[Code of Federal Regulations]

[Title 36, Volume 3]

[Revised as of July 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 36CFR800.13]



[Page 103-104]

 

              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. 800.13  Post-review discoveries.



    (a) Planning for subsequent discoveries.(1) Using a programmatic 

agreement. An agency official may develop a programmatic agreement 

pursuant to Sec. 800.14(b) to govern the actions to be taken when 

historic properties are discovered during the implementation of an 

undertaking.

    (2) Using agreement documents. 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 and no programmatic agreement has been developed pursuant 

to paragraph (a)(1) of this section, the agency official shall include 

in any finding of no adverse effect 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 and this part.

    (b) Discoveries without prior planning. If historic properties are 

discovered or unanticipated effects on historic properties found after 

the agency official has completed the section 106 process



[[Page 104]]



without establishing a process under paragraph (a) of this section, the 

agency official shall make reasonable efforts to avoid, minimize or 

mitigate adverse effects to such properties and:

    (1) If the agency official has not approved the undertaking or if 

construction on an approved undertaking has not commenced, consult to 

resolve adverse effects pursuant to Sec. 800.6; or

    (2) If the agency official, the SHPO/THPO and any Indian tribe or 

Native Hawaiian organization that might attach religious and cultural 

significance to the affected property agree that such property is of 

value solely for its scientific, prehistoric, historic or archeological 

data, the agency official may comply with the Archeological and Historic 

Preservation Act instead of the procedures in this part and provide the 

Council, the SHPO/THPO, and the Indian tribe or Native Hawaiian 

organization with a report on the actions within a reasonable time after 

they are completed; or

    (3) If the agency official has approved the undertaking and 

construction has commenced, determine actions that the agency official 

can take to resolve adverse effects, and notify the SHPO/THPO, any 

Indian tribe or Native Hawaiian organization that might attach religious 

and cultural significance to the affected property, and the Council 

within 48 hours of the discovery. The notification shall describe the 

agency official's assessment of National Register eligibility of the 

property and proposed actions to resolve the adverse effects. The SHPO/

THPO, the Indian tribe or Native Hawaiian organization and the Council 

shall respond within 48 hours of the notification. The agency official 

shall take into account their recommendations regarding National 

Register eligibility and proposed actions, and then carry out 

appropriate actions. The agency official shall provide the SHPO/THPO, 

the Indian tribe or Native Hawaiian organization and the Council a 

report of the actions when they are completed.

    (c) Eligibility of properties. The agency official, in consultation 

with the SHPO/THPO, may assume a newly-discovered property to be 

eligible for the National Register for purposes of section 106. The 

agency official shall specify the National Register criteria used to 

assume the property's eligibility so that information can be used in the 

resolution of adverse effects.

    (d) Discoveries on tribal lands. If historic properties are 

discovered on tribal lands, or there are unanticipated effects on 

historic properties found on tribal lands, after the agency official has 

completed the section 106 process without establishing a process under 

paragraph (a) of this section and construction has commenced, the agency 

official shall comply with applicable tribal regulations and procedures 

and obtain the concurrence of the Indian tribe on the proposed action.