Message #379:
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

terms--such as historic property, undertaking, area of potential
effects, agency official, and adverse effect--must be congruous
with those of the Advisory Council.   

For any given federal undertaking, the agency's procedures should
promote the identification of the full range of historic
properties that are likely to be affected.  They should also
promote the full identification of the effects (direct, indirect,
and cumulative) that the agency's undertaking is likely to have
on the historic properties.  Additionally, agency Section 106
procedures should encourage broad-based consultation that
promotes the

FAfull identification and evaluation of the historic

FAa thorough assessment of the likely adverse effects, and 

FAthe develop of agreements on how the agency will consider
and deal with the adverse effects.

In accordance with the intent and purposes of the NHPA, the
Section 106 process should begin as early as possible in an
agency's project planning.  Where practical, Section 106 or
appropriate aspects of Section 106 compliance should be carried
out in accompaniment with NEPA environmental studies.  If the
intent of the NEPA process is to select a preferred alternative
out of many alternatives and 100-percent inventory of the
alternatives is impractical (which is often the case), then the
federal agency should compile sufficient data on each of the
alternatives to compare them and provide input into the
decision-making process.  Because more flexibility exists in
project design and location in the NEPA process as compared to
the Section 106 process, agency can best avoid adversely
affecting large, highly significant historic properties (e.g.,
land forms that are sacred sites, battlefields, and large
historic districts) during the NEPA process.

Section 110.a.2.E.iii directs that an agency's Section 106
procedures must provide for the disposition of Native American
cultural items from federal or tribal land consistent with
Section 3(c) of the Native American Graves Protection and
Repatriation Act (25  U.S.C. 3002(c)).  "Cultural items" are
defined in the law to include human remains, items intentionally
placed with the body in a grave, ceremonial objects having
historical, traditional, or cultural importance to Indian tribes
themselves.  (Readers should refer to the statutory language of
the act (25 U.S.C. 3002(c)) and to the Department of the
Interior's regulations implementing the act (43 CFR Part 10) for
detailed information.)

Under Section 110.l, the head of the agency must document any
decision made with regard to a Section 106 undertaking if that
undertaking will adversely affect any property included in or
eligible for inclusion in the National Register of Historic
Places and the agency has not entered into an agreement with the
Advisory Council.  The head of the agency shall not delegate this
responsibility.  In addition, the section states that Memorandums
of Agreement govern all parts of an undertaking.  Section 110.l
was added to the NHPA in 1992 to cover two distinct situations
that can arise in Section 106 review:

1.   The first situation exists when there is no Memorandum of
Agreement (MOA) governing how an agency will "take into account"
the effects of its undertaking on the historic properties. 

Requiring the head of the agency to document decisions made
pursuant to Section 106, ensures that the head of the agency 

FAis aware of the preservation activities of his or her

FAassumes "responsibility for the preservation of historic
properties" as called for in Section 110, and
FAexplains, for the public record, the basis upon which the
agency made its key decisions about the undertaking.

2.   The second situation occurs when a MOA is executed for an
undertaking, and there are other subsidiary activities connected
to the original undertaking that would in and of themselves,
qualify as undertakings.  Under Section 110.l, these related
activities are covered under the original MOA--they do not need
to be the subject of a separate MOA.

In accordance with Section 110(f), National Historic Landmarks
receive special consideration within the context of  the Section
106 process.  Prior to approving an undertaking that may directly
and adversely affect any National Historic Landmark, the head of
the responsible federal agency must, to the extent possible,
develop plans and take such actions as may be needed to minimize
harm to a landmark.  The head of the agency also must give the
Advisory Council on Historic Preservation the opportunity to
comment on this.  The Advisory Council's regulations implementing
Section 106 of the NHPA include provisions related to section
110(f) of the NHPA.  The Advisory Council shall be invited to
participate in all consultations to resolve adverse effects to
National Historic Landmarks.  The Advisory Council will notify
the Secretary of the Interior of the consultation and invite the
Secretary of the Interior to participate.  Under Section 213 of
the NHPA, the Advisory Council may request a report from the
Secretary that details the significance of the property,
describes the effects of the undertaking, and recommends measure
to avoid, minimize, or mitigate adverse effects. 

STANDARD 8:The agency documents historic properties before
they are substantially altered or demolished and places the
documentation in an appropriate repository for future use and
research. (110.b)

More specifically, Section 110.b of the National Historic
Preservation Act (NHPA) states that a federal agency must take
timely steps before a historic property is substantially altered
or demolished to ensure that a historic property is documented
properly.  In addition, Section 110.b requires federal agencies
to deposit that documentation in the Library of Congress or with
another appropriate agency, as may be designated by the Secretary
for future use and reference. Examples of documentation include
recording significant historical information about a property and
the aspect of history that it represents, recording significant
architectural plans and features; recording significant
engineering details; recording significant landscape details;
acquiring significant oral historical information related to the
property; recovering the archaeological data; and conserving
original plans and specifications for historic buildings.

Although this standard applies to all kinds of historic
properties, it is most often associated with documenting building
and structures and with the Historic American Building Survey and
the Historic American Engineering (HABS/HAER) collections in the
Library of Congress.  The National Park Service's HABS/HAER
programs establish the standards for documentation and monitor
all of the documentation that is included in the HABS/HAER
collections.  The purpose of the HABS/HAER collections is to
provide architects, engineers, scholars, and interested members
of the public with comprehensive documentation of buildings,
sites, structures and objects significant in American history and
the growth and development of the built environment. 

