Section 106 Regulations Section-by-Section Questions and Answers
These questions and answers have been prepared by ACHP to provide users of the Section 106 process with further guidance on interpreting the provisions of the new regulations.
You are invited to submit additional regs questions via e-mail (firstname.lastname@example.org)
Is there any difference between a “finding” and a “determination” throughout the regulations?
Technically, yes. However, the distinction between the terms has no real operational effect; the relevant provisions of the regulations govern what the effective meaning of the term is in specific circumstances. Findings are usually factual assessments by a party, usually an agency, and are often subject to review by other parties to the Section 106 process. Determinations are usually formal resolutions of questions, such as National Register eligibility or adverse effect. Note also that the regulations usually specify a time period for review of findings or determinations. This is different than the exchange of views that occurs when the Agency Official consults with various parties during the Section 106 process.
How can ACHP deal with a pattern of non-compliance or problematic agency implementation of the Section 106 process?
ACHP has several options available. ACHP can contact policy-level officials in an agency, Office of Management and Budget, or Department of Justice. The latter case may arise when agency actions present what ACHP believes to be a violation of Section 106 or seem to be leading to litigation. ACHP can also interject itself into the agency's Section 106 compliance per Section 800.9(d)(2).
How should confidentiality issues be dealt with if, for example, the agency does not wish to disclose sensitive real estate transactions or other issues?
Confidentiality should be dealt with as prescribed in the Freedom of Information Act, Section 304 of the National Historic Preservation Act (NHPA), and any relevant agency-specific laws or procedures. Agencies must balance the legitimate concerns for privacy with the public's right to know about the undertaking and its effects upon historic properties. Some steps agencies may take include leaving out exact locations or terms of a transaction, providing information at a level of detail that permits review but does not compromise confidentiality, and limiting access to sensitive information just to the consulting parties. When questions arise over the propriety of an agency's actions in this regard, the matter should be brought to the attention of ACHP under Section 800.9(a).
Whenever a section of the regulations refers to 30-day review, when does the clock start?
The clock starts when the document is received in the office of the State Historic Preservation Officer/Tribal Historic Preservation Officer* (SHPO/THPO) or ACHP office, as appropriate.
Are the “days” in the regulatory time limits “working days” or “calendar days”?
All references in the regulations are to calendar days.
Section 800.1: Purposes
Does §800.1(b) language to the effect that guidelines, policies and procedures, such as the Secretary's Standards, are not incorporated by reference have any impact on the use of those Standards in the criteria of adverse effect?
No. It simply means that referencing the Standards in ACHP's regulations does not give them a legal status they otherwise lack. They are referenced in ACHP's regulations to set a standard for evaluating adverse effects in a particular situation; an undertaking that does not meet that standard cannot be considered to have no adverse effect under the regulation.
What does the timing reference in §800.1(c) mean when it says, “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....”?
It means that if the agency does not start following the prescribed steps of the Section 106 process early enough to consider a reasonable range of options, ACHP might say it failed to meet this standard and that further alternatives must be considered to adequately comply with 106. If agency planning is too far advanced before meaningful 106 review commences and commitments to a course of action are set, ACHP may determine that the agency has foreclosed ACHP's opportunity to comment.
Section 800.2: Participants in the Section 106 Process
What does it mean for an Agency Official to “take legal and financial responsibility” for Section 106 compliance when applicants are involved (§800.2(a))?
This underlines the ultimate Federal agency responsibility to meet the requirements of Section 106 and make sure Section 106 activities are funded somehow. The language neither compels nor prohibits an agency from passing on to an applicant the cost of preparing necessary studies and analyses. That is a matter of individual agency authority and practice. However, the statement does mean that the agency or the applicant cannot unilaterally impose the financial burden for preparing studies, analyses or reports on a SHPO/THPO*.
What does “delegated legal responsibility...in accordance with law” mean (§800.2(a))?
