Message #297:
From: AzTeC SW Archaeology SIG
To:   "'Matthias Giessler'" 
Subject: Draft Section 106 Regs in 9/1396 Federal Register Publication (Part II)
Date: Fri, 13 Sep 96 13:05:00 MST
Encoding: 473 TEXT

Tom King writing to members of FPForum :

New if unimproved 106 regs -- I understand that the new revised draft 
Section 106 regulations will be published today (Friday the 13th) in the 
Federal Register for comment.  I hope everyone will look them over carefully 
and comment on whether, from your perspective, they really improve the 106 
process or correct any of its deficiencies.  As in voting, comment early and 
often.  Unless the draft has improved substantially from the last one I saw 
(which is unlikely), I think that a close reading by SHPOs, tribes, local 
governments, agencies, industry, consultants, preservation groups, and 
others will reveal sufficient problems to recommend that the ACHP go back 
once again to the drawing board.

SO.... I went to GPO ACCESS, selected database 
for "Federal Register, Volume 61 (1996)," and typed "Section 106 
Regulations" in the search terms block.  The results are pasted below.

Brian Kenny

[Federal Register: September 13, 1996 (Volume 61, Number 179)]
[Proposed Rules]
[Page 48579-48594]
>From the Federal Register Online via GPO Access []
[[Page 48579]]
Part VI
Advisory Council on Historic Preservation
36 CFR Part 800
Protection of Historic Properties; Proposed Rule
[[Page 48580]]
36 CFR Part 800
Protection of Historic Properties
AGENCY: Advisory Council on Historic Preservation.
ACTION: Notice of proposed rulemaking.
SUMMARY: The Advisory Council on Historic Preservation is proposing changes 
to its regulations in order to implement the 1992 amendments to the National 
Historic Preservation Act and to improve and streamline the regulations in 
accordance with the Administration's reinventing government initiatives. The 
proposed changes will modify the process by which Federal agencies consider 
the effects of their undertakings on historic properties. On October 3, 
1994, the Council published for comment in the Federal Register a notice of 
proposed rulemaking that set forth changes to the Section 106 process. After 
reviewing the comments on the October 1994 proposal and in response to 
agency downsizing and restructuring, the Council substantially changed its 
proposal to better meet the streamlining goals of the Council. Therefore, 
the Council is publishing a new notice of proposed rulemaking. In its 
streamlined proposal, the Council seeks to balance the interests and 
concerns of various users of the Section 106 process, including Federal 
agencies, State Historic Preservation Officers (SHPOs), Native Americans and 
Native Hawaiians, industry and the public.

DATES: Comments must be received on or before November 12, 1996. The Council 
will provide on request an additional 30 days for an Indian tribe to submit 
comments. A representative of the tribal government must file a request with 
the Council no later than November 12, 1996.

ADDRESSES: Comments should be addressed to the Executive Director, Advisory 
Council on Historic Preservation, 1100 Pennsylvania Avenue, Suite 809, 
Washington, D.C. 20004. Fax 202- 606-8672. Comments may be submitted via 
E-Mail to

FOR FURTHER INFORMATION CONTACT: Stephanie Woronowicz, Information 
Assistant, Advisory Council on Historic Preservation, 1100 Pennsylvania 
Avenue, Suite 809, Washington, D.C. 20004 (202) 606-8503.


I. Background

    Section 106 of the National Historic Preservation Act of 1966, as 
amended, 16 U.S.C. 470f, 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. Public Law 
102-575 was enacted in October 1992, and contains amendments to the National 
Historic Preservation Act which affect the way Section 106 review is carried 
out under the Council's regulations. Additionally, as part of the 
Administration's National Performance Review and overall streamlining 
efforts, the Council undertook a review of the current regulatory process to 
identify potential changes that could improve the operation of the Section 
106 process and conform it to the principles of this Administration. The 
Council commenced an information-gathering effort to  assess the current 
Section 106 process and to identify desirable changes.

    As a part of this effort, the Council sent a questionnaire to  1,200 
users of the Section 106 process, including Federal agencies, SHPOs, State 
and local governments, applicants for Federal assistance, Native Americans, 
preservation groups, contractors involved in the process, and members of the 
public. The questionnaires sought opinions on the current regulatory process 
and ideas for enhancing the process. The Council received over 400 
responses. After analyzing the responses and holding several meetings with 
Federal Preservation Officers and SHPOs, the Council staff presented its 
preliminary findings to a special Council member Task Force comprised of the 
Department of Transportation, the National Conference of State Historic 
Preservation Officers, the National Trust for Historic Preservation, and the 
Council's Native American representative, expert member and chairman.

