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 http://www.swanet.org/ ++++++++++------------------------++++++++++ http://www.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=2764820164+23+0+0&W AISaction=retrieve [Federal Register: September 13, 1996 (Volume 61, Number 179)] [Proposed Rules] [Page 48579-48594] >From the Federal Register Online via GPO Access [wais.access.gpo.gov] [[Page 48579]] _______________________________________________________________________ Part VI Advisory Council on Historic Preservation _______________________________________________________________________ 36 CFR Part 800 Protection of Historic Properties; Proposed Rule [[Page 48580]] ADVISORY COUNCIL ON HISTORIC PRESERVATION 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 firstname.lastname@example.org. 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. SUPPLEMENTARY INFORMATION: 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 provide [[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 decision-making. 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 effects. 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 decreased? 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?