Message #301:
From: AzTeC SW Archaeology SIG
To:   "'Matthias Giessler'" 
Subject: Draft Section 106 Regs in 9/1396 Federal Register Publication (Part VI)
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


Sec. 800.14  Post-review discoveries.

    (a) Planning for discoveries. When the Agency Official's identification 
efforts in accordance with Sec. 800.4 indicate that historic properties are 
likely to be discovered during implementation of an undertaking, the Agency 
Official shall include in any finding of no adverse effect, standard 
treatment of potential adverse effects or Memorandum of Agreement a process 
to resolve any adverse effects upon such properties. Actions in conformance 
with the process satisfy the Agency Official's responsibilities under 
section 106 of the Act and this subpart.
    (b) Unplanned for discoveries. If historic properties are discovered or 
unanticipated effects on historic properties found after the Agency Official 
has completed the Section 106 process without establishing a process under 
Sec. 800.14(a), the Agency Official shall make reasonable efforts to avoid 
or minimize adverse effects to such properties and:
    (1) If the Agency Official has not approved the undertaking, consult to 
resolve adverse effects pursuant to Sec. 800.6;
    (2) If the Agency Official determines in consultation with the State 
Historic Preservation Officer that the affected property is significant 
solely for its scientific, prehistoric, historic or archeological data, 
comply with the Archeological and Historic Preservation Act, 16 U.S.C. 469 
(a)-(c) instead of the procedures in this part, provided that the Agency 
Official shall consult with the State Historic Preservation Officer on the 
actions proposed and provide the Council with a report on the actions after 
they are completed; or
    (3) If the Agency Official has approved the undertaking, the Agency 
Official shall:
    (i) Determine actions that the Agency Official can take to resolve 
adverse effects;
    (ii) Notify the State Historic Preservation Officer and the Council 
within 48 hours of the discovery;
    (iii) Describe the actions proposed to resolve the adverse effects;
    (iv) Take into account any recommendations provided by the Council and 
the State Historic Preservation Officer within 48 hours of the
    (v) Carry out appropriate actions; and
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    (vi) Provide the Council, the State Historic Preservation Officer and 
the interested public a report of the actions when completed.
    (c) Eligibility of properties. When a newly discovered historic property 
has not previously been included in or determined eligible for the National 
Register, the Agency Official, in consultation with the State Historic 
Preservation officer, may assume the property to be eligible for purposes of 
section 106 of the Act.

Subpart C--Program Alternatives

Sec. 800.15  Federal agency program alternatives.