   The Task Force adopted the following findings and attempted to craft the 
regulations to reflect them: (1) Federal agencies and SHPOs should be given 
greater authority to conclude Section 106 review; (2) the Council should 
spend more time monitoring program trends and overall performance of Federal 
agencies and SHPOs and less time reviewing individual cases or participating 
in case-specific consultation; (3) Section 106 review requirements should be 
integrated with environmental review required by other statutes; (4) 
enforcement of Section 106 should be increased and specific remedies should 
be provided for failure to comply; and (5) there should be expanded 
opportunities for public involvement in the Section 106 process.

    In the proposed regulations published in the Federal Register on October 
3, 1994, the Council sought to meet the stated findings and objectives 
adopted by the Task Force. The Council received approximately 370 comments 
on the October 1994 proposal. Generally, commenters supported the overall 
goals and direction adopted by the Task Force, but found that the proposed 
regulations failed to implement the stated goals. Particularly, many 
commenters disagreed with the role of the Council as arbiter of disputes 
over application of the regulations, the public appeals process, and 
provisions dealing with enforcement. At a Council membership meeting in 
February 1995, the Council decided to continue its dialogue with major user 
groups of the Section 106 process in an effort to resolve their concerns. 
The Council membership also reaffirmed the objective of reducing regulatory 
burdens on Federal agencies and SHPOs and focussing the review process on 
important historic preservation issues. The Council solicited the views of 
users of the Section 106 process once again by convening separate focus 
groups with local governments, industry representatives, Native Americans, 
and Federal agency officials in May 1995. As a result of these meetings, and 
after considering the views of commenters, the Council drafted a 
substantially revised proposal and circulated the draft informally in July 
1995 to the 370 commenters who had commented on the October 1994 notice of 
proposed rulemaking.

    The Council received approximately 80 comments on the informally 
distributed draft. Generally, the commenters found the July 1995 draft to be 
an improvement on the October 1994 proposal. Again, however, Federal 
agencies noted that the Council did not go far enough in removing itself 
from routine cases and in bringing finality to the process. Federal agencies 
also remained concerned that the public participation provisions were too 
open-ended and inadequately defined the roles and rights of participants in 
the process. Federal agencies also considered the (National Environmental 
Policy Act (NEPA) integration section to be a step forward, but submitted 
that its substitution provisions should be extended to environmental 
assessments as well as environmental impact statements and, overall, could 
[[Page 48581]]
better integration of NHPA and NEPA. In contrast, the majority of SHPOs did 
not want the Council to remove itself further from the Section 106 process 
and did not want the NEPA integration section to be extended to 
environmental assessments. The National Conference of State Historic 
Preservation Officers, as well as many of its member SHPOs, supported the 
public participation process as set forth in the July 1995 draft, but sought 
clarification on the roles and responsibilities of Federal agencies under 
Section 106. Industry commenters deemed the July 1995 a vast improvement 
over the 1994 proposal, however, they remained concerned with the appeals 
procedures and found the process too burdensome. Industry also remained 
concerned about the public participation provisions. The current proposal is 
an attempt to balance the many views of the Section 106 users on how to 
achieve the Task Force's goals while fulfilling the Council's mission of 
ensuring reasonable consideration of historic properties in agency 

II. Summary of Regulatory Changes

    The proposed regulations would significantly modify the current Section 
106 process. The regulations provide a greater opportunity for Federal 
agencies to resolve historic preservation issues with the SHPO and other 
involved parties, without direct Council involvement. As a result, the 
proposed regulations redefine the role of the Council to involve the Council 
in controversial cases where the Council's unique perspective and expertise 
can facilitate effective solutions. The proposed regulations also provide 
new flexible methods of obtaining Council comment on certain undertakings or 

Subpart A--Background and Policy

    This Subpart adds a section which describes the three methods of 
complying with Section 106: alternate procedures, exemptions or programmatic 
agreements, and general procedures set forth in Subpart B. As one of those 
methods, it encourages Federal agencies to meet their Section 110 (a)(2)(E) 
requirements by developing their own alternate procedures for compliance. 
This Subpart also modifies the description of the participants in the 
Section 106 process and the roles of the participants. Participants fall 
into three categories:  principal parties, consulting parties, and the 
public. Principal parties are those with statutory responsibilities under 
Section 106: the Federal agency official and the Council. Consulting parties 
are those with consultative responsibilities under the Act: the SHPO and 
Indian tribes and Native Hawaiian organizations. Affected parties are those 
with direct legal or financial interests in the effects on undertaking on 
historic properties: local governments and applicants for Federal assistance 
or permission.. The public, under the proposed regulations, includes the 
general public at large and the ``interested public.'' The proposed 
regulations define the interested public to include individuals and 
organizations that have indicated to the agency official a particular 
interest in the effect of the undertaking. Interested public includes owners 
of real property affected directly by the undertaking, traditional cultural 
authorities, the SHPO when the Indian tribe has assumed the function of the 
SHPO under Section 101(d)(2) of the Act and others that request to be 
treated as such.

