Message #299:
From: AzTeC SW Archaeology SIG
To:   "'Matthias Giessler'" 
Subject: Draft Section 106 Regs in 9/1396 Federal Register Publication (Part IV)
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/

++++++++++------------------------++++++++++

Sec. 800.4  Identification of historic properties.

    (a) Determine scope of identification efforts. At the earliest feasible 
stage in planning an undertaking and coordinated with any steps being taken 
to meet the requirements of the National Environmental Policy Act, the 
Agency Official shall consult with the State Historic Preservation Officer 
and:
    (1) Determine the area of potential effects;
    (2) Review existing information on historic properties within the area 
of potential effects, including any data concerning possible historic 
properties not yet identified; and
    (3) Seek information from individuals and organizations likely to have 
knowledge of, or concerns with, historic properties in the area
and identify issues relating to historic properties.
    (b) Identify historic properties. Based on the information gathered 
under Sec. 800.4(a) and in consultation with the State Historic Preservation 
Officer, the Agency Official shall take the steps necessary to identify 
historic properties within the area of potential
effects.
    (1) Level of effort. The Agency Official, in consultation with the State 
Historic Preservation Officer, shall make a reasonable and good faith effort 
to carry out appropriate identification efforts. The Agency Official shall 
determine the appropriate scope and type of identification efforts, 
including background research, consultation, sample field investigation, and 
field survey, taking into account past planning or research studies and 
results, and based on the magnitude of the undertaking, the nature and 
extent of its potential effects on historic properties and the likely nature 
and location of historic properties within the area of potential effects. 
The Secretary's Standards and Guidelines for Identification provide guidance 
on this subject.
    (2) Phased identification. Where alternative locations are under 
consideration or access to properties is restricted, the Agency Official may 
conduct identification efforts designed to establish the likely presence of 
historic properties within the area of potential effects for each 
alternative through background research, consultation and an appropriate 
level of field investigation, taking into account the number of alternatives 
under consideration and the magnitude of the undertaking and likely effects. 
As specific aspects or location of a preferred alternative are determined, 
the Agency Official shall complete the identification of historic properties 
in accordance with Sec. 800.4(b)(1).
    (3) Consistent with applicable conflict of interest laws, the Agency 
Official may use the services of applicants, consultants, or designees to 
prepare information and analyses under this subpart, but remains legally 
responsible for all findings charged to the Agency Official. If a document 
or study is prepared by a non-Federal party, the Agency Official shall 
evaluate the document prior to its approval and be responsible for its 
content.
    (c) Evaluate historic significance. (1) Apply National Register 
Criteria. In consultation with the State Historic Preservation Officer, 
guided by the Secretary's Standards and Guidelines for Evaluation and with 
consideration for the potential of the proposed undertaking to affect 
identified properties, the Agency Official shall apply the National Register 
Criteria to properties identified within the area of potential effects that 
have not been previously evaluated for National Register eligibility. The 
passage of time, changing perceptions of significance, or
[[Page 48587]]
incomplete prior evaluations may require reevaluation of properties 
previously determined eligible or ineligible.
    (2) Determine whether a property is eligible. If the Agency Official 
determines the criteria are met and the State Historic Preservation Officer 
agrees, the property shall be considered eligible for the National Register 
for Section 106 purposes. If the Agency Official determines the criteria are 
not met and the State Historic Preservation Officer agrees, the property 
shall be considered not eligible. If the Agency Official and the State 
Historic Preservation Officer do not agree, or if the Council or the 
Secretary so request, the Agency Official shall obtain a determination of 
eligibility from the Secretary pursuant to 36 CFR part 63.
    (d) Results of identification and evaluation. (1) No historic properties 
present or affected. If the Agency Official finds that there are no historic 
properties either present or that may be affected by the undertaking, the 
Agency Official shall provide documentation of this finding as set forth in 
Sec. 800.11(d) to the State Historic Preservation Officer. The Agency 
Official shall notify any consulting party and the interested public and 
make the documentation available for public inspection prior to approving 
the undertaking. If the State Historic Preservation Officer does not object 
within 15 days of receipt of an adequately documented finding, this 
completes the Agency Official's responsibilities under section 106 of the 
Act.
    (2) Historic properties affected. If there are historic properties that 
may be affected by the undertaking, the Agency Official shall notify any 
consulting party and the interested public and assess adverse effects in 
accordance with Sec. 800.5.

Sec. 800.5  Assessment of adverse effects.

