The URL can be used to link to this page

Home My WebLink About09 - September Lloyd Yavener, Chair Jean Banzhoff Justin Bedard, Vice Chair Sarah Butler-Michael Ann Aldrich Alexa Vetter Brianna Candelaria Tyler Milam Randal Leatherman, Thomas Freeman BOCC Rep Heather Holman HISTORIC DISTRICT COMMISSION OF WASHINGTON COUNTY, MARYLAND The Historic District Commission reserves the right to vary the order in which the cases are called. Individuals requiring special accommodations are requested to contact the Washington County Planning Department at 240- 313-2430 to make arrangements no later than ten (10) days prior to the meeting. Notice is given that the agenda may be amended at any time up to and including the meeting. WWW.WASHCO-MD.NET 747 Northern Avenue | Hagerstown, MD 21742 | P: 240.313.2430 | F: 240.313.2431 | TDD: 7-1-1 AGENDA September 2, 2026, 6:00 p.m. Washington County Administration Complex, 100 West Washington Street, Room 2001, Hagerstown, MD 21740 CALL TO ORDER AND ROLL CALL MINUTES 1. Minutes of August 5, 2026, meeting * NEW BUSINESS 1. HTC-26-002, 205 E Main Street, Sharpsburg (WA-II-723(district)/WA-II-682 (house)) – (Discussion/Approval) – Part 3 documentation for tax credits at 205 E Main Street, Sharpsburg * 2. HTC-26-004, 20 Potomac Street, Boonsboro (WA-II-981(district)/WA-II-892 (house)) – (Discussion/Comment) – Part 1 and Part 2 documentation for tax credits for stoop railing * 3. RZ-26-006, 13302 Unger Road, Smithsburg (WA-I-148, Little Valley) - (Discussion/Consensus) Historic Preservation Zoning Overlay * 4. RZ-26-005, 20245 Mount Aetna Road, Hagerstown (WA-II-092, Henry McCauley Farm) - (Discussion/Consensus) – Historic Preservation Zoning Overlay * 5. Section 106 Proposed Process Changes (Discussion) * 6. John Frye Awards Planning Process and Role Assignments (Discussion) OTHER BUSINESS 1. Staff Report a. Staff Reviews * b. Town Tax Credit MOU Updates – Smithsburg & Funkstown ADJOURNMENT UPCOMING MEETING 1. Wednesday, October 7, 2026, 6:00 p.m. *attachments MINUTES OF THE HISTORIC DISTRICT COMMISSION FOR WASHINGTON COUNTY August 6, 2026 The Washington County Historic District Commission held its regular monthly meeting on Wednesday, August 5, 2026 at 6:00 p.m. in the Washington County Administrative Complex, 100 W. Washington Street, Room 2001, Hagerstown, Maryland CALL TO ORDER AND ROLL CALL The Chairman called the meeting to order at 6:00 p.m. Commission members present were: Lloyd Yavener, Chairman; Ann Aldrich, Tom Freeman, Alexa Vetter, Michael Lushbaugh, Justin Bedard, Brianna Candaleria, Jean (Nicki) Banzhoff, and Tyler Milam. Staff member present was: Washington County Department of Planning & Zoning: Meghan Jenkins, GIS Coordinator and HDC Staff member. MINUTES Motion and Vote: Ms. Aldrich made a motion to approve the minutes of the July 1, 2026 regular meeting as presented. The motion was seconded by Mr. Bedard and unanimously approved. NEW BUSINESS HTC-26-003 – 335 North Potomac Street, Hagerstown Ms. Jenkins presented Parts 1 and 2 documentation for tax credits at 335 North Potomac Street (also known as part of 337 North Potomac Street) (WA-HAG-158 and WA-HAG-159, Hagerstown Historic District and Potomac Broadway). The property owner is proposing some exterior updates and will be applying for State tax credits as well. OTHER BUSINESS Correspondence · Update on Request for Comment - Proposed Telecommunications Tower – 3417/3413 Rohrersville Road As of July 17th, the Section 106 review has been completed. MHT has responded there is no adverse effect on historic resources. Mr. Bedard explained that if the proposed regulation changes for Section 106 review are approved, visual effects as well as viewsheds and cultural landscapes will no longer be a consideration for adverse effecta on historic resources. The new regulations will also change the definition of historic resources. The HDC will no longer be considered as a consulting party. A written report will be submitted to and reviewed by the State’s Historic Preservation Office that may then provide written comments; public comment meetings will no longer be held. More discussion will be held at the next meeting. Staff Report · Staff Reviews - A written report was provided to members in the agenda packet. · Town Tax Credit MOU Updates – The Towns of Smithsburg and Funkstown MOUs have been received; however, a signature block is needed for the County Attorney’s signature. · Land Preservation Parks and Recreation Plan Initial Survey – The online survey has been left open in order to receive additional public comment. Ms. Jenkins gave a brief overview of the responsibilities of the Department of Planning & Zoning. She encouraged members to participate in the public survey process. · Preservation Maryland meeting summary/update on Price’s Mill Bridge – Representatives of Preservation Maryland met with County staff on July 29th to discuss Price’s Mill Bridge. This is a five-arch bridge dating back to 1832 and is owned by the County. The bridge is currently in significant disrepair and is slated for demolition per County’s Capital Improvements Plan. The property owner adjacent to the bridge has been amenable to the County accessing the riverbed for clean up purposes. It has been suggested that the bridge be used as a gateway for a water trail park with the bridge being restored. However, the property owner is not amenable to giving land for a park at this time. Ms. Jenkins explained that grants for bridges without vehicular traffic are very limited. Preservation Maryland will continue to keep in contact with staff and try to assist in working with the property owner for access. If demolition does occur, Preservation Maryland could possibly assist in reaching a broader audience for reuse of the materials. · Certified Destination Ambassador Program – Ms. Jenkins gave a brief overview of a new program to help museum staff learn about new destinations, hospitality, and tourism assets within the County. · MHT Non-Capital Grant – The grant was submitted to assist in the update of the County’s Eakle Mill Rural Village. · Heart of the Civil War Heritage Area – Mini-grants are currently open through October 30th. These are also non-capital grants with a maximum funding of $5,000. ADJOURNMENT Mr. Lushbaugh made a motion to adjourn the meeting at 6:55 pm. The motion was seconded by Mr. Milam, unanimously approved and so ordered by the Chairman. UPCOMING MEETINGS 1. Wednesday, September 2, 2026, 6:00 p.m. Respectfully submitted, ______________________________________ Lloyd Yavener, Chairman v.07/26/2024 Page 1 | Part III – Request for Certification of Completed Work Application for Historic Properties Tax Credit ORDINANCE 2024-23 Part III – Request for Certification of Completed Work HTC Number (from Part I Application):_______________ Instructions: Fill out this form at project completion for review of the rehabilitation costs and determination of project results consistent with Secretary of Interior’s Standards for Rehabilitation. PROPERTY INFORMATION Property Name Street Address City Zip APPLICANT INFORMATION Name Street Address City State Zip Telephone Email Address PROJECT CONTACT (if different from applicant) Name Company Street Address City State Zip Telephone Email Address PROJECT DATA Project Start Date Project Completion Date Total Rehabilitation Costs Total Ineligible Expenses Total Qualified Rehabilitation Expenditures (QRE) Western half of Lot No. 87 205 E Main St Sharpsburg 21782 Kourtney Lowery 205 E Main St, PO BOX 387 Sharpsburg Maryland 21782 Christopher Adams Broad Run Construction 6400 Burkittsville Rd. Middletown Maryland 21769 (301) 371-0002 admin@broadrunconstruction.com 06/29/2026 7/6/26 $ 23,360.00 $ 2,340.00 $ 21,020.00 Rear of house (after) Close-up of rear of house (after) Partial front of house - close up - (after) Front of house/roof (After) Front of House/Roof (after) Property Address: 205 E Main Sharpsburg, MD Part 3 Itemized Expense Sheet FOR HDC USE ONLY HTC Number:_HTC-26-002____ COLUMN 1 COLUMN 2 COLUMN 3 COLUMN 4 COLUMN 5 COLUMN 6 COLUMN 7 COLUMN 8 Date of Payment Your page #(s) of invoice / receipt / check Payee for Item (name of contractor, company, etc.) Part 2 Work Item # Description of Expenditure Expenditure Amount Eligible Expense Ineligible Expense 5/8/2026 Check 1016 Brod Run Construction 1 Roofing Installation Deposit $9,790.00 $9,790.00 7/23/2026 Check 1018 Broad Run Construction 1rev Roofing and Guttering $13,570.00 $11,230.00 $2,340.00 $23,360.00 $21,020.00 $2,340.00 $21,020.00 SUBTOTALS (will auto-calculate): Part 3 Total Qualified Rehabilitation Expenditures as submitted: 20260809_173731 20260809_173752 20260809_174555 20260809_174608 20260819_165618 20260819_165706 20260819_165747 20260819_165750 20260819_165825 20260819_182443 20260819_183145 Estimate JLGetridge LLC 133 E Main St Sharpsburg, MD 21782 240-816-1943 JLGetridgeLLC@gmail.com BILL TO ESTIMATE #81132 Leslie Haardt Sean Haardt boonsboro md. ESTIMATE DATE 08/19/2026 QTY DESCRIPTION UNIT PRICE AMOUNT 5 concrete drilling up to 2 inch. hole 4 inch deep 55.00 275.00 5 concrete to railing adhesive ,ller 14.95 74.75 8 heavy matal cut 11.00 88.00 4 welding/ metalworking 80.00 320.00 5 1' foot 1 1/4" x 1 1/4" square metal tube 3/16" thick wall 18.43 92.15 3 wrought iron railing install labor 50.00 150.00 Subtotal 999.90 Sales Tax 6.0% 34.50 TOTAL $1,034.40 ank you Terms & Conditions Estimates are valid for 30 days but material pricing is subject to change daily. Final invoices are not guaranteed to match exactly. Estimate is for Labor cost only, no materials included unless speci,cally stated Estimates totaling more than 3k require 50% down payment prior to start of project, remaining 50% and any additional costs due at time of completion. Payments may be made via certi,ed check to JLGetridge LLC or through Venmo @JLGLLC 1_Front Facade, facing NE 2_front facade_far_facing northeast 3_Eastern facade, facing N 4_Eastern Facade datestone detail 5_well pump house, adjacent to east side of house 6_window detail, rear facade 7_Rear Facade, facing S 8_original window detail 9_original window detail 10_rear facade at northernmost end, facing SW 11_Rear Facade, facing south 12_Rear facade, west side, facing S 13_facing SE, rear section at filled opening 14_ door detail, west side of house, facing northeast 15_western side of the structure, facing east 16_northwest side of the structure where wall meets 17_northeast of house_unused in ground pool 18_barn, northeast facade, facing south 19_barn, northwest side, facing northeast 20_barn_southwest facade, facing northeast 21_Hand dug well to south west of barn 22_hand dug well to south west of barn_2 23_old road bed facing south with wall 24_northern edge of property at creek ford 25_old road bed facing south 26_old roadbed retaining wall facing north 27_old roadbed facing north_below barn . * • ·;f . J,·M A R Y L A N D ,, 1i16 1Washington County] FOR PLANNING COMMISSION USE ONLY Rezoning No. _______ _ Date Filed: ________ _ WASHINGTON COUNTY PLANNING COMMISSION ZONING ORDINANCE MAP AMENDMENT APPLICATION Washington County Department of Planning and Zoning Applicant 20245 Mount Aetna Road, Hagerstown, MD 21742 Address Meghan Jenkins Primary Contact 747 Northern Avenue, Hagerstown, MD 21742 Address �Property Owner □Contract Purchaser □Attorney □Consultant □Other: __________ _ 240-313-2439 Phone Number mjenkins@washco-md.net E-mail Address P L . 20245 Mount Aetna Road, Hagerstown, MD 21742 roperty ocat1on: ________________________ _ TaxMap:5O Grid:22 ParcelNo.:4 Acreage: 244.7532 Tax Account ID:10-031788 RT-Residential, Transition . HP Overlay with RT Current Zoning: _________ Requested Zomng: _________ _ Reason for the Request: □Change in the character of the neighborhood □Mistake in original zoning..----------------r-..t loating or overlay zoning district AMANDA HART BROOKSNOTARY PUBLIC MARYLAND MY COMMISSION EXPIRES OCTOBER 6, 2027 Applicant's Signature Subscribed and sworn before me this /._ '-/ day o�, 20 Lf.o Mycommission expires on !D/&/ZoZ"f-_�----G:___ Notary Public � Application Form □Fee Worksheet□Application Fee □Ownership Verification orOwner's Affidavit FOR PLANNING COMMISSION USE ONLY � Boundary Plat (Including Metes & Bounds) � Vicinity Map � Justification Statement □2 hard copies and 1 digital copy ofcomplete Application Package !"#$%&'(6#789:;;:<=>?7 @ABBC41,5D*EAC+13F1,G!HIJ>=JK=LIH.C2+B9*B+1DC1MN)1E*,OBCP+N81OQA+EBC+0C2+B-R #S2A3MA+E!TR>+MU21,B*,K=BQ/*+B2,-YZ[\Z[#/,AWBAC+^_ #`R#a Tb[#$b#["c $cc" ZT[#T b#bT [_ccT_["T6 [c cT[ca["6cc$ 6dcee$TfT"cT#6 ee _ [#T TT6_[cT" T!Z c [ZT"6c#Zcb[#[#6#! Z[$ T$ g" #T [T cT[c[#T T_ #c ["T _T6c Tc[[ c_TT6T _c #c_cc"[c# # c"$# T ["[$ccT cZ#[[h [[c[h ?# `R##&[7T[ c T c iAE+AjA/1+/*^_ #`R#a TcT !a "Z#$ T[ T TTd R#d`#c["c [ _["`Z$[[#[[c&%&k%$c6 Th["T b&#[cT$c6Tcc"$ T#hTc T_ b["[T #Tc[ #6d`#_ [""c #cZc T c T[ WA-II-092 Henry McCauley Farm (Ditto Farm Regional Park) Architectural Survey File This is the architectural survey file for this MIHP record. The survey file is organized reverse- chronological (that is, with the latest material on top). It contains all MIHP inventory forms, National Register nomination forms, determinations of eligibility (DOE) forms, and accompanying documentation such as photographs and maps. Users should be aware that additional undigitized material about this property may be found in on-site architectural reports, copies of HABS/HAER or other documentation, drawings, and the “vertical files” at the MHT Library in Crownsville. The vertical files may include newspaper clippings, field notes, draft versions of forms and architectural reports, photographs, maps, and drawings. Researchers who need a thorough understanding of this property should plan to visit the MHT Library as part of their research project; look at the MHT web site (mht.maryland.gov) for details about how to make an appointment. All material is property of the Maryland Historical Trust. Last Updated: 03-12-2004 Form No. 1Q-300 (Rev. 10-741 UNITEO STATES DEPARTMENT OF THE INTERIOR NATIONAL PARK SERVICE NATIONAL REGISTER OF IDSTORIC PLACES -INVENTORY·· NOMINATION FORM FOR NPS USE ONLY RECEIVED DATE ENTERED SEE INSTRUCTIONS IN HOW TO COMPLETE NATIONAL REGISTER FORMS TYPE ALL ENTRIES --COMPLETE APPLICABLE SECTIONS DNAME HISTORIC Henry McCauley Farm AND/OR COMMON Ditto Farm Regional Park flLOCATION STREET Ii NUMBER Mount Aetna Rd, One mile west of Edgewood Drive _NOT FOR PUBLICATION CITY, TOWN CONGRESSIONAL DISTRICT Hagerstown STATE Maryland DcLASSIFICA TION CATEGORY OWNERSHIP _DISTRICT ~PUBLIC X-IUILDINGCSI _PRIVATE Jt VICINITY OF CODE STATUS LOCCUPIED -UNOCCUPIED Sixth COUNTY Washington CODE PRESENT USE JLAGRICULTURE X -MUSEUM _COM!li4ERCIAL X _PARK -STRUCTURE _BOTH _WORK IN PROGRESS -EDUCATIONAL _PRIVATE RESIDENCE -SITE PUBLIC ACQUISITION -OBJECT _IN PROCESS ACCESSIBLE -YES: RESTRICTED _ENTERTAINMENT -RELIGIOUS _GOVERNMENT -SCIENTIFIC _BEING CONSIDERED -YES: UNRESTRICTED _INDUSTRIAL _MILITARY X....NO DOWNER OF PROPERTY NAME Board of County Commissioners of Washington County STREET Ii NUMBER Washington County Courthouse CITY.TOWN Hagerstown _ VICINITY OF llLOCATION OF LEGAL DESCRIPTION COURTHOUSE. Liber fl: Folio #: STATE Maryland REGISTRY OF DEEDS, ETC. Washington County Courthouse STREET Ii NUMBER CITY. TOWN West Was~ington Street Hagerstown STATE Maryland II REPRESENTATION IN EXISTING SURVEYS TITLE DATE DEPOSITORY FOR SURVEY RECORDS CITY. TOWN -FEDERAL _STATE -COUNTY _LOCAL STATE -TRANSPORTATION -OTHER: , .. I ,SCRIPTION -EXCELLENT '--GOOD -FAIR CONDITION _DETERIORATED _RUINS _ UNEXPOSED CHECK ONE X_UNALTERED _ALTERED CHECK ONE X_QRIGINAL SITE _MOVED DATE __ _ DESCRIBE THE PRESENT AND ORIGINAL (IF KNOWN) PHYSICAL APPEARANCE The fatlll is located on the south side of Mt, Aetna Road, about one mile east of its intersection with Edgewood Drive in Washington County, Haryland, in the Ditto Farm Regional Park. It is situated on the side of a hill and faces north or twoard Mr. Aetna Road. The structure is a four bay, two story brick dwelling, painted deep red with white and dark green trim, A four bay ell extends to the rear or south bf the main sec tion and a small one story shed roof addition is attached to the sputh gable end. The walls are set on low limestone foundations. The bricks of all elevations are laid in common bond with numerous rows of stretchers between headers. Flat brick arches are present over all windows, including those at the attic.ievel. Windows are located on all sides of the building. They contain six over six pane double hung sashes within narrow wooden frames finished wlth a bead. Windows of the facade are flanked by paneled shutters at the first story and ~y louvred shutters at the second floor level. Smaller six over six pane sas~es illuminate the attic. The main entrance is located in the third bay from the east end of the front elevation. The double doors are each decorated with pairs of rounded panels. Flanking the doors are attached columns of the plain doric order. A transom and --1ide lights with diamond panes surround the entrance inside paneled jambs and a paneled head. A flat brick arch is present over the doorway. A two-bay entrance porch is supported by heavy doric posts or cokmnns. An en closed double porch, included under the main roof span of the ell extends·along the east side. • I • ~ _. . '-.... -. Brick chimneys rise from inside each gable end and from the west side of the house between the third and fourth bays from the south end of the ell. The chimneys are large with protruding bricks forming a rim at the top • .. .. • ... .. J ,,. The roof is covered with sheet metal and is finished with beaded barge boards placed against the end walls. The interior of the front section is di'Vided·into four· rooms. The northwest room contains only a spiral stair which is open to the attic. The interior woodwork is rather elaborate with doors surrounded by symmetrically molded trim with decorated corner blocks. In additon to the house the property contains a large stone and bank barn. The barn is located northwest of the house and is situated with its north gable at the edge of Mr. Aetna Road. Its end walls are constructed of coursed local fieldstone. Vertical slits in the stcnework provide ventilation for the interior. A partially readable date stone set in the barn's north gable is inscribed with the builder's name and date. Only the name McCauley and the year 1833 could be read. In the north ...-..levation above the date stone is a round opening surrounded with carefully cut blocks • .1."he side walls are of frame construction above the ground story. The sheathing is See continuation sheet I 1. '"" NITED STAH.S DEPARTMENT OF THE INTERIOR NATIONAL PARK SERVICE '"TIONAL REGISTER OF IIlSTORIC PLACES INVENTORY--NOMINATION FORM Henry McCauley Farm, Ditto Farm Regional Park Washington County, Maryland. CONTINUATION SHEET ITEM NUMBER lvA -11:.-Id- FOR NPS USE ONLY RECEIVED OA TE ENTERED 7 PAGE 1 painted red with white trim. The roofing material is corrugated sheet metal. Near the house and southeast of the barn is a metal windmill for pumping water. A modern dairy barn not included in this nomination is located some distance east of the house. The structures appear to be in good to excellent condition • . , - GPO 99Z o&55 l . ,, NIFICANCE JO AREAS OF SIGNIFICANCE --CHECK AND JUSTIFY BELOW HSTORIC _ARCHEOLOuY·PREHISTORIC _COMMUNITY PLANNING _LANDSCAPE ARCHITECTURE _RELIGION .W-1499 -ARCHEOLOGY-HISTORIC _CONSERVATION _LAW _SCIENCE 1500· 1599 -AGRICULTURE _ECONOMICS -LITERATURE _SCULPTURE -1600·1699 -ARCHITECTURE _EDUCATION _MILITARY _SOCIAUHUMANITARIAN _1700·1799 _ART _ENGINEERING _MUSIC _THEATER t _1800-1899 _COMMERCE _EXPLORATION/SETTLEMENT _PHILOSOPHY _TRANSPORTATION _1900· _COMMUNICATIONS _INDUSTRY _POLITICS/GOVERNMENT _OTHER CSPECIFYI _INVENTION SPECIFIC DATES BUILDER/ARCHITECT STATEMENT OF SIGNIFICANCE The Henry McCauley Farm is one of the two historic f at'JI\ complexes in the Ditto Farm Regional Park which will, in addition to recreational activity. intet:pret fartlling in western Maryland. The Henry McCauley Farm & Ditto Knolls (see separate National Register nomination) will be restored as part of the park~ The Henry McCauley Farm is important for it' architecture and place in Washington· county history, Architecturally the complex of buildings is a significant exmnple of the construction patten:i.s of Washington County and Western Maryland where atone and brick were illlportant building materials. The brick house on Mt, Aetna Road, probably built between 1830 and 1850, is a well preserved example of the area's brick architecture from.the mid 19th century. Its elaborate entrance and spiral stair which are unusual for the area, as well as the extensive use of decorative interior woodwork, suggests that tpis house is one of ..-...~ County's finer dwellings of the period. The large stone-end bank barns found at the ~omplex is typical of such structures w~ich_~ppear to be indiginous to South~rn P~~~sylvan~a and Western Maryland. The Mt. Aetna Road complex also includes a brick out kitchen which appears contemporary with the house. The windmill for pumping eater is also significant since such structures are becoming rare in the area. The property along Mt. Aetna 'ltoad wi:.s· known in the past as the ''He~ry McCauley Farm." It was bequeathed to h~ by Charles McCauley as evidenced in his will probated March 9, 1830. Charles McCauley acquired the land in 1799, 1801 and 1802 from Alexander Clagett, Jacob Schnebly, and Peter Adams respectively. The McCauley family were prominent farmers f.n Washington County. The lands making up this farm include part of the original grants, "Meshek's Garden," "Resurvey On Old Fox Deceived," and "Cobbler's Hall." • ~JOR BIBLIOGRAPHICAL REFERENCES Washington County Land & Probate Records --.ngton County Courthouse ~~stown. Maryland Di]GEOGRAPHICALDATA 5 ACREAGE OF NOMINATED PROPERTY------- UTM REFERENCES Al..h!j ¥ 17, 1! 