Message #300:
From: AzTeC SW Archaeology SIG
To:   "'Matthias Giessler'" 
Subject: Draft Section 106 Regs in 9/1396 Federal Register Publication (Part V)
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. 800.7  Failure to resolve adverse effects.

    (a) Termination of consultation. After consulting to resolve adverse 
effects pursuant to Sec. 800.6(b)(2), the Agency Official, the State 
Historic Preservation Officer, or the Council may determine that further 
consultation will not be productive and terminate consultation.
    (1) If the Agency Official terminates consultation, the head of the 
agency or an Assistant Secretary or other officer with major department-wide 
or agency-wide responsibilities shall request the Council's comments, 
accompanied by the documentation in Sec. 800.11(h), and notify the State 
Historic Preservation Officer, other consulting parties and the interested 
public of the request.
    (2) If the State Historic Preservation Officer terminates consultation, 
the Agency Official and the Council may execute a Memorandum of Agreement 
without the State Historic Preservation Officer's involvement or either may 
terminate consultation.
[[Page 48589]]
    (3) If the Council terminates consultation, the Council shall notify the 
Agency Official, the State Historic Preservation Officer, other consulting 
parties, and the interested public of the termination and comment under Sec. 
800.7(b).
    (b) Comments by the Council. (1) Preparation. The Council shall prepare 
its comments with an adequate opportunity for the Agency Official, the State 
Historic Preservation Officer, other consulting parties, and the public to 
provide their views. Upon request of the Council, the Agency Official shall 
provide additional existing information concerning the undertaking and 
assist the Council in arranging an onsite inspection and an opportunity for 
public participation.
    (2) Timing. The Council shall transmit its comments within 45 days of 
receipt of a request under Sec. 800.7(a)(1) or termination by the Council 
under Sec. 800.7(a)(3), unless otherwise agreed to by the Agency Official.
    (3) Transmittal. The Council shall provide its comments to the head of 
the agency requesting comment with copies to the Agency Official, the State 
Historic Preservation Officer, other consulting parties, the interested 
public, and others as appropriate.
    (4) Response to Council comment. The head of the agency shall consider 
the Council's comments in reaching a final decision on the undertaking. The 
head of the agency may not delegate his or her responsibilities pursuant to 
this paragraph. The head of the agency shall document the decision by:
    (i) Preparing a record of the decision and the rationale for the 
decision, evidencing consideration of the Council's comments and providing 
it to the Council prior to approving the undertaking;
    (ii) Providing a copy of the record of decision to the State Historic 
Preservation Officer, other consulting parties, and the interested public; 
and
    (iii) Notifying the public and making the record available for public 
inspection.

Sec. 800.8  Coordination with the National Environmental Policy Act.

