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 .