Section 106

1. Section 106 The reasons, the actions, the participants

2. 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.

3. 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

4. What does the Advisory Council Do? • 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.

5. 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.

6. Source: Advisory Council on Historic Preservation

7. Section 106 Regulations Flow Chart Initiate Section 106 Process Identify Historic Properties Assess Adverse Effects Resolve Adverse Effects

8. 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

9. 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

10. Section 106 Regulations Summary • Initiate Section 106 process • Identify historic properties • Assess adverse effects • Resolve adverse effects • Implementation • Failure to resolve adverse effects

11. § 800.16 Definitions.

12. (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.

13. (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.

14. (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.