Subpart B--Section 106 Procedures

    This Subpart provides the standard general procedures for compliance 
with the Act. It adds a new section which clarifies how a Federal agency 
should initiate the 106 process in order to emphasize the importance of 
early planning and coordination with reviews required by other statutes. By 
emphasizing the importance of proper initiation of the process, the Council 
seeks to address concerns regarding undue delay in projects. The 
identification step at Section 800.4 has been changed by adding two new 
concepts to enhance flexibility in the regulations. First, when locating 
historic properties, the proposed regulations provide that an agency must 
consider the scope and type of identification necessary based on a variety 
of factors, including the magnitude of the undertaking and its likely 
effects. It is intended that Federal agencies will focus their 
identification efforts on those portions of the area of potential effects 
most directly related to their jurisdictional or financial control. Second, 
the proposed regulations allow for ``phased identification'' to accommodate 
the practice of choosing several alternatives in a project. As specific 
aspects or locations of a project are determined, then the agency official 
completes the identification.

    This Subpart also removes the separate ``effect'' determination step and 
now proposes combining the ``no historic properties'' finding and the ``no 
effect'' finding into a single ``no historic properties affected'' finding 
requiring 15 days for SHPO review. The agency moves directly to assessing 
adverse effects once it determines that historic properties may be affected. 
The adverse effect criteria currently in Section 800.9(b) have been revised 
to better define adverse effects and have been moved to Section 800.5. The 
current exceptions to the criteria have been transformed into ``standard 
treatments'' listed in Section 800.5(a)(4) with the addition of a bridge 
replacement standard treatment and a modification of the exception for 
archeological resources that clarifies the basis for using the standard 
treatment and ensures public dissemination of any resulting archeological 
studies. The proposed regulations also remove the Council from review of no 
adverse effect determinations and standard treatment agreements. The 
amendments allow Federal agencies to conclude the Section 106 process at 
this level without Council review, subject to specific requests for Council 
review of agency findings  under Section 800.9(a).

    The proposed regulations, in Section 800.6(a)(1), specify instances when 
an agency official must request the Council to become involved in the 
consultation to resolve adverse effects. The Council may or may not 
participate after receiving such a request. The proposed regulations provide 
that the Council may enter the consultation on its own initiative if the 
Council determines it is necessary to ensure that the purposes of Section 
106 are met, i.e., that an agency is properly taking into account the 
effects of the undertaking on historic properties and affording the Council 
its reasonable opportunity to comment. The proposed regulations, in 
800.6(b)(1)(ii), also allow any principal party to request Council 
involvement in the consultation. If the Council does not participate in 
consultation, then the Council does not review two-party agreements 
negotiated between the SHPO and the Federal agency, but the regulations do 
require Federal agencies to file copies of the agreement with the Council as 
a basis for general Council oversight of agency compliance with Section 106. 
If the SHPO and the agency cannot reach a solution, the proposed regulations 
require that the Council join the consultation to attempt resolution before 
allowing for termination of consultation and the provision of formal 
comments by the Council membership. The proposed regulations provide that 
these formal Council comments be considered by the head of the agency in 
accordance with Section 110(l) of the Act.

     Subpart B provides a new section on coordination with the National 
Environmental Policy Act (NEPA). It allows for the use of the NEPA process 
and documentation for the preparation
[[Page 48582]]
of an environmental impact statement (EIS) and environmental assessment (EA) 
to comply with Section 106 procedures as long as the draft EIS or EA meets 
certain specific standards. The agency must submit the EA or draft EIS to 
the Council, the SHPO, other consulting parties, and the interested public 
during the public comment period and any agreed upon mitigation measures 
must be incorporated in the record of decision. The purpose of this section 
is to encourage the integration of the resolution of adverse effects on 
historic properties into agency NEPA compliance.