It means that an agency cannot simply determine that it wishes to delegate its legal obligation to comply with Section 106. There has to be a clear statutory basis for a Federal agency delegation of its legal responsibility to a non-Federal party. An example of this rare authority is found in certain programs of the Department of Housing and Urban Development (HUD), such as the Community Development Block Grant program, where the enabling legislation specifically authorizes HUD to legally delegate certain Federal environmental duties, including Section 106 compliance, to a local government. Similarly, in 2005, the Secretary of Transportation gained the statutory authority to delegate responsibility for environmental review, including Section 106, to States that apply for this authority and meet the necessary program requirements. To date, only the State of California has been assigned responsibility for Section 106 review for all Federal-aid Highway projects. Several other states have been assigned responsibility for a portion of the federal program. Other agency delegations of Federal responsibilities, such as 638 contracts between Bureau of Indian Affairs and Indian tribes, may be valid for certain matters, but cannot transfer the ultimate legal obligation of the Federal agency to comply with Section 106 absent specific statutory authority.
Does Section 112(a)(1)(A) of NHPA regarding professional qualifications of employees and contractors apply to Indian tribes (§800.2(a)(1))?
No, according to the Department of the Interior, under whose jurisdiction this falls.
How can the professional qualifications of Section 112(a)(1)(A) of NHPA be enforced?
Probably the only way Section 112 qualifications and standards can be enforced is to show that the work product was substantively inadequate. If that is attributable to the lack of professional expertise, the agency should have to remedy the situation. However, there is currently no mechanism to directly enforce the professional standards and it would be hard to challenge an otherwise acceptable product on the grounds that Section 112 standards were not met in its preparation.
How does the “lead agency” arrangement (§800.2(a)(2)) get documented? Does it have to be in writing or communicated to anyone in particular?
The regulations require neither documentation nor notification when agencies decide on lead Federal agency arrangements. Ideally, the environmental record prepared for the National Environmental Policy Act (NEPA) would contain some formal recognition of the decision. It would certainly be a prudent practice for agencies to make a formal decision for Section 106 purposes and convey that to consulting parties and the public.
When agencies use applicants, consultants or designees to prepare studies and the like, what does “consistent with applicable conflict of interest laws” mean (§800.2(a)(3))?
It means that agencies must avoid actions that would run afoul of their own conflict of interest rules. An example might be where an Agency Official hires a consulting firm run by his or her spouse to undertake identification surveys as a basis of Section 106 compliance for an undertaking under the Agency Official's jurisdiction. Another example might be using a consulting firm that is financially associated with the project applicant or the project engineering or construction firm.
What happens if a consulting party, including the SHPO/THPO*, fails to respond within 30 days to an agency request for consultation (§800.2(a)(4))?
Unlike situations where the regulations specify a 30-day review period for certain findings and determinations, there is no formal “clock” on consultation. Federal agencies are expected to provide reasonable time for other consulting parties to respond to requests for consultation. Likewise, each consulting party is expected to be responsive and to act in a timely fashion. If an Agency Official believes that a consulting party is being unresponsive, the Agency Official should make a reasonable effort to get the party to respond and then document that effort before moving ahead in the process. Failure of a consulting party to provide views does not mean that the Agency Official can assume that party's concurrence with a particular view or position, but does not prohibit the Agency Official from moving forward in the Section 106 review.
How will ACHP document and notify parties of its involvement (§800.2(b)(1))?
ACHP would formally communicate (by letter or e-mail) to appropriate parties, conveying its decision to get involved (or not to get involved) and identifying the applicable criteria from Appendix A and how they are met.
How does ACHP provide its “advice” per §800.2(b)(2)?
Advice would be provided in a manner appropriate to the issue at hand and the nature of the request. Much of the time this would take the form of written communication (letter or e-mail) from ACHP or possibly just a simple phone call. Usually this will be handled by ACHP's professional staff but some situations, such as major issues of policy, might warrant formal ACHP member involvement.
Does a property of traditional cultural and religious importance requiring agency consultation with tribes under Section 101(d)(6) of the Act have to be determined eligible for the National Register or meet the National Register criteria?
