36 C.F.R. § 800.11

Documentation standards

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(a) Adequacy of documentation. The agency official shall ensure that a determination, finding, or agreement under the procedures in this subpart 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 subpart, 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 subpart, if that documentation meets the standards of this section.

(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. The Federal agency shall provide the Council with 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 30 days of receipt of adequate 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) Finding of no historic properties affected. Documentation shall include:

(1) A description of the undertaking, specifying the Federal involvement, and its area of potential effects, including photographs, maps, 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.

(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;

(2) A description of the steps taken to identify historic properties;

(3) A description of the affected historic properties, including information on the characteristics that qualify them for the National Register;

(4) A description of the undertaking's effects on historic properties;

(5) An explanation of why the criteria of adverse effect were found applicable or inapplicable, including 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.

(f) Memorandum of agreement. 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.

(g) 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).

Notes of Decisions

Cited in 10 cases, 1985–2018 · leading case: Lesser v. City of Cape May, 110 F. Supp. 2d 303 (D.N.J. 2000).

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Lesser v. City of Cape May, 110 F. Supp. 2d 303 (D.N.J. 2000). · cites it 6× “5 (a)(1) (1999); (2) to document properly the no-adverse-effect finding in violation of 36 C.F.R. § 800.11 (e) (1999); and (3) to consider “prudent and feasible project alternatives.”

Neighborhood Ass'n of the Back Bay, Inc. v. Fed. Transit Admin., 463 F.3d 50 (1st Cir. 2006). · cites it 2× “36 C.F.R. § 800.11 (a); see also 36 C.F.R.”

Nat'l Mining Ass'n v. Slater, 167 F. Supp. 2d 265 (D.D.C. 2001). · cites it 3× “36 C.F.R. § 800.11 specifies the standards for this documentation, which must be sufficient "to enable any reviewing parties to understand [the] basis” for the determination.”

Colorado River Indian Tribes v. Marsh, 605 F. Supp. 1425 (C.D. Cal. 1985). · cites it 2× “While a federal agency can choose to adopt counterpart regulations related to its own specific programs and authorities, 36 C.F.R. § 800.11 , to do so, the counterpart must be approved by the chairperson of the Advisory Council, 36 C.”

Diné Citizens Against Ruining Our Env't v. Jewell, 312 F. Supp. 3d 1031 (D.N.M. 2018). · cites it 12× “See 36 C.F.R. § 800.11 . Broadly speaking, "[t]he Agency official shall ensure that a determination, finding, or agreement under the procedures in this subpart is supported by sufficient documentation to enable any reviewing parties to understand its basis.”

Neighborhood Ass'n of the Back Bay v. Fed. Transit Admin., 407 F. Supp. 2d 323 (D. Mass. 2005). · cites it 3× “See 36 C.F.R. § 800.11 (e). 41 . 36 C.F.R. § 800.”

Nw. Bypass Grp. v. U.S. Army Corps of Engineers, 470 F. Supp. 2d 30 (D.N.H. 2007). “” 36 C.F.R. § 800.11 (a). The administrative record demonstrates that the Corps was aware of the tile drainage system, had received assurances from the City regarding both the minimal impact the project would have on the system and replacement and reconnection of the system once…”

Nw. Bypass Grp. v. U.S. Army Corps of Engineers, 552 F. Supp. 2d 97 (D.N.H. 2008). · cites it 3× “¶ 369 (quoting 36 C.F.R. § 800.11 (e)(3)). The Corps responds that the regulation “permits the use of NEPA documents to comply with documentation requirements, but does not require such use.”

Apache Survival Coalition v. United States, 21 F.3d 895 (9th Cir. 1994). “, Plaintiffs Statement of Facts in Opposition to Summary Judgment at 5, and that NHPA imposes “ongoing obligations on the part of] the agency to evaluate ongoihg project[s],” Plaintiffs Response and Opposition to Defendant’s Motion for Summary Judgment at 21 [hereinafter Summary…”

Neighborhood Ass'n of the Back Bay v. Fed. Transit Admin., 393 F. Supp. 2d 66 (D. Mass. 2005). · cites it 2× “If an agency concludes that a project will have “no adverse effect” on an historic property, the agency must notify all consulting parties of the finding and provide them with specified documentation in accordance with 36 C.F.R. § 800.11 (e). The State Historic Preservation…”

— 36 C.F.R. § 800.11(e) — 1 case

Lesser v. City of Cape May, 110 F. Supp. 2d 303 (D.N.J. 2000). “5 (a)(1) (1999); (2) to document properly the no-adverse-effect finding in violation of 36 C.F.R. § 800.11 (e) (1999); and (3) to consider “prudent and feasible project alternatives.”

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