ways for competing

memoranda of agreement in certain

circumstances.

Section 800.6(b)(2). When the Council

is involved, the consultation proceeds

in the same manner, but the agreement

of the Agency Official, the SHPO/THPO

and the Council is required for a

Memorandum of Agreement.

Section 800.6(c). This section details

the provisions relating to Memoranda of

Agreement. This document evidences

an agency’s compliance with section

106 and the agency is obligated to

follow its terms. Failure to do so

requires the Agency Official to reopen

the section 106 process and bring it to

suitable closure as prescribed in the

regulations.

Section 800.6(c)(1). This section sets

forth the rights of signatories to an

agreement and identifies who is

required to sign the agreement under

specific circumstances. The term

‘‘signatory’’ has a special meaning as

described in this section, which is the

ability to terminate or agree to amend

the Memorandum of Agreement. The

term does not include others who sign

the agreement as concurring parties.

Section 800.6(c)(2). Certain parties

may be invited to be signatories in

addition to those specified in

§ 800.6(c)(1). They include individuals

and organizations that should, but do

not have to, sign agreements. It is

particularly desirable to have parties

who assume obligations under the

agreement become formal signatories.

However, once invited signatories sign

MOAs, they have the same rights to

terminate or amend the MOA as the

other signatories.

Section 800.6(c)(3). Other parties may

be invited to concur in agreements.

They do not have the rights to amend

or terminate an MOA. Their signature

simply shows that they are familiar with

the terms of the agreement and do not

object to it.

Sections 800.6(c)(4)–(9). These

sections set forth specific features of a

Memorandum of Agreement and the

way it can be terminated or amended.

Section 800.7. This section specifies

what happens when the consulting

parties cannot reach agreement. Usually

when consultation is terminated, the

Council renders advisory comments to

the head of the agency, which must be

considered when the final agency

decision on the undertaking is made.

Section 800.7(a)(1). This section

requires that the head of the agency or

an Assistant Secretary or officer with

major department-wide or agency-wide

responsibilities must request Council

comments when the Agency Official

terminates consultation. Section 110(l)

of the NHPA requires heads of agencies

to document their decision when an

agreement has not been reached under

section 106. If the agency head is

responsible for documenting the

decision, it is appropriate that the same

individual request the Council’s

comments.

Section 800.7(a)(2). This section

allows the Council and the Agency

Official to conclude the section 106

process with a Memorandum of

Agreement between them if the SHPO

terminates consultation.

Section 800.7(a)(3). If a THPO

terminates consultation, there can be no

agreement with regard to undertakings

that are on or affect properties on tribal

lands and the Council will issue formal

comments. This provision respects the

tribe’s unique sovereign status with

regard to its lands.

Section 800.7(a)(4). This section

governs cases where the Council

terminates consultation. In that case, the

Council has the duty to notify all

consulting parties prior to commenting.

The role given to the Federal

Preservation Officer is intended to fulfill

the NHPA’s goal of having a central

official in each agency to coordinate and

facilitate the agency’s involvement in

the national historic preservation

program.

Section 800.7(b). This section allows

the Council to provide advisory

comments even though it has signed a

Memorandum of Agreement. It is

intended to give the Council the

flexibility to provide comments even

where it has agreed to sign an MOA.

Such comments might elaborate upon

particular matters or provide

suggestions to Federal agencies for

future undertakings.

Section 800.7(c). This section gives

the Council 45 days to provide its

comments to the head of the agency for

a response by the agency head. When

submitting its comments, the Council

will also provide the comments to the

Federal Preservation Officer, among

others, for information purposes.

Section 800.7(c)(4). This section

specifies what it means to ‘‘document

the agency head’s decision’’ as required

by section 110(l) when the Council

issues its comment to the agency head.

Section 800.8. This major section

guides how Federal agencies can

coordinate the section 106 process with

NEPA compliance. It is intended to

allow compliance with section 106 to be

incorporated into the NEPA

documentation process while preserving

the legal requirements of each statute.

Section 800.8(a)(1). This section

encourages agencies to coordinate NEPA

and section 106 compliance early in the

planning process. It emphasizes that

impacts on historic properties should be

considered when an agency makes

evaluations of its NEPA obligations, but

makes clear that an adverse effect

77722 Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations

finding does not automatically trigger

preparation of an EIS.

Section 800.8(a)(2). This section

encourages consulting parties in the

section 106 process to be prepared to

consult with the Agency Official early

in the NEPA process.

Section 800.8(a)(3). This section

encourages agencies to include historic

preservation issues in the development

of various NEPA assessments and

documents. This is essential for

effective coordination between the two

processes. It is intended to discourage

agencies from postponing consideration

of historic properties under NEPA until

later initiation of the section 106

process.

Section 800.8(b). This section notes

that a project, activity or program that

falls within a NEPA categorical

exclusion may still require section 106

review. An exclusion from NEPA does

not necessarily mean that section 106

does not apply.

Section 800.8(c). This section offers

Federal agencies an opportunity for

major procedural streamlining when

NEPA and section 106 both apply to a

project. It allows the agency, when

specific standards are met, to substitute

preparation of an EA or an EIS for the

specific steps of the section 106 process

set out in these regulations.

Section 800.8(c)(1). This section lists

the standards that must be adhered to

when developing NEPA documents that

are intended to incorporate 106

compliance. They are intended to

ensure that the objectives of the section

106 process are being met even though

the specific steps of the process are not

being followed.

Section 800.8(c)(2). This section

provides for Council and consulting

party review of the agency’s

environmental document within

NEPA’s public comment review time

frame. Consulting parties and the

Council may object prior to or within

this time frame to adequacy of the

document.

Section 800.8(c)(3). If there is an

objection to the NEPA document, the

Council has 30 days to state whether or

not it agrees with the objection. If the

Council agrees with the objection, the

Agency Official must complete the

section 106 process through

development of a Memorandum of

Agreement or obtaining formal Council

comment (§ 800.6–7). If it does not, then

the Agency Official can complete its

review under § 800.8.

Section 800.8(c)(4). This subsection

explains how Agency Officials using

NEPA coordination must finalize their

section 106 compliance for those cases

where an adverse effect is found. The

Agency must document the proposed

mitigation measures. A binding

commitment with the proposed

measures must be adopted. In the case

of a FONSI, the binding commitment

must be in the form of an MOA, drafted

in accordance with § 800.6(c). Although

the regulations do not send Agency

Officials back to § 800.6(b) (regarding

consultation towards an MOA), Agency

Officials are reminded of the standards

they must still follow under

§ 800.8(c)(1), and specifically the

mitigation measures’ consultation under

§ 800.8(c)(1)(v). In the case of an EIS,

although a Memorandum of Agreement

under § 800.6(c) is not required, an

appropriate binding commitment must

still be adopted. Finally, the subsection

also clarifies the Agency Official’s

obligation to ensure that its approval of

the undertaking is conditioned

accordingly.

Section 800.8(c)(5). This section

requires Federal agencies to supplement

their NEPA documents or abide by

§§ 800.3 through 800.6 in the event of a

change in the proposed undertaking that

alters the undertaking’s impact on

historic properties.

Section 800.9. This section delineates

the methods the Council will use to

oversee the operation of the section 106

process. The Council draws upon its

general advisory powers and specific

provisions of the NHPA to conduct

these actions.

Section 800.9(a). This section

emphasizes the right of the Council to

provide advice at any time in the

process on matters related to the section

106 process.

Section 800.9(b). A foreclosure means

that an agency has gone forward with an

undertaking to such an extent that the

Council can not provide meaningful

comments. A finding of foreclosure by

the Council means that the Council has

determined that the Federal agency has

not fulfilled its section 106

responsibilities with regard to the

undertaking. Such a finding does not

trigger any specific action, but

represents the opinion of the Council as

the agency charged by statute with

issuing the regulations that implement

section 106.

Section 800.9(c). This section

reiterates the requirements of section

110(k) of the Act added in 1992. It also

provides a process by which the Council

will comment if the Federal agency

decides that circumstances may justify

granting the assistance. If after

considering the comments, the Federal

agency does decide to grant the

assistance, then the Federal agency must

comply with section 106 for any historic

properties that still may be affected.

This does not require duplication of

consultation that may have already

taken place with the Council in the

course of addressing 110(k), but is

intended to ensure that the agency has

meaningful consultation with the

Council as to mitigating adverse effects

if the agency decides to proceed with

approving the undertaking.

Section 800.9(d). As the Council

reduces its involvement in routine

cases, it will be focusing its efforts more

and more on agency programs and

overall compliance with the section 106

process. The NHPA authorizes the

Council to obtain information from

Federal agencies and make

recommendations on improving

operation of the section 106 process. If

the Council finds that an agency or a

SHPO/THPO has not carried out its

section 106 responsibilities properly, it

may enter the section 106 process on an

individual case basis to make

improvement. The Council may also

review agency operations and

performance and make specific

recommendations for improvement

under section 202(a)(6) of the Act.

Section 800.10. This section provides

a process for how Federal agencies must

afford the Council a reasonable

opportunity to comment on historic

landmarks. It is largely unchanged from

the process under previous regulations.

Section 800.11. This section sets forth

the requirements for documentation at

various steps in the section 106 process.

It makes documentation requirements

clearer and promotes agency use of

documentation prepared for other

planning requirements.

Section 800.11(a). The section allows

for the phasing of documentation

requirements when an agency is

conducting phased identification and

evaluation. The Council can advise on

the resolution of disputes over

adherence to documentation standards.

However, the ultimate responsibility for

compiling adequate documentation rests

with the agency. During the

consideration of any disputes over

documentation, the process is not

formally suspended. However, agencies

should resolve significant disputes

before going forward too far in the

section 106 process in order to avoid

subsequent delays.

Section 800.11(b). This section allows

for the use of documents prepared for

NEPA or other agency planning

processes to fulfill this provision as long

as those documents meet the standards

in this section.

Section 800.11(c). This section is

intended to protect the rights of private

property owners with regard to

proprietary information, and Indian

Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations 77723

tribes and Native Hawaiian

organizations with regard to properties

to which they attach religious and

cultural significance. This section

emphasizes that the regulations are

subject to any other Federal statutes

which protect certain kinds of

information from full public disclosure.

The role of the Secretary and the

process of consultation with the Council

are based on the statutory requirements

of section 304 of the Act.

Section 800.11(d)–(f). These sections

specify the documentation standards for

various findings or actions in the

section 106 process. They are

incrementally more detailed as the

historic preservation issues become

more substantial or complex. Each is

intended to provide basic information

so that a third-party reviewer can

understand the basis for an agency’s

finding or proposed decision.

Section 800.12. This section deals

with emergency situations and generally

follows the approach of previous

regulations.

Section 800.12(a). This section

encourages Federal agencies to develop

procedures describing how the Federal

agency will take into account historic

properties during certain emergency

operations, including imminent threats

to life or property. The nature of the

consultation required in developing

such procedures will vary, depending

upon the extent of actions covered by

the procedures. The procedures must be

approved by the Council if they are to

substitute for Subpart B.

Section 800.12(b). If there are no

agency procedures for taking historic

properties into account during

emergencies, then the Federal agency

may either follow a previouslydeveloped Programmatic Agreement or

notify the Council, SHPO/THPO and,

where appropriate, an Indian tribe or

Native Hawaiian organization

concerned with potentially affected

resources. If possible, the Federal

agency should provide these parties 7

days to comment.

Section 800.12(c). This section

permits a local government that has

assumed section 106 responsibilities to

use the provisions of § 800.12(a) and (b).

However, if the Council or an SHPO/

THPO objects, the local government

must follow the normal section 106

process.