Yes. NHPA only requires consultation with Indian tribes and Native Hawaiian organizations regarding those properties of traditional religious and cultural importance that are listed on or eligible for the National Register. However, agencies should be aware that Sections 800.4(a) and (b) require them to consult with Indian tribes and Native Hawaiian organizations that might attach religious and cultural significance to a property when the agency carries out the identification and National Register evaluation of potential historic properties. Likewise, Executive Order 13007, the American Indian Religious Freedom Act, or other authorities may impose obligations, independent of Section 106 and NHPA, with regard to Indian sacred sites that do not meet the National Register Criteria. Agencies should review their own internal policies in that regard.
When there is no Tribal Historic Preservation Officer certified by the National Park Service under Section 101(d)(2) of the NHPA, who represents the tribe in consultation for an undertaking on tribal land, including signing an MOA on behalf of the tribe?
Tribal participation in the Section 106 process is conducted through the tribe's official governmental structure. The formal representation, including designation of the tribal signatory for the tribe, is determined by the tribe, in accordance with tribal law, internal structure and governing procedures. Other tribal members who wish to participate in the Section 106 process must do so as members of the public and may seek to become consulting parties with the consent of the Agency Official.
How is an agency-tribal agreement under §800.2(c)(2)(ii)(E) reached and documented? What about SHPO-tribal agreements under §800.3(d)?
There is no set procedure for reaching such agreements, so there are no formal procedural requirements. These agreements should be put in writing and made available to the public, particularly those who may be involved in Section 106 proceedings affected by the agreement. Note that the regulations require that any modification of the rights of other participants in the Section 106 process, such as an affected local government, be consented to by that party. That means an agency-tribal agreement should be shared with the SHPO and applicants, and a SHPO-tribal agreement should be made known to agencies that conduct activities that may affect the tribe's lands. Copies should also be provided to ACHP.
If a State or local government or agency asserts it has a legal delegation of authority for assuming the role of the Federal agency in the Section 106 process (§800.2(c)(4)) and ACHP or another party disagrees, how is this resolved?
A delegation must be authorized in Federal law. Currently, valid delegations exist only under certain programs of the Department of Housing and Urban Development and the U.S. Department of Transportation. If there is a dispute over the validity of a delegation, it should be referred to ACHP per Section 800.9(a). ACHP will attempt to resolve the issue with the Federal agency responsible for the delegation. If, in the final analysis, the Federal agency and ACHP disagree, ACHP will provide its views to the agency. The ultimate arbiter of any unresolved disagreement would be the Federal courts.
Who, and how, does the Agency Official notify when authorizing an applicant, or group of applicants, to initiate consultation (800.2(c)(4))?
The Agency Official must notify the SHPO/THPO*. This should be done in written (or e-mail) form, clearly identifying the applicant, or group of applicants, and the scope of consultation that the Agency Official is authorizing them to conduct. The authorization must be made by the Agency Official for the undertaking, not a subordinate employee. Note that the authority to initiate consultation does not extend to making actual determinations, such as determining the area of potential effects or who should be consulting parties. The applicant(s) may offer suggestions to the Agency Official, but the latter must make the determination.
What are the minimum standards for public involvement (§800.2(d))?
At a minimum, the Agency Official has to provide an opportunity for the public to examine the results of the agency's effort to identify historic properties, evaluate their significance and assess the undertaking's effects upon them. When adverse effects are found, the Agency Official must also make information available to the public about the undertaking, its effects on historic properties and alternatives to resolve the adverse effects, and must provide the public an opportunity to express their views on resolving adverse effects. The precise method of meeting these standards is left up to the Agency Official and may be guided by other applicable agency public involvement procedures. The agency can adjust the level and method based on the circumstances of the undertaking, as provided for in Sections 800.2(d) and 800.6(a)(4).
What is the minimum public notice and information standard (§800.2(d)(2))?