    (a) General coordination. Federal agencies are encouraged to coordinate 
compliance with section 106 of the Act and the procedures in this part with 
any steps taken to meet the requirements of the National Environmental 
Policy Act (42 U.S.C. 4231 et seq.)(NEPA).
    (b) Actions categorically excluded under NEPA. If a project, activity or 
program is categorically excluded from NEPA review under an agency's NEPA 
procedures, the Agency Official shall determine if it qualifies as an 
undertaking requiring review under section 106 of the Act pursuant to Sec. 
800.3(a). If so, the Agency Official shall comply with the procedures in 
this subpart.
    (c) Use of the NEPA process for section 106 of the Act purposes. An 
Agency Official may use the process and documentation for the preparation of 
an Environmental Impact Statement or an Environmental Assessment (EA) to 
comply with section 106 of the Act in lieu of the procedures set forth in 
Secs. 800.3 through 800.6 if the following conditions are met.
    (1) Preparation of the Draft Environmental Impact Statement (DEIS) or EA 
meets the following standards:
    (i) The Agency Official has notified the Council, the State Historic 
Preservation Officer and the interested public during the preparation of the 
DEIS or EA that this section is being used to comply with section 106 of the 
Act;
    (ii) Historic properties are identified and effects of the undertaking 
are evaluated in a manner consistent with the criteria and
procedures of Secs. 800.3 through 800.5 and the documentation standards of 
Sec. 800.11;
    (iii) The Agency Official has consulted with the State Historic 
Preservation Officer, other consulting parties, and the Council where 
appropriate as required by Secs. 800.3 through 800.6 and Sec. 800.12 when 
identifying historic properties, evaluating potential adverse effects, and 
considering measures to avoid or minimize adverse effects;
    (iv) The Agency Official has involved the interested public and the 
public in accordance with the agency's NEPA procedures; and
     (v) Alternatives and measures that would avoid or minimize any adverse 
effects of the undertaking on historic properties are described in the DEIS 
or EA.
    (2) The Agency Official shall submit the DEIS or EA to the Council, the 
State Historic Preservation Officer, other consulting parties, and the 
interested public when circulating it for public comment. The Agency 
Official shall indicate that the DEIS or EA is intended to meet the 
requirements of section 106 of the Act under this section.
    (3) If within the time allowed for public comment on the DEIS or EA the 
Council objects to how the Agency Official has taken into account the 
effects of the undertaking on historic properties, the Agency Official shall 
comply with Sec. 800.6(b)(2). If the Agency Official receives an objection 
from the State Historic Preservation Officer, a consulting party, or a 
member of the interested public within the time allowed for public comment 
on the document, the Agency Official shall provide the objection to the 
Council. Within 30 days, the Council shall notify the Agency Official either 
that it agrees with the objection, in which case the Agency Official shall 
comply with Sec. 800.6(b)(2), or that it disagrees with the objection, in 
which case the Agency Official shall continue to follow this section.
    (4) The Agency Official shall incorporate into the Final Environmental 
Impact Statement (FEIS) or final document resulting from the  EA measures to 
avoid or minimize adverse effects on historic properties. Adoption of the 
proposed measures through a commitment, binding on the agency or the 
applicant for Federal assistance or permission, as appropriate, to carry 
them out and embodied in a Record of Decision (ROD) following or 
accompanying the FEIS or final document resulting from the EA satisfies the 
Agency Official's responsibilities under section 106 of the Act and the 
procedures in this part.
    (5) If the undertaking is subsequently modified in a manner that alters 
the treatment of effects on historic properties or if the Agency Official 
fails to carry out the measures to avoid or minimize adverse effects as 
specified in the ROD, the Agency Official shall notify the State Historic 
Preservation Officer, any other consulting party, and the interested public 
and consult with the Council. The Council may either require the Agency 
Official to follow Sec. 800.6 or provide comments to the Agency Official 
within 30 days of the request for consultation.

Sec. 800.9  Council review of section 106 of the Act compliance.

