36 CFR PART 800 -- PROTECTION OF HISTORIC PROPERTIES
(incorporating amendments effective August 5, 2004)
Subpart A -- Purposes and Participants
800.1 Purposes.
800.2 Participants in the Section 106 process.
Subpart B -- The Section 106 Process
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 Emergency situations.
800.13 Post-review discoveries.
Subpart C -- Program Alternatives
800.14 Federal agency program alternatives.
800.15 Tribal, State and Local ProgramAlternatives. (Reserved)
800.16 Definitions.
Appendix A – Criteria for Councilinvolvement in reviewing individualsection 106 cases
Authority: 16 U.S.C. 470s.
Subpart A-Purposes and Participants
§ 800.1 Purposes.
(a) Purposes of the section 106process.
Section 106 of the NationalHistoric Preservation Act requiresFederal agencies to take into account theeffects of their undertakings on historicproperties and afford the Council areasonable opportunity to comment onsuch undertakings. The procedures inthis part define how Federal agenciesmeet these statutory responsibilities.The section 106 process seeks toaccommodate historic preservationconcerns with the needs of Federalundertakings through consultation among the agency official and otherparties with an interest in the effects of the undertaking on historic properties,commencing at the early stages of project planning. The goal ofconsultation is to identify historicproperties potentially affected by theundertaking, assess its effects and seekways to avoid, minimize or mitigate anyadverse effects on historic properties.
(b) Relation to other provisions of theact.
Section 106 is related to otherprovisions of the act designed to furtherthe national policy of historic preservation. References to thoseprovisions are included in this part toidentify circumstances where they mayaffect actions taken to meet section 106requirements. Such provisions mayhave their own implementingregulations or guidelines and are notintended to be implemented by theprocedures in this part except insofar asthey relate to the section 106 process.Guidelines, policies and proceduresissued by other agencies, including theSecretary, have been cited in this partfor ease of access and are notincorporated by reference.
(c) Timing.
The agency official mustcomplete the section 106 process “priorto the approval of the expenditure ofany Federal funds on the undertaking orprior to the issuance of any license.” This does not prohibit agency officialfrom conducting or authorizingnondestructive project planningactivities before completing compliancewith section 106, provided that suchactions do not restrict the subsequentconsideration of alternatives to avoid,minimize or mitigate the undertaking's adverse effects on historic properties.The agency official shall ensure that thesection 106 process is initiated early inthe undertaking's planning, so that abroad range of alternatives may beconsidered during the planning processor the undertaking.
§ 800.2 Participants in the Section 106process.
(a) Agency official.
It is the statutoryobligation of the Federal agency to fulfill requirements of section 106 and toensure that an agency official withjurisdiction over an undertaking takes legal and financial responsibility forsection 106 compliance in accordancewith subpart B of this part. The agencyofficial has approval authority for theundertaking and can commit the Federalagency to take appropriate action for aspecific undertaking as a result ofsection 106 compliance. For thepurposes of subpart C of this part, theagency official has the authority tocommit the Federal agency to anyobligation it may assume in theimplementation of a programalternative. The agency official may bea State, local, or tribal governmentofficial who has been delegated legal responsibility for compliance withsection 106 in accordance with Federallaw.
(1) Professional standards.
Section112(a)(1)(A) of the act requires each Federal agency responsible for theprotection of historic resources,including archeological resources, toensure that all actions taken byemployees or contractors of the agencyshall meet professional standards underregulations developed by the Secretary.
(2) Lead Federal agency.
If morethan one Federal agency is involved inan undertaking, some or all the agenciesmay designate a lead Federal agency,which shall identify the appropriateofficial to serve as the agency officialwho shall act on their behalf, fulfillingtheir collective responsibilities undersection 106. Those Federal agenciesthat do not designate a lead Federal agency remain individually responsiblefor their compliance with this part.
(3) Use of contractors.
Consistentwith applicable conflict of interest laws,the agency official may use the servicesof applicants, consultants, or designeesto prepare information, analyses andrecommendations under this part. Theagency official remains legallyresponsible for all required findings anddeterminations. If a document or studyis prepared by a non-Federal party, the agency official is responsible for ensuring that its content meets applicable standards and guidelines.
(4) Consultation.