At a minimum, public notice should be designed to effectively inform the public about the nature of the undertaking, its effects and the public's likely interest in it. As for information, the documentation standards of Section 800.11 set requirements for the record at various steps in the process. These materials should be available to the public, unless constrained by legitimate confidentiality concerns. Other than Section 800.11's documentation standards, there is no special prescribed public notice and information standard for Section 106. Efforts to inform the public for other planning and environmental review purposes should be a guide to adequate efforts to meet Section 106 needs.
Section 800.3: Initiation of the Section 106 Process
What constitutes a “Federal” action requiring Section 106 compliance (800.3(a))?
There must be some Federal involvement in an undertaking to trigger Section 106. This may be Federal funding, non-financial assistance or any form of Federal approval. The statutory definition embraces all Federal, federally-assisted or federally-licensed undertakings. However, the regulations limit further procedural obligations to an undertaking that is a type of activity that has the potential to affect historic properties. For example, Federal Social Security payments or student loans are types of activities that do not have that potential and are therefore not subject to Section 106.
When an Agency Official determines whether an undertaking is a type of activity that has the potential to affect historic properties (§800.3(a)(1)), does this mean that the undertaking in question is evaluated for the potential to affect specific properties?
No. An agency must look at the nature of the undertaking when judging whether it has the potential to affect historic properties, and not at whether the specific undertaking has effects on specific historic properties. The presence of historic properties must be assumed at this stage. For example, grants for libraries to acquire books do not have the potential to affect historic properties; grants for "meals-on-wheels" programs, however, do, because the money may be used for providing kitchen facilities, the construction of which has the potential to affect historic properties. If a question arises about an agency improperly using this provision, it should be brought to ACHP's attention under Section 800.9(a).
How do agencies know if their information developed for other statutory reviews is “consistent” with the Section 106 procedures (§800.3(b))? What if the other documentation or review procedures are inconsistent in some way, according to some other party?
The regulations do not explicitly define “consistent” but do set standards that must be met. For example, if an agency has gathered information on a property for another review process upon which it intends to base an eligibility determination, but the information does not adequately describe or assess the historic significance of the property, then the information is not “consistent,” regardless of how it was developed. Likewise, if the process of obtaining the information failed to meet the consultative requirements of the Section 106 process, it may also call into question the resulting information. If there is concern about the consistency of the documentation or the process of obtaining it, the matter should be referred to ACHP under Section 800.9(a).
What is the purpose of the provision that allows property owners on tribal lands to request SHPO participation in addition to the THPO (§800.3(c)(1))?
The provision, following the express language of Section 101(d)(2)(D)(iii) of the Act, provides that a non-tribal property owner who owns lands within the exterior boundaries of a reservation can request the SHPO to participate in a Section 106 consultation even when the tribe has assumed the role of the SHPO. It is designed to provide an opportunity for a property owner, whose interests in historic preservation may not necessarily be represented by the THPO, to include the SHPO in the consultation.
How does “lead SHPO” get memorialized (§800.3(c)(2))?
Like a lead Federal agency arrangement, there is no set process for doing this. There should be a clear written statement of the arrangement and it should be made available to the Federal agency and all other consulting parties.
Are there any constraints on an Agency Official “expediting consultation” (§800.3(g))?
Yes. First, the Agency Official must obtain the concurrence of the SHPO/THPO* to compress multiple steps of the process. Unilateral alteration of time periods set forth in the regulations is not permitted. Second, the expedited process must still provide the public, as well as the consulting parties, an adequate opportunity to participate as prescribed in the public participation standards of Section 800.2(d). If a party or a member of the public feels that regulatory provisions are not being met, as with other procedural disagreements, the situation should be brought to the attention of ACHP. ACHP will provide its views to all parties. If the problem persists, ACHP may opt to enter the consultation.
What happens if the agency believes that combining certain steps in Section 106 review is “appropriate to the agency planning process” and the SHPO/THPO* disagrees (§800.3(c)(3))?