    The proposed regulations also clarify in Section 800.9 the process for 
assessing certain agency findings under Sections 800.4 and 800.5. Such 
requests may only be made by the SHPO, another consulting party or a member 
of the interested public that has participated in the Section 106 process 
and must be made before the undertaking is approved by the agency. The 
proposed regulations also provide strict time limits for the Council to act 
on the request and provide its views to the agency official. The Council may 
request the agency official to delay final action for up to 30 days while 
the Council considers the matter, but the agency official is not required to 
do so.

    In shifting the emphasis from Council review of individual cases to 
assessing the overall quality of Federal agency or SHPO performance, the 
proposed regulations add a provision that requires agencies to maintain 
documentation of actions taken in compliance with Section 106 and to provide 
the Council with such information upon Council request.

    Section 800.10 addresses special requirements for National Historic 
Landmarks and remains unchanged for the most part.

    Documentation standards have been clarified to provide general 
requirements regarding adequacy, format and confidentiality in Section 
800.11(a)-(c). Sections 800.11(d)-(h) remain largely unchanged from the 
current 800.8(a)-(d) except that a new documentation requirement has been 
added for a finding of no historic properties present or affected.

    In order to comply with the 1992 amendments which mandated participation 
of Indian tribes and Native Hawaiian organizations, the Council added a new 
section in 800.12 on involving Indian tribes and Native Hawaiians in the 
consultation process. This section sets forth specific requirements for 
involvement at each step of the Section 106 process and is designed to 
facilitate participation and agency planning for involvement.

    Section 800.13 changes the Council's current emergency procedures 
contained in 800.12 by encouraging agencies to develop internal procedures, 
in consultation with the Council and the SHPO, which address how historic 
properties will be considered during emergencies. If an agency has not 
developed such procedures, the regulations encourage agencies to develop 
programmatic agreements that include provisions for dealing with historic 
properties during emergencies. If there is no applicable programmatic 
agreement, then the agency shall give the Council seven days to comment 
prior to the undertaking where the agency determines circumstances permit.

    Section 800.14 is similar to the current Section 800.11 which addresses 
post review discoveries except that it adds the requirement that agencies 
must make reasonable efforts to avoid or minimize adverse effects on 
unplanned-for discoveries.

Subpart C--Program Alternatives

    This Subpart provides new options for agencies to pursue in streamlining 
their Section 106 compliance activities and incorporates the current 
practice of developing Programmatic Agreements to facilitate coordination 
between Section 106 and an agency's particular program.

    Section 800.15 provides five alternative methods of fulfilling Section 
106 responsibilities, instead of following the procedures set forth in 
Subpart B. First, Section 800.15(a) states that Federal agencies may develop 
procedures and, when they are determined to be consistent with the Council's 
regulations, substitute them for comparable portions of the Council's 
regulations. Second, Section 800.15(b) provides for the development of 
Programmatic Agreements to govern particular agency programs or complex or 
multiple undertakings; this section is substantively unchanged from the 
current programmatic agreement section in 800.13 of the Council's 
regulations, but does change minor standards and requirements in the 
development of such agreements. Third, Section 800.15(c) allows for agencies 
to establish exempted categories for undertakings that have foreseeable 
effects which are not likely to be adverse. Fourth, Section 800.15(d) allows 
the Council to offer a streamlined method of treating a category of historic 
properties or a category of effects by allowing for standard treatments. 
Finally, Section 800.15(e) provides an efficient mechanism for fulfilling 
the requirement of seeking Council comment. This section allows agencies to 
request Council comment on a category of routine or repetitive undertakings 
instead of conducting individual reviews.

    The Council has reserved Section 800.16 to address state, tribal and 
local program alternatives, but has deleted the current Section 800.7 on 
state agreements.

    Section 800.17 contains definitions. Several definitions have been 
changed or deleted. ``Agency official'' has been deleted as redundant in 
light of Section 800.2(a)(1). ``Approval of the expenditure of funds'' has 
been added to clarify the triggering event for many Section 106 reviews. 
``Area of potential effects'' has been changed in light of the removal of 
the ``effect'' determination step in the process and is now limited to the 
area where adverse effects may occur. ``Comment'' and ``consultation'' and 
``effect'' have been added for clarification.  ``Head of the agency'' has 
been added as a result of the 1992 amendments. ``Historic properties'' 
definition has been changed to include properties of traditional religious 
and cultural importance to Indian tribes or Native Hawaiian organizations 
that meet the National Register criteria. ``Indian lands'' has been changed 
to ``tribal lands'' and redefined as in the statute. ``Indian tribe'' is 
changed and tracks the exact language in the statute. ``Interested person'' 
has been deleted because that term is no longer used by the regulations. 
``Memorandum of Agreement'' has been added for clarification. ``Native 
Hawaiian organization'' is added and tracks the statutory language. 
``Programmatic Agreement'' has been added for clarification. ``Traditional 
cultural authority'' has been added because the 1992 amendments refer to the 
involvement of such groups. ``Tribal Preservation Officer'' has been added 
because the 1992 amendments provide a new role for such an officer. 
``Undertaking'' has been defined exactly as in the statute.

