Message #298: From: AzTeC SW Archaeology SIG To: "'Matthias Giessler'" Subject: Draft Section 106 Regs in 9/1396 Federal Register Publication (Part III) 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/ ++++++++++------------------------++++++++++ IV. Impact Analysis Regulatory Flexibility Act The proposed rules will not have a significant economic impact on a substantial number of small entities. The Council's regulations, in their current and revised form, only impose mandatory obligations on Federal agencies. If a Federal agency is legally authorized and chooses to delegate its responsibility to local governments, then that Federal agency must determine whether or not its delegation will have a significant economic impact on a substantial number of small entities. The Paperwork Reduction Act The proposed regulations do not impose reporting requirements or the collection of information as defined in the Paperwork Reduction Act. National Environmental Policy Act Pursuant to 36 CFR Part 805, the Council is developing a draft Environmental Assessment and will complete the NEPA evaluation prior to publication of its final rule. Executive Orders 12866 and 12875 The Council is exempt from compliance with Executive Orders 12866 pursuant to a memorandum issued by the Office of Management and Budget's Office of Information and Regulatory Affairs on October 12, 1993. The Council is also exempt from the documentation requirements of Executive Order 12875 pursuant to a memorandum issued by the same office on January 11, 1994. Although the Council is exempt, it has adhered to the principles in both orders by involving State, local and tribal entities, members of the public, and industry groups in the development of the proposed regulations as discussed above in the Background section of this preamble. The proposed regulations, like the current regulations, do not mandate State, local and tribal governments to participate in the Section 106 process. The State, local and tribal governments have the option of declining to participate, although the State Historic Preservation Officers are required to advise and assist Federal agencies, as appropriate, as part of their duties under Section 101(b)(3)(E) of the National Historic Preservation Act and as a condition of their Federal grant assistance. In accordance with Executive Order 12875, the proposed regulations provide flexible approaches to consideration of historic properties in Federal agency decision making by allowing for categorical exemptions, standard treatments, program comments, and programmatic agreements in Section 800.15 of the proposed regulations. [[Page 48584]] Unfunded Mandates Reform Act of 1995 The Council has determined that its regulations do not fall within the definition of a Federal mandate as defined in Section 421(6) of the Unfunded Mandates Reform Act of 1995. Executive Order 12898 The regulations implementing Section 106 do not pose environmental risks, but rather, seek to avoid adverse effects on historic properties in all areas of the United States. Memorandum Concerning Government-to-Government Relations with Native American Tribal Governments The Council has fully complied with this Memorandum. A Native American representative served on the Council and was a member of the Council's Regulations Task Force. The proposed regulations enhance the opportunity for Native American involvement in the Section 106 process and clarify the obligation of Federal agencies to consult with Native Americans. List of Subjects in 36 CFR Part 800 Administrative practice and procedure, Historic preservation, Indians, Inter-governmental relations. Dated: September 10, 1996. Robert D. Bush, Executive Director. Title 36, chapter VIII is amended by revising part 800 to read as follows: PART 800--PROTECTION OF HISTORIC AND CULTURAL PROPERTIES Subpart A--Purposes and Participants Sec. 800.1 Purposes. 800.2 Participants in the Section 106 process. Subpart B--Section 106 Procedures 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 Consultation with Indian tribes and Native Hawaiian organizations. 800.13 Emergency situations. 800.14 Post-review discoveries. Subpart C--Program Alternatives 800.15 Federal agency program alternatives. 800.16 State, Tribal and Local Program Alternatives. (Reserved) 800.17 Definitions. Subpart A--Purposes and Participants Sec. 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 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 between 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 avoid or minimize adverse effects on historic properties. (b) Relation to other provisions of the Act. Section 106 is one of several provisions of the Act designed to further the national policy of historic preservation. References to those related provisions are included in the procedures in this part to identify circumstances where actions under the procedures in this part may be affected by the independent obligations of those other provisions. Such provisions may have their own implementing regulations or guidelines and are not intended to be implemented by the procedures in this part. Guidelines, policies and procedures issued by other agencies, including the Secretary, have been cited in the procedures in this part for ease of access and are not incorporated by reference. (c) Methods of complying with section 106 of the Act. The procedures in this part provide several methods for Federal agencies to meet their Section 106 responsibilities. (1) Alternate procedures. Section 110(a)(2)(E) of the Act directs Federal agencies to develop procedures for implementing section 106 of the Act that are consistent with the Council's regulations and meet standards specified in the Act. The Council encourages Federal agencies to adopt such procedures and, where appropriate, substitute them for the procedures in subpart B of this part in accordance with Sec. 800.15(a). (2) Exemptions and programmatic agreements. If a Federal agency does not have alternate procedures in place, it should consider the use of exemptions (Sec. 800.15(c)) and programmatic agreements (Sec. 800.15(b)) to