If the Federal agency and the SHPO/THPO* disagree over how consultation is to be conducted or what is “appropriate to the agency planning process,” the matter should be referred to ACHP. ACHP will provide its views to all parties. If the problem persists, ACHP may opt to enter the consultation.
What happens if the SHPO/THPO* doesn't respond to request for review and then wants to re-enter the Section 106 process later (§800.3(c)(4))?
The SHPO/THPO* can rejoin the Section 106 process at any time. However, the SHPO/THPO* cannot require the Agency Official to reopen determinations that have already been made in the SHPO/THPO* absence. Nevertheless, the Agency Official may decide that the information subsequently introduced by the SHPO/THPO* warrants a change in a previous determination and may seek the SHPO/THPO*'s concurrence in the revised determination.
How are “other consulting parties” to be identified and involved (§800.3(f))?
The objective of this provision is to bring other consulting parties into the process at an early point. This is particularly important in the case of local governments with jurisdiction over the area where effects may occur and Indian tribes or Native Hawaiian organizations that may subsequently be entitled to participate as consulting parties because they attach religious and cultural significance to affected historic properties. The Agency Official should consult with the SHPO/THPO* to identify those additional parties who meet the regulatory criteria. The Agency Official should make a “reasonable and good faith effort” to identify Indian tribes and Native Hawaiian organizations that might attach religious and cultural significance to historic properties that may be affected by the undertaking.
While Section 800.3(f) requires that this be done at the initiation of the review, the Agency Official should also be sensitive to the need to involve additional consulting parties at later stages in the process, as potential project impacts become better understood and the interests of other parties become clearer. The objective is to ensure that the Federal agency has adequately consulted with those who have significant interests in historic preservation issues. Doing this early is in everyone's best interest, to avoid having problems emerge later in the Section 106 process.
What does “adequate opportunity” for consulting parties and the public to express their views mean—is there a minimum standard (§800.3(g))? How does that work with “expediting consultation,” and if agreement is reached that expediting consultation is appropriate, can that later be reversed if the SHPO/THPO* has second thoughts or someone raises objections?
There is no minimum standard—beyond an “adequate opportunity”—specifically prescribed in the regulations. However, as noted previously, the agency must afford the public the opportunity to get adequate information about the undertaking and its historic preservation aspects (affected properties, nature of effects and proposed resolution of adverse effects) in the Section 106 process. These minimum needs are not compromised by agreements expediting consultation. If there is a subsequent question about the adequacy of public involvement, ACHP will look to what actually was provided for the public.
If the agency and the SHPO/THPO* agreed but ACHP finds the result deficient, ACHP will make that view known to the agency and expect the agency to correct the shortcoming. A simple change of heart by the SHPO/THPO* is not sufficient to require the agency to revert to the normal process, if the basic needs of public involvement are being met. However, the agency should be sensitive to the SHPO/THPO*'s views and honor them if good reason exists for departing from the agreed-upon expedited process.
Section 800.4: Identification of Historic Properties
How does an Agency Official “document” the area of potential effects (APE) in accordance with §800.4(a)(1)?
Section 800.11 sets a general standard requiring that a determination, such as the APE, be “supported by sufficient documentation to enable any reviewing parties to understand its basis. ”The specific provisions of Section 800.11 require, “as necessary, ”photographs, maps and drawings. This suggests that the Agency Official should use appropriate graphic materials to describe the APE, so that ACHP, the SHPO/THPO*, another consulting party or a member of the public could readily comprehend its scope.
Is there a minimum or basic standard for what constitutes a “reasonable and good faith effort” to identify historic properties (§800.4(b)(1), (2))? How is this adjusted according to the degree of Federal involvement or other factors?
There is no fixed minimum standard for this term. Note, though, that the fundamental obligation of a Federal agency is stated in the first paragraph of Section 800.4(b): “the Agency Official shall take the steps necessary to identify historic properties within the area of potential effects.” This sets a fairly clear performance standard that the Federal agency must meet. How the agency fulfills this obligation is by making a “reasonable and good faith effort,” which by its nature will vary depending upon the circumstances of the undertaking. The regulations acknowledge this and provide guidance on what is an appropriate level of effort.