Section 800.12(d). A Federal agency

may use the provisions in § 800.12 only

for 30 days after an emergency or

disaster has been declared, unless an

extension is sought.

Section 800.13. This section deals

with resources discovered after section

106 review has been completed.

Section 800.13(a). This section

emphasizes the utility of developing

Programmatic Agreements to deal with

discoveries of historic properties which

may occur during implementation of an

undertaking. If there is no Programmatic

Agreement to deal with discoveries, and

the Agency Official determines that

other historic properties are likely to be

discovered, then a plan for how

discoveries will be addressed must be

included in a no adverse effect finding

or a Memorandum of Agreement.

Section 800.13(b)(1). This section

states the procedures that must be

followed when construction has not yet

occurred or an undertaking has not yet

been approved. Because a Federal

agency has more flexibility at this stage,

adherence to the consultative process as

set forth in § 800.6 is appropriate.

Section 800.13(b)(2). This section

provides that where an archeological

site has been discovered and where the

Agency Official, SHPO/THPO and any

appropriate Indian tribe or Native

Hawaiian organization agree that it is of

value solely for the data that it contains,

the Agency Official can comply with the

Archeological and Historic Preservation

Act instead of the procedures in this

subpart.

Section 800.13(b)(3). This section sets

forth the procedures that must be

followed when the undertaking has

been approved and construction has

commenced. Development of actions to

resolve adverse effects and notification

to the SHPO/THPO and the Council

within 48 hours of the discovery are

required. Comments from those parties

are encouraged and the agency must

report the actions it ended up taking to

deal with the discovery.

Section 800.13(c). This section allows

an agency to make an expedited field

judgment regarding eligibility of

properties discovered during

construction.

Subpart C—Program Alternatives

Section 800.14. This section lays out

a variety of alternative methods for

Federal agencies to meet their section

106 obligations. They allow agencies to

tailor the section 106 process to their

needs.

Section 800.14(a). Alternate

procedures are a major streamlining

measure that allows tailoring of the

section 106 process to Agency programs

and decisionmaking processes. The

procedures would substitute in whole or

in part for the Council’s section 106

regulations. As procedures, they would

include formal Agency regulations, but

would also include departmental or

Agency procedures that do not go

through the formal rulemaking process.

Procedures must be developed in

consultation with various parties as set

forth in the regulations. The public must

have an opportunity to comment on

Alternate procedures. If the Council

determines that they are consistent with

its regulations, the alternate procedures

may substitute for the Council’s

regulations. In reviewing alternate

procedures for consistency, the Council

will not require detailed adherence to

every specific step of the process found

under the Council’s regulations. The

Council, however, will look for

procedures that afford historic

properties consideration equivalent to

that afforded by the Council’s

regulations and that meet the

requirements of section 110(a)(2)(E) of

the Act. If an Indian tribe has

substituted its procedures for the

Council’s regulations pursuant to

section 101(d)(5) of the NHPA, then the

Federal agency must follow the

agreement with the Council and the

tribe’s substitute regulations for

undertakings on tribal lands.

Section 800.14(b). This section retains

the concept of Programmatic

Agreements. The circumstances under

which a Programmatic Agreement is

appropriate are specified. The section

places Programmatic Agreements into

two general categories: those covering

agency programs and those covering

complex or multiple undertakings. The

section on Agency programs makes clear

that the President of NCSHPO must sign

a nationwide agreement when NCSHPO

has participated in the consultation. If a

Programmatic Agreement concerns a

particular region, then the signature of

the affected SHPOs/THPOs is required.

An individual SHPO/THPO can

terminate its participation in a regional

Programmatic Agreement, but the

agreement will remain in effect for the

other states in the region. Only NCSHPO

can terminate a nationwide

Programmatic Agreement on behalf of

the individual SHPOs. Language is

included to recognize tribal sovereignty

while providing flexibility to Federal

agencies and tribes when developing

Programmatic Agreements. While it

does not prohibit the other parties from

executing a Programmatic Agreement,

the language does limit the effect of the

agreement to non-tribal lands unless the

tribe executes it. However, the language

also authorizes multiple Indian tribes to

designate a representative tribe or tribal

organization to participate in

consultation and sign a Programmatic

Agreement on their behalf.

Requirements for public involvement

and notice are included. The section on

complex or multiple undertakings ties

77724 Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations

back to § 800.6 for the process of

creating such programmatic agreements.

Section 800.14(c). Exemptions are

intended to remove from section 106

compliance those undertakings that

have foreseeable effects on historic

properties which are likely to be

minimal. Section 214 of the NHPA gives

the Council the authority to allow for

such exemptions. This section sets forth

the criteria, drawn from the statute, for

exemptions and a process for obtaining

(and terminating) an exemption.

Section 800.14(d). Standard

treatments provide a streamlined

process by which the Council can

establish certain acceptable practices for

dealing with a category of undertakings,

effects, historic properties, or treatment

options. A standard treatment may

modify the application of the normal

section 106 process under certain

circumstances or simplify the steps or

requirements of the regulations. This

section sets forth the process for

establishing a standard treatment and

terminating it.

Section 800.14(e). Program comments

are intended to give the Council the

flexibility to issue comments on a

Federal program or class of

undertakings rather than comment on

such undertakings on a case-by-case

basis. This section sets forth the process

for issuing such comments and

withdrawing them. The Federal agency

is obligated to consider, but not

necessarily follow, the Council’s

comments. If it does not, the Council

may withdraw the comment, in which

case the agency continues to comply

with section 106 on a case-by-case basis.

Section 800.14(f). The requirement for

consultation program alternatives with

Indian tribes and Native Hawaiian

organizations is provided for in this

section. It is an overlay on each of the

Federal program alternatives set forth in

§ 800.14(a)–(e). It provides for

government-to-government consultation

with Indian tribes.

Section 800.15. Tribal, State and

Local Program Alternatives. This section

is presently reserved for future use. The

Council will proceed with the review of

tribal applications for substitution of

tribal regulations for the Council’s

section 106 regulations on tribal lands,

pursuant to section 101(d)(5) of the Act,

on the basis of informal procedures.

With regard to State agreements, the

Council will keep in effect any currently

valid State agreements until revised

procedures for State agreements take

effect or until the agreement is

otherwise terminated.

Section 800.16. Definitions. This

section includes new definitions to

respond to identified needs for

clarification and to reflect statutory

amendments.

The term ‘‘Agency’’ is defined for ease

of reference. It tracks the statutory

definition in the NHPA.

The definition of ‘‘approval of the

expenditure of funds’’ clarifies the

intent of this statutory language as it

appears in section 106 of the NHPA.

This definition addresses the timing of

section 106 compliance. A Federal

agency must take into account the

effects of its actions and provide the

Council a reasonable opportunity to

comment before the Agency decides to

authorize funds, not just before the

release of those funds. The intent of this

provision is to emphasize the

necessitate for compliance with section

106 early in the decision making

process.

The definition of ‘‘area of potential

effects’’ acknowledges that the

determination of the area potential

effects often depends on the nature and

scale of the undertaking and the

associated effects.

The definition of ‘‘comment’’ makes it

clear that the term refers to the formal

comments of the Council members.

The definition of ‘‘consultation’’

describes the nature and goals of this

critical aspect of the section 106 review

process.

The term ‘‘day’’ was defined to clarify

the running of time periods.

The term ‘‘effect’’ is defined because,

even though the ‘‘no effect’’ step is not

in the rule, the concept of an

undertaking’s effect is still a part of the

‘‘historic properties affected’’

determination.

‘‘Foreclosure’’ is a term that has

always been a part of the section 106

process. The term describes the finding

that is made by the Council when an

Agency action precludes the Council

from its reasonable opportunity to

comment on an undertaking.

The term ‘‘head of the Agency’’ is

defined in light of the 1992 amendments

in section 110(l) that require that the

head of an Agency document a decision

where a Memorandum of Agreement has

not been reached for an undertaking.

‘‘Indian tribe’’ is defined exactly as in

section 301(4) of the NHPA.

‘‘Native Hawaiian organization’’ is

defined exactly as in section 301(17) of

the NHPA.

‘‘Tribal Historic Preservation Officer’’

is the tribal official who has formally

assumed the SHPO’s responsibilities

under section 101(d)(2) of the NHPA.

‘‘Tribal lands’’ is defined exactly as in

section 301(14) of the NHPA.

‘‘Undertaking’’ is defined exactly as in

section 301(7) of the statute. The

Agency Official is responsible, in

accordance with § 800.3(a), for making

the determination as to whether a

proposed Federal action is an

undertaking. As appropriate, an agency

should examine the nature of its Federal

involvement taking into consideration

factors such as the degree of Federal

agency control or discretion; the type of

Federal involvement or link to the

action; and whether or not the action

could move forward without Federal

involvement. An agency should seek the

advice of the Council when uncertain

about whether or not its action falls

within the definition of an undertaking.

The 1986 regulatory definition of

undertaking included new and

continuing projects, activities, or

programs and any of their elements not

previously considered under section

106. It is intended that the new

definition includes such aspects of a

project, activity, or program as

undertakings.

Appendix A. Criteria for Council

Involvement in Reviewing Individual

section 106 Cases

This appendix sets forth the criteria

that will guide Council decisions to

enter certain section 106 cases. As

§ 800.2(b)(1) states, the Council will

document that the criteria have been

met and notify the parties to the section

106 process as required. Council

involvement in section 106 cases is not

automatic once a criterion has been met.

The Council retains discretion as to

whether or not to enter such a case.

Likewise, it is not essential that all

criteria be met. The point of the criteria

is to ensure that the Council has made

a thoughtful decision to enter the

section 106 process and to give

agencies, SHPOs/THPOs and other

section 106 participants a clear

understanding of the kind of cases that

warrant Council involvement.

V. Impact Analysis

The Regulatory Flexibility Act

The Council certifies that the final

rule will not have a significant

economic impact on a substantial

number of small entities. Although

comments on the proposed rule

questioned the validity of such

certification, the rule in its proposed

and final versions imposes mandatory

responsibilities on only Federal

agencies. As set forth in section 106 of

the NHPA, the duties to take into

account the effect of an undertaking on

historic resources and to afford the

Council a reasonable opportunity to

comment on that undertaking are

Federal agency duties. Indirect effects

on small entities, if any, created in the

Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations 77725

course of a Federal agency’s compliance

with section 106 of the NHPA, must be

considered and evaluated by that

Federal agency.

The Paperwork Reduction Act

The final regulations do not impose

reporting or recordkeeping requirements

or the collection of information as

defined in the Paperwork Reduction

Act.

The National Environmental Policy Act

In accordance with 36 CFR part 805,

the Council initiated the NEPA

compliance process for the Council’s

regulations implementing section 106 of

the NHPA prior to publication of the

proposed rule in the Federal Register on

September 13, 1996. On July 11, 2000,

through a notice of availability on the

Federal Register (65 FR 42850), the

Council sought public comment on its

Environmental Assessment and

preliminary Finding of No Significant

Impact. The Council has considered

such comments, and has confirmed its

finding of no significant impact on the

human environment. A notice of

availability of the Environmental

Assessment and Finding of No

Significant Impact has been published

in the Federal Register.

Executive Orders 12866 and 12875

The Council is exempt from

compliance with Executive Order 12866

pursuant to implementing guidance

issued by the Office of Management and

Budget’s Office of Information and

Regulatory Affairs in a memorandum

dated October 12, 1993. The Council

also is exempt from the documentation

requirements of Executive Order 12875

pursuant to implementing guidance

issued by the same OMB office in a

memorandum dated January 11, 1994.

