On December 12, 2000, the Advisory Council on Historic Preservation published a revised rule, 36 CFR Part 800, "Protection of Historic Properties", implementing Section 106 of the National Historic Preservation Act (NHPA). The rule as published will become effective as of January 11, 2001. Essentially the core elements of the 106 process, as it has come to be known, have been maintained. The changes made are aimed at clarifying the process and overcoming several operational hurdles identified during the comment period.

Several of the changes are of particular interest for implementation of the Section 106 process from Federal Highway Administration's (FHWA) perspective. Changes to Section 800.2(c)(4) will, for the first time, allow "blanket authorizations" whereby a Federal agency may authorize an applicant or group of applicants (such as a state Department of Transportation or Local Agency) to initiate consultation under 36 CFR Part 800 by providing notice to the State Historic Preservation Officer/Tribal Historic Preservation Officer (SHPO/THPO). The revised section delegates duties, but not responsibilities. It is explicit that the Federal agency remains legally responsible for all findings and determinations charged to the Agency Official, as well as for its government to government relationship with Indian Tribes.

The use of the term THPO has been limited to those instances where a tribe has assumed the duties of the SHPO on tribal lands under Section 101(d)(2) of the NHPA. In cases where the tribe has not been so certified, the tribe retains the same rights of consultation and concurrence; however, consultation takes place between the Federal agency and the designated representative of the tribe. The requirement for a Federal agency to make a reasonable and good faith effort to consult with any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to historic properties that may be affected by an undertaking remains, and language has been added to clarify this provision applies both on and off tribal land.

A new section under Alternate Procedures provides for establishment of Prototype Programmatic Agreements. Once approved as a prototype by the Council, theses PA's may be finalized and implemented by the Federal agency and SHPO/THPO without further comment by the Council. This approach could be particularly useful for certain types of minor undertakings or actions normally considered to be categorical exclusions under the National Environmental Policy Act by saving time and resources lost in repetitive and inconsequential coordination. Although these provisions give greater flexibility to the Federal agency to delegate parts of the process to applicants and their consultants, technical changes to several sections were implemented to emphasize the Federal agency responsibility for specific findings and determinations. A summary of the specific changes is attached.

For the full text of the revised 36 CFR Part 800, you may refer to the Council's website at www.achp.gov. For more information, please contact MaryAnn Naber at (202) 366-2060 or by email at www.maryann.naber@fhwa.dot.gov.

Attachment

cc: HFLs, HRCDIRs, HEP ODs

SUMMARY OF REVISIONS TO 36 CFR PART 800

800.2(c)(1)(i) Language has been added to acknowledge that the SHPO's role extends beyond advising Federal agencies alone and includes cooperation with state agencies, local governments, organizations, and individuals to ensure the purposes of the act are met.

800.2(c)(2) This section has been completely rewritten to distinguish between Tribal Historic Preservation Officers (THPO's) who have been certified by the Department of the Interior to act in place of the SHPO when an undertaking affects historic property on tribal land as opposed to other Indian Tribes and Native Hawaiian Organizations (NHO). When a tribe has not assumed the responsibilities of the SHPO for Section 106 on tribal lands, the tribe still has the same rights for consultation and concurrence; however, the consultation is conducted between the Agency Official and the representative designated by the tribal government in addition to and on the same basis as consultation with the SHPO.

800.2(c)(2)(ii) Language has been added to this section to clarify that the requirement for consultation with any Indian tribe or Native Hawaiian organization which attaches religious and cultural significance to a property applies regardless of the location of the historic property.

800.2(c)(2)(ii)(B) Minor changes in this section clarify that not only is it not intended to change any treaty or sovereignty rights, it does not in fact change them.

800.2(c)(4) A section has been added to allow "blanket authorizations". The Federal agency is empowered to authorize a group of applicants or all applicants in a specific program to initiate consultation with the SHPO/THPO provided the agency provides notice to all SHPO/THPOs and remains responsible for its government-to-government relationships with tribes.

800.3(a) Several qualifying phrases have been added which are intended to clarify that the determination of undertaking is based on the type of activity and assumes that historic properties may be present.

800.4(a) Opening sentence has been reorganized to emphasize that the responsibility for determinations of area of potential effect and the scope of identification effort lies with the Federal agency.

800.6(c)(2) Section has been added to establish the role of the Agency Official in inviting additional signatories to a Memorandum of Agreement and to clarify the right of invited signatories who sign the agreement to seek amendment or termination.

800.6(c)(3) Adds the option for termination of an MOA when its terms are not being carried out in addition to when one party simply cannot carry out the terms.

800.8(c)(4) At the request of U.S. DOT, the entire section has been rewritten to clarify the actions a Federal agency must take to establish the binding commitment to avoid, minimize, or mitigate adverse effects to historic properties when the NEPA process has been substituted to comply with Section 106 requirements.

800.9(d)(2) Language has been added to clarify how the Council would carry out subsequent participation in the process when an evaluation finds that the Federal agency has failed to properly carry out its Section 106 responsibilities.

800.11(a) Language was added to the requirements for documentation in order to be consistent with the statute (National Historic Preservation Act ) which specifies that Federal agencies are required to provide documentation to the extent permitted by law and within available funds.

800.11(c)(1) Adds the SHPO and THPO to those whose views should be provided to the Council regarding confidentiality concerns and withholding of information.

800.13(b)(3) Language has been added to the provisions for post-review discoveries to emphasize the responsibility for the Federal agency to determine National Register eligibility.

800.14(b)(4) Section added to provide for establishment of Prototype Programmatic Agreements which, once designated as such by the Council, may be developed and executed by the Agency Official and appropriate SHPO/THPO without further Council involvement.

800.14(c)(5) Language added to provide for submission of views of SHPO/THPO's, as well as others consulted, for Council consideration of a request for exempted categories.

800.14(f)(1) Language has been added to allow for some tailoring of tribal consultation in the case of nationwide program alternatives, consistent with standing Executive Orders, Presidential Memoranda and other applicable provisions of law.

800.16(d) Terminology change makes definition of area of potential effect consistent with that for effects.

800.16(w) The definition of THPO has been limited to those tribes which have been certified by DOI in accordance with Section 101(d)(2) of the NHPA to act in the place of the SHPO in cases affecting tribal lands.

Attachment

cc: HFLs, HRCDIRs, HEP ODs