III. Issues Deserving Special Attention From Commenters

1. Public Participation

    The goal of the regulatory requirement that Federal agencies inform and 
involve the public in the Section 106 process is to ensure that the public 
has a reasonable opportunity to provide its views on a project. The Council 
has attempted to give the public an adequate chance to voice its concerns to 
Federal decision makers while recognizing legitimate concerns about avoiding
[[Page 48583]]
unnecessary procedural burdens and delays and protecting the privacy of 
non-governmental parties involved in the Section 106 process. How can the 
regulations be enhanced to provide for meaningful public involvement in a 
timely and effective fashion?

2. Local Governments

    Several agencies seek an enhanced role for certified local governments 
in the Section 106 process and find that the regulations do not go far 
enough in providing for their involvement. The definition of ``Head of the 
agency'' provides that the head of a local government shall be considered 
the head of the agency where it has been delegated responsibility for 
Section 106 compliance. How can we better incorporate local governments into 
the process without confusing the regulations?

3. Council Involvement

    In this proposal, the Council has removed itself from review of no 
adverse effect determinations and routine Memoranda of Agreement with the 
intent of deferring to agency-SHPO decision making as a general rule. At the 
same time, as the Federal agency assigned to review the policies and 
programs of Federal agencies on historic preservation matters, the Council 
has retained the right to enter the consultative process on its own motion 
or when asked requested by the Agency Official. The regulations set forth in 
800.6 several criteria which indicate when an Agency Official must invite 
the Council to become involved in the consultation. They also set a general 
standard for when the Council will enter the process without a request. The 
Council intends on exercising its right to enter the process sparingly. Are 
the criteria set forth in 800.6(a)(1)(i) workable? Can the regulations 
better define when the Council will intervene on its own initiative?

4. Council Review of Agency Findings

    Section 800.9 provides for Council review of agency findings where the 
Council has not participated in the consultative process pursuant to 800.6. 
The Council's right to review agency findings is limited to whether the 
agency followed the appropriate procedures when making an eligibility 
determination under 800.4(c)(2), a no historic properties present or 
affected finding under 800.4(d), or a no adverse effect finding or 
resolution by standard treatment under 800.5(c). The right to review is also 
limited by the requirement that the request be made prior to the agency 
approval of the expenditure of funds or the issuance of a license, permit or 
other approval. The Council has 10 days to decide if the request warrants 
Council review and 30 days to decide the merits of the case. The Council 
finds that the above review process strikes a balance between allowing 
review of procedurally deficient agency decisions and limiting review to 
situations that could not have been corrected earlier in the process. Some 
Federal agencies find that the review process in 800.9 provides the Council 
too much authority to second guess agency decisions and promotes a lack of 
finality to the process. How can the regulations accommodate the Council's 
concerns and those of other Federal agencies?

5. Time Frames

    Throughout the regulations, time frames are set for reviews conducted by 
SHPOs and the Council. Generally, they allow thirty days for responding to 
agency requests, although some are shorter. These have been established in 
an effort to balance the need for an expeditious process for Federal 
agencies and applicants with the recognition of the need for adequate time 
to evaluate submissions (as well as the limits on resources available in 
SHPO offices and at the Council to respond within the specified time). Do 
the time frames achieve this balance or should specific ones be increased or 

6. Alternate Procedures

    The proposed regulations allow Federal agencies to substitute their own 
procedures for those contained in subpart B. Section 110(a)(2)(E) of the Act 
requires that procedures implementing Section 106, including these 
substitute procedures, be consistent with the Council's regulations. The 
proposed regulations charge the Secretary with making final determinations 
on consistency. This is based on the Secretary's primary responsibility for 
implementing Section 110. Alternatively, the Council, as the agency charged 
by Section 211 of the Act with issuing the regulations to guide 
implementation of Section 106, could make such a determination. A third 
option is allowing the Federal agency itself to make a determination of 
consistency. Is the proposed approach the best solution?