36 C.F.R. § 800.7

Failure to resolve adverse effects

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(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.

(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.

Notes of Decisions

Cited in 7 cases (1 in the last 5 years), 1980–2023 · leading case: Friends of the Atglen-Susquehanna Trail, Inc. v. Surface Transp. Bd. & United States of Am., 252 F.3d 246 (3rd Cir. 2001).

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Friends of the Atglen-Susquehanna Trail, Inc. v. Surface Transp. Bd. & United States of Am., 252 F.3d 246 (3rd Cir. 2001). · cites it 11× “6 (b)(l)(v); see also 36 C.F.R. § 800.7 (c). If, at any point, the ACHP formally joins the consultation on mitigation, section 800.”

Nat'l Indian Youth Council v. Andrus, 501 F. Supp. 649 (D.N.M. 1980). · cites it 4× “See, 36 C.F.R. Part 800.7(a) (1979). The Advisory Council has acknowledged that the procedure for compliance with Section 106 of NHPA which has been outlined *678 in the Memorandum of Agreement satisfies the requirements of Section 106.”

Save Our Heritage, Inc. v. Fed. Aviation Admin., 269 F.3d 49 (1st Cir. 2001). “§ 470h-2(Z), or by termination of the consultation by the agency followed by the issuance of formal comments by the Advisory Council, 36 C.F.R. § 800.7 (2000). 9 . Prior to the amendment, 36 C.”

Valley Cmty. Pres. Comm'n v. Mineta, 231 F. Supp. 2d 23 (D.D.C. 2002). “SHPO, since they were carried out under the terms of the Substitution Agreement Between the Advisory Council and the New Mexico SHPO under 36 CFR Section 800.7, which expired in April 1999.”

City of Ridgeland v. Nat'l Park Serv., 253 F. Supp. 2d 888 (S.D. Miss. 2002). “” 36 C.F.R. § 800.7 . Consistent with the NHPA and the Council’s regulations, following the NPS’s selection in 1978 of an alternative for completion of the parkway, a Memorandum of Agreement (MOA) was executed between the NPS and the Advisory Council which required that the NPS…”

Narragansett Indian Tribe v. Pollack (D.D.C. 2023). “Second, the Tribe alleges that it “suffered procedural injury-in-fact because of the first PA due to the failure of the FHWA to follow regulations under the Section 106 process,” specifically the failure to “provide a proper summary of its reasoning for the termination of the…”

Quechan Indian Tribe of Fort Yuma Indian Reservation v. U.S. Dep't of Interior, 547 F. Supp. 2d 1033 (D. Ariz. 2008). “See 36 C.F.R. § 800.7 (c)(4)(i). The Court finds that BOR did consider such comment in its decision-making process.”

— 36 C.F.R. § 800.7(a) — 1 case

Nat'l Indian Youth Council v. Andrus, 501 F. Supp. 649 (D.N.M. 1980). “See, 36 C.F.R. Part 800.7(a) (1979). The Advisory Council has acknowledged that the procedure for compliance with Section 106 of NHPA which has been outlined *678 in the Memorandum of Agreement satisfies the requirements of Section 106.”

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