[Code of Federal Regulations]
[Title 36, Volume 3]
[Revised as of July 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 36CFR800.2]
[Page 81-84]
TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY
CHAPTER VIII--ADVISORY COUNCIL
ON HISTORIC PRESERVATION
PART 800_PROTECTION OF HISTORIC PROPERTIES--Table of Contents
Subpart A_Purposes and Participants
Sec. 800.2 Participants in the Section 106 process.
(a) Agency official. It is the statutory obligation of the Federal
agency to fulfill the requirements of section 106 and to ensure that an
agency official with jurisdiction over an undertaking takes legal and
financial responsibility for section 106 compliance in accordance with
subpart B of this part. The agency official has approval authority for
the undertaking and can commit the Federal agency to take appropriate
action
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for a specific undertaking as a result of section 106 compliance. For
the purposes of subpart C of this part, the agency official has the
authority to commit the Federal agency to any obligation it may assume
in the implementation of a program alternative. The agency official may
be a State, local, or tribal government official who has been delegated
legal responsibility for compliance with section 106 in accordance with
Federal law.
(1) Professional standards. Section 112(a)(1)(A) of the act requires
each Federal agency responsible for the protection of historic
resources, including archeological resources, to ensure that all actions
taken by employees or contractors of the agency shall meet professional
standards under regulations developed by the Secretary.
(2) Lead Federal agency. If more than one Federal agency is involved
in an undertaking, some or all the agencies may designate a lead Federal
agency, which shall identify the appropriate official to serve as the
agency official who shall act on their behalf, fulfilling their
collective responsibilities under section 106. Those Federal agencies
that do not designate a lead Federal agency remain individually
responsible for their compliance with this part.
(3) Use of contractors. Consistent with applicable conflict of
interest laws, the agency official may use the services of applicants,
consultants, or designees to prepare information, analyses and
recommendations under this part. The agency official remains legally
responsible for all required findings and determinations. If a document
or study is prepared by a non-Federal party, the agency official is
responsible for ensuring that its content meets applicable standards and
guidelines.
(4) Consultation. The agency official shall involve the consulting
parties described in paragraph (c) of this section in findings and
determinations made during the section 106 process. The agency official
should plan consultations appropriate to the scale of the undertaking
and the scope of Federal involvement and coordinated with other
requirements of other statutes, as applicable, such as the National
Environmental Policy Act, the Native American Graves Protection and
Repatriation Act, the American Indian Religious Freedom Act, the
Archeological Resources Protection Act, and agency-specific legislation.
The Council encourages the agency official to use to the extent possible
existing agency procedures and mechanisms to fulfill the consultation
requirements of this part.
(b) Council. The Council issues regulations to implement section
106, provides guidance and advice on the application of the procedures
in this part, and generally oversees the operation of the section 106
process. The Council also consults with and comments to agency officials
on individual undertakings and programs that affect historic properties.
(1) Council entry into the section 106 process. When the Council
determines that its involvement is necessary to ensure that the purposes
of section 106 and the act are met, the Council may enter the section
106 process. Criteria guiding Council decisions to enter the section 106
process are found in appendix A to this part. The Council will document
that the criteria have been met and notify the parties to the section
106 process as required by this part.
(2) Council assistance. Participants in the section 106 process may
seek advice, guidance and assistance from the Council on the application
of this part to specific undertakings, including the resolution of
disagreements, whether or not the Council is formally involved in the
review of the undertaking. If questions arise regarding the conduct of
the section 106 process, participants are encouraged to obtain the
Council's advice on completing the process.
(c) Consulting parties. The following parties have consultative
roles in the section 106 process.
(1) State historic preservation officer. (i) The State historic
preservation officer (SHPO) reflects the interests of the State and its
citizens in the preservation of their cultural heritage. In accordance
with section 101(b)(3) of the act, the SHPO advises and assists Federal
agencies in carrying out their section 106 responsibilities and
cooperates with such agencies, local governments and organizations and
individuals to
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ensure that historic properties are taking into consideration at all
levels of planning and development.
(ii) If an Indian tribe has assumed the functions of the SHPO in the
section 106 process for undertakings on tribal lands, the SHPO shall
participate as a consulting party if the undertaking takes place on
tribal lands but affects historic properties off tribal lands, if
requested in accordance with Sec. 800.3(c)(1), or if the Indian tribe
agrees to include the SHPO pursuant to Sec. 800.3(f)(3).
(2) Indian tribes and Native Hawaiian organizations. (i)
Consultation on tribal lands. (A) Tribal historic preservation officer.
For a tribe that has assumed the responsibilities of the SHPO for
section 106 on tribal lands under section 101(d)(2) of the act, the
tribal historic preservation officer (THPO) appointed or designated in
accordance with the act is the official representative for the purposes
of section 106. The agency official shall consult with the THPO in lieu
of the SHPO regarding undertakings occurring on or affecting historic
properties on tribal lands.
(B) Tribes that have not assumed SHPO functions. When an Indian
tribe has not assumed the responsibilities of the SHPO for section 106
on tribal lands under section 101(d)(2) of the act, the agency official
shall consult with a representative designated by such Indian tribe in
addition to the SHPO regarding undertakings occurring on or affecting
historic properties on its tribal lands. Such Indian tribes have the
same rights of consultation and concurrence that the THPOs are given
throughout subpart B of this part, except that such consultations shall
be in addition to and on the same basis as consultation with the SHPO.