The agency officialshall involve the consulting partiesdescribed in paragraph (c) of thissection in findings and determinationsmade during the section 106 process.The agency official should planconsultations appropriate to the scale ofthe undertaking and the scope ofFederal involvement and coordinatedwith other requirements of otherstatutes, as applicable, such as the National Environmental Policy Act, theNative American Graves Protection andRepatriation Act, the American IndianReligious Freedom Act, theArcheological Resources Protection Act and agency-specific legislation. TheCouncil encourages the agency officialto use to the extent possible existingagency procedures and mechanisms tofulfill the consultation requirements ofthis part.
(b) Council.
The Council issuesregulations to implement section 106,provides guidance and advice on theapplication of the procedures in thispart, and generally oversees theoperation of the section 106 process.The Council also consults with andcomments to agency officials onindividual undertakings and programsthat affect historic properties.
(1) Council entry into the section 106process.
When the Council determinesthat its involvement is necessary toensure that the purposes of section 106and the act are met, the Council mayenter the section 106 process. Criteriaguiding Council decisions to enter the section 106 process are found inappendix A to this part. The Councilwill document that the criteria havebeen met and notify the parties to thesection 106 process as required by thispart.
(2) Council assistance.
Participantsin the section 106 process may seekadvice, guidance and assistance fromthe Council on the application of thispart to specific undertakings, including the resolution of disagreements,whether or not the Council is formallyinvolved in the review of theundertaking. If questions ariseregarding the conduct of the section 106process, participants are encouraged toobtain the Council's advice oncompleting the process.
(c) Consulting parties.
The followingparties have consultative roles in thesection 106 process.
(1) State historic preservation officer.
(i) The State historic preservationofficer (SHPO) reflects the interests ofthe State and its citizens in thepreservation of their cultural heritage.In accordance with section 101(b)(3) of the act, the SHPO advises and assistsFederal agencies in carrying out theirsection 106 responsibilities andcooperates with such agencies, localgovernments and organizations andindividuals to ensure that historicproperties are taking into considerationat all levels of planning anddevelopment.
(ii) If an Indian tribe has assumedthe functions of the SHPO in the section106 process for undertakings on triballands, the SHPO shall participate as aconsulting party if the undertaking takesplace on tribal lands but affects historicproperties off tribal lands, if requestedin accordance with § 800.3(c)(1), or ifthe Indian tribe agrees to include theSHPO pursuant to § 800.3(f)(3).
(2) Indian tribes and NativeHawaiian organizations.
(i) Consultation on tribal lands.
(A) Tribal historic preservationofficer.
For a tribe that has assumed theresponsibilities of the SHPO for section106 on tribal lands under section101(d)(2) of the act, the tribal historicpreservation officer (THPO) appointed or designated in accordance with the actis the official representative for the purposes of section 106. The agencyofficial shall consult with the THPO inlieu of the SHPO regarding undertakingsoccurring on or affecting historicproperties on tribal lands.
(B) Tribes that have not assumedSHPO functions.
When an Indian tribehas not assumed the responsibilities ofthe SHPO for section 106 on tribal landsunder section 101(d)(2) of the act, theagency official shall consult with arepresentative designated by suchIndian tribe in addition to the SHPOregarding undertakings occurring on oraffecting historic properties on its triballands. Such Indian tribes have the samerights of consultation and concurrencethat the THPOs are given throughoutsubpart B of this part, except that suchconsultations shall be in addition to andon the same basis as consultation withthe SHPO.
(ii) Consultation on historicproperties of significance to Indian tribes and Native Hawaiian organizations.
Section 101(d)(6)(B) of the act requiresthe agency official to consult with anyIndian tribe or Native Hawaiianorganization that attaches religious andcultural significance to historicproperties that may be affected by anundertaking. This requirement appliesregardless of the location of the historicproperty. Such Indian tribe or NativeHawaiian organization shall be aconsulting party.
(A) The agency official shall ensurethat consultation in the section 106process provides the Indian tribe orNative Hawaiian organization areasonable opportunity to identify itsconcerns about historic properties,advise on the identification andevaluation of historic properties,including those of traditional religiousand cultural importance, articulate itsviews on the undertaking's effects onsuch properties, and participate in theresolution of adverse effects. It is theresponsibility of the agency official tomake a reasonable and good faith effortto identify Indian tribes and NativeHawaiian organizations that shall beconsulted in the section 106 process.Consultation should commence early inthe planning process, in order toidentify and discuss relevantpreservation issues and resolveconcerns about the confidentiality ofinformation on historic properties.