41 61 01 j 4, 318, 8J 1, 4, 0! ZONE EASTING NORTHING cLLJ I I , I 1 , I I 1 I 1 I, , I VERBAL BOUNDARY DE.SCRIPTION el..i_J I I 1 I D IZ~Ni EASTING I I I I I I I I I I NORTHING I I I I I I LIST ALL STATES AND COUNTIES FOR PROPERTIES OVERLAPPING STATE OR COUNTY BOUNDARIES STATE CODE COUNTY CODE STATE CODE COUNTY CODE dJFORM PREPARED BY NAME /TITLE Paula Stoner Dickey, Consultant ORGAN!ZA TION Washington County Historic Sites Survey DATE April 1974 STREET a NUMBER TELEPHONE 301-791-3065 Court House Annex CITY OR TOWN STATE Hagerstown ~~aryland lfJSTATE HISTORIC PRESERVATION OFFICER CERTIFICATION THE EVALUATED SIGNIFICANCE OF THIS PROPERTY WITHIN THE STATE }5: NATIONAL_ STATE__ LOCAL'::f:::::,. As the designated State Historic Preservation Officer for the National Historic Preservation Act of 1968 (Public Law 89-665).1 hereby nominate this property for inclusion in the National Register and certify that it has been evaluated according to the criteria and procedures set forth by the National Park Service. STATE HISTORIC PRESERVATION OFFICER SIGNATURE TITLE FOR NPS USE ONLY I HEREBY CERTIFY ntAT THIS PROPERTY IS INCLUDED IN THE NATIONAL REGISTER DIRECTOR. OFFICE OF ARCHEOLOGY AND HISTORIC PRESERVATION ATIEST: KC:EPER OF THE NATIONAL REGISTER DATE . .DATE DATE z 0 .... z w w MARYLAND HISTORICAL TRUST WORKSHEET Copy II NOMINATION FORM for the HISTORIC PLACES, WA-II-092 NATIONAL REGISTER OF NATIONAL PARKS SERVICE . 11. NAME ·,·· e· . •/;"I' '~:" 1. -:~ . ' . . COMMON: Ditto ~e:l:::l::s F t\1tVY'1 Re r.: lfr\ Wl ·P&\~ AN 0/ OR HI STORI C1 .., The Henr~ M~Caylev Farm 12. LOCATION ' .. } . ~ STRElt r ANO NUMBER1 Mt. Aetna Road, about 1 mile west of Edgewood Drive CITY OR TOWN! Hagerstown STATE I I COUNTY: I Maryland Washington 13. CLASSIFICATION-"~ 'f .ii .. CATEGORY OWNERS)ilP STATUS ACCESSIBLE (Checlc One) TO THE PUBLIC D Di•ttlct rg) Bui I dint D Public Public Acquialtion: ~ Occupied YH: D Sit• 0 Structure RI Prl¥Clle 0 In Procell 0 Unoccupied 0 Reatrlcted 0 ObJect 0 Both 0 Being Con•ldered 0 PrwHr¥otlon work 0 UnrHtrleted I In pro9reaa Iii No I PRESl:NT USI: (C/l•clt One or More oe Approprfofe) ~ A9r1culturel 0 Go¥ern-nt 0 Pork 0 Tranaportotion o c-ent• I I 0 COl!Ufterclal 0 lnduatrlol CR! Prl¥ale Real.Jenee 0 Other (S,..cl1') 0 Educatlonol 0 Mllltary 0 Rell91oua 0 Entertolnfllent 0 Museum 0 Scientific !4. OWNER OF PROPEttTY .,,, "-' . ~· " " 'j ··~ .; "· 'c .. "'"NER S NAME Edw&r-d ..w Dk&&, Jy. ' K.D. B~(\.J\o c.(" r ,. ...... ,-. ((l"n"'\fr\t <!I~, i a VJ (I th I .n ty.._( STREET ANO NUMBl:R: -. " 1702 Cathedrai. Avenue ~h1f'~Y... ~"'3 '"~ CITY OR TOWN: -'STATE• I Hagerstown Maryland lf· t.OCAfiO'NOF LE.GAL DESCRIPTION <· ·" ® %. ' ' $. -~~ COURTHOUSE, REGISTRY OF OEltOS CTC: Washington County Court House STREET ANO NUMBltRt West Washin2ton Street CITY OR TOWN1 I STATE I Ha2erstown Maryland ~itle Reference of Current DiPiPn {Book & Pa_ . ) : 1~~/243 l'.t ~tf>RUEHT.ATION iM EXIUfNC SURVEYS ~ ~.l'•;.! TITLE 01" SURVCY1 OATE 01" SURVEY1 0 Federal 0 Stat• 0 Co11nty 0 Local bEPOSITORY l"OR SURVEY RECOROS1 ITR11.aT ANO NUMBCR1 CITY OR TOWN1 rTATltt I .. --- ' CONDITION 0 Excellent ~ Altered " Ii() Good 0 Foir (Cllecll: One) 0 Unaltered ( Cllecll: One) 0 O.terioroted I DESCRIBE THE PRESENT> •D ORIGIN Al. (It ll:nown) PHYSICAL.. APPEARANCE 0 Ruins 0 •UnexpoHd (CllecJr One) 0 Moved ~ Orlglnol Site This house is located on the south side of Mt . Aetna Road, about one mile east of its intersection with Edgewood Drive in Washington County, Maryland. It is situated on the side of a hill and faces north or toward Mt. Aetna Road . The structure is a four-bay, two-story brick dwelling, painted deep red with white and dark green trim. A four-bay el extends to the rear or south of the main section and a small one-story shed roof addition is attached to the south gable end. The walls are set on low limestone foundations. The bricks of all ele vations are laid in common bond with numerous rows of stretchers between headers . Flat brick arches are present over all windows, including those at the attic level. Windows are located on all sides of the building. They contain six-over six pane double-h1JJ;1g sashes within narrow wooden frames finished with a bead . Windows of tlie facade are flanked by paneled shutters at the first story and by louvered shutters at the second floor level. Smaller six over-six pane sashes illuminate the attic,;' The main entrance is located in the third bay from the east end of the front elevation. The double doors are each decorated with pairs of founded panels . Flanking the doors are attached columns of the plain doric order. A transom and side lights with diamond panes surround the entrance inside paneled jambs and a paneled head. A f l at brick arch is present over the doorway . A two-bay entrance porch is supported by heavy doric posts or columns. An enclosed double porch, included under the main roof span of the el extends along the east side. Brick chimneys rise from inside each gable end and from the west side of the house between the third and fourth bays from.the soutq end of the el. The chimneys are large with protruding bricks forming a rim at the top . The roof is covered with sheet metal and is finished with beaded barge boards placed against the end walls. The interior of the front section is divided into four rooms . The north west room contains only a spiral stair which is open to the attic. The interior woodwork is rather eleborate with doors surrounded by syunnetri cally molded trim with decorated corner blocks./ In addition to the house the property contains a large stone end bank barn.~A family cemetery is also located on the property. Near the house i~indmi11 for pumping water. The property contains 170 acres. A partially readable date stone set in the barn 's north gable is f inscribed with the builder 's name and date. Only the name McCauley and ~e year 1833 could be read. sit.:~~~ is OHc ~~ The barn is located northwest of tho house and is situated with its north gable at the edge of Mt . Aetna Road . Its end walls are constructed of coursed ~ocal. fieldstone . Vertical slits in the stonework provide ventilati on lQr the interior . In the north gable end of t he structure , above the date sttrrle is a round opening surrounded with careful ly cut blocks . The side(elevati ons are frame above the ground sto1y. The sheathing i s painted red with white trim . The roofing mater ial is corrugated sheet metal . m m z 0 z z 0 z w w WA -1l -1J- P£RIOllt..{Checlr One or More•• Appropriate) " . -oluml.ton 0 16th Century 0 15th Century 0 17th Century SPEC! FIC DATE($) (lf Appllc•bl• end Knowt\) AREAS OF SIGNIFICANCE (Checll One or More •• Appropriate) Abor iglnol 0 Education 0 Prehistoric O EnginHring O Historic O Agriculture fia Architecture 0 Alt 0 COF11merce 0 Communication• 0 Con.•ervotion , ' STATEMENT OF SIGNIFICANCE I 0 Industry 0 Invention 0 Lonclscap• Architecture 0 Literature O Military O "Muslc 0 l81h Century n 20th Century 8;i 19th Century (mid) O Politico! 0 Religion/Phi. losophy D Science 0 Sculpture 0 Soc:io l/Humon· I tor ion 0 Theater 0 ·tJC1n•p0'1'111tlon 0 Urban Planning 0 Other (Specify-) The area of significance of this house is its architecture. Probably built between 1830 and 1850 it is a well-preserved example of the area's mid 19th century brick architecture. The main entrance , stair and interior woodwork would suggest that it is one of the area's finer houses of the period. Since much of its original interior and exterior woodwork remains the house is important as a building which has received only minimal alterations. The large stone end barn present on the property is worhty of note as an excellent example of such structures which are indiginous to Pennsylvania and Western Maryland. The windmill for pumping water is also significant since they are becoming rare in the area. The property was known in the past as the "Henry McCauley Farm. 11 It was bequeathed to him by Charles McCauley as evidenced in his will, probated March 9, 1830. Charles McCauley acquired the land between 1799 and 1801. (See deed listings on attached sheets....) :-; tr-~ •I .,, r r . . '.. .. • s: J!: ~JOR IJillOGRAPHICAL REPERtMCH .. . -,~ ,_ f 10. GEOGRAPHICAL DATA '---.---,;;..;.,.;;..;------:..;...;.=-;;.....--..;_ __________ ~-------------.,.---------:"""'.'."~...,,..,=-:-,..,"""""-:-,-----------------~"'-',;__ l...ATITUO£ ANO LONc.;1TUO£ COORDINATES L.ATITUOE AND LONGITUOlt COOAOINATl'.S ·- DEFINING A AECTANGL.E L.OCATING no: PROPERTY 0 OllFINING THI! CllNTCR POINT OF A PAOPl'.ATY i~-----,.-------------------..------------------~Rr-------------O-F __ L._E_s_S_T_H_ATN __ T~F~N--A~C~A~E~S::.__~---------4 C:ORNCR L.4TITUOE L.ONGITUOE L.ATITU0£ LONGITUOC Oegr••• Minute• Second• Degrees Minute• Second• Oegr••• Min11t•• Seconds Degr••• Minute• S.cCU1d• NW 0 . . 0 . . 0 • • 0 • .. NE 0 . . 0 . . SE 0 . . 0 . . c;w 0 . . 0 . APPROXIMATE ACl'lltAGE OF NOMINATED PAOPEATY• Acreage Justification: !LIST ALL. STATES ANO COUNTlll:I FOR PROPl:RTIES OV£RLAPPING STATE OR COUNTY llOUNOAIUES ST ATI:: COUNTY STATE: COUl'<TYI STATE: COUNTY · STATE1 COUNTY! ft I. FORM PREPAREO BY ' NAME ANO TITLE• Paula Stoner Dickey, Consultant IDATE April, 1974 ORCOANI ZA TION Washington Cotmty Historic Sites Survey STREET ANO NUMllEl\1 Court House Annex CITY OA TOWN: STAT£ Hagerstown Maryland ~State Liaison Officer Review: {Office Use Only) Significance of this proper ty is: National O State O Local 0 Signature m m z v .... ~ c:: n .... 0 z - Deed Records --WA-II-092 --Ditto Knolls ("Hen=y McCauley Farm") Liber 184, Folio 243, March 27, 1930 Grantors: J. Cleveland Grice & Omer T. Kaylor, Trustees Grantor: Dr. Edward W. Ditto $7,990, 170 acres. The property is described as the ''Henry McCauley Farm." Liber 112, Folio 92, January 23, 1900 Grantor: Charles McCauley & Daniel Gilbert, Trustees Grantee: Samuel Funk $8,700, 170 acres Conveyed to Henry McCauley in the will of Charles McCauley, probated March 9, 1830 (will book C, Folio 413) Liber II, Folio 185, January 3, 1827 Grantor: John McCauley, Ross Co., Ohio Grantee: Samuel McCauley & Charles McCauley $16,530, 413-1/4 acres. This document ~s for lands described in the following three deeds: Liber O, Folio 319, April 19, 1802 Grantor: Peter Adams Grantee: Charles McCauley 58 acres, 500 h. The tract is described as part of the ''Resurvey on Mesheck's Garden," beginning 28 perches on 11th line of "Old Fox Deceived.11 It was to have been conveyed to said Charles McCauley by deed dated March 27, 1801 which was defective. Liber N, Folio 518, June 1, 1801 Grantor: Jacob Schnebly Grantee: Charles McCauley 712 I:i, 2 s., 9 p., the tract is described as part of "Meschek' s Garden" 88 acres. Liber L, Folio 569, March 19, 1799 Grantor: Alexander Claggett Grantee: Charles McCauley 1, 739 :b, 10 s. Part of resurvey on ''Masheck' s Garden" beginning on first line on the tract of resurvey on "Old Fox Deceived" 235 acres, 16 perches, part 2, part of "Colonel" 13-1/2 acres. ) I ,. ·~ ··'r • 0 -· , r a. ) WA·ll .-oqA APPROXIMATE n~ Puu..{. NOT IN SCALE N-+ . J )7"-/ ;:<s. .0 /c Xey .,. L• STONER DICKEY CONSULTANT, WASHINGTON CO. HISTORICAL SITES SURVEY ... srn:1ER DICKEY CONSULTANT, WASHINGTON CO. HISTORICAL s1ru SURVEY ~~ 'olq DICKCY -.ONSUl I "H, 11•1 itll'13fON co HISl Olli CM SITES !iUllVfV PAULA STONER DICKEY .. oNSULT'.IT, NASHI'% TON CO. HISTORICAL sm.s SURVEY I l'f LA STON!:R DICKEY -..j:b;JL!ANT. Wl\.StrNGTON CO. HISTORICAL SITES SURVEY I PAl.JLA STONER DICKEY CONSULT ~ff. t'IASr INGTON CO. HISTORICAL SITES SURVEY PAULA STONER DICKEY eot!SULTMT. WASHINGTOff CO. lll'IUmCAl SfTD IUllVlY I , I PAULA ~!9f## MIO' CONSULTimf. fA:§Hl#GTON CO. .. ~\itSKIEAi: §lftl IUIMY. 1_Front Facade 2_Front Facade with Retwall 3_front porch and second story 4_left side of house 5_left side of house chimney 6_left side of house foundation 7_rear left side 8_rear left side (2) 9_rear facade with pt smokehouse 10_right facade 11_right facade at chimney 12_front door 13_front window with both shutters 14_open shutter_hardware front window 15_shutter on front window 16_front porch ceiling 17_front porch column_railing 18_smokehouse 19_smokehouse interior 19a_brick detail at smokehouse 20_summer kitchen full 21_summer kitchen 22_privvy 23_windmill 24_windmilldetail Section 106 Is Under Threat: Please Oppose Regulatory Changes The Advisory Council on Historic Preservation (ACHP) is advancing a sweeping and damaging proposal to rewrite the regulations for Section 106 of the National Historic Preservation Act (NHPA). If implemented, these new rules would dramatically diminish the effectiveness of the NHPA and the current legal protections for historic and cultural places. Since the enactment of NHPA 60 years ago, Section 106 has been the foundational requirement for federal agencies to “take into account” the effects of their actions on historic properties and places, enabling public participation and comment in the process, empowering state and local governments and tribal communities to have a voice in the process, and often improving the project and enhancing the outcome. The ACHP Proposal Would Eviscerate This Process And Principles These new regulations will lead to more delays and more litigation as federal agencies and ap- plicants try to navigate compliance without the well-known and well-used consultation process, which often leads to negotiated win-win outcomes. The preservation community and our part- ners across the country are mobilizing to fight this harmful proposal. Some of the most disturbing aspects of the proposed changes include: • Federal agencies will no longer be required to try to avoid or minimize damage to America’s historic architecture, neighborhoods, and landscapes. • State and local governments will no longer have the right to be notified or have the opportunity to comment when federal agencies propose to damage or destroy historic places within their jurisdiction. • The public’s opportunity to comment on federal historic preservation policies or actions would now be entirely optional, at the discretion of the federal agency. • The federal government will no longer be required to consult with Native American tribes or seek their expertise regarding their own significant cultural resources. • Significant cultural landscape features would no longer be considered historic properties, so federal agencies would no longer be required to take into account any adverse effects to significant places such as the Grand Canyon. • Federal agencies would no longer be required to consider the reasonably foreseeable consequences of their actions on historic properties, other than direct actions that physically damage the properties. • These regulations are inconsistent with the National Historic Preservation Act and would violate the Council’s own rules and procedures. • The proposed changes are also internally inconsistent and riddled with errors, likely to cause enormous regulatory confusion and chaos. Help Protect America’s Historic and Cultural Heritage To stay informed on the latest developments, including action alerts, please visit: https://savingplaces.org/section106 Section 106 Regulations Under Threat: Specifics on the Technical Complexities August 12, 2026 1 Featuring: Shaw Sprague, Vice President of Government Relations, National Trust for Historic Preservation Betsy Merritt, Deputy General Counsel, National Trustfor Historic Preservation Permitting Reform and Section 106: Why Statute Matters The relationship between federal law, regulation, and congressional intent. 3 Current Environment Two reform efforts are happening simultaneously: Administration / ACHP: agency is pursuing a comprehensive revision of NHPA’s Section 106. Congress: Senate negotiations and legislation seek to make federal permitting more predictable, efficient, and timely. •Legislative language reforming NHPA’s Section 106 process is under development. •Legislative text could be released in September 4 Understanding the difference: Statute v. Regulation 5 Statute •Passed by Congress and signed by the President—or enacted over a veto. •Establishes binding legal requirements. •Defines the authority and limits of federal agencies. •Can amend, supersede, or constrain existing regulations. Regulation •Developed by an agency pursuant to authority granted by Congress. •Provides the procedures and details for implementing a statute. •Must remain consistent with the statute. •Can generally be changed by a subsequent administration through rulemaking. Takeaway: Regulations implement statutes; they do not replace them. What regulations can and cannot do: Regulations CAN: Establish procedures Define how agencies conduct consultation Create timelines consistent with the statute Establish exemptions/alternatives where authorized 6 Regulations CANNOT: Contradict the statute Eliminate statutory obligations Override Congressional requirements Rewrite congressional policy Exercise authority Congress did not grant Supersede subsequent legislation Congress has given ACHP substantial discretion to structure the Section 106 process. That makes statutory boundaries and congressional direction particularly important. The ACHP Proposal: Why It Matters 7 Regulatory changes can substantially affect: •What projects receive review •What geographic area is considered •Which historic properties are considered •Who participates in consultation •How long consultation lasts •When consultation can be terminated •How agencies document decisions •How Tribal and community interests are incorporated Regulatory Reform Can Have Statutory Consequences in Practice Congress Can Change the Equation If Congress subsequently legislates on the same subject, the statute controls. Suppose Congress says: "For projects affecting historic properties, the agency shall consult with the SHPO and affected Tribes before making a final decision." An agency regulation could not simply say: "Consultation is unnecessary when the agency determines that consultation would delay a project." 8 The more specifically Congress legislates, the less room future administrations have to reinterpret the policy through regulation. What You Can Do – Upcoming Advocacy Opportunities Submit a Meeting Request with the Office of Information and Regulatory Affairs (OIRA): Regulation Identifier Number (RIN) 3010-AA10.Encourage your Governor to do the same! Ask to meet with your Congressional Delegation and/or their Staff during the summer recess: Senate: August 10 – Sept. 14 House:July 23 – August 31 Prepare for ACHP’s Public Comment Period on the Interim Proposed Rule Stay tuned for the introduction of Federal Permitting Legislation – September? Lame Duck Session? Attend the National Preservation Summit in Washington, DC – Advocacy Day, September 249 Follow NTHP Updates at: https://savingplaces.org/section106. Timeline ACHP Vote 7/24/2026 (done) ACHP submits to Office of Information and Regulatory Affairs OIRA (now) (timing depends on OIRA review and requests for consultation) OIRA Reviews ACHP resolves OIRA/inter-agency review comments; ACHP Publishes Notice of Proposed Rulemaking (NPRM) in the Federal Register for public Comment Including stakeholder meetings Tribal Consultation ACHP reviews input and comments and receives ACHP member input ACHP votes on final rule Resubmitted for OIRA review Final Rule published in Federal Register Effective 30 days later Potential for litigation Public comment likely for 30 days Public comments will be strongly encouraged! Section 106 “The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State ... or ... having authority to license any undertaking, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, shall take into account the effect of the undertaking on any historic property.” 54 U.S.C. § 306108 11 NHPA Definition of “Undertaking” 54 U.S.C. § 300320 Undertaking [T]he term ‘‘undertaking’’ means a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including— (1) those carried out by or on behalf of the Federal agency; (2) those carried out with Federal financial assistance; (3) those requiring a Federal permit, license, or approval; and (4) those subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency. 12 ACHP Proposed Definition of “Undertaking” 13 ACHP Proposed Definition of “Undertaking” § 800.3(a)(2)-(3) Section 106 does not apply: (ix) For actions with no or minimal Federal funding, or with no or minimal Federal involvement where a federal agency cannot control the outcome of the project. A but-for causal relationship is insufficient to make an agency responsible for a particular action and thus, does not by itself convert that action into a Federal undertaking within the meaning of the language of the Act. (3) In determining whether a proposed project constitutes an undertaking for which section 106 review applies, the agency official will consider only the action or project over which the agency has discretion and control to approve, fund, or otherwise authorize. 14 ACHP Proposed Definition of “Undertaking” § 800.3(a)(2)-(3) Section 106 does not apply: (v)[W]here the state or local government is exercising delegated federal authority to act . . . . Nine states have delegated authority from the Federal Highway Administration for project management and implementation: Alaska Florida Ohio Arizona Maine Texas California Nebraska Utah Would this exempt all of those federally funded transportation projects from Section 106 compliance? 15 “Effects” to be Considered ACHP Proposal would eliminate consideration of: •All visual, atmospheric, & audible effects; •Reasonably foreseeable cumulative effects; •Effects that fall outside the agency’s regulatory jurisdiction 16 ACHP Proposed Definition of “Historic Property” – § 800.16(k)(2) Historic property requirements: (i)It includes, or has included at some point in the past, tangible human improvements; and (ii)It is geographically compact. 