[Title 36 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2004 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
36
Part 300 to End
Revised as of July 1, 2004
Parks, Forests, and Public Property
________________________
Containing a codification of documents of general
applicability and future effect
As of July 1, 2004
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 36:
Chapter III--Corps of Engineers, Department of the
Army 3
Chapter IV--American Battle Monuments Commission 35
Chapter V--Smithsonian Institution 51
Chapter VI [Reserved]
Chapter VII--Library of Congress 59
Chapter VIII--Advisory Council on Historic
Preservation 79
Chapter IX--Pennsylvania Avenue Development
Corporation 129
Chapter X--Presidio Trust 195
Chapter XI--Architectural and Transportation
Barriers Compliance Board 251
Chapter XII--National Archives and Records
Administration 519
Chapter XV--Oklahoma City National Memorial Trust 873
Chapter XVI--Morris K. Udall Scholarship and
Excellence in National Environmental Policy
Foundation 877
Finding Aids:
Material Approved for Incorporation by Reference........ 895
Table of CFR Titles and Chapters........................ 899
[[Page iv]]
Alphabetical List of Agencies Appearing in the CFR...... 917
List of CFR Sections Affected........................... 927
[[Page v]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 36 CFR 312.1 refers
to title 36, part 312,
section 1.
----------------------------
[[Page vi]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
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parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
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Federal agencies to display an OMB control number with their information
collection request.
[[Page vii]]
Many agencies have begun publishing numerous OMB control numbers as
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Provisions that become obsolete before the revision date stated on
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This material, like any other properly issued regulation, has the force
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What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
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(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
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(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
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also included in this volume.
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the daily Federal Register.
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the revision dates of the 50 CFR titles.
[[Page viii]]
REPUBLICATION OF MATERIAL
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Raymond A. Mosley,
Director,
Office of the Federal Register.
July 1, 2004.
[[Page ix]]
THIS TITLE
Title 36--Parks, Forests, and Public Property is composed of three
volumes. The parts in these volumes are arranged in the following order:
parts 1 to 199, parts 200 to 299, and part 300 to End. The contents of
these volumes represent all current regulations codified under this
title of the CFR as of July 1, 2004.
For this volume, Bonnie Fritts was Chief Editor. The Code of Federal
Regulations publication program is under the direction of Frances D.
McDonald, assisted by Alomha S. Morris.
[[Page x]]
[[Page 1]]
TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY
(This book contains part 300 to End)
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Part
chapter iii--Corps of Engineers, Department of the Army..... 312
chapter iv--American Battle Monuments Commission............ 400
chapter v--Smithsonian Institution.......................... 504
chapter vi [Reserved]
chapter vii--Library of Congress............................ 701
chapter viii--Advisory Council on Historic Preservation..... 800
chapter ix--Pennsylvania Avenue Development Corporation..... 901
chapter x--Presidio Trust................................... 1001
chapter xi--Architectural and Transportation Barriers
Compliance Board.......................................... 1120
chapter xii--National Archives and Records Administration... 1200
chapter xv--Oklahoma City National Memorial Trust........... 1501
chapter xvi--Morris K. Udall Scholarship and Excellence in
National Environmental Policy Foundation.................. 1600
[[Page 3]]
CHAPTER III--CORPS OF ENGINEERS,
DEPARTMENT OF THE ARMY
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Part Page
312 Prohibition of discriminatory practices in
water resource development projects..... 5
327 Rules and regulations governing public use
of water resource development projects
administered by the Chief of Engineers.. 5
328 Regulation of seaplane operations at civil
works water resource development
projects administered by the Chief of
Engineers............................... 24
330 Regulation of law enforcement services
contracts at civil works water resource
projects administered by the Chief of
Engineers............................... 27
331 Regulations governing the protection, use
and management of the falls of the Ohio
National Wildlife Conservation Area,
Kentucky and Indiana.................... 30
332-399 [Reserved]
[[Page 5]]
PART 312_PROHIBITION OF DISCRIMINATORY PRACTICES IN WATER RESOURCE
DEVELOPMENT PROJECTS--Table of Contents
Sec.
312.1 Areas covered.
312.2 Discriminatory practices prohibited.
Authority: Sec. 4, 58 Stat. 889, as amended; 16 U.S.C. 460d.
Sec. 312.1 Areas covered.
The regulation covered in this part shall be applicable to all water
resource project lands under the supervision of the Secretary of the
Army not covered in parts 311 and 326, of this title.
[29 FR 9710, July 18, 1964]
Sec. 312.2 Discriminatory practices prohibited.
All project land and water areas which are open to the public shall
be available for use and enjoyment by the public without regard to race,
creed, color or national origin. Each lessee or licensee of a project
area under lease or license providing for a public or quasi-public use,
including group camp activities, and each concessionaire of a lessee or
licensee providing a service to the public including facilities and
accommodations, shall not discriminate against any person or persons
because of race, creed, color or national origin in the conduct of its
operations under the lease, license or concession agreement.
[29 FR 9710, July 18, 1964]
PART 327_RULES AND REGULATIONS GOVERNING PUBLIC USE OF WATER RESOURCE
DEVELOPMENT PROJECTS ADMINISTERED BY THE CHIEF OF ENGINEERS--Table of Contents
Sec.
327.0 Applicability.
327.1 Policy.
327.2 Vehicles.
327.3 Vessels.
327.4 Aircraft.
327.5 Swimming.
327.6 Picnicking.
327.7 Camping.
327.8 Hunting, fishing, and trapping.
327.9 Sanitation.
327.10 Fires.
327.11 Control of animals.
327.12 Restrictions.
327.13 Explosives, firearms, other weapons and fireworks.
327.14 Public property.
327.15 Abandonment and impoundment of personal property.
327.16 Lost and found articles.
327.17 Advertisement.
327.18 Commercial activities.
327.19 Permits.
327.20 Unauthorized structures.
327.21 Special events.
327.22 Unauthorized occupation.
327.23 Recreation use fees.
327.24 Interference with Government employees.
327.25 Violations of rules and regulations.
327.26 State and local laws.
327.27-327.29 [Reserved]
327.30 Shoreline Management on Civil Works Projects.
327.31 Shoreline management fee schedule.
Authority: 16 U.S.C. 460d; 16 U.S.C. 4601-6a; Sec. 210, Pub. L. 90-
483, 82 Stat. 746.; 33 U.S.C. 1, 28 Stat. 362.
Source: 50 FR 35556, Sept. 3, 1985, unless otherwise noted.
Sec. 327.0 Applicability.
The regulations covered in this part 327 shall be applicable to
water resources development projects, completed or under construction,
administered by the Chief of Engineers, and to those portions of jointly
administered water resources development projects which are under the
administrative jurisdiction of the Chief of Engineers. All other
Federal, state and local laws and regulations remain in full force and
effect where applicable to those water resources development projects.
[65 FR 6898, Feb. 11, 2000]
Sec. 327.1 Policy.
(a) It is the policy of the Secretary of the Army, acting through
the Chief of Engineers, to manage the natural, cultural and developed
resources of each project in the public interest, providing the public
with safe and healthful recreational opportunities while protecting and
enhancing these resources.
(b) Unless otherwise indicated in this part, the term ``District
Commander'' shall include the authorized representatives of the District
Commander.
(c) The term ``project'' or ``water resources development project''
refers to
[[Page 6]]
the water areas of any water resources development project administered
by the Chief of Engineers, without regard to ownership of underlying
land, to all lands owned in fee by the Federal Government and to all
facilities therein or thereon of any such water resources development
project.
(d) All water resources development projects open for public use
shall be available to the public without regard to sex, race, color,
creed, age, nationality or place of origin. No lessee, licensee, or
concessionaire providing a service to the public shall discriminate
against any person because of sex, race, creed, color, age, nationality
or place of origin in the conduct of the operations under the lease,
license or concession contract.
(e) In addition to the regulations in this part 327, all applicable
Federal, state and local laws and regulations remain in full force and
effect on project lands or waters which are outgranted by the District
Commander by lease, license or other written agreement.
(f) The regulations in this part 327 shall be deemed to apply to
those lands and waters which are subject to treaties and Federal laws
and regulations concerning the rights of Indian Nations and which lands
and waters are incorporated, in whole or in part, within water resources
development projects administered by the Chief of Engineers, to the
extent that the regulations in this part 327 are not inconsistent with
such treaties and Federal laws and regulations.
(g) Any violation of any section of this part 327 shall constitute a
separate violation for each calendar day in which it occurs.
(h) For the purposes of this part 327, the operator of any vehicle,
vessel or aircraft as described in this part, shall be presumed to be
responsible for its use on project property. In the event where an
operator cannot be determined, the owner of the vehicle, vessel, or
aircraft, whether attended or unattended, will be presumed responsible.
Unless proven otherwise, such presumption will be sufficient to issue a
citation for the violation of regulations applicable to the use of such
vehicle, vessel or aircraft as provided for in Sec. 327.25.
(i) For the purposes of this part 327, the registered user of a
campsite, picnic area, or other facility shall be presumed to be
responsible for its use. Unless proven otherwise, such presumption will
be sufficient to issue a citation for the violation of regulations
applicable to the use of such facilities as provided for in Sec.
327.25.
[65 FR 6898, Feb. 11, 2000]
Sec. 327.2 Vehicles.
(a) This section pertains to all vehicles, including, but not
limited to, automobiles, trucks, motorcycles, mini-bikes, snowmobiles,
dune buggies, all-terrain vehicles, and trailers, campers, bicycles, or
any other such equipment.
(b) Vehicles shall not be parked in violation of posted restrictions
and regulations, or in such a manner as to obstruct or impede normal or
emergency traffic movement or the parking of other vehicles, create a
safety hazard, or endanger any person, property or environmental
feature. Vehicles so parked are subject to removal and impoundment at
the owner's expense.
(c) The operation and/or parking of a vehicle off authorized
roadways is prohibited except at locations and times designated by the
District Commander. Taking any vehicle through, around or beyond a
restrictive sign, recognizable barricade, fence, or traffic control
barrier is prohibited.
(d) Vehicles shall be operated in accordance with posted
restrictions and regulations.
(e) No person shall operate any vehicle in a careless, negligent or
reckless manner so as to endanger any person, property or environmental
feature.
(f) At designated recreation areas, vehicles shall be used only to
enter or leave the area or individual sites or facilities unless
otherwise posted.
(g) Except as authorized by the District Commander, no person shall
operate any motorized vehicle without a proper and effective exhaust
muffler as defined by state and local laws, or with an exhaust muffler
cutout open, or in any other manner which renders the exhaust muffler
ineffective in muffling the sound of engine exhaust.
(h) Vehicles shall be operated in accordance with applicable
Federal, state
[[Page 7]]
and local laws, which shall be regulated by authorized enforcement
officials as prescribed in Sec. 327.26.
[65 FR 6899, Feb. 11, 2000]
Sec. 327.3 Vessels.
(a) This section pertains to all vessels or watercraft, including,
but not limited to, powerboats, cruisers, houseboats, sailboats,
rowboats, canoes, kayaks, personal watercraft, and any other such
equipment capable of navigation on water or ice, whether in motion or at
rest.
(b) The placement and/or operation of any vessel or watercraft for a
fee or profit upon project waters or lands is prohibited except as
authorized by permit, lease, license, or concession contract with the
Department of the Army. This paragraph shall not apply to the operation
of commercial tows or passenger carrying vessels not based at a Corps
project which utilize project waters as a link in continuous transit
over navigable waters of the United States.
(c) Vessels or other watercraft may be operated on the project
waters, except in prohibited or restricted areas, in accordance with
posted regulations and restrictions, including buoys. All vessels or
watercraft so required by applicable Federal, state and local laws shall
display an appropriate registration on board whenever the vessel is on
project waters.
(d) No person shall operate any vessel or other watercraft in a
careless, negligent, or reckless manner so as to endanger any person,
property, or environmental feature.
(e) All vessels, when on project waters, shall have safety
equipment, including personal flotation devices, on board in compliance
with U.S. Coast Guard boating safety requirements and in compliance with
boating safety laws issued and enforced by the state in which the vessel
is located. Owners or operators of vessels not in compliance with this
section may be requested to remove the vessel immediately from project
waters until such time as items of non-compliance are corrected.
(f) Unless otherwise permitted by Federal, state or local law,
vessels or other watercraft, while moored in commercial facilities,
community or corporate docks, or at any fixed or permanent mooring
point, may only be used for overnight occupancy when such use is
incidental to recreational boating. Vessels or other watercraft are not
to be used as a place of habitation or residence.
(g) Water skis, parasails, ski-kites and similar devices are
permitted in nonrestricted areas except that they may not be used in a
careless, negligent, or reckless manner so as to endanger any person,
property or environmental feature.
(h) Vessels shall not be attached or anchored to structures such as
locks, dams, buoys or other structures unless authorized by the District
Commander. All vessels when not in actual use shall be removed from
project lands and waters unless securely moored or stored at designated
areas approved by the District Commander. The placing of floating or
stationary mooring facilities on, adjacent to, or interfering with a
buoy, channel marker or other navigational aid is prohibited.
(i) The use at a project of any vessel not constructed or maintained
in compliance with the standards and requirements established by the
Federal Safe Boating Act of 1971 (Pub. L. 92-75, 85 Stat. 213), or
promulgated pursuant to such act, is prohibited.
(j) Except as authorized by the District Commander, no person shall
operate any vessel or watercraft without a proper and effective exhaust
muffler as defined by state and local laws, or with an exhaust muffler
cutout open, or in any other manner which renders the exhaust muffler
ineffective in muffling the sound of engine exhaust.
(k) All vessels or other watercraft shall be operated in accordance
with applicable Federal, state and local laws, which shall be regulated
by authorized enforcement officials as prescribed in Sec. 327.26.
[65 FR 6899, Feb. 11, 2000]
Sec. 327.4 Aircraft.
(a) This section pertains to all aircraft including, but not limited
to, airplanes, seaplanes, helicopters, ultra-light aircraft, motorized
hang gliders, hot air balloons, any non-powered flight devices or any
other such equipment.
[[Page 8]]
(b) The operation of aircraft on project lands at locations other
than those designated by the District Commander is prohibited. This
provision shall not be applicable to aircraft engaged on official
business of Federal, state or local governments or law enforcement
agencies, aircraft used in emergency rescue in accordance with the
directions of the District Commander or aircraft forced to land due to
circumstances beyond the control of the operator.
(c) No person shall operate any aircraft while on or above project
waters or project lands in a careless, negligent or reckless manner so
as to endanger any person, property or environmental feature.
(d) Nothing in this section bestows authority to deviate from rules
and regulations or prescribed standards of the appropriate State
Aeronautical Agency, or the Federal Aviation Administration, including,
but not limited to, regulations and standards concerning pilot
certifications or ratings, and airspace requirements.
(e) Except in extreme emergencies threatening human life or serious
property loss, the air delivery or retrieval of any person, material or
equipment by parachute, balloon, helicopter or other means onto or from
project lands or waters without written permission of the District
Commander is prohibited.
(f) In addition to the provisions in paragraphs (a) through (e) of
this section, seaplanes are subject to the following restrictions:
(1) Such use is limited to aircraft utilized for water landings and
takeoff, in this part called seaplanes, at the risk of owner, operator
and passenger(s).
(2) Seaplane operations contrary to the prohibitions or restrictions
established by the District Commander (pursuant to part 328 of this
title) are prohibited. The responsibility to ascertain whether seaplane
operations are prohibited or restricted is incumbent upon the person(s)
contemplating the use of, or using, such waters.
(3) All operations of seaplanes while upon project waters shall be
in accordance with U.S. Coast Guard navigation rules for powerboats or
vessels and Sec. 327.3.
(4) Seaplanes on project waters and lands in excess of 24 hours
shall be securely moored at mooring facilities and at locations
permitted by the District Commander. Seaplanes may be temporarily moored
on project waters and lands, except in areas prohibited by the District
Commander, for periods less than 24 hours providing:
(i) The mooring is safe, secure, and accomplished so as not to
damage the rights of the Government or members of the public, and
(ii) The operator remains in the vicinity of the seaplane and
reasonably available to relocate the seaplane if necessary.
(5) Commercial operation of seaplanes from project waters is
prohibited without written approval of the District Commander following
consultation with and necessary clearance from the Federal Aviation
Administration (FAA) and other appropriate public authorities and
affected interests.
(6) Seaplanes may not be operated at Corps projects between sunset
and sunrise unless approved by the District Commander.
[65 FR 6899, Feb. 11, 2000]
Sec. 327.5 Swimming.
(a) Swimming, wading, snorkeling or scuba diving at one's own risk
is permitted, except at launching sites, designated mooring points and
public docks, or other areas so designated by the District Commander.
(b) An international diver down, or inland diving flag must be
displayed during underwater activities.
(c) Diving, jumping or swinging from trees, bridges or other
structures which cross or are adjacent to project waters is prohibited.
[65 FR 6900, Feb. 11, 2000]
Sec. 327.6 Picnicking.
Picnicking and related day-use activities are permitted, except in
those areas where prohibited by the District Commander.
[65 FR 6900, Feb. 11, 2000]
Sec. 327.7 Camping.
(a) Camping is permitted only at sites and/or areas designated by
the District Commander.
[[Page 9]]
(b) Camping at one or more campsites at any one water resource
project for a period longer than 14 days during any 30-consecutive-day
period is prohibited without the written permission of the District
Commander.
(c) The unauthorized placement of camping equipment or other items
on a campsite and/or personal appearance at a campsite without daily
occupancy for the purpose of reserving that campsite for future
occupancy is prohibited.
(d) The digging or leveling of any ground or the construction of any
structure without written permission of the District Commander is
prohibited.
(e) Occupying or placement of any camping equipment at a campsite
which is posted or otherwise marked or indicated as ``reserved'' without
an authorized reservation for that site is prohibited.
[65 FR 6900, Feb. 11, 2000]
Sec. 327.8 Hunting, fishing, and trapping.
(a) Hunting is permitted except in areas and during periods where
prohibited by the District Commander.
(b) Trapping is permitted except in areas and during periods where
prohibited by the District Commander.
(c) Fishing is permitted except in swimming areas, on boat ramps or
other areas designated by the District Commander.
(d) Additional restrictions pertaining to these activities may be
established by the District Commander.
(e) All applicable Federal, State and local laws regulating these
activities apply on project lands and waters, and shall be regulated by
authorized enforcement officials as prescribed in Sec. 327.26.
[65 FR 6900, Feb. 11, 2000]
Sec. 327.9 Sanitation.
(a) Garbage, trash, rubbish, litter, gray water, or any other waste
material or waste liquid generated on the project and incidental to
authorized recreational activities shall be either removed from the
project or deposited in receptacles provided for that purpose. The
improper disposal of such wastes, human and animal waste included, on
the project is prohibited.
(b) It is a violation to bring onto a project any household or
commercial garbage, trash, rubbish, debris, dead animals or litter of
any kind for disposal or dumping without the written permission of the
District Commander. For the purposes of this section, the owner of any
garbage, trash, rubbish, debris, dead animals or litter of any kind
shall be presumed to be responsible for proper disposal. Such
presumption will be sufficient to issue a citation for violation.
(c) The spilling, pumping, discharge or disposal of contaminants,
pollutants or other wastes, including, but not limited to, human or
animal waste, petroleum, industrial and commercial products and by-
products, on project lands or into project waters is prohibited.
(d) Campers, picnickers, and all other persons using a water
resources development project shall keep their sites free of trash and
litter during the period of occupancy and shall remove all personal
equipment and clean their sites upon departure.
(e) The discharge or placing of sewage, galley waste, garbage,
refuse, or pollutants into the project waters from any vessel or
watercraft is prohibited.
[65 FR 6900, Feb. 11, 2000]
Sec. 327.10 Fires.
(a) Gasoline and other fuels, except that which is contained in
storage tanks of vehicles, vessels, camping equipment, or hand portable
containers designed for such purpose, shall not be carried onto or
stored on the project without written permission of the District
Commander.
(b) Fires shall be confined to those areas designated by the
District Commander, and shall be contained in fireplaces, grills, or
other facilities designated for this purpose. Fires shall not be left
unattended and must be completely extinguished prior to departure. The
burning of materials that produce toxic fumes, including, but not
limited to, tires, plastic and other floatation materials or treated
wood products is prohibited. The District Commander may prohibit open
burning of any type for environmental considerations.
[[Page 10]]
(c) Improper disposal of lighted smoking materials, matches or other
burning material is prohibited.
[65 FR 6900, Feb. 11, 2000]
Sec. 327.11 Control of animals.
(a) No person shall bring or allow dogs, cats, or other pets into
developed recreation areas or adjacent waters unless penned, caged, on a
leash under six feet in length, or otherwise physically restrained. No
person shall allow animals to impede or restrict otherwise full and free
use of project lands and waters by the public. No person shall allow
animals to bark or emit other noise which unreasonably disturbs other
people. Animals and pets, except properly trained animals assisting
those with disabilities (such as seeing-eye dogs), are prohibited in
sanitary facilities, playgrounds, swimming beaches and any other areas
so designated by the District Commander. Abandonment of any animal on
project lands or waters is prohibited. Unclaimed or unattended animals
are subject to immediate impoundment and removal in accordance with
state and local laws.
(b) Persons bringing or allowing pets in designated public use areas
shall be responsible for proper removal and disposal of any waste
produced by these animals.
(c) No person shall bring or allow horses, cattle, or other
livestock in camping, picnicking, swimming or other recreation areas or
on trails except in areas designated by the District Commander.
(d) Ranging, grazing, watering or allowing livestock on project
lands and waters is prohibited except when authorized by lease, license
or other written agreement with the District Commander.
(e) Unauthorized livestock are subject to impoundment and removal in
accordance with Federal, state and local laws.
(f) Any animal impounded under the provisions of this section may be
confined at a location designated by the District Commander, who may
assess a reasonable impoundment fee. This fee shall be paid before the
impounded animal is returned to its owner(s).
(g) Wild or exotic pets and animals (including but not limited to
cougars, lions, bears, bobcats, wolves, and snakes), or any pets or
animals displaying vicious or aggressive behavior or otherwise posing a
threat to public safety or deemed a public nuisance, are prohibited from
project lands and waters unless authorized by the District Commander,
and are subject to removal in accordance with Federal, state and local
laws.
[65 FR 6901, Feb. 11, 2000]
Sec. 327.12 Restrictions.
(a) The District Commander may establish and post a schedule of
visiting hours and/or restrictions on the public use of a project or
portion of a project. The District Commander may close or restrict the
use of a project or portion of a project when necessitated by reason of
public health, public safety, maintenance, resource protection or other
reasons in the public interest. Entering or using a project in a manner
which is contrary to the schedule of visiting hours, closures or
restrictions is prohibited.
(b) Quiet shall be maintained in all public use areas between the
hours of 10 p.m. and 6 a.m., or those hours designated by the District
Commander. Excessive noise during such times which unreasonably disturbs
persons is prohibited.
(c) Any act or conduct by any person which interferes with, impedes
or disrupts the use of the project or impairs the safety of any person
is prohibited. Individuals who are boisterous, rowdy, disorderly, or
otherwise disturb the peace on project lands or waters may be requested
to leave the project.
(d) The operation or use of any sound producing or motorized
equipment, including but not limited to generators, vessels or vehicles,
in such a manner as to unreasonably annoy or endanger persons at any
time or exceed state or local laws governing noise levels from motorized
equipment is prohibited.
(e) The possession and/or consumption of alcoholic beverages on any
portion of the project land or waters, or the entire project, may be
prohibited when designated and posted by the District Commander.
(f) Unless authorized by the District Commander, smoking is
prohibited in
[[Page 11]]
Visitor Centers, enclosed park buildings and in areas posted to restrict
smoking.
[65 FR 6901, Feb. 11, 2000]
Sec. 327.13 Explosives, firearms, other weapons and fireworks.
(a) The possession of loaded firearms, ammunition, loaded projectile
firing devices, bows and arrows, crossbows, or other weapons is
prohibited unless:
(1) In the possession of a Federal, state or local law enforcement
officer;
(2) Being used for hunting or fishing as permitted under Sec.
327.8, with devices being unloaded when transported to, from or between
hunting and fishing sites;
(3) Being used at authorized shooting ranges; or
(4) Written permission has been received from the District
Commander.
(b) Possession of explosives or explosive devices of any kind,
including fireworks or other pyrotechnics, is prohibited unless written
permission has been received from the District Commander.
[65 FR 6901, Feb. 11, 2000]
Sec. 327.14 Public property.
(a) Destruction, injury, defacement, removal or any alteration of
public property including, but not limited to, developed facilities,
natural formations, mineral deposits, historical and archaeological
features, paleontological resources, boundary monumentation or markers
and vegetative growth, is prohibited except when in accordance with
written permission of the District Commander.
(b) Cutting or gathering of trees or parts of trees and/or the
removal of wood from project lands is prohibited without written
permission of the District Commander.
(c) Gathering of dead wood on the ground for use in designated
recreation areas as firewood is permitted, unless prohibited and posted
by the District Commander.
(d) The use of metal detectors is permitted on designated beaches or
other previously disturbed areas unless prohibited by the District
Commander for reasons of protection of archaeological, historical or
paleontological resources. Specific information regarding metal detector
policy and designated use areas is available at the Manager's Office.
Items found must be handled in accordance with Sec. Sec. 327.15 and
327.16 except for non-identifiable items such as coins of value less
than $25.
[65 FR 6901, Feb. 11, 2000]
Sec. 327.15 Abandonment and impoundment of personal property.
(a) Personal property of any kind shall not be abandoned, stored or
left unattended upon project lands or waters. After a period of 24
hours, or at any time after a posted closure hour in a public use area
or for the purpose of providing public safety or resource protection,
unattended personal property shall be presumed to be abandoned and may
be impounded and stored at a storage point designated by the District
Commander, who may assess a reasonable impoundment fee. Such fee shall
be paid before the impounded property is returned to its owner.
(b) Personal property placed on Federal lands or waters adjacent to
a private residence, facility and/or developments of any private nature
for more than 24 hours without permission of the District Commander
shall be presumed to have been abandoned and, unless proven otherwise,
such presumption will be sufficient to impound the property and/or issue
a citation as provided for in Sec. 327.25.
(c) The District Commander shall, by public or private sale or
otherwise, dispose of all lost, abandoned or unclaimed personal property
that comes into Government custody or control. However, property may not
be disposed of until diligent effort has been made to find the owner,
heirs, next of kin or legal representative(s). If the owner, heirs, next
of kin or legal representative(s) are determined but not found, the
property may not be disposed of until the expiration of 120 days after
the date when notice, giving the time and place of the intended sale or
other disposition, has been sent by certified or registered mail to that
person at the last known address. When diligent efforts to determine the
owner, heirs, next of kin or legal representative(s) are unsuccessful,
the property may be disposed of without delay except that if it has a
fair market value of $100 or
[[Page 12]]
more the property may not be disposed of until 90 days after the date it
is received at the storage point designated by the District Commander.
The net proceeds from the sale of property shall be conveyed into the
Treasury of the United States as miscellaneous receipts.
[65 FR 6901, Feb. 11, 2000]
Sec. 327.16 Lost and found articles.
All articles found shall be deposited by the finder at the Manager's
office or with a ranger. All such articles shall be disposed of in
accordance with the procedures set forth in Sec. 327.15.
[65 FR 6902, Feb. 11, 2000]
Sec. 327.17 Advertisment.
(a) Advertising and the distribution of printed matter is allowed
within project land and waters provided that a permit to do so has been
issued by the District Commander and provided that this activity is not
solely commercial advertising.
(b) An application for such a permit shall set forth the name of the
applicant, the name of the organization (if any), the date, time,
duration, and location of the proposed advertising or the distribution
of printed matter, the number of participants, and any other information
required by the permit application form. Permit conditions and
procedures are available from the District Commander.
(c) Vessels and vehicles with semipermanent or permanent painted or
installed signs are exempt as long as they are used for authorized
recreational activities and comply with all other rules and regulations
pertaining to vessels and vehicles.
(d) The District Commander shall, without unreasonable delay, issue
a permit on proper application unless:
(1) A prior application for a permit for the same time and location
has been made that has been or will be granted and the activities
authorized by that permit do not reasonably allow multiple occupancy of
the particular area; or
(2) It reasonably appears that the advertising or the distribution
of printed matter will present a clear and present danger to the public
health and safety; or
(3) The number of persons engaged in the advertising or the
distribution of printed matter exceeds the number that can reasonably be
accommodated in the particular location applied for, considering such
things as damage to project resources or facilities, impairment of a
protected area's atmosphere of peace and tranquility, interference with
program activities, or impairment of public use facilities; or
(4) The location applied for has not been designated as available
for the advertising or the distribution of printed matter; or
(5) The activity would constitute a violation of an applicable law
or regulation.
(e) If a permit is denied, the applicant shall be so informed in
writing, with the reason(s) for the denial set forth.
(f) The District Commander shall designate on a map, which shall be
available for inspection in the applicable project office, the locations
within the project that are available for the advertising or the
distribution of printed matter. Locations may be designated as not
available only if the advertising or the distribution of printed matter
would:
(1) Cause injury or damage to project resources; or
(2) Unreasonably impair the atmosphere of the peace and tranquility
maintained in natural, historic, or commemorative zones; or
(3) Unreasonably interfere with interpretive, visitor service, or
other program activities, or with the administrative activities of the
Corps of Engineers; or
(4) Substantially impair the operation of public use facilities or
services of Corps of Engineers concessioners or contractors.
(5) Present a clear and present danger to the public health and
safety.
(g) The permit may contain such conditions as are reasonably
consistent with protection and use of the project area for the purposes
for which it is established.
(h) No permit shall be issued for a period in excess of 14
consecutive days, provided that permits may be extended
[[Page 13]]
for like periods, upon a new application, unless another applicant has
requested use of the same location and multiple occupancy of that
location is not reasonably possible.
(i) It is prohibited for persons engaged in the activity under this
section to obstruct or impede pedestrians or vehicles, harass project
visitors with physical contact or persistent demands, misrepresent the
purposes or affiliations of those engaged in the advertising or the
distribution of printed matter, or misrepresent whether the printed
matter is available without cost or donation.
(j) A permit may be revoked under any of those conditions, as listed
in paragraph (d) of this section, that constitute grounds for denial of
a permit, or for violation of the terms and conditions of the permit.
Such a revocation shall be made in writing, with the reason(s) for
revocation clearly set forth, except under emergency circumstances, when
an immediate verbal revocation or suspension may be made, to be followed
by written confirmation within 72 hours.
(k) Violation of the terms and conditions of a permit issued in
accordance with this section may result in the suspension or revocation
of the permit.
[65 FR 26137, May 5, 2000]
Sec. 327.18 Commercial activities.
(a) The engaging in or solicitation of business on project land or
waters without the express written permission of the District Commander
is prohibited.
(b) It shall be a violation of this part to refuse to or fail to
comply with any terms, clauses or conditions of any lease, license or
agreements issued by the District Commander.
[65 FR 6902, Feb. 11, 2000]
Sec. 327.19 Permits.
(a) It shall be a violation of this part to refuse to or fail to
comply with the fee requirements or other terms or conditions of any
permit issued under the provisions of this part 327.
(b) Permits for floating structures (issued under the authority of
Sec. 327.30) of any kind on/in waters of water resources development
projects, whether or not such waters are deemed navigable waters of the
United States but where such waters are under the management of the
Corps of Engineers, shall be issued at the discretion of the District
Commander under the authority of this section. District Commanders will
delineate those portions of the navigable waters of the United States
where this provision is applicable and post notices of this designation
in the vicinity of the appropriate Manager's office.
(c) Permits for non-floating structures (issued under the authority
of Sec. 327.30) of any kind constructed, placed in or affecting waters
of water resources development projects where such waters are deemed
navigable waters of the U.S. shall be issued under the provisions of
section 10 of the Rivers and Harbors Act approved March 3, 1899 (33
U.S.C. 403). If a discharge of dredged or fill material in these waters
is involved, a permit is required under section 404 of the Clean Water
Act (33 U.S.C. 1344). (See 33 CFR parts 320 through 330.)
(d) Permits for non-floating structures (issued under the authority
of Sec. 327.30) of any kind in waters of water resources development
projects, where such waters are under the management of the Corps of
Engineers and where such waters are not deemed navigable waters of the
United States, shall be issued as set forth in paragraph (b) of this
section. If a discharge of dredged or fill material into any water of
the United States is involved, a permit is required under section 404 of
the Clean Water Act (33 U.S.C. 1344) (See 33 CFR parts 320 through 330).