(B) The Federal Government has aunique legal relationship with Indiantribes set forth in the Constitution of theUnited States, treaties, statutes, andcourt decisions. Consultation withIndian tribes should be conducted in asensitive manner respectful of tribalsovereignty. Nothing in this part alters,amends, repeals, interprets or modifiestribal sovereignty, any treaty rights, orother rights of an Indian tribe, orpreempts, modifies or limits the exerciseof any such rights.
(C) Consultation with an Indiantribe must recognize the government-togovernmentrelationship between theFederal Government and Indian tribes.The agency official shall consult withrepresentatives designated or identifiedby the tribal government or thegoverning body of a Native Hawaiianorganization. Consultation with Indiantribes and Native Hawaiianorganizations should be conducted in amanner sensitive to the concerns andneeds of the Indian tribe or NativeHawaiian organization.
(D) When Indian tribes and NativeHawaiian organizations attach religiousand cultural significance to historicproperties off tribal lands, section101(d)(6)(B) of the act requires Federalagencies to consult with such Indiantribes and Native Hawaiianorganizations in the section 106 process.Federal agencies should be aware thatfrequently historic properties ofreligious and cultural significance are located on ancestral, aboriginal, orceded lands of Indian tribes and NativeHawaiian organizations and shouldconsider that when complying with theprocedures in this part.
(E) An Indian tribe or a NativeHawaiian organization may enter intoan agreement with an agency official that specifies how they will carry outresponsibilities under this part, including concerns over theconfidentiality of information. Anagreement may cover all aspects of tribalparticipation in the section 106 process,provided that no modification may bemade in the roles of other parties to thesection 106 process without theirconsent. An agreement may grant theIndian tribe or Native Hawaiianorganization additional rights toparticipate or concur in agencydecisions in the section 106 processbeyond those specified in subpart B of this part. The agency official shallprovide a copy of any such agreement tothe Council and the appropriate SHPOs.
(F) An Indian tribe that has notassumed the responsibilities of theSHPO for section 106 on tribal lands under section 101(d)(2) of the act maynotify the agency official in writing thatit is waiving its rights under §800.6(c)(1) to execute a memorandum ofagreement.
(3) Representatives of localgovernments.
A representative of a local government with jurisdiction over thearea in which the effects of anundertaking may occur is entitled toparticipate as a consulting party. Underother provisions of Federal law, thelocal government may be authorized toact as the agency official for purposes ofsection 106.
(4) Applicants for Federal assistance,permits, licenses and other approvals.
An applicant for Federal assistance orfor a Federal permit, license or otherapproval is entitled to participate as aconsulting party as defined in this part.The agency official may authorize anapplicant or group of applicants toinitiate consultation with theSHPO/THPO and others, but remainslegally responsible for all findings anddeterminations charged to the agencyofficial. The agency official shall notifythe SHPO/THPO when an applicant ogroup of applicants is so authorized. AFederal agency may authorize allapplicants in a specific programpursuant to this section by providingnotice to all SHPO/THPOs. Federalagencies that provide authorizations to applicants remain responsible for theirgovernment to government relationshipswith Indian tribes.
(5) Additional consulting parties.
Certain individuals and organizationswith a demonstrated interest in theundertaking may participate asconsulting parties due to the nature oftheir legal or economic relation to theundertaking or affected properties, ortheir concern with the undertaking'seffects on historic properties.
(d) The public.
(1) Nature of involvement.
The viewsof the public are essential to informedFederal decisionmaking in the section106 process. The agency official shallseek and consider the views of thepublic in a manner that reflects thenature and complexity of theundertaking and its effects on historicproperties, the likely interest of thepublic in the effects on historicproperties, confidentiality concerns ofprivate individuals and businesses, andthe relationship of the Federalinvolvement to the undertaking.
(2) Providing notice and information.
The agency official must, except whereappropriate to protect confidentialityconcerns of affected parties, provide thepublic with information about anundertaking and its effects on historicproperties and seek public commentand input. Members of the public mayalso provide views on their owninitiative for the agency official toconsider in decisionmaking.
(3) Use of agency procedures.
Theagency official may use the agency'sprocedures for public involvementunder the National EnvironmentalPolicy Act or other programrequirements in lieu of publicinvolvement requirements in subpart Bof this part, if they provide adequateopportunities for public involvementconsistent with this subpart.