Section 800.4(b)(1) states that the Agency Official must consider “past planning, research and studies, the magnitude and nature of the undertaking and the degree of Federal involvement, the nature and extent of potential effects on historic properties, and the likely nature and location of historic properties within the area of potential effects.” These factors are to be read together; one cannot be singled out to justify a lesser or greater obligation. The outcome of the equation should be a reasonable response that acknowledges all of the factors cited.
The agency should carry out an identification effort that is “reasonable” for the undertaking in question and that has been designed and is carried out in “good faith,” that is, an honest effort to meet the objectives of Section 106. Note also that the Federal agency is obligated to consult with the SHPO/THPO* (and Indian tribes and Native Hawaiian organizations that might attach religious and cultural significance to historic properties within the area of potential effects) when carrying out these identification efforts.
What happens if there is disagreement between a SHPO and a THPO* on National Register eligibility (§800.4(c)(2))?
It depends on the location of the property. If it is on tribal lands, the concurrence of both the SHPO (unless the THPO* has formally assumed the SHPO's role) and the THPO* is required for an agency's determination of eligibility (DOE) or ineligibility to stand. If either disagrees, the Agency Official is obligated to seek a formal DOE. For properties off tribal land, if an Indian tribe or Native Hawaiian organization disagree regarding an eligibility determination made by an agency and the SHPO, then the objecting party would have to ask ACHP to request the Agency Official to seek a formal eligibility determination. ACHP has the discretion not to make such request.
Can a property of traditional religious and cultural significance to tribes or Native Hawaiian organizations be determined eligible for the National Register?
Yes. Section 101(d)(6)(A) of NHPA states, “Properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization may be determined eligible for inclusion on the National Register.” This language was intended to lay to rest any questions that such properties could qualify for the National Register. Several National Register criteria (36 C.F.R. Part 63) might be the basis for an eligibility determination.
Criterion (a) addresses properties “associated with events that have made a significant contribution to the broad patterns of our history.” A mountain, a lake or another geological feature may figure prominently in a tribal belief system as a place of creation or entry into the world. Another example could be a traditional vision quest site or the source of plant materials important to tribal culture and practices. Criterion (b) addresses properties associated with the lives of persons significant in the past. This could encompass sites that have close association with past tribal leaders or other important cultural figures. Finally, criterion (c) covers properties that embody distinctive characteristics of a type, period or method of construction, or high artistic value. Ancient village sites, such as pueblos or cliff dwellings in the Southwest or mound complexes in the Midwest, could certainly qualify under this criterion.
It is important to note that significance based on religious and cultural importance to an Indian tribe or Native Hawaiian organization could be sufficient to meet National Register eligibility requirements, even though a particular property may meet more than one criterion and its significance derive from other reasons as well.
Does there have to be conclusive evaluation against the National Register criteria with a formal agreement on eligibility before it can be determined that historic properties will not be affected (§800.4(d)(1))?
Usually, there would need to be clear agreement on the attributes of eligible properties, based on the application of the National Register criteria, before a determination regarding effect could be made. The documentation for the determination should contain a written record of the agreement, although it need not always be as formal as an exchange of correspondence. However, there may be circumstances where the nature of the effects of the undertaking were such that it could safely be said that the undertaking would not affect historic properties, regardless of the nature of their significance. For example, a building may be constructed at a location where it has been determined that the only eligible properties are too distant to be affected at all, regardless of the nature of their significance. In such cases, a more flexible approach may be warranted.
Section 800.5: Assessment of Adverse Effects
Where can agencies and others find guidance on interpreting the criteria of adverse effect, in particular the meaning of “diminish the integrity of the property's location, design, setting, materials, workmanship, feeling, or association” in accordance with §800.5(a)(1)?