    (a) Assessment of Agency Official findings for individual undertakings. 
(1) Basis for request. If the Council has not participated in the review of 
an undertaking under the procedures in this subpart, a State Historic 
Preservation Officer, a consulting party or a member of the interested 
public that has participated in the section 106 of the Act process may 
request the Council to assess whether an Agency Official has complied with 
the procedures in this subpart when making a determination whether a 
property is eligible for the National Register under Sec. 800.4(c)(2), a 
finding that there are no historic properties present or affected under Sec. 
800.4(d), or a finding of no adverse effect or resolution by standard 
treatment under Sec. 800.5(c). The request shall be in writing, state 
specific reasons
[[Page 48590]]
why the finding is not consistent with the provisions of the procedures in 
this subpart and include such documentation as the requestor may have 
available to support the request.
    (2) Timing. The request must be made prior to the approval of the 
expenditure of funds or the issuance of any license, permit or other 
approval by the Agency Official.
    (3) Council review of the finding. (i) The Council shall decide within 
10 days of receipt of the request whether it states reasons that, if true, 
would warrant the Council determining that the finding was inconsistent with 
the procedures in this subpart.
    (ii) If the Council decides that the request states reasons which would 
warrant the Council determining that the finding was inconsistent with the 
procedures in this subpart, the Council shall review the finding on its 
merits. The Council shall notify the Agency Official, provide a copy of the 
request and any accompanying supporting documentation and invite the views 
of the Agency Official on the merits of the request. The Council shall 
complete its assessment of the finding within 30 days of notifying the 
Agency Official and may request the Agency Official to refrain from taking 
final action on the undertaking during that period. The Council shall 
provide its views to the requestor, the Agency Official, the State Historic 
Preservation Officer, consulting parties and other members of the interested 
public, as appropriate.
    (iii) If the Council decides that the request does not state reasons 
that would warrant the Council determining that the finding was inconsistent 
with these procedures, the Council shall decline to assess the finding and 
notify the requestor.
    (4) Questions of eligibility. When the finding concerns the eligibility 
of a property for the National Register, the Council shall refer the  matter 
to the Secretary.
    (b) Agency foreclosure of the Council's opportunity to comment. Where an 
Agency Official has failed to complete the requirements of section 106 of 
the Act in accordance with the procedures in this part prior to the approval 
of an undertaking, the Council's opportunity to comment may be foreclosed. 
The Council may review a case to determine whether a foreclosure has 
occurred. The Council shall notify the Agency Official and allow 30 days for 
the Agency Official to provide information as to whether foreclosure has 
occurred. If the Council determines foreclosure has occurred, the Chairman 
of the Council shall transmit the determination to the head of the agency.
    (c) Intentional adverse effects by applicants. (1) Agency 
responsibility. Section 110(k) of the Act prohibits a Federal agency from 
granting a loan, loan guarantee, permit, license or other assistance to an 
applicant who, with intent to avoid the requirements of section 106 of the 
Act, has intentionally significantly adversely affected a historic property 
to which the grant would relate, or having legal power to prevent it, has 
allowed such significant adverse effect to occur, unless the agency, after 
consultation with the Council, determines that circumstances justify 
granting such assistance despite the adverse effect created or permitted by 
the applicant. Guidance issued by the Secretary pursuant to Section 110 of 
the Act governs its implementation.
    (2) Compliance with section 106 of the Act. If an Agency Official, after 
consulting with the Council, determines to grant the assistance, the Agency 
Official shall comply with the procedures in this subpart to take into 
account the effects of the undertaking on any other historic properties.
    (d) Evaluation of Section 106 operations. The Council shall evaluate the 
operation of the Section 106 process by periodic reviews of how participants 
have fulfilled their legal responsibilities and how effectively the outcomes 
reached advance the purposes of the Act.     (1) Information from 
participants. Section 203 of the Act authorizes the Council to obtain 
information from Federal agencies necessary to conduct oversight and 
evaluation of the Section 106 process. The Agency Official shall maintain 
documentation of actions taken to comply with section 106 of the Act that 
meet the standards of Sec. 800.11 and applicable agency procedures. The 
Agency Official shall make such documentation available to the Council upon 
request. The Council may request available information and documentation 
from other participants in the Section 106 process.
    (2) Peer review. The Council may use professional peer review to assist 
in any evaluation.
    (3) Improving the operation of section 106 of the Act. Based upon any 
evaluation of the Section 106 process, the Council may make recommendations 
to participants, the heads of Federal agencies, and the Secretary of actions 
to improve the efficiency and effectiveness of the process. Where the 
Council determines that an Agency Official, a State Historic Preservation 
Officer or a Tribal Preservation Officer who has assumed the role of the 
State Historic Preservation Officer has failed to properly carry out the 
responsibilities assigned under the procedures in this part, the Council may 
participate in individual case reviews in a manner and for a period that it 
determines is necessary to improve performance or correct deficiencies.

Sec. 800.10  Special requirements for protecting National Historic 
Landmarks.