    (a) Alternate procedures. A Federal agency may develop procedures to 
implement Section 106 and substitute them for the comparable provisions of 
subpart B if they are found consistent with the Council's regulations in 
accordance with section 110(a)(2)(E) of the Act.
    (1) Development of procedures. The Federal agency shall consult with the 
Council in the development of alternate procedures and publish notice of the 
availability of proposed alternate procedures in the Federal Register.
    (2) Council review. The Federal agency shall submit the final alternate 
procedure to the Council for review.
    (i) If the Council finds the regulations to be consistent with this 
part, it shall notify the Federal agency and the Federal agency may adopt 
them as alternate procedures.
    (ii) If the Council does not find the procedures consistent, the Council 
shall request the Secretary to make a final determination as to consistency. 
If the Secretary determines the procedures to be consistent, the Federal 
agency may adopt them as alternate procedures.
    (3) Notice. The Federal agency shall publish notice of final alternate 
procedures in the Federal Register.
    (4) Legal effect. Alternate procedures adopted pursuant to this section 
substitute for the Council's regulations for the purposes of the agency's 
compliance with section 106 of the Act, except that, where an Indian tribe 
has entered into an agreement with the Council to substitute tribal historic 
preservation regulations for the Council's procedures, the agency shall 
follow those regulations in lieu of the agency's procedures regarding 
undertakings on tribal lands.
    (b) Programmatic Agreements. The Council and the Agency Official may 
negotiate a Programmatic Agreement to govern the implementation of a 
particular program or certain complex project situations that justify 
departure from the normal Section 106 process.
    (1) Programmatic Agreements for agency programs.
     (i) The consultation shall involve State Historic Preservation Officers 
or the National Conference of State Historic Preservation Officers, Indian 
tribes and Native Hawaiian organizations, other Federal agencies, and other 
members of the interested public, as appropriate.
    (ii) The Agency Official shall arrange for public participation 
appropriate to the subject matter and the scope of the program.
    (iii) The Programmatic Agreement shall take effect when executed by the 
Council and the Agency Official. The President of the National Conference of 
State Historic Preservation Officers shall be invited to sign any agreement 
when the Conference has participated in the consultation developing it. 
Compliance with the procedures established by an approved Programmatic 
Agreement satisfies the agency's Section 106 responsibilities for all 
individual undertakings covered by the agreement until it expires or is 
terminated by the agency or the Council.
    (iv) The Agency Official shall publish notice of an approved 
Programmatic Agreement in the Federal Register and make any agency 
procedures implementing the agreement readily available to the Council, 
State Historic Preservation Officers, and the public.
    (v) If the Council determines that the terms of a Programmatic Agreement 
are not being carried out, or if such an agreement is terminated, the Agency 
Official shall comply with subpart B with regard to individual undertakings 
covered by the agreement.
    (2) Programmatic Agreements for complex or multiple undertakings.
     (i) A Programmatic Agreement is a Memorandum of Agreement that 
establishes a process for dealing with the potential adverse effects of 
complex projects or multiple undertakings carried out over an extended 
period of time. A Programmatic Agreement shall be used:
    (A) When effects on historic properties are similar and repetitive or 
are multi-State or regional in scope;
    (B) When effects on historic properties cannot be fully determined prior 
to approval;
    (C) When nonfederal parties are delegated major decisionmaking 
responsibilities; or
    (D) Where routine management activities are undertaken at Federal 
installations, facilities, or other land-management units.
    (ii) Such a Programmatic Agreement shall be developed in the same manner 
as other Memoranda of Agreement under Sec. 800.6, provided that if 
consultation pertains to an activity involving multiple undertakings and the 
parties fail to reach agreement, then the Agency Official shall comply with 
the provisions of subpart B of this part for each individual undertaking.
    (c) Exempted categories. (1) Criteria for establishing. An Agency 
Official may propose a program or category of agency undertakings that may 
be exempted from review under the provisions of subpart B, if the program or 
category meets the following criteria:
    (i) The actions within the program or category would otherwise qualify 
as ``undertakings'' as defined in Sec. 800.17;
    (ii) The potential effects of the undertakings within the program or 
category upon historic properties are foreseeable and not likely to
be adverse; and
    (iii) Exemption of the program or category is consistent with the 
purposes of the Act.
    (2) Council review of proposed exemptions. The Council shall review a 
request for an exemption that is supported by documentation describing the 
program or category for which the exemption is sought and demonstrating that 
the criteria of Sec. 800.15(c)(1) have been met. Unless it requests further 
information, the Council shall approve or reject the proposed exemption 
within 30 days of receipt. The Council decision shall be based on whether 
the exemption is consistent with the purposes of the Act, taking into 
consideration the magnitude of the exempted undertaking or program and the 
likelihood of impairment of historic properties in accordance with section 
214 of the Act.
    (3) Legal consequences. Any undertaking that falls within the exempted 
program or category approved by the Council shall require no further review 
pursuant to subpart B, unless the Agency Official or the Council determines 
that there are circumstances under which the normally excluded undertaking 
should be reviewed under subpart B of this part.
    (d) Standard treatments. (1) Establishment. The Council may establish 
standard methods for the treatment of a category of historic properties or a 
category of effects on historic properties to satisfy the requirements of 
subpart B of this part. The Council shall specify such treatments, 
conditions for their application and any procedural modifications attendant 
to their use in a notice published in the Federal Register.
    (2) Legal consequence. An Agency Official may elect to follow a standard 
treatment to meet Section 106
[[Page 48594]]
responsibilities for a qualifying undertaking in accordance with Sec. 800.5.
    (e) Program comments. An Agency Official may request the Council to 
comment on a category of routine or repetitive undertakings in lieu of 
conducting individual reviews under Secs. 800.4 through 800.7. The Agency 
Official shall identify the category of undertakings, specify the likely 
effects on historic properties, specify the steps the Agency Official will 
take to ensure that the effects are taken into account and the time period 
for which the comment is requested. Unless the Council requests additional 
documentation or notifies the Agency Official that it will decline to 
comment, the Council shall comment to the Agency Official within 45 days of 
the request. The Agency Official shall take into account the comments of the 
Council in carrying out the undertakings within the category and provide 
appropriate notice of the Council's comments and the Agency Official's 
action in response. If the Council objects to the proposed treatment or 
declines to comment, the Agency Official shall continue to comply with the 
requirements of Secs. 800.4 through 800.7 for the individual undertakings. 
The Council may provide program comments at its own initiative.

Sec. 800.16  State, Tribal and Local Program Alternatives. (Reserved)

Sec. 800.17  Definitions.