The kind and amount of documentation should be appropriate to the
nature and significance of the historic property.   The extent of
the alteration is also a factor in determining what constitutes
appropriate documentation.  The HABS/HAER Standards, which were
published originally in the Federal Register September 29, 1983,
identify four levels of documentation that are applicable to the
HABS/HAER collections at the Library of Congress.  HABS/HAER
recognizes that all documentation need not (and should not) be
filed in the Library of Congress collection.  As a result,
HABS/HAER encourages state historic preservation offices to
establish documentation standards that are appropriate for their
state and accept documentation into their state archives. 

Federal agencies should continue to document National Historic
Landmarks buildings and structures in accordance with the
HABS/HAER standards and submit that documentation for inclusion
in the Library of Congress collection.

In cases when an agency proposes to dispose of or destroy
artifacts, records, or remains related to a historic property, 36
CFR Part 79, Curation of Federally Owned and Administered
Archeological Collections, provides further information on
requirements for disposition or destruction of archaeological
materials.  Oral historical records should be filed with the
Library of Congress or other appropriate federal, state, or local

Since the intent of this standard is to save information that
would otherwise be lost so that others including professionals
and the public can use that information, federal agencies should
consider also making appropriate documentation available through
other more accessible formats, such as publications, exhibits,
and the world wide web. 

STANDARD 9:The agency minimizes harm to National Historic
Landmarks. (110.f)

By definition, National Historic Landmarks are significant
historic properties that have been found, through a formal,
public review process, to be nationally significant.  They
possess "exceptional value as commemorating or illustrating the
history of the United States."  The Secretary of the Interior
designates National Historic Landmarks under the authority of the
Historic Sites Act of 1935 and Section 101 of the National
Historic Preservation Act (NHPA).  The National Park Service's
National Register History, & Education division maintains the
National Historic Landmarks data base and documentation on each
landmark.  Currently, the National Park Service has the greatest
number; it manages more than 125 National Historic Landmarks. 

Most federal agencies, however, have jurisdiction over fewer than
ten landmark historic properties.

Federal agencies must minimize impacts on National Historic
Landmarks.  More specifically, Section 110(f) stipulates that
"prior to the approval of any Federal undertaking which may
directly and adversely affect any National Historic Landmark, the
head of the responsible Federal agency shall, to the maximum
extent possible, undertake such planning and actions as may be
necessary to minimize harm to such landmark. . . ."  Section
110(f) also directs federal agencies to "afford the Advisory
Council on Historic Preservation a reasonable opportunity to
comment on the undertaking."  Standard 7 discusses this latter

An agency's National Historic Landmarks often are part of its
history and tied directly to its mission.  Thus, the agency has
the opportuntiy to tell the federal agency's history and mission
through its buildings and places.  The Bureau of Reclamation, for
example, has many nationally significant dams that are National
Historic Landmarks.  In addition to being engineering feats that
represent one of the most important means by which this nation
gained control of its natural environment and prospered, these
dams are important for telling the history of the agency.

To effectively minimize harm to National Historic Landmarks, an
agency needs to identify the known National Historic Landmarks
that it controls or is likely to affect as a result of its
activities.  The agency also needs to know why each of its
National Historic Landmarks is nationally significant.  With this
information, the agency can prepare preservation plans for
specific landmarks or kinds of landmarks and begin putting
policies and procedures in place that will help the agency avoid
actions harmful to National Historic Landmarks. 

The following illustrates one approach for protecting National
Historic Landmarks:

1.   Identify known National Historic Landmarks, including their
location and why they are nationally significant.

2.   Incorporate that information into appropriate agency data
bases and mapping systems.

3.   Take steps to identify potential National Historic Landmarks
that the agency may control or is likely to affect through its
actions.  Many agencies will find this step to be relatively
straightforward; others will find it to be very complex.  An
agency's mission, the amount of land and number of buildings it
controls, and the extent to which it funds or permits activities
of others accounts for these differs.  For example, a federal
agency that has few facilities, confines its activities to those
facilities, and does not issue permits or provide federal funding
for activities of others on lands or at facilities beyond its
immediate control should have no difficulty in identifying
potential National Historic Landmarks.  Federal agencies that
have many facilities or administers extensive land holdings or
that issue numerous use permits for activities on lands they do
not control will have greater difficulty identifying potential
National Historic Landmarks.

To identify potential National Historic Landmarks consult:
FAagency administrative histories that may name properties
that are key to telling the story of the agency and its mission;
FArelevant theme studies that identify national important
historic properties (e.g., the Civil War Sites Advisory
Commission's study of the nation's Civil War battle sites or the
National Park Service's historic contact period study);
FAthe National Register of Historic Places data base that
includes data on which properties State Historic Preservation
Officers believe to be nationally significant; and
FAthe cultural resources files or data bases retained by the
agency or by the state historic preservation office.

4.   Inform agency personnel and persons doing business with the
agency about the agency's policies and procedures regarding
National Historic Landmarks and the importance of minimizing harm
to them. This can be done most effectively if the information is
included in agency policy documents (such as manuals and special
directives), attached to permit or funding applications, and
incorporated into land or facilities management plans. 

5.   Prepare agency National Historic Landmarks plans.  Agencies
with few such properties will find this is a relatively easy
task.  Agencies with numerous National Historic Landmarks or many
different kinds of landmarks will have to set priorities to
determine which historic properties most need plans.  Relative
importance, integrity, and anticipated threats to that integrity
are often useful criteria when establishing such priorities.   

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