Transcript 800.16 Definitions.

Section 106
The reasons, the actions, the
participants
Advisory Council on Historic Preservation
• The Advisory Council on Historic Preservation (ACHP) is an independent
federal agency that promotes the preservation, enhancement, and
productive use of our nation's historic resources, and advises the President
and Congress on national historic preservation policy.
• The goal of the National Historic Preservation Act (NHPA), which
established the ACHP in 1966, was to have federal agencies act as
responsible stewards of our nation's resources when their actions affect
historic properties. The ACHP is the only entity with the legal
responsibility to encourage federal agencies to factor historic preservation
into federal project requirements.
• As directed by NHPA, the ACHP serves as the primary federal policy
advisor to the President and Congress; recommends administrative and
legislative improvements for protecting our nation's heritage; advocates full
consideration of historic values in federal decision-making; and reviews
federal programs and policies to promote effectiveness, coordination, and
consistency with national preservation policies.
Advisory Council composition
Members appointed by the President, including the chairman and vice chairman.
Four members of the general public
four historic preservation experts are appointed by the President, including the
chairman and vice chairman.
A member of an Indian tribe or Native Hawaiian organization
A governor
A mayor
permanent members
Secretary of Agriculture
Secretary of the Interior
Architect of the Capitol
Seven federal agency heads are designated by the President to terms on ACHP
ACHP Observers (non-voting)
General Chairman, National Association of Tribal Historic Preservation Officers
Secretary, Department of Homeland Security
Secretary, Department of Energy
Administrator, Environmental Protection Agency
Chair, National Alliance of Preservation Commissions
President, ACHP Alumni Foundation
What does the Advisory Council Do?
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The ACHP's 23 statutorily designated members, including the Chairman who heads the
agency, address policy issues, direct program initiatives, and make recommendations
regarding historic preservation to the President, Congress, and heads of other federal
agencies. Members meet four times per year to conduct business.
An Executive Committee, headed by the Chairman and Vice Chairman, governs agency
operations such as management, budget, legislative policy, and oversight of the most
prominent Section 106 cases. Also serving on the Executive Committee are the
Departments of Interior and Defense and ACHP members who chair three standing
committees that correspond to the ACHP's three program areas.
Preservation Initiatives focuses on partnerships and program initiatives such as heritage
tourism to promote preservation with groups such as state and local governments, Indian
tribes, and the private sector.
Communications, Education, and Outreach conveys the ACHP's vision and message to
constituents and the general public through public information and education programs and
a public recognition program for historic preservation achievement.
Federal Agency Programs administers the National Historic Preservation Act's Section
106 review process and works with federal agencies to help improve how they consider
historic preservation values in their programs.
A Budget and Planning Committee is convened under the direction of the Vice Chairman
and advises the Chairman and management on budget formulation and execution,
management and implementation of the strategic plan, and serves as the audit committee on
behalf of the membership.
A professional staff that supports the ACHP's daily operations is headquartered in
Washington, D.C.
Good faith effort
Prior to beginning the identification stage in the Section 106
process, the regulations (at 36 CFR § 800.4) require the federal
agency to do the following:
36 CFR 800.4.b.(1) Level of effort. The agency official shall make a
reasonable and good faith effort to carry out appropriate
identification efforts.
Determine and document the APE [Area of Potential Impact] in order to
define where the agency will look for historic properties that may be directly
or indirectly affected by the undertaking;
Review existing information on known and potential historic properties within
the APE, so the agency will have current data on what can be expected, or
may be encountered, within the APE;
Seek information from others who may have knowledge of historic properties
in the area.
Source: Advisory Council on
Historic Preservation
Section 106 Regulations Flow Chart
Initiate Section 106 Process
Identify Historic Properties
Assess Adverse Effects
Resolve Adverse Effects
Reasonable
The identification effort is reasonable when it is logically designed to identify
eligible properties that may be affected by the undertaking, without being
excessive or inadequate in light of the factors cited above. While it may be
appropriate in some circumstances to identify all historic properties in the
APE, it is important to note that the regulations do not require identification
of all properties. A reasonable identification plan is one that includes the
following:
Documentation of the horizontal and vertical extent of the APE that accounts for
direct and indirect effects;
An explanation of how the factors cited above inform the content and intensity of
the identification plan.
A review of existing information on historic properties within the APE
Cognizance of applicable professional, state, tribal, and local laws, standards, and
guidelines.
Familiarity with methodologies used in other historic property surveys in the area
that have been effective in terms of time and cost;
Clear description of the steps that will be taken--field, analysis, reporting and
consultation
Good plan, did they use it?
The identification effort is carried out in good faith when it is fully
implemented by or on behalf of the federal agency.
Plan includes consultation
Initiated in a timely manner, time for analysis and review
Carried out by a qualified individual or individuals
Supported by adequate funding and other necessary resources
Is not compromised by lack of integrity or omission, such as manipulating
or ignoring evidence.