    (a) Agency official's responsibilities. Section 110(f) of the Act 
requires that the Agency Official, to the maximum extent possible, undertake 
such planning and actions as may be necessary to minimize harm to any 
National Historic Landmark that may be directly and adversely affected by an 
undertaking. When commenting on such undertakings, the Council shall use the 
process set forth in Secs. 800.6 through 800.7 and give special 
consideration to protecting National Historic Landmarks in accordance with 
this section.
    (b) Resolution of adverse effects. Any consultation to resolve adverse 
effects conducted under Sec. 800.6 shall include the Council, if the Council 
chooses to participate.
    (c) Involvement of the Secretary. The Agency Official shall notify the 
Secretary of consultations involving National Historic Landmarks and invite 
the Secretary to participate in the consultation. The Council may request a 
report from the Secretary under Section 213 of the Act to assist in the 
consultation.
    (d) Report of outcome. The Council shall report the outcome of the 
Section 106 process, including its comments or any Memoranda of Agreement, 
to the Secretary and the head of the agency responsible for the undertaking.

Sec. 800.11  Documentation standards.

    (a) Adequacy of documentation. The Agency Official shall ensure that any 
determination, finding or agreement under the procedures in this subpart is 
supported by sufficient documentation to enable reviewing parties to 
understand its factual and logical basis. If the Council, or the State 
Historic Preservation Officer in those situations where the Council is not 
involved, determines the applicable documentation standards are not met, the 
time period specified in the relevant section of this subpart shall be 
suspended until adequate documentation is submitted.
    (b) Format. The Agency Official may use documentation prepared to meet 
the needs of other authorities to fulfill the requirements of the procedures 
in this subpart, provided that resulting
[[Page 48591]]
documentation meets the standards of this section.
    (c) Confidentiality. Section 304 of the Act requires an Agency Official 
to withhold from public disclosure information about the location, 
character, or ownership of a historic property when disclosure may cause a 
significant invasion of privacy, risk harm to the historic resource, or 
impede the use of a traditional religious site by practitioners.
    (d) Finding of no historic properties present or affected.
Documentation shall include:
    (1) A description of the undertaking and its area of potential effects, 
including photographs, maps, and drawings, as necessary;
    (2) A description of the efforts used to identify historic properties; 
and
    (3) The basis for determining that no historic properties are present or 
affected.
    (e) Finding of no adverse effect or standard treatment of potential 
adverse effects. Documentation shall include:
    (1) A description of the undertaking and its area of potential effects, 
including photographs, maps, and drawings, as necessary;
    (2) A description of historic properties that may be affected by the 
undertaking, including appropriate information on the nature of
their significance;
    (3) A description of the efforts used to identify historic properties;
    (4) A description of why the criteria of adverse effect were found 
inapplicable, or how potential adverse effects would be resolved; and
    (5) Any views provided by consulting parties, the interested public and 
the public.
    (f) Finding of adverse effect. Documentation shall include:
    (1) A description of the undertaking and its area of potential effects, 
including photographs, maps, and drawings, as necessary;
    (2) A description of the affected historic properties, with information 
on the characteristics that qualify them for the National
Register; and
    (3) A description of the undertaking's adverse effects on historic 
properties.
    (g) Memorandum of Agreement. When a memorandum is filed with the Council 
, the documentation shall include an evaluation of any measures considered 
to avoid or minimize the undertaking's adverse effects and a summary of the 
views of consulting parties, the interested public and the public.
    (h) Requests for comment when consultation is terminated. Documentation 
shall include that specified in paragraph (f) of this
section and:
    (1) A description and evaluation of any alternatives or mitigation 
measures that the Agency Official proposes to resolve the undertaking's 
adverse effects;
    (2) A description of any reasonable alternatives or mitigation measures 
that were considered but not chosen, and the reasons for their rejection;
    (3) The planning schedule for the undertaking; and
    (4) Copies or summaries of any views submitted to the Agency Official 
concerning the effects of the undertaking on historic properties and 
alternatives to reduce or avoid those effects.

Sec. 800.12  Consultation with Indian tribes and Native Hawaiian 
organizations.