The rule does not mandate State, local,

or tribal governments to participate in

the section 106 process. Instead, State,

local, and tribal governments may

decline to participate. State Historic

Preservation Officers do advise and

assist Federal agencies, as appropriate,

as part of their duties under section

101(b)(3)(E) of the NHPA, as a condition

of their Federal grant assistance. In

addition, in accordance with Executive

Order 12875, the rule includes several

flexible approaches to consideration of

historic properties in Federal agency

decision making, such as those under

§ 800.14 of the rule. The rule promotes

flexibility and cost effective compliance

by providing for alternate procedures,

categorical exemptions, standard

treatments, program comments, and

programmatic agreements.

The Unfunded Mandates Reform Act of

1995

The final rule implementing section

106 of the NHPA does not impose

annual costs of $100 million or more,

will not significantly or uniquely affect

small governments, and is not a

significant Federal intergovernmental

mandate. The Council thus has no

obligations under sections 202, 203, 204

and 205 of the Unfunded Mandates

Reform Act.

Executive Order 12898

The final rule implementing section

106 of the NHPA does not cause adverse

human health or environmental effects,

but, instead, seeks to avoid adverse

effects on historic properties throughout

the United States. The participation and

consultation process established by this

rule seeks to ensure public

participation—including by minority

and low-income populations and

communities—by those whose cultural

heritage, or whose interest in historic

properties, may be affected by proposed

Federal undertakings. The section 106

process is a means of access for minority

and low-income populations to

participate in Federal decisions or

actions that may affect such resources as

historically significant neighborhoods,

buildings, and traditional cultural

properties. The Council considers

environmental justice issues in

reviewing analysis of alternatives and

mitigation options particularly when

section 106 compliance is coordinated

with NEPA compliance. Guidance and

training is being developed to assist

public understanding and use of this

rule.

Memorandum Concerning Governmentto-Government Relations With Native

American Tribal Governments

The Council has fully complied with

this Memorandum. A Native American/

Native Hawaiian representative has

served on the Council. As better

detailed in the preamble to the rule

adopted in 1999, the Council has

consulted at length with Tribes in

developing the substance of what

became the proposed rule in this

rulemaking. The rule enhances the

opportunity for Native American

involvement in the section 106 process

and clarifies the obligation of Federal

agencies to consult with Native

Americans. The rule also enhances the

Government-to-Government intentions

of the memorandum.

Submission to Congress and the

Comptroller General

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. The Council will

submit a report containing this rule and

other required information to the U.S.

Senate, the U.S. House of

Representatives, and the Comptroller

General of the United States prior to

publication of the rule in the Federal

Register. This rule is not a ‘‘major rule’’

as defined by 5 U.S.C. 804(2). This rule

will be effective January 11, 2001.

List of Subjects in 36 CFR Part 800

Administrative practice and

procedure, Historic preservation,

Indians, Intergovernmental relations.

For the reasons discussed in the

preamble, the Advisory Council on

Historic Preservation amends 36 CFR

chapter VIII by revising part 800 to read

as follows:

PART 800—PROTECTION OF

HISTORIC PROPERTIES

Subpart A—Purposes and Participants

Sec.

800.1 Purposes.

800.2 Participants in the Section 106

process.

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

Environmental Policy Act.

800.9 Council review of Section 106

compliance.

800.10 Special requirements for protecting

National Historic Landmarks.

800.11 Documentation standards.

800.12 Emergency situations.

800.13 Post-review discoveries.

Subpart C—Program Alternatives

800.14 Federal agency program alternatives.

800.15 Tribal, State, and local program

alternatives. [Reserved]

800.16 Definitions.

Appendix A to Part 800—Criteria for Council

involvement in reviewing individual

section 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 National

Historic Preservation Act requires

Federal agencies to take into account the

effects of their undertakings on historic

properties and afford the Council a

77726 Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations

reasonable opportunity to comment on

such undertakings. The procedures in

this part define how Federal agencies

meet these statutory responsibilities.

The section 106 process seeks to

accommodate historic preservation

concerns with the needs of Federal

undertakings through consultation

among the agency official and other

parties with an interest in the effects of

the undertaking on historic properties,

commencing at the early stages of

project planning. The goal of

consultation is to identify historic

properties potentially affected by the

undertaking, assess its effects and seek

ways to avoid, minimize or mitigate any

adverse effects on historic properties.

(b) Relation to other provisions of the

act. Section 106 is related to other

provisions of the act designed to further

the national policy of historic

preservation. References to those

provisions are included in this part to

identify circumstances where they may

affect actions taken to meet section 106

requirements. 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 access and are not

incorporated by reference.

(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

nondestructive project planning

activities before completing compliance

with section 106, provided that such

actions do not restrict the subsequent

consideration of alternatives to avoid,

minimize or mitigate the undertaking’s

adverse effects on historic properties.

The agency official shall ensure that the

section 106 process is initiated early in

the undertaking’s planning, so that a

broad range of alternatives may be

considered 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

fulfill 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 Federal agency to take

appropriate action for a specific

undertaking as a result of section 106

compliance. For the purposes of subpart

C of this part, the agency official has the

authority to commit the Federal agency

to any obligation it may assume in the

implementation 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 accordance with Federal

law.

(1) Professional standards. Section

112(a)(1)(A) of the act requires each

Federal agency responsible for the

protection of historic resources,

including archeological resources, to

ensure that all actions taken by

employees or contractors of the agency

shall meet professional 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

official 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

recommendations under this part. The

agency official remains legally

responsible for all required findings and

determinations. If a document or study

is prepared by a non-Federal party, the

agency official is responsible for

ensuring that its content meets

applicable standards and guidelines.

(4) Consultation. The agency official

shall involve the consulting parties

described in paragraph (c) of this

section in findings and determinations

made during the section 106 process.

The agency official should plan

consultations 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 Environmental Policy Act, the

Native American Graves Protection and

Repatriation Act, the American Indian

Religious Freedom Act, the

Archeological Resources Protection Act,

and agency-specific legislation. The

Council encourages 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

regulations to implement section 106,

provides guidance and advice on the

application of the procedures in this

part, and generally oversees the

operation of the section 106 process.

The Council also consults with and

comments to agency officials on

individual undertakings and programs

that affect historic 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

appendix A to this part. The Council

will document that the criteria have

been met and notify the parties to the

section 106 process as required by this

part.

(2) Council assistance. Participants in

the section 106 process may seek

advice, 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

preservation of their cultural heritage. In

accordance with section 101(b)(3) of the

act, the SHPO advises and assists

Federal agencies in carrying out their

section 106 responsibilities and

cooperates with such agencies, local

governments and organizations and

individuals to ensure that historic

properties are taking 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.

Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations 77727

(A) Tribal historic preservation

officer. 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

official shall consult with the THPO in

lieu of the SHPO regarding undertakings

occurring on or affecting historic

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

Indian tribe in addition to the SHPO

regarding undertakings occurring on or

affecting historic properties on its tribal

lands. Such Indian tribes have the same

rights of consultation and concurrence

that the THPOs are given throughout

subpart B of this part, except 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

Indian tribe or Native Hawaiian

organization that attaches religious and

cultural significance to historic

properties that may be affected by an

undertaking. This requirement applies

regardless of the location of the historic

property. Such Indian tribe or Native

Hawaiian organization shall be a

consulting party.

(A) The agency official shall ensure

that consultation in the section 106

process provides the Indian tribe or

Native Hawaiian organization a

reasonable opportunity to identify its

concerns about historic properties,

advise on the identification and

evaluation of historic properties,

including those of traditional religious

and cultural importance, articulate its

views on the undertaking’s effects on

such properties, and participate in the

resolution of adverse effects. It is the

responsibility of the agency official to

make a reasonable and good faith effort

to identify Indian tribes and Native

Hawaiian organizations that shall be

consulted in the section 106 process.

Consultation should commence early in

the planning process, in order to

identify and discuss relevant

preservation issues and resolve

concerns about the confidentiality of

information on historic 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 alters,

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-togovernment relationship between the

Federal Government and Indian tribes.

The agency official shall consult with

representatives designated or identified

by the tribal government or the

governing body of a Native Hawaiian

organization. Consultation with Indian

tribes and Native Hawaiian

organizations should be conducted in a

manner sensitive to the concerns and

needs of the Indian tribe or Native

Hawaiian organization.

(D) When Indian tribes and Native

Hawaiian organizations attach religious

and cultural significance to historic

properties off tribal lands, section

101(d)(6)(B) of the act requires Federal

agencies to consult with such Indian

tribes and Native Hawaiian

organizations in the section 106 process.

Federal agencies should be aware that

frequently 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

Hawaiian organization may enter into

an agreement with an agency official

that specifies how they will carry out

responsibilities under this part,

including concerns over the

confidentiality of information. 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 process without their

consent. An agreement may grant the

Indian tribe or Native Hawaiian

organization additional rights to

participate or concur in agency

decisions in the section 106 process

beyond those specified in subpart B of

this part. The agency official shall

provide a copy of any such agreement

to the Council and the appropriate

SHPOs.

(F) An Indian tribe that has not

assumed 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

governments. A representative of a local

government with jurisdiction over the

area in which the effects of an

undertaking may occur is entitled to

participate 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

approval 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

determinations charged to the agency

official. The agency official shall notify

the SHPO/THPO when an applicant or

group of applicants is so authorized. A

Federal agency may authorize all

applicants 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

government-to-government

relationships with Indian tribes.

(5) Additional consulting parties.

Certain individuals and organizations

with a demonstrated interest in the

undertaking may participate as

consulting parties due to the nature of

their legal or economic relation to the

undertaking or affected properties, or

their concern with the undertaking’s

effects on historic properties.

(d) The public.

(1) Nature of involvement. The views

of the public are essential to informed

Federal decisionmaking 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

involvement 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

77728 Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations

also provide views on their own

initiative for the agency official to

consider in decisionmaking.

(3) Use of agency procedures. The

agency official may use the agency’s

procedures for public involvement

under the National Environmental

Policy Act or other program

requirements in lieu of public

involvement requirements in subpart B

of this part, if they provide adequate

opportunities for public involvement

consistent with this subpart.

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

undertaking 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

effects on historic properties, assuming

such historic properties were present,

the agency official has no further

obligations under section 106 or this

part.

(2) Program alternatives. If the review

of the undertaking is governed by a

Federal agency program alternative

established under § 800.14 or a

programmatic agreement in existence

before January 11, 2001, the agency

official shall follow the program

alternative.

(b) Coordinate with other reviews. The

agency official should coordinate the

steps of the section 106 process, as

appropriate, with the overall planning

schedule for the undertaking and with

any reviews required under other

authorities such as the National

Environmental Policy Act, the Native

American Graves Protection and

Repatriation Act, the American Indian

Religious Freedom Act, the

Archeological Resources Protection Act,

and agency-specific legislation, such as

section 4(f) of the Department of

Transportation Act. Where consistent

with the procedures in this subpart, the

agency official may use information

developed for other reviews under

Federal, State, or tribal law to meet the

requirements of section 106.

(c) Identify the appropriate SHPO

and/or THPO. As part of its initial

planning, the agency official shall

determine the appropriate SHPO or

SHPOs to be involved in the section 106

process. The agency official shall also

determine 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

appropriate officer or officers.

(1) Tribal assumption of SHPO

responsibilities. Where an Indian tribe

has assumed the section 106

responsibilities of the SHPO on tribal

lands pursuant to section 101(d)(2) of

the act, consultation 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

involved in an undertaking, the

involved SHPOs may agree to designate

a lead SHPO to act on their behalf in the

section 106 process, including taking

actions that would conclude the section

106 process under this subpart.