17 Definition of “Historic Property” NHPA Statute “‘historic property’ means any prehistoric or historic district, site, building, structure, or object included on, or eligible for inclusion on, the National Register, including artifacts, records, and material remains relating to the district, site, building, structure, or object.” 54 U.S.C. § 300308 ACHP Proposal “noncompact, unimproved natural features such as mountains, valleys, bodies of water, or landscapes, including ethnographic landscapes, do not qualify as [historic] property for the purposes of section 106.” (§ 800.16(k)(2)) 18 Responsibilities of SHPOs NHPA Statute 54 U.S.C. § 302303(b) (5) advise and assist, as appropriate, Federal and State agencies and local governments in carrying out their historic preservation responsibilities; (6) cooperate with the Secretary, the Council, other Federal and State agencies, local governments, and private organizations and individuals to ensure that historic property is taken into consideration at all levels of planning and development; * * * * (9) consult with appropriate Federal agencies in accordance with this division on— (A) Federal undertakings that may affect historic property; and (B) the content and sufficiency of any plans developed to protect, manage, or reduce or mitigate harm to that property; 19 Responsibilities of SHPOs ACHP Proposal § 800.2(c)(1) 20 Role of Local Governments NHPA Statute "The Council shall by regulation establish such procedures as may be necessary to provide for participation by local governments in proceedings and other actions taken by the Council with respect to undertakings referred to in section [106] that affect the local governments.” 54 U.S.C. § 304108(b) 21 Role of Local Governments ACHP Proposal § 800.2(c)(3) 22 Tribal Consultation ACHP Proposal § 800.4(b)(2)(i) 23 Role of Public Input ACHP Proposal - § 800.3(d) 24 ACHP Proposal § 800.14(a)(2) 25 Lack of Consultation The uniquely effective dynamic of “consultation” under Section 106 would become purely optional, with no incentive to reach agreement. Instead, the agency could make its own unilateral determinations, then submit a Section 106 Report afterwards for comment. 26 Question and Answer Please submit questions in the Q&A function located at the bottom of your zoom screen 27 Upcoming Webinars August 18, noon eastern Implementing Heritage-Informed Decarbonization Policies August 24, 2pm eastern Section 106 Regulations Under Threat: Guidance for Advocates September 17, 2pm eastern Legistlative Update: Key Preservation Priorities on the Hill For More Information, visit: SavingPlaces.org/upcoming-webinars 29 Save the Date! October 19, 2026 Washington D.C. and Online Thank You! Questions? Please contact: FORUM@SAVINGPLACES.ORG NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 1 of 50 36 C.F.R. PART 800—PROTECTION OF HISTORIC PROPERTIES Subpart A—Purposes and Participants § 800.1 Purposes. (a) Purposes of the section 106 process. Section 106 of the National Historic Preservation Act requires Federal agencies to take into account the effects of their undertakings on historic properties and afford the Council a reasonable opportunity to comment on such undertakings. The procedures in this part define establish how Federal agencies meet will fulfill these statutory responsibilities. The section 106 process seeks to accommodate historic preservation concerns with the needs of Federal undertakings throughfacilitates consultation among the agency official and other parties with an interest in the effects of the undertaking on historic properties, commencing at the early stages of project planning. The consultation process must be conducted reasonably, bearing in mind the purpose and need of the undertaking and, where relevant, the goals of the project applicant. The goal of consultation the section 106 process is to identify historic properties potentially affected by the undertaking, assess its the undertaking’s effects, and seek waysidentify reasonable mitigation measures to avoid, minimize or mitigate any address adverse effects on historic properties to achieve the goals of the agency or project applicant, and to memorialize the measures adopted to address adverse effects or the agency official’s determination that other considerations outweigh effects on historic preservation. (b) Relation to other provisions of the act. Section 106 is related to other provisions of the Aact designed to further the national policy of historic preservation. References to those provisions are included in this part to identify circumstances where they may affect actions taken to meet section 106 requirements. Such provisions may have their own implementing regulations or guidelines and are not intended to be implemented by the procedures in this part except insofar as they relate to the section 106 process. Guidelines, policies, and procedures issued by other agencies, including the Secretary of Interior, have been cited in this part for ease of access and are not incorporated by reference. (c) Timing. (1) In general. The agency official must complete the section 106 process “prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license.” This does not prohibit the agency official from conducting or authorizing nondestructive project planning activities before completing compliance with section 106, provided that such actions do not restrict the subsequent consideration of reasonable mitigation to address alternatives to avoid, minimize or mitigate the undertaking's adverse effects on historic properties. The agency official shall ensure that the section 106 process is initiated early in the undertaking's planning, so that a broad range of alternatives mitigation may be considered during the planning process for the undertaking. (2) Default timelines and agency control. NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 2 of 50 (i) In general. Section 106 charges the agency official with “tak[ing] into account the effect of the undertaking on any historic property.” The agency official will consider the comments of other parties, as provided for in this part, to inform the decision related to the undertaking and to fulfill its Section 106 responsibility. Section 106 is procedural and does not impose any substantive historic preservation outcomes or obligations, nor does it restrict the scope of permissible decisions available to the agency official. The agency official must consider an undertaking’s effects to historic properties, while balancing the nation’s interest in historic preservation with its other interests, such as economic development. (ii) Agency control over deadlines. The agency official may alter any deadline in this part, to be shorter or longer, by: (A) Notifying an individual or entity regulated by that timeline by letter; or (B) Where such deadline affects the public at large, publishing such alteration, e.g., on the agency’s website. (C) As part of the agency’s obligation to engage in reasoned decisionmaking, such letter or publication shall briefly explain the reason for such alteration of the deadlines. Such reasons may include any factors or considerations that detail the outweighing of any interests to protect historic properties that may be affected by the undertaking. (i)(iii) Whenever the agency official shortens a deadline that applies to the Council, it shall explain in such letter the reasons for doing so and how the resulting timeline fulfills the agency official’s statutory obligation to “afford the Council a reasonable opportunity to comment with regard to the undertaking.” § 800.2 Participants in the Section 106 process. (a) Agency official. The federal official responsible for meeting the statutory obligations of “tak[ing] into account the effect of the undertaking on any historic property” and “afford[ing] the Council a reasonable opportunity to comment with regard to the undertaking,” consistent with the procedures in 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 all necessary actions to ensure section 106 compliance as it relates to appropriate action for a specific undertaking as a result of section 106 compliance. For the purposes of subpart DC 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 Aact requires each Federal agency responsible for the protection of historic resources, including archeological NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 3 of 50 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 shall designate a lead Federal agency, by e- mail, letter, or other means, 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. If such agencies cannot agree on a lead Federal agency within 15 days of an applicant providing notice of the proposed undertaking, then any affected person can submit in writing a request that the Council designate a lead Federal agency. If an undertaking is initiated by the federal government, any agency involved may submit such a request to the Council at any time. Upon receipt of any such request, the Council shall appoint a lead Federal agency within 15 daysThose 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, tThe 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) Coordination with other lawsConsultation. The agency official should coordinate the section 106 process, to the extent practicable, 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 the requirements of in other statutes, as applicable, such asincluding the National Environmental Policy Act (NEPA), the Native American Graves Protection and Repatriation Act, the American Indian Religious Freedom Act, the Archaeological Resources Protection Act, the Endangered Species Act, and agency-specific legislation such as Section 4(f) of the Department of Transportation Act. 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, and 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 provides comments to agency officials on individual undertakings and programs that affect historic properties. (1) Council entry intoparticipation in the section 106 process. As detailed in this part, each agency shall provide When the Council determines that its involvement is necessary to ensure that the opportunity to comment on each undertaking. The Council does not have to provide comments on each undertakingpurposes of NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 4 of 50 section 106 and the act are met, the Council may enter the section 106 process. Criteria guiding Council decisions to enter the section 106 processprovide comments 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 may have consultative roles in the section 106 process. (1) State historic preservation officer. 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 State historic preservation officer (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 ensure that historic properties are taking taken into consideration at all levels ofin planning and development. (i) SHPO Participation where there has been tribal assumption of SHPO responsibilities. If Where an Indian tribe has assumed the section 106 responsibilities functions of the SHPO in the section 106 process for undertakings on tribal lands pursuant to section 101(d)(2) of the Act, consultation for undertakings occurring on tribal land or for effects on tribal land is with the tribal historic preservation officer (THPO) for the Indian tribe in lieu of the SHPO. Section 101(d)(2)(D)(iii) of the Act authorizes owners of properties on tribal lands which are neither owned by a member of the tribe nor held in trust by the Secretary for the benefit of the tribe to request the SHPO to participate in the section 106 process in addition to the THPO. Tthe SHPO shall also participate as a consulting party if the undertaking takes place on tribal lands but affects historic properties off tribal lands, if requested by the agency official or the tribein accordance with § 800.3(c)(1), or if the Indian tribe agrees to include the SHPO pursuant to § 800.3(f)(3). (ii) Undertakings involving more than one State. If more than one State is involved in an undertaking, the involved SHPOs may agree to designate a lead SHPO to act on their behalf in the section 106 process, including taking actions that would conclude the section 106 process under this part. (2) Indian tribes and Native Hawaiian organizations. 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 should be consulted in the section 106 NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 5 of 50 process and invite them to be consulting parties. (i) Consultation on tribal lands. (A) Tribal historic preservation officer. For an Indian tribe that has assumed the responsibilities of the SHPO for section 106 on tribal lands under section 101(d)(2) of the Aact, the tribal historic preservation officer (THPO) appointed or designated in accordance with the Aact 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 Aact, 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 tThe agency official to shall 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 consistent with the definition of “historic property” in 36 CFR 800.16(j). 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, NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 6 of 50 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 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)(A) 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 § 800.6(c)(1) to execute a memorandum of agreement. (3) Representatives of local governments. The agency official may invite aA 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 Aan applicant or their designee may also group of applicants to initiate early consultation directly with the SHPO/THPO and others, consistent with § NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 7 of 50 800.7(a), but the agency 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 Ppublic participation at agency discretion. – (1) Authorization to initiate public participation at agency discretion. Consistent with Section 106 of the NHPA, an agency may provide the public with an opportunity to participate at any point in the Section 106 process. The agency has exclusive discretion to determine the usefulness of public participation, including, e.g., as necessary to resolve community concerns. The agency shall consider how offering an opportunity for public participation is balanced against the cost of other values, such the public interest. (1)(2) Nature of involvement. In determining whether and how to solicit public involvement, The views of the public are essential to informed Federal decisionmaking in the section 106 process. tThe agency official shall seek andmay consider, among other things, 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; the likely utility of public involvement; any delays that may be created by the process of seeking public comment;, confidentiality concerns of private individuals, and businesses, and tribes;, and the relationship of the Federal involvement to the undertaking. (2)(3) Providing notice and information. The agency official mustmay, except whereas 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 their views on their own initiative. for Tthe agency official shall determine how much weight to assign such views, and when and how to incorporate them into the consider in decisionmaking process. (3)(4) Use of other agency procedures. The agency official may use the agency's procedures for public involvement under the National Environmental Policy ActNEPA or other program requirements in lieusources of law to solicit public commentpublic involvement requirements in subpart B of this part, if they provide, in the agency official’s judgment, adequate opportunities for public involvement consistent with this subpart. NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 8 of 50 Subpart B—The Section 106 Process § 800.3 Determining Whether There is an UndertakingInitiation of the section 106 process. (a) Establish undertaking. The agency official shall determine whether the proposed Federal action is an Federal undertaking which section 106 analysis is requiredas defined in § 800.16(y) and, if so, whether it is a type of activity that has the potential to cause effects on historic properties. (1) An action is a Federal undertaking for the purposes of Section 106, and thus, further analysis under this Subpart is required, when: (i) It is carried out by or on behalf of an agency of the Federal government; (ii) It is the action of a third party funded by the Federal government, and falls under the direct or indirect jurisdiction of a Federal agency; or (iii) A third party is taking action that requires a license, permit or approval from the Federal government, subject to the limitations to Federal jurisdiction over a third party’s action, such as where a permit, license, or approval is merely a but-for cause of such action, which does not convert it into a Federal undertaking. (2) Procedural obligations under Section 106 do not apply under the following circumstances: (i) When the action or decision will not result in final agency action under the Administrative Procedure Act, see 5 U.S.C. § 704, or other relevant statute that also includes a finality requirement; (ii) When the proposed activity or decision is exempted from review under section 106 by law; (iii) When review under section 106 would conflict with the requirements of another provision of law; (iv) In circumstances where Congress by statute has prescribed decisional criteria with sufficient completeness and precision such that the agency official retains no residual discretion to alter its action based on the consideration of the results of a section 106 review; (v) For State or local governmental actions, including where the state or local government is exercising delegated federal authority to act or to issue a license to a third party; (vi) For actions funded by federal grants where the federal government does not retain control over how, to whom, or why the grants are disbursed; (vii) For actions merely subject to a federal veto, but not requiring affirmative NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 9 of 50 Federal approval in the form of a license, permit, or other form of formal approval; (viii) When the proposed action is an action for which another statute’s requirements serve the function of agency compliance with the Act; (ix) For actions with no or minimal Federal funding, or with no or minimal Federal involvement where a federal agency cannot control the outcome of the project. A but-for causal relationship is insufficient to make an agency responsible for a particular action and thus, does not by itself convert that action into a Federal undertaking within the meaning of the language of the Act. (3) In determining whether a proposed project constitutes an undertaking for which section 106 review applies, the agency official will consider only the action or project over which the agency has discretion and control to approve, fund, or otherwise authorize. (b) Potential to cause effects. If the agency official determines the proposed action is an undertaking, the official shall determine whether it is a type of activity that has the potential to cause effects on historic properties. (1) No potential to cause effects. If the undertaking is a type of activity that does not have the potential to cause effects on historic properties, assuming such historic properties were present, the agency official has no further obligations under section 106 or this part. (2) Program alternatives. If the review of the undertaking is governed by a Federal agency program alternative established under § 800.14(b) of this part after [date of promulgation], a Federal agency program alternative in existence before [date of promulgation],or a programmatic agreement in existence before January 11, 2001, the agency official shall may follow the program alternative. (c) Coordinate with other reviews. The agency official should coordinate the steps of the section 106 process, as appropriate, with the overall planning schedule for the undertaking and with any reviews required under other authorities such as the National Environmental Policy Act (NEPA), the Native American Graves Protection and Repatriation Act, the American Indian Religious Freedom Act, the Archaeological Resources Protection Act, the Endangered Species Act, and agency-specific legislation, such as section 4(f) of the Department of Transportation Act. Where consistent with the procedures in this subpart, the agency official may use information developed for other reviews under Federal, State, or tribal law to meet the requirements of section 106. (d) Identify the appropriate SHPO and/or THPO. As part of its initial planning, the agency official shall determine the appropriate SHPO or SHPOs to be involved in the section 106 process. The agency official shall also determine whether the undertaking may occur on or affect historic properties on any tribal lands and, if so, whether a THPO has assumed the duties of the SHPO. The agency official shall then initiate consultation with the appropriate officer or officers. NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 10 of 50 (1) Tribal assumption of SHPO responsibilities. Where an Indian tribe has assumed the section 106 responsibilities of the SHPO on tribal lands pursuant to section 101(d)(2) of the act, consultation for undertakings occurring on tribal land or for effects on tribal land is with the THPO for the Indian tribe in lieu of the SHPO. Section 