Water quality certification may be required pursuant to Section 401 of
the Clean Water Act (33 U.S.C. 1341).
(e) Shoreline Use Permits to authorize private shoreline use
facilities, activities or development (issued under the authority of
Sec. 327.30) may be issued in accordance with the project Shoreline
Management Plan. Failure to comply with the permit conditions issued
under Sec. 327.30 is prohibited.
[65 FR 6902, Feb. 11, 2000]
Sec. 327.20 Unauthorized structures.
The construction, placement, or existence of any structure
(including, but
[[Page 14]]
not limited to, roads, trails, signs, non-portable hunting stands or
blinds, buoys, docks, or landscape features) of any kind under, upon, in
or over the project lands, or waters is prohibited unless a permit,
lease, license or other appropriate written authorization has been
issued by the District Commander. The design, construction, placement,
existence or use of structures in violation of the terms of the permit,
lease, license, or other written authorization is prohibited. The
government shall not be liable for the loss of, or damage to, any
private structures, whether authorized or not, placed on project lands
or waters. Unauthorized structures are subject to summary removal or
impoundment by the District Commander. Portable hunting stands, climbing
devices, steps, or blinds, that are not nailed or screwed into trees and
are removed at the end of a day's hunt may be used.
[65 FR 6902, Feb. 11, 2000]
Sec. 327.21 Special events.
(a) Special events including, but not limited to, water carnivals,
boat regattas, fishing tournaments, music festivals, dramatic
presentations or other special recreation programs are prohibited unless
written permission has been granted by the District Commander. Where
appropriate, District Commanders can provide the state a blanket letter
of permission to permit fishing tournaments while coordinating the
scheduling and details of tournaments with individual projects. An
appropriate fee may be charged under the authority of Sec. 327.23.
(b) The public shall not be charged any fee by the sponsor of such
event unless the District Commander has approved in writing (and the
sponsor has properly posted) the proposed schedule of fees. The District
Commander shall have authority to revoke permission, require removal of
any equipment, and require restoration of an area to pre-event
condition, upon failure of the sponsor to comply with terms and
conditions of the permit/permission or the regulations in this part 327.
[65 FR 6902, Feb. 11, 2000]
Sec. 327.22 Unauthorized occupation.
(a) Occupying any lands, buildings, vessels or other facilities
within water resource development projects for the purpose of
maintaining the same as a full-or part-time residence without the
written permission of the District Commander is prohibited. The
provisions of this section shall not apply to the occupation of lands
for the purpose of camping, in accordance with the provisions of Sec.
327.7.
(b) Use of project lands or waters for agricultural purposes is
prohibited except when in compliance with terms and conditions
authorized by lease, license or other written agreement issued by the
District Commander.
[65 FR 6903, Feb. 11, 2000]
Sec. 327.23 Recreation use fees.
(a) In accordance with the Land and Water Conservation Fund Act of
1965 (16 U.S.C. 460l) and the Omnibus Budget Reconciliation Act of 1993,
Pub. L. 103-66, the Corps of Engineers collects day use fees, special
recreation use fees and/or special permit fees for the use of
specialized sites, facilities, equipment or services related to outdoor
recreation furnished at Federal expense.
(b) Where such fees are charged, the District Commander shall insure
that clear notice of fee requirements is prominently posted at each
area, and at appropriate locations therein and that the notice be
included in publications distributed at such areas. Failure to pay
authorized recreation use fees as established pursuant to Pub. L. 88-
578, 78 Stat. 897, as amended (16 U.S.C. 460l-6a), is prohibited and is
punishable by a fine of not more than $100.
(c) Failure to pay authorized day use fees, and/or properly display
applicable receipt, permit or pass is prohibited.
(d) Any Golden Age or Golden Access Passport permittee shall be
entitled, upon presentation of such a permit, to utilize special
recreation facilities at a rate of 50 percent off the established use
fee at Federally operated areas. Fraudulent use of a Golden Age or
Golden Access Passport is prohibited.
[65 FR 6903, Feb. 11, 2000]
[[Page 15]]
Sec. 327.24 Interference with Government employees.
(a) It is a Federal crime pursuant to the provisions of sections 111
and 1114 of Title 18, United States Code, to forcibly assault, resist,
oppose, impede, intimidate, or interfere with, attempt to kill or kill
any civilian official or employee for the U.S. Army Corps of Engineers
engaged in the performance of his or her official duties, or on account
of the performance of his or her official duties. Such actions or
interference directed against a Federal employee while carrying out the
regulations in this part are violation of such regulations and may be a
state crime pursuant to the laws of the state where they occur.
(b) Failure to comply with a lawful order issued by a Federal
employee acting pursuant to the regulations in this part shall be
considered as interference with that employee while engaged in the
performance of their official duties. Such interference with a Federal
employee includes failure to provide a correct name, address or other
information deemed necessary for identification upon request of the
Federal employee, when that employee is authorized by the District
Commander to issue citations in the performance of the employee's
official duties.
[65 FR 6903, Feb. 11, 2000]
Sec. 327.25 Violations of rules and regulations.
(a) Any person who violates the provisions of the regulations in
this part, other than for a failure to pay authorized recreation use
fees as separately provided for in Sec. 327.23, may be punished by a
fine of not more than $5,000 or imprisonment for not more than six
months or both and may be tried and sentenced in accordance with the
provisions of section 3401 of Title 18, United States Code. Persons
designated by the District Commander shall have the authority to issue a
citation for violation of the regulations in this part, requiring any
person charged with the violation to appear before the United States
Magistrate within whose jurisdiction the affected water resources
development project is located (16 U.S.C. 460d).
(b) Any person who commits an act against any official or employee
of the U.S. Army Corps of Engineers that is a crime under the provisions
of section 111 or section 1114 of Title 18, United States Code or under
provisions of pertinent state law may be tried and sentenced as further
provided under Federal or state law, as the case may be.
[65 FR 6903, Feb. 11, 2000]
Sec. 327.26 State and local laws.
(a) Except as otherwise provided in this part or by Federal law or
regulation, state and local laws and ordinances shall apply on project
lands and waters. This includes, but is not limited to, state and local
laws and ordinances governing:
(1) Operation and use of motor vehicles, vessels, and aircraft;
(2) Hunting, fishing and trapping;
(3) Use or possession of firearms or other weapons;
(4) Civil disobedience and criminal acts;
(5) Littering, sanitation and pollution; and
(6) Alcohol or other controlled substances.
(b) These state and local laws and ordinances are enforced by those
state and local enforcement agencies established and authorized for that
purpose.
[65 FR 6903, Feb. 11, 2000]
Sec. Sec. 327.27-327.29 [Reserved]
Sec. 327.30 Shoreline Management on Civil Works Projects.
(a) Purpose. The purpose of this regulation is to provide policy and
guidance on management of shorelines of Civil Works projects where 36
CFR part 327 is applicable.
(b) Applicability. This regulation is applicable to all field
operating agencies with Civil Works responsibilities except when such
application would result in an impingement upon existing Indian rights.
(c) References. (1) Section 4, 1944 Flood Control Act, as amended
(16 U.S.C. 460d).
(2) The Rivers and Harbors Act of 1894, as amended and supplemented
(33 U.S.C. 1)
[[Page 16]]
(3) Section 10, River and Harbor Act of 1899 (33 U.S.C. 403).
(4) National Historic Preservation Act of 1966 (Pub. L. 89-665; 80
Stat. 915) as amended (16 U.S.C. 470 et seq.).
(5) The National Environmental Policy Act of 1969 (42 U.S.C. 4321,
et seq.).
(6) The Clean Water Act (33 U.S.C. 1344, et seq.).
(7) The Water Resources Development Act of 1986 (Pub. L. 99-662).
(8) Title 36, chapter III, part 327, Code of Federal Regulations,
``Rules and Regulations Governing Public Use of Water Resource
Development Projects Administered by the Chief of Engineers.''
(9) Executive Order 12088 (13 Oct. 78).
(10) 33 CFR parts 320-330, ``Regulatory Programs of the Corps of
Engineers.''
(11) ER 1130-2-400, ``Management of Natural Resources and Outdoor
Recreation at Civil Works Water Resource Projects.''
(12) EM 385-1-1, ``Safety and Health Requirements Manual.''
(d) Policy. (1) It is the policy of the Chief of Engineers to
protect and manage shorelines of all Civil Works water resource
development projects under Corps jurisdiction in a manner which will
promote the safe and healthful use of these shorelines by the public
while maintaining environmental safeguards to ensure a quality resource
for use by the public. The objectives of all management actions will be
to achieve a balance between permitted private uses and resource
protection for general public use. Public pedestrian access to and exit
from these shorelines shall be preserved. For projects or portions of
projects where Federal real estate interest is limited to easement title
only, management actions will be appropriate within the limits of the
estate acquired.
(2) Private shoreline uses may be authorized in designated areas
consistent with approved use allocations specified in Shoreline
Management Plans. Except to honor written commitments made prior to
publication of this regulation, private shoreline uses are not allowed
on water resource projects where construction was initiated after
December 13, 1974, or on water resource projects where no private
shoreline uses existed as of that date. Any existing permitted
facilities on these projects will be grandfathered until the facilities
fail to meet the criteria set forth in Sec. 327.30(h).
(3) A Shoreline Management Plan, as described in Sec. 327.30(e),
will be prepared for each Corps project where private shoreline use is
allowed. This plan will honor past written commitments. The plan will be
reviewed at least once every five years and revised as necessary.
Shoreline uses that do not interfere with authorized project purposes,
public safety concerns, violate local norms or result in significant
environmental effects should be allowed unless the public participation
process identifies problems in these areas. If sufficient demand exists,
consideration should be given to revising the shoreline allocations
(e.g. increases/decreases). Maximum public participation will be
encouraged as set forth in Sec. 327.30(e)(6). Except to honor written
commitments made prior to the publication of this regulation, shoreline
management plans are not required for those projects where construction
was initiated after December 13, 1974, or on projects not having private
shoreline use as of that date. In that case, a statement of policy will
be developed by the district commander to present the shoreline
management policy. This policy statement will be subject to the approval
of the division commander. For projects where two or more agencies have
jurisdiction, the plan will be cooperatively prepared with the Corps as
coordinator.
(4) Where commercial or other public launching and/or moorage
facilities are not available within a reasonable distance, group owned
mooring facilities may be allowed in Limited Development Areas to limit
the proliferation of individual facilities. Generally only one permit
will be necessary for a group owned mooring facility with that entity,
if incorporated, or with one person from the organization designated as
the permittee and responsible for all moorage spaces within the
facility. No charge may be made for use of any permitted facility by
others nor shall any commercial activity be engaged in thereon.
(5) The issuance of a private shoreline use permit does not convey
any
[[Page 17]]
real estate or personal property rights or exclusive use rights to the
permit holder. The public's right of access and use of the permit area
must be maintained and preserved. Owners of permitted facilities may
take necessary precautions to protect their property from theft,
vandalism or trespass, but may in no way preclude the public right of
pedestrian or vessel access to the water surface or public land adjacent
to the facility.
(6) Shoreline Use Permits will only be issued to individuals or
groups with legal right of access to public lands.
(e) Shoreline Management Plan--
(1) General. The policies outlined in Sec. 327.30(d) will be
implemented through preparation of Shoreline Management Plans, where
private shoreline use is allowed.
(2) Preparation. A Shoreline Management Plan is prepared as part of
the Operational Management Plan. A moratorium on accepting applications
for new permits may be placed in effect from the time an announcement of
creation of a plan or formal revision of a plan is made until the action
is completed.
(3) Approval. Approval of Shoreline Management Plans rests with
division commanders. After approval, one copy of each project Shoreline
Management Plan will be forwarded to HQUSACE (CECW-ON) WASH DC 20314-
1000. Copies of the approved plan will also be made available to the
public.
(4) Scope and Format. The Shoreline Management Plan will consist of
a map showing the shoreline allocated to the uses listed in Sec.
327.30(e)(6), related rules and regulations, a discussion of what areas
are open or closed to specific activities and facilities, how to apply
for permits and other information pertinent to the Corps management of
the shoreline. The plan will be prepared in sufficient detail to ensure
that it is clear to the public what uses are and are not allowed on the
shoreline of the project and why. A process will be developed and
presented in the Shoreline Management Plan that prescribes a procedure
for review of activities requested but not specifically addressed by the
Shoreline Management Plan.
(5) Shoreline Allocation. The entire shoreline will be allocated
within the classifications below and delineated on a map. Any action,
within the context of this rule, which gives a special privilege to an
individual or group of individuals on land or water at a Corps project,
that precludes use of those lands and waters by the general public, is
considered to be private shoreline use. Shoreline allocations cover that
land and/or water extending from the edge of the water and waterward
with the exception of allocations for the purpose of vegetation
modification which extends landward to the project boundary. These
allocations should complement, but certainly not contradict, the land
classifications in the project master plan. A map of sufficient size and
scale to clearly display the shoreline allocations will be conspicuously
displayed or readily available for viewing in the project administration
office and will serve as the authoritative reference. Reduced or smaller
scale maps may be developed for public dissemination but the information
contained on these must be identical to that contained on the display
map in the project administration office. No changes will be made to
these maps except through the formal update process. District commanders
may add specific constraints and identify areas having unique
characteristics during the plan preparation, review, or updating process
in addition to the allocation classifications described below.
(i) Limited Development Areas. Limited Development Areas are those
areas in which private facilities and/or activities may be allowed
consistent with Sec. 327.30(h) and appendix A. Modification of
vegetation by individuals may be allowed only following the issuance of
a permit in accordance with appendix A. Potential low and high water
conditions and underwater topography should be carefully evaluated
before shoreline is allocated as Limited Development Area.
(ii) Public Recreation Areas. Public Recreation Areas are those
areas designated for commercial concessionaire facilities, Federal,
state or other similar public use. No private shoreline use facilities
and/or activities will be permitted within or near designated or
developed public recreation areas. The
[[Page 18]]
term ``near'' depends on the terrain, road system, and other local
conditions, so actual distances must be established on a case by case
basis in each project Shoreline Management Plan. No modification of land
forms or vegetation by private individuals or groups of individuals is
permitted in public recreation areas.
(iii) Protected Shoreline Areas. Protected Shoreline Areas are those
areas designated to maintain or restore aesthetic, fish and wildlife,
cultural, or other environmental values. Shoreline may also be so
designated to prevent development in areas that are subject to excessive
siltation, erosion, rapid dewatering, or exposure to high wind, wave, or
current action and/or in areas in which development would interfere with
navigation. No Shoreline Use Permits for floating or fixed recreation
facilities will be allowed in protected areas. Some modification of
vegetation by private individuals, such as clearing a narrow meandering
path to the water, or limited mowing, may be allowed only following the
issuance of a permit if the resource manager determines that the
activity will not adversely impact the environment or physical
characteristics for which the area was designated as protected. In
making this determination the effect on water quality will also be
considered.
(iv) Prohibited Access Areas. Prohibited Access Areas are those in
which public access is not allowed or is restricted for health, safety
or security reasons. These could include hazardous areas near dams,
spillways, hydro-electric power stations, work areas, water intake
structures, etc. No shoreline use permits will be issued in Prohibited
Access Areas.
(6) Public Participation. District commanders will ensure public
participation to the maximum practicable extent in Shoreline Management
Plan formulation, preparation and subsequent revisions. This may be
accomplished by public meetings, group workshops, open houses or other
public involvement techniques. When master plan updates and preparation
of the Shoreline Management Plans are concurrent, public participation
may be combined and should consider all aspects of both plans, including
shoreline allocation classifications. Public participation will begin
during the initial formulation stage and must be broad-based to cover
all aspects of public interest. The key to successful implementation is
an early and continual public relations program. Projects with
significant numbers of permits should consider developing computerized
programs to facilitate exchange of information with permittees and to
improve program efficiency. Special care will be taken to advise citizen
and conservation organizations; Federal, state and local natural
resource management agencies; Indian Tribes; the media; commercial
concessionaires; congressional liaisons; adjacent landowners and other
concerned entities during the formulation of Shoreline Management Plans
and subsequent revisions. Notices shall be published prior to public
meetings to assure maximum public awareness. Public notices shall be
issued by the district commander allowing for a minimum of 30 days for
receipt of written public comment in regard to the proposed Shoreline
Management Plan or any major revision thereto.
(7) Periodic Review. Shoreline Management Plans will be reviewed
periodically, but no less often than every five years, by the district
commander to determine the need for update. If sufficient controversy or
demand exists, consideration should be given, consistent with other
factors, to a process of reevaluation of the shoreline allocations and
the plan. When changes to the Shoreline Management Plan are needed, the
plan will be formally updated through the public participation process.
Cumulative environmental impacts of permit actions and the possibility
of preparing or revising project NEPA documentation will be considered.
District commanders may make minor revisions to the Shoreline Management
Plan when the revisions are consistent with policy and funds for a
complete plan update are not available. The amount and type of public
involvement needed for such revision is at the discretion of the
district commander.
(f) Instruments for Shoreline Use. Instruments used to authorize
private
[[Page 19]]
shoreline use facilities, activities or development are as follows:
(1) Shoreline Use Permits. (i) Shoreline Use Permits are issued and
enforced in accordance with provisions of 36 CFR 327.19.
(ii) Shoreline Use Permits are required for private structures/
activities of any kind (except boats) in waters of Civil Works projects
whether or not such waters are deemed navigable and where such waters
are under the primary jurisdiction of the Secretary of the Army and
under the management of the Corps of Engineers.
(iii) Shoreline Use Permits are required for non-floating structures
on waters deemed commercially non-navigable, when such waters are under
management of the Corps of Engineers.
(iv) Shoreline Use Permits are also required for land vegetation
modification activities which do not involve disruption to land form.
(v) Permits should be issued for a term of five years. To reduce
administration costs, one year permits should be issued only when the
location or nature of the activity requires annual reissuance.
(vi) Shoreline Use Permits for erosion control may be issued for the
life or period of continual ownership of the structure by the permittee
and his/her legal spouse.
(2) Department of the Army Permits. Dredging, construction of fixed
structures, including fills and combination fixed-floating structures
and the discharge of dredged or fill material in waters of the United
States will be evaluated under authority of section 10, River and Harbor
Act of 1899 (33 U.S.C. 403) and section 404 of the Clean Water Act (33
U.S.C. 1344). Permits will be issued where appropriate.
(3) Real Estate Instruments. Commercial development activities and
activities which involve grading, cuts, fills, or other changes in land
form, or establishment of appropriate land-based support facilities
required for private floating facilities, will continue to be covered by
a lease, license or other legal grant issued through the appropriate
real estate element. Shoreline Management Plans should identify the
types of activities that require real estate instruments and indicate
the general process for obtaining same. Shoreline Use Permits are not
required for facilities or activities covered by a real estate
instrument.
(g) Transfer of Permits. Shoreline Use Permits are non-transferable.
They become null and void upon sale or transfer of the permitted
facility or the death of the permittee and his/her legal spouse.
(h) Existing Facilities Now Under Permit. Implementation of a
Shoreline Management Plan shall consider existing permitted facilities
and prior written Corps commitments implicit in their issuance.
Facilities or activities permitted under special provisions should be
identified in a way that will set them apart from other facilities or
activities.
(1) Section 6 of Pub. L. 97-140 provides that no lawfully installed
dock or appurtenant structures shall be required to be removed prior to
December 31, 1989, from any Federal water resources reservoir or lake
project administered by the Secretary of the Army, acting through the
Chief of Engineers, on which it was located on December 29, 1981, if
such property is maintained in usable condition, and does not occasion a
threat to life or property.
(2) In accordance with section 1134(d) of Pub. L. 99-662, any
houseboat, boathouse, floating cabin or lawfully installed dock or
appurtenant structures in place under a valid shoreline use permit as of
November 17, 1986, cannot be forced to be removed from any Federal water
resources project or lake administered by the Secretary of the Army on
or after December 31, 1989, if it meets the three conditions below
except where necessary for immediate use for public purposes or higher
public use or for a navigation or flood control project.
(i) Such property is maintained in a usable and safe condition,
(ii) Such property does not occasion a threat to life or property,
and
(iii) The holder of the permit is in substantial compliance with the
existing permit.
(3) All such floating facilities and appurtenances will be formally
recognized in an appropriate Shoreline Management Plan. New permits for
these
[[Page 20]]
permitted facilities will be issued to new owners. If the holder of the
permit fails to comply with the terms of the permit, it may be revoked
and the holder required to remove the structure, in accordance with the
terms of the permit as to notice, time, and appeal.
(i) Facility Maintenance. Permitted facilities must be operated,
used and maintained by the permittee in a safe, healthful condition at
all times. If determined to be unsafe, the resource manager will
establish together with the permittee a schedule, based on the
seriousness of the safety deficiency, for correcting the deficiency or
having it removed, at the permittee's expense. The applicable safety and
health prescriptions in EM 385-1-1 should be used as a guide.
(j) Density of Development. The density of private floating and
fixed recreation facilities will be established in the Shoreline
Management Plan for all portions of Limited Development areas consistent
with ecological and aesthetic characteristics and prior written
commitments. The facility density in Limited Development Areas should,
if feasible, be determined prior to the development of adjacent private
property. The density of facilities will not be more than 50 per cent of
the Limited Development Area in which they are located. Density will be
measured by determining the linear feet of shoreline as compared to the
width of the facilities in the water plus associated moorage
arrangements which restrict the full unobstructed use of that portion of
the shoreline. When a Limited Development Area or a portion of a Limited
Development area reaches maximum density, notice should be given to the
public and facility owners in that area that no additional facilities
will be allowed. In all cases, sufficient open area will be maintained
for safe maneuvering of watercraft. Docks should not extend out from the
shore more than one-third of the width of a cove at normal recreation or
multipurpose pool. In those cases where current density of development
exceeds the density level established in the Shoreline Management Plan,
the density will be reduced to the prescribed level through attrition.
(k) Permit Fees. Fees associated with the Shoreline Use Permits
shall be paid prior to issuing the permit in accordance with the
provisions of Sec. 327.30(c)(1). The fee schedule will be published
separately.
Appendix A to Sec. 327.30--Guidelines for Granting Shoreline Use
Permits
1. General
a. Decisions regarding permits for private floating recreation
facilities will consider the operating objectives and physical
characteristics of each project. In developing Shoreline Management
Plans, district commanders will give consideration to the effects of
added private boat storage facilities on commercial concessions for that
purpose. Consistent with established policies, new commercial
concessions may be alternatives to additional limited development
shoreline.
b. Permits for individually or group owned shoreline use facilities
may be granted only in Limited Development Areas when the sites are not
near commercial marine services and such use will not despoil the
shoreline nor inhibit public use or enjoyment thereof. The installation
and use of such facilities will not be in conflict with the preservation
of the natural characteristics of the shoreline nor will they result in
significant environmental damage. Charges will be made for Shoreline Use
Permits in accordance with the separately published fee schedule.
c. Permits may be granted within Limited Development Areas for ski
jumps, floats, boat moorage facilities, duck blinds, and other private
floating recreation facilities when they will not create a safety hazard
and inhibit public use or enjoyment of project waters or shoreline. A
Corps permit is not required for temporary ice fishing shelters or duck
blinds when they are regulated by a state program. When the facility or
activity is authorized by a shoreline use permit, a separate real estate
instrument is generally not required.
d. Group owned boat mooring facilities may be permitted in Limited
Development Areas where practicable (e.g. where physically feasible in
terms of access, water depths, wind protection, etc.).
2. Applications for Shoreline Use Permits
a. Applications for private Shoreline Use Permits will be reviewed
with full consideration of the policies set forth in this and referenced
regulations, and the Shoreline Management Plan. Fees associated with the
Shoreline Use Permit shall be paid prior to issuing the permit. Plans
and specifications of the proposed facility shall be submitted and
approved prior to the start of construction. Submissions should include
engineering
[[Page 21]]
details, structural design, anchorage method, and construction
materials; the type, size, location and ownership of the facility;
expected duration of use; and an indication of willingness to abide by
the applicable regulations and terms and conditions of the permit.
Permit applications shall also identify and locate any land-based
support facilities and any specific safety considerations.
b. Permits will be issued by the district commander or his/her
authorized representative on ENG Form 4264-R (Application for Shoreline
Use Permit) (appendix B). Computer generated forms may be substituted
for ENG Form 4264-R provided all information is included. The computer
generated form will be designated, ``ENG Form 4264-R-E, Oct 87
(Electronic generation approved by USACE, Oct 87)''.
c. The following are guides to issuance of Shoreline Use Permits:
(1) Use of boat mooring facilities, including piers and boat
(shelters) houses, will be limited to vessel or watercraft mooring and
storage of gear essential to vessel or watercraft operation.
(2) Private floating recreation facilities, including boat mooring
facilities shall not be constructed or used for human habitation or in a
manner which gives the appearance of converting Federal public property
on which the facility is located to private, exclusive use. New docks
with enclosed sides (i.e. boathouses) are prohibited.
(3) No private floating facility will exceed the minimum size
required to moor the owner's boat or boats plus the minimum size
required for an enclosed storage locker of oars, life preservers and
other items essential to watercraft operation. Specific size limitations
may be established in the project Shoreline Management Plan.
(4) All private floating recreation facilities including boat
mooring facilities will be constructed in accordance with plans and
specifications, approved by the resource manager, or a written
certification from a licensed engineer, stating the facility is
structurally safe will accompany the initial submission of the plans and
specifications.
(5) Procedures regarding permits for individual facilities shall
also apply to permits for non-commercial group mooring facilities.
(6) Facilities attached to the shore shall be securely anchored by
means of moorings which do not obstruct the free use of the shoreline,
nor damage vegetation or other natural features. Anchoring to vegetation
is prohibited.
(7) Electrical service and equipment leading to or on private
mooring facilities must not pose a safety hazard nor conflict with other
recreational use. Electrical installations must be weatherproof and meet
all current applicable electrical codes and regulations. The facility
must be equipped with quick disconnect fittings mounted above the flood
pool elevation. All electrical installations must conform to the
National Electric Code and all state, and local codes and regulations.
In those states where electricians are licensed, registered, or
otherwise certified, a copy of the electrical certification must be
provided to the resource manager before a Shoreline Use Permit can be
issued or renewed. The resource manager will require immediate removal
or disconnection of any electrical service or equipment that is not
certified (if appropriate), does not meet code, or is not safely
maintained. All new electrical lines will be installed underground. This
will require a separate real estate instrument for the service right-of-
way. Existing overhead lines will be allowed, as long as they meet all
applicable electrical codes, regulations and above guidelines, to
include compatibility and safety related to fluctuating water levels.
(8) Private floating recreation facilities will not be placed so as
to interfere with any authorized project purposes, including navigation,
or create a safety or health hazard.
(9) The district commander or his/her authorized representative may
place special conditions on the permit when deemed necessary. Requests
for waivers of shoreline management plan permit conditions based on
health conditions will be reviewed on a case by case basis by the
Operations Manager. Efforts will be made to reduce onerous requirements
when a limiting health condition is obvious or when an applicant
provides a doctor's certification of need for conditions which are not
obvious.
(10) Vegetation modification, including but not limited to, cutting,
pruning, chemical manipulation, removal or seeding by private
individuals is allowed only in those areas designated as Limited
Development Areas or Protected Shoreline Areas. An existing (as of July
1, 1987) vegetation modification permit, within a shoreline allocation
which normally would not allow vegetation modification, should be
grandfathered. Permittees will not create the appearance of private
ownership of public lands.
(11) The term of a permit for vegetation modification will be for
five years. Where possible, such permits will be consolidated with other
shoreline management permits into a single permit. The district
commander is authorized to issue vegetation modification permits of less
than five years for one-time requests or to aid in the consolidation of
shoreline management permits.
(12) When issued a permit for vegetative modification, the permittee
will delineate the government property line, as surveyed and marked by
the government, in a clear but unobtrusive manner approved by the
district commander and in accordance with the project Shoreline
Management Plan and the conditions of the permit. Other adjoining owners
may also delineate the common
[[Page 22]]
boundary subject to these same conditions. This delineation may include,
but is not limited to, boundary plantings and fencing. The delineation
will be accomplished at no cost to the government.
(13) No permit will be issued for vegetation modification in
Protected Shoreline Areas until the environmental impacts of the
proposed modification are assesed by the resource manager and it has
been determined that no significant adverse impacts will result. The
effects of the proposed modification on water quality will also be
considered in making this determination.
(14) The original of the completed permit application is to be
retained by the permittee. A duplicate will be retained in the resource
manager's office.
3. Permit Revocation
Permits may be revoked by the district commander when it is
determined that the public interest requires such revocation or when the
permittee fails to comply with terms and conditions of the permit, the
Shoreline Management Plan, or of this regulation. Permits for duck
blinds and ice fishing shelters will be issued to cover a period not to
exceed 30 days prior to and 30 days after the season.
4. Removal of Facilities
Facilities not removed when specified in the permit or when
requested after termination or revocation of the permit will be treated
as unauthorized structures pursuant to 36 CFR 327.20.
5. Posting of Permit Number
Each district will procure 5x8 or larger
printed permit tags of light metal or plastic for posting. The permit
display tag shall be posted on the facility and/or on the land area
covered by the permit, so that it can be visually checked, with ease in
accordance with instructions provided by the resource manager.
Facilities or activities permitted under special provisions should be
identified in a way that will set apart from other facilities or
activities.
Appendix B to Sec. 327.30--Application for Shoreline Use Permit
[Reserved]
Appendix C to Sec. 327.30--Shoreline Use Permit Conditions
1. This permit is granted solely to the applicant for the purpose
described on the attached permit.
2. The permittee agrees to and does hereby release and agree to save
and hold the Government harmless from any and all causes of action,
suits at law or equity, or claims or demands or from any liability of
any nature whatsoever for or on account of any damages to persons or
property, including a permitted facility, growing out of the ownership,
construction, operation or maintenance by the permittee of the permitted
facilities and/or activities.
3. Ownership, construction, operation, use and maintenance of a
permitted facility are subject to the Government's navigation servitude.
4. No attempt shall be made by the permittee to forbid the full and
free use by the public of all public waters and/or lands at or adjacent
to the permitted facility or to unreasonably interfere with any
authorized project purposes, including navigation in connection with the
ownership, construction, operation or maintenance of a permitted
facility and/or activity.
5. The permittee agrees that if subsequent operations by the
Government require an alteration in the location of a permitted facility
and/or activity or if in the opinion of the district commander a
permitted facility and/or activity shall cause unreasonable obstruction
to navigation or that the public interest so requires, the permittee
shall be required, upon written notice from the district commander to
remove, alter, or relocate the permitted facility, without expense to
the Government.
6. The Government shall in no case be liable for any damage or
injury to a permitted facility which may be caused by or result from
subsequent operations undertaken by the Government for the improvement
of navigation or for other lawful purposes, and no claims or right to
compensation shall accrue from any such damage. This includes any damage
that may occur to private property if a facility is removed for
noncompliance with the conditions of the permit.
7. Ownership, construction, operation, use and maintenance of a
permitted facility and/or activity are subject to all applicable
Federal, state and local laws and regulations. Failure to abide by these
applicable laws and regulations may be cause for revocation of the
permit.
8. This permit does not convey any property rights either in real
estate or material; and does not authorize any injury to private
property or invasion of private rights or any infringement of Federal,
state or local laws or regulations, nor does it obviate the necessity of
obtaining state or local assent required by law for the construction,
operation, use or maintenance of a permitted facility and/or activity.
9. The permittee agrees to construct the facility within the time
limit agreed to on the permit issuance date. The permit shall become
null and void if construction is not completed within that period.
Further, the permittee agrees to operate and maintain any permitted
facility and/or activity in a manner so as to provide safety, minimize
[[Page 23]]
any adverse impact on fish and wildlife habitat, natural, environmental,
or cultural resources values and in a manner so as to minimize the
degradation of water quality.
10. The permittee shall remove a permitted facility within 30 days,
at his/her expense, and restore the waterway and lands to a condition
accepted by the resource manager upon termination or revocation of this
permit or if the permittee ceases to use, operate or maintain a
permitted facility and/or activity. If the permittee fails to comply to
the satisfaction of the resource manager, the district commander may
remove the facility by contract or otherwise and the permittee agrees to
pay all costs incurred thereof.
11. The use of a permitted boat dock facility shall be limited to
the mooring of the permittee's vessel or watercraft and the storage, in
enclosed locker facilities, of his/her gear essential to the operation
of such vessel or watercraft.