(3) Conducting consultation. The

agency 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

respond. If the SHPO/THPO fails to

respond within 30 days of receipt of a

request for review of a finding or

determination, the agency official may

either proceed to the next step in the

process based on the finding or

determination 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

continue the consultation without being

required to reconsider previous findings

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 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

participation in the section 106 process

for undertakings occurring on or

affecting historic properties on tribal

lands.

(e) Plan to involve the public. In

consultation 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 parties

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

applicants. The agency official shall

invite any local governments or

applicants that are entitled to be

consulting parties under § 800.2(c).

(2) Involving Indian tribes and Native

Hawaiian organizations. The agency

official shall make a reasonable and

good faith effort to identify any Indian

tribes or Native Hawaiian organizations

that might attach religious and cultural

significance to historic properties in the

area of potential effects and invite them

to be consulting parties. Such Indian

tribe or Native Hawaiian 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

organizations to participate as

consulting parties and, in consultation

with the SHPO/THPO and any Indian

tribe upon whose tribal lands an

undertaking occurs or affects historic

properties, determine which should be

consulting parties.

(g) Expediting consultation. A

consultation 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 adequate opportunity to express their

views as provided in § 800.2(d).

§ 800.4 Identification of historic properties.

(a) Determine scope of identification

efforts. 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

Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations 77729

concerning possible historic properties

not yet identified;

(3) Seek information, as appropriate,

from consulting parties, and other

individuals and organizations likely to

have knowledge of, or concerns with,

historic properties in the area, and

identify issues relating to the

undertaking’s potential effects on

historic properties; and

(4) Gather information from any

Indian tribe or Native Hawaiian

organization identified pursuant to

§ 800.3(f) to assist in identifying

properties, including those located off

tribal lands, which may be of religious

and cultural significance to them and

may be eligible for the National Register,

recognizing that an Indian tribe or

Native Hawaiian organization may be

reluctant to divulge specific information

regarding the location, nature, and

activities 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 religious

and cultural significance to properties

within the area of potential effects, 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

identification efforts, which may

include background research,

consultation, 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

undertaking and the degree of Federal

involvement, 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

identification provide guidance on this

subject. The agency official should also

consider other applicable professional,

State, tribal, and local laws, standards,

and guidelines. The agency official shall

take into account any confidentiality

concerns raised by Indian tribes or

Native Hawaiian organizations during

the identification process.

(2) Phased identification and

evaluation. Where alternatives under

consideration consist of corridors or

large land areas, or where access to

properties 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 historic properties if it is specifically

provided for in a memorandum of

agreement executed pursuant to § 800.6,

a programmatic agreement executed

pursuant to § 800.14(b), or the

documents used by an agency official to

comply with the National

Environmental Policy 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 appropriate level of

field investigation, taking into account

the number of alternatives under

consideration, the magnitude of the

undertaking and its likely effects, and

the views of the SHPO/THPO and any

other consulting parties. As specific

aspects or locations of an alternative are

refined or access is gained, the agency

official shall proceed with the

identification and evaluation of historic

properties in accordance with

paragraphs (b)(1) and (c) of this section.

(c) Evaluate historic significance.

(1) Apply National Register criteria. In

consultation 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 Secretary’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 evaluated for National

Register eligibility. The passage of time,

changing perceptions of significance, or

incomplete prior evaluations may

require the agency official to reevaluate

properties previously determined

eligible or ineligible. The agency official

shall acknowledge that Indian tribes and

Native Hawaiian organizations possess

special expertise in assessing the

eligibility of historic properties that may

possess religious and cultural

significance to them.

(2) Determine whether a property is

eligible. If the agency official determines

any of the National Register criteria are

met and the SHPO/THPO agrees, the

property shall be considered eligible for

the National Register for section 106

purposes. If the agency official

determines the criteria are not met and

the SHPO/THPO agrees, the property

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

attaches religious and cultural

significance 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

evaluation.

(1) No historic properties affected. If

the agency official finds that either there

are no historic properties present or

there are historic properties present but

the undertaking will have no effect

upon them as defined in § 800.16(i), the

agency official shall provide

documentation of this finding, as set

forth in § 800.11(d), to the SHPO/THPO.

The agency official shall notify all

consulting parties, including Indian

tribes and Native Hawaiian

organizations, and make the

documentation available for public

inspection prior to approving the

undertaking. If the SHPO/THPO, or the

Council if it has entered the section 106

process, does not object within 30 days

of receipt of an adequately documented

finding, the agency official’s

responsibilities under section 106 are

fulfilled.

(2) Historic properties affected. If the

agency official finds that there are

historic properties which may be

affected by the undertaking or the

SHPO/THPO or the Council objects to

the agency official’s finding under

paragraph (d)(1) of this section, the

agency official shall notify all

consulting parties, including Indian

tribes or Native Hawaiian organizations,

invite their views on the effects and

assess adverse effects, if any, in

accordance with § 800.5.

§ 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 effect

to historic properties within the area of

potential effects. The agency official

shall consider any views concerning

such effects which have been provided

by consulting parties and the public.

(1) Criteria of adverse effect. An

adverse effect is found when an

undertaking may alter, directly or

indirectly, any of the characteristics of

a historic property that qualify the

property for inclusion in the National

Register in a manner that would

diminish the integrity of the property’s

location, design, setting, materials,

workmanship, feeling, or association.

Consideration shall be given to all

77730 Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations

qualifying characteristics of a historic

property, including those that may have

been identified subsequent to the

original evaluation of the property’s

eligibility for the National Register.

Adverse effects may include reasonably

foreseeable effects caused by the

undertaking that may occur later in

time, be farther removed in distance or

be cumulative.

(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, including

restoration, rehabilitation, repair,

maintenance, stabilization, hazardous

material remediation, and provision of

handicapped access, that is not

consistent with the Secretary’s

standards for the treatment of historic

properties (36 CFR part 68) and

applicable guidelines;

(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

contribute to its historic significance;

(v) Introduction of visual,

atmospheric or audible elements that

diminish the integrity of the property’s

significant historic features;

(vi) Neglect of a property which

causes its deterioration, except where

such neglect and deterioration are

recognized qualities of a property of

religious and cultural significance to an

Indian tribe or Native Hawaiian

organization; and

(vii) Transfer, lease, or sale of

property out of Federal ownership or

control without adequate and legally

enforceable 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

restricted, 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

undertaking’s effects do not meet the

criteria of paragraph (a)(1) of this

section or the undertaking is modified

or conditions are imposed, such as the

subsequent review of plans for

rehabilitation by the SHPO/THPO to

ensure consistency 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

documentation specified in § 800.11(e).

The SHPO/THPO shall have 30 days

from receipt to review the finding.

(1) Agreement with finding. Unless

the Council is reviewing the finding

pursuant to § 800.5(c)(3), the agency

official may proceed if the SHPO/THPO

agrees with the finding. The agency

official shall carry out the undertaking

in accordance with § 800.5(d)(1). Failure

of the SHPO/THPO to respond within

30 days from receipt of the finding shall

be considered agreement of the SHPO/

THPO with the finding.

(2) Disagreement with finding.

(i) If the SHPO/THPO or any

consulting party disagrees within the

30-day review period, it shall specify

the reasons for disagreeing with the

finding. The agency official shall either

consult with the party to resolve the

disagreement, or request the Council to

review the finding pursuant to

paragraph (c)(3) of this section.

(ii) 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

significance to a historic property

subject to the finding. If such Indian

tribe or Native Hawaiian organization

disagrees with the finding, it may

within the 30-day review period specify

the reasons for disagreeing with the

finding and request the Council to

review the finding pursuant to

paragraph (c)(3) of this section.

(iii) If the Council on its own

initiative so requests within the 30-day

review period, the agency official shall

submit the finding, along with the

documentation specified in § 800.11(e),

for review pursuant to paragraph (c)(3)

of this section. A Council decision to

make such a request shall be guided by

the criteria in appendix A to this part.

(3) Council review of findings. When

a finding is submitted to the Council

pursuant to paragraph (c)(2) of this

section, the agency official shall include

the documentation specified in

§ 800.11(e). The Council shall review

the finding and notify the agency

official of its determination as to

whether the adverse effect criteria have

been correctly applied within 15 days of

receiving the documented finding from

the agency official. The Council shall

specify the basis for its determination.

The agency official shall proceed in

accordance with the Council’s

determination. If the Council does not

respond within 15 days of receipt of the

finding, the agency official may assume

concurrence with the agency official’s

findings and proceed accordingly.

(d) Results of assessment.

(1) No adverse 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 undertaking in

accordance with the finding 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 official shall

reopen consultation under paragraph (a)

of this section.

(2) Adverse effect. If an adverse effect

is found, the agency official shall

consult further to resolve the adverse

effect pursuant to § 800.6.

§ 800.6 Resolution of adverse effects.

(a) Continue consultation. The agency

official shall consult with the SHPO/

THPO and other consulting parties,

including Indian tribes and Native

Hawaiian organizations, to develop and

evaluate alternatives or modifications to

the undertaking that could avoid,

minimize, or mitigate adverse effects on

historic properties.

(1) Notify the Council and determine

Council participation. The agency

official shall notify the Council of the

adverse 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

Landmark; 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 parties

whether it will participate within 15

days of receipt of notice or other

request. Prior to entering the process,

the Council shall provide written notice

to the agency official and the consulting

parties that its decision to participate

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 participation

Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations 77731

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

accordance with paragraph (b)(1) of this

section.

(2) Involve consulting parties. In

addition to the consulting parties

identified 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 specific role or responsibility

in a memorandum 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

confidentiality provisions of § 800.11(c),

and such other documentation as may

be developed during the consultation to

resolve adverse effects.

(4) Involve the public. The agency

official shall make information available

to the public, including the

documentation specified in § 800.11(e),

subject to the confidentiality provisions

of § 800.11(c). The agency official shall

provide an opportunity for members of

the public to express their views on

resolving adverse effects of the

undertaking. The agency official should

use appropriate mechanisms, taking into

account the magnitude of the

undertaking and the nature of its effects

upon historic properties, the likely

effects on historic properties, and the

relationship 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 notice and

information concerning historic

preservation issues afforded the public

at earlier steps in the section 106

process to determine the appropriate

level of public involvement when

resolving adverse effects so that the

standards of § 800.2(d) are met.

(5) Restrictions on disclosure of

information. 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 information,

the agency official shall comply with

§ 800.11(c) regarding the disclosure of

such 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 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

execute a memorandum of agreement.

The agency official must submit a copy

of the executed memorandum of

agreement, along with the

documentation specified in § 800.11(f),

to the Council prior to approving the

undertaking in order to meet the

requirements of section 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 Council

to join the consultation and provide the

Council with the documentation set

forth in § 800.11(g). If the Council

decides to join the consultation, the

agency official shall proceed in

accordance with paragraph (b)(2) of this

section. If the Council decides not to

join the consultation, the Council will

notify the agency and proceed to

comment in accordance with § 800.7(c).

(2) Resolution with Council

participation. If the Council decides to

participate in the consultation, the

agency official shall consult with the

SHPO/THPO, the Council, and other

consulting parties, including Indian

tribes and Native Hawaiian

organizations under § 800.2(c)(3), to

seek ways to avoid, minimize or

mitigate the adverse effects. If the

agency official, the SHPO/THPO, and

the Council agree on how the adverse

effects will be resolved, they shall

execute a memorandum of agreement.

(c) Memorandum of agreement. A

memorandum of agreement executed

and implemented pursuant to this

section evidences the agency official’s

compliance with section 106 and this

part and shall govern the undertaking

and all of its parts. The agency official

shall ensure that the undertaking is

carried out in accordance with the

memorandum of agreement.

(1) Signatories. The signatories have

sole authority to execute, amend or

terminate the agreement in accordance

with this subpart.