101(d)(2)(D)(iii) of the act authorizes owners of properties on tribal lands which are neither owned by a member of the tribe nor held in trust by the Secretary for the benefit of the tribe to request the SHPO to participate in the section 106 process in addition to the THPO. (2) Undertakings involving more than one State. If more than one State is involved in an undertaking, the involved SHPOs may agree to designate a lead SHPO to act on their behalf in the section 106 process, including taking actions that would conclude the section 106 process under this subpart. (3) Conducting consultation. The agency official should consult with the SHPO/THPO in a manner appropriate to the agency planning process for the undertaking and to the nature of the undertaking and its effects on historic properties. (4) Failure of the SHPO/THPO to respond. If the SHPO/THPO fails to respond within 30 days of receipt of a request for review of a finding or determination, the agency official may either proceed to the next step in the process based on the finding or determination or consult with the Council in lieu of the SHPO/THPO. If the SHPO/THPO re-enters the Section 106 process, the agency official shall continue the consultation without being required to reconsider previous findings or determinations. (e) Consultation on tribal lands. Where the Indian tribe has not assumed the responsibilities of the SHPO on tribal lands, consultation with the Indian tribe regarding undertakings occurring on such tribe's lands or effects on such tribal lands shall be in addition to and on the same basis as consultation with the SHPO. If the SHPO has withdrawn from the process, the agency official may complete the section 106 process with the Indian tribe and the Council, as appropriate. An Indian tribe may enter into an agreement with a SHPO or SHPOs specifying the SHPO's participation in the section 106 process for undertakings occurring on or affecting historic properties on tribal lands. (f) Plan to involve the public. In consultation with the SHPO/THPO, the agency official shall plan for involving the public in the section 106 process. The agency official shall identify the appropriate points for seeking public input and for notifying the public of proposed actions, consistent with § 800.2(d). (g) Identify other consulting parties. In consultation with the SHPO/THPO, the agency official shall identify any other parties entitled to be consulting parties and invite them to participate as such in the section 106 process. The agency official may invite others to participate as consulting parties as the section 106 process moves forward. (1) Involving local governments and applicants. The agency official shall invite any local governments or applicants that are entitled to be consulting parties under § 800.2(c). NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 11 of 50 (2) Involving Indian tribes and Native Hawaiian organizations. The agency official shall make a reasonable and good faith effort to identify any Indian tribes or Native Hawaiian organizations that might attach religious and cultural significance to historic properties in the area of potential effects and invite them to be consulting parties. Such Indian tribe or Native Hawaiian organization that requests in writing to be a consulting party shall be one. (3) Requests to be consulting parties. The agency official shall consider all written requests of individuals and organizations to participate as consulting parties and, in consultation with the SHPO/THPO and any Indian tribe upon whose tribal lands an undertaking occurs or affects historic properties, determine which should be consulting parties. (h) Expediting consultation. A consultation by the agency official with the SHPO/THPO and other consulting parties may address multiple steps in §§ 800.3 through 800.6 where the agency official and the SHPO/THPO agree it is appropriate as long as the consulting parties and the public have an adequate opportunity to express their views as provided in § 800.2(d). § 800.4 Agency Official’s Responsibility to Prepare a Section 106 ReportIdentification of historic properties. (a) Determine scope of identification efforts. In consultation with the SHPO/THPO, the agency official shall: (1) Determine and document the area of potential effects, as defined in § 800.16(d); (2) Review existing information on historic properties within the area of potential effects, including any data concerning possible historic properties not yet identified; (3) Seek information, as appropriate, from consulting parties, and other individuals and organizations likely to have knowledge of, or concerns with, historic properties in the area, and identify issues relating to the undertaking's potential effects on historic properties; and (4) Gather information from any Indian tribe or Native Hawaiian organization identified pursuant to § 800.3(f) to assist in identifying properties, including those located off tribal lands, which may be of religious and cultural significance to them and may be eligible for the National Register, recognizing that an Indian tribe or Native Hawaiian organization may be reluctant to divulge specific information regarding the location, nature, and activities associated with such sites. The agency official should address concerns raised about confidentiality pursuant to § 800.11(c). (b)(a) Preparation of ReportIdentify historic properties. If the agency official determines the project is a Federal undertaking pursuant to § 800.3(a)(1) and that it has the potential to cause effects, the agency official shall prepare a “Section 106 Report.” In NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 12 of 50 preparing such a report:Based on the information gathered under paragraph (a) of this section, and in consultation with the SHPO/THPO and any Indian tribe or Native Hawaiian organization that might attach religious and cultural significance to properties within the area of potential effects, the agency official shall take the steps necessary to identify historic properties within the area of potential effects. (1) Level of effort. The agency official shall make a reasonable and good faith effort to carry out appropriate identification efforts, which may include background research, consultation, oral history interviews, sample field investigation, and field survey. The agency official shall take into account (although the agency official need not exhaustively document) past planning, research and studies;, the magnitude and nature of the undertaking and the degree of Federal involvement, the nature and extent of potential effects on historic properties, and the likely nature and location of historic properties within the area of potential effects. The Secretary's standards and guidelines for identification provide guidance on this subject. The agency official should also consider other applicable professional, State, tribal, and local laws, standards, and guidelines. The agency official shall take into account any confidentiality concerns raised by Indian tribes or Native Hawaiian organizations during the identification process. (2) Include background research from publicly available or archival sources; (3) Solicit input from consulting parties; (4) Conduct sample field investigations and field surveys as necessary to identify and evaluate historic properties, or to assess alternatives, taking into account reasonable considerations and factors like the cost and time of doing so; (5) Establish by regulation, guidance, or other means, time limits within which the above work needs to be completed, either in general or as to a specific project; (6) Engage in early consultation pursuant to § 800.7(a) with some or all consulting parties when, in the agency official’s judgment, such early consultations would be helpful to the preparation of the report and not unduly disruptive to the section 106 process or the timeline of the overall project; (7) Take into account the deadlines imposed pursuant to section (5) above considering the magnitude and nature of the undertaking and the degree of Federal involvement, the nature and extent of potential effects on historic properties, and the likely nature and location of historic properties within the area of potential effects; and (c) Rely on the Secretary's standards and guidelines for identification and also consider other applicable professional, State, tribal, and local laws, standards, and guidelines, as appropriate. (8) (b) Contents of Report. The Section 106 Report shall provide a concise analysis that includes NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 13 of 50 the following: (1) Determine and document the area of potential effects, as defined in § 800.16(d). (i) The agency official shall document how he drew reasonable and manageable lines regarding the consideration of effects that are remote in time or place. (1)(2) Identify historic properties, if any, within the area of potential effects. (2) Phased identification and evaluation. 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 to conduct identification and evaluation efforts. The agency official may also defer final identification and evaluation of historic properties if it is specifically provided for in a memorandum of agreement executed pursuant to § 800.6, a programmatic agreement executed pursuant to § 800.14(b), or the documents used by an agency official to comply with the National Environmental Policy Act pursuant to § 800.8. The process should establish the likely presence of historic properties within the area of potential effects for each alternative or inaccessible area through background research, consultation and an appropriate level of field investigation, taking into account the number of alternatives under consideration, the magnitude of the undertaking and its likely effects, and the views of the SHPO/THPO and any other consulting parties. As specific aspects or locations of an alternative are refined or access is gained, the agency official shall proceed with the identification and evaluation of historic properties in accordance with paragraphs (b)(1) and (c) of this section. (d) Evaluate historic significance — (i) Apply National Register criteria. Section 106 appliesIn consultation with the SHPO/THPO and any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to identified properties that are eligibleand guided by the Secretary's standards and guidelines for or listed in evaluation, the National Register. The agency official shall determine whether the property is eligible for the National Register by applyingapply the National Register criteria (36 CFR part 63) to properties identified within the area of potential effects that have not been previously evaluated for National Register eligibility. The passage of time, changing perceptions of significance, or incomplete prior evaluations may require the agency official to reevaluate properties previously determined eligible or ineligible. The agency official shall acknowledge that Indian tribes and Native Hawaiian organizations possess special expertise in assessing the eligibility of historic properties that may possess religious and cultural significance to them. (2) Determine whether a property is eligible. If the agency official determines any of the National Register criteria are met and the SHPO/THPO agrees, the property shall be considered eligible for the National Register for section 106 purposes. If the agency official determines the criteria are not met and the SHPO/THPO agrees, the property NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 14 of 50 shall be considered not eligible. If the agency official and the SHPO/THPO do not agree, or if the Council or the Secretary so request, the agency official shall obtain a determination of eligibility from the Secretary pursuant to 36 CFR part 63. If an Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to a property off tribal lands does not agree, it may ask the Council to request the agency official to obtain a determination of eligibility. (e) Results of identification and evaluation — (1) No historic properties affected. If the agency official finds that either there are no historic properties present or there are historic properties present but the undertaking will have no effect upon them as defined in § 800.16(i), the agency official shall provide documentation of this finding, as set forth in § 800.11(d), to the SHPO/THPO. The agency official shall notify all consulting parties, including Indian tribes and Native Hawaiian organizations, and make the documentation available for public inspection prior to approving the undertaking. (i) If the SHPO/THPO, or the Council if it has entered the section 106 process, does not object within 30 days of receipt of an adequately documented finding, the agency official's responsibilities under section 106 are fulfilled. (ii) If the SHPO/THPO objects within 30 days of receipt of an adequately documented finding, the agency official shall either consult with the objecting party to resolve the disagreement, or forward the finding and supporting documentation to the Council and request that the Council review the finding pursuant to paragraphs (d)(1)(iv)(A) through (d)(1)(iv)(C) of this section. When an agency official forwards such requests for review to the Council, the agency official shall concurrently notify all consulting parties that such a request has been made and make the request documentation available to the public. (iii) During the SHPO/THPO 30 day review period, the Council may object to the finding and provide its opinion regarding the finding to the agency official and, if the Council determines the issue warrants it, the head of the agency. 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 agency shall then proceed according to paragraphs (d)(1)(iv)(B) and (d)(1)(iv)(C) of this section. (iv) (A) Upon receipt of the request under paragraph (d)(1)(ii) of this section, the Council will have 30 days in which to review the finding and provide the agency official and, if the Council determines the issue warrants it, the head of the agency with the Council's opinion regarding the finding. 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. If the Council does not respond within 30 days of receipt of the request, the agency official's responsibilities under section 106 are fulfilled. NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 15 of 50 (B) 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 before the agency reaches a final decision on the finding. (C) The person to whom the Council addresses its opinion (the agency official or the head of the agency) shall then 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 agency finding of no historic properties affected, 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. (D) The Council shall retain a record of agency responses to Council opinions on their findings of no historic properties affected. The Council shall make this information available to the public. (2) Historic properties affected. If the agency official finds that there are historic properties which may be affected by the undertaking, the agency official shall notify all consulting parties, including Indian tribes or Native Hawaiian organizations, invite their views on the effects and assess adverse effects, if any, in accordance with § 800.5. [65 FR 77725, Dec. 12, 2000, as amended at 69 FR 40553, July 6, 2004] § 800.5 Assessment of adverse effects. (3) Evaluate whether the project will have adverse effects on these historic properties. (i) 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, Tthe agency official shall apply the criteria of adverse effect to historic properties within the area of potential effects. As to each historic property within the area of potential effects, if the agency official finds that there will be adverse effects, the agency official shall explain in the report the adverse effectThe agency official shall consider any views concerning such effects which have been provided by consulting parties and the public. (ii) Criteria of adverse effect. An adverse effect is found when it is reasonably foreseeable that an undertaking will cause material alteration inmay alter, directly or indirectly, any of the characteristics of a historic property that qualifiesy the historic property for inclusion in the National Register in a manner that would diminish the integrity of the property's location, design, setting, materials, NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 16 of 50 workmanship, feeling, or association. Consideration shall be given to all qualifying characteristics of an eligible or listed 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 only those reasonably foreseeable effects that have a reasonably close causal relationship tocaused by the undertaking that may occur later in time, be farther removed in distance or be cumulative. (A) The agency official may consider effects of the undertaking that may occur later in time or will be far removed in distance, to the extent it assists the agency in making reasoned decisions within the limits of its statutory authority. If it chooses to do so, the agency official shall document how he or she defined the reasonable limits in considering such effects. (B) Adverse effects do not include the effects of other projects separate in time or place, or that otherwise fall outside of the agency’s regulatory authority, or that would have to be initiated by a third party. (iii) Examples of adverse effects. Adverse effects on historic properties include, but are not limited to: (A) Physical destruction of or material damage to all or part of the property; (B) Physical aAlteration of thea 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; (C) 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; (A)(D) 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 (B)(E) 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. (iv) Finding of no adverse effect. An undertaking results in no adverse effect if the undertaking’s effects do not meet the criteria of adverse effect. If a finding of no NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 17 of 50 adverse effect is made, the agency shall proceed to subsection (c) of this part. (4) Identify the measures to be taken to address adverse effects identified pursuant to subsection (b)(4)(iii) of this subsection or memorialize when the agency official has determined that other considerations outweigh those of historic preservation. (i) The agency official shall develop and evaluate reasonable mitigation measures that are within the federal agency’s regulatory authority to address the adverse effects on historic properties of the undertaking that are within the federal agency’s regulatory authority. (ii) The agency official may document its determination that other considerations outweigh those of historic preservation as to any or all effects or properties. (c) Certification. The Section 106 Report shall be analytic, concise, and no longer than necessary to provide the information in § 800.5(b). In finalizing the Report, the agency official will certify that: the agency has considered the factors mandated by Section 106; the Report represents the agency’s good-faith effort to identify an undertaking’s potential effects on historic properties; prioritization of effects based on the agency’s expert judgment; and any considerations addressed briefly or left unaddressed are presumed to be intentional based on the agency’s judgment that such considerations are comparatively unimportant or frivolous. (d) Notice of Conclusions. When the agency official has completed the Section 106 Report, he shall transmit it to all consulting parties pursuant to § 800.5(a)(1) along with a notice that the agency has reached one of the following conclusions: (1) No historic properties are present. (2) No historic properties are affected. The agency official determines that there are historic properties present but the undertaking will have no material effect upon them. (3) Historic properties are affected. The agency official determines that there are historic properties present and that the undertaking will have adverse effects on them, and it identifies any reasonable mitigation proposed to address adverse effects, pursuant to subsection (b)(4) of this part. (f)(e) Phased evaluation application of criteria. (1) Where the project involves alternatives under consideration consist of corridors or large land areas, or for other reasonwhere access to properties is restricted, the agency official may elect to issue multiple reports inuse a phased process, provided that the agency approves or performs work only for those phases of an undertaking covered by a report that has completed review under §§ 800.5-6 in applying the criteria of adverse effect consistent with phased identification and evaluation efforts conducted pursuant to § 800.4(b)(2). (2) The agency official may also defer identification and evaluation of historic properties NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 18 of 50 if such deferred process is specifically provided for in a memorandum of agreement executed pursuant to § 800.6(c), programmatic agreement executed pursuant to § 800.14(b), or the documents used by an agency official to comply with NEPA pursuant to § 800.8. The phased-evaluation process should establish the likely presence of historic properties within the area of potential effects for each alternative or inaccessible area through background research, consultation and an appropriate level of investigation for the proposed undertaking under its regulatory authority. § 800.5 Circulation of Report for Comments (a) Consulting