12. Neither a permitted facility nor any houseboat, cabin cruiser,
or other vessel moored thereto shall be used as a place of habitation or
as a full or part-time residence or in any manner which gives the
appearance of converting the public property, on which the facility is
located, to private use.
13. Facilities granted under this permit will not be leased, rented,
sub-let or provided to others by any means of engaging in commercial
activity(s) by the permittee or his/her agent for monetary gain. This
does not preclude the permittee from selling total ownership to the
facility.
14. Floats and the flotation material for all docks and boat mooring
buoys shall be fabricated of materials manufactured for marine use. The
float and its flotation material shall be 100% warranted for a minimum
of 8 years against sinking, becoming waterlogged, cracking, peeling,
fragmenting, or losing beads. All floats shall resist puncture and
penetration and shall not be subject to damage by animals under normal
conditions for the area. All floats and the flotation material used in
them shall be fire resistant. Any float which is within 40 feet of a
line carrying fuel shall be 100% impervious to water and fuel. The use
of new or recycled plastic or metal drums or non-compartmentalized air
containers for encasement or floats is prohibited. Existing floats are
authorized until it or its flotation material is no longer serviceable,
at which time it shall be replaced with a float that meets the
conditions listed above. For any floats installed after the effective
date of this specification, repair or replacement shall be required when
it or its flotation material no longer performs its designated function
or it fails to meet the specifications for which it was originally
warranted.
15. Permitted facilities and activities are subject to periodic
inspection by authorized Corps representatives. The resource manager
will notify the permittee of any deficiencies and together establish a
schedule for their correction. No deviation or changes from approved
plans will be allowed without prior written approval of the resource
manager.
16. Floating facilities shall be securely attached to the shore in
accordance with the approved plans by means of moorings which do not
obstruct general public use of the shoreline or adversely affect the
natural terrain or vegetation. Anchoring to vegetation is prohibited.
17. The permit display tag shall be posted on the permitted facility
and/or on the land areas covered by the permit so that it can be
visually checked with ease in accordance with instructions provided by
the resource manager.
18. No vegetation other than that prescribed in the permit will be
damaged, destroyed or removed. No vegetation of any kind will be
planted, other than that specifically prescribed in the permit.
19. No change in land form such as grading, excavation or filling is
authorized by this permit.
20. This permit is non-transferable. Upon the sale or other transfer
of the permitted facility or the death of the permittee and his/her
legal spouse, this permit is null and void.
21. By 30 days written notice, mailed to the permittee by certified
letter, the district commander may revoke this permit whenever the
public interest necessitates such revocation or when the permittee fails
to comply with any permit condition or term. The revocation notice shall
specify the reasons for such action. If the permittee requests a hearing
in writing to the district commander through the resource manager within
the 30-day period, the district commander shall grant such hearing at
the earliest opportunity. In no event shall the hearing date be more
than 60 days from the date of the hearing request. Following the
hearing, a written decision will be rendered and a copy mailed to the
permittee by certified letter.
22. Notwithstanding the conditions cited in condition 21 above, if
in the opinion of the district commander, emergency circumstances
dictate otherwise, the district commander may summarily revoke the
permit.
23. When vegetation modification on these lands is accomplished by
chemical means, the program will be in accordance with appropriate
Federal, state and local laws, rules and regulations.
24. The resource manager or his/her authorized representative shall
be allowed to cross the permittee's property, as necessary to inspect
facilities and/or activities under permit.
[[Page 24]]
25. When vegetation modification is allowed, the permittee will
delineate the government property line in a clear, but unobtrusive
manner approved by the resource manager and in accordance with the
project Shoreline Management Plan.
26. If the ownership of a permitted facility is sold or transferred,
the permittee or new owner will notify the Resource Manager of the
action prior to finalization. The new owner must apply for a Shoreline
Use Permit within 14 days or remove the facility and restore the use
area within 30 days from the date of ownership transfer.
27. If permitted facilities are removed for storage or extensive
maintenance, the resource manager may require all portions of the
facility be removed from public property.
Appendix D to Sec. 327.30--Permit [Reserved]
[55 FR 30697, July 27, 1990, as amended at 57 FR 21895, May 26, 1992; 57
FR 29220, July 1, 1992; 63 FR 35828, July 1, 1998]
Effective Date Note: The amendment to Sec. 327.30 revising the last
sentence of paragraph (k), published at 56 FR 29587, June 28, 1991, was
deferred indefinitely. See 56 FR 49706, Oct. 1, 1991. The administrative
charges contained in Sec. 327.30, Shoreline Management on Civil Works
Projects, published in the July 1, 1991 edition of the Code of Federal
Regulations will remain in effect. Any future decisions affecting this
regulation will be published in the Federal Register at a later date by
the Corps of Engineers, Department of the Army. For the convenience of
the user, the rule published on June 28, 1991, at FR page 29587, is set
forth as follows:
Sec. 327.30 Shoreline Management on Civil Works Projects.
* * * * *
(k) * * * The Fee Schedule is published in Sec. 327.31.
Sec. 327.31 Shoreline management fee schedule.
A charge will be made for Shoreline Use Permits to help defray
expenses associated with issuance and administration of the permits. As
permits become eligible for renewal after July 1, 1976, a charge of $10
for each new permit and a $5 annual fee for inspection of floating
facilities will be made. There will be no annual inspection fee for
permits for vegetative modification on Shoreline areas. In all cases the
total administrative charge will be collected initially at the time of
permit issuance rather than on a piecemeal annual basis.
[56 FR 61163, Dec. 2, 1991; 56 FR 65190, Dec. 16, 1991]
PART 328_REGULATION OF SEAPLANE OPERATIONS AT CIVIL WORKS WATER RESOURCE
DEVELOPMENT PROJECTS ADMINISTERED BY THE CHIEF OF ENGINEERS--Table of Contents
Sec.
328.1 Purpose.
328.2 Applicability.
328.3 References.
328.4 Policy.
328.5 Guidelines for seaplane use of proj ect waters.
328.6 Procedures.
328.7 Other authorities.
Authority: Sec. 4 of the Act of Dec. 22, 1944, 58 Stat. 889, as
amended, (16 U.S.C. 460d).
Source: 42 FR 59076, Nov. 15, 1977, unless otherwise noted.
Sec. 328.1 Purpose.
This regulation, in connection with the modification of the present
prohibition of seaplane operations by the amendment to Sec. 327.4 of
title 36 of the Code of Federal Regulations, is designed to provide
uniform policies and criteria for designating Corps projects, or
portions thereof, at which seaplane operations are prohibited or
restricted; and to continue to protect the integrity and all authorized
uses of such projects and the safety of users of such projects. As used
in this regulation, projects or Corps projects means water resources
development projects administered by the Chief of Engineers.
Sec. 328.2 Applicability.
This regulation is applicable to all Field Operating Agencies having
Civil Works responsibilities.
Sec. 328.3 References.
(a) Title 36 CFR, part 327, Rules and Regulations Governing Public
Use of Water Resource Development Projects Administered by the Chief of
Engineers (38 FR 7552, March 23, 1973).
(b) ER 1105-2-507.
(c) ER 1130-2-400.
[[Page 25]]
(d) ER 1145-2-301.
(e) ER 1145-2-303.
(f) ER 1165-2-400.
(g) ER 405-2-800 Series.
Sec. 328.4 Policy.
(a) The objective of Corps of Engineers resources management is to
maximize public enjoyment and use of the lands, waters, forests, and
associated recreational resources, consistent with their aesthetic and
biological values. Such management includes efforts to preserve and
enhance the environmental amenities that are the source of the
recreational value associated with the project and to allow such other
new and innovative uses of the projects that are not detrimental
thereto.
(b) Seaplane operations at water resource development projects
administered by the Chief of Engineers may involve hazards including,
but not limited to, conflicting recreational activities, floating
debris, and underwater hazards, which may be accentuated by the normal
fluctutations of water levels.
(c) Seaplane operations may be prohibited or restricted at such
water resource development projects, or portions thereof, for a variety
of management reasons. Prohibiting or restricting seaplane operations in
certain portions within a project in no way implies that safety hazards
to seaplane operations or to other recreation users may not exist in
other portions of such project.
(d) The operation of a seaplane at Corps projects is at the risk of
the plane's owner, operator, and passenger(s). The responsibility to
ascertain whether seaplane operations are permitted, prohibited or
restricted at such projects, and portions thereof, is incumbent upon the
person(s) contemplating the use of, or using, such waters.
Sec. 328.5 Guidelines for seaplane use of proj ect waters.
(a) All operations of the aircraft while upon the water shall be in
accordance with the marine rules of the road for power boats or vessels.
(b) Seaplanes on project waters and lands in excess of 24 hours
shall be securely moored at mooring facilities and at locations
permitted by the District Engineer. Seaplanes may be temporarily moored
on project waters and lands, except in areas prohibited by the District
Engineer, for periods less than 24 hours providing that--
(1) The mooring is safe, secure, and accomplished so as not to
damage the rights of the government or members of the public and
(2) The operator remains in the vicinity of the seaplane and
reasonably available to relocate the seaplane if necessary.
(c) No commercial operation of seaplanes from project waters will be
allowed without written approval of the District Engineer following
consultation with and the necessary clearance from the Federal Aviation
Administration (FAA) and other appropriate public authorities and
affected interests.
(d) Seaplanes may not be operated at Corps projects between sunset
and sunrise unless adequate lighting and supervision are available.
(e) Requests for public commercial facilities in support of
seaplanes will be handled under normal concession policies.
(f) Permits for floating and nonfloating structures of any kind, in,
on, or affecting project waters, under the management of the Resource
Manager, including waters under lease, license or other outgrant
agreement, shall be handled in accordance with the lakeshore management
plan or policy statement for the project involved, Sec. 327.19 of title
36, Code of Federal Regulations and, where required by statute or
regulation, section 10 of the River and Harbor Act (approved March 3,
1899) and section 404 of the Federal Water Pollution Control Act of 1972
(Pub. L. 92-500).
(g) Appropriate signs should be employed to inform users of
projects, or portions thereof, where seaplane operations are permitted.
Sec. 328.6 Procedures.
(a) In order to protect the integrity and all authorized uses of
Corps projects and the safety of all users of the lake projects, the
District Engineer shall:
[[Page 26]]
(1) Examine and investigate each Corps project within his district
which a seaplane operator could conceivably attempt to use for seaplane
operations, and determine those projects, or portions thereof, in which
seaplane operations should be prohibited.
(2) Establish such restrictions on seaplane operations as he deems
necessary or desirable in accordance with these regulations for other
areas. Seaplane takeoff and landing maneuvers within specified distances
of the shoreline, bridges, causeways, water utility crossings, dams, and
similar structures should be prohibited.
(3) Prior to concluding any such examination and investigation,
consult with the FAA, appropriate State aeronautical agency, lessee or
licensee of outgranted lands, the Coast Guard, and state boating law
administrators, and use his best efforts to consult with other
interested or affected public authorities and private interests for
their guidance, particularly for those projects which are regularly used
by the public for recreational purposes or are located in the vicinity
of actively used airports, air fields, or densely populated areas. News
releases, public notice, and congressional liaison should be used.
Public hearings are encouraged.
(4) In making his investigation, examination, and determination,
consider environmental factors in accordance with the National
Environmental Policy Act of 1969 (NEPA), Pub. L. 91-190--particularly
should he consider the impact that seaplane operations may have on the
safety at the project, aquatic, fish and wildlife, noise levels,
recreation, and air and water quality. Prior to concluding such
investigation and examination, he shall prepare an environmental impact
assessment (EIA) and, if necessary, an environmental impact statement
(EIS) assessing the environmental impacts of permitting seaplanes to
operate at the projects, or portions thereof, in his district.
(5) Place on Corps maps, brochures and otherwise adequately apprise
the public and interested agencies of projects, or portions thereof,
where seaplane operations are prohibited or restricted. Each map,
brochure, or other notice should clearly indicate that operation of a
seaplane at Corps projects is at the risk of the plane's owner,
operator, and/or passenger(s).
(6) Notify the FAA by letter of projects, or portions thereof, where
seaplane operations are prohibited or restricted. The letter should use
the words ``seaplane operations prohibited,'' or ``seaplane operations
restricted,'' describe the geographical location of such areas as
precisely as possible, describe any restrictions, include a telephone
number for FAA to contact the District, and be sent to: Federal Aviation
Administration, Area Traffic Service, Flight Services Division (AAT-
432), 800 Independence Avenue SW., Washington, DC 20591.
(b) The removal of the present prohibition on seaplane operations
will be effective one year from the date of publication of these
regulations. The District Engineer should complete the examination,
investigation, determination and notification to the FAA of projects, or
portions thereof, where seaplane operations are prohibited or
restricted, within one year from the date of this regulation. The
District Engineer may extend the present prohibition for up to one
additional year if he cannot complete his examination, investigation,
determination, and notification within one year. In such event, he
should notify the FAA by letter and publish other appropriate notices.
Any further extension of time will require the approval of the Chief of
Engineers.
(c) After he has completed his examination, investigation,
determination and notification of the FAA of projects, or portions
thereof where seaplane operations will be prohibited or restricted, The
District Engineer should periodically reevaluate his determination as
additional operational data becomes available. He may modify, delete, or
add projects, or portions thereof, where seaplane operations are
prohibited or restricted. Except where immediate action is required, he
should consult with appropriate public authorities and private interests
for their guidance with regard to such actions. Notification of these
actions shall be forwarded to the FAA as indicated in paragraph (a)(6)
of this section.
[[Page 27]]
Sec. 328.7 Other authorities.
Nothing in the preceding provisions bestows authority to deviate
from rules and regulations or prescribed standards of the State
Aeronautical Agency, Federal Aviation Administration, Coast Guard, or
other appropriate Federal, state, or local authority.
PART 330_REGULATION OF LAW ENFORCEMENT SERVICES CONTRACTS AT CIVIL
WORKS WATER RESOURCE PROJECTS ADMINISTERED BY THE CHIEF OF ENGINEERS
--Table of Contents
Sec.
330.1 Purpose.
330.2 Applicability.
330.3 References.
330.4 General.
330.5 Policy.
330.6 Criteria.
330.7 Funding.
330.8 Annual report.
Authority: Sec. 120 of the Water Resource Development Act of 1976,
90 Stat. 2917.
Source: 42 FR 61986, Dec. 8, 1977, unless otherwise noted.
Sec. 330.1 Purpose.
This regulation provides policy and guidance for the establishment
and management of the contract law enforcement program including
preparation of and management of contracts ensuing from this program.
Sec. 330.2 Applicability.
This regulation is applicable to all field operating agencies having
responsibilities for Civil Works water resource development projects.
Sec. 330.3 References.
(a) Section 4 of the Flood Control Act of 1944, as amended (16
U.S.C. 460d).
(b) Section 234 of the River and Harbor and Flood Control Act of
1970 (Pub. L. 91-611, 84 Stat. 1818).
(c) Section 120 of the Water Resource Development Act of 1976 (Pub.
L. 94-587, 90 Stat. 2917).
(d) 36 CFR chapter III.
(e) ER 190-2-3.
(f) ER 190-3-4.
Sec. 330.4 General.
(a) Section 120(a) of reference Sec. 330.3(c) authorizes the
Secretary of the Army, acting through the Chief of Engineers, to
contract with States and their political subdivisions for the purpose of
obtaining increased law enforcement services at water resource
development projects under the jurisdiction of the Secretary of the Army
to meet needs during peak visitation periods.
(b) Further, section 120(b) of the Act authorizes a maximum
appropriation of up to $6,000,000 per fiscal year for the fiscal years
ending 30 September 1978 and 30 September 1979, to carry out section
120(a).
Sec. 330.5 Policy.
(a) It is the policy of the Corps of Engineers to provide, to the
extent of its authorities, a safe and healthful environment for public
use of lands and waters at Civil Works water resource development
projects. To insure this safe and healthful environment, and to augment
the citation authorities granted to the Corps of Engineers by reference
Sec. 330.3(b), District Engineers, subject to the authority of the
Division Engineers, as set out below, are hereby delegated the authority
to contract with States or their political subdivisions to obtain
increased law enforcement services at Civil Works water resource
development projects. Division Engineers are hereby delegated the
authority to approve any minor deviations from this regulation except
that any substantial deviations from the policies expressed within this
regulation will require the prior approval of the Chief of Engineers or
his authorized representative. Any required approval for deviation shall
be made prior to the execution of the contract. When fiscal year 1978
and fiscal year 1979 work allowances are issued, instructions will be
furnished on reporting requirements and the control of expenditures.
(b) Contracts for law enforcement services, as authorized in Sec.
330.5(a), shall be subject to the terms and conditions as provided for
within this regulation and in accordance with standard contracting and
accounting procedures applicable to the Corps of Engineers.
[[Page 28]]
(c) This regulation is not intended to diminish or otherwise limit
the existing law enforcement responsibilities of the State or local law
enforcement agencies.
(d) Contract law enforcement personnel shall not be given Federal
citation authority for enforcement of regulations contained in title 36
of the Code of Federal Regulations, Chapter III nor shall they be
empowered to enforce such regulations. These regulations shall remain
the responsibility of the Corps of Engineers.
(e) Contracts for increased law enforcement shall be for those
projects or portions of projects that are operated and maintained by the
Corps of Engineers. Law enforcement services will not be provided under
this program to those outgrant areas operated and maintained by a non-
Federal sponsor.
Sec. 330.6 Criteria.
(a) In order to provide reimbursement for law enforcement services
supplied by a State or local law enforcement agency, a contract must be
executed and approved in accordance with this regulation prior to the
provisions of such services.
(b) The authorized contract law enforcement program extends only to
30 September 1979. Law enforcement services acquired by contract under
this program shall be limited to those increased law enforcement
services required to meet the needs of the public during peak visitation
periods. Accordingly, the contract period shall not extend beyond the
dates of 1 April through 30 September inclusive, and in no event shall
the contract be written for more than 120 days within that time period.
The contract may provide for an option to renew for a similar,
additional period not to exceed 120-day period in Fiscal Year 1979. Any
exceptions to this criteria must be approved by the Chief of Engineers
or his authorized representative.
(c) Contracts shall be consummated only with those public law
enforcement agencies legally empowered to enforce State and local
criminal and civil laws within their respective political jurisdictions.
In light of this requirement and the authority cited in Sec. 330.3(c),
it is recognized that sole source negotiations may necessarily be
utilized in the procurement of these services. In negotiating law
enforcement contracts with these agencies the District Engineer must
determine the reasonableness of the price for the law enforcement
services offered under the contract. Such a determination shall be made
prior to execution of the contract, in accordance with the applicable
Contract Cost Principles and Procedures as set out in ASPR, section 15,
part 7, and as subject to the policies contained in this regulation.
Such a determination shall be contained in the official contract file
and must accompany any requests for deviations from the Division
Engineer or Chief of Engineers as provided for in Sec. 330.5(a) of this
regulation. Contract law enforcement personnel must meet all the
qualifications, including minimal law enforcement training, required by
State and local laws and regulations.
(d) The contractor shall provide all personnel, equipment and
supplies which are required to provide the increased law enforcement
services contracted for by the District Engineer. The Corps of Engineers
shall not reimburse the contractor for the purchase of any equipment or
supplies desired by the contractor for use under this program. However,
the Corps of Engineers shall reimburse the contractor for the reasonable
costs incurred by him in the rental or use of such equipment which is
allocated to the work performed by him under the contract. Such use
shall include:
(1) A depreciation or use allowance for such equipment as determined
by the service life evaluation system used by the contractor, and (2)
the costs of necessary maintenance, repair, and upkeep of the property
which neither adds to the permanent value of the property nor
appreciably prolongs its intended life, but keeps it at an efficient
operating condition.
(e) Reimbursement for law enforcement services shall be considered
only for increased law enforcement services to meet needs during peak
visitation periods. Each District Engineer shall evaluate and establish
a normal law enforcement service standard for each contract situation
and include such standard in the plan of operation to be
[[Page 29]]
developed in accordance with Sec. 330.6(h). Each District Engineer
shall evaluate the existing law enforcement services now being provided
by State or local law enforcement agencies at those water resources
projects or recreation areas where it is anticipated that law
enforcement service contracts may be executed, and determine the scope
including the type and amount, of law enforcement service which exceeds
the normal law enforcement standard, and which will become eligible for
reimbursement under the contract. Normally, requests by the District
Engineer or his authorized representative for emergency or unanticipated
law enforcement assistance will be considered nonreimbursable. Increased
law enforcement services, eligible for reimbursement under the terms of
the contract, shall be those regularly scheduled patrols or surveillance
in excess of the normal law enforcement standard presently being
provided by the contractor.
(f) An appropriate orientation program will be given by Corps
personnel to all contract law enforcement personnel assigned to Corps
projects. The purpose of this orientation will be to familiarize the
contract law enforcement personnel with the policies and procedures of
the Corps of Engineers, and to familiarize Corps personnel with the
functions and duties of the State or local law enforcement agency. The
Corps of Engineers shall reimburse the contractor for the cost per man
hour as set out in Sec. 330.6(h)(4) for attending the orientation
program.
(g) The contractor shall be required to keep a record of the
services provided to the District under the terms and conditions of the
contract in accordance with the criteria established in the plan of
operation required in Sec. 330.6(h).
(h) The District Engineer, in cooperation with the Contractor, shall
prepare a Plan of Operation for the Provision of law enforcement
services as an attachment to the contract. The Plan of Operation shall
contain, but not necessarily be limited to, the following information:
(1) Identify, by name and location, the project or projects and
specific areas (recreation and others) that require law enforcement
services.
(2) Describe the normal law enforcement services to be provided by
the Contractor without reimbursement by the Government (see Sec.
330.6(e)). Identify time of day, number of hours-per-day number of days-
per-week, and the number of patrols.
(3) Describe the increased law enforcement services to be provided
by the Contractor under the contract. Identify the time-of-day, number
of hours-per-day, number of days-per-week, number of patrols, manpower
per patrol, and effective starting and ending dates.
(4) Identify the cost-per-man-hour for the provision of reimbursable
law enforcement services, and identify the costs for utilization and
operation, maintenance and repair of such equipment as allocated for use
under the contract. (See Sec. 330.6(d).)
(5) The District Engineer and the Contractor should designate
specific individuals to issue or receive requests for reimbursable law
enforcement services under the contract.
(6) Describe the billing procedures to be utilized for the increased
law enforcement services. The Contractor shall provide, at a minimum,
the total charges, the number of hours involved, and starting and ending
dates of the billing period.
(7) The Contractor shall prepare a Daily Law Enforcement Log (see
Sec. 330.6(g) for the law enforcement services rendered as specified in
Sec. 330.6(h)(3)). These logs shall be compiled by the Contractor and
submitted to the District Engineer or his designated representative on a
regular basis throughout the life of the contract. It is intended by
this reporting requirement to minimize the paperwork burden on behalf of
the Contractor while, at the same time, providing assurance to the
Government with an adequate information base on which to administer the
law enforcement services being provided under the contract. Any
requirement for additional information to be contained in these reports
due to unique or special circumstances encountered in negotiating a Plan
of Operation with a particular law enforcement jurisdiction
[[Page 30]]
must receive the prior approval of the Division Engineer.
Sec. 330.7 Funding.
(a) Section 330.3(c) sets forth the maximum authorized funds for law
enforcement contracting in FY 1978 and FY 1979. The Division funding
levels for FY 1978 are based on information as previously submitted.
(b) The FY 1979 funding request for law enforcement contracting will
be submitted as part of the FY 1979 budget submittal.
Sec. 330.8 Annual report.
(RCS-DAEN-CWO-53) The Division Engineer will submit a consolidated
annual report to reach HQDA (DAEN-CWO-R) WASH DC 20314 not later than 30
October. This requirement expires 30 October 1979. The report will
contain the following:
(a) Districts reporting.
(b) Number assigned each contract.
(c) Name of projects covered under each contract.
(d) Number of man-hours of increased law enforcement services
provided under each contract.
(e) Total contract cost.
(f) Cost per man-hour for each contract.
(g) Corps of Engineers administrative or overhead costs associated
with each contract.
(h) Number of arrests and type of offense committed, i.e., assault,
burglary, auto theft, etc.
(i) The Division Engineers assessment of the effects of the contract
law enforcement program and recommendation.
PART 331_REGULATIONS GOVERNING THE PROTECTION, USE AND MANAGEMENT OF THE
FALLS OF THE OHIO NATIONAL WILDLIFE CONSERVATION AREA, KENTUCKY AND INDIANA
--Table of Contents
Sec.
331.1 Applicability and scope.
331.2 Policy.
331.3 Hunting and trapping.
331.4 Fishing.
331.5 Explosives and fireworks.
331.6 Public property.
331.7 Sanitation.
331.8 Picnicking.
331.9 Camping.
331.10 Swimming.
331.11 Special events.
331.12 Vehicles.
331.13 Vessels.
331.14 Aircraft.
331.15 Fires.
331.16 Interference with government employees.
331.17 Minerals.
331.18 Restrictions.
331.19 Commercial activities.
331.20 Advertisement.
331.21 Unauthorized structures.
331.22 Abandonment of personal property.
331.23 Control of animals.
331.24 Permits.
331.25 Violation of regulations.
Authority: Pub. L. 97-137.
Source: 48 FR 40720, Sept. 9, 1983, unless otherwise noted.
Sec. 331.1 Applicability and scope.
(a) The regulations contained in this part apply to those lands and
waters within the established boundary of the Falls of the Ohio National
Wildlife Conservation Area (WCA). Included in this boundary, which was
published in the Federal Register of August 12, 1982, are publicly and
privately owned lands, waters and improvements. The Federal Government,
acting through the Corps of Engineers, will acquire such rights to
privately-owned properties in the WCA as are necessary to carry out the
purposes of title II, Pub. L. 97-137. The regulations prescribed herein
are for the use, management and protection of the resources of the WCA
and all persons entering, using or visiting within the boundaries of the
WCA are subject to these regulations. All other applicable Federal,
State and local laws and regulations remain in full force and effect.
The District Engineer, US Army Corps of Engineers, exercises non-
exclusive jurisdiction over the lands and waters of the WCA and enforces
these regulations.
(b) The WCA boundary encompasses an existing hydroelectric
generating station and the McAlpine Locks and Dam, operating navigation
structures which are part of the authorized Ohio River Navigation
System. The continued operation and maintenance of this
[[Page 31]]
system take precedence over the purposes of the WCA, except that such
operation and maintenance will be consistent with the basic purpose of
the WCA as regards prohibition of hunting, vandalism, and dumping of
refuse. Management of the WCA to achieve its intended purposes will, to
the extent practicable, be accomplished in a manner consistent and
compatible with continued generation of electricity and navigation on
the Ohio River, including operation and maintenance of the McAlpine
Locks and Dam and the Louisville Repair Station and material storage
areas located on Shippingport Island.
Sec. 331.2 Policy.
(a) It is the policy of the Secretary of the Army, acting through
the Chief of Engineers, to manage the natural and cultural resources of
the WCA in the public interest, providing the public with safe and
healthful recreational opportunities while protecting and enhancing
these resources.
(b) Unless otherwise indicated herein, the term District Engineer
shall include the authorized representatives of the District Engineer.
(c) The WCA shall be available to the public without regard to sex,
race, color, creed or national origin. No lessee, licensee or
concessionaire providing a service to the public shall discriminate
against any person because of sex, race, creed, color, or national
origin in the conduct of the operations under the lease, license, or
concession contract.
Sec. 331.3 Hunting and trapping.
Unless authorized in writing by the District Engineer:
(a) The hunting, trapping, catching, molesting, killing, or having
in possession any wild animal or bird, or taking the eggs of any such
bird, is prohibited.
(b) Possession of equipment (including, but not limited to,
firearms, ammunition, traps, projectile firing devices including bow and
arrow) which could be used for hunting, trapping, or the taking of
wildlife, is prohibited.
Sec. 331.4 Fishing.
Unless otherwise authorized in writing by the District Engineer:
(a) Fishing is only permitted in accordance with the laws and
regulations of the State within whose exterior boundaries that portion
of the WCA is located, and such laws and regulations which are now or
may hereafter be in effect are hereby adopted as part of these
regulations.
(b) Fishing by means of the use of drugs, poisons, explosives, bow
and arrow or electricity is prohibited.
(c) Commercial fishing and fishing with gill nets, trammel nets,
hoop nets, bow and arrow or trot lines is prohibited.
Sec. 331.5 Explosives and fireworks.
Unless otherwise authorized in writing by the District Engineer.
(a) The possession or use of fireworks is prohibited.
(b) The possession or use of explosives is prohibited.
Sec. 331.6 Public property.
Unless otherwise authorized in writing by the District Engineer, the
destruction, injury, defacement, removal, or any alteration of public
property including, but not limited to natural formations,
paleontological features, historical and archaeological features and
vegetative growth is prohibited. Any such destruction, removal, or
alteration of public property shall be in accordance with the conditions
of any permission granted.
Sec. 331.7 Sanitation.
(a) Garbage, trash, rubbish, litter, or any other waste material or
waste liquid generated on the WCA shall be removed from the area or
deposited in receptacles provided for that purpose. The improper
disposal of such wastes within the boundaries of the WCA is prohibited.
(b) The use of refuse containers for the disposal of refuse not
generated on the WCA is prohibited.
(c) It is a violation to bring any material onto the WCA for the
purpose of disposal.
(d) The discharge or placing of sewage, galley waste, garbage,
refuse or pollutants into the WCA waters from any vessel or watercraft
is prohibited.
[[Page 32]]
Sec. 331.8 Picnicking.
(a) Picnicking is permitted only in designated areas.
(b) Picnickers shall remove all personal equipment and clean their
sites upon departure.
Sec. 331.9 Camping.
Camping is not permitted within the WCA.
Sec. 331.10 Swimming.
Swimming is prohibited unless authorized in writing by the District
Engineer.
Sec. 331.11 Special events.
(a) Special events including, but not limited to, water carnivals,
boat regattas, music festivals, dramatic presentations, or other special
recreation programs are prohibited unless written permission has been
granted by the District Engineer.
(b) The public shall not be charged any fee by the sponsor of such
permitted event unless the District Engineer has approved in writing the
proposed schedule of fees. The District Engineer shall have authority to
revoke permission and require removal of any equipment upon failure of
the sponsor to comply with terms and conditions of the permit/
permission. Any violation shall constitute a separate violation for each
calendar day in which it occurs.
Sec. 331.12 Vehicles.
(a) The use of a vehicle off roadways is prohibited except as may be
authorized by the District Engineer.
(b) Vehicles shall not be parked in violation of any posted
restriction, or in such a manner as to endanger any Federal property to
include natural features. The owner of any vehicle parked in violation
of this section shall be presumed to have parked it, and unless rebutted
such presumption will be sufficient to sustain a conviction as provided
for in Sec. 331.25.
(c) Vehicles shall be operated in accordance with all posted
regulations.
(d) Driving or operating any vehicle in a careless, negligent, or
reckless manner, heedlessly or in willful disregard for the safety of
other persons, or in such manner as to endanger any property or
environmental feature, or without due care or at a speed greater than is
reasonable and prudent under prevailing conditions with regard to
traffic, weather, road, light and surface conditions, is prohibited.
(e) This section pertains to all vehicles, including, but not
limited to, automobiles, trucks, motorcycles, minibikes, trail bikes,
snowmobiles, dune buggies, all terrain vehicles, bicycles, trailers,
campers, or any other such equipment.
(f) Except as authorized by the District Engineer, no person shall
operate any motorized vehicle without a proper and effective exhaust
muffler, or with an exhaust muffler cutout open, or in any other manner
which renders the exhaust muffler ineffective in muffling the sound of
engine exhaust.
Sec. 331.13 Vessels.
(a) Vessels or other watercraft may be operated in the WCA waters
except in prohibited or restricted areas in accordance with posted
regulations and applicable Federal, State and local laws.
(b) All vessels when not in actual use shall be removed from the WCA
unless securely moored at mooring facilities approved by the District
Engineer. The placing of floating or stationary mooring facilities to,
or interfering with, a buoy, channel marker, or other navigational aid
is prohibited.
(c) The operation of vessels or other watercraft in a careless,
negligent, or reckless manner so as to endanger any property (including
the operator and/or user(s) of the vessel or watercraft) is prohibited.
Sec. 331.14 Aircraft.
(a) The operation of aircraft on WCA lands and waters is prohibited,
unless authorized in writing by the District Engineer.