(i) The agency official and the SHPO/

THPO are the signatories to a

memorandum of agreement executed

pursuant to paragraph (b)(1) of this

section.

(ii) The agency official, the SHPO/

THPO, and the Council are the

signatories to a memorandum of

agreement executed pursuant to

paragraph (b)(2) of this section.

(iii) The agency official and the

Council are signatories to a

memorandum of agreement executed

pursuant to § 800.7(a)(2).

(2) Invited signatories.

(i) The agency official may invite

additional parties to be signatories to a

memorandum of agreement. Any such

party that signs the memorandum of

agreement shall have the same rights

with regard to seeking amendment or

termination of the memorandum of

agreement as other signatories.

(ii) The agency official may invite an

Indian tribe or Native Hawaiian

organization that attaches religious and

cultural significance to historic

properties located off tribal lands to be

a signatory to a memorandum of

agreement concerning such properties.

(iii) The agency official should invite

any party that assumes a responsibility

under a memorandum of agreement to

be a signatory.

(iv) The refusal of any party invited to

become a signatory to a memorandum of

agreement pursuant to paragraph (c)(2)

of this section does not invalidate the

memorandum of agreement.

(3) Concurrence by others. The agency

official may invite all consulting parties

to concur in the memorandum of

agreement. The signatories may agree to

invite others to concur. The refusal of

any party invited to concur in the

memorandum of agreement does not

invalidate the memorandum of

agreement.

(4) Reports on implementation. Where

the signatories agree it is appropriate, a

memorandum of agreement shall

include a provision for monitoring and

reporting on its implementation.

(5) Duration. A memorandum of

agreement shall include provisions for

termination and for reconsideration of

terms if the undertaking has not been

implemented within a specified time.

(6) Discoveries. Where the signatories

agree it is appropriate, a memorandum

of agreement shall include provisions to

deal with the subsequent discovery or

identification of additional historic

properties affected by the undertaking.

(7) Amendments. The signatories to a

memorandum of agreement may amend

it. If the Council was not a signatory to

the original agreement and the

signatories execute an amended

agreement, the agency official shall file

it with the Council.

77732 Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations

(8) Termination. If any signatory

determines that the terms of a

memorandum of agreement cannot be or

are not being carried out, the signatories

shall consult to seek amendment of the

agreement. If the agreement is not

amended, any signatory may terminate

it. The agency official shall either

execute a memorandum of agreement

with signatories under paragraph (c)(1)

of this section or request the comments

of the Council under § 800.7(a).

(9) Copies. The agency official shall

provide each consulting party with a

copy of any memorandum of agreement

executed pursuant to this subpart.

§ 800.7 Failure to resolve adverse effects.

(a) Termination of consultation. After

consulting to resolve adverse effects

pursuant to § 800.6(b)(2), the agency

official, the SHPO/THPO, or the Council

may determine that further consultation

will not be productive and terminate

consultation. Any party that terminates

consultation shall notify the other

consulting parties and provide them the

reasons for terminating in writing.

(1) If the agency official terminates

consultation, the head of the agency or

an Assistant Secretary or other officer

with major department-wide or agencywide responsibilities shall request that

the Council comment pursuant to

paragraph (c) of this section and shall

notify all consulting parties of the

request.

(2) If the SHPO terminates

consultation, the agency official and the

Council may execute a memorandum of

agreement without the SHPO’s

involvement.

(3) If a THPO terminates consultation

regarding an undertaking occurring on

or affecting historic properties on its

tribal lands, the Council shall comment

pursuant to paragraph (c) of this section.

(4) If the Council terminates

consultation, the Council shall notify

the agency official, the agency’s Federal

preservation officer and all consulting

parties of the termination and comment

under paragraph (c) of this section. The

Council may consult with the agency’s

Federal preservation officer prior to

terminating consultation to seek to

resolve issues concerning the

undertaking and its effects on historic

properties.

(b) Comments without termination.

The Council may determine that it is

appropriate to provide additional

advisory comments upon an

undertaking for which a memorandum

of agreement will be executed. The

Council shall provide them to the

agency official when it executes the

memorandum of agreement.

(c) Comments by the Council.

(1) Preparation. The Council shall

provide an opportunity for the agency

official, all consulting parties, and the

public to provide their views within the

time frame for developing its comments.

Upon request of the Council, the agency

official shall provide additional existing

information concerning the undertaking

and assist the Council in arranging an

onsite inspection and an opportunity for

public participation.

(2) Timing. The Council shall transmit

its comments within 45 days of receipt

of a request under paragraph (a)(1) or

(a)(3) of this section or § 800.8(c)(3), or

termination by the Council under

§ 800.6(b)(1)(v) or paragraph (a)(4) of

this section, unless otherwise agreed to

by the agency official.

(3) Transmittal. The Council shall

provide its comments to the head of the

agency requesting comment with copies

to the agency official, the agency’s

Federal preservation officer, all

consulting parties, and others as

appropriate.

(4) Response to Council comment.

The head of the agency shall take into

account the Council’s comments in

reaching a final decision on the

undertaking. Section 110(l) of the act

directs that the head of the agency shall

document this decision and may not

delegate his or her responsibilities

pursuant to section 106. Documenting

the agency head’s decision shall

include:

(i) Preparing a summary of the

decision that contains the rationale for

the decision and evidence of

consideration of the Council’s

comments and providing it to the

Council prior to approval of the

undertaking;

(ii) Providing a copy of the summary

to all consulting parties; and

(iii) Notifying the public and making

the record available for public

inspection.

§ 800.8 Coordination With the National

Environmental Policy Act.

(a) General principles.

(1) Early coordination. Federal

agencies are encouraged to coordinate

compliance with section 106 and the

procedures in this part with any steps

taken to meet the requirements of the

National Environmental Policy Act

(NEPA). Agencies should consider their

section 106 responsibilities as early as

possible in the NEPA process, and plan

their public participation, analysis, and

review in such a way that they can meet

the purposes and requirements of both

statutes in a timely and efficient

manner. The determination of whether

an undertaking is a ‘‘major Federal

action significantly affecting the quality

of the human environment,’’ and

therefore requires preparation of an

environmental impact statement (EIS)

under NEPA, should include

consideration of the undertaking’s likely

effects on historic properties. A finding

of adverse effect on a historic property

does not necessarily require an EIS

under NEPA.

(2) Consulting party roles. SHPO/

THPOs, Indian tribes, and Native

Hawaiian organizations, other

consulting parties, and organizations

and individuals who may be concerned

with the possible effects of an agency

action on historic properties should be

prepared to consult with agencies early

in the NEPA process, when the purpose

of and need for the proposed action as

well as the widest possible range of

alternatives are under consideration.

(3) Inclusion of historic preservation

issues. Agency officials should ensure

that preparation of an environmental

assessment (EA) and finding of no

significant impact (FONSI) or an EIS

and record of decision (ROD) includes

appropriate scoping, identification of

historic properties, assessment of effects

upon them, and consultation leading to

resolution of any adverse effects.

(b) Actions categorically excluded

under NEPA. If a project, activity or

program is categorically excluded from

NEPA review under an agency’s NEPA

procedures, the agency official shall

determine if it still qualifies as an

undertaking requiring review under

section 106 pursuant to § 800.3(a). If so,

the agency official shall proceed with

section 106 review in accordance with

the procedures in this subpart.

(c) Use of the NEPA process for

section 106 purposes. An agency official

may use the process and documentation

required for the preparation of an EA/

FONSI or an EIS/ROD to comply with

section 106 in lieu of the procedures set

forth in §§ 800.3 through 800.6 if the

agency official has notified in advance

the SHPO/THPO and the Council that it

intends to do so and the following

standards are met.

(1) Standards for developing

environmental documents to comply

with Section 106. During preparation of

the EA or draft EIS (DEIS) the agency

official shall:

(i) Identify consulting parties either

pursuant to § 800.3(f) or through the

NEPA scoping process with results

consistent with § 800.3(f);

(ii) Identify historic properties and

assess the effects of the undertaking on

such properties in a manner consistent

with the standards and criteria of

§§ 800.4 through 800.5, provided that

the scope and timing of these steps may

be phased to reflect the agency official’s

Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations 77733

consideration of project alternatives in

the NEPA process and the effort is

commensurate with the assessment of

other environmental factors;

(iii) Consult regarding the effects of

the undertaking on historic properties

with the SHPO/THPO, Indian tribes,

and Native Hawaiian organizations that

might attach religious and cultural

significance to affected historic

properties, other consulting parties, and

the Council, where appropriate, during

NEPA scoping, environmental analysis,

and the preparation of NEPA

documents;

(iv) Involve the public in accordance

with the agency’s published NEPA

procedures; and (v) Develop in

consultation with identified consulting

parties alternatives and proposed

measures that might avoid, minimize or

mitigate any adverse effects of the

undertaking on historic properties and

describe them in the EA or DEIS.

(2) Review of environmental

documents.

(i) The agency official shall submit the

EA, DEIS, or EIS to the SHPO/THPO,

Indian tribes, and Native Hawaiian

organizations that might attach religious

and cultural significance to affected

historic properties, and other consulting

parties prior to or when making the

document available for public comment.

If the document being prepared is a

DEIS or EIS, the agency official shall

also submit it to the Council.

(ii) Prior to or within the time allowed

for public comment on the document, a

SHPO/THPO, an Indian tribe or Native

Hawaiian organization, another

consulting party or the Council may

object to the agency official that

preparation of the EA, DEIS, or EIS has

not met the standards set forth in

paragraph (c)(1) of this section or that

the substantive resolution of the effects

on historic properties proposed in an

EA, DEIS, or EIS is inadequate. If the

agency official receives such an

objection, the agency official shall refer

the matter to the Council.

(3) Resolution of objections. Within 30

days of the agency official’s referral of

an objection under paragraph (c)(2)(ii) of

this section, the Council shall notify the

agency official either that it agrees with

the objection, in which case the agency

official shall enter into consultation in

accordance with § 800.6(b)(2) or seek

Council comments in accordance with

§ 800.7(a), or that it disagrees with the

objection, in which case the agency

official shall continue its compliance

with this section. Failure of the Council

to respond within the 30 day period

shall be considered disagreement with

the objection.

(4) Approval of the undertaking. If the

agency official has found, during the

preparation of an EA or EIS that the

effects of an undertaking on historic

properties are adverse, the agency

official shall develop measures in the

EA, DEIS, or EIS to avoid, minimize, or

mitigate such effects in accordance with

paragraph (c)(1)(v) of this section. The

agency official’s responsibilities under

section 106 and the procedures in this

subpart shall then be satisfied when

either:

(i) A binding commitment to such

proposed measures is incorporated in:

(A) The ROD, if such measures were

proposed in a DEIS or EIS; or

(B) An MOA drafted in compliance

with § 800.6(c); or

(ii) The Council has commented

under § 800.7 and received the agency’s

response to such comments.

(5) Modification of the undertaking. If

the undertaking is modified after

approval of the FONSI or the ROD in a

manner that changes the undertaking or

alters its effects on historic properties,

or if the agency official fails to ensure

that the measures to avoid, minimize or

mitigate adverse effects (as specified in

either the FONSI or the ROD, or in the

binding commitment adopted pursuant

to paragraph (c)(4) of this section) are

carried out, the agency official shall

notify the Council and all consulting

parties that supplemental

environmental documents will be

prepared in compliance with NEPA or

that the procedures in §§ 800.3 through

800.6 will be followed as necessary.

§ 800.9 Council review of section 106

compliance.

(a) Assessment of agency official

compliance for individual undertakings.

The Council may provide to the agency

official its advisory opinion regarding

the substance of any finding,

determination or decision or regarding

the adequacy of the agency official’s

compliance with the procedures under

this part. The Council may provide such

advice at any time at the request of any

individual, agency or organization or on

its own initiative. The agency official

shall consider the views of the Council

in reaching a decision on the matter in

question.

