[Code of Federal Regulations]
[Title 36, Volume 3]
[Revised as of July 1, 2008]
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.