---
kind: "range"
citation: "36 C.F.R. §§ 800.4–800.6"
title: "36"
from: "800.4"
to: "800.6"
count: 3
url: "https://uscodex.org/cfr/36/800.4..800.6"
---

# §800.4. Identification 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)](/cfr/36/800.16.md?p=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)](/cfr/36/800.3.md?p=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)](/cfr/36/800.11.md?p=c).
- (b) **Identify historic properties.** Based on the information gathered under [paragraph (a)](#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 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) **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](/cfr/36/800.6.md), a programmatic agreement executed pursuant to [§ 800.14(b)](/cfr/36/800.14.md?p=b), or the documents used by an agency official to comply with the National Environmental Policy Act pursuant to [§ 800.8](/cfr/36/800.8.md). 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)](#b-1) and (c) of this section.
- (c) **Evaluate historic significance—**
  - (1) **Apply National Register criteria.** In consultation with the SHPO/THPO and any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to identified properties and guided by the Secretary's standards and guidelines for evaluation, the agency official shall apply the National Register criteria ([36 CFR part 63](/cfr/36/part63.md)) 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](/cfr/36/106.md) purposes. If the agency official determines the criteria are not met and the SHPO/THPO agrees, the property 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](/cfr/36/part63.md). 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.
- (d) **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)](/cfr/36/800.16.md?p=i), the agency official shall provide documentation of this finding, as set forth in [§ 800.11(d)](/cfr/36/800.11.md?p=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](/cfr/36/106.md) process, does not object within 30 days of receipt of an adequately documented finding, the agency official's responsibilities under [section 106](/cfr/36/106.md) 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)](#d-1-iv-A..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)](#d-1-iv-B) and [(d)(1)(iv)(C)](#d-1-iv-C) of this section.
    - (iv)
      - (A) Upon receipt of the request under [paragraph (d)(1)(ii)](#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](/cfr/36/106.md) are fulfilled.
      - (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](/cfr/36/106.md) 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](/cfr/36/800.5.md).

# §800.5. Assessment of adverse effects.

- (a) **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, the agency official shall apply the criteria of adverse effect to historic properties within the area of potential effects. The agency official shall consider any views concerning such effects which have been provided by consulting parties and the public.
  - (1) **Criteria of adverse effect.** An adverse effect is found when an undertaking may alter, directly or indirectly, any of the characteristics of a historic property that qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the property's location, design, setting, materials, workmanship, feeling, or association. Consideration shall be given to all qualifying characteristics of a 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 reasonably foreseeable effects caused by the undertaking that may occur later in time, be farther removed in distance or be cumulative.
  - (2) **Examples of adverse effects.** Adverse effects on historic properties include, but are not limited to:
    - (i) Physical destruction of or damage to all or part of the property;
    - (ii) Alteration of a 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](/cfr/36/part68.md)) and applicable guidelines;
    - (iii) 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;
    - (vi) 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
    - (vii) 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.
  - (3) **Phased application of criteria.** 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 in applying the criteria of adverse effect consistent with phased identification and evaluation efforts conducted pursuant to [§ 800.4(b)(2)](/cfr/36/800.4.md?p=b-2).
- (b) **Finding of no adverse effect.** 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)](#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](/cfr/36/part68.md)) and applicable guidelines, to avoid adverse effects.
- (c) **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)](/cfr/36/800.11.md?p=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)](#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)](#c-3-i) and [(c)(3)(ii)](#c-3-ii) of this section. The agency official shall include with such request the documentation specified in [§ 800.11(e)](/cfr/36/800.11.md?p=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 (c)(3)(ii)](#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)](#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)](#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](/cfr/36/106.md) 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](/cfr/36/106.md) 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.
- (d) **Results of assessment—**
  - (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)](/cfr/36/800.11.md?p=c). Implementation of the undertaking in accordance with the finding as documented fulfills the agency official's responsibilities under [section 106](/cfr/36/106.md) 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)](#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](/cfr/36/800.6.md).

# §800.6. Resolution of adverse effects.

- (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)](/cfr/36/800.11.md?p=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)](/cfr/36/800.14.md?p=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)](#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)](#b-1) of this section.
  - (2) **Involve consulting parties.** In addition to the consulting parties identified under [§ 800.3(f)](/cfr/36/800.3.md?p=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)](/cfr/36/800.11.md?p=e), subject to the confidentiality provisions of [§ 800.11(c)](/cfr/36/800.11.md?p=c), and such other documentation as may be developed during the consultation to resolve adverse effects.
  - (4) **Involve the public.** The agency official shall make information available to the public, including the documentation specified in [§ 800.11(e)](/cfr/36/800.11.md?p=e), subject to the confidentiality provisions of [§ 800.11(c)](/cfr/36/800.11.md?p=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](/cfr/36/106.md) process to determine the appropriate level of public involvement when resolving adverse effects so that the standards of [§ 800.2(d)](/cfr/36/800.2.md?p=d) are met.
  - (5) **Restrictions on disclosure of information.** [Section 304](/cfr/36/304.md) of the act and other authorities may limit the disclosure of information under paragraphs [(a)(3)](#a-3) and [(a)(4)](#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)](/cfr/36/800.11.md?p=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)](/cfr/36/800.14.md?p=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)](#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)](/cfr/36/800.11.md?p=f), to the Council prior to approving the undertaking in order to meet the requirements of [section 106](/cfr/36/106.md) 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)](/cfr/36/800.11.md?p=g). If the Council decides to join the consultation, the agency official shall proceed in accordance with [paragraph (b)(2)](#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)](/cfr/36/800.7.md?p=c).
  - (2) **Resolution with Council participation.** If the Council decides to participate in the 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)](/cfr/36/800.2.md?p=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](/cfr/36/106.md) 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)](#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)](#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)](/cfr/36/800.7.md?p=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)](#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 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)](#c-1) of this section or request the comments of the Council under [§ 800.7(a)](/cfr/36/800.7.md?p=a).
  - (9) **Copies.** The agency official shall provide each consulting party with a copy of any memorandum of agreement executed pursuant to this subpart.