(b) Agency foreclosure of the

Council’s opportunity to comment.

Where an agency official has failed to

complete the requirements of section

106 in accordance with the procedures

in this part prior to the approval of an

undertaking, the Council’s opportunity

to comment may be foreclosed. The

Council may review a case to determine

whether a foreclosure has occurred. The

Council shall notify the agency official

and the agency’s Federal preservation

officer and allow 30 days for the agency

official to provide information as to

whether foreclosure has occurred. If the

Council determines foreclosure has

occurred, the Council shall transmit the

determination to the agency official and

the head of the agency. The Council

shall also make the determination

available to the public and any parties

known to be interested in the

undertaking and its effects upon historic

properties.

(c) Intentional adverse effects by

applicants.

(1) Agency responsibility. Section

110(k) of the act prohibits a Federal

agency from granting a loan, loan

guarantee, permit, license or other

assistance to an applicant who, with

intent to avoid the requirements of

section 106, has intentionally

significantly adversely affected a

historic property to which the grant

would relate, or having legal power to

prevent it, has allowed such significant

adverse effect to occur, unless the

agency, after consultation with the

Council, determines that circumstances

justify granting such assistance despite

the adverse effect created or permitted

by the applicant. Guidance issued by

the Secretary pursuant to section 110 of

the act governs its implementation.

(2) Consultation with the Council.

When an agency official determines,

based on the actions of an applicant,

that section 110(k) is applicable and that

circumstances may justify granting the

assistance, the agency official shall

notify the Council and provide

documentation specifying the

circumstances under which the adverse

effects to the historic property occurred

and the degree of damage to the

integrity of the property. This

documentation shall include any views

obtained from the applicant, SHPO/

THPO, an Indian tribe if the undertaking

occurs on or affects historic properties

on tribal lands, and other parties known

to be interested in the undertaking.

(i) Within thirty days of receiving the

agency official’s notification, unless

otherwise agreed to by the agency

official, the Council shall provide the

agency official with its opinion as to

whether circumstances justify granting

assistance to the applicant and any

possible mitigation of the adverse

effects.

(ii) The agency official shall consider

the Council’s opinion in making a

decision on whether to grant assistance

to the applicant, and shall notify the

Council, the SHPO/THPO, and other

parties known to be interested in the

undertaking prior to granting the

assistance.

77734 Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations

(3) Compliance with Section 106. If an

agency official, after consulting with the

Council, determines to grant the

assistance, the agency official shall

comply with §§ 800.3 through 800.6 to

take into account the effects of the

undertaking on any historic properties.

(d) Evaluation of Section 106

operations. The Council may evaluate

the operation of the section 106 process

by periodic reviews of how participants

have fulfilled their legal responsibilities

and how effectively the outcomes

reached advance the purposes of the act.

(1) Information from participants.

Section 203 of the act authorizes the

Council to obtain information from

Federal agencies necessary to conduct

evaluation of the section 106 process.

The agency official shall make

documentation of agency policies,

operating procedures and actions taken

to comply with section 106 available to

the Council upon request. The Council

may request available information and

documentation from other participants

in the section 106 process.

(2) Improving the operation of section

106. Based upon any evaluation of the

section 106 process, the Council may

make recommendations to participants,

the heads of Federal agencies, and the

Secretary of actions to improve the

efficiency and effectiveness of the

process. Where the Council determines

that an agency official or a SHPO/THPO

has failed to properly carry out the

responsibilities assigned under the

process in this part, the Council may

participate in individual case reviews

conducted under such process in

addition to the SHPO/THPO for such

period that it determines is necessary to

improve performance or correct

deficiencies. If the Council finds a

pattern of failure by a Federal agency in

carrying out its responsibilities under

section 106, the Council may review the

policies and programs of the agency

related to historic preservation pursuant

to section 202(a)(6) of the act and

recommend methods to improve the

effectiveness, coordination, and

consistency of those policies and

programs with section 106.

§ 800.10 Special requirements for

protecting National Historic Landmarks.

(a) Statutory requirement. Section

110(f) of the act requires that the agency

official, to the maximum extent

possible, undertake such planning and

actions as may be necessary to minimize

harm to any National Historic Landmark

that may be directly and adversely

affected by an undertaking. When

commenting on such undertakings, the

Council shall use the process set forth

in §§ 800.6 through 800.7 and give

special consideration to protecting

National Historic Landmarks as

specified in this section.

(b) Resolution of adverse effects. The

agency official shall request the Council

to participate in any consultation to

resolve adverse effects on National

Historic Landmarks conducted under

§ 800.6.

(c) Involvement of the Secretary. The

agency official shall notify the Secretary

of any consultation involving a National

Historic Landmark and invite the

Secretary to participate in the

consultation where there may be an

adverse effect. The Council may request

a report from the Secretary under

section 213 of the act to assist in the

consultation.

(d) Report of outcome. When the

Council participates in consultation

under this section, it shall report the

outcome of the section 106 process,

providing its written comments or any

memoranda of agreement to which it is

a signatory, to the Secretary and the

head of the agency responsible for the

undertaking.

§ 800.11 Documentation standards.

(a) Adequacy of documentation. The

agency official shall ensure that a

determination, finding, or agreement

under the procedures in this subpart is

supported by sufficient documentation

to enable any reviewing parties to

understand its basis. The agency official

shall provide such documentation to the

extent permitted by law and within

available funds. When an agency official

is conducting phased identification or

evaluation under this subpart, the

documentation standards regarding

description of historic properties may be

applied flexibly. If the Council, or the

SHPO/THPO when the Council is not

involved, determines the applicable

documentation standards are not met,

the Council or the SHPO/THPO, as

appropriate, shall notify the agency

official and specify the information

needed to meet the standard. At the

request of the agency official or any of

the consulting parties, the Council shall

review any disputes over whether

documentation standards are met and

provide its views to the agency official

and the consulting parties.

(b) Format. The agency official may

use documentation prepared to comply

with other laws to fulfill the

requirements of the procedures in this

subpart, if that documentation meets the

standards of this section.

(c) Confidentiality.

(1) Authority to withhold information.

Section 304 of the act provides that the

head of a Federal agency or other public

official receiving grant assistance

pursuant to the act, after consultation

with the Secretary, shall withhold from

public disclosure information about the

location, character, or ownership of a

historic property when disclosure may

cause a significant invasion of privacy;

risk harm to the historic property; or

impede the use of a traditional religious

site by practitioners. When the head of

a Federal agency or other public official

has determined that information should

be withheld from the public pursuant to

these criteria, the Secretary, in

consultation with such Federal agency

head or official, shall determine who

may have access to the information for

the purposes of carrying out the act.

(2) Consultation with the Council.

When the information in question has

been developed in the course of an

agency’s compliance with this part, the

Secretary shall consult with the Council

in reaching determinations on the

withholding and release of information.

The Federal agency shall provide the

Council with available information,

including views of the SHPO/THPO,

Indian tribes and Native Hawaiian

organizations, related to the

confidentiality concern. The Council

shall advise the Secretary and the

Federal agency within 30 days of receipt

of adequate documentation.

(3) Other authorities affecting

confidentiality. Other Federal laws and

program requirements may limit public

access to information concerning an

undertaking and its effects on historic

properties. Where applicable, those

authorities shall govern public access to

information developed in the section

106 process and may authorize the

agency official to protect the privacy of

non-governmental applicants.

(d) Finding of no historic properties

affected. Documentation shall include:

(1) A description of the undertaking,

specifying the Federal involvement, and

its area of potential effects, including

photographs, maps, drawings, as

necessary;

(2) A description of the steps taken to

identify historic properties, including,

as appropriate, efforts to seek

information pursuant to § 800.4(b); and

(3) The basis for determining that no

historic properties are present or

affected.

(e) Finding of no adverse effect or

adverse effect. Documentation shall

include:

(1) A description of the undertaking,

specifying the Federal involvement, and

its area of potential effects, including

photographs, maps, and drawings, as

necessary;

(2) A description of the steps taken to

identify historic properties;

Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations 77735

(3) A description of the affected

historic properties, including

information on the characteristics that

qualify them for the National Register;

(4) A description of the undertaking’s

effects on historic properties;

(5) An explanation of why the criteria

of adverse effect were found applicable

or inapplicable, including any

conditions or future actions to avoid,

minimize or mitigate adverse effects;

and

(6) Copies or summaries of any views

provided by consulting parties and the

public.

(f) Memorandum of agreement. When

a memorandum of agreement is filed

with the Council, the documentation

shall include, any substantive revisions

or additions to the documentation

provided the Council pursuant to

§ 800.6(a)(1), an evaluation of any

measures considered to avoid or

minimize the undertaking’s adverse

effects and a summary of the views of

consulting parties and the public.

(g) Requests for comment without a

memorandum of agreement.

Documentation shall include:

(1) A description and evaluation of

any alternatives or mitigation measures

that the agency official proposes to

resolve the undertaking’s adverse

effects;

(2) A description of any reasonable

alternatives or mitigation measures that

were considered but not chosen, and the

reasons for their rejection;

(3) Copies or summaries of any views

submitted to the agency official

concerning the adverse effects of the

undertaking on historic properties and

alternatives to reduce or avoid those

effects; and

(4) Any substantive revisions or

additions to the documentation

provided the Council pursuant to

§ 800.6(a)(1).

§ 800.12 Emergency situations.

(a) Agency procedures. The agency

official, in consultation with the

appropriate SHPOs/THPOs, affected

Indian tribes and Native Hawaiian

organizations, and the Council, is

encouraged to develop procedures for

taking historic properties into account

during operations which respond to a

disaster or emergency declared by the

President, a tribal government, or the

Governor of a State or which respond to

other immediate threats to life or

property. If approved by the Council,

the procedures shall govern the agency’s

historic preservation responsibilities

during any disaster or emergency in lieu

of §§ 800.3 through 800.6.

(b) Alternatives to agency procedures.

In the event an agency official proposes

an emergency undertaking as an

essential and immediate response to a

disaster or emergency declared by the

President, a tribal government, or the

Governor of a State or another

immediate threat to life or property, and

the agency has not developed

procedures pursuant to paragraph (a) of

this section, the agency official may

comply with section 106 by:

(1) Following a programmatic

agreement developed pursuant to

§ 800.14(b) that contains specific

provisions for dealing with historic

properties in emergency situations; or

(2) Notifying the Council, the

appropriate SHPO/THPO and any

Indian tribe or Native Hawaiian

organization that may attach religious

and cultural significance to historic

properties likely to be affected prior to

the undertaking and affording them an

opportunity to comment within seven

days of notification. If the agency

official determines that circumstances

do not permit seven days for comment,

the agency official shall notify the

Council, the SHPO/THPO and the

Indian tribe or Native Hawaiian

organization and invite any comments

within the time available.

(c) Local governments responsible for

section 106 compliance. When a local

government official serves as the agency

official for section 106 compliance,

paragraphs (a) and (b) of this section

also apply to an imminent threat to

public health or safety as a result of a

natural disaster or emergency declared

by a local government’s chief executive

officer or legislative body, provided that

if the Council or SHPO/THPO objects to

the proposed action within seven days,

the agency official shall comply with

§§ 800.3 through 800.6.

(d) Applicability. This section applies

only to undertakings that will be

implemented within 30 days after the

disaster or emergency has been formally

declared by the appropriate authority.

An agency may request an extension of

the period of applicability from the

Council prior to the expiration of the 30

days. Immediate rescue and salvage

operations conducted to preserve life or

property are exempt from the provisions

of section 106 and this part.