    (a) Apply criteria of adverse effect. In consultation with the State 
Historic Preservation Officer, the Agency Official shall apply the criteria 
of adverse effect to historic properties within the area of potential 
effects. The Agency Official shall consider any views concerning such 
effects provided by consulting parties, the interested public and the public 
at large.
    (1) Criteria of adverse effect. An undertaking is considered to have an 
adverse effect when it may alter the characteristics of a historic property 
that qualify the property for inclusion in the National Register in a manner 
that would diminish the integrity of the property's location, design, 
setting, materials, workmanship, feeling, or association. Adverse effects 
may include reasonably foreseeable effects caused by the undertaking that 
are later in time or farther removed in distance.
    (2) Examples of adverse effects. Adverse effects on historic properties 
include, but are not limited to:
    (i) Physical destruction, damage, or alteration of all or part of the 
property;
    (ii) Removal of the property from its historic location;
    (iii) Alteration of the character of the property's setting or use when 
that character contributes to the property's qualification for the
National Register;
    (iv) Introduction of visual or audible elements that are out of 
character with the property ;
    (v) Neglect of a property which causes its deterioration; and
    (vi) Transfer, lease, or sale of property out of Federal ownership or 
control.
    (3) Avoidance of adverse effects. The Agency Official, in consultation 
with the State Historic Preservation Officer, may make a finding of no 
adverse effect when the Agency Official modifies the undertaking to avoid 
adverse effects.
    (4) Standard treatment of potential adverse effects. The Agency Official 
may find, in consultation with the State Historic Preservation Officer, that 
certain adverse effects are satisfactorily resolved in accordance with one 
of the following standard treatments:
    (i) The undertaking is limited to maintenance, repair, rehabilitation, 
or restoration of buildings or structures, including hazardous materials 
remediation or modifications for handicapped access, and will be conducted 
in accordance with construction plans and specifications that meet the 
Secretary's Standards for the Treatment of Historic Properties and 
applicable guidelines and that are reviewed by the State Historic 
Preservation Officer prior to implementation;
    (ii) The undertaking is limited to construction or ground disturbance 
that would destroy, damage or alter an archaeological property of value only 
for its contribution to knowledge of the past, and a plan for studying the 
property with archeological methods, collecting important information, and 
disseminating the results to the public, or a plan for preserving the 
property for future study is prepared and implemented in accordance with 
applicable professional standards and guidelines;
    (iii) The undertaking is limited to the transfer, sale or lease of a 
Federal historic property and adequate and legally enforceable restrictions 
or conditions are included to ensure preservation of the property's 
significant historic features;
    (iv) The undertaking is limited to the rehabilitation or replacement of 
a bridge and, in accordance with a State inventory and plan for historic 
bridges approved by the State Historic Preservation Officer, specific 
measures are provided for recordation and marketing, relocation or reuse of 
the bridge; or
    (v) The undertaking meets another standard treatment specified by the 
Council under Sec. 800.15(d).
    (b) State Historic Preservation Officer review. If the Agency Official 
makes either a finding of no adverse effect or that adverse effects can be 
satisfactorily resolved by a standard treatment, the Agency Official shall 
submit the finding with the documentation specified in Sec. 800.11(e) to the 
State Historic Preservation Officer for a 30-day review period.
    (1) Agreement with finding. If the State Historic Preservation Officer 
agrees with the Agency Official's finding, the Agency Official may proceed 
and shall carry out the undertaking in accordance with Sec. 800.5(c)(1).
    (2) Disagreement with finding. If the State Historic Preservation 
Officer disagrees within 30 days of receipt of the finding, the Agency 
Official shall consider the effect adverse. The State Historic Preservation 
Officer shall specify the reasons for disagreeing with the finding. The 
Agency Official may request the Council to review the disagreement and shall 
proceed in accordance with the Council's opinion as to whether the effect is 
adverse.
    (c) Results of assessment. (1) Finding of no adverse effect or 
resolution by standard treatment. The Agency Official shall maintain a 
record of the finding, notify any participating local government or 
applicant and the interested public, and make the record available for 
public review before approving the undertaking. Implementation of the 
undertaking in accordance with the finding as documented completes the 
Agency Official responsibilities under Section 106 of the Act. If the Agency 
Official fails to carry out the undertaking in accordance with the finding, 
the Agency Official shall follow Sec. 800.6.
    (2) Adverse effect found. If an adverse effect is found and not resolved 
by a standard resolution in accordance with this section, the Agency 
Official shall consult further to resolve the adverse effect pursuant to 
Sec. 800.6.

[[Page 48588]]

Sec. 800.6  Resolution of adverse effects.