tailor Section 106 compliance to its program needs. (3) General procedure. If a Federal agency has not adopted alternate procedures and the undertaking is not exempted or governed by a programmatic agreement, the Agency Official shall comply with the process set forth in subpart B of this part. (d) Timing. Section 106 of the Act requires the Agency Official to complete the section 106 process prior to the approval of the expenditure of funds or prior to the issuance of any license, permit or other approval. An Agency Official may expend funds on, or authorize, nondestructive project planning activities, including field investigations, before completing compliance with section 106 of the Act, and may conduct phased compliance with the procedures in subpart B of this part at different stages of planning, provided that such actions do not restrict the subsequent consideration of alternatives to avoid or minimize 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. Sec. 800.2 Participants in the section 106 process. (a) Principal parties. The following parties have statutory responsibilities in the section 106 process: (1) Agency Official. It is the legal obligation of the Federal agency to fulfill the requirements of section 106 of this Act 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 final approval authority for the undertaking and may be a State, local, or tribal government official who has been delegated legal responsibility for compliance with section 106 of the Act in accordance with law or agency procedures established under section 110(a)(2)(E) of the Act. (i) Section 112 of the Act requires each Federal agency to ensure that all actions taken by employees or contractors of the agency shall meet professional standards under applicable regulations of the Secretary and that agency personnel and contractors responsible for historic resources meet applicable qualification standards [[Page 48585]] established by the Office of Personnel Management. (ii) If more than one Federal agency is involved in an undertaking, the agencies may designate a lead Federal agency. The lead Federal agency shall identify the appropriate official to serve as the Agency Official. Such Agency Official shall act on behalf of all participating Federal agencies, fulfilling their collective responsibilities under section 106 of the Act and subpart B of this subpart. (2) Council. The Council is responsible for issuing 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 undertakings that affect historic properties and assists participants in meeting their legal obligations. Participants in the section 106 process may seek advice and guidance from the Council on the application of this part to specific undertakings even though the Council is not formally involved in the review of the undertaking. (b) Consulting parties. The following parties have consultative roles in the section 106 process as defined in the Act. (1) State Historic Preservation Officer. The State Historic Preservation Officer advises and assists Federal agencies in carrying out their historic preservation responsibilities and consults with Federal agencies on undertakings that affect historic properties and on the content and sufficiency of plans to protect, manage or mitigate harm to historic properties. If an Indian tribe has assumed the functions of the State Historic Preservation Officer for the section 106 process on tribal lands, the State Historic Preservation Officer shall participate in accordance with any plan referenced in Sec. 800.2(b)(2) and may also participate as a member of the interested public. The role of the State Historic Preservation Officer with regard to effects on historic properties located off tribal lands is unchanged. (2) Indian tribes and Native Hawaiian organizations. The Agency Official is required 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. To meet this responsibility, the Agency Official shall identify Indian tribes and Native Hawaiian organizations likely to have such interests in accordance with Sec. 800.3(e) and consult with them in accordance with Sec. 800.12 to ensure that their views are fully considered by the Agency Official in reaching findings and decisions in the section 106 process. An Indian tribe may assume the functions of a State Historic Preservation Officer in the section 106 process with respect to tribal lands under section 101(d)(2) of the Act. If so, the Agency Official shall consult with the Tribal Preservation Officer in accordance with the plan prepared pursuant to that section regarding the effects of undertakings on tribal lands. (c) Affected parties. The following parties have direct legal or financial interests in the effects of an undertaking on historic properties and may participate in the section 106 process as consulting parties when they so request. (1) Representatives of local governments. If a representative of a local government with jurisdiction over the area in which the effects of an undertaking may occur so requests, the Agency Official shall involve the local government as a consulting party. Under certain authorities, the local government may be authorized to act as the Agency Official for purposes of section 106 of the Act. (2) Applicants for Federal assistance, permits, licenses and other approvals. If an applicant for Federal assistance or permission so requests, the Agency Official shall involve the applicant as a consulting party. The Agency Official may authorize an applicant to initiate consultation with the State Historic Preservation Officer and others under Secs. 800.3 and 800.4, but remains legally responsible for all findings charged to the Agency Official. Where not inconsistent with the rights of the public to access the information that is the basis for the Agency Official's decisions under the procedures in this part, the Agency Official may take reasonable steps to protect the privacy of non-governmental applicants in accordance with applicable agency procedures. (d) The public. The views of the public are essential to informed Federal decisionmaking as to taking into account