(b) Except in extreme emergencies threatening human life or serious
property loss, the air delivery of any person or thing by parachute,
helicopter, or other means onto project lands or waters without written
permission of the District Engineer is prohibited.
[[Page 33]]
(c) The provisions of this section shall not be applicable to
aircraft engaged on official business of the Federal Government or used
in emergency rescue in accordance with the directions of the District
Engineer.
Sec. 331.15 Fires.
Open fires are prohibited unless confined to fireplaces, grills, or
other facilities designed for this purpose as designated by the District
Engineer. Fires shall not be left unattended and must be completely
extinguished prior to departure.
Sec. 331.16 Interference with government employees.
Interference with any Government employee in the conduct of his or
her official duties pertaining to the administration of these
regulations is prohibited. It is a violation to fail to comply with a
lawful order directed by any Government employee or to knowingly give
any false, fictitious, or fraudulent report or other information to any
government employee in the performance of his or her official duties
pertaining to the administration of these regulations.
Sec. 331.17 Minerals.
All activities in connection with prospecting, exploration,
development, mining or other removal or the processing of mineral
resources and all uses reasonably incident thereto are prohibited.
Sec. 331.18 Restrictions.
The District Engineer may establish and post a schedule of visiting
hours and/or restrictions on the public use of a portion or portions of
the WCA. The District Engineer may close or restrict the use of the WCA
or portion of the WCA when necessitated by reason of public health,
public safety, security, maintenance, or other reasons in the public
interest. Entering or using the project in a manner which is contrary to
the schedule of visiting hours, closure or restrictions is prohibited.
Sec. 331.19 Commercial activities.
Unless otherwise authorized in writing by the District Engineer, the
engaging in or solicitation of business or money is prohibited.
Sec. 331.20 Advertisement.
Unless otherwise authorized in writing by the District Engineer,
advertising by the use of billboards, signs, markers, audio devices, or
any other means whatsoever including handbills, circulars, and posters
is prohibited. Vessels or vehicles with semipermanent or permanently
installed signs are exempt if being used for authorized recreational
activities or special events and in compliance with all other rules and
regulations pertaining to vessels and vehicles.
Sec. 331.21 Unauthorized structures.
The construction, placing, or continued existence of any structure
of any kind under, upon, in, or over WCA lands or waters is prohibited
unless a permit, lease, license, or other appropriate written agreement
therefor has been issued by the District Engineer. Structures not so
authorized are subject to summary removal or impoundment by the District
Engineer. The design, construction, placing, existence, or use of
structures in violation of the terms of the permit, lease, license, or
other written agreement therefor is prohibited.
Sec. 331.22 Abandonment of personal property.
(a) Personal property of any kind left unattended upon WCA lands or
waters for a period of 24 hours shall be considered abandoned and may be
impounded and stored at a storage point designated by the District
Engineer who may assess a reasonable impoundment fee. Such fee shall be
paid before the impounded property is returned to its owner.
(b) If abandoned property is not claimed by its owner within 3
months after the date it is received at the storage point designated by
the District Engineer, it may be disposed of by public or private sale
or by other means determined by the District Engineer. Any net proceeds
from the sale of property shall be conveyed unto the Treasury of the
United States as miscellaneous receipts.
[[Page 34]]
Sec. 331.23 Control of animals.
(a) No person shall bring or allow horses, cattle, or other
livestock in the WCA.
(b) No person shall bring dogs, cats, or other pets into the WCA
unless penned, caged, or on a leash under 6 feet in length, or otherwise
under physical restraint at all times. Unclaimed or unattended animals
are subject to immediate impoundment and removal in accordance with
State and local laws.
Sec. 331.24 Permits.
It shall be a violation of these regulations to refuse to or fail to
comply with the terms or conditions of any permit isued by the District
Engineer.
Sec. 331.25 Violation of regulations.
Anyone violating the provisions of this regulation shall be subject
to a fine of not more than $500 or imprisonment for not more than 6
months, or both. All persons designated by the Chief of Engineers, U.S.
Army Corps of Engineers, for that purpose shall have the authority to
issue a citation for the violation of these regulations, requiring the
appearance of any person charged with violation to appear before the
U.S. Magistrate within whose jurisdiction the violation occurred.
PARTS 332-399 [RESERVED]
[[Page 35]]
CHAPTER IV--AMERICAN BATTLE MONUMENTS COMMISSION
--------------------------------------------------------------------
Part Page
400 Employee responsibilities and conduct....... 37
401 Procedures.................................. 37
402 Erection of war memorials in foreign
countries by American citizens, States,
municipalities, or associations......... 37
403 Erection of memorial monuments, buildings,
and headstones in American cemeteries
located outside the United States and
its Territories and possessions......... 38
404 Procedures and guidelines for compliance
with the Freedom of Information Act..... 38
406 Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by American Battle
Monuments Commission.................... 45
407-499 [Reserved]
[[Page 37]]
PART 400_EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents
Authority: 5 U.S.C. 7301; 36 U.S.C. 2103.
Sec. 400.1 Cross-references to employees' ethical conduct standards,
financial disclosure regulations and other conduct rules.
Employees of the American Battle Monuments Commission are subject to
the executive branch-wide standards of ethical conduct and financial
disclosure regulations at 5 CFR parts 2634 and 2635 as well as the
executive branch-wide employee responsibilities and conduct regulations
at 5 CFR part 735.
[69 FR 17929, Apr. 6, 2004]
PART 401_PROCEDURES--Table of Contents
Authority: Sec. 3, 70 Stat. 640, 641; 5 U.S.C. 132 note, 36 U.S.C.
123-125; E.O. 6614, E.O. 9704, 11 FR 2675, 3 CFR 1949-53 Comp., p. 519,
E.O. 10057, 10087, 14 FR 2585, 7287, 3 CFR 1949-1953 Comp., pp. 269,
285.
Sec. 401.1 Erection of war memorials outside continental limits of United
States.
Federal Government agencies, American citizens, States,
municipalities, or associations desiring to erect war memorials outside
the continental limits of the United States should proceed as follows:
(a) Submit general idea of the memorial to the American Battle
Monuments Commission, with a request for the tentative allocation of the
site desired.
(b) When site is provisionally allocated, prepare and submit the
design of the memorial, together with the inscription, for approval. The
design of the memorial will then be referred, in accordance with law, by
the Commission to the National Commission of Fine Arts for its approval.
(c) After a site is allocated and the design and inscription are
approved, the American Battle Monuments Commission will, if the sponsors
so desire, consult with the foreign government concerning the question
of securing approval for the erection of the memorial.
(d) When the approval of the foreign government is obtained, the
Commission will cooperate, if the sponsors so desire, in obtaining the
ground and erection of the memorial. Such cooperation may include
construction of the memorial by the Commission, using funds provided by
the sponsors, in which case user charges will be made in accordance with
general Government policy.
[35 FR 19666, Dec. 29, 1970]
PART 402_ERECTION OF WAR MEMORIALS IN FOREIGN COUNTRIES BY AMERICAN
CITIZENS, STATES, MUNICIPALITIES, OR ASSOCIATIONS--Table of Contents
Authority: Sec. 3, 70 Stat. 640, 641; 5 U.S.C. 132 note, 36 U.S.C.
123, 125; E.O. 6614, E.O. 9704, 11 FR 2675, 3 CFR 1943-1948 Comp., p.
519, E.O. 10057, 10087, 14 FR 2585, 7287, 3 CFR, 1949-1953 Comp., pp.
269, 285.
Sec. 402.1 Restrictions on erection.
(a) No administrative agency of the United States shall give
assistance to American citizens, States, municipalities, or associations
in erecting any war memorial outside the continental United States
unless the plan has been approved in accordance with Sec. 401.1 above.
(b) It is the opinion of the Commission that no battlefield memorial
should be erected to any unit smaller than a division or comparable unit
or to an individual, unless the services of such unit or individual
clearly were of such distinguished character as to warrant a separate
memorial.
(c) It is the opinion of the Commission that, as a general rule,
memorials should be erected to organizations rather than to troops from
a particular locality of the United States.
(d) The policy of the Commission is to approve plans for memorials
in foreign countries only in cases in which the sponsors make adequate
and permanent arrangements for their maintenance. If the sponsors so
desire, the Commission will maintain such memorials, including those
previously existing which it deems worthy of preservation, using funds
provided by the sponsors; in such cases it will make user
[[Page 38]]
charges in accordance with general Government policy.
[35 FR 19666, Dec. 29, 1970]
PART 403_ERECTION OF MEMORIAL MONUMENTS, BUILDINGS, AND HEADSTONES IN
AMERICAN CEMETERIES LOCATED OUTSIDE THE UNITED STATES AND ITS TERRITORIES
AND POSSESSIONS--Table of Contents
Authority: Sec. 3, 70 Stat. 641; 36 U.S.C. 123; E.O. 6614, Feb. 26,
1934; E.O. 9704, 3 CFR, 1943-1948 Comp., 519; E.O. 10057, 10087, 3 CFR
1949-1953 Comp., pp. 269, 285.
Sec. 403.1 Restrictions on erection.
(a) No memorial monuments or buildings shall be placed in these
cemeteries unless the design and site have been approved by the American
Battle Monuments Commission. No steps toward the erection of any
memorial monument or building in these cemeteries should be taken until
the idea has first been approved by the American Battle Monuments
Commission.
(b) There shall be no variation in the types of headstones
officially adopted for use in American cemeteries located outside the
United States and its Territories and possessions.
[13 FR 6812, Nov. 19, 1948, as amended at 23 FR 9780, Dec. 19, 1958]
PART 404_PROCEDURES AND GUIDELINES FOR COMPLIANCE WITH THE FREEDOM OF
INFORMATION ACT--Table of Contents
Sec.
404.1 General.
404.2 Authority and functions.
404.3 Organization.
404.4 Access to information.
404.5 Inspection and copying.
404.6 Definitions.
404.7 Fees to be charged--general.
404.8 Fees to be charged--categories of requesters.
404.9 Miscellaneous fee provisions.
404.10 Waiver or reduction of charges.
Authority: 5 U.S.C. 552.
Source: 68 FR 8826, Feb. 26, 2003, unless otherwise noted.
Sec. 404.1 General.
This information is furnished for the guidance of the public and in
compliance with the requirements of section 552 of Title 5, United
States Code, as amended.
Sec. 404.2 Authority and functions.
The general functions of the American Battle Monuments Commission,
as provided by statute, 36 U.S.C. Section 2101, et seq., are to build
and maintain suitable memorials commemorating the service of American
Armed Forces and to maintain permanent American military cemeteries in
foreign countries.
Sec. 404.3 Organization.
(a) The brief description of the central organization of the
American Battle Monuments Commission follows:
(1) The Commission is composed of not more than 11 members appointed
by the President.
(2) The day to day operation of the Commission is under the
direction of a Secretary appointed by the President.
(3) Principal Officials include the Executive Director, Director of
Finance, Director of Procurement and Contracting, Director of
Engineering, Maintenance, and Operations and Director of Personnel and
Administration.
(4) The Commission also creates temporary offices when tasked with
major additional responsibilities not of a permanent nature.
(b) Locations. (1) The principal offices of the American Battle
Monuments Commission are located at Courthouse Plaza II, Suite 500, 2300
Clarendon Boulevard, Arlington, VA 22201. Persons desiring to visit
offices or employees of the American Battle Monuments Commission should
write or telephone ahead (703-696-6897 or 703-696-6895) to make an
appointment.
(2) Field offices are located in Paris, France; Rome, Italy; Manila,
Republic of the Philippines; the Republic of Panama; and Mexico City,
Mexico.
Sec. 404.4 Access to information.
(a) The American Battle Monuments Commission makes available
information pertaining to Commission matters
[[Page 39]]
within the scope of 5 U.S.C. 552(a)(2) by publishing them electronically
at the ABMC home page at http://www.abmc.gov.
(b) The ABMC FOIA Officer is responsible for acting on all initial
requests. Individuals wishing to file a request under the Freedom of
Information Act (FOIA) should address their request in writing to the
FOIA Officer, American Battle Monuments Commission, Courthouse Plaza II,
Suite 500, 2300 Clarendon Boulevard, Arlington, VA 22201 (telephone 703-
696-6897 or 703-696-6895). Requests for information shall be as specific
as possible.
(c) Upon receipt of any request for information or records, the FOIA
Officer will determine within 20 days (excepting Saturdays, Sundays and
legal public holidays) after the receipt of such request whether it is
appropriate to grant the request and will immediately provide written
notification to the person making the request. If the request is denied,
the written notification to the person making the request shall include
the names of the individuals who participated in the determination, the
reasons for the denial, and a notice that an appeal may be lodged within
the American Battle Monuments Commission. (Receipt of a request as used
herein means the date the request is received in the office of the FOIA
Officer.)
(d) Expedited processing. (1) Requests and appeals will be taken out
of order and given expedited treatment whenever it is determined that
they involve:
(i) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(ii) An urgency to inform the public about an actual or alleged
federal government activity, if made by a person primarily engaged in
disseminating information;
(iii) The loss of substantial due process rights; or
(iv) A matter of widespread and exceptional media interest in which
there exist possible questions about the government's integrity which
effect public confidence.
(2) A request for expedited processing may be made at the time of
the initial request for records or at any later time.
(3) A requester who seeks expedited processing must submit a
statement, certified to be true and correct to the best of that person's
knowledge and belief, explaining in detail the basis for requesting
expedited processing. For example, a requester within the category
described in paragraph (d)(1)(ii) of this section, if not a full-time
member of the news media, must establish that he or she is a person
whose main professional activity or occupation is information
dissemination, though it need not be his or her sole occupation. A
requester within the category (d)(1)(ii) of this section also must
establish a particular urgency to inform the public about the government
activity involved in the request, beyond the public's right to know
about government activity generally. The formality of certification may
be waived as a matter of administrative discretion.
(4) Within 10 days of its receipt of a request for expedited
processing, ABMC will decide whether to grant it and will notify the
requester of the decision. If a request for expedited treatment is
granted, the request will be given priority and will be processed as
soon as practicable. If a request for expedited processing is denied,
any appeal of that decision will be acted on expeditiously.
(e) Appeals shall be set forth in writing within 30 days of receipt
of a denial and addressed to the FOIA Officer at the address specified
in paragraph (b) of this section. The appeal shall include a statement
explaining the basis for the appeal. Determinations of appeals will be
set forth in writing and signed by the Executive Director, or his
designee, within 20 days (excepting Saturdays, Sundays, and legal public
holidays). If, on appeal, the denial is in whole or in part upheld, the
written determination will also contain a notification of the provisions
for judicial review and the names of the persons who participated in the
determination.
(f) In unusual circumstances, the time limits prescribed in
paragraphs (c) and (e) of this section may be extended for not more than
10 days (excepting Saturdays, Sundays, or legal public holidays).
Extensions may be
[[Page 40]]
granted by the FOIA Officer. The extension period may be split between
the initial request and the appeal but in no instance may the total
period exceed 10 working days. Extensions will be by written notice to
the persons making the request and will set forth the reasons for the
extension and the date the determination is expected.
(g) With respect to a request for which a written notice under
paragraph (f) of this section extends the time limits prescribed under
paragraph (c) of this section, the agency shall notify the person making
the request if the request cannot be processed within the time limit
specified in paragraph (f) of this section and shall provide the person
an opportunity to limit the scope of the request so that it may be
processed within that time limit or an opportunity to arrange with the
agency an alternative time frame for processing the request or a
modified request. Refusal by the person to reasonably modify the request
or arrange such an alternative time frame shall be considered as a
factor in determining whether exceptional circumstances exist for
purposes of 5 U.S.C. 552(a)(6)(C). When ABMC reasonably believes that a
requester, or a group of requestors acting in concert, has submitted
requests that constitute a single request, involving clearly related
matters, ABMC may aggregate those requests for purposes of this
paragraph. One element to be considered in determining whether a belief
would be reasonable is the time period over which the requests have
occurred.
(h) As used herein, but only to the extent reasonably necessary to
the proper processing of the particular request, the term unusual
circumstances means:
(1) The need to search for and collect the requested records from
establishments that are separated from the office processing the
request;
(2) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request; or
(3) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of the
agency which have a substantial subject matter interest therein.
Sec. 404.5 Inspection and copying.
When a request for information has been approved pursuant to Sec.
404.4, the person making the request may make an appointment to inspect
or copy the materials requested during regular business hours by writing
or telephoning the FOIA Officer at the address or telephone number
listed in Sec. 404.4(b). Such materials may be copied and reasonable
facilities will be made available for that purpose. Copies of individual
pages of such materials will be made available at the price per page
specified in Sec. 404.7(d); however, the right is reserved to limit to
a reasonable quantity the copies of such materials which may be made
available in this manner when copies also are offered for sale by the
Superintendent of Documents.
Sec. 404.6 Definitions.
For the purpose of these regulations:
(a) All the terms defined in the Freedom of Information Act apply.
(b) A statute specifically providing for setting the level of fees
for particular types of records (5 U.S.C. 552(a)(4)(A)(vi)) means any
statute that specifically requires a government agency, such as the
Government Printing Office (GPO) or the National Technical Information
Service (NTIS), to set the level of fees for particular types of
records, in order to:
(1) Serve both the general public and private sector organizations
by conveniently making available government information;
(2) Ensure that groups and individuals pay the cost of publications
and other services that are for their special use so that these costs
are not borne by the general taxpaying public;
(3) Operate an information dissemination activity on a self-
sustaining basis to the maximum extent possible; or
(4) Return revenue to the Treasury for defraying, wholly or in part,
appropriated funds used to pay the cost of disseminating government
information. Statutes, such as the User Fee
[[Page 41]]
Statute, which only provide a general discussion of fees without
explicitly requiring that an agency set and collect fees for particular
documents do not supersede the Freedom of Information Act under section
(a)(4)(A)(vi) of that statute.
(c) The term direct costs means those expenditures that ABMC
actually incurs in searching for and duplicating (and in the case of
commercial requesters, reviewing) documents to respond to a FOIA
request. Direct costs include, for example, the salary of the employee
performing work (the basic rate of pay for the employee plus 16 percent
of that rate to cover benefits) and the cost of operating duplicating
machinery. Not included in direct costs are overhead expenses such as
costs of space, and heating or lighting the facility in which the
records are stored.
(d) The term search means the process of looking for and retrieving
records or information responsive to a request. It includes page-by-page
or line-by-line identification of information within records and also
includes reasonable efforts to locate and retrieve information from
records maintained in electronic form or format. ABMC employees should
ensure that searching for material is done in the most efficient and
least expensive manner so as to minimize costs for both the agency and
the requester. For example, employees should not engage in line-by-line
search when merely duplicating an entire document would prove the less
expensive and quicker method of complying with a request. Search should
be distinguished, moreover, from review of material in order to
determine whether the material is exempt from disclosure (see paragraph
(f) of this section).
(e) The term duplication means the making of a copy of a document,
or of the information contained in it, necessary to respond to a FOIA
request. Such copies can take the form of paper, microform, audio-visual
materials, or electronic records (e.g., magnetic tape or disk), among
others. The requester's specified preference of form or format of
disclosure will be honored if the record is readily reproducible in that
format.
(f) The term review refers to the process of examining documents
located in response to a request that is for a commercial use (see
paragraph (g) of this section) to determine whether any portion of any
document located is permitted to be withheld. It also includes
processing any documents for disclosure, e.g., doing all that is
necessary to excise them and otherwise prepare them for release. Review
does not include time spent resolving general legal or policy issues
regarding the application of exemptions.
(g) The term commercial use request refers to a request from or on
behalf of one who seeks information for a use or purpose that furthers
the commercial, trade, or profit interests of the requester or the
person on whose behalf the request is made. In determining whether a
requester properly belongs in this category, ABMC must determine the use
to which a requester will put the documents requested. Moreover, where
an ABMC employee has reasonable cause to doubt the use to which a
requester will put the records sought, or where that use is not clear
from the request itself, the employee should seek additional
clarification before assigning the request to a specific category.
(h) The term educational institution refers to a preschool, a public
or private elementary or secondary school, an institution of graduate
higher education, an institution of undergraduate higher education, an
institution of professional education, or an institution of vocational
education, that operates a program or programs of scholarly research.
(i) The term non-commercial scientific institution refers to an
institution that is not operated on a commercial basis (as that term is
referenced in paragraph (g) of this section), and that is operated
solely for the purpose of conducting scientific research the results of
which are not intended to promote any particular product or industry.
(j) The term representative of the news media refers to any person
actively gathering news for an entity that is organized and operated to
publish or broadcast news to the public. The term news means information
that is about
[[Page 42]]
current events or that would be of current interest to the public.
Examples of news media entities include television or radio stations
broadcasting to the public at large, and publishers of periodicals (but
only in those instances when they can qualify as disseminators of news)
who make their products available for purchase or subscription by the
general public. These examples are not intended to be all-inclusive.
Moreover, as traditional methods of news delivery evolve (e.g.,
electronic dissemination of newspapers through telecommunications
services), such alternative media would be included in this category. In
the case of freelance journalists, they may be regarded as working for a
news organization if they can demonstrate a solid basis for expecting
publication through that organization, even though not actually employed
by it. A publication contract would be the clearest proof, but ABMC may
also look to the past publication record of a requester in making this
determination.
Sec. 404.7 Fees to be charged--general.
ABMC shall charge fees that recoup the full allowable direct costs
it incurs. Moreover, it shall use the most efficient and least costly
methods to comply with requests for documents made under the FOIA. When
documents that would be responsive to a request are maintained for
distribution by agencies operating statutory-based fee schedule programs
(see definition in Sec. 404.6(b)), such as the NTIS, ABMC should inform
requesters of the steps necessary to obtain records from those sources.
(a) Manual searches for records. ABMC will charge at the salary
rate(s) (i.e., basic pay plus 16 percent) of the employee(s) making the
search.
(b) Computer searches for records. ABMC will charge at the actual
direct cost of providing the service. This will include the cost of
operating the central processing unit (CPU) for that portion of
operating time that is directly attributable to searching for records
responsive to a FOIA request and operator/programmer salary
apportionable to the search.
(c) Review of records. Only requesters who are seeking documents for
commercial use may be charged for time spent reviewing records to
determine whether they are exempt from mandatory disclosure. Charges may
be assessed only for the initial review; i.e., the review undertaken the
first time ABMC analyzes the applicability of a specific exemption to a
particular record or portion of a record. Records or portions of records
withheld in full under an exemption that is subsequently determined not
to apply may be reviewed again to determine the applicability of other
exemptions not previously considered. The costs for such a subsequent
review is assessable.
(d) Duplication of records. Records will be duplicated at a rate of
$.15 per page. For copies prepared by computer, such as tapes or
printouts, ABMC shall charge the actual cost, including operator time,
of production of the tape or printout. For other methods of reproduction
or duplication, ABMC will charge the actual direct costs of producing
the document(s). If ABMC estimates that duplication charges are likely
to exceed $25, it shall notify the requester of the estimated amount of
fees, unless the requester has indicated in advance his willingness to
pay fees as high as those anticipated. Such a notice shall offer a
requester the opportunity to confer with agency personnel with the
object of reformulating the request to meet his or her needs at a lower
cost.
(e) Other charges. When it elects to charge them, ABMC will recover
the full costs of providing services such as:
(1) Certifying that records are true copies;
(2) Sending records by special methods such as express mail.
(3) Eight by ten inch black and white photographs--$3.75
(4) Eight by ten inch color photographs--$5.00
(5) $1.50 per publication
(6) Video Purchase: The Price of Freedom--$13.00
(f) Remittances shall be in the form either of a personal check or
bank draft drawn on a bank in the United States, or a postal money
order. Remittances shall be made payable to the order of the Treasury of
the United States and mailed to the FOIA Officer, American Battle
Monuments Commission, Courthouse Plaza II, Suite 500,
[[Page 43]]
2300 Clarendon Blvd., Arlington, Virginia 22201
(g) A receipt for fees paid will be given upon request. Refund of
fees paid for services actually rendered will not be made.
(h) Restrictions on assessing fees. With the exception of requesters
seeking documents for a commercial use, ABMC will provide the first 100
pages of duplication and the first 2 hours of search time without
charge. Moreover, ABMC will not charge fees to any requester, including
commercial use requesters, if the cost of collecting a fee would be
equal to or greater than the fee itself.
(1) The elements to be considered in determining the cost of
collecting a fee are the administrative costs of receiving and recording
a requester's remittance, and processing the fee for deposit in the
Treasury Department's special account.
(2) For purposes of these restrictions on assessment of fees, the
word pages refers to paper copies of 8\1/2\ x 11 or 11 x 14. Thus,
requesters are not entitled to 100 microfiche or 100 computer disks, for
example. A microfiche containing the equivalent of 100 pages or 100
pages of computer printout, does meet the terms of the restriction.
(3) Similarly, the term search time in this context has as its
basis, manual search. To apply this term to searches made by computer,
ABMC will determine the hourly cost of operating the central processing
unit and the operator's hourly salary plus 16 percent. When the cost of
search (including the operator time and the cost of operating the
computer to process a request) equals the equivalent dollar amount of
two hours of the salary of the person performing the search, i.e., the
operator, ABMC will begin assessing charges for computer search.
Sec. 404.8 Fees to be charged--categories of requesters.
There are four categories of FOIA requesters: commercial use
requesters; educational and noncommercial scientific institutions;
representatives of the news media; and all other requesters. The
specific levels of fees for each of these categories:
(a) Commercial use requesters. When ABMC receives a request for
documents for commercial use, it will assess charges that recover the
full direct costs of searching for, reviewing for release, and
duplicating the record sought. Requesters must reasonably describe the
records sought. Commercial use requesters are not entitled to 2 hours of
free search time nor 100 free pages of reproduction of documents. ABMC
may recover the cost of searching for and reviewing records even if
there is ultimately no disclosure of records (see paragraph (b) of this
section).
(b) Educational and noncommercial scientific institution requesters.
ABMC shall provide documents to requesters in this category for the cost
of reproduction alone, excluding charges for the first 100 pages. To be
eligible for inclusion in this category, requesters must show that the
request is being made as authorized by and under the auspices of a
qualifying institution and that the records are not sought for a
commercial use, but are sought in furtherance of scholarly (if the
request is from an educational institution) or scientific (if the
request is from a non-commercial scientific institution) research.
Requesters must reasonably describe the records sought.
(c) Requesters who are representatives of the news media. ABMC shall
provide documents to requesters in this category when serving the news
dissemination function for the cost of reproduction alone, excluding
charges for the first 100 pages. To be eligible for inclusion in this
category, a requester must meet the criteria in Sec. 404.4(j), and his
or her request must not be made for a commercial use. In reference to
this class of requester, a request for records supporting the news
dissemination function of the requester shall not be considered to be a
request that is for a commercial use. Requesters must reasonably
describe the records sought.
(d) All other requesters. ABMC shall charge requesters who do not
fit into any of the categories above fees that recover the full
reasonable direct cost of searching for and reproducing records that are
responsive to the request, except that the first 100 pages of
reproduction and the first 2 hours of
[[Page 44]]
search time shall be furnished without charge. Moreover, requests for
records about the requesters filed in ABMC's systems of records will
continue to be treated under the fee provisions of the Privacy Act of
1974 which permit fees only for reproduction. Requesters must reasonably
describe the records sought.
Sec. 404.9 Miscellaneous fee provisions.
(a) Charging interest--notice and rate. ABMC may begin assessing
interest charges on an unpaid bill starting on the 31st day following
the day on which the billing was sent. The fact that the fee has been
received by ABMC within the 30-day grace period, even if not processed,
will suffice to stay the accrual of interest. Interest will be at the
rate prescribed in section 3717 of Title 31 of the United States Code
and will accrue from the date of the billing.
(b) Charges for unsuccessful search. ABMC may assess charges for
time spent searching, even if it fails to locate the records or if
records located are determined to be exempt from disclosure. If ABMC
estimates that search charges are likely to exceed $25, it shall notify
the requester of the estimated amount of fees, unless the requester has
indicated in advance his willingness to pay fees as high as those
anticipated. Such a notice shall offer the requester the opportunity to
confer with agency personnel with the object of reformulating the
request to meet his or her needs at a lower cost.
(c) Aggregating requests. A requester may not file multiple requests
at the same time, each seeking portions of a document or documents,
solely in order to avoid payment of fees. When ABMC reasonably believes
that a requester, or a group of requestors acting in concert, has
submitted requests that constitute a single request, involving clearly
related matters, ABMC may aggregate those requests and charge
accordingly. One element to be considered in determining whether a
belief would be reasonable is the time period over which the requests
have occurred.
(d) Advance payments. ABMC may not require a requester to make an
advance payment, i.e., payment before work is commenced or continued on
a request, unless:
(1) ABMC estimates or determines that allowable charges that a
requester may be required to pay are likely to exceed $250. Then, ABMC
will notify the requester of the likely cost and obtain satisfactory
assurance of full payment where the requester has a history of prompt
payment of FOIA fees, or require an advance payment of an amount up to
the full estimated charges in the case of requesters with no history of
payment; or
(2) A requester has previously failed to pay a fee charged in a
timely fashion (i.e., within 30 days of the date of the billing). Then,
ABMC may require the requester to pay the full amount owed plus any
applicable interest as provided above or demonstrate that he or she has,
in fact, paid the fee, and to make an advance payment of the full amount
of the estimated fee before the agency begins to process a new request
or a pending request from that requester.
(3) When ABMC acts under paragraph (d)(1) or (2) of this section,
the administrative time limits prescribed in the FOIA, 5 U.S.C.
552(a)(6) (i.e., 20 working days from receipt of initial requests and 20
working days from receipt of appeals from initial denial, plus
permissible extensions of these time limits), will begin only after ABMC
has received fee payments described in paragraphs (d)(1) and (2) of this
section. Effect of the Debt Collection Act of 1982 (Pub. L. 97-365).
ABMC should comply with provisions of the Debt Collection Act, including
disclosure to consumer reporting agencies and use of collection
agencies, where appropriate, to encourage repayment.
Sec. 404.10 Waiver or reduction of charges.
Fees otherwise chargeable in connection with a request for
disclosure of a record shall be waived or reduced where it is determined
that disclosure is in the public interest because it is likely to
contribute significantly to public understanding of the operations or
activities of the Government and is not primarily in the commercial
interest of the requester.
[[Page 45]]
PART 406_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN
PROGRAMS OR ACTIVITIES CONDUCTED BY AMERICAN BATTLE MONUMENTS COMMISSION
--Table of Contents
Sec.
406.101 Purpose.
406.102 Application.
406.103 Definitions.
406.104-406.109 [Reserved]
406.110 Self-evaluation.
406.111 Notice.
406.112-406.129 [Reserved]
406.130 General prohibitions against discrimination.
406.131-406.139 [Reserved]
406.140 Employment.
406.141-406.148 [Reserved]
406.149 Program accessibility: Discrimination prohibited.
406.150 Program accessibility: Existing facilities.
406.151 Program accessibility: New construction and alterations.
406.152-406.159 [Reserved]
406.160 Communications.
406.161-406.169 [Reserved]
406.170 Compliance procedures.
406.171-406.999 [Reserved]
Authority: 29 U.S.C. 794.
Source: 51 FR 4577, Feb. 5, 1986, unless otherwise noted.
Sec. 406.101 Purpose.
This part effectuates section 119 of the Rehabilitation,
Comprehensive Services, and Developmental Disabilities Amendments of
1978, which amended section 504 of the Rehabilitation Act of 1973 to
prohibit discrimination on the basis of handicap in programs or
activities conducted by Executive agencies or the United States Postal
Service.
Sec. 406.102 Application.
This part applies to all programs or activities conducted by the
agency.
Sec. 406.103 Definitions.
For purposes of this part, the term--
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, Brailled materials,
audio recordings, telecommunications devices and other similar services
and devices. Auxiliary aids useful for persons with impaired hearing
include telephone handset amplifiers, telephones compatible with hearing
aids, telecommunication devices for deaf persons (TDD's), interpreters,
notetakers, written materials, and other similar services and devices.
Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties shall
describe or identify (by name, if possible) the alleged victims of
discrimination.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
Handicapped person means any person who has a physical or mental
impairment that substantially limits one or more major life activities,
has a record of such an impairment, or is regarded as having such an
impairment.
As used in this definition, the phrase:
(1) Physical or mental impairment includes--
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one of more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term physical or mental impairment
includes, but is not limited
[[Page 46]]
to, such diseases and conditions as orthopedic, visual, speech, and
hearing impairments, cerebral palsy, epilepsy, muscular dystrophy,
multiple sclerosis, cancer, heart disease, diabetes, mental retardation,
emotional illness, and drug addition and alcholism.