    (a) Objectives. Consultation shall be designed to:
    (1) Provide the Indian tribe or Native Hawaiian organization a 
reasonable opportunity to identify its concerns about historic properties, 
advise on the identification of historic properties, including associated 
traditional religious and cultural importance, and articulate its views on 
the undertaking's effects on such properties.
    (2) Involve designated representatives of the Indian tribe's or Native 
Hawaiian organization's governing body and those traditional cultural 
authorities and other tribal or organizational members identified by the 
designated representatives.
    (3) Commence early in the planning process, in order to identify 
relevant preservation issues and resolve concerns about the confidentiality 
of information on historic properties and to allow adequate time for 
discussion of relevant preservation issues. Upon
request, the Agency Official, after consultation with the Secretary, shall 
withhold information about historic properties in accordance with section 
304 of the Act.
    (b) Undertakings on tribal lands. Consultation with Indian tribes on 
tribal lands requires special consideration, as set forth in this paragraph, 
of the sovereignty of Indian tribes over such lands. Where an Indian tribe 
has not assumed the responsibilities of the State Historic Preservation 
Officer under section 101(d)(2) of the Act, the Agency Official shall 
involve the Indian tribe with jurisdiction over the tribal lands as a 
consulting party in accordance with this subsection.
    (1) Identification of historic properties. When carrying out the 
provisions of Sec. 800.4, the Agency Official shall consult with the Indian 
tribe when determining the area of potential effects, locating historic 
properties and evaluating the historic significance of identified 
properties. The Indian tribe shall be consulted when reaching any 
determination of eligibility under Sec. 800.4(c)(2) and its timely objection 
to an Agency Official's determination shall require the Agency Official to 
obtain a determination of eligibility from the Secretary pursuant to 36 CFR 
part 63. The Agency Official shall provide documentation of any finding that 
there are no historic properties present or affected to the Indian tribe. If 
the Indian tribe objects within 15 days of receipt of an adequately 
documented finding, the Agency Official shall consider that historic 
properties are affected by the undertaking.
    (2) Assessment of adverse effects. When carrying out the provisions of 
Sec. 800.5, the Agency Official shall consult with the Indian tribe when 
applying the criteria of adverse effect to historic properties within the 
area of potential effects, making findings of avoidance of adverse effect 
and determining satisfactory resolution of adverse effects. The Agency 
Official shall provide a copy of any findings of no adverse effect or that 
adverse effects have been satisfactorily resolved by a standard treatment to 
the Indian tribe when submitting them to the State Historic Preservation 
Officer for review. If the Indian tribe objects to the finding within 30 
days of receipt and specifies the reasons for disagreeing, the effect shall 
be considered adverse, provided that the Agency Official may request the 
Council to review the disagreement and proceed in accordance with the 
Council's opinion as to whether the effect is adverse.
    (3) Resolution of adverse effects. When carrying out the 
responsibilities of Sec. 800.6, the Agency Official shall consult with the 
Indian tribe along with the State Historic Preservation Officer when 
determining participants in the consultation and resolving adverse effects. 
The Indian tribe shall be a signatory to any agreement reached under Sec. 
800.6.
    (4) Failure to resolve adverse effects. When an Agency Official follows 
the provisions of Sec. 800.7, the Indian tribe shall have the same 
opportunities to terminate consultation and participate in the Council 
comment process as the State Historic Preservation Officer.
    (c) Undertakings not on tribal lands. Where the Agency Official has 
identified an Indian tribe or Native Hawaiian organization that attaches 
religious or cultural significance to historic properties within the area of 
potential effects under Sec. 800.3(e), including one that does not reside in 
the
[[Page 48592]]
vicinity of the undertaking, the Agency Official shall involve them in 
accordance with this paragraph.
    (1) Identification of historic properties. When carrying out the 
provisions of Sec. 800.4, the Agency Official shall consult with the Indian 
tribe or Native Hawaiian organization when determining the area of potential 
effects, locating historic properties that may possess religious or cultural 
significance and applying the National Register Criteria to such properties 
when identified.
    (2) Assessment of adverse effects. When carrying out the provisions of 
Sec. 800.5, the Agency Official shall consult with the Indian tribe or 
Native Hawaiian organization when applying the criteria of adverse effect to 
historic properties that may possess religious or cultural significance 
within the area of potential effects, making findings of avoidance of 
adverse effect to such properties and determining satisfactory treatment of 
adverse effects to such properties.
    (3) Resolution of adverse effects. When carrying out the 
responsibilities of Sec. 800.6, the Agency Official shall consult with the 
Indian tribe or Native Hawaiian organization when determining Council 
involvement and resolving adverse effects with or without the Council. The 
governing body of the Indian tribe or Native Hawaiian organization shall be 
invited to concur in any Memorandum of Agreement reached when it concerns 
properties that possess religious or cultural significance.
    (4) Failure to resolve adverse effects. When the Agency Official follows 
the provisions of Sec. 800.7, the Indian tribe or Native Hawaiian 
organization shall have the same opportunities to provide views and receive 
information in the Council comment process as the State Historic 
Preservation Officer.
    (d) Emergency situations and post-review discoveries. (1) Tribal lands. 
When an agency complies with the provisions of Sec. 800.13 or Sec. 800.14 
for an undertaking on tribal lands, the Indian tribe shall have the same 
opportunities to participate as the State Historic Preservation Officer. The 
Agency Official shall also coordinate requirements under Sec. 800.13 or Sec. 
800.14 with any applicable actions taken to meet the requirements of the 
Native American Graves Protection and Repatriation Act.
    (2) Non-tribal lands. Where the Agency Official has identified an Indian 
tribe or Native Hawaiian organization that attaches religious or cultural 
significance to historic properties within the area of potential effects 
under Sec. 800.3(e) and subsequently complies with the provisions of Sec. 
800.13 or Sec. 800.14, the Agency Official shall consult with them in 
carrying out the provisions of those sections.