The National Register Bulletin 15, “How to Apply the National Register Criteria for Evaluation,” includes definitions of many of these terms, along with examples. ACHP will develop guidance that provides assistance in applying the criteria of adverse effect. Many of the criteria are the same as (or similar to) the previous adverse effect criteria and therefore prior ACHP guidance, such as “Section 106 Step-by-Step,” still provides useful information. Guidance created under the old regulations but that still may be helpful can be found at ACHP's Web site .
For terms like “reasonably foreseeable” (§800.5(a)(1)) that have established meanings under the National Environmental Policy Act, will ACHP use NEPA definitions or create its own?
To the extent that Section 106 and NEPA share common concepts, the terminology, such as “reasonably foreseeable,” will have the same meaning, and the established NEPA definition will be followed. Only in rare circumstances, such as where the NHPA gives a term a particular definition or a court has interpreted Section 106 language, may the terminology differ. Further guidance will be forthcoming on specific terms.
In applying the criteria of adverse effect and using the Secretary of the Interior's Standards for the Treatment of Historic Properties, what happens with new construction in a historic district (§800.5(a)(2)(ii))?
The effect of the new construction on the district would have to be evaluated using the adverse effect criteria relating to “physical destruction of or damage to all or part of the property,” “change of the character of the property's use or of physical features within the property's setting that contribute to its historical significance,” and “introduction of visual, atmospheric or audible elements that diminish the integrity of the property's significant historic features.” If none of these criteria are met, it is possible that new construction that conforms to the applicable Secretary's Standards could be treated as a no adverse effect situation.
What does “Federal” and “legally enforceable” mean as they apply to transfer, lease, or sale of property (§800.5(a)(2)(vii))? Are historic properties in urban renewal areas covered if they were bought with Federal funds but not owned by a Federal agency?
This specific provision applies only to properties in actual Federal ownership or control. “Legally enforceable” means that the conditions or restrictions are enforceable as a matter of State or local law, such as an easement or restrictive covenant that is duly recorded. It does not cover properties that were acquired and are still owned by non-Federal entities (such as local redevelopment authorities) using Federal funds, unless there is some continuing discretionary authority exercised by a Federal agency over the disposal action. Nor does it apply to local governments that have acquired properties with HUD Community Development Block Grant funds when they subsequently dispose of the properties., although the acquisition of the property is subject to Section 106.
What are the agency's obligations to other consulting parties in the review of a finding of no adverse effect (§800.5(c))?
The Federal agency is required to provide all consulting parties with the proposed finding and the documentation specified in Section 800.11(e) at the same time it is provided to the SHPO/THPO* for their 30-day review. Each consulting party has the right to disagree with the finding within that 30-day review period. If the agency cannot resolve the disagreement, it must seek ACHP's opinion, which is binding upon the agency. If the consulting party is an Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to a historic property, the agency “should seek” the concurrence of that party. This means that the agency is encouraged, but not legally required, to obtain such concurrence. If the tribe or organization does not concur and disagrees with the proposed finding, it can refer the matter directly to ACHP for resolution.
Section 800.6: Resolution of Adverse Effects
What happens if an agency fails to notify ACHP of an adverse effect (§800.6(a)(1))?
Notice to ACHP at this stage is extremely important, as it provides the basis for ACHP to decide whether it wishes to enter the consultation process. Failure of an agency to do this is a serious procedural flaw, as it denies ACHP the opportunity to join at the outset the consultation to resolve adverse effects. Should the agency complete the process with a Memorandum of Agreement (MOA) with a SHPO/THPO* and ACHP subsequently learns of it and has substantial problems with the outcome, the agency may be compelled to reopen the process because of this shortcoming. ACHP would consider the MOA to be invalid and that the agency had failed to afford ACHP its reasonable opportunity to comment as required by Section 106.
What are ACHP's options when invited to participate (§800.6(a)(1))? Does ACHP have to respond if it does not intend to participate?