(2) Major life activities includes functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means--
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as constituting
such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in subparagraph (1) of
this definition but is treated by the agency as having such an
impairment.
Qualified handicapped person means--
(1) With respect to any agency program or activity under which a
person is required to perform services or to achieve a level of
accomplishment, a handicapped person who meets the essential eligibility
requirements and who can achieve the purpose of the program or activity
without modifications in the program or activity that the agency can
demonstrate would result in a fundamental alteration in its nature; or
(2) With respect to any other program or activity, a handicapped
person who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity.
(3) Qualified handicapped person is defined for purposes of
employment in 29 CFR 1613.702(f), which is made applicable to this part
by Sec. 406.140.
Section 504 means section 504 of the Rehabilitation Act of 1973
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617),
and the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used
in this part, section 504 applies only to programs or activities
conducted by Executive agencies and not to federally assisted programs.
[51 FR 4577, Feb. 5, 1986; 51 FR 7543, Mar. 5, 1986]
Sec. Sec. 406.104-406.109 [Reserved]
Sec. 406.110 Self-evaluation.
(a) The agency shall, by April 9, 1987, evaluate its current
policies and practices, and the effects thereof, that do not or may not
meet the requirements of this part, and, to the extent modification of
any such policies and practices is required, the agency shall proceed to
make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons,
including handicapped persons or organizations representing handicapped
persons, to participate in the self-evaluation process by submitting
comments (both oral and written).
(c) The agency shall, until three years following the completion of
the self-evaluation, maintain on file and make available for public
inspections:
(1) A description of areas examined and any problems identified, and
(2) A description of any modifications made.
Sec. 406.111 Notice.
The agency shall make available to employees, applicants,
participants, beneficiaries, and other interested persons such
information regarding the provisions of this part and its applicability
to the programs or activities conducted by the agency, and make such
information available to them in such manner as the head of the agency
finds necessary to apprise such persons of the protections against
discrimination assured them by section 504 and this regulation.
[[Page 47]]
Sec. Sec. 406.112-406.129 [Reserved]
Sec. 406.130 General prohibitions against discrimination.
(a) No qualified handicapped person shall, on the basis of handicap,
be excluded from participation in, be denied the benefits of, or
otherwise be subjected to discrimination under any program or activity
conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap--
(i) Deny a qualified handicapped person the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualfied handicapped person an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified handicapped person with an aid, benefit,
or service that is not as effective in affording equal opportunity to
obtain the same result, to gain the same benefit, or to reach the same
level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
handicapped persons or to any class of handicapped persons than is
provided to others unless such action is necessary to provide qualified
handicapped persons with aid, benefits, or services that are as
effective as those provided to others;
(v) Deny a qualified handicapped person the opportunity to
participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified handicapped person in the enjoyment
of any right, privilege, advantage, or opportunity enjoyed by others
receiving the aid, benefit, or service.
(2) The agency may not deny a qualified handicapped person the
opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) The agency may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would--
(i) Subject qualified handicapped persons to discrimination on the
basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to handicapped persons.
(4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would--
(i) Exclude handicapped persons from, deny them the benefits of, or
otherwise subject them to discrimination under any program or activity
conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to handicapped persons.
(5) The agency, in the selection of procurement contractors, may not
use criteria that subject qualified handicapped persons to
discrimination on the basis of handicap.
(c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to handicapped
persons or the exclusion of a specific class of handicapped persons from
a program limited by Federal statute or Executive order to a different
class of handicapped persons is not prohibited by this part.
(d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified handicapped
persons.
Sec. Sec. 406.131-406.139 [Reserved]
Sec. 406.140 Employment.
No qualified handicapped person shall, on the basis of handicap, be
subjected to discrimination in employment under any program or activity
conducted by the agency. The definitions, requirements, and procedures
of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613, shall apply to employment in federally conducted programs or
activities.
[[Page 48]]
Sec. Sec. 406.141-406.148 [Reserved]
Sec. 406.149 Program accessibility: Discrimination prohibited.
Except as otherwise provided in Sec. 406.150, no qualified
handicapped person shall, because the agency's facilities are
inaccessible to or unusable by handicapped persons, be denied the
benefits of, be excluded from participation in, or otherwise be
subjected to discrimination under any program or activity conducted by
the agency.
Sec. 406.150 Program accessibility: Existing facilities.
(a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by handicapped persons. This paragraph does
not--
(1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by handicapped persons; or
(2) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden of
proving that compliance with Sec. 406.150(a) would result in such
alteration or burdens. The decision that compliance would result in such
alteration or burdens must be made by the agency head or his or her
designee after considering all agency resources available for use in the
funding and operation of the conducted program or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action would result in such an alteration or such
burdens, the agency shall take any other action that would not result in
such an alteration or such burdens but would nevertheless ensure that
handicapped persons receive the benefits and services of the program or
activity.
(b) Methods. The agency may comply with the requirements of this
section through such means as redesign of equipment, reassignment of
services to accessible buildings, assignment of aides to beneficiaries,
home visits, delivery of services at alternate accessible sites,
alteration of existing facilities and construction of new facilities,
use of accessible rolling stock, or any other methods that result in
making its programs or activities readily accessible to and usable by
handicapped persons. The agency is nor required to make structural
changes in existing facilities where other methods are effective in
achieving compliance with this section. The agency, in making
alterations to existing buildings, shall meet accessibility requirements
to the extent compelled by the Architectural Barriers Act of 1968, as
amended (42 U.S.C. 4151-4157), and any regulations implementing it. In
choosing among available methods for meeting the requirements of this
section, the agency shall give priority to those methods that offer
programs and activities to qualified handicapped persons in the most
integrated setting appropriate.
(c) Time period for compliance. The agency shall comply with the
obligations established under this section by June 6, 1986, except that
where structural changes in facilities are undertaken, such changes
shall be made by April 7, 1989, but in any event as expeditiously as
possible.
(d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
agency shall develop, by October 7, 1986, a transition plan setting
forth the steps necessary to complete such changes. The agency shall
provide an opportunity to interested persons, including handicapped
persons or organizations representing handicapped persons, to
participate in the development of the transition plan by submitting
comments (both oral and written). A copy of the transition plan shall be
made available for public inspection. The plan shall, at a minimum--
(1) Identify physical obstacles in the agency's facilities that
limit the accessibility of its programs or activities to handicapped
persons;
[[Page 49]]
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the official responsible for implementation of the
plan.
[51 FR 4577, Feb. 5, 1986; 51 FR 7543, Mar. 5, 1986]
Sec. 406.151 Program accessibility: New construction and alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the agency shall be designed,
constructed, or altered so as to be readily accessible to and usable by
handicapped persons. The definitions, requirements, and standards of the
Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41
CFR 101-19.600 to 101-19.607, apply to buildings covered by this
section.
Sec. Sec. 406.152-406.159 [Reserved]
Sec. 406.160 Communications.
(a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where
necessary to afford a handicapped person an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
handicapped person.
(ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the agency communicates with applicants and beneficiaries
by telephone, telecommunication devices for deaf persons (TDD's) or
equally effective telecommunication systems shall be used.
(b) The agency shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The agency shall provide signage at a primary entrance to each
of its inaccessible facilities, directing users to a location at which
they can obtain information about accessible facilities. The
international symbol for accessibility shall be used at each primary
entrance of an accessible facility.
(d) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and administrative
burdens. In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with Sec. 406.160 would
result in such alteration or burdens. The decision that compliance would
result in such alteration or burdens must be made by the agency head or
his or her designee after considering all agency resources available for
use in the funding and operation of the conducted program or activity,
and must be accompanied by a written statement of the reasons for
reaching that conclusion. If an action required to comply with this
section would result in such an alteration or such burdens, the agency
shall take any other action that would not result in such an alteration
or such burdens but would nevertheless ensure that, to the maximum
extent possible, handicapped persons receive the benefits and services
of the program or activity.
Sec. Sec. 406.161-406.169 [Reserved]
Sec. 406.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
handicap in programs or activities conducted by the agency.
(b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity
[[Page 50]]
Commission in 29 CFR part 1613 pursuant to section 501 of the
Rehabilitation Act of 1973 (29 U.S.C. 791).
(c) The Director, Personnel and Administration shall be responsible
for coordinating implementation of this section. Complaints may be sent
to the Director, Personnel and Administration, American Battle Monuments
Commission, Room 5127, Pulaski Building, 20 Massachusetts Ave., NW.,
Washington, DC 20314.
(d) The agency shall accept and investigate all complete complaints
for which it has jurisdiction. All complete complaints must be filed
within 180 days of the alleged act of discrimination. The agency may
extend this time period for good cause.
(e) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate government
entity.
(f) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily
accessible to and usable by handicapped persons.
(g) Within 180 days of the receipt of a complete complaint for which
it has jurisdiction, the agency shall notify the complainant of the
results of the investigation in a letter containing--
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found;
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt from
the agency of the letter required by Sec. 406.170(g). The agency may
extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the head of
the agency.
(j) The head of the agency shall notify the complainant of the
results of the appeal within 60 days of the receipt of the request. If
the head of the agency determines that additional information is needed
from the complainant, he or she shall have 60 days from the date of
receipt of the additional information to make his or her determination
on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section
may be extended with the permission of the Assistant Attorney General.
(l) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies, except that the authority for
making the final determination may not be delegated to another agency.
[51 FR 4577, Feb. 5, 1986, as amended at 51 FR 4577, Feb. 5, 1986]
Sec. Sec. 406.171-406.999 [Reserved]
PARTS 407-499 [RESERVED]
[[Page 51]]
CHAPTER V--SMITHSONIAN INSTITUTION
--------------------------------------------------------------------
Part Page
504 Rules and regulations governing Smithsonian
Institution buildings and grounds....... 53
520 Rules and regulations governing the
buildings and grounds of the National
Zoological Park of the Smithsonian
Institution............................. 55
530 Claims against the Smithsonian Institution
including the National Gallery of Art,
the John F. Kennedy Center for the
Performing Arts and the Woodrow Wilson
International Center for Scholars....... 57
531-599 [Reserved]
[[Page 53]]
PART 504_RULES AND REGULATIONS GOVERNING SMITHSONIAN INSTITUTION BUILDINGS
AND GROUNDS--Table of Contents
Sec.
504.1 General.
504.2 Recording presence.
504.3 Preservation of property.
504.4 Conformity with signs and emergency directions.
504.5 Nuisances.
504.6 Gambling.
504.7 Intoxicating beverages and narcotics.
504.8 Soliciting, vending, debt collection, and distribution of
handbills.
504.9 Placards, signs, banners and flags.
504.10 Dogs and other animals.
504.11 Photographs for news, advertising, or commercial purposes.
504.12 Items to be checked.
504.13 Vehicular and pedestrian traffic.
504.14 Weapons and explosives.
504.15 Nondiscrimination.
504.16 Penalties.
Authority: Secs. 1-9, 65 Stat. 634, as amended, secs. 1-4, 78 Stat.
365; 40 U.S.C. 193n-193w.
Source: 33 FR 6656, May 1, 1968, unless otherwise noted.
Sec. 504.1 General.
These rules and regulations apply to all buildings and grounds of
the Smithsonian Institution, as defined in section 3, 78 Stat. 366; 40
U.S.C. 193v(1) (A) and (C), and to all persons entering in or on such
buildings and grounds, hereinafter referred to as the premises
Sec. 504.2 Recording presence.
Except as otherwise ordered, Smithsonian buildings shall be closed
to the public after normal visiting hours. Such buildings, or portions
thereof, shall also be closed to the public in emergency situations and
at such other times as may be necessary for the orderly conduct of
business. Whenever the buildings are closed to the public for any
reason, visitors will immediately leave the premises upon being
requested by a guard or other authorized individuals. Admission to such
premises during periods when closed to the public will be limited to
authorized individuals who will be required to register and identify
themselves when requested by guards or other authorized individuals.
Sec. 504.3 Preservation of property.
It is unlawful willfully to destroy, damage, or remove property or
any part thereof. Any parcels, portfolios, bags, or containers of any
kind may be required to be opened and the contents identified prior to
removal from the premises. In order to remove any property from the
premises, a properly completed property pass signed by an authorized
official of the Smithsonian Institution may be required prior to
removal.
Sec. 504.4 Conformity with signs and emergency directions.
Persons in or on the premises shall comply with official signs of a
prohibitory or directory nature and with the directions of authorized
individuals.
Sec. 504.5 Nuisances.
The use of loud, abusive, or otherwise improper language;
unwarranted loitering, sleeping or assembly; the creation of any hazard
to persons or things; improper disposal of rubbish; spitting, prurient
prying; the commission of any obscene or indecent act, or any other
unseemly or disorderly conduct on the premises; throwing articles of any
kind from or within a building; or climbing upon any part of a building
is prohibited.
Sec. 504.6 Gambling.
Participating in games for money or other personal property or the
operation of gambling devices, the conduct of a lottery or pool, or the
selling or purchasing of numbers tickets in or on the premises is
prohibited.
Sec. 504.7 Intoxicating beverages and narcotics.
Entering the premises or the operating of a motor vehicle thereon by
a person under the influence of any intoxicating beverage or narcotic
drug or the use of such drug in or on the premises is prohibited.
Consumption of intoxicating beverages on the premises is prohibited
unless officially authorized.
[[Page 54]]
Sec. 504.8 Soliciting, vending, debt collection, and distribution of
handbills
The soliciting of alms and contributions, commercial soliciting and
vending of all kinds, the display or distribution of commercial
advertising, or the collecting of private debts, in or on the premises
is prohibited. This rule does not apply to national or local drives for
funds for welfare, health, and other purposes sponsored or approved by
the Smithsonian Institution concessions, or personal notices posted by
employees on authorized bulletin boards. Distribution of material such
as pamphlets, handbills, and flyers is prohibited without prior approval
of authorized individuals.
Sec. 504.9 Placards, signs, banners and flags.
The displaying or carrying of placards, signs, banners, or flags is
prohibited unless officially authorized.
Sec. 504.10 Dogs and other animals.
Dogs and other animals, except seeing-eye dogs, shall not be brought
upon the premises for other than official purposes.
Sec. 504.11 Photographs for news, advertising, or commercial purposes.
No photographs for advertising or any other commercial purpose may
be taken on the premises unless officially authorized.
Sec. 504.12 Items to be checked.
Umbrellas, canes (not needed to assist in walking), or other objects
capable of inflicting damage to property or exhibits may be required to
be checked in buildings where checking facilities are provided.
Sec. 504.13 Vehicular and pedestrian traffic.
(a) Drivers of all vehicles in or on the premises shall drive in a
careful and safe manner at all times and shall comply with the signals
and directions of the guards and all posted traffic signs.
(b) The blocking of entrances, driveways, walks, loading platforms,
or fire hydrants in or on property is prohibited. Parking without
authority, or parking in unauthorized locations or in locations reserved
for other persons or contrary to the direction of posted signs, is
prohibited. This paragraph may be supplemented from time to time by the
issuance and posting of such additional traffic and parking directives
as may be required, and such directives shall have the same force and
effect as if made a part thereof.
Sec. 504.14 Weapons and explosives.
No person while on the premises shall carry firearms, other
dangerous or deadly weapons, or explosives, either openly or concealed,
except for official purposes.
Sec. 504.15 Nondiscrimination.
There shall be no discrimination by segregation or otherwise against
any person or persons because of race, religion, color, or national
origin in furnishing or by refusing to furnish to such person or persons
the use of any facility of a public nature, including all services,
privileges, accommodations, and activities provided thereby on the
premises.
Sec. 504.16 Penalties.
Section 6 of the Smithsonian Institution Special Policing Statute,
Act of October 24, 1951, 65 Stat. 635, 40 U.S.C. 193(s) states that:
Whoever violates any provision of sections 193o-193q of this Title,
or any regulation prescribed under section 193r of this Title, shall be
fined not more than $100 or imprisoned not more than sixty days, or
both, prosecution for such offenses to be had in the District of
Columbia Court of General Sessions, upon information by the U.S.
attorney or any of his assistants: Provided, That in any case where, in
the commission of such offense, property is damaged in an amount
exceeding $100, the amount of the fine for the offense may be not more
than $5,000, the period of imprisonment for the offense may be not more
than 5 years and prosecution shall be had in the U.S. District Court for
the District of Columbia by indictment, or if the defendant, after he
has been advised of the nature of the charge and of his rights, waives
in open court prosecution by indictment, by information by the U.S.
attorney or any of his assistants.
[[Page 55]]
PART 520_RULES AND REGULATIONS GOVERNING THE BUILDINGS AND GROUNDS OF THE
NATIONAL ZOOLOGICAL PARK OF THE SMITHSONIAN INSTITUTION--Table of Contents
Sec.
520.1 General.
520.2 Recording presence.
520.3 Preservation of property.
520.4 Protection of zoo animals.
520.5 Conformity with signs and emergency directions.
520.6 Nuisances.
520.7 Gambling.
520.8 Intoxicating beverages and narcotics.
520.9 Soliciting, vending, debt collection, and distribution of
handbills.
520.10 Placards, signs, banners, and flags.
520.11 Dogs and other animals.
520.12 Photographs for news, advertising, or commercial purposes.
520.13 Items to be checked.
520.14 Vehicular and pedestrian traffic.
520.15 Weapons and explosives.
520.16 Nondiscrimination.
520.17 Lost and found.
520.18 Penalties.
Authority: Secs. 1-9, 65 Stat. 634, as amended, secs. 1-4, 78 Stat.
365; 40 U.S.C. 193n-193w.
Source: 33 FR 17175, Nov. 20, 1968, unless otherwise noted.
Sec. 520.1 General.
The rules and regulations in this part apply to all buildings and
grounds of the National Zoological Park of the Smithsonian Institution,
as defined in sec. 3, 78 Stat. 366; 40 U.S.C. 193v(1)(B), and to all
persons entering in or on such buildings and grounds, hereinafter
referred to as the premises.
Sec. 520.2 Recording presence.
Except as otherwise ordered, National Zoological Park buildings and
grounds shall be closed to the public after posted visiting hours. Such
buildings and grounds, or portions thereof, shall be also closed to the
public in emergency situations and at such other times as may be
necessary for the orderly conduct of business. Whenever the buildings
and grounds or portions thereof are closed to the public for any reason,
visitors will immediately leave the premises upon being requested by a
police officer or other authorized individual. Admission to such
premises during periods when closed to the public will be limited to
authorized individuals who will be required to register and identify
themselves when requested by police officers or other authorized
individuals.
Sec. 520.3 Preservation of property.
It is unlawful willfully to destroy, damage, or remove property or
any part thereof. Any parcels, portfolios, bags, or containers of any
kind may be required to be opened and the contents identified prior to
removal from the premises. In order to remove any property from the
premises, a properly completed property pass signed by an authorized
official of the National Zoological Park may be required prior to
removal.
Sec. 520.4 Protection of zoo animals.
Except for official purposes, no person shall:
(a) Kill, injure, or disturb any exhibit or research animal by any
means except to secure personal safety;
(b) Pet, attempt to pet, handle, move, or remove exhibit or research
animals;
(c) Feed exhibit or research animals, except in strict accordance
with authorized signs;
(d) Catch, attempt to catch, trap, remove, or kill any free roaming
animals inhabiting the premises;
(e) Go over, under, between, or otherwise cross any guardrail,
fence, moat, wall, or any other safety barrier; or to seat, stand, or
hold children over any of the above-mentioned barriers;
(f) Throw or toss rocks, or any other missiles into, from, or while
on premises;
(g) Bring strollers, baby carriages, or other conveyances, except
wheel chairs, into exhibit buildings and public restrooms;
(h) Engage in ball games, or any athletic activity, except in places
as may be officially designated for such purposes;
(i) Smoke or carry lighted cigarettes, cigars, or pipes into exhibit
buildings, or to have a fire of any kind on the premises; or
(j) Damage, deface, pick, or remove any herb, shrub, bush, tree, or
turf, or portion thereof, on the premises.
[[Page 56]]
Sec. 520.5 Conformity with signs and emergency directions.
Persons in or on the premises shall comply with official signs of a
prohibitory or directory nature and with the directions of authorized
individuals.
Sec. 520.6 Nuisances.
The use of loud, abusive, or otherwise improper language;
unwarranted loitering, sleeping or assembly; the creation of any hazard
to persons or things; improper disposal of rubbish; spitting; prurient
prying; the commission of any obscene or indecent act, or any other
unseemly or disorderly conduct on the premises; throwing articles of any
kind on the premises, or climbing upon any part of the building is
prohibited.
Sec. 520.7 Gambling.
Participating in games for money or other personal property or the
operation of gambling devices, the conduct of a lottery or pool, or the
selling or purchasing of numbers tickets in or on the premises is
prohibited.
Sec. 520.8 Intoxicating beverages and narcotics.
Entering the premises or the operating of a motor vehicle thereon by
a person under the influence of any intoxicating beverage or narcotic
drug or the use of such drug in or on the premises is prohibited.
Consumption of intoxicating beverages on the premises is prohibited,
unless officially authorized.
Sec. 520.9 Soliciting, vending, debt collection, and distribution of
handbills.
The soliciting of alms and contributions, commercial soliciting and
vending of all kinds, the display or distribution of commercial
advertising or the collecting of private debts, in or on the premises is
prohibited. This rule does not apply to national or local drives for
funds for welfare, health, and other purposes sponsored or approved by
the National Zoological Park, concessions, or personal notices posted by
employees on authorized bulletin boards. Distribution of material such
as pamphlets, handbills, and flyers is prohibited without prior approval
of authorized individuals.
Sec. 520.10 Placards, signs, banners, and flags.
The displaying or carrying of placards, signs, banners, or flags is
prohibited unless officially authorized.
Sec. 520.11 Dogs and other animals.
Dogs and other animals, except seeing-eye dogs, shall not be brought
upon the premises for other than official purposes unless confined to
automobiles.
Sec. 520.12 Photographs for news, advertising, or commercial purposes.
No photographs for advertising or any other commercial purpose may
be taken on the premises unless officially authorized.
Sec. 520.13 Items to be checked.
Umbrellas, canes (not needed to assist in walking), or other objects
capable of inflicting damage to property or exhibits may be required to
be checked at the police station where checking facilities are provided.
Sec. 520.14 Vehicular and pedestrian traffic.
(a) Drivers of all vehicles in or on the premises shall drive in a
careful and safe manner at all times and shall comply with the signals
and directions of the police and all posted traffic signs.
(b) The blocking of entrances, driveways, walks, loading platforms,
or fire hydrants in or on property is prohibited. Parking without
authority, or parking in unauthorized locations or in locations reserved
for other persons or contrary to the direction of posted signs, is
prohibited. This paragraph may be supplemented from time to time by the
issuance and posting of such additional traffic and parking directives
as may be required, and such directives shall have the same force and
effect as if made a part thereof.
Sec. 520.15 Weapons and explosives.
No person while on the premises shall carry firearms, other
dangerous or deadly weapons, or explosives, either openly or concealed,
except for official purposes, nor shall any person discharge or set off
any firework or explosive of any nature on the premises.
[[Page 57]]
Sec. 520.16 Nondiscrimination.
There shall be no discrimination by segregation or otherwise against
any person or persons because of race, religion, color, or national
origin in furnishing or by refusing to furnish to such person or persons
the use of any facility of a public nature, including all services,
privileges, accommodations, and activities provided thereby on the
premises.
Sec. 520.17 Lost and found.
(a) Lost articles or money which are found in areas covered by this
part shall be immediately referred to the police station. Proper records
shall be kept at Police Headquarters of the receipt and disposition of
such articles. If an article or money found on park areas and referred
to Zoo Police Headquarters is not claimed by the owner within a period
of 60 days, it shall be returned to the finder and appropriate receipt
obtained; except that in the case of National Zoological Park employees,
articles or money turned in which are not claimed by the owner within 60
days shall be considered as abandoned to the Smithsonian Institution.
Such articles or money shall be transferred to the Treasurer of the
Smithsonian Institution, who shall make suitable disposition of articles
and remit all proceeds of such disposition and all unclaimed money into
the unrestricted funds of the Smithsonian Institution.
(b) The abandonment of any personal property in any of the park
areas is prohibited.
Sec. 520.18 Penalties.
Section 6 of the Smithsonian Institution Special Policing Statute,
Act of October 24, 1951, 65 Stat. 635, 40 U.S.C. 193 (s) states that:
Whoever violates any provision of sections 193o-193q of this title,
or any regulation prescribed under section 193r of this Title, shall be
fined not more than $100 or imprisoned not more than 60 days, or both,
prosecution for such offenses to be had in the District of Columbia
Court of General Sessions, upon information by the United States
attorney or any of his assistants: Provided, That in any case where, in
the commission of such offense, property is damaged in an amount
exceeding $100, the amount of the fine for the offense may be not more
than $5,000, the period of imprisonment for the offense may be not more
than 5 years and prosecution shall be had in the U.S. District Court for
the District of Columbia by indictment, or if the defendant, after he
has been advised of the nature of the charge and of his rights, waives
in open court prosecution by indictment, by information by the U.S.
attorney or any of his assistants.
PART 530_CLAIMS AGAINST THE SMITHSONIAN INSTITUTION INCLUDING THE NATIONAL
GALLERY OF ART, THE JOHN F. KENNEDY CENTER FOR THE PERFORMING ARTS AND THE
WOODROW WILSON INTERNATIONAL CENTER FOR SCHOLARS--Table of Contents
Authority: 20 U.S.C. 41, et seq.
Sec. 530.1 Tort claims.
The Smithsonian Institution (which encompasses the National Gallery
of Art, the John F. Kennedy Center for the Performing Arts and the
Woodrow Wilson International Center for Scholars) falls within the
purview of the Federal Tort Claims Act. Internal procedures for
implementing the Act follow the current general guidance issued by the
U.S. Department of Justice in 28 CFR part 14. Information on specific
claims procedures can be obtained as follows:
(a) Smithsonian Institution: Office of the General Counsel,
Smithsonian Institution, Washington, DC 20560.
(b) National Gallery of Art: Administrator, National Gallery of Art,
Washington, DC 20565.
(c) John F. Kennedy Center for the Performing Arts: Director of
Operations, John F. Kennedy Center for the Performing Arts, Washington,
DC 20566.
(d) Woodrow Wilson International Center for Scholars: Assistant
Director for Administration, Woodrow Wilson International Center for
Scholars, Smithsonian Institution, Washington, DC 20560.
[49 FR 9421, Mar. 13, 1984]
PARTS 531-599 [RESERVED]
[[Page 59]]
CHAPTER VI [RESERVED]
CHAPTER VII--LIBRARY OF CONGRESS
--------------------------------------------------------------------
Editorial Note: The regulations in this chapter VII were formerly
codified in 44 CFR chapter V.
Part Page
701 Procedures and services..................... 61
702 Conduct on Library premises................. 65
703 Disclosure or production of records or
information............................. 69
704 National Film Registry of the Library of
Congress................................ 76
705 Reproduction, compilation, and distribution
of news transmissions under the
provisions of the American Television
and Radio Archives Act.................. 76
706-799 [Reserved]
[[Page 61]]
PART 701_PROCEDURES AND SERVICES--Table of Contents
Sec.
701.1 Information about the Library.
701.2 Acquisition of Library material by non-purchase means.
701.3 Methods of disposition of surplus and/or duplicate materials.
701.4 Contracting Officers.
701.5 Policy on authorized use of the Library name, seal, or logo.
Authority: 2 U.S.C. 136; 18 U.S.C. 1017.
Source: 69 FR 39838, July 1, 2004, unless otherwise noted.
Sec. 701.1 Information about the Library.
(a) Information about the Library. It is the Library's policy to
furnish freely information about the Library to the media. All requests
from the media, for other than generally published information and
Library records, should be referred to the Public Affairs Office. For
information about access to, service of, and employment with the Library
of Congress, go to http://www.loc.gov.
(b) Public Affairs Office. The Public Affairs Office shall have the
principal responsibility for responding to requests for information
about the Library from representatives of the media; giving advice to
Library officers and staff members on public-relations and public-
information matters; keeping the Librarian and other officers informed
of important developments in this field; and promoting the resources and
activities of the Library.
(1) During regular office hours (8:30 a.m. to 5 p.m.) telephone
operators shall refer requests for information, from the media only,
about the Library to the Public Affairs Office. All other requests for
information shall be referred to the National Reference Service or other
appropriate offices of the Library.
(2) All other Library offices and staff members who receive
inquiries directly from representatives of the media for information
about the Library, other than generally published information, shall
refer such inquiries to the Public Affairs Office.
(3) The Public Affairs Office shall respond directly to inquiries
concerning the Library, calling upon other offices to supply information
to it as necessary, or shall arrange for other offices or staff members,
as appropriate, to supply such information directly and report back to
Public Affairs after the contact has been made. Requests for Library of
Congress records, however, shall be made in accordance with 36 CFR part
703.
(4) When the Public Affairs Office is closed (evenings, Saturdays,
Sundays, and holidays), requests from the media for information about
the Library shall be referred to the Public Affairs Officer at his/her
home. In the event that person is not available, inquiries shall be
referred to the Acting Public Affairs Officer, or, in turn, a designated
public affairs specialist.
(c) Other Library Units and Staff Members. All Other Library Units
and Staff Members shall be responsible for keeping the Public Affairs
Office fully and promptly informed of contacts with the press, except in
those instances of routine reference inquiries; supplying the Public
Affairs Office with any data it requires in order to respond to
inquiries from representatives of the media; and reporting promptly to
the Public Affairs Office substantive contacts with media
representatives about the Library and its policies or activities.
Sec. 701.2 Acquisition of Library material by non-purchase means.
(a) Gifts. It is the policy of the Library of Congress to foster the
enrichment of its collections through gifts of materials within the
terms of the Library's acquisitions policies. In implementing this
policy, division chiefs and other authorized officers of the Library may
undertake, as representatives of the Library, preliminary negotiations
for gifts to the Library. However, responsibility for formal acceptance
of gifts of material and for approval of conditions of such gifts rests
with The Librarian of Congress or his designee. The Chief, African/Asian
Acquisitions and Overseas Operations Division, Chief, Anglo-American
Acquisitions Division, and Chief, European and Latin American
Acquisitions Division are responsible for routine gifts in the
geographic areas covered by their divisions.
[[Page 62]]
(b) Deposits. (1) The Anglo-American Acquisitions Division is the
only division in the Library authorized to make technical arrangements,
formally negotiate for the transportation of materials and conditions of
use at the Library, and prepare written Agreements of Deposit to
formalize these negotiations. The term ``deposit'' is used to mean
materials which are placed in the custody of the Library for general use
on its premises, but which remain the property of their owners during
the time of deposit and until such time as title in them may pass to the
Library of Congress. A deposit becomes the permanent property of the
Library when title to it is conveyed by gift or bequest. A deposit may
be withdrawn by the owner rather than conveyed to the Library. A deposit
shall be accompanied by a signed Agreement of Deposit.
(2) It is the policy of the Library of Congress to accept certain
individual items or special collections as deposits when: permanent
acquisition of such materials cannot be effected immediately; the
depositors give reasonable assurance of their intention to donate the
materials deposited to the United States of America for the benefit of
the Library of Congress; the Library of Congress determines that such
ultimate transfer of title will enrich its collections; and the
depositors agree that the materials so deposited may be available for
unrestricted use or use in the Library under reasonable restrictions.
(c) Conditional Gifts of Material to the Library. In cases where
donors wish to attach conditions of use, negotiating officers cannot
commit the Library to acceptance of such conditions. The Librarian of
Congress or designee will consult the appropriate division and service
unit officers and the General Counsel to ascertain whether the
conditions are generally acceptable.
Sec. 701.3 Methods of disposition of surplus and/or duplicate materials.
(a) Exchange. All libraries may make selections on an exchange basis
from the materials available in the ``Exchange/Transfer'' category. The
policy governing these selections is that exchange be made only when
materials of approximately equal value are expected to be furnished in
return within a reasonable period. Dealers also may negotiate exchanges
of this type for items selected from available exchange materials, but
surplus copyright deposit copies of works published after 1977 shall not
knowingly be exchanged with dealers. Offers of exchange submitted by
libraries shall be submitted to the Chief of the African/Asian
Acquisitions and Overseas Operations Division, Anglo-American
Acquisitions Division, or European/Latin American Acquisitions Division,
or their designees, as appropriate, who shall establish the value of the
material concerned. Offers from dealers shall be referred to the Chief
of the Anglo-American Acquisitions Division. Exchange offers involving
materials valued at $1,000 or more must be approved by the Acquisitions
Division Chief; offers of $10,000 or more must be approved by the
Director for Acquisitions and Support Services; and offers of $50,000 or
more must be approved by the Associate Librarian for Library Services.