parties. (1) Upon completion of the report, the agency official shall transmit the Section 106 Report to the following persons and invite them to participate as consulting parties: (i) The Council. (ii) The SHPO or SHPOs of any state within the area of potential effects, except as provided in § 800.2(c)(1). (iii) The appropriate THPO or THPOs, or any other Indian tribe or Native Hawaiian organization, as provided for in § 800.2(c)(2). (i)(iv) Project applicants. (ii)(v) Representatives of any local governments that are entitled to be consulting parties under § 800.2(c)(3). (b) Timing (1) Parties shall be deemed to have received the report and invitation to consult: (i) On the day of dispatch, if it is delivered via a known e-mail address or other reliable electronic means. (ii) 5 days after dispatch, if sent by other means. (2) Unless otherwise specified by the agency official pursuant to § 800.1(c)(2), parties have 60 days after receipt to respond. (3) Any party which fails to respond within 60 days shall be deemed to have waived any objections or comments to the report. (c) Types of Response. Consulting parties should submit comments supporting one or more of the following types of response: (1) Support. The consulting party can support the agency official’s report. (2) Factual objection. The consulting party can object, as a question of fact, to the NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 19 of 50 agency official’s determinations as to: (i) The scope of the area of potential effects; (ii) The presence of historical properties within the area of potential effects; (iii) Whether the project will have adverse effects on a given property or properties; or (iv) Whether the reasonable mitigation to address adverse effects will, as a question of fact, result in the resolution envisioned in the report. (3) Comment. Consulting parties may provide commentary on the policy choices reflected in the report, including the desirability of allowing other considerations to outweigh those of historic preservation. (2) 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. (a) 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 § 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 § 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. (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 NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 20 of 50 (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. (b) Results of assessment — NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 21 of 50 (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 § 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 § 800.6. [65 FR 77725, Dec. 12, 2000, as amended at 69 FR 40553, July 6, 2004] § 800.6 FinalizationResolution of adverse effects. (a) Analysis of Responses. When the agency official has received the responses, the agency official shall evaluate the responses and may, at its election, either: (1) Consult further with any or all of the commenters to resolve the objections or concerns of that commenter, and revise the Section 106 Report as necessary, on a timeline to be set by the agency official; or. (2) Explain, via a memorandum of decision, the agency’s determination on addressing adverse effects through the Section 106 Report. (3) Invite some or any of the commenters to enter into a memorandum of agreement. (b) Memorandum of Decision. Once the agency official has evaluated the responses and reached a determination as to how, if at all, it will address the effects, it may fulfill its responsibilities under section 106 by issuing a memorandum of decision, memorializing its determination as to how it will address effects or whether other considerations outweigh those of historical preservation as to certain effects, certain properties, or the project as a whole. (1) In accordance with section 110(l) of the act, 54 U.S.C. § 306114, a memorandum of decision with respect to any undertaking that adversely affects a historic property must be signed by the head of the agency responsible for the undertaking, who may not delegate this decision. (c) Memorandum of Agreement. The agency may wish to incorporate its conclusions into a Memorandum of Agreement between itself and other parties. A memorandum of agreement executed and implemented pursuant to this section evidences the agency official's compliance with section 106 and this part and shall govern the undertaking. The agency official shall ensure that the undertaking is carried out in accordance with the memorandum of agreement. (1) Signatories. The Signatories shall have sole authority to execute, amend or terminate the memorandum of agreement in accordance with this subpart. NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 22 of 50 (i) Required signatories: The agency official and any relevant SHPO/THPO are required to be Signatories to a memorandum of agreement executed pursuant to paragraph (b)(1) of this section. The Council is also required to be a signatory if it has chosen to participate in consultations. (ii) Invited signatories: (A) The agency official shall invite an Indian tribe or Native Hawaiian organization that is a consulting party pursuant to § 800.2(c) and attaches religious and cultural significance to historic properties at issue to be an Invited Signatory to a memorandum of agreement concerning such properties. (B) The agency official shall invite any party that assumes a responsibility under a memorandum of agreement to be an Invited Signatory. (C) The agency official may invite additional parties to be signatories to a memorandum of agreement. The Invited Signatories shall have the same rights with regard to seeking amendment or termination of the memorandum of agreement as other Signatories. (iii) The refusal of any party invited to become an Invited Signatory to a memorandum of agreement does not invalidate the memorandum of agreement. (2) Terms. The memorandum of agreement shall specify the ways in which adverse effects shall be resolved, and it shall include a covenant not to sue. Beyond those essential terms, the memorandum of agreement is intended to be a flexible instrument, and may include any such terms as are helpful, as, e.g., provisions to deal with the subsequent discovery or identification of additional historic properties that may be affected by the undertaking, provisions for monitoring and reporting on its implementation, or provisions for termination if the undertaking has not been implemented within a specific time. (3) Amendments. The Signatories to a memorandum of agreement may amend it by unanimous written consent. If the Council was not a Signatory to the original memorandum of agreement and the Signatories execute an amended memorandum of agreement, the agency official shall file it with the Council. (4) Termination of Participation. If any Signatory or Invited Signatory determines that the terms of a memorandum of agreement cannot be or are not being carried out, that Signatory or Invited Signatory can request consultation among the Signatories to seek amendment of the memorandum of agreement. If the consultation does not occur or does not result in amendment of the memorandum of agreement within 60 days of notifying the Council of such consultation request, that Signatory may rescind their signature and terminate their participation in the memorandum of agreement. If the Signatory that terminated their participation had substantive obligations under the memorandum of agreement, the agency official can sever or unilaterally reform any provision that imposed such obligations after consultation with the Council. NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 23 of 50 (d) Publication. The agency official shall publish the Memorandum of Decision on the agency’s website and provide all consulting parties with a copy. (a) Continue consultation. The agency official shall consult with the SHPO/THPO and other consulting parties, including Indian tribes and Native Hawaiian organizations, to develop and evaluate alternatives or modifications to the undertaking that could avoid, minimize, or mitigate adverse effects on historic properties. (1) Notify the Council and determine Council participation. The agency official shall notify the Council of the adverse effect finding by providing the documentation specified in § 800.11(e). (i) The notice shall invite the Council to participate in the consultation when: (A) The agency official wants the Council to participate; (B) The undertaking has an adverse effect upon a National Historic Landmark; or (C) A programmatic agreement under § 800.14(b) will be prepared; (ii) The SHPO/THPO, an Indian tribe or Native Hawaiian organization, or any other consulting party may at any time independently request the Council to participate in the consultation. (iii) The Council shall advise the agency official and all consulting parties whether it will participate within 15 days of receipt of notice or other request. Prior to entering the process, the Council shall provide written notice to the agency official and the consulting parties that its decision to participate meets the criteria set forth in appendix A to this part. The Council shall also advise the head of the agency of its decision to enter the process. Consultation with Council participation is conducted in accordance with paragraph (b)(2) of this section. (iv) If the Council does not join the consultation, the agency official shall proceed with consultation in accordance with paragraph (b)(1) of this section. (2) Involve consulting parties. In addition to the consulting parties identified under § 800.3(f), the agency official, the SHPO/THPO and the Council, if participating, may agree to invite other individuals or organizations to become consulting parties. The agency official shall invite any individual or organization that will assume a specific role or responsibility in a memorandum of agreement to participate as a consulting party. (3) Provide documentation. The agency official shall provide to all consulting parties the documentation specified in § 800.11(e), subject to the confidentiality provisions of § 800.11(c), and such other documentation as may be developed during the consultation to resolve adverse effects. NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 24 of 50 (4) Involve the public. The agency official shall make information available to the public, including the documentation specified in § 800.11(e), subject to the confidentiality provisions of § 800.11(c). The agency official shall provide an opportunity for members of the public to express their views on resolving adverse effects of the undertaking. The agency official should use appropriate mechanisms, taking into account the magnitude of the undertaking and the nature of its effects upon historic properties, the likely effects on historic properties, and the relationship of the Federal involvement to the undertaking to ensure that the public's views are considered in the consultation. The agency official should also consider the extent of notice and information concerning historic preservation issues afforded the public at earlier steps in the section 106 process to determine the appropriate level of public involvement when resolving adverse effects so that the standards of § 800.2(d) are met. (5) Restrictions on disclosure of information. Section 304 of the act and other authorities may limit the disclosure of information under paragraphs (a)(3) and (a)(4) of this section. If an Indian tribe or Native Hawaiian organization objects to the disclosure of information or if the agency official believes that there are other reasons to withhold information, the agency official shall comply with § 800.11(c) regarding the disclosure of such information. (b) Resolve adverse effects — (1) Resolution without the Council. (i) The agency official shall consult with the SHPO/THPO and other consulting parties to seek ways to avoid, minimize or mitigate the adverse effects. (ii) The agency official may use standard treatments established by the Council under § 800.14(d) as a basis for a memorandum of agreement. (iii) If the Council decides to join the consultation, the agency official shall follow paragraph (b)(2) of this section. (iv) If the agency official and the SHPO/THPO agree on how the adverse effects will be resolved, they shall execute a memorandum of agreement. The agency official must submit a copy of the executed memorandum of agreement, along with the documentation specified in § 800.11(f), to the Council prior to approving the undertaking in order to meet the requirements of section 106 and this subpart. (v) If the agency official, and the SHPO/THPO fail to agree on the terms of a memorandum of agreement, the agency official shall request the Council to join the consultation and provide the Council with the documentation set forth in § 800.11(g). If the Council decides to join the consultation, the agency official shall proceed in accordance with paragraph (b)(2) of this section. If the Council decides not to join the consultation, the Council will notify the agency and proceed to comment in accordance with § 800.7(c). (2) Resolution with Council participation. If the Council decides to participate in the NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 25 of 50 consultation, the agency official shall consult with the SHPO/THPO, the Council, and other consulting parties, including Indian tribes and Native Hawaiian organizations under § 800.2(c)(3), to seek ways to avoid, minimize or mitigate the adverse effects. If the agency official, the SHPO/THPO, and the Council agree on how the adverse effects will be resolved, they shall execute a memorandum of agreement. (c) Memorandum of agreement. A memorandum of agreement executed and implemented pursuant to this section evidences the agency official's compliance with section 106 and this part and shall govern the undertaking and all of its parts. The agency official shall ensure that the undertaking is carried out in accordance with the memorandum of agreement. (1) Signatories. The signatories have sole authority to execute, amend or terminate the agreement in accordance with this subpart. (i) The agency official and the SHPO/THPO are the signatories to a memorandum of agreement executed pursuant to paragraph (b)(1) of this section. (ii) The agency official, the SHPO/THPO, and the Council are the signatories to a memorandum of agreement executed pursuant to paragraph (b)(2) of this section. (iii) The agency official and the Council are signatories to a memorandum of agreement executed pursuant to § 800.7(a)(2). (2) Invited signatories. (i) The agency official may invite additional parties to be signatories to a memorandum of agreement. Any such party that signs the memorandum of agreement shall have the same rights with regard to seeking amendment or termination of the memorandum of agreement as other signatories. (ii) The agency official may invite an Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to historic properties located off tribal lands to be a signatory to a memorandum of agreement concerning such properties. (iii) The agency official should invite any party that assumes a responsibility under a memorandum of agreement to be a signatory. (iv) The refusal of any party invited to become a signatory to a memorandum of agreement pursuant to paragraph (c)(2) of this section does not invalidate the memorandum of agreement. (3) Concurrence by others. The agency official may invite all consulting parties to concur in the memorandum of agreement. The signatories may agree to invite others to concur. The refusal of any party invited to concur in the memorandum of agreement does not invalidate the memorandum of agreement. (4) Reports on implementation. Where the signatories agree it is appropriate, a memorandum of agreement shall include a provision for monitoring and reporting on its NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 26 of 50 implementation. (5) Duration. A memorandum of agreement shall include provisions for termination and for reconsideration of terms if the undertaking has not been implemented within a specified time. (6) Discoveries. Where the signatories agree it is appropriate, a memorandum of agreement shall include provisions to deal with the subsequent discovery or identification of additional historic properties affected by the undertaking. (7) Amendments. The signatories to a memorandum of agreement may amend it. If the Council was not a signatory to the original agreement and the signatories execute an amended agreement, the agency official shall file it with the Council. (8) Termination. If any signatory determines that the terms of a memorandum of agreement cannot be or are not being carried out, the signatories shall consult to seek amendment of the agreement. If the agreement is not amended, any signatory may terminate it. The agency official shall either execute a memorandum of agreement with signatories under paragraph (c)(1) of this section or request the comments of the Council under § 800.7(a). (9) Copies. The agency official shall provide each consulting party with a copy of any memorandum of agreement executed pursuant to this subpart. § 800.7 Early ConsultationFailure to resolve adverse effects. (a) Invitation of Consulting Parties. The agency official may invite any party that could be a consulting party under § 800.5(a), to consult earlier in the process of preparing a report. When a project applicant has been authorized to initiate early consultation pursuant to § 800.2(c)(4), it may initiate consultation on behalf of the agency official. Such early consultation may be appropriate where: (1) SHPOs, THPOs, or other individuals or organizations are likely to have knowledge of historic properties in the area of potential effects and be able to identify issues relating to the undertaking’s potential effects on such historic properties; or (2) Indian tribes or Native Hawaiian organizations or their respective THPOs are likely to have knowledge regarding historic properties within the area of potential effects, which may be of religious and cultural significance that are eligible for or listed in the National Register. (b) If a party is so invited: (1) Deadline for initial response. Any such party shall respond to confirm their participation within 15 days of service or its participation is deemed waived. (2) Default timelines. The agency official may set timelines for participation in its notice, provided such deadlines are reasonable in light of the project as a whole. In the absence of such a deadline, the default deadlines shall be: NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 27 of 50 (i) 30 days to assist in the identification of historic properties. (ii) 45 days, to run concurrently, to assist in the evaluation of effects and to propose ways to address adverse effects. (3) Confidentiality. In the early consultation process, the agency official should address concerns raised about confidentiality pursuant to § 800.11(c). (1) No creation of rights: Participation in early consultation creates no rights on the part of the consulting party nor obligations on the part of the agency beyond those provided by Section 106 and this part. (a) Termination of consultation. After consulting to resolve adverse effects pursuant to § 800.6(b)(2), the agency official, the SHPO/THPO, or the Council may determine that further consultation will not be productive and terminate consultation. Any party that terminates consultation shall notify the other consulting parties and provide them the reasons for terminating in writing. (1) If the agency official terminates consultation, the head of the agency or an Assistant Secretary or other officer with major department-wide or agency-wide responsibilities shall request that the Council comment pursuant to paragraph (c) of this section and shall notify all consulting parties of the request. (2) If the SHPO terminates consultation, the agency official and the Council may execute a memorandum of agreement without the SHPO's involvement. (3) If a THPO terminates consultation regarding an undertaking occurring on or affecting historic properties on its tribal lands, the Council shall comment pursuant to paragraph (c) of this section. (4) If the Council terminates consultation, the Council shall notify the agency official, the agency's Federal preservation officer and all consulting parties of the termination and comment under paragraph (c) of this section. The Council may consult with the agency's Federal preservation officer prior to terminating consultation to seek to resolve issues concerning the undertaking and its effects on historic properties. (b) Comments without termination. The Council may determine that it is appropriate to provide additional advisory comments upon an undertaking for which a memorandum of agreement will be executed. The Council shall provide them to the agency official when it executes the memorandum of agreement. (c) Comments by the Council — (1) Preparation. The Council shall provide an opportunity for the agency official, all consulting parties, and the public to provide their views within the time frame for developing its comments. Upon request of the Council, the agency official shall provide additional existing information concerning the undertaking and assist the Council in arranging an onsite inspection and an opportunity for public participation. NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 28 of 50 (2) Timing. The Council shall transmit its comments within 45 days of receipt of a request under paragraph (a)(1) or (a)(3) of this section or § 800.8(c)(3), or termination by the Council under § 800.6(b)(1)(v) or paragraph (a)(4) of