[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: 36CFR800.7]



[Page 97-98]

 

              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;



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    (ii) Providing a copy of the summary to all consulting parties; and

    (iii) Notifying the public and making the record available for 

public inspection.