Sec. 800.13  Emergency situations.

    (a) Agency procedures. The Agency Official, in consultation with the 
appropriate State Historic Preservation Officer or Officers and the Council, 
is encouraged to develop procedures for taking historic properties into 
account during operations which respond to a disaster or emergency declared 
by the President, the Agency Official or the governor of a State or which 
respond to other immediate threats to life or property. If approved by the 
Council, the procedures shall govern the agency's historic preservation 
responsibilities during any disaster or emergency in lieu of Secs. 800.3 
through 800.7.
    (b) Alternatives to agency procedures. In the event an Agency Official 
proposes an emergency undertaking as an essential and immediate response to 
a disaster or emergency declared by the President, the Agency Official or 
the governor of a State, and the agency has not developed procedures 
pursuant to Sec. 800.13(a), the Agency Official may comply with section 106 
of the Act by:
    (1) Following a programmatic agreement developed pursuant to Sec. 
800.15(b) that contains specific provisions for dealing with historic 
properties in emergency situations; or
    (2) Notifying the Council and the appropriate State Historic 
Preservation Officer prior to the undertaking and affording them an 
opportunity to comment within seven days of notification. If the Agency 
Official determines that circumstances do not permit seven days for comment, 
the Agency Official shall notify the Council and the State Historic 
Preservation Officer and invite any comments.
    (c) Local governments responsible for Section 106 compliance. When a 
local government is statutorily delegated responsibility for Section 106 
compliance, Sec. 800.13 (a) and (b) also apply to an imminent threat to 
public health or safety as a result of a natural disaster or emergency 
declared by a local government's chief executive officer or legislative 
body, provided that if the Council or State Historic Preservation Officer 
objects within seven days, the Agency Official shall comply with Secs. 800.3 
through 800.7.
    (d) Applicability. This section applies only to undertakings that will 
be implemented within 30 days after the disaster or emergency has been 
formally declared by the appropriate authority. An agency may request an 
extension of the period of applicability from the Council prior to the 
expiration of the 30 days. Immediate rescue and salvage operations conducted 
to preserve life or property are exempt from the provisions of section 106 
of the Act and this subpart.