[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: 36CFR800.5]

[Page 92-94]
 
              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. 800.5  Assessment of adverse effects.

    (a) Apply criteria of adverse effect. In consultation with the SHPO/
THPO and any Indian tribe or Native Hawaiian organization that attaches 
religious and cultural significance to identified historic properties, 
the agency official shall apply the criteria of adverse effect to 
historic properties within the area of potential effects. The agency 
official shall consider any views concerning such effects which have 
been provided by consulting parties and the public.
    (1) Criteria of adverse effect. An adverse effect is found when an 
undertaking may alter, directly or indirectly, any of the 
characteristics of a

[[Page 93]]

historic property that qualify the property for inclusion in the 
National Register in a manner that would diminish the integrity of the 
property's location, design, setting, materials, workmanship, feeling, 
or association. Consideration shall be given to all qualifying 
characteristics of a historic property, including those that may have 
been identified subsequent to the original evaluation of the property's 
eligibility for the National Register. Adverse effects may include 
reasonably foreseeable effects caused by the undertaking that may occur 
later in time, be farther removed in distance or be cumulative.
    (2) Examples of adverse effects. Adverse effects on historic 
properties include, but are not limited to:
    (i) Physical destruction of or damage to all or part of the 
property;
    (ii) Alteration of a property, including restoration, 
rehabilitation, repair, maintenance, stabilization, hazardous material 
remediation, and provision of handicapped access, that is not consistent 
with the Secretary's standards for the treatment of historic properties 
(36 CFR part 68) and applicable guidelines;
    (iii) Removal of the property from its historic location;
    (iv) Change of the character of the property's use or of physical 
features within the property's setting that contribute to its historic 
significance;
    (v) Introduction of visual, atmospheric or audible elements that 
diminish the integrity of the property's significant historic features;
    (vi) Neglect of a property which causes its deterioration, except 
where such neglect and deterioration are recognized qualities of a 
property of religious and cultural significance to an Indian tribe or 
Native Hawaiian organization; and
    (vii) Transfer, lease, or sale of property out of Federal ownership 
or control without adequate and legally enforceable restrictions or 
conditions to ensure long-term preservation of the property's historic 
significance.
    (3) Phased application of criteria. Where alternatives under 
consideration consist of corridors or large land areas, or where access 
to properties is restricted, the agency official may use a phased 
process in applying the criteria of adverse effect consistent with 
phased identification and evaluation efforts conducted pursuant to Sec. 
800.4(b)(2).
    (b) Finding of no adverse effect. The agency official, in 
consultation with the SHPO/THPO, may propose a finding of no adverse 
effect when the undertaking's effects do not meet the criteria of 
paragraph (a)(1) of this section or the undertaking is modified or 
conditions are imposed, such as the subsequent review of plans for 
rehabilitation by the SHPO/THPO to ensure consistency with the 
Secretary's standards for the treatment of historic properties (36 CFR 
part 68) and applicable guidelines, to avoid adverse effects.
    (c) Consulting party review. If the agency official proposes a 
finding of no adverse effect, the agency official shall notify all 
consulting parties of the finding and provide them with the 
documentation specified in Sec. 800.11(e). The SHPO/THPO shall have 30 
days from receipt to review the finding.
    (1) Agreement with, or no objection to, finding. Unless the Council 
is reviewing the finding pursuant to papagraph (c)(3) of this section, 
the agency official may proceed after the close of the 30 day review 
period if the SHPO/THPO has agreed with the finding or has not provided 
a response, and no consulting party has objected. The agency official 
shall then carry out the undertaking in accordance with paragraph (d)(1) 
of this section.
    (2) Disagreement with finding. (i) If within the 30 day review 
period the SHPO/THPO or any consulting party notifies the agency 
official in writing that it disagrees with the finding and specifies the 
reasons for the disagreement in the notification, the agency official 
shall either consult with the party to resolve the disagreement, or 
request the Council to review the finding pursuant to paragraphs 
(c)(3)(i) and (c)(3)(ii) of this section. The agency official shall 
include with such request the documentation specified in Sec. 
800.11(e). The agency official shall also concurrently notify all 
consulting parties that such a submission has been made and make the 
submission documentation available to the public.

[[Page 94]]

    (ii) If within the 30 day review period the Council provides the 
agency official and, if the Council determines the issue warrants it, 
the head of the agency, with a written opinion objecting to the finding, 
the agency shall then proceed according to paragraph (c)(3)(ii) of this 
section. 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.
    (iii) The agency official should seek the concurrence of any Indian 
tribe or Native Hawaiian organization that has made known to the agency 
official that it attaches religious and cultural significance to a 
historic property subject to the finding. If such Indian tribe or Native 
Hawaiian organization disagrees with the finding, it may within the 30 
day review period specify the reasons for disagreeing with the finding 
and request the Council to review and object to the finding pursuant to 
paragraph (c)(2)(ii) of this section.
    (3) Council review of findings. (i) When a finding is submitted to 
the Council pursuant to paragraph (c)(2)(i) of this section, the Council 
shall review the finding and provide the agency official and, if the 
Council determines the issue warrants it, the head of the agency with 
its opinion as to whether the adverse effect criteria have been 
correctly applied. 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 Council will provide its opinion within 15 days of receiving the 
documented finding from the agency official. The Council at its 
discretion may extend that time period for 15 days, in which case it 
shall notify the agency of such extension prior to the end of the 
initial 15 day period. If the Council does not respond within the 
applicable time period, the agency official's responsibilities under 
section 106 are fulfilled.
    (ii)(A) 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 finding.
    (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 SHPO/THPO, and the consulting parties. 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 finding will be 
revised, the agency official shall proceed in accordance with the 
revised finding. If the final decision of the agency is to affirm the 
initial finding of no adverse effect, once the summary of the decision 
has been sent to the Council, the SHPO/THPO, and the consulting parties, 
the agency official's responsibilities under section 106 are fulfilled.
    (C) The Council shall retain a record of agency responses to Council 
opinions on their findings of no adverse effects. The Council shall make 
this information available to the public.
    (d) Results of assessment--(1) No adverse effect. The agency 
official shall maintain a record of the finding and provide information 
on the finding to the public on request, consistent with the 
confidentiality provisions of Sec. 800.11(c). Implementation of the 
undertaking in accordance with the finding as documented fulfills the 
agency official's responsibilities under section 106 and this part. If 
the agency official will not conduct the undertaking as proposed in the 
finding, the agency official shall reopen consultation under paragraph 
(a) of this section.
    (2) Adverse effect. If an adverse effect is found, the agency 
official shall consult further to resolve the adverse effect pursuant to 
Sec. 800.6.

[65 FR 77725, Dec. 12, 2000, as amended at 69 FR 40553, July 6, 2004]