Does not mean
“Approval” of a SHPO/THPO or other consulting party
Identification of every historic property within the APE
Predictive models that have been tested and found to be reasonably efficient
can also assist federal agencies to meet the “reasonable and good faith”
identification standard
Section 106 Regulations Summary
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Initiate Section 106 process
Identify historic properties
Assess adverse effects
Resolve adverse effects
Implementation
Failure to resolve adverse effects
§ 800.16 Definitions.
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(a) Act means the National Historic Preservation Act of 1966, as amended, 16
U.S.C. 470-470w-6.
(b) Agency means agency as defined in 5 U.S.C. 551.
(c) Approval of the expenditure of funds means any final agency decision
authorizing or permitting the expenditure of Federal funds or financial
assistance on an undertaking, including any agency decision that may be subject
to an administrative appeal.
(d) Area of potential effects means the geographic area or areas within which
an undertaking may directly or indirectly cause alterations in the character or
use of historic properties, if any such properties exist. The area of potential
effects is influenced by the scale and nature of an undertaking and may be
different for different kinds of effects caused by the undertaking.
(e) Comment means the findings and recommendations of the Council formally
provided in writing to the head of a Federal agency under section 106.
(f) Consultation means the process of seeking, discussing, and considering the
views of other participants, and, where feasible, seeking agreement with them
regarding matters arising in the section 106 process. The Secretary's “Standards
and Guidelines for Federal Agency Preservation Programs pursuant to the
National Historic Preservation Act” provide further guidance on consultation.
(g) Council means the Advisory Council on Historic Preservation or a Council
member or employee designated to act for the Council.
(h) Day or days means calendar days.
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(i) Effect means alteration to the characteristics of a historic property qualifying it for inclusion in or
eligibility for the National Register.
(j) Foreclosure means an action taken by an agency official that effectively precludes the Council
from providing comments which the agency official can meaningfully consider prior to the approval
of the undertaking.
(k) Head of the agency means the chief official of the Federal agency responsible for all aspects of
the agency's actions. If a State, local or tribal government has assumed or has been delegated
responsibility for section 106 compliance, the head of that unit of government shall be considered the
head of the agency.
(l)(1) Historic property means any prehistoric or historic district, site, building, structure, or object
included in, or eligible for inclusion in, the National Register of Historic Places maintained by the
Secretary of the Interior. This term includes artifacts, records, and remains that are related to and
located within such properties. The term includes properties of traditional religious and cultural
importance to an Indian tribe or Native Hawaiian organization and that meet the National Register
criteria.
(2) The term eligible for inclusion in the National Register includes both properties formally
determined as such in accordance with regulations of the Secretary of the Interior and all other
properties that meet the National Register criteria.
(m) Indian tribe means an Indian tribe, band, nation, or other organized group or community,
including a native village, regional corporation or village corporation, as those terms are defined in
section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602), which is recognized as
eligible for the special programs and services provided by the United States to Indians because of
their status as Indians.
(n) Local government means a city, county, parish, township, municipality, borough, or other general
purpose political subdivision of a State.
(o) Memorandum of agreement means the document that records the terms and conditions agreed
upon to resolve the adverse effects of an undertaking upon historic properties.
(p) National Historic Landmark means a historic property that the Secretary of the Interior has
designated a National Historic Landmark.
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(q) National Register means the National Register of Historic Places maintained by the Secretary of
the Interior.
(r) National Register criteria means the criteria established by the Secretary of the Interior for use in
evaluating the eligibility of properties for the National Register (36 CFR part 60).
(s)(1)Native Hawaiian organization means any organization which serves and represents the
interests of Native Hawaiians; has as a primary and stated purpose the provision of services to Native
Hawaiians; and has demonstrated expertise in aspects of historic preservation that are significant to
Native Hawaiians.
(2) Native Hawaiian means any individual who is a descendant of the aboriginal people who, prior to
1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii.
(t) Programmatic agreement means a document that records the terms and conditions agreed upon
to resolve the potential adverse effects of a Federal agency program, complex undertaking or other
situations in accordance with § 800.14(b).
(u) Secretary means the Secretary of the Interior acting through the Director of the National Park
Service except where otherwise specified.
(v) State Historic Preservation Officer (SHPO) means the official appointed or designated pursuant
to section 101(b)(1) of the act to administer the State historic preservation program or a representative
designated to act for the State historic preservation officer.
(w) Tribal Historic Preservation Officer (THPO)means the tribal official appointed by the tribe's
chief governing authority or designated by a tribal ordinance or preservation program who has
assumed the responsibilities of the SHPO for purposes of section 106 compliance on tribal lands in
accordance with section 101(d)(2) of the act.
(x) Tribal lands means all lands within the exterior boundaries of any Indian reservation and all
dependent Indian communities.
(y) Undertaking means a project, activity, or program funded in whole or in part under the direct or
indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal
agency; those carried out with Federal financial assistance; and those requiring a Federal permit,
license or approval.
(z) Senior policy official means the senior policy level official designated by the head of the agency
pursuant to section 3(e) of Executive Order 13287.