(ii) Consultation on historic properties of significance to Indian
tribes and Native Hawaiian organizations. Section 101(d)(6)(B) of the
act requires the agency official 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. This requirement applies regardless of the location of the
historic property. Such Indian tribe or Native Hawaiian organization
shall be a consulting party.
(A) The agency official shall ensure that consultation in the
section 106 process provides the Indian tribe or Native Hawaiian
organization a reasonable opportunity to identify its concerns about
historic properties, advise on the identification and evaluation of
historic properties, including those of traditional religious and
cultural importance, articulate its views on the undertaking's effects
on such properties, and participate in the resolution of adverse
effects. It is the responsibility of the agency official to make a
reasonable and good faith effort to identify Indian tribes and Native
Hawaiian organizations that shall be consulted in the section 106
process. Consultation should commence early in the planning process, in
order to identify and discuss relevant preservation issues and resolve
concerns about the confidentiality of information on historic
properties.
(B) The Federal Government has a unique legal relationship with
Indian tribes set forth in the Constitution of the United States,
treaties, statutes, and court decisions. Consultation with Indian tribes
should be conducted in a sensitive manner respectful of tribal
sovereignty. Nothing in this part alters, amends, repeals, interprets,
or modifies tribal sovereignty, any treaty rights, or other rights of an
Indian tribe, or preempts, modifies, or limits the exercise of any such
rights.
(C) Consultation with an Indian tribe must recognize the government-
to-government relationship between the Federal Government and Indian
tribes. The agency official shall consult with representatives
designated or identified by the tribal government or the governing body
of a Native Hawaiian organization. Consultation with Indian tribes and
Native Hawaiian organizations should be conducted in a manner sensitive
to the concerns and needs of the Indian tribe or Native Hawaiian
organization.
(D) When Indian tribes and Native Hawaiian organizations attach
religious and cultural significance to historic properties off tribal
lands, section 101(d)(6)(B) of the act requires Federal agencies to
consult with such Indian
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tribes and Native Hawaiian organizations in the section 106 process.
Federal agencies should be aware that frequently historic properties of
religious and cultural significance are located on ancestral,
aboriginal, or ceded lands of Indian tribes and Native Hawaiian
organizations and should consider that when complying with the
procedures in this part.
(E) An Indian tribe or a Native Hawaiian organization may enter into
an agreement with an agency official that specifies how they will carry
out responsibilities under this part, including concerns over the
confidentiality of information. An agreement may cover all aspects of
tribal participation in the section 106 process, provided that no
modification may be made in the roles of other parties to the section
106 process without their consent. An agreement may grant the Indian
tribe or Native Hawaiian organization additional rights to participate
or concur in agency decisions in the section 106 process beyond those
specified in subpart B of this part. The agency official shall provide a
copy of any such agreement to the Council and the appropriate SHPOs.
(F) An Indian tribe that has not assumed the responsibilities of the
SHPO for section 106 on tribal lands under section 101(d)(2) of the act
may notify the agency official in writing that it is waiving its rights
under Sec. 800.6(c)(1) to execute a memorandum of agreement.
(3) Representatives of local governments. A representative of a
local government with jurisdiction over the area in which the effects of
an undertaking may occur is entitled to participate as a consulting
party. Under other provisions of Federal law, the local government may
be authorized to act as the agency official for purposes of section 106.
(4) Applicants for Federal assistance, permits, licenses, and other
approvals. An applicant for Federal assistance or for a Federal permit,
license, or other approval is entitled to participate as a consulting
party as defined in this part. The agency official may authorize an
applicant or group of applicants to initiate consultation with the SHPO/
THPO and others, but remains legally responsible for all findings and
determinations charged to the agency official. The agency official shall
notify the SHPO/THPO when an applicant or group of applicants is so
authorized. A Federal agency may authorize all applicants in a specific
program pursuant to this section by providing notice to all SHPO/THPOs.
Federal agencies that provide authorizations to applicants remain
responsible for their government-to-government relationships with Indian
tribes.
(5) Additional consulting parties. Certain individuals and
organizations with a demonstrated interest in the undertaking may
participate as consulting parties due to the nature of their legal or
economic relation to the undertaking or affected properties, or their
concern with the undertaking's effects on historic properties.
(d) The public. (1) Nature of involvement. The views of the public
are essential to informed Federal decisionmaking in the section 106
process. The agency official shall seek and consider the views of the
public in a manner that reflects the nature and complexity of the
undertaking and its effects on historic properties, the likely interest
of the public in the effects on historic properties, confidentiality
concerns of private individuals and businesses, and the relationship of
the Federal involvement to the undertaking.
(2) Providing notice and information. The agency official must,
except where appropriate to protect confidentiality concerns of affected
parties, provide the public with information about an undertaking and
its effects on historic properties and seek public comment and input.
Members of the public may also provide views on their own initiative for
the agency official to consider in decisionmaking.
(3) Use of agency procedures. The agency official may use the
agency's procedures for public involvement under the National
Environmental Policy Act or other program requirements in lieu of public
involvement requirements in subpart B of this part, if they provide
adequate opportunities for public involvement consistent with this
subpart.
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