Message #378:
From: AzTeC SW Archaeology SIG
To:   "'Matthias Giessler'" 
Subject: Sec. 110 Guidelines Part 1
Date: Wed, 20 Nov 96 14:43:00 MST
Encoding: 448 TEXT


From: Anne Vawser



NEPA studies usually involve multiple alternatives, which are the
choices that the agency has in making its decision on how to
proceed.  A greater number of alternatives usually mean that
there are more opportunities to avoid serious conflicts for any
given resource.  Ideally, the agency weighs all the alternatives,
taking into consideration all the resources and the public's
concerns.  Soliciting public input regarding the alternatives is
an integral part of the NEPA process.  To contribute to the
selection of the preferred alternative, or the direction in which
the agency will take, historic preservation staffs need only
document why one alternative is better than another alternative
from the perspective of historic properties.  In these cases,
identification need not translate into a 100 percent inventory
and impact assessment of all the historic properties.  Predictive
modeling or sample inventory is often useful in these
circumstances.  Note also that the best alternative for one kind
of historic property may not be the best for another kind of
historic property. 


Planning for most large-scale projects begins before the NEPA
process.  The initial planning studies define the scope and
parameters of the project and identify the alternatives. 

Identifying acceptible alternatives involves indentifying
unacceptible alternatives.  Federal agencies should incorporate,
to the extent practical, consideration of historic properties
into this level of decision making.  For example, an agency may
find it best to define alternatives that in every case avoid
damaging a well-known, public National Historic Landmark.



Planning also occurs outside the context of complying with
environmental and historic preservation laws.  To the extent
practical, the federal agency should take into consideration the
goals of the NHPA. 


In accordance with Section 402 (which is part of an addendum to
the National Historic Preservation Act, but not part of the act),
prior to approving a federal undertaking outside the United
States that may directly and adversely affect a property on the
World Heritage List or on the applicable country's equivalent of
the National Register of Historic Places, the head of the federal
agency having direct or indirect jurisdiction over the
undertaking shall take into account the effect of the undertaking
on the property with the intent of avoiding or mitigating adverse
effects.   


 

STANDARD 6:The agency consults with appropriate government
agencies (local, state, and federal), Indian tribes, Native
Hawaiian organizations and the private sector regarding its
preservation activities. (110.a.2.D)

"Consultation" is the process of seeking and considering the
views of others.  It means to confer and discuss, not simply
inform, although the actual consultation requirements and
procedures will vary among agencies depending on their missions
and programs.  The federal agency does not have to accept or act
upon the input that it receives through consultation. 

Nevertheless, the agency is obligated to consider that input when
it is relevant to the issue(s) under study or consideration. 


 Section 110 of the National Historic Preservation Act
(NHPA)directs federal agencies to consult others regarding its
preservation activities (110.a.2.D) and regarding the way in
which it will identify and evaluate historic properties and
consider adverse effects upon them within the context of Section
106 compliance (110.a.2.E.ii).  In this later context, a
desirable outcome of consultation is the development and
implementation of agreements.  Consultation associated with
Section 106 compliance is discussed under Standard 7.  


Federal agencies consult to (1) gain information and a better
understanding of issues and  (2) ensure that others who may be
affected by their decisions have a reasonable opportunity to
provide input. Taking into consideration its mission, the number
and kinds of historic properties that it controls or is likely to
affect, the extent to which its activities affect historic
properties, and the qualifications and expertise of its staff,
each federal agency should develop guidelines or procedure for
determining:  Whom to consult;  When to consult;  What to consult
about and at what level of detail;  How to consult; and What to
do with the information obtained through consultation.

Whom to Consult

In accordance with the law, the agency must identify the
"appropriate" government agencies (local, state, and federal),
Indian tribes, Native Hawaiian organizations and private sector
organizations and individuals to consult with regarding its
preservation activities.  In the broadest sense, the agency
should consult with those who have an interest in the agency's
activities or in their historic resources or lands.  For many
agencies, these may include:

FACounty and city jurisdictions where the agency's activities
take place or are likely to take place.  Certified Local
Governments especially should be consulted. 

FAState agencies in the states where the federal agency
conducts its activities.  The State Historic Preservation Officer
is an important point of contact.  In addition, the state
historic preservation office can assist in identifying other
parties with interests, as well as sources of information. 

FATribes that have assumed the state historic preservation
office responsibilities for the lands within their reservations.
FAOther federal agencies that have jurisdiction over or some
responsibility for the land or resources that the federal agency
administers or may affect.
FANative American groups including Indian and Native Alaskan
tribes and Native Hawaiian organizations who (1) own or control
lands or resources that the agency may affect or (2) have a
traditional affiliation with lands or resources under the
agency's control.
FAPrivate property owners whose property the agency is likely
to affect.
FAEducational and research institutions, which may have
interest in or information about resources..
FAAdvocates for the preservation, use, or exploitation of
specific kinds of resources on the agency's land or under its
control.  


As a matter of course, an agency should consult those who have
information or a perspective that can help the agency carry out
its historic preservation activities effectively and efficiently. 

Since it enhances  federal agency programs and decision making
and minimizes the likelihood of future conflict, such as costly
legal challenges, consultation should be as inclusive as
practical.  Federal agencies should consider compiling a
directory of those with whom it consults and on what topics.