    (a) Continue consultation. The Agency Official shall consult with the 
State Historic Preservation Officer to develop and evaluate alternatives or 
modifications to the undertaking to avoid or minimize adverse effects on 
historic properties.
    (1) Determine Council involvement. The Agency Official shall determine 
whether to request Council involvement in the consultation and notify the 
Council by providing the documentation specified in Sec. 800.11(f).
    (i) The Agency Official shall request the Council to become involved in 
the consultation in accordance with Sec. 800.6(b)(2):
    (A) When the Agency Official determines that Council involvement will 
facilitate resolution of adverse effects;
    (B) When the undertaking has an adverse effect upon a National Historic 
Landmark or is to be carried out on tribal lands;
    (C) When a Programmatic Agreement under Sec. 800.15(b) is prepared; or
    (D) When the State Historic Preservation Officer, an Indian Tribe, a 
Native Hawaiian organization, a local government or an applicant
requests Council involvement.
    (ii) The Council shall advise the Agency Official of its decision to 
participate within 15 days of receipt of notice. The Council may enter the 
consultation on its own initiative when it determines that Council 
involvement is necessary to ensure that the purposes of section 106 and the 
Act are met.
    (iii) If the criteria in Sec. 800.6(a)(1)(i) are not met or the Council 
does not elect to join the consultation, the Agency Official may complete 
consultation in accordance with Sec. 800.6(b)(1).
    (2) Involve consulting parties and the interested public. The Agency 
Official shall involve consulting parties in the consultation as determined 
under Sec. 800.3. When agreed to by the Agency Official, the State Historic 
Preservation Officer and the Council, if participating, members of the 
interested public may become consulting parties. If the Agency Official and 
the State Historic Preservation Officer do not agree, the Agency Official 
shall request the Council to decide. The Agency Official shall involve any 
member of the interested public that will assume a specific role or 
responsibility in a Memorandum of Agreement.
    (3) Provide documentation. The Agency Official shall make available to 
the State Historic Preservation Officer and other consulting parties the 
documentation specified in Sec. 800.11(f) and such other documentation as 
may be developed during the consultation to resolve adverse effects.
    (4) Involve the public. The Agency Official shall make available 
information to the public and provide an opportunity for members of the 
public to express their views on resolving adverse effects of the 
undertaking. The Agency Official shall use appropriate mechanisms, taking 
into account the magnitude of the undertaking and the nature of its effects 
upon historic properties, to ensure that the full range of the public's 
views is represented in the consultation.
    (b) Resolve adverse effects. (1) Resolution without the Council.
     (i) The Agency Official shall consult with the State Historic 
Preservation Officer and other consulting parties to seek ways to avoid or 
minimize the adverse effects.
    (ii) If during the consultation the Council decides to join the 
consultation, the Agency Official shall continue the consultation in 
accordance with Sec. 800.6(b)(2).
    (iii) If the Agency Official and the State Historic Preservation Officer 
agree on how the adverse effects will be resolved, they shall execute a 
Memorandum of Agreement. The Agency Official shall file a copy of the 
executed Memorandum of Agreement with the Council prior to approving the 
undertaking.
    (iv) If the Agency Official and the State Historic Preservation Officer 
fail to agree on the terms of a Memorandum of Agreement, the Agency Official 
shall request the Council to join the consultation and proceed in accordance 
with Sec. 800.6(b)(2).
    (2) Resolution with Council participation. If the Council decides to 
participate, the Agency Official shall consult with the State Historic 
Preservation Officer, the Council, and other consulting parties to avoid or 
minimize the adverse effects. If the Agency Official, the State Historic 
Preservation Officer, and the Council agree on how the adverse effects will 
be resolved, they shall execute a Memorandum of Agreement.
    (c) Memorandum of Agreement. (1) Signatories. The Agency Official and 
the State Historic Preservation Officer are the signatories to a Memorandum 
of Agreement executed pursuant to Sec. 800.6(b)(1). The Agency Official, the 
State Historic Preservation Officer, and the Council are the signatories to 
a Memorandum of Agreement executed pursuant to Sec. 800.6(b)(2). The 
signatories have sole authority to execute, amend or terminate the 
agreement.
    (2) Concurrence by others. The signatories may agree to invite others to 
concur in the Memorandum of Agreement. The Agency Official shall invite any 
consulting parties to concur.
    (3) Reports on implementation. Where the signatories agree it is 
appropriate, a Memorandum of Agreement shall include a provision for 
monitoring and reporting on its implementation.
    (4) Duration. A Memorandum of Agreement shall include provisions for 
termination and for reconsideration of terms if the undertaking has not been 
implemented within a specified time.
    (5) Legal status. A Memorandum of Agreement executed pursuant to this 
section evidences the Agency Official's compliance with Section 106 and this 
part and shall govern the undertaking and all of its parts. The Agency 
Official shall ensure that the undertaking is carried out in accordance with 
the Memorandum of Agreement.
    (6) Amendments. The signatories to a Memorandum of Agreement may amend 
it. If the Council was not a signatory to the original agreement and the 
signatories execute an amended agreement, the Agency Official shall file it 
with the Council. Failure to agree on amendments leaves the existing 
agreement in effect.
    (7) Termination. If any signatory determines that the terms of a 
Memorandum of Agreement cannot be carried out, the signatories shall consult 
to seek amendment of the agreement. If the agreement is not amended, the 
Agency Official, the State Historic Preservation Officer, or the Council if 
a signatory, may terminate it and the Agency Official shall request the 
comments of the Council under Sec. 800.7(b).