this section, unless otherwise agreed to by the agency official. (3) Transmittal. The Council shall provide its comments to the head of the agency requesting comment with copies to the agency official, the agency's Federal preservation officer, all consulting parties, and others as appropriate. (4) Response to Council comment. The head of the agency shall take into account the Council's comments in reaching a final decision on the undertaking. Section 110(l) of the act directs that the head of the agency shall document this decision and may not delegate his or her responsibilities pursuant to section 106. Documenting the agency head's decision shall include: (i) Preparing a summary of the decision that contains the rationale for the decision and evidence of consideration of the Council's comments and providing it to the Council prior to approval of the undertaking; (ii) Providing a copy of the summary to all consulting parties; and (iii) Notifying the public and making the record available for public inspection. Subpart C—Other Considerations § 800.8 Integrating Section 106 Compliance with the National Environmental Policy Act. (a) General principles — (1) Early coordination. Federal agencies are encouraged to coordinate compliance with section 106 and the procedures in this part with any steps taken to meet the requirements of the National Environmental Policy Act (NEPA). Agencies should consider their section 106 responsibilities as early as possible in the NEPA process, and plan their public participation, analysis, and review in such a way that they can meet the purposes and requirements of both statutes in a timely and efficient manner. The determination of whether an undertaking is a “major Federal action significantly affecting the quality of the human environment,” and therefore requires preparation of an environmental impact statement (EIS) under NEPA, should include consideration of the undertaking's likely effects on historic properties. A finding of adverse effect on a historic property does not necessarily require an EIS under NEPA. (2) Consulting party roles. SHPO/THPOs, Indian tribes, and Native Hawaiian organizations, other consulting parties, and organizations and individuals who may be concerned with the possible effects of an agency action on historic properties should be prepared to consult with agencies early in the NEPA process, when the purpose of and need for the proposed action as well as the widest possible range of alternatives are under consideration. NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 29 of 50 (3) Inclusion of historic preservation issues. Agency officials should ensure that preparation of an environmental assessment (EA) and finding of no significant impact (FONSI) or an EIS and record of decision (ROD) includes appropriate scoping, identification of historic properties, assessment of effects upon them, and consultation leading to resolution of any adverse effects. (b) Actions categorically excluded under NEPA. If a project, activity or program is categorically excluded from NEPA review under an agency's NEPA procedures, the agency official shall determine if it still qualifies as an undertaking requiring review under section 106 pursuant to § 800.3(a). If so, the agency official shall proceed with section 106 review in accordance with the procedures in this subpart. (a) Use of the NEPA process for section 106 purposes. For any Federal undertaking that is also a “major federal action” subject to NEPA, aAn agency official may elect to use the process and documentation required for the preparation of an Environmental Assessment (EA) and Finding of No Significant Impact (FONSI)A/FONSI or an Environmental Impact Statement (EIS) Record ofO Decision (ROD) to comply with section 106 in lieu of the procedures set forth in §§ 800.3-7 through 800.6 if the agency official has notified in advance the SHPO/THPO and the Council that it intends to do so and the following standards are met. (1) Standards for developing environmental documents to comply with Section 106. During preparation of the EA or draft EIS (DEIS), the agency official shall: (i) Identify the area of potential effects and relevant consulting parties either pursuant to § 800.3(f) or through the NEPA scoping process with results consistent with §§ 800.4(b) and 800.5(a)§ 800.3(f); (A) The agency official may engage in early consultation with such parties as part of the NEPA process, if the official determines it would be helpful. (ii) Identify historic properties and assess the effects of the proposed undertaking on such properties in a manner consistent with the standards and criteria of §§ 800.4 through 800.5, provided that the scope and timing of such effortsthese steps may be adjustedphased to reflect the agency official's consideration of project alternatives in the NEPA process and the effort is commensurate with the assessment of other environmental factors; and (iii) Evaluate reasonable mitigation measures to address adverse effects of the undertaking on historic properties, describe them, and explain the agency official’s selection of reasonable measures or determination that other factors outweigh the interests in historic preservation for this particular effect, property, or project, in the EA or EIS. (ii) Consult regarding the effects of the undertaking on historic properties with the SHPO/THPO, Indian tribes, and Native Hawaiian organizations that might attach religious and cultural significance to affected historic properties, other consulting NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 30 of 50 parties, and the Council, where appropriate, during NEPA scoping, environmental analysis, and the preparation of NEPA documents; (iii) Involve the public in accordance with the agency's published NEPA procedures; and (iv) Develop in consultation with identified consulting parties alternatives and proposed measures that might avoid, minimize or mitigate any adverse effects of the undertaking on historic properties and describe them in the EA or DEIS. (2) Review of environmental documents. (i) The agency official shall submit the EA, DEIS, or EIS to the relevant consulting parties identified pursuantSHPO/THPO, Indian tribes, and Native Hawaiian organizations that might attach religious and cultural significance to § 800.5(a) as if it were a Section 106 Report under this part, and follow the same procedures as set forth in §§ 800.5-6 for obtainingaffected historic properties, and other consulting parties prior to or when making the document available for public comment and to inform the agency’s decision for the purposes of section 106 review. If the document being prepared is a DEIS or EIS, the agency official shall also submit it to the Council. (ii) As part of this process, the agency official may specify deadlines by which comments must be received to comply with the relevant deadlines applicable to the NEPA process under statute, regulation, or other agency policy. (iii) The agency’s determination related to effects to historic properties may be incorporated into a FONSI for any EA and/or the agency’s decision document or a ROD, as appropriate, depending on the out of the NEPA review. (i) Prior to or within the time allowed for public comment on the document, a SHPO/THPO, an Indian tribe or Native Hawaiian organization, another consulting party or the Council may object to the agency official that preparation of the EA, DEIS, or EIS has not met the standards set forth in paragraph (c)(1) of this section or that the substantive resolution of the effects on historic properties proposed in an EA, DEIS, or EIS is inadequate. If the agency official receives such an objection, the agency official shall refer the matter to the Council. (2) Resolution of objections. Within 30 days of the agency official's referral of an objection under paragraph (c)(2)(ii) of this section, the Council shall review the objection and notify the agency as to its opinion on the objection. (i) If the Council agrees with the objection: (A) The Council shall provide the agency official and, if the Council determines the issue warrants it, the head of the agency with the Council's opinion regarding the objection. 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 person to whom the NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 31 of 50 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 issue of the objection. (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 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 decision regarding the matter that is the subject of the objection will be revised, the agency official shall proceed in accordance with the revised decision. If the final decision of the agency is to affirm the initial agency decision, once the summary of the final decision has been sent to the Council, the agency official shall continue its compliance with this section. (ii) If the Council disagrees with the objection, the Council shall so notify the agency official, in which case the agency official shall continue its compliance with this section. (iii) If the Council fails to respond to the objection within the 30 day period, the agency official shall continue its compliance with this section. (3) Approval of the undertaking. If the agency official has found, during the preparation of an EA or EIS that the effects of an undertaking on historic properties are adverse, the agency official shall develop measures in the EA, DEIS, or EIS to avoid, minimize, or mitigate such effects in accordance with paragraph (c)(1)(v) of this section. The agency official's responsibilities under section 106 and the procedures in this subpart shall then be satisfied when either: (i) A binding commitment to such proposed measures is incorporated in: (A) The ROD, if such measures were proposed in a DEIS or EIS; or (B) An MOA drafted in compliance with § 800.6(c); or (ii) The Council has commented under § 800.7 and received the agency's response to such comments. (b) Modification of the undertaking. If the undertaking is modified after approval through the ROD or other decision document in a manner that materially changes the undertaking or alters its effects on historic properties, or if the agency official fails to ensure that the measures adopted to addressavoid, minimize or mitigate adverse effects (as specified in either the FONSI or the ROD or other decision document, or in the documentbinding commitment adopted pursuant to paragraph (a)(2)(c)(4) of this section and § 800.6) are carried out, the agency official shall notify the Council and all consulting parties and proceed in accordance with any appropriate process under this part or athat supplemental environmental documents will be prepared in compliance with NEPA or that the procedures in §§ 800.3 through 800.6 will be followed as necessary. NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 32 of 50 (c) Actions categorically excluded under NEPA. If a project, activity or program is found to be excluded pursuant to a categorical exclusion under NEPA, see 42 U.S.C. §§ 4336(a)(2), (b)(2), the agency official shall determine if, notwithstanding that finding, the project, activity, or program qualifies as a Federal undertaking requiring review under section 106 pursuant to § 800.3(a). If so, the agency official shall first review whether the undertaking falls within an exempted category under § 800.14(c). If not, the agency official shall then proceed with section 106 review in accordance with the procedures in this part. [65 FR 77725, Dec. 12, 2000, as amended at 69 FR 40554, July 6, 2004] § 800.9 Council review of section 106 compliance. (a) Assessment of agency official compliance for individual undertakings. The Council may provide to the agency official its advisory opinion regarding the substance of any finding, determination or decision or regarding the adequacy of the agency official's compliance with the procedures under this part. The Council may provide such advice at any time at the request of any individual, agency or organization or on its own initiative. The agency official shall consider the views of the Council in reaching a decision on the matter in question. (b) Agency failure to provideforeclosure of the Council's an opportunity to comment. Where an agency official has failed to complete the requirements of section 106 in accordance with the procedures in this part prior to the approval of an undertaking, the Council's may be deprived of an opportunity to comment on the agency official’s findings.may be foreclosed. The Council may review such an undertaking a case to determine whether the Council was so depriveda foreclosure has occurred. If tThe Council determines that the agency failed to provide it with an opportunity to comment, then it shall notify the agency official and the agency's Federal preservation officer and allow 30 days for the agency official to provide information as to whether deprivation of the Council’s opportunity to commentforeclosure has occurred. If the Council determines foreclosure has occurred, tThe Council shall transmit the determination to the agency official and the head of the agency. The Council shall also make the determination available to the public and any parties known to be interested in the undertaking and its effects upon historic properties. (c) Intentional adverse effects by applicants – (1) Agency responsibility. Section 110(k) of the act prohibits a Federal agency from granting a loan, loan guarantee, permit, license or other assistance to an applicant who, with intent to avoid the requirements of section 106, has intentionally significantly adversely affected a historic property to which the grant would relate, or having legal power to prevent it, has allowed such significant adverse effect to occur, unless the agency official, after consultation with the Council, determines that circumstances justify granting such assistance despite the adverse effect created or permitted by the applicant. Guidance issued by the Secretary pursuant to section 110 of the act governs its implementation. NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 33 of 50 (2) Consultation with the Council. When an agency official determines, based on the actions of an applicant, that section 110(k) is applicable and that circumstances may justify granting the assistance, the agency official shall notify the Council and provide documentation specifying the circumstances under which the adverse effects to the historic property occurred and the degree of damage to the integrity of the property. This documentation shall include any views obtained from the applicant, SHPO/THPO, an Indian tribe if the undertaking occurs on or affects historic properties on tribal lands and the Indian tribe does not have an appointed or designated THPO, and other parties known to be interested in the undertaking. (i) Within 30thirty days of receiving the agency official's notification, unless otherwise agreed to by the agency official, the Council shall provide the agency official with its opinion as to whether circumstances justify granting assistance to the applicant and any possible mitigation of the prior adverse effects. (ii) The agency official shall consider the Council’s opinion in making a decision on whether to grant assistance to the applicant, and shall notify the Council, the SHPO/THPO, and other parties known to be interested in the undertaking prior to granting the assistance. (d) Compliance with Section 106. If an agency official, after consulting with the Council, determines to grant the assistance, the agency official shall comply with §§ 800.3 through 800.6 to take into account the effects of the undertaking on any historic properties. (e) Evaluation of Section 106 operations. The Council may evaluate the operation of the section 106 process by periodic reviews of how participants have fulfilled their legal responsibilities and how effectively the outcomes reached advance the purposes of the act. (1) Information from participants. Section 203 of the act authorizes the Council to obtain information from Federal agencies necessary to conduct evaluation of the section 106 process. The agency official shall make documentation of agency policies, operating procedures and actions taken to comply with section 106 available to the Council upon request, to the extent permitted by law and within available funds. The Council may request available information and documentation from other participants in the section 106 process. (2) Improving the operation of section 106. Based upon any evaluation of the section 106 process, the Council may make recommendations to participants, the heads of Federal agencies, and the Secretary of actions to improve the efficiency and effectiveness of the process. Where the Council determines that an agency official or a SHPO/THPO has failed to properly carry out the responsibilities assigned under the process in this part, the Council may participate in individual case reviews conducted under such process in addition to the SHPO/THPO for such period that it determines is necessary to improve performance or correct deficiencies. If the Council finds a pattern of failure by a Federal agency in carrying out its responsibilities under section 106, the Council may review the policies and programs of the agency related to NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 34 of 50 historic preservation pursuant to section 202(a)(6) of the act and recommend methods to improve the effectiveness, coordination, and consistency of those policies and programs with section 106. § 800.10 Special requirements for protecting National Historic Landmarks. (a) Statutory requirement. Section 110(f) of the act requires that the agency official, to the maximum extent possible, undertake such planning and actions as may be necessary to minimize harm to any National Historic Landmark that may be directly and adversely affected by an undertaking. When commenting on such undertakings, the Council shall use the process set forth in §§ 800.5-6 through 800.7 and give special consideration to protecting National Historic Landmarks as specified in this section. (b) Resolution of adverse effects. The agency official shall request the Council to participate in any consultation to resolve adverse effects on National Historic Landmarks conducted under § 800.6. (c)(b) Involvement of the Secretary. The agency official shall notify the Secretary of any consultation involving a National Historic Landmark and invite the Secretary to participate in the consultation where there may be an adverse effect. The Council may request a report from the Secretary under section 213 of the act to assist in the consultation. (d)(c) Report of outcome. When the Council participates in consultation under this section, it shall report the outcome of the section 106 process, providing its written comments or any memoranda of agreement to which it is a signatory, to the Secretary and the head of the agency responsible for the undertaking. § 800.11 Documentation standards. (a) Adequacy of documentation. The agency official shall ensure that a determination, finding, or agreement under the procedures in this partsubpart is supported by sufficient documentation to enable any reviewing parties to understand its basis. The agency official shall provide such documentation to the extent permitted by law and within available funds. When an agency official is conducting phased identification or evaluation under this partsubpart, the documentation standards regarding description of historic properties may be applied flexibly. If the Council, or the SHPO/THPO when the Council is not involved, determines the applicable documentation standards are not met, the Council or the SHPO/THPO, as appropriate, shall notify the agency official and specify the information needed to meet the standard. At the request of the agency official or any of the consulting parties, the Council shall review any disputes over whether documentation standards are met and provide its views to the agency official and the consulting parties. (b) Format. The agency official may use documentation prepared to comply with other laws to fulfill the requirements of the procedures in this partsubpart, if that documentation meets the standards of this section. NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 35 of 50 (c) Confidentiality – (1) Authority to withhold information. Section 304 of the act provides that the head of a Federal agency or other public official receiving grant assistance pursuant to the act, after consultation with the Secretary, shall withhold from public disclosure information about the location, character, or ownership of a historic property when disclosure may cause a significant invasion of privacy; risk harm to the historic property; or impede the use of a traditional religious site by practitioners. When the head of a Federal agency or other public official has determined that information should be withheld from the public pursuant to these criteria, the Secretary, in consultation with such Federal agency head or official, shall determine who may have access to the information for the purposes of carrying out the act. (2) Consultation with the Council. When the information in question has been developed in the course of an agency’s compliance with this part, the Secretary shall consult with the Council in reaching determinations on the withholding and release of information unless the information is required to be withheld from disclosure by another statute. In furtherance of this consultation requirement, theThe Federal agency shall provide the Council with relevant available information, including views of the SHPO/THPO, Indian