When to Consult

Consultation should be done as early as possible.  Soliciting
other's advice and opinions on which course of action to take
when that course of action has already been determined is not
consultation and may be inconsistent with the federal law.  If an
agency does this, then the agency is really asking for
ratification of or agreement with a decision.

In terms of its historic preservation program and activities, 

federal agencies should consult with others on an ongoing basis. 

In addition to gaining input that can improve its historic
preservation program, the agency establishes consultation
relationships.  Agencies find that having established
relationships already in place facilitates later,
project-specific consultation.  Project- and activity-specific
consultation should start as soon as possible after planning for
the project or activity begins. 


What to Consult About and at What Level of Detail  


In determining what to consult about and at what level of detail,
federal agencies should consider what they need to know to make a
wise decision.  In most situations, the less-specific the
decision being made, then the less specific the information that
is needed. 


How to Consult 


The consultation procedures that an agency uses helps ensure that
the agency achieves the goals of consultation.  To work, an
agency's procedures for consulting must be both systematic and
flexible.  Systematic procedures allow agencies to obtain needed
information that is in a consistent format.  Flexible procedures
permit the agency to accommodate unusual circumstances, such as
consultation with groups or individuals whose cultural values or
modes of communication differ from standard government methods of
communication.

Whether consulting on broad agency programs or specific projects,
an agency should:

FAApproach the process in good faith; do not assume an
adversarial relationship.
FAMake its interests and constraints (including laws,
processes, and schedules) clear at the beginning.  

FABe forthcoming about the degree of confidentiality that
individuals or groups can expect in terms of their identity and
the information that they provide.  (As a general practice,
federal agencies should not request or seek confidential
information unless the agency can demonstrate a need for such
information and can ensure that it will not be released through
avenues such as Freedom of Information Act requests.) 

FASeek to acknowledge and understand others' interests.
FAIdentify shared interests.
FAConsider a full range of options.
FATry to identify options that satisfy all parties. 


Traditionally, federal agencies have formally consulted through
notices in the Federal Register and through form letters
describing its planned activities and asking for comments from
the reader.  Most agencies, however, need to and already go
beyond these two methods of soliciting input.  Public meetings
are excellent and common venues for consultation.  Such meetings
commonly are part of the  review processes associated with the
National Environmental Policy Act.  Organizations often have
meetings where the federal agency can convey information and
receive input from the organization's members.  Other agencies
have found it useful to set up citizen/expert groups that provide
input to the agency on specific issues.  Some agencies are
interacting with interested citizens through the Internet. 

Federal agencies need to remember that other agencies (especially
local government agencies and tribes) usually have established,
legally-based procedures for acting on requests for information
or making decisions.  These procedures must be followed and they
can be time consuming.  Any federal agency should take this into
consideration when consulting with local government agencies and
tribes.

An agency that accommodates others in the ways that they take in
information and provide information back will benefit from doing
so.  Federal agencies may find that asking others how they wish
to be "consulted with" and agreeing on "how to consult" during
the first communications will facilitate later consultation and
avoid confusion and misunderstandings.  Professional facilitators
or mediators may be helpful.  


What to do with the Information Collected Through Consultation 


The information should be incorporated into relevant
decision-making.  When appropriate, a federal agency should share
the results of its consultations with others who can benefit,
especially other federal agencies.  It is inappropriate to share
information that was given in confidence.  In addition, Section
304 of the NHPA directs that information about the location,
character, or ownership of a historic resource be withheld from
public disclosure if such disclosure may cause a significant
invasion of privacy or risk harm to the historic resource.  In
addition, these kinds of information should be withheld if
disclosing the information may impede practitioners using
traditional religious site.  For example, telling the general
public that a traditional cultural place is considered to have
special magical powers will likely attract numerous members of
the public to that place, and, in all likelihood, their presence
will interfer with the practitioner's use of the place.

STANDARD 7:The agency ensures that its procedures for
complying with Section 106 of the NHPA are consistent with those
of the Advisory Council on Historic Preservation. (110.a.2.E.i)  


Under Section 110, each federal agency must have procedures for
complying with Section 106 of the National Historic Preservation
Act (NHPA) that are consistent with those of the Advisory
Council.  Consistent procedures include (1) alternative 106
procedures approved by the Advisory Council,  (2) procedures
outlined in programmatic agreements or exemptions approved by the
Advisory Council, or (3) agency procedures that follow the
Advisory Council's Section 106 procedures outlined in 36 CFR Part
800, Subpart B.  The Secretary will consult the Advisory Council
when addressing the issue of a particular agency's Section 106
procedures and their consistency with those of the Advisory
Council.   


According to Section 110, consistent procedures provide for:
(1)  a process that identifies and evaluates historic properties
in a timely fashion (110.a.2.E.ii);
(2)  a process that develops and implements agreements regarding
the means by which adverse effects on historic properties will be
considered (110.a.2.E.ii);
(3)  consultation with appropriate State Historic Preservation
Officers, local governments, Indian tribes, Native Hawaiian
organizations, and the interested public (110.a.2.E.ii);
(4)  disposition of Native American cultural items from federal
or tribal land consistent with section 3(c) of the Native
American Grave Protection and Repatriation Act (25 U.S.C.
3002(c)) (110.a.2.E.iii)

Additionally, an agency's definitions of key Section 106



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