The Library also explicitly reserves the right to suspend, for any
period of time it deems appropriate, the selection privileges of any
book dealer who fails to comply fully with any rules prescribed for the
disposal of library materials under this section or any other pertinent
regulations or statutes.
(b) Transfer of materials to Government Agencies. Library materials
no longer needed by the Library of Congress, including the exchange use
mentioned above, shall be available for transfer to Federal agency
libraries or to the District of Columbia Public Library, upon the
request of appropriate officers of such entities, and may be selected
from both the ``Exchange/Transfer'' and ``Donation'' categories.
Existing arrangements for the transfer of materials, such as the
automatic transfer of certain classes of books, etc., to specified
Government libraries, shall be continued unless modified by the Library.
(c) Donations of Library materials to educational institutions,
public bodies, and nonprofit tax-exempt organizations in the United
States. It is the Library's policy, in keeping with the Federal Property
and Administrative Services Act of 1949, 40 U.S.C. 471 et seq., which
[[Page 63]]
does not cover the Library of Congress, to use materials no longer
needed for any of the purposes mentioned above to strengthen the
educational resources of the Nation by enriching the book collections of
educational institutions (full-time, tax-supported or nonprofit schools,
school systems, colleges, universities, museums, and public libraries),
public bodies (agencies of local, State, or Federal Government), and
nonprofit tax-exempt organizations (section 501 of the Internal Revenue
Code of 1954, 26 U.S.C. 501, by authorizing the Anglo-American
Acquisitions Division to donate to such groups in the United States any
materials selected by their representatives. Eligibility to participate
in the donation program shall be limited as defined by procedures
established by the Anglo-American Acquisitions Division.
(d) Disposition of residue. Library materials not needed for the
collections of the Library, for its exchange and transfer programs, for
sale, or for donation, and which, in the opinion of the Chief, Anglo-
American Acquisitions Division, have no commercial value, may be turned
over to the General Services Administration (GSA) to be disposed of in
accordance with standard Government practice.
Sec. 701.4 Contracting Officers.
While the Librarian of Congress may sign any agreement, certain
other offices of the Library have been delegated authority to contract
for materials and services on behalf of the Library of Congress. Contact
the Office of the General Counsel of the Library at 202-707-6316 for
information on specific delegations.
Sec. 701.5 Policy on authorized use of the Library name, seal, or logo.
(a) Purpose. The purpose of this part is three-fold:
(1) To assure that the Library of Congress is properly and
appropriately identified and credited as a source of materials in
publications.
(2) To assure that the name or logo of the Library of Congress, or
any unit thereof, is used only with the prior approval of the Librarian
of Congress or his designee; and
(3) To assure that the seal of the Library of Congress is used only
on official documents or publications of the Library.
(b) Definitions. (1) For the purposes of this part, publication
means any tangible expression of words or thoughts in any form or
format, including print, sound recording, television, optical disc,
software, online delivery, or other technology now known or hereinafter
created. It includes the whole range of tangible products from simple
signs, posters, pamphlets, and brochures to books, television
productions, and movies.
(2) Internal Library publication means a publication over which any
unit of the Library has complete or substantial control or
responsibility.
(3) Cooperative publications are those in which the Library is a
partner with the publisher by terms of a cooperative publishing
agreement.
(4) Commercial publications are those known or likely to involve
subsequent mass distribution, whether by a for-profit or not-for-profit
organization or individual, which involve a cooperative agreement. A
commercial publication can also include a significant number of LC
references and is also approved by the LC office that entered into a
formal agreement. Noncommercial publications are those which are
produced by non-commercial entities.
(5) Internet sites are those on-line entities, both commercial and
non-commercial, that have links to the Library's site.
(6) Library logo refers to any official symbol of the Library or any
entity thereof and includes any design officially approved by the
Librarian of Congress for use by Library officials.
(7) Seal refers to any statutorily recognized seal.
(c) Credit and recognition policy. (1) The name ``Library of
Congress,'' or any abbreviation or subset such as ``Copyright Office''
or ``Congressional Research Service,'' thereof, is used officially to
represent the Library of Congress and its programs, projects, functions,
activities, or elements thereof. The use of the Library's name,
explicitly or implicitly to endorse a product
[[Page 64]]
or service, or materials in any publication is prohibited, except as
provided for in this part.
(2) The Library of Congress seal symbolizes the Library's authority
and standing as an official agency of the U.S. Government. As such, it
shall be displayed only on official documents or publications of the
Library. The seal of the Library of Congress Trust Fund Board shall be
affixed to documents of that body as prescribed by the Librarian of
Congress. The seal of the National Film Preservation Board shall be
affixed to documents of that body as prescribed by the Librarian of
Congress. Procedures governing the use of any Library of Congress logo
or symbol are set out below. Any person or organization that uses the
Library Seal or the Seal of the Library of Congress Trust Fund Board in
a manner other than as authorized by the provisions of this section
shall be subject to the criminal provisions of 18 U.S.C. 1017.
(3) Questions regarding the appropriateness of the use of any
Library logos or symbols, or the use of the Library's name, shall be
referred to the Public Affairs Officer.
(4) Cooperative Ventures. (i) Individual, commercial enterprises or
non-commercial entities with whom the Library has a cooperative
agreement to engage in cooperative efforts shall be instructed regarding
Library policy on credit, recognition, and endorsement by the officer or
manager with whom they are dealing.
(ii) Ordinarily, the Library logo should appear in an appropriate
and suitable location on all cooperative publications. The Library
requires that a credit line accompany reproductions of images from its
collections and reflect the nature of the relationship such as
``published in association with * * *.''
(iii) The size, location, and other attributes of the logo and
credit line should be positioned in such a way that they do not imply
Library endorsement of the publication unless such endorsement is
expressly intended by the Library, as would be the case in cooperative
activities. Use of the Library name or logo in any context suggesting an
explicit or implicit endorsement may be approved in only those instances
where the Library has sufficient control over the publication to make
changes necessary to reflect Library expertise.
(iv) Library officers working on cooperative projects shall notify
all collaborators of Library policy in writing if the collaboration is
arranged through an exchange of correspondence. All uses of the Library
of Congress's name, seal or logo on promotional materials must be
approved by the Public Affairs Officer, in consultation with the Office
of the General Counsel, in advance. A statement of Library policy shall
be incorporated into the agreement if the terms of the collaboration are
embodied in any written instrument, such as a contract or letter of
understanding. The statement could read as follows:
Name of partner recognizes the great value, prestige and goodwill
associated with the name, ``Library of Congress'' and any logo
pertaining thereto. Name of partner agrees not to knowingly harm,
misuse, or bring into disrepute the name or logo of the Library of
Congress, and further to assist the Library, as it may reasonably
request, in preserving all rights, integrity and dignity associated with
its name. Subject to the Library's prior written approval over all
aspects of the use and presentation of the Library's name and logo, the
Name of Partner may use the name of the Library of Congress in
connection with publication, distribution, packaging, advertising,
publicity and promotion of the ------------, produced as a result of
this Agreement. The Library will have fifteen (15) business days from
receipt of Name of partner's written request to approve or deny with
comment such requests for use of its name or logo.
(d) Noncommercial Users. Library officers assisting individuals who
are noncommercial users of Library resources shall encourage them to
extend the customary professional courtesy of acknowledging their
sources in publications, including films, television, and radio, and to
use approved credit lines.
(1) Each product acquired for resale by the Library that involves
new labeling or packaging shall bear a Library logo and shall contain
information describing the relevance of the item to the Library or its
collections. Items not involving new packaging shall be accompanied by a
printed description of the Library and its mission, with Library logo,
as well as the rationale for
[[Page 65]]
operating a gift shop program in a statement such as, ``Proceeds from
gift shop sales are used to support the Library collections and to
further the Library's educational mission.''
(2) Electronic Users. Links to other sites from the Library of
Congress's site should adhere to the Appropriate Use Policy for External
Linking in the Internet Policies and Procedures Handbook. Requests for
such linkage must be submitted to the Public Affairs Office for review
and approval.
(3) Office Systems Services shall make available copies of the
Library seal or logo in a variety of sizes and formats, including
digital versions, if use has been approved by the Public Affairs
Officer, in consultation with the Office of General Counsel.
(4) Each service unit head shall be responsible for devising the
most appropriate way to carry out and enforce this policy in
consultation with the General Counsel and the Public Affairs Officer.
(e) Prohibitions and Enforcement. (1) All violations, or suspected
violations, of this part, shall be reported to the Office of the General
Counsel as soon as they become known. Whoever, except as permitted by
laws of the U.S., or with the written permission of the Librarian of
Congress or his designee, falsely advertises or otherwise represents by
any device whatsoever that his or its business, product, or service has
been in any way endorsed, authorized, or approved by the Library of
Congress shall be subject to criminal penalties pursuant to law.
(2) Whenever the General Counsel has determined that any person or
organization is engaged in or about to engage in an act or practice that
constitutes or will constitute conduct prohibited by this part or a
violation of any requirement of this part, the General Counsel shall
take whatever steps are necessary, including seeking the assistance of
the U.S. Department of Justice, to enforce the provisions of the
applicable statutes and to seek all means of redress authorized by law,
including both civil and criminal penalties.
PART 702_CONDUCT ON LIBRARY PREMISES--Table of Contents
Sec.
702.1 Applicability.
702.2 Conduct on Library premises.
702.3 Demonstrations.
702.4 Photographs.
702.5 Gambling.
702.6 Alcoholic beverages and controlled substances.
702.7 Weapons and explosives.
702.8 Use and carrying of food and beverages in Library buildings.
702.9 Inspection of property.
702.10 Protection of property.
702.11 Smoking in Library buildings.
702.12 Space for meetings and special events.
702.13 Soliciting, vending, debt collection, and distribution of
handbills.
702.14 Penalties.
Authority: Sec. 1, 29 Stat. 544; 2 U.S.C. 136.
Source: 69 FR 39840, July 1, 2004, unless otherwise noted.
Sec. 702.1 Applicability.
The rules and regulations in this part apply to all Federal property
under the charge and control of the Librarian of Congress and to all
persons entering in or on such property.
Sec. 702.2 Conduct on Library premises.
(a) All persons using the premises shall conduct themselves in such
manner as not to affect detrimentally the peace, tranquility, and good
order of the Library. Such persons shall:
(1) Use areas that are open to them only at the times those areas
are open to them and only for the purposes for which those areas are
intended;
(2) Comply with any lawful order of the police or of other
authorized individuals; and
(3) Comply with official signs of a restrictive or directory nature.
(b) All persons using the premises shall refrain from:
(1) Creating any hazard to oneself or another person or property,
such as by tampering with fire detection and/or security equipment and
devices, by fighting, by starting fires, or by throwing or deliberately
dropping any breakable article, such as glass, pottery, or any sharp
article, or stones or other missiles;
[[Page 66]]
(2) Using Library facilities for living accommodation purposes, such
as unauthorized bathing, sleeping, or storage of personal belongings,
regardless of the specific intent of the individual;
(3) Engaging in inordinately loud or noisy activities;
(4) Disposing of rubbish other than in receptacles provided for that
purpose;
(5) Throwing articles of any kind from or at a Library building or
appurtenance;
(6) Committing any obscene or indecent act such as prurient prying,
indecent exposure, and soliciting for illegal purposes;
(7) Removing, defacing, damaging, or in any other way so misusing a
statue, seat, wall, fountain, or other architectural feature or any
tree, shrub, plant, or turf;
(8) Stepping upon or climbing upon any statue, fountain, or other
ornamental architectural feature or any tree, shrub, or plant;
(9) Bathing, wading, or swimming in any fountain;
(10) Painting, marking or writing on, or posting or otherwise
affixing any handbill or sign upon any part of a Library building or
appurtenance, except on bulletin boards installed for that purpose and
with the appropriate authorization;
(11) Bringing any animal onto Library buildings and turf other than
dogs trained to assist hearing or visually impaired persons;
(12) Threatening the physical well-being of an individual; and
(13) Unreasonably obstructing reading rooms, food service
facilities, entrances, foyers, lobbies, corridors, offices, elevators,
stairways, or parking lots in such manner as to impede or disrupt the
performance of official duties by the Library staff or to prevent
Library patrons from using or viewing the collections.
(c) Public reading rooms, research facilities, and catalog rooms are
designated as nonpublic forums. As such, they shall be used only for
quiet scholarly research or educational purposes requiring use of
Library materials. All persons using these areas shall comply with the
rules in effect in the various public reading rooms, shall avoid
disturbing other readers, and shall refrain from engaging in disruptive
behavior, including but not limited to (1) Eating, drinking, or smoking
in areas where these activities are expressly prohibited;
(2) Using loud language or making disruptive noises;
(3) Using any musical instrument or device, loudspeaker, sound
amplifier, or other similar machine or device for the production or
reproduction of sound, except for devices to assist hearing or visually
impaired persons, without authorization;
(4) Interfering by offensive personal hygiene with the use of the
area by other persons;
(5) Spitting, defecating, urinating, or similar disruptive
activities;
(6) Intentionally abusing the furniture or furnishings in the area;
(7) Intentionally damaging any item from the collections of the
Library of Congress or any item of Library property;
(8) Using computing terminals for purposes other than searching or
training persons to search the Library's data bases or those under
contract to the Library, or misusing the terminals by intentional
improper or obstructive searching; and
(9) Using the Library's photocopy machines or microfilm reader-
printers for purposes other than copying Library materials, for copying
that violates the copyright law (Title 17 U.S.C.), or for copying in
violation of posted usage restrictions, e.g., ``staff only.''
(10) Performing any other inappropriate or illegal act, such as
accessing or showing child pornography, online or otherwise on Library
premises; and
(11) failing to wear appropriate clothing in Library facilities,
including, but not limited to, footwear (shoes or sandals) and shirts.
(12) any behavior or interaction by a member of the public that
unnecessarily hinders staff from performing the Library's public service
functions.
Sec. 702.3 Demonstrations.
(a) Library buildings and grounds are designated as limited public
forums, except for those areas designated as nonpublic forums. However,
only Library grounds (defined in 2 U.S.C. 167j),
[[Page 67]]
not buildings, may be utilized for demonstrations, including assembling,
marching, picketing, or rallying. In addition, as the need for the
determination of other matters arises, the Librarian will determine what
additional First Amendment activities may not be permitted in a limited
public forum. In making such determination, The Librarian will consider
only whether the intended activity is incompatible with the primary
purpose and intended use of that area.
(b) The Director, Integrated Support Services, shall designate
certain Library grounds as available for demonstrations. Persons seeking
to use such designated areas for the purpose of demonstrations shall
first secure written permission from the Director, Integrated Support
Services. An application for such permission shall be filed with
Facility Services no later than four business days before the time of
the proposed demonstration and shall include:
(1) The name of the organization(s) or sponsor(s) of the
demonstration;
(2) The contact person's name and telephone number;
(3) The proposed purpose of the demonstration;
(4) The proposed location of the demonstration;
(5) The date and hour(s) planned for the demonstration;
(6) The anticipated number of demonstrators;
(7) A concise statement detailing arrangements for the prompt
cleanup of the site after the demonstration;
(8) Any request for permission to use loudspeakers, microphones, or
other amplifying devices, hand held or otherwise; and
(9) A signed agreement by the applicant(s) to comply with Library
regulations and terms and conditions established for the demonstration.
(c) Upon receipt of an application, Facility Services shall forward
the application, along with any comments and recommendations, to the
Director, Integrated Support Services, within one business day of the
office's receipt of said application. The Director, Integrated Support
Services, shall respond to the request within three business days of his
or her receipt of said application. The Director, Integrated Support
Services, shall request advice from the Office of the General Counsel on
any legal questions arising from said application.
(d) Permission to demonstrate shall be based upon:
(1) The availability of the requested location;
(2) The likelihood that the demonstration will not interfere with
Library operations or exceed city noise limitations as defined by
District of Columbia regulations; and
(3) The likelihood that the demonstration will proceed peacefully in
the event that a volatile situation in the United States or abroad might
lead to a potentially harmful threat toward the Capitol complex,
including Library buildings and grounds.
Sec. 702.4 Photographs.
(a) The policy set out herein applies to all individuals who are
photographing Library of Congress buildings.
(b) Special permission is not required for photographing public
areas, if no tripods, lights or other specialized equipment is used.
Public areas do not include reading rooms, exhibition areas or other
areas where photographing is prohibited by signage.
(c) For all other photographing, requests for permission must be
made at least one week prior to the photographing. The Director of
Communications, or his/her designee, is authorized to grant or deny
permission, in writing, to photograph the interior of Library buildings
and may set the conditions under which the photographing may take place.
Such conditions may include provision for a fee for services rendered
consistent with the Library's policies and procedures for the revolving
fund under 2 U.S.C. 182b.
Sec. 702.5 Gambling.
Participation in any illegal gambling, such as the operation of
gambling devices, the conduct of an illegal pool or lottery, or the
unauthorized sale or purchase of numbers or lottery tickets, on the
premises is prohibited.
[[Page 68]]
Sec. 702.6 Alcoholic beverages and controlled substances.
(a) The use of alcoholic beverages on the premises is prohibited
except on official occasions for which advance written approval has been
given and except for concessionaires to whom Library management has
granted permission to sell alcoholic beverages on the premises.
(b) The illegal use or possession of controlled substances on the
premises is prohibited.
Sec. 702.7 Weapons and explosives.
Except where duly authorized by law, and in the performance of law
enforcement functions, no person shall carry firearms, other dangerous
or deadly weapons, or explosives, either openly or concealed, while on
the premises.
Sec. 702.8 Use and carrying of food and beverages in Library buildings.
Consumption of food and beverages in Library buildings is prohibited
except at point of purchase or other authorized eating places. Under no
circumstances may food or beverages be carried to the bookstacks or
other areas where there exists significant risk to Library materials or
property or where there may result a detraction from the dignity or
efficiency of public service.
Sec. 702.9 Inspection of property.
(a) Individuals entering Library buildings do so with the
understanding that all property in their possession including, but not
limited to, suitcases, briefcases, large envelopes, packages, and office
equipment may be inspected.
(b) Upon entering the Library buildings privately owned office
machines including but not limited to typewriters, computing machines,
stenotype machines, and dictating machines, shall be registered with the
police officer at the entrance to buildings for the purpose of
controlling such equipment.
(c) In the discharge of official duties, Library officials are
authorized to inspect Government-owned or furnished property assigned to
readers and the general public for their use, such as cabinets, lockers,
and desks. Unauthorized property or contraband found in the possession
of members of the Library staff, readers, or the general public as a
result of such inspections will be subject to confiscation by Library
officials.
Sec. 702.10 Protection of property.
(a) Any person who shall steal, wrongfully deface, injure, mutilate,
tear, or destroy library materials, or any portion thereof, shall be
punished by a fine of not more than $1,000 or imprisoned not more than 3
years, or both (18 U.S.C. 641; 18 U.S.C. 1361; 18 U.S.C. 2071).
(b) Any person who embezzles, steals, purloins, or, without
authority, disposes of anything of value of the United States, or
willfully injures or commits any depredation against any Government
property shall be punished by a fine of not more than $10,000 or
imprisoned not more than 10 years, or both; but if the value of such
property does not exceed the sum of $100, he shall be fined not more
than $1,000 or imprisoned not more than 1 year, or both. (18 U.S.C. 641;
18 U.S.C. 1361.)
Sec. 702.11 Smoking in Library buildings.
Smoking in Library areas is prohibited except in those areas
specifically designated for this purpose.
Sec. 702.12 Space for meetings and special events.
Information about the use of space for meeting and special events at
the Library can be found at http://www.loc.gov/about/facilities/
index.html, or by accessing the Library's home page at http://
www.loc.gov and following the link ``About the Library'' to ``Event
Facilities.''
Sec. 702.13 Soliciting, vending, debt collection, and distribution of
handbills.
(a) The soliciting of alms and contributions, commercial soliciting
and vending of all kinds, the display or distribution of commercial
advertising, the offering or exposing of any article for sale, or the
collecting of private debts on the grounds or within the buildings of
the Library is prohibited. This rule does not apply to national or local
drives for funds for welfare, health, or other purposes sponsored or
[[Page 69]]
approved by The Librarian of Congress, nor does it apply to authorized
concessions, vending devices in approved areas, or as specifically
approved by the Librarian or designee.
(b) Distribution of material such as pamphlets, handbills, and
flyers is prohibited without prior approval.
(c) Peddlers and solicitors will not be permitted to enter Library
buildings unless they have a specific appointment, and they will not be
permitted to canvass Library buildings.
Sec. 702.14 Penalties.
(a) Persons violating provisions of 2 U.S.C. 167a to 167e,
inclusive, regulations promulgated pursuant to 2 U.S.C. 167f, this part
702, or other applicable Federal laws relating to the Library's
property, including its collections, are subject to removal from the
premises, to arrest, and to any additional penalties prescribed by law.
(b) Upon written notification by the Director of Security,
disruptive persons may be denied further access to the premises and may
be prohibited from further use of the Library's facilities.
(1) Within three workdays of receipt of such notification, an
affected individual may make a written request, including the reasons
for such a request, to the Director of Security for a reconsideration of
said notification.
(2) The Director of Security shall respond within three workdays of
receipt of such request for reconsideration and may, at his or her
option, rescind, modify, or reaffirm said notification.
(c) Readers who violate established conditions and/or procedures for
using material are subject to penalties to be determined by or in
consultation with the unit head responsible for the custody of the
material used.
(1) When a reader violates a condition and/or procedure for using
material, the division chief or head of the unit where the infraction
occurred may, upon written notification, deny further access to the
material, or to the unit in which it is housed, to be determined by the
nature of the infraction and the material involved.
(2) Within five workdays of receipt of such notification, the reader
may make a written request, including the reasons for such request to
the Associate Librarian for that service unit, or his/her designee, for
a reconsideration of said notification.
(3) The Associate Librarian for that service unit, or his/her
designee, shall respond within five workdays of receipt of such request
for reconsideration and may rescind, modify, or reaffirm said
notification, as appropriate.
(4) Repeated violations of established conditions and/or procedures
for using material may result in denial of further access to the
premises and further use of the Library's facilities or revocation of
the reader's User Card, in accordance with established access
regulations.
(5) Mutilation or theft of Library property also may result in
criminal prosecution, as set forth in 18 U.S.C. 641, 1361, and 2071; and
22 D.C. Code 3106.
(6) In certain emergency situations requiring prompt action, the
division chief or head of the unit where the infraction occurred may
immediately deny further access to the material or unit prior to
formally taking written action. In such cases, the reader shall be
notified, in writing, within three days of the action taken and the
reasons therefor. The reader then may request reconsideration.
(7) A copy of any written notification delivered pursuant to this
part shall be forwarded to the Captain, Library Police, the service
unit, and the Director, Integrated Support Services, for retention.
PART 703_DISCLOSURE OR PRODUCTION OF RECORDS OR INFORMATION
--Table of Contents
Subpart A_Availability of Library of Congress Records
Sec.
703.1 Purpose and scope of this subpart.
703.2 Policy.
703.3 Administration responsibilities.
703.4 Definitions.
703.5 Records exempt from disclosure.
703.6 Procedures for access to and copying of records.
703.7 Public reading facility.
703.8 Fees and charges.
[[Page 70]]
Appendix A to Subpart A--Fees and Charges for Services Provided to
Requestors of Record
Subpart B_testimony by Employees and Production of Documents in Certain
Legal Proceedings Where the Library Is Not a Party
703.15 Purpose and scope of this subpart.
703.16 Policy on presentation of testimony and production of documents.
703.17 Procedures when testimony and/or documents are demanded.
703.18 Procedures when an employee's appearance is demanded or documents
are demanded.
703.19 Requests for authenticated copies of Library documents.
703.20 File copies.
703.21 Effect of this part.
703.22 Where to serve demands.
Authority: 2 U.S.C. 136.
Source: 67 FR 16019, Apr. 4, 2002, unless otherwise noted.
Subpart A_Availability of Library of Congress Records
Sec. 703.1 Purpose and scope of this subpart.
(a) This subpart implements the policy of the Library with respect
to the public availability of Library of Congress records. Although the
Library is not subject to the Freedom of Information Act, as amended (5
U.S.C. 552), this subpart follows the spirit of that Act consistent with
the Library's duties, functions, and responsibilities to the Congress.
The application of that Act to the Library is not to be inferred, nor
should this subpart be considered as conferring on any member of the
public a right under that Act of access to or information from the
records of the Library. Nothing in this subpart modifies current
instructions and practices in the Library with respect to handling
Congressional correspondence.
(b) The Copyright Office, although a service unit of the Library, is
by law (17 U.S.C. 701) subject to the provisions of the Freedom of
Information Act, as amended, only for purposes of actions taken under
the copyright law. The Copyright Office has published its own regulation
with respect to the general availability of information (see 37 CFR
201.2) and requests for copyright records made pursuant to the Freedom
of Information Act (see 37 CFR 203.1 et seq.) and the Privacy Act (see
37 CFR 204.1 et seq.).
Sec. 703.2 Policy.
(a) Subject to limitations set out in this part, Library of Congress
records shall be available as hereinafter provided and shall be
furnished as promptly as possible within the Library to any member of
the public at appropriate places and times and for an appropriate fee,
if any.
(b) The Library shall not provide records from its files that
originate in another federal agency or non-federal organization to
persons who may not be entitled to obtain the records from the
originator. In such instances, the Library shall refer requesters to the
agency or organization that originated the records.
(c) In order to avoid disruption of work in progress, and in the
interests of fairness to those who might be adversely affected by the
release of information which has not been fully reviewed to assure its
accuracy and completeness, it is the policy of the Library not to
provide records which are part of on-going reviews or other current
projects. In response to such requests, the Library will inform the
requester of the estimated completion date of the review or project so
that the requester may then ask for the records. At that time, the
Library may release the records unless the same are exempt from
disclosure as identified in Sec. 703.5.
Sec. 703.3 Administration responsibilities.
The administration of this part shall be the responsibility of the
Chief, Office Systems Services (OSS), Library of Congress, 101
Independence Avenue, SE., Washington, DC 20540-9440, and to that end,
the Chief may promulgate such supplemental rules or guidelines as may be
necessary.
Sec. 703.4 Definitions.
(a) Records includes all books, papers, maps, photographs, reports,
and other documentary materials, exclusive of materials in the Library's
collections, regardless of physical form or characteristics, made or
received and under the control of the Library in pursuance
[[Page 71]]
of law or in connection with the transaction of public business, and
retained, or appropriate for retention, by the Library as evidence of
the organization, functions, policies, decisions, procedures,
operations, or other activities of the government or because of the
informational value of data contained therein. The term refers only to
such items in being and under the control of the Library. It does not
include the compiling or procuring of a record, nor does the term
include objects or articles, such as furniture, paintings, sculpture,
three-dimensional models, structures, vehicles, and equipment.
(b) Identifiable means a reasonably specific description of a
particular record sought, such as the date of the record, subject
matter, agency or person involved, etc. which will permit location or
retrieval of the record.
(c) Records available to the public means records which may be
examined or copied or of which copies may be obtained, in accordance
with this part, by the public or representatives of the press regardless
of interest and without specific justification.
(d) Disclose or disclosure means making available for examination or
copying, or furnishing a copy.
(e) Person includes an individual, partnership, corporation,
association, or public or private organization other than a federal
agency.
Sec. 703.5 Records exempt from disclosure.
(a) The public disclosure of Library records provided for by this
part does not apply to records, or any parts thereof, within any of the
categories set out below. Unless precluded by law, the Chief, OSS,
nevertheless may release records within these categories, except for
Congressional correspondence and other materials identified in Sec.
703.5(b)(1), after first consulting with the General Counsel.
(b) Records exempt from disclosure under this part are the
following:
(1) Congressional correspondence and other materials relating to
work performed in response to or in anticipation of Congressional
requests, unless authorized for release by officials of the Congress.
(2) Materials specifically authorized under criteria established by
Executive Order to be withheld from public disclosure in the interest of
national defense or foreign policy and that are properly classified
pursuant to Executive Orders.
(3) Records related solely to the internal personnel rules and
practices of the Library. This category includes, in addition to
internal matters of personnel administration, internal rules and
practices which cannot be disclosed without prejudice to the effective
performance of a Library function, such as guidelines and procedures
used by auditors, investigators, or examiners in the Office of the
Inspector General.
(4) Records specifically exempted from disclosure by statute,
provided that such statute:
(i) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or
(ii) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld.
(5) Records containing trade secrets and commercial or financial
information obtained from a person as privileged or confidential. This
exemption may include, but is not limited to, business sales statistics,
inventories, customer lists, scientific or manufacturing processes or
development information.
(6) Personnel and medical files and similar files the disclosure of
which could constitute a clearly unwarranted invasion of personal
privacy. This exemption includes all private or personal information
contained in files compiled to evaluate candidates for security
clearances.
(7) Materials and information contained in investigative or other
records compiled for law enforcement purposes.
(8) Materials and information contained in files prepared in
connection with government litigation and adjudicative proceedings,
except for those portions of such files which are available by law to
persons in litigation with the Library.
(9) Records having information contained in or related to
examination, operation, or condition reports prepared
[[Page 72]]
by, on behalf of, or for the use of an agency responsible for the
regulation or supervision of financial institutions.
(10) Inter-agency or intra-agency memoranda, letters or other
materials that are part of the deliberative process, the premature
disclosure of which would inhibit internal communications or be
detrimental to a Library function (e.g., case files in the Manuscript
Division).
(11) Records containing information customarily subject to
protection as privileged in a court or other proceedings such as
information protected by the doctor-patient, attorney work product, or
attorney-client privilege.
(12) Information submitted by a person to the Library in confidence
or which the Library has obligated itself not to disclose such as
information received by the Office of the Inspector General through its
hotline.
(13) Materials related to specific patron use of the Library's
collections, resources, or facilities either on site or off site. This
exemption includes:
(i) Reader Records. Library records which identify readers by name,
such as registration records, reading room logs or registers, telephone
inquiry logs, and charge slips, if retained for administrative purposes.
(ii) Use Records. Users of the Library are entitled to privacy with
respect to their presence and use of the Library's facilities and
resources. Records pertaining to the use of the Library and of Library
collections and subjects of inquiry are confidential and are not to be
disclosed either to other readers, to members of the staff who are not
authorized, or to other inquirers including officials of law
enforcement, intelligence, or investigative agencies, except pursuant to
court order or administratively by order of the Librarian of Congress.
(c) Any reasonably segregable portion of a record shall be provided
to anyone requesting such records after deletion of the portions which
are exempt under this section. A portion of a record shall be considered
reasonably segregable when segregation can produce an intelligible
record which is not distorted out of context, does not contradict the
record being withheld, and can reasonably provide all relevant
information.
Sec. 703.6 Procedure for access to and copying of records.
(a) A request to inspect or obtain a copy of an identifiable record
of the Library of Congress shall be submitted in writing to the Chief,
OSS, Library of Congress, 101 Independence Avenue, SE., Washington, DC
20540-9440, who shall promptly record and process the request.
(b) Requests for records shall be specific and shall identify the
precise records or materials that are desired by name, date, number, or
other identifying data sufficient to allow the OSS staff to locate,
retrieve, and prepare the record for inspection or copying and to delete
exempted matter where appropriate to do so. Blanket or generalized
requests (such as ``all matters relating to'' a general subject) shall
not be honored and shall be returned to the requester.
(c) Records shall be available for inspection and copying in person
during business hours.
(d) Records in media other than print (e.g., microforms and machine-
readable media) shall be available for inspection in the medium in which
they exist. Copies of records in machine-readable media shall be made in
media determined by the Chief, OSS.
(e) Library staff shall respond to requests with reasonable
dispatch. Use of a record by the Library or Library employees, however,
shall take precedence over any request. Under no circumstances shall
official records be removed from Library control without the written
authorization of the Librarian.
(f) The Chief, OSS, shall make the initial determination on whether:
(1) The record described in a request can be identified and located
pursuant to a reasonable search, and
(2) The record (or portions thereof) may be made available or
withheld from disclosure under the provisions of this part. In making
the initial determinations, the Chief shall consult with any unit in the
Library having a continuing substantial interest in the record
requested. Where the Chief finds no valid objection or doubt as to the
[[Page 73]]
propriety of making the requested record available, the Chief shall
honor the request upon payment of prescribed fees, if any are required
by Sec. 703.8.
