[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: 36CFR800.8]



[Page 98-100]

 

              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. 800.8  Coordination With the National Environmental Policy Act.



    (a) General principles.(1) Early coordination. Federal agencies are 

encouraged to coordinate compliance with section 106 and the procedures 

in this part with any steps taken to meet the requirements of the 

National Environmental Policy Act (NEPA). Agencies should consider their 

section 106 responsibilities as early as possible in the NEPA process, 

and plan their public participation, analysis, and review in such a way 

that they can meet the purposes and requirements of both statutes in a 

timely and efficient manner. The determination of whether an undertaking 

is a ``major Federal action significantly affecting the quality of the 

human environment,'' and therefore requires preparation of an 

environmental impact statement (EIS) under NEPA, should include 

consideration of the undertaking's likely effects on historic 

properties. A finding of adverse effect on a historic property does not 

necessarily require an EIS under NEPA.

    (2) Consulting party roles. SHPO/THPOs, Indian tribes, and Native 

Hawaiian organizations, other consulting parties, and organizations and 

individuals who may be concerned with the possible effects of an agency 

action on historic properties should be prepared to consult with 

agencies early in the NEPA process, when the purpose of and need for the 

proposed action as well as the widest possible range of alternatives are 

under consideration.

    (3) Inclusion of historic preservation issues. Agency officials 

should ensure that preparation of an environmental assessment (EA) and 

finding of no significant impact (FONSI) or an EIS and record of 

decision (ROD) includes appropriate scoping, identification of historic 

properties, assessment of effects upon them, and consultation leading to 

resolution of any adverse effects.

    (b) Actions categorically excluded under NEPA. If a project, 

activity or program is categorically excluded from NEPA review under an 

agency's NEPA procedures, the agency official shall determine if it 

still qualifies as an undertaking requiring review under section 106 

pursuant to Sec. 800.3(a). If so, the agency official shall proceed 

with section 106 review in accordance with the procedures in this 

subpart.

    (c) Use of the NEPA process for section 106 purposes. An agency 

official may use the process and documentation required for the 

preparation of an EA/FONSI or an EIS/ROD to comply with section 106 in 

lieu of the procedures set forth in Sec. Sec. 800.3 through 800.6 if 

the agency official has notified in advance the SHPO/THPO and the 

Council that it intends to do so and the following standards are met.

    (1) Standards for developing environmental documents to comply with 

Section 106. During preparation of the EA or draft EIS (DEIS) the agency 

official shall:

    (i) Identify consulting parties either pursuant to Sec. 800.3(f) or 

through the NEPA scoping process with results consistent with Sec. 

800.3(f);

    (ii) Identify historic properties and assess the effects of the 

undertaking on such properties in a manner consistent with the standards 

and criteria of Sec. Sec. 800.4 through 800.5, provided that the scope 

and timing of these steps may be phased to reflect the agency official's 

consideration of project alternatives in the NEPA process and the effort 

is commensurate with the assessment of other environmental factors;

    (iii) Consult regarding the effects of the undertaking on historic 

properties with the SHPO/THPO, Indian tribes, and Native Hawaiian 

organizations that might attach religious and cultural significance to 

affected historic properties, other consulting parties, and the Council, 

where appropriate, during NEPA scoping, environmental analysis, and the 

preparation of NEPA documents;

    (iv) Involve the public in accordance with the agency's published 

NEPA procedures; and (v) Develop in consultation with identified 

consulting parties alternatives and proposed measures that might avoid, 

minimize or mitigate any adverse effects of the undertaking on historic 

properties and describe them in the EA or DEIS.



[[Page 99]]



    (2) Review of environmental documents.(i) The agency official shall 

submit the EA, DEIS, or EIS to the SHPO/THPO, Indian tribes, and Native 

Hawaiian organizations that might attach religious and cultural 

significance to affected historic properties, and other consulting 

parties prior to or when making the document available for public 

comment. If the document being prepared is a DEIS or EIS, the agency 

official shall also submit it to the Council.

    (ii) Prior to or within the time allowed for public comment on the 

document, a SHPO/THPO, an Indian tribe or Native Hawaiian organization, 

another consulting party or the Council may object to the agency 

official that preparation of the EA, DEIS, or EIS has not met the 

standards set forth in paragraph (c)(1) of this section or that the 

substantive resolution of the effects on historic properties proposed in 

an EA, DEIS, or EIS is inadequate. If the agency official receives such 

an objection, the agency official shall refer the matter to the Council.

    (3) Resolution of objections. Within 30 days of the agency 

official's referral of an objection under paragraph (c)(2)(ii) of this 

section, the Council shall review the objection and notify the agency as 

to its opinion on the objection.

    (i) If the Council agrees with the objection:

    (A) The Council shall provide the agency official and, if the 

Council determines the issue warrants it, the head of the agency with 

the Council's opinion regarding the objection. A Council decision to 

provide its opinion to the head of an agency shall be guided by the 

criteria in appendix A to this part. The person to whom the Council 

addresses its opinion (the agency official or the head of the agency) 

shall take into account the Council's opinion in reaching a final 

decision on the issue of the objection.

    (B) The person to whom the Council addresses its opinion (the agency 

official or the head of the agency) shall prepare a summary of the 

decision that contains the rationale for the decision and evidence of 

consideration of the Council's opinion, and provide it to the Council. 

The head of the agency may delegate his or her duties under this 

paragraph to the agency's senior Policy Official. If the agency 

official's initial decision regarding the matter that is the subject of 

the objection will be revised, the agency official shall proceed in 

accordance with the revised decision. If the final decision of the 

agency is to affirm the initial agency decision, once the summary of the 

final decision has been sent to the Council, the agency official shall 

continue its compliance with this section.

    (ii) If the Council disagrees with the objection, the Council shall 

so notify the agency official, in which case the agency official shall 

continue its compliance with this section.

    (iii) If the Council fails to respond to the objection within the 30 

day period, the agency official shall continue its compliance with this 

section.

    (4) Approval of the undertaking. If the agency official has found, 

during the preparation of an EA or EIS that the effects of an 

undertaking on historic properties are adverse, the agency official 

shall develop measures in the EA, DEIS, or EIS to avoid, minimize, or 

mitigate such effects in accordance with paragraph (c)(1)(v) of this 

section. The agency official's responsibilities under section 106 and 

the procedures in this subpart shall then be satisfied when either:

    (i) A binding commitment to such proposed measures is incorporated 

in:

    (A) The ROD, if such measures were proposed in a DEIS or EIS; or

    (B) An MOA drafted in compliance with Sec. 800.6(c); or

    (ii) The Council has commented under Sec. 800.7 and received the 

agency's response to such comments.

    (5) Modification of the undertaking. If the undertaking is modified 

after approval of the FONSI or the ROD in a manner that changes the 

undertaking or alters its effects on historic properties, or if the 

agency official fails to ensure that the measures to avoid, minimize or 

mitigate adverse effects (as specified in either the FONSI or the ROD, 

or in the binding commitment adopted pursuant to paragraph (c)(4) of 

this section) are carried out, the agency official shall notify the 

Council and all consulting parties that supplemental environmental 

documents will be prepared in compliance with NEPA or that the 

procedures in Sec. Sec. 800.3



[[Page 100]]



through 800.6 will be followed as necessary.



[65 FR 77725, Dec. 12, 2000, as amended at 69 FR 40554, July 6, 2004]