[Code of Federal Regulations]
[Title 36, Volume 3]
[Revised as of July 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 36CFR800.7]

[Page 92]
 
              TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY
 
                     CHAPTER VIII--ADVISORY COUNCIL
                        ON HISTORIC PRESERVATION
 
PART 800_PROTECTION OF HISTORIC PROPERTIES--Table of Contents
 
                    Subpart B_The section 106 Process
 
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 SHPO/
THPO, or the Council may determine that further consultation will not be 
productive and terminate consultation. Any party that terminates 
consultation shall notify the other consulting parties and provide them 
the reasons for terminating in writing.
    (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 that the Council 
comment pursuant to paragraph (c) of this section and shall notify all 
consulting parties of the request.
    (2) If the SHPO terminates consultation, the agency official and the 
Council may execute a memorandum of agreement without the SHPO's 
involvement.
    (3) If a THPO terminates consultation regarding an undertaking 
occurring on or affecting historic properties on its tribal lands, the 
Council shall comment pursuant to paragraph (c) of this section.
    (4) If the Council terminates consultation, the Council shall notify 
the agency official, the agency's Federal preservation officer and all 
consulting parties of the termination and comment under paragraph (c) of 
this section. The Council may consult with the agency's Federal 
preservation officer prior to terminating consultation to seek to 
resolve issues concerning the undertaking and its effects on historic 
properties.
    (b) Comments without termination. The Council may determine that it 
is appropriate to provide additional advisory comments upon an 
undertaking for which a memorandum of agreement will be executed. The 
Council shall provide them to the agency official when it executes the 
memorandum of agreement.
    (c) Comments by the Council. (1) Preparation. The Council shall 
provide an opportunity for the agency official, all consulting parties, 
and the public to provide their views within the time frame for 
developing its comments. 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 paragraph (a)(1) or (a)(3) of this section 
or Sec. 800.8(c)(3), or termination by the Council under Sec. 
800.6(b)(1)(v) or paragraph (a)(4) of this section, 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 
agency's Federal preservation officer, all consulting parties, and 
others as appropriate.
    (4) Response to Council comment. The head of the agency shall take 
into account the Council's comments in reaching a final decision on the 
undertaking. Section 110(l) of the act directs that the head of the 
agency shall document this decision and may not delegate his or her 
responsibilities pursuant to section 106. Documenting the agency head's 
decision shall include:
    (i) Preparing a summary of the decision that contains the rationale 
for the decision and evidence of consideration of the Council's comments 
and providing it to the Council prior to approval of the undertaking;
    (ii) Providing a copy of the summary to all consulting parties; and
    (iii) Notifying the public and making the record available for 
public inspection.