Subpart B-The section 106 Process
§ 800.3 Initiation of the section 106process.
(a) Establish undertaking.
Theagency official shall determine whetherthe proposed Federal action is anundertaking as defined in § 800.16(y)and, if so, whether it is a type of activitythat has the potential to cause effects onhistoric properties.
(1) No potential to cause effects.
Ifthe undertaking is a type of activity thatdoes not have the potential to causeeffects on historic properties, assumingsuch historic properties were present,the agency official has no furtherobligations under section 106 or thispart.
(2) Program alternatives.
If thereview of the undertaking is governedby a Federal agency program alternativeestablished under § 800.14 or aprogrammatic agreement in existencebefore January 11, 2001, the agencyofficial shall follow the programalternative.
(b) Coordinate with other reviews.
The agency official should coordinatethe steps of the section 106 process, asappropriate, with the overall planningschedule for the undertaking and withany reviews required under otherauthorities such as the National Environmental Policy Act, the NativeAmerican Graves Protection and Repatriation Act, the American IndianReligious Freedom Act, theArcheological Resources Protection Actand agency-specific legislation, such assection 4(f) of the Department ofTransportation Act. Where consistentwith the procedures in this subpart, theagency official may use informationdeveloped for other reviews underFederal, State or tribal law to meet therequirements of section 106.
(c) Identify the appropriate SHPOand/or THPO.
As part of its initialplanning, the agency official shalldetermine the appropriate SHPO orSHPOs to be involved in the section 106process. The agency official shall alsodetermine whether the undertaking mayoccur on or affect historic properties onany tribal lands and, if so, whether aTHPO has assumed the duties of theSHPO. The agency official shall theninitiate consultation with theappropriate officer or officers.
(1) Tribal assumption of SHPOresponsibilities.
Where an Indian tribehas assumed the section 106responsibilities of the SHPO on triballands pursuant to section 101(d)(2) ofthe act, consultation for undertakingsoccurring on tribal land or for effects ontribal land is with the THPO for theIndian tribe in lieu of the SHPO.Section 101(d)(2)(D)(iii) of the act authorizes owners of properties on tribal lands which are neither owned by amember of the tribe nor held in trust bythe Secretary for the benefit of the tribeto request the SHPO to participate in thesection 106 process in addition to theTHPO.
(2) Undertakings involving more thanone State.
If more than one State isinvolved in an undertaking, theinvolved SHPOs may agree to designatea lead SHPO to act on their behalf in thesection 106 process, including takingactions that would conclude the section106 process under this subpart.
(3) Conducting consultation.
Theagency official should consult with theSHPO/THPO in a manner appropriate tothe agency planning process for theundertaking and to the nature of the undertaking and its effects on historicproperties.
(4) Failure of the SHPO/THPO torespond.
If the SHPO/THPO fails torespond within 30 days of receipt of arequest for review of a finding ordetermination, the agency official mayeither proceed to the next step in theprocess based on the finding ordetermination or consult with theCouncil in lieu of the SHPO/THPO. Ifthe SHPO/THPO re-enters the section106 process, the agency official shallcontinue the consultation without beingrequired to reconsider previous findingor determinations.
(d) Consultation on tribal lands.
Where the Indian tribe has not assumedthe responsibilities of the SHPO ontribal lands, consultation with theIndian tribe regarding undertakingsoccurring on such tribe's lands or effectson such tribal lands shall be in additionto and on the same basis as consultationwith the SHPO. If the SHPO haswithdrawn from the process, the agencyofficial may complete the section 106process with the Indian tribe and theCouncil, as appropriate. An Indian tribemay enter into an agreement with aSHPO or SHPOs specifying the SHPO'sparticipation in the section 106 processor undertakings occurring on oraffecting historic properties on triballands.
(e) Plan to involve the public.
Inconsultation with the SHPO/THPO, the agency official shall plan for involving the public in the section 106 process.The agency official shall identify theappropriate points for seeking publicinput and for notifying the public ofproposed actions, consistent with §800.2(d).
(f) Identify other consulting parties.
In consultation with the SHPO/THPO,the agency official shall identify another parties entitled to be consultingparties and invite them to participate assuch in the section 106 process. The agency official may invite others toparticipate as consulting parties as thesection 106 process moves forward.