§ 800.13 Post-review discoveries.

(a) Planning for subsequent

discoveries. 

(1) Using a programmatic agreement.

An agency official may develop a

programmatic agreement pursuant to

§ 800.14(b) to govern the actions to be

taken when historic properties are

discovered during the implementation

of an undertaking.

(2) Using agreement documents.

When the agency official’s identification

efforts in accordance with § 800.4

indicate that historic properties are

likely to be discovered during

implementation of an undertaking and

no programmatic agreement has been

developed pursuant to paragraph (a)(1)

of this section, the agency official shall

include in any finding of no adverse

effect or memorandum of agreement a

process to resolve any adverse effects

upon such properties. Actions in

conformance with the process satisfy

the agency official’s responsibilities

under section 106 and this part.

(b) Discoveries without prior

planning. If historic properties are

discovered or unanticipated effects on

historic properties found after the

agency official has completed the

section 106 process without establishing

a process under paragraph (a) of this

section, the agency official shall make

reasonable efforts to avoid, minimize or

mitigate adverse effects to such

properties and:

(1) If the agency official has not

approved the undertaking or if

construction on an approved

undertaking has not commenced,

consult to resolve adverse effects

pursuant to § 800.6; or

(2) If the agency official, the SHPO/

THPO and any Indian tribe or Native

Hawaiian organization that might attach

religious and cultural significance to the

affected property agree that such

property is of value solely for its

scientific, prehistoric, historic or

archeological data, the agency official

may comply with the Archeological and

Historic Preservation Act instead of the

procedures in this part and provide the

Council, the SHPO/THPO, and the

Indian tribe or Native Hawaiian

organization with a report on the actions

within a reasonable time after they are

completed; or

(3) If the agency official has approved

the undertaking and construction has

commenced, determine actions that the

agency official can take to resolve

adverse effects, and notify the SHPO/

THPO, any Indian tribe or Native

Hawaiian organization that might attach

religious and cultural significance to the

affected property, and the Council

within 48 hours of the discovery. The

notification shall describe the agency

official’s assessment of National Register

eligibility of the property and proposed

actions to resolve the adverse effects.

The SHPO/THPO, the Indian tribe or

Native Hawaiian organization and the

Council shall respond within 48 hours

of the notification. The agency official

shall take into account their

recommendations regarding National

77736 Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations

Register eligibility and proposed

actions, and then carry out appropriate

actions. The agency official shall

provide the SHPO/THPO, the Indian

tribe or Native Hawaiian organization

and the Council a report of the actions

when they are completed.

(c) Eligibility of properties. The

agency official, in consultation with the

SHPO/THPO, may assume a newlydiscovered property to be eligible for the

National Register for purposes of section

106. The agency official shall specify

the National Register criteria used to

assume the property’s eligibility so that

information can be used in the

resolution of adverse effects.

(d) Discoveries on tribal lands. If

historic properties are discovered on

tribal lands, or there are unanticipated

effects on historic properties found on

tribal lands, after the agency official has

completed the section 106 process

without establishing a process under

paragraph (a) of this section and

construction has commenced, the

agency official shall comply with

applicable tribal regulations and

procedures and obtain the concurrence

of the Indian tribe on the proposed

action.

Subpart C—Program Alternatives

§ 800.14 Federal agency program

alternatives.

(a) Alternate procedures. An agency

official may develop procedures to

implement section 106 and substitute

them for all or part of subpart B of this

part if they are consistent with the

Council’s regulations pursuant to

section 110(a)(2)(E) of the act.

(1) Development of procedures. The

agency official shall consult with the

Council, the National Conference of

State Historic Preservation Officers, or

individual SHPO/THPOs, as

appropriate, and Indian tribes and

Native Hawaiian organizations, as

specified in paragraph (f) of this section,

in the development of alternate

procedures, publish notice of the

availability of proposed alternate

procedures in the Federal Register and

take other appropriate steps to seek

public input during the development of

alternate procedures.

(2) Council review. The agency official

shall submit the proposed alternate

procedures to the Council for a 60-day

review period. If the Council finds the

procedures to be consistent with this

part, it shall notify the agency official

and the agency official may adopt them

as final alternate procedures.

(3) Notice. The agency official shall

notify the parties with which it has

consulted and publish notice of final

alternate procedures in the Federal

Register.

(4) Legal effect. Alternate procedures

adopted pursuant to this subpart

substitute for the Council’s regulations

for the purposes of the agency’s

compliance with section 106, except

that where an Indian tribe has entered

into an agreement with the Council to

substitute tribal historic preservation

regulations for the Council’s regulations

under section 101(d)(5) of the act, the

agency shall follow those regulations in

lieu of the agency’s procedures

regarding undertakings on tribal lands.

Prior to the Council entering into such

agreements, the Council will provide

Federal agencies notice and opportunity

to comment on the proposed substitute

tribal regulations.

(b) Programmatic agreements. The

Council and the agency official may

negotiate a programmatic agreement to

govern the implementation of a

particular program or the resolution of

adverse effects from certain complex

project situations or multiple

undertakings.

(1) Use of programmatic agreements.

A programmatic agreement may be

used:

(i) When effects on historic properties

are similar and repetitive or are multiState or regional in scope;

(ii) When effects on historic

properties cannot be fully determined

prior to approval of an undertaking;

(iii) When nonfederal parties are

delegated major decisionmaking

responsibilities;

(iv) Where routine management

activities are undertaken at Federal

installations, facilities, or other landmanagement units; or

(v) Where other circumstances

warrant a departure from the normal

section 106 process.

(2) Developing programmatic

agreements for agency programs.

(i) The consultation shall involve, as

appropriate, SHPO/THPOs, the National

Conference of State Historic

Preservation Officers (NCSHPO), Indian

tribes and Native Hawaiian

organizations, other Federal agencies,

and members of the public. If the

programmatic agreement has the

potential to affect historic properties on

tribal lands or historic properties of

religious and cultural significance to an

Indian tribe or Native Hawaiian

organization, the agency official shall

also follow paragraph (f) of this section.

(ii) Public participation. The agency

official shall arrange for public

participation appropriate to the subject

matter and the scope of the program and

in accordance with subpart A of this

part. The agency official shall consider

the nature of the program and its likely

effects on historic properties and take

steps to involve the individuals,

organizations and entities likely to be

interested.

(iii) Effect. The programmatic

agreement shall take effect when

executed by the Council, the agency

official and the appropriate SHPOs/

THPOs when the programmatic

agreement concerns a specific region or

the president of NCSHPO when

NCSHPO has participated in the

consultation. A programmatic

agreement shall take effect on tribal

lands only when the THPO, Indian

tribe, or a designated representative of

the tribe is a signatory to the agreement.

Compliance with the procedures

established by an approved

programmatic agreement satisfies the

agency’s section 106 responsibilities for

all individual undertakings of the

program covered by the agreement until

it expires or is terminated by the agency,

the president of NCSHPO when a

signatory, or the Council. Termination

by an individual SHPO/THPO shall

only terminate the application of a

regional programmatic agreement

within the jurisdiction of the SHPO/

THPO. If a THPO assumes the

responsibilities of a SHPO pursuant to

section 101(d)(2) of the act and the

SHPO is signatory to programmatic

agreement, the THPO assumes the role

of a signatory, including the right to

terminate a regional programmatic

agreement on lands under the

jurisdiction of the tribe.

(iv) Notice. The agency official shall

notify the parties with which it has

consulted that a programmatic

agreement has been executed under

paragraph (b) of this section, provide

appropriate public notice before it takes

effect, and make any internal agency

procedures implementing the agreement

readily available to the Council, SHPO/

THPOs, and the public.

(v) If the Council determines that the

terms of a programmatic agreement are

not being carried out, or if such an

agreement is terminated, the agency

official shall comply with subpart B of

this part with regard to individual

undertakings of the program covered by

the agreement.

(3) Developing programmatic

agreements for complex or multiple

undertakings. Consultation to develop a

programmatic agreement for dealing

with the potential adverse effects of

complex projects or multiple

undertakings shall follow § 800.6. If

consultation pertains to an activity

involving multiple undertakings and the

parties fail to reach agreement, then the

agency official shall comply with the

Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations 77737

provisions of subpart B of this part for

each individual undertaking.

(4) Prototype programmatic

agreements. The Council may designate

an agreement document as a prototype

programmatic agreement that may be

used for the same type of program or

undertaking in more than one case or

area. When an agency official uses such

a prototype programmatic agreement,

the agency official may develop and

execute the agreement with the

appropriate SHPO/THPO and the

agreement shall become final without

need for Council participation in

consultation or Council signature.

(c) Exempted categories.

(1) Criteria for establishing. An agency

official may propose a program or

category of agency undertakings that

may be exempted from review under the

provisions of subpart B of this part, if

the program or category meets the

following criteria:

(i) The actions within the program or

category would otherwise qualify as

‘‘undertakings’’ as defined in § 800.16;

(ii) The potential effects of the

undertakings within the program or

category upon historic properties are

foreseeable and likely to be minimal or

not adverse; and

(iii) Exemption of the program or

category is consistent with the purposes

of the act.

(2) Public participation. The agency

official shall arrange for public

participation appropriate to the subject

matter and the scope of the exemption

and in accordance with the standards in

subpart A of this part. The agency

official shall consider the nature of the

exemption and its likely effects on

historic properties and take steps to

involve individuals, organizations and

entities likely to be interested.

(3) Consultation with SHPOs/THPOs.

The agency official shall notify and

consider the views of the SHPOs/THPOs

on the exemption.

(4) Consultation with Indian tribes

and Native Hawaiian organizations. If

the exempted program or category of

undertakings has the potential to affect

historic properties on tribal lands or

historic properties of religious and

cultural significance to an Indian tribe

or Native Hawaiian organization, the

Council shall follow the requirements

for the agency official set forth in

paragraph (f) of this section.

(5) Council review of proposed

exemptions. The Council shall review a

request for an exemption that is

supported by documentation describing

the program or category for which the

exemption is sought, demonstrating that

the criteria of paragraph (c)(1) of this

section have been met, describing the

methods used to seek the views of the

public, and summarizing any views

submitted by the SHPO/THPOs, the

public, and any others consulted.

Unless it requests further information,

the Council shall approve or reject the

proposed exemption within 30 days of

receipt, and thereafter notify the agency

official and SHPO/THPOs of the

decision. The decision shall be based on

the consistency of the exemption with

the purposes of the act, taking into

consideration the magnitude of the

exempted undertaking or program and

the likelihood of impairment of historic

properties in accordance with section

214 of the act.

(6) Legal consequences. Any

undertaking that falls within an

approved exempted program or category

shall require no further review pursuant

to subpart B of this part, unless the

agency official or the Council

determines that there are circumstances

under which the normally excluded

undertaking should be reviewed under

subpart B of this part.

(7) Termination. The Council may

terminate an exemption at the request of

the agency official or when the Council

determines that the exemption no longer

meets the criteria of paragraph (c)(1) of

this section. The Council shall notify

the agency official 30 days before

termination becomes effective.

(8) Notice. The agency official shall

publish notice of any approved

exemption in the Federal Register.

(d) Standard treatments.

(1) Establishment. The Council, on its

own initiative or at the request of

another party, may establish standard

methods for the treatment of a category

of historic properties, a category of

undertakings, or a category of effects on

historic properties to assist Federal

agencies in satisfying the requirements

of subpart B of this part. The Council

shall publish notice of standard

treatments in the Federal Register.

(2) Public participation. The Council

shall arrange for public participation

appropriate to the subject matter and the

scope of the standard treatment and

consistent with subpart A of this part.