effects of undertakings. The Act directs Federal agencies to consult with the interested public, as appropriate, in steps taken to comply with section 106 of the Act. The procedures in this part provide for notification and involvement of the public in the section 106 process and for the identification of and consultation with the interested public as appropriate. (1) Responsibilities. The Agency Official is required at specific points in the section 106 process to provide the public with information about an undertaking and its effects on historic properties and to seek public comment and input. Members of the public may also provide views on their own initiative and the Agency Official should consider those views in decisionmaking. (2) Flexible application. The Agency Official's efforts to seek and consider the views of the public should reflect 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, and the nature of the Federal involvement in the undertaking. Evaluation of these factors for an individual undertaking may warrant the Agency Official to apply the specific public involvement requirements of subpart B of this part in a flexible manner. (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, if they provide adequate opportunities for public involvement consistent with the procedures in subpart B of this part. (4) Interested public. The interested public includes those individuals and organizations that have indicated to the Agency Official an interest in the effects of an undertaking on historic properties. Certain individuals and organizations may warrant direct involvement in the consultations conducted by the Agency Official due to the nature of their legal or economic relation to the undertaking or affected properties, or due to their representation of citizens or organizations concerned with the undertaking and its effects on historic properties. The Agency Official is required to take steps to identify the interested public and involve them at specific points in the section 106 process. The interested public includes: (i) Owners of real property affected directly by the undertaking, provided that the Agency Official may limit participation to organizations representing such owners if necessary; (ii) Traditional cultural authorities with an interest in the undertaking's effects on historic properties of traditional cultural and religious importance; (iii) The State Historic Preservation Officer when an Indian tribe has assumed the functions of the State Historic Preservation Officer under section 101(d)(2) of the Act; and (iv) Other individuals, organizations or entities that request to be treated as members of the interested public. [[Page 48586]] Subpart B--Section 106 Procedures Sec. 800.3 Initiation of the Section 106 process. (a) Establish undertaking. The Agency Official shall determine whether the proposed Federal action is an undertaking and, if so, whether it has the potential to affect historic properties and whether review is governed by a Federal agency program alternative established under Sec. 800.15. (1) If the action is not an undertaking or an undertaking that has no potential to affect historic properties, the Agency Official has no further obligations under section 106 of the Act. (2) If the review of the undertaking is governed by a Federal agency program alternative, the Agency Official shall follow that alternative. (b) Coordinate with other reviews. The Agency Official shall 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 303(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 or State law to meet the requirements of the section 106 process. (c) Plan to involve the public. The Agency Official shall begin planning for involving the public in the Section 106 process, relating the steps to be taken to the likely level and nature of public interest in the undertaking and its effects on historic properties. The Agency Official shall consider what individuals and organizations may have an interest in the undertaking and its effects on historic properties and plan to involve them in the Section 106 process as members of the interested public. The Agency Official should give special attention to identifying those members of the interested public who should be consulted as the section 106 process proceeds and involve them as appropriate. (d) Initiate consultation with the State Historic Preservation Officer. The Agency Official shall determine the appropriate State Historic Preservation Officer or Officers to be involved in the section 106 process and initiate consultation. (1) If the State Historic Preservation Officer declines in writing to participate in the Section 106 process or fails to respond in a timely manner at any point in these procedures, the Agency Official shall consult with the Council to complete the Section 106 process without the State Historic Preservation Officer. (2) If more than one State is involved in an undertaking, the involved State Historic Preservation Officers may designate a lead State Historic Preservation Officer to act on behalf of all participating State Historic Preservation Officers in the Section 106 process. (3) Requirements for consultation with the State Historic Preservation Officer should be implemented in a manner appropriate to the agency planning process for the undertaking and the nature and effect of the undertaking on historic properties. A single consultation by the Agency Official with the State Historic Preservation Officer may address multiple steps in the Section 106 process where it is consistent with the purposes of the procedures in this part. (e) Identify consulting parties. The Agency Official shall determine whether there are any local governments or applicants that are entitled to be involved in consultations conducted under this subpart and plan to involve them as appropriate. The Agency Official shall identify the Indian tribes or Native Hawaiian organizations that might attach religious and cultural significance to historic properties in the area of potential effects and plan for their participation in accordance with Sec. 800.12 .