    Act means the National Historic Preservation Act of 1966 (16 U.S.C. 
    Agency means agency as defined in 5 U.S.C. 551.
    Approval of the expenditure of funds means any final agency decision 
authorizing or permitting the expenditure of Federal funds or financial 
assistance on an undertaking, including any agency decision that may be 
subject to an administrative appeal or rehearing procedure.
    Area of potential effects means the geographic area or areas within 
which an undertaking could cause adverse effects on historic
    Comment means the findings and recommendations of the Council formally 
provided in writing to the head of a Federal agency under section 106 of the 
    Consultation means the process of seeking and considering the views of 
other participants in a manner appropriate to the particular participants 
and the specific steps in the Section 106 process.
    Council means the Advisory Council on Historic Preservation or a Council 
member or employee designated to act for the Council.
    Effect means alteration to the characteristics of a historic property 
that qualified it for inclusion in or eligibility for the National Register.
    Head of the agency means the chief official of the Federal agency 
responsible for all aspects of the agency's actions. If a State, local or 
tribal government has been delegated responsibility for Section 106 
compliance, the head of that unit of government shall be considered the head 
of the agency.
    Historic property means any prehistoric or historic district, site, 
building, structure, or object included in, or eligible for inclusion in, 
the National Register of Historic Places maintained by the Secretary of the 
Interior. This term includes artifacts, records, and remains that are 
related to and located within such properties. The term includes properties 
of traditional religious and cultural importance to an Indian tribe or 
Native Hawaiian organization that meet the National Register criteria. The 
term ``eligible for inclusion in the National Register'' includes both 
properties formally determined as such in accordance with regulations of the 
Secretary of the Interior and all other properties that meet the National 
Register criteria.
    Indian tribe means an Indian tribe, band, nation, or other organized 
group or community, including a Native village, Regional Corporation or 
Village Corporation, as those terms are defined in section 3 of the Alaska 
Native Claims Settlement Act (43 U.S.C. 1602), which is recognized as 
eligible for the special programs and services provided by the United States 
to Indians because of their status as Indians.
    Local government means a city, county, parish, township, municipality, 
borough, or other general purpose political subdivision of a  State.
    Memorandum of Agreement means the document that records the terms and 
conditions agreed upon to resolve the adverse effects of an undertaking upon 
historic properties.
    National Historic Landmark means a historic property that the Secretary 
of the Interior has designated a National Historic Landmark.
    National Register means the National Register of Historic Places 
maintained by the Secretary of the Interior.
    National Register Criteria means the criteria established by the 
Secretary of the Interior for use in evaluating the eligibility of 
properties for the National Register (36 CFR part 60).
    Native Hawaiian organization means any organization which serves and 
represents the interests of Native Hawaiians; has as a primary and stated 
purpose the provision of services to Native Hawaiians; and has demonstrated 
expertise in aspects of historic preservation that are significant to Native 
Hawaiians. ``Native Hawaiian'' means any individual who is a descendant of 
the aboriginal people who, prior to 1778, occupied and exercised sovereignty 
in the area that now constitutes the State of Hawaii.
    Programmatic Agreement means a document that records the terms and 
conditions agreed upon to resolve the potential adverse effects of a Federal 
agency program or other situations in accordance with Sec. 800.15.
    Secretary means the Secretary of the Interior acting through the 
Director of the National Park Service except where otherwise specified.
    State Historic Preservation Officer means the official appointed or 
designated pursuant to section 101(b)(1) of the Act to administer the State 
historic preservation program or a representative designated to act for the 
State Historic Preservation Officer.
    Traditional cultural authority means an individual or a group of 
individuals in an Indian tribe, Native Hawaiian organization, or other 
social or ethnic group who is recognized by members of the group as 
knowledgeable in the group's traditional history, cultural practices and 
living human values.
 Tribal lands means all lands within the exterior boundaries of any Indian 
reservation and all dependent Indian communities.
    Tribal Preservation Officer means the tribal official appointed by the 
tribe's chief governing authority or as designated by a tribal ordinance or 
preservation program as provided for and approved under the provisions of 
section 101 of the Act.
    Undertaking means a project, activity, or program funded in whole or in 
part under the direct or indirect jurisdiction of a Federal agency, 
including those carried out by or on behalf of a Federal agency; those 
financed in whole or in part with Federal financial assistance; those 
requiring a Federal permit, license or approval; and those subject to State 
or local regulation administered pursuant to a delegation or approval by a 
Federal agency.

[FR Doc. 96-23532 Filed 9-12-96; 8:45 am]