The Council shall consider the nature of

the standard treatment and its likely

effects on historic properties and the

individuals, organizations and entities

likely to be interested. Where an agency

official has proposed a standard

treatment, the Council may request the

agency official to arrange for public

involvement.

(3) Consultation with SHPOs/THPOs.

The Council shall notify and consider

the views of SHPOs/THPOs on the

proposed standard treatment.

(4) Consultation with Indian tribes

and Native Hawaiian organizations. If

the proposed standard treatment has the

potential to affect historic properties on

tribal lands or historic properties of

religious and cultural significance to an

Indian tribe or Native Hawaiian

organization, the Council shall follow

the requirements for the agency official

set forth in paragraph (f) of this section.

(5) Termination. The Council may

terminate a standard treatment by

publication of a notice in the Federal

Register 30 days before the termination

takes effect.

(e) Program comments. An agency

official may request the Council to

comment on a category of undertakings

in lieu of conducting individual reviews

under §§ 800.4 through 800.6. The

Council may provide program

comments at its own initiative.

(1) Agency request. The agency

official shall identify the category of

undertakings, specify the likely effects

on historic properties, specify the steps

the agency official will take to ensure

that the effects are taken into account,

identify the time period for which the

comment is requested and summarize

any views submitted by the public.

(2) Public participation. The agency

official shall arrange for public

participation appropriate to the subject

matter and the scope of the category and

in accordance with the standards in

subpart A of this part. The agency

official shall consider the nature of the

undertakings and their likely effects on

historic properties and the individuals,

organizations and entities likely to be

interested.

(3) Consultation with SHPOs/THPOs.

The Council shall notify and consider

the views of SHPOs/THPOs on the

proposed program comment.

(4) Consultation with Indian tribes

and Native Hawaiian organizations. If

the program comment has the potential

to affect historic properties on tribal

lands or historic properties of religious

and cultural significance to an Indian

tribe or Native Hawaiian organization,

the Council shall follow the

requirements for the agency official set

forth in paragraph (f) of this section.

(5) Council action. Unless the Council

requests additional documentation,

notifies the agency official that it will

decline to comment, or obtains the

consent of the agency official to extend

the period for providing comment, the

Council shall comment to the agency

official within 45 days of the request.

(i) If the Council comments, the

agency official shall take into account

the comments of the Council in carrying

out the undertakings within the category

and publish notice in the Federal

77738 Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations

Register of the Council’s comments and

steps the agency will take to ensure that

effects to historic properties are taken

into account.

(ii) If the Council declines to

comment, the agency official shall

continue to comply with the

requirements of §§ 800.3 through 800.6

for the individual undertakings.

(6) Withdrawal of comment. If the

Council determines that the

consideration of historic properties is

not being carried out in a manner

consistent with the program comment,

the Council may withdraw the comment

and the agency official shall comply

with the requirements of §§ 800.3

through 800.6 for the individual

undertakings.

(f) Consultation with Indian tribes and

Native Hawaiian organizations when

developing program alternatives.

Whenever an agency official proposes a

program alternative pursuant to

paragraphs (a) through (e) of this

section, the agency official shall ensure

that development of the program

alternative includes appropriate

government-to-government consultation

with affected Indian tribes and

consultation with affected Native

Hawaiian organizations.

(1) Identifying affected Indian tribes

and Native Hawaiian organizations. If

any undertaking covered by a proposed

program alternative has the potential to

affect historic properties on tribal lands,

the agency official shall identify and

consult with the Indian tribes having

jurisdiction over such lands. If a

proposed program alternative has the

potential to affect historic properties of

religious and cultural significance to an

Indian tribe or a Native Hawaiian

organization which are located off tribal

lands, the agency official shall identify

those Indian tribes and Native Hawaiian

organizations that might attach religious

and cultural significance to such

properties and consult with them. When

a proposed program alternative has

nationwide applicability, the agency

official shall identify an appropriate

government to government consultation

with Indian tribes and consult with

Native Hawaiian organizations in

accordance with existing Executive

orders, Presidential memoranda, and

applicable provisions of law.

(2) Results of consultation. The

agency official shall provide summaries

of the views, along with copies of any

written comments, provided by affected

Indian tribes and Native Hawaiian

organizations to the Council as part of

the documentation for the proposed

program alternative. The agency official

and the Council shall take those views

into account in reaching a final decision

on the proposed program alternative.

§ 800.15 Tribal, State, and local program

alternatives. [Reserved]

§ 800.16 Definitions.

(a) Act means the National Historic

Preservation Act of 1966, as amended,

16 U.S.C. 470–470w-6.

(b) Agency means agency as defined

in 5 U.S.C. 551.

(c) Approval of the expenditure of

funds means any final agency decision

authorizing or permitting the

expenditure of Federal funds or

financial assistance on an undertaking,

including any agency decision that may

be subject to an administrative appeal.

(d) Area of potential effects means the

geographic area or areas within which

an undertaking may directly or

indirectly cause alterations in the

character or use of historic properties, if

any such properties exist. The area of

potential effects is influenced by the

scale and nature of an undertaking and

may be different for different kinds of

effects caused by the undertaking.

(e) Comment means the findings and

recommendations of the Council

formally provided in writing to the head

of a Federal agency under section 106.

(f) Consultation means the process of

seeking, discussing, and considering the

views of other participants, and, where

feasible, seeking agreement with them

regarding matters arising in the section

106 process. The Secretary’s ‘‘Standards

and Guidelines for Federal Agency

Preservation Programs pursuant to the

National Historic Preservation Act’’

provide further guidance on

consultation.

(g) Council means the Advisory

Council on Historic Preservation or a

Council member or employee

designated to act for the Council.

(h) Day or days means calendar days.

(i) Effect means alteration to the

characteristics of a historic property

qualifying it for inclusion in or

eligibility for the National Register.

(j) Foreclosure means an action taken

by an agency official that effectively

precludes the Council from providing

comments which the agency official can

meaningfully consider prior to the

approval of the undertaking.

(k) Head of the agency means the

chief official of the Federal agency

responsible for all aspects of the

agency’s actions. If a State, local, or

tribal government has assumed or has

been delegated responsibility for section

106 compliance, the head of that unit of

government shall be considered the

head of the agency.

(l)(1) Historic property means any

prehistoric or historic district, site,

building, structure, or object included

in, or eligible for inclusion in, the

National Register of Historic Places

maintained by the Secretary of the

Interior. This term includes artifacts,

records, and remains that are related to

and located within such properties. The

term includes properties of traditional

religious and cultural importance to an

Indian tribe or Native Hawaiian

organization and that meet the National

Register criteria.

(2) The term eligible for inclusion in

the National Register includes both

properties formally determined as such

in accordance with regulations of the

Secretary of the Interior and all other

properties that meet the National

Register criteria.

(m) Indian tribe means an Indian

tribe, band, nation, or other organized

group or community, including a native

village, regional corporation, or village

corporation, as those terms are defined

in section 3 of the Alaska Native Claims

Settlement Act (43 U.S.C. 1602), which

is recognized as eligible for the special

programs and services provided by the

United States to Indians because of their

status as Indians.

(n) Local government means a city,

county, parish, township, municipality,

borough, or other general purpose

political subdivision of a State.

(o) Memorandum of agreement means

the document that records the terms and

conditions agreed upon to resolve the

adverse effects of an undertaking upon

historic properties.

(p) National Historic Landmark

means a historic property that the

Secretary of the Interior has designated

a National Historic Landmark.

(q) National Register means the

National Register of Historic Places

maintained by the Secretary of the

Interior.

(r) National Register criteria means

the criteria established by the Secretary

of the Interior for use in evaluating the

eligibility of properties for the National

Register (36 CFR part 60).

(s)(1) Native Hawaiian organization

means any organization which serves

and represents the interests of Native

Hawaiians; has as a primary and stated

purpose the provision of services to

Native Hawaiians; and has

demonstrated expertise in aspects of

historic preservation that are significant

to Native Hawaiians.

(2) Native Hawaiian means any

individual who is a descendant of the

aboriginal people who, prior to 1778,

occupied and exercised sovereignty in

the area that now constitutes the State

of Hawaii.

(t) Programmatic agreement means a

document that records the terms and

Federal Register / Vol. 65, No. 239 / Tuesday, December 12, 2000 / Rules and Regulations 77739

conditions agreed upon to resolve the

potential adverse effects of a Federal

agency program, complex undertaking

or other situations in accordance with

§ 800.14(b).

(u) Secretary means the Secretary of

the Interior acting through the Director

of the National Park Service except

where otherwise specified.

(v) State Historic Preservation Officer

(SHPO) means the official appointed or

designated pursuant to section 101(b)(1)

of the act to administer the State historic

preservation program or a representative

designated to act for the State historic

preservation officer.

(w) Tribal Historic Preservation

Officer (THPO) means the tribal official

appointed by the tribe’s chief governing

authority or designated by a tribal

ordinance or preservation program who

has assumed the responsibilities of the

SHPO for purposes of section 106

compliance on tribal lands in

accordance with section 101(d)(2) of the

act.

(x) Tribal lands means all lands

within the exterior boundaries of any

Indian reservation and all dependent

Indian communities.

(y) Undertaking means a project,

activity, or program funded in whole or

in part under the direct or indirect

jurisdiction of a Federal agency,

including those carried out by or on

behalf of a Federal agency; those carried

out with Federal financial assistance;

those requiring a Federal permit, license

or approval; and those subject to State

or local regulation administered

pursuant to a delegation or approval by

a Federal agency.

Appendix A to Part 800—Criteria for

Council Involvement in Reviewing

Individual section 106 Cases

(a) Introduction. This appendix sets forth

the criteria that will be used by the Council

to determine whether to enter an individual

section 106 review that it normally would

not be involved in.

(b) General policy. The Council may

choose to exercise its authorities under the

section 106 regulations to participate in an

individual project pursuant to the following

criteria. However, the Council will not

always elect to participate even though one

or more of the criteria may be met.

(c) Specific criteria. The Council is likely

to enter the section 106 process at the steps

specified in the regulations in this part when

an undertaking:

(1) Has substantial impacts on important

historic properties. This may include adverse

effects on properties that possess a national

level of significance or on properties that are

of unusual or noteworthy importance or are

a rare property type; or adverse effects to

large numbers of historic properties, such as

impacts to multiple properties within a

historic district.

(2) Presents important questions of policy

or interpretation. This may include questions

about how the Council’s regulations are being

applied or interpreted, including possible

foreclosure or anticipatory demolition

situations; situations where the outcome will

set a precedent affecting Council policies or

program goals; or the development of

programmatic agreements that alter the way

the section 106 process is applied to a group

or type of undertakings.

(3) Has the potential for presenting

procedural problems. This may include cases

with substantial public controversy that is

related to historic preservation issues; with

disputes among or about consulting parties

which the Council’s involvement could help

resolve; that are involved or likely to be

involved in litigation on the basis of section

106; or carried out by a Federal agency, in

a State or locality, or on tribal lands where

the Council has previously identified

problems with section 106 compliance

pursuant to § 800.9(d)(2).

(4) Presents issues of concern to Indian

tribes or Native Hawaiian organizations. This

may include cases where there have been

concerns raised about the identification of,

evaluation of or assessment of effects on

historic properties to which an Indian tribe

or Native Hawaiian organization attaches

religious and cultural significance; where an

Indian tribe or Native Hawaiian organization

has requested Council involvement to assist

in the resolution of adverse effects; or where

there are questions relating to policy,

interpretation or precedent under section 106

or its relation to other authorities, such as the

Native American Graves Protection and

Repatriation Act.

Dated: December 4th, 2000.

John M. Fowler,

Executive Director.

[FR Doc. 00–31253 Filed 12–11–00; 8:45 am]

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