ACHP must notify the agency within 15 days of being invited to participate and can either agree to join the consultation or decline. ACHP's decision is guided by the criteria for ACHP involvement set forth in Appendix A of the regulations. If ACHP fails to respond within the 15 day period, the agency can assume that ACHP has decided against participating. However, circumstances may arise during the consultation to resolve adverse effects, such as the emergence of serious public controversy or procedural problems, that would warrant either a request to ACHP to participate or justification for ACHP to enter the process on its own initiative.
What does “ACHP shall also advise the head of the agency of its decision to enter the process” mean? Who does that, and how is it done? (§800.6(a)(1)(iii))
The Executive Director of ACHP would provide the notification to the agency head by a letter that sets forth the basis for ACHP's decision to enter the process. The purpose of this provision is to ensure that the policymaking level of the Federal agency is aware that ACHP felt that issues were present which warranted ACHP's entry into the Section 106 process.
What do the provisions of Section 110(l) of the NHPA mean with regard to the effect of a Memorandum of Agreement (§800.6(c))?
Section 110(l) clearly acknowledges that the Section 106 process often results in MOAs and states that an MOA “shall govern the undertaking and all of its parts.” This language gives legal effect to an MOA as the document establishing the responsibilities of the signatory parties. It further makes clear that the MOA covers all components of an undertaking.
What is the difference between the rights of “invited signatories” and those of “concurring parties” (§800.6(c)(2), (3))?
As stated in Sections 800.6(c)(1) and 800.6(c)(2)(i), signatories, including “invited signatories,” have the exclusive right to execute, amend or terminate a Memorandum of Agreement. Concurring parties do not have such rights with regard to an MOA; their concurrence is sought only to indicate that they are in agreement with the terms of the MOA.
When an undertaking takes place or affects historic properties on tribal lands, can a two-party agreement be concluded between an agency and an Indian tribe when the SHPO opts out of consultation, even though the THPO* has not been certified under Section 101(d)(2) of NHPA?
Yes, because when an undertaking is on or affects historic properties on its tribal lands, such tribe has the same rights as one that is certified. Such tribe may reach agreement with a Federal agency on the terms of an MOA. Execution of the MOA by the designated representative of the tribe and the Agency Official (along with filing the MOA with ACHP) would complete the Section 106 process.
Section 800.7: Failure to Resolve Adverse Effects
What is meant by “other officer with major department-wide or agency-wide responsibilities”? Does this refer to the Federal Preservation Officer (§800.7(a)(1))?
The phrase is derived from the term in Section 201 of the NHPA, which limits the designation of alternate representatives for Federal agency heads sitting on ACHP to “an Assistant Secretary or an officer having major department-wide or agency-wide responsibilities.” ACHP has interpreted this term to include the officially-designated Federal Preservation Officer for the agency or department.
When does ACHP comment to the head of the agency regarding its actions under the regulations (§800.7(c)(3))? Does that mean bureau chief or department Secretary for the “big” departments (or both)?
Formal comments by ACHP under Section 800.7(c) are transmitted prior to the expiration of the 45 days allowed ACHP to prepare them. As under the previous regulations, the comments are transmitted to the agency head, who is normally the department Secretary. Where an agency or bureau is the sponsor of the undertaking and is part of a larger department, the comments will also be transmitted to the agency or bureau head.
How and when should the public provide its views when ACHP is preparing its comments? Does ACHP have a responsibility to solicit such views independent of agency actions?
When ACHP prepares formal comments under Section 800.7(c), it will arrange for public input. This is over and above previous public involvement and will be tailored to the specific circumstances of the case. In some instances, ACHP may hold a public meeting; in others, solicitation of written comments may suffice.
* The regulations define the term “THPO” as those tribes that have assumed SHPO responsibilities on their tribal lands and have been certified pursuant to Section 101(d)(2) of the NHPA. Nevertheless, remember that tribes that have not been so certified have the same consultation and concurrence rights as THPOs when the undertaking takes place, or affects historic properties, on their tribal lands. The practical difference is that during such undertakings, THPOs would be consulted in lieu of the SHPO, while non-certified tribes would be consulted in addition to the SHPO.