(g) If the Chief, OSS, determines that a requested record should be
withheld, the Chief shall inform the requester in writing that the
request has been denied; shall identify the material withheld; and shall
explain the basis for the denial. The Chief shall inform the requester
that further consideration of the denied request may be obtained by a
letter to the General Counsel setting out the basis for the belief that
the denial of the request was unwarranted.
(h) The General Counsel shall make the final determination on any
request for reconsideration and shall notify the requester in writing of
that determination. The decision of the General Counsel shall be the
final administrative review within the Library.
(1) If the General Counsel's decision reverses in whole or in part
the initial determination by the Chief, OSS, the Chief shall make the
requested record, or parts thereof, available to the requester, subject
to the provisions of Sec. 703.8.
(2) If the General Counsel's decision sustains in whole or in part
the initial determination by the Chief, OSS, the General Counsel shall
explain the basis on which the record, or portions thereof, will not be
made available.
Sec. 703.7 Public Reading Facility.
(a) The Chief, OSS, shall maintain a reading facility for the public
inspection and copying of Library records. This facility shall be open
to the public from 8:30 a.m. to 4:30 p.m., except Saturdays, Sundays,
holidays, and such other times as the Library shall be closed to the
public.
(b) The General Counsel shall advise the Chief, OSS, of the records
to be available in the public reading facility following consultation
with the Library managers who may be concerned.
Sec. 703.8 Fees and charges.
(a) The Library will charge no fees for:
(1) Access to or copies of records under the provisions of this part
when the direct search and reproduction costs are less than $10.
(2) Records requested which are not found or which are determined to
be exempt under the provisions of this part.
(3) Staff time spent in resolving any legal or policy questions
pertaining to a request.
(4) Copies of records, including those certified as true copies,
that are furnished for official use to any officer or employee of the
federal government.
(5) Copies of pertinent records furnished to a party having a direct
and immediate interest in a matter pending before the Library, when
furnishing such copies is necessary or desirable to the performance of a
Library function.
(b) When the costs for services are $10 or more, the Chief, OSS,
shall assess and collect the fees and charges set out in appendix A to
this part for the direct costs of search and reproduction of records
available to the public.
(c) The Chief, OSS, is authorized to waive fees and charges, in
whole or in part, where it is determined that the public interest is
best served to do so, because waiver is likely to contribute
significantly to public understanding of the operations or activities of
the government and is not primarily in the commercial interest of the
requester. Persons seeking a waiver or reduction of fees may be required
to submit a written statement setting forth the intended purpose for
which the records are requested or otherwise indicate how disclosure
will primarily benefit the public and, in appropriate cases, explain why
the volume of records requested is necessary. Determinations made
pursuant to the authority set out herein are solely within the
discretion of the Chief, OSS.
(d) Fees and charges for services identified in the appendix to this
part shall be paid in full by the requester before the records are
delivered. Payment shall be made in U.S. funds by personal check, money
order, or bank draft made payable to the Library of Congress. The Chief,
OSS, shall remit all fees collected to the Director, Financial Services,
who shall cause the same to be credited to appropriate accounts or
deposited with the U.S. Treasury as miscellaneous receipts.
[[Page 74]]
(e) The Chief, OSS, shall notify a requester and may require an
advance deposit where the anticipated fees will exceed $50.
Appendix A to Subpart A of Part 703--Fees and Charges for Services
Provided to Requesters of Records
(a) Searches.
(1) There is no charge for searches of less than one hour.
(2) Fees charged for searches of one hour or more are based on
prevailing rates. Currently, those charges are:
(i) Personnel searches (clerical): $15 per hour.
(ii) Personnel searches (professional): $25 per hour.
(iii) Reproduction costs: $.50 per page.
(iv) Shipping and mailing fees: variable.
(3) In situations involving the use of computers to locate and
extract the requested information, charges will be based on the direct
cost to the Library, including labor, material, and computer time.
(b) Duplication of Records. Fees charged for the duplication of
records shall be according to the prevailing rates established by the
Library's Photoduplication Service, or in the case of machine media
duplication, by the Resources Management Staff, Information Technology
Services.
(c) Certifications. The fee charges for certification of a record as
authentic or a true copy shall be $10.00 for each certificate.
(d) Other Charges. When no specific fee has been established for a
service required to meet the request for records, the Chief, OSS, shall
establish an appropriate fee based on direct costs in accordance with
the Office of Management and Budget Circular No. A-25.
Subpart B_Testimony by Employees and Production of Documents in Certain
Legal Proceedings Where the Library Is Not a Party
Sec. 703.15 Purpose and scope of this subpart.
This subpart sets forth the policy and procedures of the Library of
Congress regarding, first, the testimony, as witnesses in legal
proceedings where the Library is not a party, of employees and former
employees concerning information acquired in the course of performing
official duties or because of the employee's official relationship with
the Library of Congress, and second, the production or disclosure of
information contained in Library of Congress documents for use in legal
proceedings where the Library is not a party, pursuant to a request,
order, or subpoena (collectively referred to in this subpart as a
``demand'').
(a) This subpart applies to:
(1) State court proceedings (including grand jury proceedings);
(2) Federal court proceedings; and
(3) State and local legislative and administrative proceedings.
(b) This subpart does not apply to:
(1) Matters that are not related to the Library of Congress but
relate solely to an employee's personal dealings;
(2) Congressional demands for testimony or documents;
(3) Any demand relating to activity within the scope of Title 17 of
the United States Code (the Copyright Act and related laws). These are
governed by Copyright Office regulations, which provide for different
procedures and for service on the General Counsel of the Copyright
Office. See 37 CFR 201.1, sec. 203, sec. 204, and sec. 205.
(c) The purpose of this subpart is to ensure that employees'
official time is used only for official purposes, to maintain the
impartiality of the Library of Congress among private litigants, to
ensure that public funds are not used for private purposes, to ensure
the protection of Congress' interests, and to establish centralized
procedures for deciding whether or not to approve testimony or the
production of documents.
Sec. 703.16 Policy on presentation of testimony and production of
documents.
No Library of Congress employee may provide testimony or produce
documents in any proceeding to which this part applies concerning
information acquired in the course of performing official duties or
because of the employee's official relationship with the Library of
Congress, unless authorized by the General Counsel or his/her designee,
or the Director of the Congressional Research Service (CRS) with respect
to records and testimony relating to CRS's work for Congress, or the Law
Librarian for records and testimony relating to the Law Library's work
for Congress or materials prepared for
[[Page 75]]
other federal agencies covered by evidentiary privileges. The
aforementioned officials (hereinafter ``deciding officials'') will
consider and act upon demands under this part with due regard for the
interests of Congress, where appropriate, statutory requirements, the
Library's interests, and the public interest, taking into account
factors such as applicable privileges and immunities, including the
deliberative process privilege and the speech or debate clause, the need
to conserve the time of employees for conducting official business, the
need to avoid spending the time and money of the United States for
private purposes, the need to maintain impartiality among private
litigants in cases where a substantial government interest is not
involved, the established legal standards for determining whether or not
justification exists for the disclosure of confidential information and
records, and any other purpose that the deciding official deems to be in
the interest of Congress or the Library of Congress.
Sec. 703.17 Procedures when testimony and/or documents are demanded.
A demand for testimony and/or documents by a Library employee must
be in writing, must state the nature of the requested testimony and/or
specify documents, and must meet the requirements of Sec. 703.15. A
demand must also show that the desired testimony or document is not
reasonably available from any other source and must show that no
document could be provided and used in lieu of testimony. When an
employee of the Library receives such a request the employee will
immediately forward it, with the recommendation of the employee's
supervisors, to the appropriate deciding official under Sec. 703.22 of
this part. The deciding official, in consultation with the appropriate
offices of the Library or congressional offices, will determine whether
or not compliance with the request would be appropriate and will respond
as soon as practicable.
Sec. 703.18 Procedures when an employee's appearance is demanded or
documents are demanded.
(a) If the deciding official has not acted by the return date on a
subpoena, the employee must appear at the stated time and place (unless
advised by the deciding official that the subpoena was not validly
issued or served or that the subpoena has been withdrawn) and inform the
court (or other interested parties) that the demand has been or is
being, as the case may be, referred for the prompt consideration of the
appropriate Library or congressional officials and shall respectfully
request the court (or other authority) to stay the demand pending
receipt of the requested instructions.
(b) If the deciding official has denied approval to comply with the
subpoena, and the court or authority rules that the demand must be
complied with irrespective of such a denial, the employee upon whom such
a demand has been made shall produce a copy of this Part and shall
respectfully refuse to provide any testimony or produce any documents.
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
(c) The deciding official, as appropriate, will request the
assistance of the Department of Justice or the U.S. Attorney's Office or
congressional officials where necessary to represent the interests of
the Library, the Congress, and the employee in any of the foregoing
proceedings.
Sec. 703.19 Requests for authenticated copies of Library documents.
Requests for authenticated copies of Library documents for purposes
of admissibility under 28 U.S.C. 1733 and Rule 44 of the Federal Rules
of Civil Procedure will be granted for documents that would otherwise be
released pursuant to the Library's Regulations governing the release of
information. The advice of the appropriate deciding official should be
obtained concerning the proper form of authentication and information as
to the proper person having custody of the record.
Sec. 703.20 File copies.
The Office of the General Counsel will maintain the official file of
copies
[[Page 76]]
of all demands served on the Library and deciding officials' responses.
Sec. 703.21 Effect of this part.
This part is intended only to provide guidance for the internal
operations of the Library of Congress and is not intended to, and does
not, and may not, be relied upon to create any right or benefit,
substantive or procedural, enforceable at law by a party against the
Library of Congress or the United States.
Sec. 703.22 Where to serve demands.
Requesting parties must serve subpoenas:
(a) For Congressional Research Service matters: Director,
Congressional Research Service, LM 203, Library of Congress, Washington,
DC 20540.
(b) For Law Library matters: Law Librarian, LM 240, Library of
Congress, Washington, DC 20540.
(c) For all other matters: General Counsel, LM 601, Library of
Congress, Washington, DC 20540.
PART 704_NATIONAL FILM REGISTRY OF THE LIBRARY OF CONGRESS--Table of Contents
Sec. 704.1 Films selected for inclusion in the National Film Registry.
After the reauthorization of the National Film Registry Act, only
the list of films selected for the year of publication will be printed.
For a complete list of films included in the National Film Registry, see
http://lcweb.loc.gov/film/nfrchron.html.
Authority: Pub. L. 102-307, 106 Stat. 267 (2 U.S.C. 179).
[69 FR 39843, July 1, 2004]
PART 705_REPRODUCTION, COMPILATION, AND DISTRIBUTION OF NEWS TRANSMISSIONS
UNDER THE PROVISIONS OF THE AMERICAN TELEVISION AND RADIO ARCHIVES ACT
--Table of Contents
Sec.
705.1 Scope and purpose of this part.
705.2 Authority.
705.3 Definitions.
705.4 Reproduction.
705.5 Disposition and use of copies and phonorecords by the Library of
Congress.
705.6 Compilation.
705.7 Distribution.
705.8 Agreements modifying the terms of this part.
Authority: 2 U.S.C. 136, and 170.
Source: 69 FR 39843, July 1, 2004, unless otherwise noted.
Sec. 705.1 Scope and purpose of this part.
The purpose of this part is to implement certain provisions of the
American Television and Radio Archives Act, 2 U.S.C. 170. Specifically,
this part prescribes rules pertaining to the reproduction, compilation,
and distribution by the Library of Congress, under section 170(b) of
title 2 of the United States Code, of television and radio transmission
programs consisting of regularly scheduled newscasts or on-the-spot
coverage of news events.
Sec. 705.2 Authority.
Section 170(b) of Title 2 authorizes the Librarian, with respect to
a transmission program which consists of a regularly scheduled newscast
or on-the-spot coverage of news events, to prescribe by regulation
standards and conditions to reproduce, compile, and distribute such a
program as more particularly specified in the statute.
Sec. 705.3 Definitions.
For purposes of this part:
(a) The terms copies, fixed, phonorecords and transmission program,
and their variant forms, have the meanings given to them in section 101
of title 17 of the United States Code. For the purpose of this part, the
term transmission includes transmission via the Internet, cable,
broadcasting, and satellite systems, and via any other existing or
future devices or processes for the communication of a performance or
display whereby images or sounds are received beyond the place from
which they are sent. 17 U.S.C. 101; H.R. Rep. No. 94-1476, at 64 (1976).
(b) The term regularly scheduled newscasts means transmission
programs in any format that report on current events, regardless of
quality, subject matter, or significance, and that air on a periodic
basis, (including but not limited to daily, weekly, or
[[Page 77]]
quarterly), or on an occasional basis, but not on a special, one-time
basis. The term on-the-spot coverage of news events refers to
transmission programs in any format that report on reasonably recent
current events, regardless of quality, subject matter, or significance,
and that are aired in a timely manner but not necessarily
contemporaneously with the recording of the events.
(c) The term staff for the purpose of this part includes both
Library employees and contractors.
Sec. 705.4 Reproduction.
(a) Library of Congress staff acting under the general authority of
the Librarian of Congress may reproduce fixations of television and
radio transmission programs consisting of regularly scheduled newscasts
or on-the-spot coverage of news events directly from transmissions to
the public in the United States in accordance with section 170(b) of
title 2 of the United States Code. Recording may be accomplished in the
same or another tangible form as the original transmission. The choice
of programs selected for recording will be made consistent with the
purpose of, and based on the criteria set forth in, the American
Television and Radio Archives Act at 2 U.S.C. 170(a), and on Library of
Congress acquisition policies in effect at the time of recording.
(b) Specific notice of an intent to copy a transmission program will
ordinarily not be given. In general, the Library of Congress will seek
to copy off-the-air selected portions of the programming transmitted by
both noncommercial educational broadcast stations as defined in section
397 of title 47 of the United States Code, and by commercial broadcast
stations. Upon written request addressed to the Chief, Motion Picture,
Broadcasting and Recorded Sound Division by a broadcast station or other
owner of the right of transmission, the Library of Congress will inform
the requestor whether a particular transmission program has been copied
by the Library.
Sec. 705.5 Disposition and use of copies and phonorecords by the
Library of Congress.
(a) All copies and phonorecords acquired under this part will be
maintained by the Motion Picture, Broadcasting and Recorded Sound
Division of the Library of Congress. The Library may make such copies or
phonorecords of a program as are necessary for purposes of preservation,
security, and, as specified in Sec. 705.7, distribution.
(b) To the extent that the Library of Congress's use of copies and
phonorecords acquired under this part is not subject to the provisions
of the American Television and Radio Archives Act (section 170 of title
2 of the United States Code) and this part, such use shall be subject to
the restrictions concerning copying and access found in Library of
Congress Regulation 818-17, ``Policies Governing the Use and
Availability of Motion Pictures and Other Audiovisual Works in the
Collections of the Library of Congress,'' and Library of Congress
Regulation 818-18.1, ``Recorded Sound Listening and Duplication
Services'' available from the Office of the General Counsel, Library of
Congress, Washington, DC 20540-1050. Such use shall also be governed by
the Copyright Act of 1976, as amended.
Sec. 705.6 Compilation.
(a) Library of Congress staff acting under the general authority of
the Librarian of Congress may compile, without abridgement or any other
editing, portions of recordings created pursuant to Sec. 705.4 according
to subject matter, and may reproduce such compilations for purposes of
preservation, security, or distribution as permitted under Sec. 705.7
below.
(b) Compilations shall be organized, to the greatest extent
possible, in chronological order, and shall include the entirety of any
particular news segment.
(c) No compilation by the Librarian shall be deemed for any purpose
or proceeding to be an official determination of the subject matter
covered by such compilation.
Sec. 705.7 Distribution.
(a) Library staff acting under the general authority of the
Librarian of
[[Page 78]]
Congress may distribute a reproduction of a transmission program or a
compilation of transmission programs made under this part, by loan to a
researcher, provided that the researcher indicates the particular
segments of the news broadcasts or compilations that he or she wishes to
review, on the basis of an index or other finding aid prepared by the
Librarian; and for deposit in a library or archives which meets the
requirements of section 108(a) of title 17 of the United States Code.
(b) Library staff will advise all recipients of such reproductions
that such distribution shall be only for the purposes of research and
not for further reproduction or performance, and that any use in excess
of that permitted by the American Television and Radio Archives Act
(section 170 of title 2 of the United States Code), title 17 of the
United States Code, and this part may violate copyrights or other
rights.
Sec. 705.8 Agreements modifying the terms of this part.
(a) The Library of Congress may, at its sole discretion, enter into
an agreement whereby the provision of copies or phonorecords of
transmission programs of regularly scheduled newscasts or on-the-spot
coverage of news events on terms different from those contained in this
part is authorized.
(b) Any such agreement may be terminated without notice by the
Library of Congress.
PARTS 706-799 [RESERVED]
[[Page 79]]
CHAPTER VIII--ADVISORY COUNCIL
ON HISTORIC PRESERVATION
--------------------------------------------------------------------
Part Page
800 Protection of historic properties........... 81
801 Historic preservation requirements of the
Urban Development Action Grant Program.. 105
805 Procedures for implementation of National
Environmental Policy Act................ 118
810 Freedom of Information Act regulations...... 119
811 Employee responsibilities and conduct....... 122
812 Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by the Advisory
Council on Historic Preservation........ 122
813-899 [Reserved]
[[Page 81]]
PART 800_PROTECTION OF HISTORIC PROPERTIES--Table of Contents
Subpart A_Purposes and Participants
Sec.
800.1 Purposes.
800.2 Participants in the Section 106 process.
Subpart B_The Section 106 Process
800.3 Initiation of the section 106 process.
800.4 Identification of historic properties.
800.5 Assessment of adverse effects.
800.6 Resolution of adverse effects.
800.7 Failure to resolve adverse effects.
800.8 Coordination with the National Environmental Policy Act.
800.9 Council review of Section 106 compliance.
800.10 Special requirements for protecting National Historic Landmarks.
800.11 Documentation standards.
800.12 Emergency situations.
800.13 Post-review discoveries.
Subpart C_Program Alternatives
800.14 Federal agency program alternatives.
800.15 Tribal, State, and local program alternatives. [Reserved]
800.16 Definitions.
Appendix A to Part 800--Criteria for Council involvement in reviewing
individual section 106 cases
Authority: 16 U.S.C. 470s.
Source: 65 FR 77725, Dec. 12, 2000, unless otherwise noted.
Subpart A_Purposes and Participants
Sec. 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 how Federal agencies meet these statutory
responsibilities. The section 106 process seeks to accommodate historic
preservation concerns with the needs of Federal undertakings through
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 goal of
consultation is to identify historic properties potentially affected by
the undertaking, assess its effects and seek ways to avoid, minimize or
mitigate any adverse effects on historic properties.
(b) Relation to other provisions of the act. Section 106 is related
to other provisions of the act 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, have been cited in this part
for ease of access and are not incorporated by reference.
(c) Timing. 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 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 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 may be
considered during the planning process for the undertaking.
Sec. 800.2 Participants in the Section 106 process.
(a) Agency official. 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 appropriate
action
[[Page 82]]
for a specific undertaking as a result of section 106 compliance. For
the purposes of subpart C 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 act requires
each Federal agency responsible for the protection of historic
resources, including archeological 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 designate a lead Federal
agency, 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. Those 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, the 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) Consultation. The agency official 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
requirements of other statutes, as applicable, such as the National
Environmental Policy Act, the Native American Graves Protection and
Repatriation Act, the American Indian Religious Freedom Act, the
Archeological Resources Protection Act, and agency-specific legislation.
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, 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 comments to agency officials
on individual undertakings and programs that affect historic properties.
(1) Council entry into the section 106 process. When the Council
determines that its involvement is necessary to ensure that the purposes
of section 106 and the act are met, the Council may enter the section
106 process. Criteria guiding Council decisions to enter the section 106
process 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 have consultative
roles in the section 106 process.
(1) State historic preservation officer. (i) 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 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
[[Page 83]]
ensure that historic properties are taking into consideration at all
levels of planning and development.
(ii) If an Indian tribe has assumed the functions of the SHPO in the
section 106 process for undertakings on tribal lands, the SHPO shall
participate as a consulting party if the undertaking takes place on
tribal lands but affects historic properties off tribal lands, if
requested in accordance with Sec. 800.3(c)(1), or if the Indian tribe
agrees to include the SHPO pursuant to Sec. 800.3(f)(3).
(2) Indian tribes and Native Hawaiian organizations. (i)
Consultation on tribal lands. (A) Tribal historic preservation officer.
For a tribe that has assumed the responsibilities of the SHPO for
section 106 on tribal lands under section 101(d)(2) of the act, the
tribal historic preservation officer (THPO) appointed or designated in
accordance with the act 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 act, 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 the agency official to 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. 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, 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
[[Page 84]]
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) 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 Sec. 800.6(c)(1) to execute a memorandum of agreement.
(3) Representatives of local governments. A 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 an
applicant or group of applicants to initiate consultation with the SHPO/
THPO and others, but 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 public. (1) Nature of involvement. The views of the public
are essential to informed Federal decisionmaking in the section 106
process. The agency official shall seek and consider 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, confidentiality
concerns of private individuals and businesses, and the relationship of
the Federal involvement to the undertaking.
(2) Providing notice and information. The agency official must,
except where 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 views on their own initiative for
the agency official to consider in decisionmaking.
(3) Use of agency procedures. The agency official may use the
agency's procedures for public involvement under the National
Environmental Policy Act or other program requirements in lieu of public
involvement requirements in subpart B of this part, if they provide
adequate opportunities for public involvement consistent with this
subpart.
[[Page 85]]
Subpart B_The section 106 Process
Sec. 800.3 Initiation of the section 106 process.
(a) Establish undertaking. The agency official shall determine
whether the proposed Federal action is an undertaking as defined in
Sec. 800.16(y) and, if so, 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 Sec.
800.14 or a programmatic agreement in existence before January 11, 2001,
the agency official shall follow the program alternative.
(b) 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, the Native American Graves Protection and Repatriation Act,
the American Indian Religious Freedom Act, the Archeological Resources
Protection 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.
(c) 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.
(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.
(d) 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
[[Page 86]]
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.
(e) 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 Sec. 800.2(d).
(f) 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 Sec. 800.2(c).
(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.
(g) Expediting consultation. A consultation by the agency official
with the SHPO/THPO and other consulting parties may address multiple
steps in Sec. Sec. 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 Sec. 800.2(d).
Sec. 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 Sec. 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 Sec. 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 Sec. 800.11(c).
(b) Identify historic properties. 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,
[[Page 87]]
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 Sec. 800.6, a programmatic agreement
executed pursuant to Sec. 800.14(b), or the documents used by an agency
official to comply with the National Environmental Policy Act pursuant
to Sec. 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.
(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) 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 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.
(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 Sec.
800.16(i), the agency official shall provide documentation of this
finding, as set forth in Sec. 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
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for public inspection prior to approving the undertaking. 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.
(2) Historic properties affected. If the agency official finds that
there are historic properties which may be affected by the undertaking
or the SHPO/THPO or the Council objects to the agency official's finding
under paragraph (d)(1) of this section, 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 Sec. 800.5.
Sec. 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) 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 Sec.
800.4(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) 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.
[[Page 89]]
(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 Sec. 800.11(e). The SHPO/THPO shall have 30
days from receipt to review the finding.
(1) Agreement with finding. Unless the Council is reviewing the
finding pursuant to Sec. 800.5(c)(3), the agency official may proceed
if the SHPO/THPO agrees with the finding. The agency official shall
carry out the undertaking in accordance with Sec. 800.5(d)(1). Failure
of the SHPO/THPO to respond within 30 days from receipt of the finding
shall be considered agreement of the SHPO/THPO with the finding.
(2) Disagreement with finding. (i) If the SHPO/THPO or any
consulting party disagrees within the 30-day review period, it shall
specify the reasons for disagreeing with the finding. The agency
official shall either consult with the party to resolve the
disagreement, or request the Council to review the finding pursuant to
paragraph (c)(3) of this section.
(ii) 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 the finding pursuant to paragraph
(c)(3) of this section.
(iii) If the Council on its own initiative so requests within the
30-day review period, the agency official shall submit the finding,
along with the documentation specified in Sec. 800.11(e), for review
pursuant to paragraph (c)(3) of this section. A Council decision to make
such a request shall be guided by the criteria in appendix A to this
part.
(3) Council review of findings. When a finding is submitted to the
Council pursuant to paragraph (c)(2) of this section, the agency
official shall include the documentation specified in Sec. 800.11(e).
The Council shall review the finding and notify the agency official of
its determination as to whether the adverse effect criteria have been
correctly applied within 15 days of receiving the documented finding
from the agency official. The Council shall specify the basis for its
determination. The agency official shall proceed in accordance with the
Council's determination. If the Council does not respond within 15 days
of receipt of the finding, the agency official may assume concurrence
with the agency official's findings and proceed accordingly.
(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 Sec. 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
Sec. 800.6.
Sec. 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 Sec. 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 Sec. 800.14(b) will be prepared;
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(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 Sec. 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 Sec. 800.11(e),
subject to the confidentiality provisions of Sec. 800.11(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 Sec.
800.11(e), subject to the confidentiality provisions of Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec.
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 Sec. 800.11(g). If the Council decides to
join the consultation, the
[[Page 91]]
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
Sec. 800.7(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 Sec. 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 Sec. 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 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 Sec. 800.7(a).
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(9) Copies. The agency official shall provide each consulting party
with a copy of any memorandum of agreement executed pursuant to this
subpart.
Sec. 800.7 Failure to resolve adverse effects.
(a) Termination of consultation. After consulting to resolve adverse
effects pursuant to Sec. 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 Sec. 800.8(c)(3), or termination by the Council under Sec.
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.
Sec. 800.8 Coordination 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
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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.
(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 Sec. 800.3(a). If so, the agency official shall proceed
with section 106 review in accordance with the procedures in this
subpart.
(c) Use of the NEPA process for section 106 purposes. An agency
official may use the process and documentation required for the
preparation of an EA/FONSI or an EIS/ROD to comply with section 106 in
lieu of the procedures set forth in Sec. Sec. 800.3 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 consulting parties either pursuant to Sec. 800.3(f) or
through the NEPA scoping process with results consistent with Sec.
800.3(f);
(ii) Identify historic properties and assess the effects of the
undertaking on such properties in a manner consistent with the standards
and criteria of Sec. Sec. 800.4 through 800.5, provided that the scope
and timing of these steps may be phased 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;
(iii) 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 parties, and the Council,
where appropriate, during NEPA scoping, environmental analysis, and the
preparation of NEPA documents;
(iv) Involve the public in accordance with the agency's published
NEPA procedures; and (v) 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 SHPO/THPO, Indian tribes, and Native
Hawaiian organizations that might attach religious and cultural
significance to affected historic properties, and other consulting
parties prior to or when making the document available for public
comment. If the document being prepared is a DEIS or EIS, the agency
official shall also submit it to the Council.
(ii) Prior to or within the time allowed for public comment on the
document, a SHPO/THPO, an Indian tribe or
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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.
(3) 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 notify the agency official either that it
agrees with the objection, in which case the agency official shall enter
into consultation in accordance with Sec. 800.6(b)(2) or seek Council
comments in accordance with Sec. 800.7(a), or that it disagrees with
the objection, in which case the agency official shall continue its
compliance with this section. Failure of the Council to respond within
the 30 day period shall be considered disagreement with the objection.
(4) 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 Sec. 800.6(c); or
(ii) The Council has commented under Sec. 800.7 and received the
agency's response to such comments.
(5) Modification of the undertaking. If the undertaking is modified
after approval of the FONSI or the ROD in a manner that changes the
undertaking or alters its effects on historic properties, or if the
agency official fails to ensure that the measures to avoid, minimize or
mitigate adverse effects (as specified in either the FONSI or the ROD,
or in the binding commitment adopted pursuant to paragraph (c)(4) of
this section) are carried out, the agency official shall notify the
Council and all consulting parties that supplemental environmental
documents will be prepared in compliance with NEPA or that the
procedures in Sec. Sec. 800.3 through 800.6 will be followed as
necessary.
Sec. 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 foreclosure of the Council's 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 opportunity to comment may be
foreclosed. The Council may review a case to determine whether a
foreclosure has occurred. The Council 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 foreclosure has
occurred. If the Council determines foreclosure has occurred, the
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
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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, 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.
(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 other parties known
to be interested in the undertaking.
(i) Within thirty 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 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.
(3) Compliance with Section 106. If an agency official, after
consulting with the Council, determines to grant the assistance, the
agency official shall comply with Sec. Sec. 800.3 through 800.6 to take
into account the effects of the undertaking on any historic properties.
(d) 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.
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 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.
Sec. 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
[[Page 96]]
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 Sec. Sec. 800.6 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 Sec. 800.6.
(c) 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) 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.
Sec. 800.11 Documentation standards.
(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
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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 Sec. 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 Sec. 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 Sec. 800.6(a)(1).
Sec. 800.12 Emergency situations.
(a) Agency procedures. The 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
immediate threats to life or property. If approved by the Council, the
procedures shall govern the agency's historic preservation
responsibilities during any disaster or emergency in lieu of Sec. Sec.
800.3 through 800.6.
(b) Alternatives to agency procedures. In the event an agency
official proposes an emergency undertaking as 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 immediate 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 Sec.
800.14(b) that contains specific provisions for dealing with historic
properties in emergency situations; or
(2) Notifying the Council, the appropriate SHPO/THPO and any Indian
tribe or Native Hawaiian organization that may attach religious and
cultural significance to historic properties likely to be affected prior
to the undertaking and affording them an opportunity to comment within
seven days of notification. If the agency official determines that
circumstances do not
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permit seven days for comment, the agency official shall notify the
Council, the SHPO/THPO and the Indian tribe or Native Hawaiian
organization and invite any comments within the time available.
(c) Local governments responsible for section 106 compliance. When a
local government official serves as the agency official for section 106
compliance, paragraphs (a) and (b) of this section also apply to an
imminent threat to public health or safety as a result of a natural
disaster or emergency declared by a local government's chief executive
officer or legislative body, provided that if the Council or SHPO/THPO
objects to the proposed action within seven days, the agency official
shall comply with Sec. Sec. 800.3 through 800.6.
(d) 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.
Sec. 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 Sec. 800.14(b) to govern the actions to be taken when
historic properties are discovered during the implementation of an
undertaking.
(2) Using agreement documents. When the agency official's
identification efforts in accordance with Sec. 800.4 indicate that
historic properties are likely to be discovered during implementation of
an undertaking and no programmatic agreement has 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 agreement a process
to resolve any adverse effects upon such properties. Actions in
conformance with the 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 mitigate
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 adverse effects pursuant to Sec. 800.6; 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 archeological
data, the agency official may comply with the Archeological and Historic
Preservation Act instead of the procedures in this part and provide the
Council, the SHPO/THPO, and the 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 adverse effects, and notify the SHPO/THPO, any
Indian tribe or Native Hawaiian organization that might attach religious
and cultural significance to 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 the adverse effects. The SHPO/
THPO, the Indian tribe or Native Hawaiian organization 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
appropriate actions. The agency official shall provide the SHPO/THPO,
the Indian tribe or Native Hawaiian organization and the Council a
report of the actions when they are completed.
[[Page 99]]
(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 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, after the agency official has
completed the section 106 process without establishing a process under
paragraph (a) of this section and construction has commenced, the agency
official shall comply with applicable tribal regulations and procedures
and obtain the concurrence of the Indian tribe on the proposed action.
Subpart C_Program Alternatives
Sec. 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) Programmatic agreements. The Council and the agency official may
negotiate a programmatic agreement to govern the implementation of a
particular program or the resolution of 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;
(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
section 106 process.
(2) Developing programmatic agreements for agency programs.
(i) The consultation shall involve, as appropriate, SHPO/THPOs, the
National Conference of State Historic Preservation Officers (NCSHPO),
Indian tribes and Native Hawaiian organizations, other Federal agencies,
and
[[Page 100]]
members of the public. If the programmatic agreement 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 agency official shall also follow paragraph
(f) 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) Effect. The programmatic agreement shall take effect when
executed by the Council, the agency official and 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
THPO, Indian tribe, or a designated representative of the tribe is a
signatory to the 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 agreement until it expires or is terminated by the agency, the
president of NCSHPO when a signatory, or the Council. Termination by an
individual SHPO/THPO 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 on lands under the
jurisdiction of the tribe.