tribes and Native Hawaiian organizations, related to the confidentiality concern. The Council shall advise the Secretary and the Federal agency within 2130 days of receipt of available information; provided, that a failure by the Council to provide timely advice shall not delay the Secretary’s determination regarding the withholding and release of informationadequate documentation. (3) Other authorities affecting confidentiality. Other Federal laws and program requirements may limit public access to information concerning an undertaking and its effects on historic properties. Where applicable, those authorities shall govern public access to information developed in the section 106 process and may authorize the agency official to protect the privacy of non-governmental applicants. (d) Report. Finding of no historic properties affected. Documentation shall include, as relevant: (1) A description of the undertaking, specifying the Federal involvement, and its area of potential effects, including photographs, maps, and drawings, as necessary; (2) A description of the steps taken to identify historic properties, including, as appropriate, efforts to seek information pursuant to § 800.4(b);and (3) The basis for determining that no historic properties are present or affected, if such a determination has been made; (e) Finding of no adverse effect or adverse effect. Documentation shall include: (1) A description of the undertaking, specifying the Federal involvement, and its area of potential effects, including photographs, maps, and drawings, as necessary; NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 36 of 50 (2) A description of the steps taken to identify historic properties; (3)(4) A description of the affectedany historic properties present, including information on the characteristics that qualify them for inclusion in the National Register; (4)(5) A description of the undertaking's effects on those historic properties; and (5)(6) An explanation of why the criteria of adverse effect were found applicable or inapplicable, including any reasonable mitigation to address adverse effects, or, where appropriate, an explanation of why other considerations outweigh any conditions or future actions to avoid, minimize or mitigate adverse effects; and= (6) Copies or summaries of any views provided by consulting parties and the public. (e) Memorandum of decision. A memorandum of decision shall include, as appendices, the report and the agency official’s response to any comments received from consulting parties. (a) Memorandum of agreement. A memorandum of agreement shall include, as appendices, the report and the agency official’s response to any comments received from consulting parties. When a memorandum of agreement is filed with the Council, the documentation shall include, any substantive revisions or additions to the documentation provided the Council pursuant to § 800.6(a)(1), an evaluation of any measures considered to avoid or minimize the undertaking's adverse effects and a summary of the views of consulting parties and the public. (b) Requests for comment without a memorandum of agreement. Documentation shall include: (1) A description and evaluation of any alternatives or mitigation measures that the agency official proposes to resolve the undertaking's adverse effects; (2) A description of any reasonable alternatives or mitigation measures that were considered but not chosen, and the reasons for their rejection; (3) Copies or summaries of any views submitted to the agency official concerning the adverse effects of the undertaking on historic properties and alternatives to reduce or avoid those effects; and (4) Any substantive revisions or additions to the documentation provided the Council pursuant to § 800.6(a)(1). § 800.12 Emergency situations. (a) Agency procedures. TheEach agency official, in consultation with the appropriate SHPOs/THPOs, affected Indian tribes and Native Hawaiian organizations, and the Council, is encouraged to develop procedures for taking historic properties into account during operations which respond to a disaster or emergency declared by the President, a tribal government, or the Governor of a State or which respond to other NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 37 of 50 emergency situations. immediate threats to life or property. If approved agreed to by the Council, the procedures shall govern the agency's historic preservation responsibilities during any disaster or emergency in lieu of §§ 800.3 through 800.6. (b) Alternatives to agency procedures. In the event an agency official proposes an emergency undertaking inas an essential and immediate response to a disaster or emergency declared by the President, a tribal government, or the Governor of a State or another emergency situationimmediate threat to life or property, and the agency has not developed procedures pursuant to paragraph (a) of this section, the agency official may comply with section 106 by: (1) Following a programmatic agreement developed pursuant to § 800.14(b) that contains specific provisions for dealing with historic properties in emergency situations; or (2) Notifying the Council, the appropriate SHPOs/THPOs and any Indian tribe or Native Hawaiian organization entitledthat may attach religious and cultural significance to historic properties likely to be a consulting party under § 800.2(c)(2)affected prior to the undertaking and affording them an opportunity to comment within 7seven days of notification. If the agency official determines that circumstances do not permit 7seven days for comment, the agency official shall notify the Council, the SHPO/THPO and suchthe Indian tribe or Native Hawaiian organization as soon as is feasible, including, if necessary, after the undertaking, and invite any comments within the time available. (c) Applicability. This section applies only to undertakings that will be implemented within 30 days after the disaster or emergency has been formally declared by the appropriate authority. An agency may request an extension of the period of applicability from the Council prior to the expiration of the 30 days. Immediate rescue and salvage operations conducted to preserve life or property are exempt from the provisions of section 106 and this part. § 800.13 Post-review discoveries. (a) Planning for subsequent discoveries – (1) Using a programmatic agreement. An agency official may develop a programmatic agreement pursuant to § 800.14(b) to govern the actions to be taken when historic properties are discovered during the implementation of an undertaking. (2) Using memoranda of decision or memorandum of agreement documents. When the agency official’s identification efforts in accordance with § 800.4 indicate that historic properties are likely to be discovered during implementation of an undertaking and no programmatic agreement governs the undertakinghas been developed pursuant to paragraph (a)(1) of this section, the agency official shall include in any finding of no adverse effect or memorandum of decision or memorandum of agreement, the a process that agency official shall follow to address to resolve any adverse effects upon such subsequently discovered properties. Actions NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 38 of 50 in conformance with the such process satisfy the agency official's responsibilities under section 106 and this part. (b) Discoveries without prior planning. If historic properties are discovered or unanticipated effects on historic properties found after the agency official has completed the section 106 process without establishing a process under paragraph (a) of this section, the agency official shall make reasonable efforts to avoid, minimize or mitigateaddress adverse effects to such properties and: (1) If the agency official has not approved the undertaking or if construction on an approved undertaking has not commenced, consult to resolve address adverse effects pursuant to §§ 800.4-6; or (2) If the agency official, the SHPO/THPO and any Indian tribe or Native Hawaiian organization that might attach religious and cultural significance to the affected property agree that such property is of value solely for its scientific, prehistoric, historic or archaeological data, the agency official may comply with the Archaeological and Historic Preservation Act instead of the procedures in this part and provide the Council, the SHPO/THPO, and the such Indian tribe or Native Hawaiian organization with a report on the actions within a reasonable time after they are completed; or (3) If the agency official has approved the undertaking and construction has commenced, determine actions that the agency official can take to resolve address adverse effects, and notify the SHPO/THPO, any Indian tribe or Native Hawaiian organization that might attach religious and cultural significance entitled to be a consulting party under § 800.2(c)(2)the affected property, and the Council within 48 hours of the discovery. The notification shall describe the agency official’s assessment of National Register eligibility of the property and proposed actions to resolve theaddress adverse effects. The SHPO/THPO, the any Indian tribe or Native Hawaiian organization entitled to be a consulting party under § 800.2(c)(2), and the Council shall respond within 48 hours of the notification. The agency official shall take into account their recommendations regarding National Register eligibility and proposed actions, and then carry out any actions the agency official determines to be appropriate actions. The agency official shall provide the SHPO/THPO, the any Indian tribe or Native Hawaiian organization entitled to be a consulting party under § 800.2(c)(2), and the Council a report of the actions when they are completed. (c) Eligibility of properties. The agency official, in consultation with the SHPO/THPO, may assume a newly-discovered property to be eligible for the National Register for purposes of section 106. The agency official shall specify the National Register criteria used to assume the property's eligibility so that information can be used to address in the resolution of adverse effects. (d) Discoveries on tribal lands. If historic properties are discovered on tribal lands, or there are unanticipated effects on historic properties found on tribal lands, for an approved undertaking that did not includeafter the agency official has completed the NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 39 of 50 section 106 process without establishing a process under paragraph (a) of this section and ground-disturbing activities haveconstruction has commenced, the agency official shall comply with applicable tribal lawsregulations and consult with the THPO orprocedures and obtain the concurrence of the Indian tribe, as applicable, on the proposed action. Subpart DC—Program Alternatives § 800.14 Federal agency program alternatives. (a) Alternate procedures. An agency official may develop procedures to implement section 106 and substitute them for all or part of subpart B of this part if they are consistent with the Council's regulations pursuant to section 110(a)(2)(E) of the act. (1) Development of procedures. The agency official shall consult with the Council, the National Conference of State Historic Preservation Officers, or individual SHPO/THPOs, as appropriate, and Indian tribes and Native Hawaiian organizations, as specified in paragraph (f) of this section, in the development of alternate procedures, publish notice of the availability of proposed alternate procedures in the Federal Register and take other appropriate steps to seek public input during the development of alternate procedures. (2) Council review. The agency official shall submit the proposed alternate procedures to the Council for a 60-day review period. If the Council finds the procedures to be consistent with this part, it shall notify the agency official and the agency official may adopt them as final alternate procedures. (3) Notice. The agency official shall notify the parties with which it has consulted and publish notice of final alternate procedures in the Federal Register. (4) Legal effect. Alternate procedures adopted pursuant to this subpart substitute for the Council's regulations for the purposes of the agency's compliance with section 106, except that where an Indian tribe has entered into an agreement with the Council to substitute tribal historic preservation regulations for the Council's regulations under section 101(d)(5) of the act, the agency shall follow those regulations in lieu of the agency's procedures regarding undertakings on tribal lands. Prior to the Council entering into such agreements, the Council will provide Federal agencies notice and opportunity to comment on the proposed substitute tribal regulations. (b)(a) Programmatic agreements. The Council and the agency official may negotiate develop and agree to a programmatic agreement to govern the implementation of a particular program or the resolution ofto address adverse effects from certain complex project situations or multiple undertakings. (1) Use of programmatic agreements. A programmatic agreement may be used: (i) When effects on historic properties are similar and repetitive or are multi-State or regional in scope; NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 40 of 50 (ii) When effects on historic properties cannot be fully determined prior to approval of an undertaking; (iii) When nonfederal parties are delegated major decisionmaking responsibilities; (iv) Where routine management activities are undertaken at Federal installations, facilities, or other land-management units; or (v) Where other circumstances warrant a departure from the normal standard section 106 process. (2) Developing programmatic agreements for agency programs. (i) Consultation. The agency official may consultconsultation shall involve, as appropriate, individual SHPOs/THPOs, the National Conference of State Historic Preservation Officers (NCSHPO), Indian tribes and Native Hawaiian organizations, other Federal agencies, and members of the public, in developing . If the programmatic agreement. If a programmatic agreement has the reasonable foreseeable potential to affect historic properties on tribal lands or historic properties of religious and cultural significance to an Indian tribe or Native Hawaiian organization off tribal lands, the agency official shall also follow paragraph (df) of this section. (ii) Public participation. The agency official shall arrange for public participation appropriate to the subject matter and the scope of the program and in accordance with subpart A of this part. The agency official shall consider the nature of the program and its likely effects on historic properties and take steps to involve the individuals, organizations and entities likely to be interested. (iii)(ii) Effect. The programmatic agreement shall take effect when executed by the Council and, the agency official. The agency official and the Council shall seek, but are not required to obtain, the concurrence of the appropriate SHPOs/THPOs when the programmatic agreement concerns a specific region, or the president of NCSHPO when NCSHPO has participated in the consultation. A programmatic agreement shall take effect on tribal lands only when the applicable THPO, Indian tribe, or a designated representative of the tribe is a signatory to the programmatic agreement. Compliance with the procedures established by an approved programmatic agreement satisfies the agency's section 106 responsibilities for all individual undertakings of the program covered by the programmatic agreement until it expires or is terminated by the agency official, the president of NCSHPO when a signatory, or the Council. Termination by an individual SHPO/THPO or Indian tribe shall only terminate the application of a regional programmatic agreement within the jurisdiction of the SHPO/THPO. If a THPO assumes the responsibilities of a SHPO pursuant to section 101(d)(2) of the act and the SHPO is signatory to programmatic agreement, the THPO assumes the role of a signatory, including the right to terminate a regional programmatic agreement, but only on tribal NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 41 of 50 lands under the jurisdiction of the tribe. (iii) Notice. The agency official shall notify the parties with which it has consulted that a programmatic agreement has been executed under paragraph (b) of this section, provide appropriate public notice before it takes effect, and make any internal agency procedures implementing the programmatic agreement readily available to the Council, SHPO/THPOs, and the public (iv) If the Council determines that the terms of a programmatic agreement are not being carried out and terminates thate programmatic agreement, or if such an agreement is terminated, or if such agreement is terminated by NCSHPO, a SHPO/THPO, or Indian tribe, as applicable, then those individual undertakings of the program that do not survive termination under paragraph (a)(2)(ii) the agency official shall comply with subpart B of this part with regard to individual undertakings of the program covered by the agreement. (3) Developing programmatic agreements for complex or multiple undertakings. Consultation to develop a programmatic agreement for dealing with the potential adverse effects of complex projects or multiple undertakings shall follow § 800.6. If consultation pertains to an activity involving multiple undertakings and the parties fail to reach agreement, then the agency official shall comply with the provisions of subpart B of this part for each individual undertaking. (4)(3) Prototype programmatic agreements. The Council may designate an agreement document as a prototype programmatic agreement that may be used for the same type of program or undertaking in more than one case or area. When an agency official uses such a prototype programmatic agreement, the agency official may develop and execute the agreement with the appropriate SHPO/THPO and the agreement shall become final without need for Council participation in consultation or Council signature. (c)(b) Exempted categories – (1) Criteria for establishing. The Council or an agency official may at any time propose a program or category of undertakings that may be exempted from review under the provisions of subpart B of this part, if the program or category meets the following criteria: (i) The actions within the program or category would otherwise qualify as “undertakings” as defined in § 800.16; (ii) Such action, considering its magnitude, normally does not have adverse The potential effects of the undertakings within the program or category upon historic properties, or such effects are foreseeable and likely to benormally minimal or not adverse; and (iii) Exemption of the program or category is consistent with the purposes of the act. NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 42 of 50 (iv) (2) Public participation. The proponent of the exemption shall arrange for public participation appropriate to the subject matter and the scope of the exemption and in accordance with the standards in subpart A of this part. The proponent of the exemption shall consider the nature of the exemption and its likely effects on historic properties and take steps to involve individuals, organizations and entities likely to be interested. (3) Consultation with SHPOs/THPOs. The proponent of the exemption shall notify and consider the views of the SHPOs/THPOs on the exemption. (4) Consultation with Indian tribes and Native Hawaiian organizations. If the exempted program or category of undertakings has the potential to affect historic properties on tribal lands or historic properties of religious and cultural significance to an Indian tribe or Native Hawaiian organization, the Council shall follow the requirements for the agency official set forth in paragraph (f) of this section. (2) Consultation. The agency official may consult, as appropriate, NCSHPO, individual SHPOs/THPOs, Indian tribes and Native Hawaiian organizations, other Federal agencies, and members of the public, in formulating an exempted category. If a proposed exemption has reasonably foreseeable potential to affect historic properties on tribal lands or historic properties of religious and cultural significance to an Indian tribe or Native Hawaiian organization off tribal lands, the agency official shall also follow paragraph (d) of this section. (5)(3) Council review of proposed exemptions. The Council shall review an proposed exemption proposal that is supported by documentation describing the program or category for which the exemption is sought, demonstrating that the criteria of paragraph (c)(1) of this section have been met, describing the methods used to seek the views of the public, and summarizing any views submitted, as applicable, by the SHPOs/THPOs, the public, and any others consulted. Unless it requests further information, the Council shall approve or reject the proposed exemption within 30 days of receipt, and thereafter notify the relevant agency official and SHPO/THPOs of the decision. The decision shall be based on the consistency of the exemption with the purposes of the act, taking into consideration the magnitude of the exempted undertaking or program and the likelihood of impairment of historic properties in accordance with section 214 of the act. (6)(4) Legal consequences. Any undertaking that falls within an approved exempted program or category shall require no further review pursuant to subpart B of this part, unless the agency official or the Council determines that there are extraordinary circumstances under which the normally excluded undertaking should be reviewed under subpart B of this part. (7)(5) Termination. The Council may terminate an exemption at the request of the agency official or when the Council determines, after consultation with the relevant NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 43 of 50 agency officials, that the exemption no longer meets the criteria of paragraph (c)(1) of this section and cannot be narrowed in scope to meet such criteria. The Council shall notify the agency official 30 days before termination becomes effective. (6) Notice. (i) The proponent of the exemption shall publish notice of any approved exemption in the Federal Register. (i)(ii) The Council shall maintain a catalog of approved exemptions. (7) Periodic Review. The Council and agency officials shall periodically review existing exemptions and propose new exemptions from review, using the criteria set forth in subsection (1) above. (c) Standard treatments — (1) Establishment. The Council, on its own initiative or at the request of another party, may establish standard methods for the treatment of a category of historic properties, a category of undertakings, or a category of effects on historic properties to assist Federal agencies in satisfying the requirements of subpart B of this part. The Council shall publish notice of standard treatments in the Federal Register. (2) Public participation. The Council shall arrange for public participation appropriate to the subject matter and the scope of the standard treatment and consistent with subpart A of this part. The Council shall consider the nature of the standard treatment and its likely effects on historic properties and the individuals, organizations and entities likely to be interested. Where an agency official has proposed a standard treatment, the Council may request the agency official to arrange for public involvement. (3) Consultation with SHPOs/THPOs. The Council shall notify and consider the views of SHPOs/THPOs on the proposed standard treatment. (4) Consultation with Indian tribes and Native Hawaiian organizations. If the proposed standard treatment has the potential to affect historic properties on tribal lands or historic properties of religious and cultural significance to an Indian tribe or Native Hawaiian organization, the Council shall follow the requirements for the agency official set forth in paragraph (f) of this section. (5) Termination. The Council may terminate a standard treatment by publication of a notice in the Federal Register 30 days before the termination takes effect. (d)(c) Programmatic comments. An agency official may request the Council to comment on a category of undertakings in lieu of conducting individual reviews under §§ 800.4 through 800.6. The Council may provide program comments at its own initiative. (1) Agency request. The agency official shall identify the category of undertakings, NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 44 of 50 specify the likely effects on historic properties, specify the steps the agency official will take to ensure that the effects are taken into account, identify the time period for which the comment is requested and summarize any views submitted by interested parties or the public. (2) Public participation. The agency official shall arrange for public participation appropriate to the subject matter and the scope of the category and in accordance with the standards in subpart A of this part. The agency official shall consider the nature of the undertakings and their likely effects on historic properties and the individuals, organizations and entities likely to be interested. (3) Consultation with SHPOs/THPOs. The Council shall notify and consider the views of SHPOs/THPOs on the proposed program comment. (4) Consultation with Indian tribes and Native Hawaiian organizations. If the program comment has the potential to affect historic properties on tribal lands or historic properties of religious and cultural significance to an Indian tribe or Native Hawaiian organization, the Council shall follow the requirements for the agency official set forth in paragraph (f) of this section. (2) Consultation. The agency official shall consult, as appropriate, NCSHPO, individual SHPOs/THPOs, Indian tribes and Native Hawaiian organizations, other Federal agencies, and members of the public, in formulating a programmatic comment. If a proposed programmatic comment concerns projects that may reasonably foreseeably affect historic properties on tribal lands or historic properties of religious and cultural significance to an Indian tribe or Native Hawaiian organization off tribal lands, the agency official shall also follow paragraph (d) of this section. (i) Council action. Unless the Council requests additional documentation, notifies the agency official that it will decline to comment, or obtains the consent of the agency official to extend the period for providing comment, the Council shall comment to the agency official within 45 30 days of the request. (A) If the Council comments, the agency official shall take into account the comments of the Council in carrying out the undertakings within the category and publish notice in the FEDERAL REGISTER of the Council's comments and steps the agency will take to ensure that effects to historic properties are taken into account. (B) If the Council declines to comment, the agency official shall continue to comply with the requirements of §§ 800.3 through 800.6 for the individual undertakings. (6) Withdrawal of comment. If the Council determines that the consideration of historic properties is not being carried out in a manner consistent with the program comment, the Council may withdraw the comment and the agency official shall comply with the requirements of §§ 800.3 through 800.6 for the individual undertakings. NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 45 of 50 (e)(d) Consultation with Indian tribes and Native Hawaiian organizations when developing program alternatives. Whenever an the Council or the agency official proposes a program alternative pursuant to paragraphs (a) through (c) of this section that has reasonably foreseeable potential to affect historic properties on tribal lands or historic properties of religious and cultural significance to an Indian tribe or Native Hawaiian organization off tribal lands, the Council or, the agency official shall ensure that development of the program alternative includes appropriate government-to-government consultation with affected Indian tribes and consultation with affected Native Hawaiian organizations. (1) Identifying affected Indian tribes and Native Hawaiian organizations. The Council or the agency official, as applicable, shall make a reasonable and good faith effort to identify Indian tribes and Native Hawaiian organizations that should be consulted regarding a proposed program alternative.If any undertaking covered by a proposed program alternative has the potential to affect historic properties on tribal lands, the agency official shall identify and consult with the Indian tribes having jurisdiction over such lands. If a proposed program alternative has the potential to affect historic properties of religious and cultural significance to an Indian tribe or a Native Hawaiian organization which are located off tribal lands, the agency official shall identify those Indian tribes and Native Hawaiian organizations that might attach religious and cultural significance to such properties and consult with them. When a proposed program alternative has nationwide applicability, the agency official shall identify an appropriate government to government consultations with Indian tribes and consult with Native Hawaiian organizations in accordance with existing Executive orders, Presidential memoranda, and applicable provisions of law, and undertake such consultations. (2) Results of consultation. The Council or the agency official shall provide prepare summaries of the views, along with copies of any written comments, provided by affected Indian tribes and Native Hawaiian organizations and assemble copies of any written comments provided by such Indian tribes and Native Hawaiian organizations for the Council’s review to the Council as part of the documentation for the proposed program alternative. The Council and the agency official, as applicable, and the Council shall take consider those views into accountand comments in reaching a final decision on the proposed program alternative. § 800.15 Tribal, State, and local program alternatives. [Reserved] SUBPART E DEFINTIONS § 800.16 Definitions. (a) Act means the National Historic Preservation Act of 1966, as amended, 54 U.S.C. 300101, et seq.16 U.S.C. 470-470w-6. (b) Address adverse effects means those measures adopted in accordance with § 800.6 to avoid, minimize, or otherwise mitigate the adverse effects of the undertaking on NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 46 of 50 historic properties identified in § 800.4. (b)(c) Agency means agency as defined in 5 U.S.C. 551. (c)(d) Approval of the expenditure of funds means any 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)(e) Area of potential effects means the geographic area or areas within which an undertaking causes direct material may directly or indirectly cause alterations in the character or use ofto 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)(f) Comment means the findings and recommendations of the Council formally provided in writing to the head of a Federal agency under section 106. (f)(g) Consultation means the process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with themparties 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)(h) Council means the Advisory Council on Historic Preservation or a Council member or employee designated to act for the Council. (h)(i) Day or days means calendar days. (i)(j) Effect means material alteration to the characteristics of a historic property that qualifying it the historic property 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)(k) (1) As defined in section § 301(5) of the Act hHistoric property “means any prehistoric or historic district, site, building, structure, or object included inon, or eligible for inclusion inon, the National Register [of Historic Places maintained by the Secretary of the Interior], of Historic Places maintained by the Secretary of the NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 47 of 50 Interior. This term includinges artifacts, records, and material remains that are related to and located within such propertiesrelating to the district, site, building, structure, or object.” 54 U.S.C. § 300308. The term includes “Property properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization and [that] may be determined to be eligible for inclusion on meet the National Register criteria.” 54 U.S.C. § 302706(a). (2) A physical location qualifies as property under both of these definitions if: (i) It includes, or has included at some point in the past, tangible human improvements; and (ii) It is geographically compact. For the avoidance of doubt, noncompact, unimproved natural features such as mountains, valleys, bodies of water, or landscapes, including ethnographic landscapes, do not qualify as property for the purposes of section 106. (2)(3) 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)(l) 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. (m) Invited Signatories means those persons that sign a programmatic agreement or memorandum of agreement. (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)(o) National Historic Landmark means a historic property that the Secretary of the Interior has designated a National Historic Landmark. (q)(p) National Register means the National Register of Historic Places maintained by the Secretary of the Interior. (r)(q) 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). NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 48 of 50 (s)(r) (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). (s) Reasonable mitigation means measures that are technically and economically feasible to address adverse effects while taking into account the goals of the undertaking. (u)(t) Secretary means the Secretary of the Interior acting through the Director of the National Park Service except where otherwise specified. (u) Required Signatories means those persons that are required to sign a programmatic agreement or memorandum of agreement. (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. SUBPART F TRANSITION § 800.17 Transition NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 49 of 50 (a) Any consultation, related to an undertaking under this Part, which commenced prior to [the effective date of this rulemaking] shall continue to be evaluated under the process prescribed by this Part as of INSERT DATE, unless the project sponsor requests in writing for the consultation to be processed under this Part as of [the effective date of this rulemaking]. (b) For one year subsequent to [the effective date of the rulemaking], a project proponent may elect to undertake consultations under the process prescribed by this Part as of INSERT DATE. SUBPART G SEVERABILITY § 800.18 Severability The sections of this part are separate and severable from one another. If any section or portion therein is stayed or determined to be invalid, or the applicability of any section to any person or entity is held invalid, it is the Council’s intention that the validity of the remainder of those parts will not be affected, with the remaining section, and all applications thereof, to continue in effect. Pt. 800, App. A Appendix A to Part 800 – Criteria for Council Involvement in Reviewing Individual section 106 Cases (a) Introduction. This appendix sets forth the criteria that will be used by the Council to determine whether to enter an individual section 106 review that it normally would not be involved in. (b) General policy. The Council may choose to exercise its authorities under the section 106 regulations to participate in an individual project. pursuant The Council’s decision to do so will be guided by the following criteria. However, the Council will not always elect to participate even though one or more of the criteria may be met. (c) Specific criteria. The following criteria inform when tThe Council is likely to enter the section 106 process at the steps specified in the regulations in this part when an undertaking: (1) Has substantial impacts on important historic properties. This may include adverse effects on properties that possess a national level of significance or on properties that are of unusual or noteworthy importance or are a rare property type; or adverse effects to large numbers of historic properties, such as impacts to multiple properties within a historic district. (2) Presents important questions of policy or interpretation. This may include questions about how the Council's regulations are being applied or interpreted, including possible foreclosure or anticipatory demolition situations; situations where the outcome will set a precedent affecting Council policies or program goals; or the NOT PUBLIC – NOT FOR FURTHER DISTRIBUTION ONLY FOR PURPOSES OF ACHP OFFICIAL BUSINESS Page 50 of 50 development of programmatic agreements that alter the way the section 106 process is applied to a group or type of undertakings. (3) Has the potential for presenting procedural problems. This may include cases with substantial public controversy that is related to historic preservation issues; with disputes among or about consulting parties which the Council's involvement could help resolve; that are involved or likely to be involved in litigation on the basis of section 106; or carried out by a Federal agency, in a State or locality, or on tribal lands where the Council has previously identified problems with section 106 compliance pursuant to § 800.9(d)(2). (4) Presents issues of concern to Indian tribes or Native Hawaiian organizations. This may include cases where there have been concerns raised about the identification of, evaluation of or assessment of effects on historic properties to which an Indian tribe or Native Hawaiian organization attaches religious and cultural significance; where an Indian tribe or Native Hawaiian organization has requested Council involvement to assist in the resolution of adverse effects; or where there are questions relating to policy, interpretation or precedent under section 106 or its relation to other authorities, such as the Native American Graves Protection and Repatriation Act. Record #Type MIHP# Updated by Script from EPR. Updated by Script from EPR. not in an adopted rv for new construction review by hdc Updated by Script from EPR. Not in a review area for new construction; sent no review contact letter Updated by Script from EPR. Comments For the September 2nd Meeting for Comment Comments Comments Comments Updated by Script from EPR. Comments not in tax credit program. no hdc review Updated by Script from EPR. Comments Comments Comments Comments CommentsTask Name LOR 13722 BLAIRS VALLEY FREESTANDING DOUBLE SIDED ILLUMINATED Folder Status Status Date Non-Residential Signs Task Name Days in Review:0 06-Aug-26 14311 CASTLE DRIVE CASCADE, MD 21719 PER PLANNING AND ZONING DEPARTMENT, SITE PLAN TO BE SUBMITTED PRIOR TO Folder Status Status Date GP-26-014 Site Specific Grading Plan IV262 In Review 05-Aug-26 Task Name Passed - Info 28-Jul-26 Historical Review Days in Review:0 28-Jul-26 LOR 17423 DA WRONG LANE 960 SQ. FT. DETACHED (2) CAR GARAGE ON CMU FOUNDATION TO RIGHT OF DWELLING, PRE-ENGINEERED ROOF TRUSSES Folder Status Status Date 2026-03173 Residential New Construction Permit I424 Approved 27-Jul-26 24-Jul-26 Historical Review Days in Review:0 2026-03132 Residential Addition- Alteration Permit II0103 Review 24-Jul-26 24-Jul-26 S-22-024 6720 REMSBURG ROAD, LOT 1 MOUNTED SOLAR PANELS ON 2,552 SQ. FT. DETACHED BUILDING TO BE USED AS A WORKSHOP Folder Status Status Date Task Name Note 24-Jul-26 Historical Review Passed - Info Task Name Note 28-Jul-26 Historical Review Passed - Info 28-Jul-26 Historical Review28-Jul-26 14 WEST BALTIMORE STREET REPLACING 600 SQ. FT. ROOF MATERIAL ON EXISTING ENCLOSED REAR PORCH ONLY, CHANGING FROM METAL TO SHINGLE Folder Status Status Date Days in Review:0 FK2026-0010 Town of Funkstown Residential Building Permit I628 Approved 23-Jul-26 Days in Review:2 SH2026-0005 Town of Sharpsburg Residential Building Permit II0546 Approved 22-Jul-26 22-Jul-26 LOR 116 EAST MAIN STREET INSTALLATION OF (18) 7.38 KW ROOF MOUNTED SOLAR PANELS ON DWELLING Folder Status Status Date Task Name Task Name Note 07-Aug-26 Historical Review31-Jul-26 S-26-008 15229 NATIONAL PIKE, LOT 2 MODULAR DWELLING ON FULL UNFINISHED WALKOUT BASEMENT WITH ROUGH IN FOR FUTURE BATH, COVERED FRONT PORCH, PRE- ENGINEERED ROOF TRUSSES Folder Status Status Date 2026-03082 Residential New Construction Permit V005 Review 21-Jul-26 Task Name Note 07-Aug-26 Days in Review:3 04-Aug-26 13302 UNGER ROAD HAGERSTOWN, MD 21742 REQUEST TO APPLY THE HISTORIC PRESERVATION OVERLAY Folder Status Status Date RZ-26-006 Zoning Ordinance Amendment I148 In Review 20-Jul-26 Passed - Info 20-Aug-26 Historical Review Days in Review:5 In Progress 18-Aug-26 Historical Review Note 20-Aug-26 Historical Review 3 2026-03035 Non-Residential Signs Permit I319 Review 17-Jul-26 18-Aug-26 SP-22-017 13523 BROADFORDING CHURCH ROAD INSTALLATION OF (1) 132 SQ. FT. ILLUMINATED FOR SOCCER FIELD TO READ "BROADFORDING LIONS" WITH SECTION FOR SPONSORS THE BROADFORDING BIBLE BRETHREN CHURCH Folder Status Status Date Task NameNo Comments Received 17-Aug-26 Historical Review RZ-26-005 Zoning Ordinance Amendment II0092 In Review 15-Jul-26 04-Aug-26 20245 MOUNT AETNA ROAD HAGERSTOWN, MD 21742 APPLY THE HP OVERLAY TO RT ZONED PARCEL AT 20245 MOUNT AETNA ROAD Folder Status Status Date Task Name Days in Review: Historical Review Note 20-Aug-26 Historical Review Passed - Info 20-Aug-26 Historical Review Note 28-Jul-26 Historical Review Passed - Info 28-Jul-26 Historical Review 28-Jul-26 LOR 15203 FAIRVIEW ROAD, LOT 49 18 FT IN DIAMETER ABOVE GROUND SWIMMING POOL TO FRONT OF DWELLING, 54 INCHES IN DEPTH, NON-HEATED Folder Status Status Date Days in Review:23 2026-02393 Residential New Construction Permit I310 Review 09-Jun-26 Task Name Days in Review:0 28-Jul-26 20659 NATIONAL PIKE BOONSBORO, MD 21713 SITE PLAN FOR BANQUET/EVENT CENTER Folder Status Status Date SP-26-015 Site Plan II0099 Revisions Required 14-Apr-26 Task Name Approved 27-Jul-26 Days in Review:0 27-Jul-26 11805 PLEASANT VALLEY ROAD SMITHSBURG, MD 21783 REMAINING LANDS. MERGE 2.41 ACRE PARCEL A INTO OTHER LANDS OF HOCH. ASSOCIATED Folder Status Status Date S-25-032 Preliminary-Final Plat IV075 Waiting for Final Paper Copies 14-Oct-25 Historic Review Activity 07/24/2026 thru 08/20/2026 Open Date Date Assigned Location Description Workflow Info Record #Type MIHP# Historic Review Activity 07/24/2026 thru 08/20/2026 Open Date Date Assigned Location Description Workflow Info Updated by Script from EPR. Activity Count:13 In Progress No Comments Received Note 1 1 2 0 0 0 0 0 1 1 0 2 0 0 0 0 0 0 0 0 1 0 0 1 0 0 2 2 1 9 2 Total 2 8 1 13 Zoning Ordinance Amendment Total 0 0 0 Total 0 1 0 1Town of Sharpsburg Residential Building Permit Total 0 1 0 1Town of Funkstown Residential Building Permit Total 0 0 1 1Site Specific Grading Plan Total 1 0 0 1Site Plan Total 0 3 0 3Residential New Construction Permit Total 0 1 0 1Residential Addition-Alteration Permit 2 Preliminary-Final Plat Total 1 0 0 1 Non-Residential Signs Permit Total 0 2 0 Review Activities Summary Application Type Application Number Approved Passed - Info Revisions Required Total MESSAGE BOARD, TO READ "BLAIRS VALLEY Days in Review:1