(iv) 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 agreement readily available to the Council, SHPO/THPOs, and the
public.
(v) If the Council determines that the terms of a programmatic
agreement are not being carried out, or if such an agreement is
terminated, 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 Sec. 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) 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) Exempted categories. (1) Criteria for establishing. An agency
official may propose a program or category of agency 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 Sec. 800.16;
(ii) The potential effects of the undertakings within the program or
category upon historic properties are foreseeable and likely to be
minimal or not adverse; and
(iii) Exemption of the program or category is consistent with the
purposes of the act.
[[Page 101]]
(2) Public participation. The agency official 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 agency official 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 agency official 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.
(5) Council review of proposed exemptions. The Council shall review
a request for an exemption 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 by the SHPO/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 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) 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 circumstances under which the normally
excluded undertaking should be reviewed under subpart B of this part.
(7) Termination. The Council may terminate an exemption at the
request of the agency official or when the Council determines that the
exemption no longer meets the criteria of paragraph (c)(1) of this
section. The Council shall notify the agency official 30 days before
termination becomes effective.
(8) Notice. The agency official shall publish notice of any approved
exemption in the Federal Register.
(d) 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.
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(e) Program comments. An agency official may request the Council to
comment on a category of undertakings in lieu of conducting individual
reviews under Sec. Sec. 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, 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 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.
(5) 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 days of the request.
(i) 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.
(ii) If the Council declines to comment, the agency official shall
continue to comply with the requirements of Sec. Sec. 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
Sec. Sec. 800.3 through 800.6 for the individual undertakings.
(f) Consultation with Indian tribes and Native Hawaiian
organizations when developing program alternatives. Whenever an agency
official proposes a program alternative pursuant to paragraphs (a)
through (e) of this section, 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. 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 consultation with Indian tribes and
consult with Native Hawaiian organizations in accordance with existing
Executive orders, Presidential memoranda, and applicable provisions of
law.
(2) Results of consultation. The agency official shall provide
summaries of the views, along with copies of any written comments,
provided by affected Indian
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tribes and Native Hawaiian organizations to the Council as part of the
documentation for the proposed program alternative. The agency official
and the Council shall take those views into account in reaching a final
decision on the proposed program alternative.
Sec. 800.15 Tribal, State, and local program alternatives. [Reserved]
Sec. 800.16 Definitions.
(a) Act means the National Historic Preservation Act of 1966, as
amended, 16 U.S.C. 470-470w-6.
(b) Agency means agency as defined in 5 U.S.C. 551.
(c) Approval of the expenditure of funds means any final agency
decision authorizing or permitting the expenditure of Federal funds or
financial assistance on an undertaking, including any agency decision
that may be subject to an administrative appeal.
(d) Area of potential effects means the geographic area or areas
within which an undertaking may directly or indirectly cause alterations
in the character or use of historic properties, if any such properties
exist. The area of potential effects is influenced by the scale and
nature of an undertaking and may be different for different kinds of
effects caused by the undertaking.
(e) Comment means the findings and recommendations of the Council
formally provided in writing to the head of a Federal agency under
section 106.
(f) Consultation means the process of seeking, discussing, and
considering the views of other participants, and, where feasible,
seeking agreement with them regarding matters arising in the section 106
process. The Secretary's ``Standards and Guidelines for Federal Agency
Preservation Programs pursuant to the National Historic Preservation
Act'' provide further guidance on consultation.
(g) Council means the Advisory Council on Historic Preservation or a
Council member or employee designated to act for the Council.
(h) Day or days means calendar days.
(i) Effect means alteration to the characteristics of a historic
property qualifying it for inclusion in or eligibility for the National
Register.
(j) Foreclosure means an action taken by an agency official that
effectively precludes the Council from providing comments which the
agency official can meaningfully consider prior to the approval of the
undertaking.
(k) Head of the agency means the chief official of the Federal
agency responsible for all aspects of the agency's actions. If a State,
local, or tribal government has assumed or has been delegated
responsibility for section 106 compliance, the head of that unit of
government shall be considered the head of the agency.
(l)(1) Historic property means any prehistoric or historic district,
site, building, structure, or object included in, or eligible for
inclusion in, the National Register of Historic Places maintained by the
Secretary of the Interior. This term includes artifacts, records, and
remains that are related to and located within such properties. The term
includes properties of traditional religious and cultural importance to
an Indian tribe or Native Hawaiian organization and that meet the
National Register criteria.
(2) The term eligible for inclusion in the National Register
includes both properties formally determined as such in accordance with
regulations of the Secretary of the Interior and all other properties
that meet the National Register criteria.
(m) Indian tribe means an Indian tribe, band, nation, or other
organized group or community, including a native village, regional
corporation, or village corporation, as those terms are defined in
section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602),
which is recognized as eligible for the special programs and services
provided by the United States to Indians because of their status as
Indians.
(n) Local government means a city, county, parish, township,
municipality, borough, or other general purpose political subdivision of
a State.
(o) Memorandum of agreement means the document that records the
terms and conditions agreed upon to resolve the adverse effects of an
undertaking upon historic properties.
(p) National Historic Landmark means a historic property that the
Secretary
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of the Interior has designated a National Historic Landmark.
(q) National Register means the National Register of Historic Places
maintained by the Secretary of the Interior.
(r) National Register criteria means the criteria established by the
Secretary of the Interior for use in evaluating the eligibility of
properties for the National Register (36 CFR part 60).
(s)(1) Native Hawaiian organization means any organization which
serves and represents the interests of Native Hawaiians; has as a
primary and stated purpose the provision of services to Native
Hawaiians; and has demonstrated expertise in aspects of historic
preservation that are significant to Native Hawaiians.
(2) Native Hawaiian means any individual who is a descendant of the
aboriginal people who, prior to 1778, occupied and exercised sovereignty
in the area that now constitutes the State of Hawaii.
(t) Programmatic agreement means a document that records the terms
and conditions agreed upon to resolve the potential adverse effects of a
Federal agency program, complex undertaking or other situations in
accordance with Sec. 800.14(b).
(u) Secretary means the Secretary of the Interior acting through the
Director of the National Park Service except where otherwise specified.
(v) State Historic Preservation Officer (SHPO) means the official
appointed or designated pursuant to section 101(b)(1) of the act to
administer the State historic preservation program or a representative
designated to act for the State historic preservation officer.
(w) Tribal Historic Preservation Officer (THPO) means the tribal
official appointed by the tribe's chief governing authority or
designated by a tribal ordinance or preservation program who has assumed
the responsibilities of the SHPO for purposes of section 106 compliance
on tribal lands in accordance with section 101(d)(2) of the act.
(x) Tribal lands means all lands within the exterior boundaries of
any Indian reservation and all dependent Indian communities.
(y) Undertaking means a project, activity, or program funded in
whole or in part under the direct or indirect jurisdiction of a Federal
agency, including those carried out by or on behalf of a Federal agency;
those carried out with Federal financial assistance; those requiring a
Federal permit, license or approval; and those subject to State or local
regulation administered pursuant to a delegation or approval by a
Federal agency.
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 to 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 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 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 Sec. 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
[[Page 105]]
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.
PART 801_HISTORIC PRESERVATION REQUIREMENTS OF THE URBAN DEVELOPMENT
ACTION GRANT PROGRAM--Table of Contents
Sec.
801.1 Purpose and authorities.
801.2 Definitions.
801.3 Applicant responsibilities.
801.4 Council comments.
801.5 State Historic Preservation Officer responsibilities.
801.6 Coordination with requirements under the National Environmental
Policy Act (42 U.S.C. 4321 et seq.).
801.7 Information requirements.
801.8 Public participation.
Appendix 1 to Part 801--Identification of Properties: General
Appendix 2 to Part 801--Special Procedures for Identification and
Consideration of Archeological Properties in an Urban Context
Authority: Pub. L. 89-665, 80 Stat. 915 (16 U.S.C. 470); Pub. L. 94-
422, 90 Stat. 1320 (16 U.S.C. 470(i)); Pub. L. 96-399, 94 Stat. 1619 (42
U.S.C. 5320).
Source: 46 FR 42428, Aug. 20, 1981, unless otherwise noted.
Sec. 801.1 Purpose and authorities.
(a) These regulations are required by section 110(c) of the Housing
and Community Development Act of 1980 (HCDA) (42 U.S.C. 5320) and apply
only to projects proposed to be funded by the Department of Housing and
Urban Development (HUD) under the Urban Development Action Grant (UDAG)
Program authorized by title I of the Housing and Community Development
Act of 1974, as amended (42 U.S.C. 5301). These regulations establish an
expedited process for obtaining the comments of the Council specifically
for the UDAG program and, except as specifically provided, substitute
for the Council's regulations for the ``Protection of Historic and
Cultural Properties'' (36 CFR part 800).
(b) Section 110(c) of the HCDA of 1980 requires UDAG applicants to:
(1) Identify all properties, if any, which are included in the National
Register of Historic Places and which will be affected by the project
for which the application is made; (2) identify all other properties, if
any, which will be affected by such project and which, as determined by
the applicant, may meet the Criteria established by the Secretary of the
Interior for inclusion in the National Register (36 CFR 60.6); and (3)
provide a description of the effect, as determined by the applicant, of
the project on properties identified pursuant to (1) and (2). If the
applicant determines that such properties are affected, the Act requires
that the information developed by the applicant must be forwarded to the
appropriate State Historic Preservation Officer (SHPO) for review and to
the Secretary of the Interior for a determination as to whether the
affected properties are eligible for inclusion in the National Register.
(c) Section 106 of the National Historic Preservation Act of 1966,
as amended (16 U.S.C. 470), requires the head of any Federal agency with
jurisdiction over a Federal, federally assisted or federally licensed
undertaking that affects a property included in or eligible for
inclusion in the National Register of Historic Places to take into
account the effect of the undertaking on such property and afford the
Council a reasonable opportunity to comment. Under the UDAG program,
applicants assume the status of a Federal agency for purposes of
complying with section 106.
Sec. 801.2 Definitions.
The terms defined in 36 CFR 800.2 shall be used in conjunction with
this regulation. Furthermore, as used in these regulations:
(a) Urban Development Action Grant (UDAG) Program means the program
of the Department of Housing and Urban Development (HUD) authorized by
title I of the Housing and Community Development Act (HCDA) of 1977 (42
U.S.C. 5318) to assist revitalization efforts in distressed cities and
urban counties
[[Page 106]]
which require increased public and private investment.
(b) Applicant means cities and urban counties or Pocket of Poverty
Communities which meet the criteria at 24 CFR 570.453. Except as
specifically provided below, applicants, rather than the Secretary of
HUD, must comply with these regulations.
(c) Project means a commercial, industrial, and/or neighborhood proj
ect supported by the UDAG program of the Department of HUD, as defined
in 24 CFR 570.451(g). A project includes the group of integrally related
public and private activities described in the grant application which
are to be carried out to meet the objectives of the action grant program
and consists of all action grant funded activities together with all
non-action grant funded activities. A project is an undertaking as
defined in 36 CFR 800.2(c).
(d) State Historic Preservation Officer Review Period is a 45 day
period provided to the appropriate State Historic Preservation Officer
by section 110(c) of the Housing and Community Development Act (HCDA) of
1980 for comment on the formal submission by the applicant of data on
properties listed in the National Register or which may meet the
Criteria and which will be affected by the proposed UDAG project. This
period does not include any period during which the applicant seeks
information from the State Historic Preservation Officer to assist the
applicant in identifying properties, determining whether a property
meets the Criteria for listing in the National Register of Historic
Places and determining whether such property is affected by the project.
(e) Secretary of the Interior Determination Period is a 45 day
period provided by section 110(c) of the HCDA of 1980 for a
determination as to whether the identified properties are eligible for
inclusion in the National Register.
Sec. 801.3 Applicant responsibilities.
As early as possible before the applicant makes a final decision
concerning a project and in any event prior to taking any action that
would foreclose alternatives or the Council's ability to comment, the
applicant should take the following steps to comply with the
requirements of section 106 of the National Historic Preservation Act
and section 110 of the HCDA of 1980.
In order to facilitate the commenting process the applicant should
forward to the Council information on the proposed project at the
earliest practicable time if it appears that National Register
properties or properties which meet the Criteria for inclusion will be
affected. This will allow the Council to assist the applicant in
expeditiously meeting its historic preservation requirements and
facilitate the development of the Council's comments.
(a) Information required. It is the primary responsibility of the
applicant requesting Council comments to conduct the appropriate studies
and to provide the information necessary for a review of the effect a
proposed proj ect may have on a National Register property or a property
which meets the Criteria, as well as the information necessary for
adequate consideration of modifications or alterations to the proposed
project that could avoid, mitigate, or minimize any adverse effects. It
is the responsibility of the applicant to provide the information
specified in Sec. 801.7, to make an informed and reasonable evaluation
of whether a property meets the National Register Criteria (36 CFR 60.6)
and to determine the effect of a proposed undertaking on a National
Register property or property which meets the Criteria.
(b) Identification of properties. Section 110 of the HCDA of 1980
makes UDAG applicants responsible for the identification of National
Register properties and properties which may meet the Criteria for
listing in the National Register that may be affected by the project. An
appendix to these regulations sets forth guidance to applicants in
meeting their identification responsibilities but does not set a fixed
or inflexible standard for such efforts. Meeting this responsibility
requires the applicant to make an earnest effort to identify and
evaluate potentially affected historic properties by:
(1) Consulting the National Register of Historic Places to determine
whether the project's impact area includes such properties;
[[Page 107]]
(2) Obtaining, prior to initiating the State Historic Preservation
Officer Review Period, relevant information that the State Historic
Preservation Officer may have available concerning historic properties,
if any are known, in the project's impact area;
(3) Utilizing local plans, surveys, and inventories of historic
properties prepared by the locality or a recognized State or local
historic authority;
(4) Utilizing other sources of information or advice the applicant
deems appropriate;
(5) Conducting an on-the-ground inspection of the project's impact
area by qualified personnel to identify properties which may meet the
Criteria for evaluation taking into consideration the views of the State
Historic Preservation Officer as to the need for and methodology of such
inspections;
(6) Applying the Department of the Interior Criteria for Evaluation
(36 CFR 60.6) to properties within the project's impact area.
(c) Evaluation of effect. Applicants are required by section 110(a)
of the HCDA of 1980 to include in their applications a description of
the effect of a proposed UDAG project on any National Register property
and or any property which may meet the Criteria.
(1) Criteria of Effect and Adverse Effect. The following criteria,
similar to those set forth in 36 CFR 800.3, shall be used to determine
whether a project has an effect or an adverse effect.
(i) Criteria of effect. The effect of a project on a National
Register or eligible property is evaluated in the context of the
historical, architectural, archeological, or cultural significance
possessed by the property. A project shall be considered to have an
effect whenever any condition of the project causes or may cause any
change, beneficial or adverse, in the quality of the historical,
architectural, archeological, or cultural characteristics that qualify
the property to meet the Criteria of the National Register. An effect
occurs when a project changes the integrity of location, design,
setting, materials, workmanship, feeling or association of the property
that contributes to its significance in accordance with the National
Register Criteria. An effect may be direct or indirect. Direct effects
are caused by the project and occur at the same time and place. Indirect
effects include those caused by the undertaking that are later in time
or farther removed in distance, but are still reasonably foreseeable.
Such effects involve development of the proj ect site around historic
properties so as to affect the access to, use of, or significance of
those properties.
(ii) Criteria of adverse effect. Adverse effects on National
Register properties or properties which meet the Criteria may occur
under conditions which include but are not limited to:
(A) Destruction or alteration of all or part of a property;
(B) Isolation from or alteration of the property's surrounding
environment;
(C) Introduction of visual, audible, or atmospheric elements that
are out of character with the property or alter its setting;
(D) Neglect of a property resulting in its deterioration or
destruction;
(iii) Special considerations. If rehabilitation is a project
activity, such components of the project may be considered to have no
adverse effect and need not be referred to the Council if they are
undertaken in accordance with the Secretary of the Interior's Standards
for Historic Preservation Projects (U.S. Department of the Interior,
Heritage Conservation and Recreation Service, Washington, DC, 1979) and
the State Historic Preservation Officer concurs in the proposed
activity. Additionally, the following types of project components or
elements will be considered to not normally adversely affect properties
listed in the National Register or which meet the Criteria.
(A) Insulation (except for the use of granular or liquid injected
foam insulation in exterior walls or other vertical surfaces);
(B) Caulking;
(C) Weatherstripping;
(D) Replacement of Heating, Ventilating and Air Conditioning (HVAC)
equipment, provided that such equipment is not historic and that
replacement equipment is screened from public view and that the State
Historic Preservation Officer and the applicant agree the equipment will
not affect those qualities of the property which
[[Page 108]]
qualify it to meet the 36 CFR 60.6 Criteria;
(E) In-kind refenestration (for example, replacement of deteriorated
windows of a similar configuration, color and material);
(F) Lowering of ceilings, provided the ceilings will not be visible
from outside of the building or from an interior public space and that
the State Historic Preservation Officer and the applicant agree it will
not affect a quality which qualified the building to meet the 36 CFR
60.6 Criteria;
(G) Replacement in-kind of substantially deteriorated material,
provided that the State Historic Preservation Officer and the applicant
agree;
(H) Installation of machinery, equipment, furnishings, fixtures,
etc., in the interior of existing buildings, provided that the State
Historic Preservation Officer and the applicant agree such installations
will not affect a quality which qualified the building to meet the 36
CFR 60.6 Criteria.
(I) Site improvements such as sidewalk paving and landscaping,
provided that the State Historic Preservation Officer and the applicant
agree that the site improvement will not affect those qualities of the
property which qualify it to meet the 36 CFR 60.6 Criteria.
(iv) Special considerations for archeological sites. Under certain
conditions, alteration of land containing archeological resources in the
project area may have no adverse effect on those resources. Procedures
for determining whether such conditions exist were published by the
Council in the Federal Register on November 26, 1980 (45 FR 78808), as
part X of the ``Executive Director's Procedures for Review of Proposals
for Treatment of Archeological Properties.'' Because the identification
of archeological sites in an urban context, and consideration of
appropriate treatment methods, present special problems, further
guidance is provided in Appendix 2.
(2) Determinations of Effect. Prior to submitting an application to
HUD, the applicant shall apply the Criteria of Effect and Adverse Effect
to all properties which are listed in the National Register or which may
meet the Criteria in the area of the project's potential environmental
impact. The determination of the Secretary of the Interior shall be
final with respect to properties which are eligible for listing in the
National Register. The Council will not comment on affected properties
which are not either listed in or eligible for listing in the National
Register. In order to facilitate the process, information to be
requested from the State Historic Preservation Officer under Sec.
801.3(b)(2) should include advice on applying the Criteria of Effect and
Adverse Effect provided that this period shall not be included in the 45
day State Historic Preservation Officer Review Period. Special attention
should be paid to indirect effects, such as changes in land use, traffic
patterns, street activity, population density and growth rate. While
some aspects of a project may have little potential to adversely affect
the significant qualities of a historic property, other project
components may meet the Criteria of Effect and Adverse Effect. If any
aspect of the project results in an effect determination, further
evaluation of the effect shall be undertaken in accordance with these
regulations. The resulting determination regarding the effect shall be
included in the application.
(i) No effect. If the applicant determines that the project will
have no effect on any National Register property and/or property which
meets the Criteria, the project requires no further review by the
Council unless a timely objection is made by the Executive Director. An
objection may be made by the Executive Director at any time during the
UDAG application process prior to the expiration of the period for
receiving objections to HUD's release of funds as specified in 24 CFR
58.31. The manner in which the Executive Director shall make an
objection is set forth in Sec. 801.4(a).
(ii) Determinations of no adverse effect. If the applicant finds
there is an effect on the property but it is not adverse, the applicant
after receiving the comments of the State Historic Preservation Officer
during the State Historic Preservation Officer Review Period shall
forward adequate documentation (see Sec. 801.7(a)) of the
Determination, including the written comments of the State Historic
Preservation Officer, if
[[Page 109]]
available, to the Executive Director for review in accordance with Sec.
801.4.
(iii) Adverse effect determination. If the applicant finds the
effect to be adverse or if the Executive Director objects to an
applicant's no adverse effect determination pursuant to Sec. 801.4(a),
the applicant shall proceed with the consultation process in accordance
with Sec. 801.4(b).
Sec. 801.4 Council comments.
The following subsections specify how the Council will respond to an
applicant's request for the Council's comments required to satisfy the
applicant's responsibilities under section 106 of the Act and section
110 of the HCDA of 1980. When appropriate, an applicant may waive the
Council time periods specified in these regulations.
(a) Executive Director's Objection to No Effect Determination. If
the Executive Director has reason to question an applicant's
determination of no effect, he shall notify the applicant and HUD. If
the Executive Director does not object within 15 days of such
notification, the project may proceed. If the Executive Director
objects, he shall specify whether or not the project will have an
adverse effect on National Register property and/or property which meets
the Criteria. Normally, the Executive Director will object to a
determination of no effect when the record does not support the
applicant's determination (see Sec. 801.7(a)). The applicant must then
comply with the provisions of subsection (b) if the Executive Director
determines that the project will have no adverse effect or subsection
(c) if the Executive Director has determined that the project will have
an adverse effect.
(b) Response to Determinations of No Adverse Effect. (1) Upon
receipt of a Determination of No Adverse Effect from an applicant, the
Executive Director will review the Determination and supporting
documentation required by Sec. 801.7(a). Failure to provide the
required information at the time the applicant requests Council comments
will delay the process. The Executive Director will respond to the
applicant within 15 days after receipt of the information required in
Sec. 801.7(a). Unless the Executive Director objects to the
Determination within 15 days after receipt, the applicant will be
considered to have satisfied its responsibilities under section 106 of
the Act and these regulations and no further Council review is required.
(2) If the Executive Director objects to a Determination of No
Adverse Effect, the consultation process pursuant to Sec. 801.4(c)
shall be initiated.
(c) Consultation process. If any aspect of the project is found to
have adverse effects on National Register property or property which has
been determined by the applicant or the Secretary of the Interior to
meet the Criteria, the applicant, the State Historic Preservation
Officer and the Executive Director shall consult to consider feasible
and prudent alternatives to the project that could avoid, mitigate, or
minimize the adverse effect on the affected property.
(1) Parties. The applicant, the State Historic Preservation Officer
and the Executive Director shall be the consulting parties. The
Department of HUD, other representatives of national, State, or local
units of government, other parties in interest, and public and private
organizations, may be invited by the consulting parties to participate
in the consultation process.
(2) Timing. The consulting parties shall have a total of 45 days
from the receipt by the Executive Director of the information required
in Sec. 801.7(a) to agree upon feasible and prudent alternatives to
avoid, mitigate, or minimize any adverse effects of the proj ect.
Failure of an applicant to provide the information required in Sec.
801.7(b) will delay the beginning of the time period specified above.
(3) Information requirements. The applicant shall provide copies of
the information required in Sec. 801.7(b) to the consulting parties at
the initiation of the consultation process and make it readily available
for public inspection.
(4) Public meeting. An onsite inspection and a Public Information
Meeting may be held in accordance with the provisions of 36 CFR
800.6(b). Public hearings or meetings conducted by the applicant in the
preparation of the application may, as specified below, substitute for
such Public Information
[[Page 110]]
Meetings. Upon request of the applicant, the Executive Director may find
that such public meetings have been adequate to consider the effect of
the project on National Register properties or properties which meet the
Criteria, and no further Public Information Meeting is required.
(5) Consideration of alternatives. During the consultation period,
the consulting parties shall, in accordance with the policies set forth
in 36 CFR 800.6(b) (4) and (5), review the proposed project to determine
whether there are prudent and feasible alternatives to avoid or
satisfactorily mitigate adverse effect. If they agree on such
alternatives, they shall execute a Memorandum of Agreement in accordance
with Sec. 801.4(c) specifying how the undertaking will proceed to avoid
or mitigate the adverse effect.
(6) Acceptance of adverse effect. If the consulting parties
determine that there are no feasible and prudent alternatives that could
avoid or satisfactorily mitigate the adverse effects and agree that it
is in the public interest to proceed with the proposed project they
shall execute a Memorandum of Agreement in accordance with Sec.
801.4(c) acknowledging this determination and specifying any recording,
salvage, or other measures associated with acceptance of the adverse
effects that shall be taken before the project proceeds.
(7) Failure to agree. Upon the failure of the consulting parties to
agree upon the terms for a Memorandum of Agreement within the specified
time period, or upon notice of a failure to agree by any consulting
party to the Executive Director, the Executive Director within 15 days
shall recommend to the Chairman whether the matter should be scheduled
for consideration at a Council meeting. If the Executive Director
recommends that the Council not consider the matter, he shall
simultaneously notify all Council members and provide them copies of the
preliminary case report and the recommendation to the Chairman. The
applicant and the State Historic Preservation Officer shall be notified
in writing of the Executive Director's recommendation.
(d) Memorandum of Agreement--(1) Preparation of Memorandum of
Agreement. It shall be the responsibility of the Executive Director to
prepare each Memorandum of Agreement required under this part. As
appropriate, other parties may be invited by the consulting parties to
be signatories to the Agreement or otherwise indicate their concurrence
with the Agreement. In order to facilitate the process, the applicant
may provide the Executive Director a draft for a Memorandum of
Agreement. At the applicant's option, such draft may be prepared at the
time the applicant makes its determinations that properties listed in
the National Register or which may meet the Criteria for listing in the
National Register may be adversely affected. The applicant must provide
the State Historic Preservation Officer an opportunity to concur in or
comment on its draft Agreement.
(2) Review of Memorandum of Agreement. Upon receipt of an executed
Memorandum of Agreement, the Chairman shall institute a 15 day review
period. Unless the Chairman notifies the applicant that the matter has
been placed on the agenda for consideration at a Council meeting, the
Agreement shall become final when ratified by the Chairman or upon the
expiration of the 15 day review period with no action taken. Copies will
be provided to signatories. A copy of the Memorandum of Agreement should
be included in any Environmental Assessment or Environmental Impact
Statement prepared pursuant to the National Environmental Policy Act.
(3) Effect of Memorandum of Agreement. (i) Agreements duly executed
in accordance with these regulations shall constitute the comments of
the Council and shall evidence satisfaction of the applicant's
responsibilities for the proposed project under section 106 of the Act
and these regulations.
(ii) If the Council has commented on an application that is not
approved by HUD and a subsequent UDAG application is made for the same
project, the project need not be referred to the Council again unless
there is a significant amendment to the project which would alter the
effect of the project on previously considered properties or result in
effects on additional National
[[Page 111]]
Register properties or properties which meet the Criteria.
(iii) Failure to carry out the terms of a Memorandum of Agreement
requires that the applicant again request the Council's comments in
accordance with these regulations. In such instances, until the Council
issues its comments under these regulations the applicant shall not take
or sanction any action or make any irreversible or irretrievable
commitment that could result in an adverse effect with respect to
National Register properties or properties which are eligible for
inclusion in the National Register covered by the Agreement or that
would foreclose the Council's consideration of modifications or
alternatives to the proposed project that could avoid or mitigate the
adverse effect.
(4) Amendment of a Memorandum of Agreement. Amendments to the
Agreement may be made as specified in 36 CFR 800.6(c)(4).
(5) Report on Memorandum of Agreement. Within 90 days after carrying
out the terms of the Agreement, the applicant shall report to all
signatories on the actions taken.
(e) Council Meetings. Council meetings to consider a project will be
conducted in accordance with the policies set forth in 36 CFR 800.6(d).
(1) Response to recommendation concerning consideration at Council
meeting. Upon receipt of a recommendation from the Executive Director
concerning consideration of a proposed project at a Council meeting, the
Chairman shall determine whether or not the project will be considered.
The Chairman shall make a decision within 15 days of receipt of the
recommendation of the Executive Director. In reaching a decision the
Chairman shall consider any comments from Council members. If three
members of the Council object within the 15 day period to the Executive
Director's recommendation, the project shall be scheduled for
consideration at a Council or panel meeting. Unless the matter is
scheduled for consideration by the Council the Chairman shall notify the
applicant, the Department of HUD, the State Historic Preservation
Officer and other parties known to be interested of the decision not to
consider the matter. Such notice shall be evidence of satisfaction of
the applicant's responsibilities for the proposed project under section
106 of the Act and these regulations.
(2) Decision to consider the project. When the Council will consider
a proposed project at a meeting, the Chairman shall either designate
five members as a panel to hear the matter on behalf of the full Council
or schedule the matter for consideration by the full Council. In either
case, the meeting shall take place within 30 days of the Chairman's
decision to consider the project, unless the applicant agrees to a
longer time.
(i) A panel shall consist of three non-Federal members, one as
Chairman, and two Federal members. The Department of HUD may not be a
member of such panel.
(ii) Prior to any panel or full Council consideration of a matter,
the Chairman will notify the applicant and the State Historic
Preservation Officer and other interested parties of the date on which
the project will be considered. The Executive Director, the applicant,
the Department of HUD, and the State Historic Preservation Officer shall
prepare reports in accordance with Sec. 801.7(b). Reports from the
applicant and the State Historic Preservation Officer must be received
by the Executive Director at least 7 days before any meeting.
(3) Notice of Council meetings. At least 7 days notice of all
meetings held pursuant to this section shall be given by publication in
the Federal Register. The Council shall provide a copy of the notice by
mail to the applicant, the State Historic Preservation Officer, and the
Department of Housing and Urban Development. The Council will inform the
public of the meeting through appropriate local media.
(4) Statements to the Council. An agenda shall provide for oral
statements from the Executive Director; the applicant; the Department of
HUD; parties in interest; the Secretary of the Interior; the State
Historic Preservation Officer; representatives of national, State, or
local units of government; and interested public and private
organizations and individuals. Parties wishing to make oral remarks
should notify
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the Executive Director at least two days in advance of the meeting.
Parties wishing to have their written statements distributed to Council
members prior to the meeting should send copies of the statements to the
Executive Director at least 5 days in advance.
(5) Comments of the Council. The written comments of the Council
will be issued within 7 days after a meeting. Comments by a panel shall
be considered the comments of the full Council. Comments shall be made
to the applicant requesting comment and to the Department of HUD.
Immediately after the comments are made to the applicant and the
Department of HUD, the comments of the Council will be forwarded to the
President and the Congress as a special report under authority of
section 202(b) of the Act and a notice of availability will be published
in the Federal Register. The comments of the Council shall be made
available to the State Historic Preservation Officer, other parties in
interest, and the public upon receipt of the comments by the applicant.
The applicant should include the comments of the Council in any final
Environmental Impact Statement prepared pursuant to the National
Environmental Policy Act.
(6) Action in response to Council comments. The comments of the
Council shall be taken into account in reaching a final decision on the
proposed project. When a final decision regarding the proposed project
is reached by the applicant and the Department of HUD, they shall submit
written reports to the Council describing the actions taken by them and
other parties in response to the Council's comments and the impact that
such actions will have on the affected National Register properties or
properties eligible for inclusion in the National Register. Receipt of
this report by the Chairman shall be evidence that the applicant has
satisfied its responsibilities for the proposed project under section
106 of the Act and these regulations. The Council may issue a final
report to the President and the Congress under authority of section
202(b) of the Act describing the actions taken in response to the
Council's comments including recommendations for changes in Federal
policy and programs, as appropriate.
(f) Suspense of Action. Until the Council issues its comments under
these regulations and during the State Historic Preservation Officer
Review Period and the determination period of the Secretary of the
Interior, good faith consultation shall preclude the applicant from
taking or sanctioning any action or making any irreversible or
irretrievable commitment that could result in an adverse effect on a
National Register property or property which may meet the Criteria or
that would foreclose the consideration of modifications or alternatives
to the proposed project that could avoid, mitigate, or minimize such
adverse effects. In no case shall UDAG funds be used for physical
activities on the proj ect site until the Council comments have been
completed. Normal planning and processing of applications short of
actual commitment of funds to the project may proceed.
(g) Lead Agency. If the project proposed by the applicant involves
one or more Federal agencies, they may agree on a single lead agency to
meet the requirements of section 106 of the National Historic
Preservation Act and section 110 of the Housing and Community
Development Act of 1980 and notify the Executive Director. If the
applicant is the designated lead agency, these regulations shall be
followed. If a Federal agency is designated lead agency, the process in
36 CFR part 800 shall be used.
(h) Compliance by a Federal Agency. An applicant may make a finding
that it proposes to accept a Federal agency's compliance with section
106 of the Act and 36 CFR 800 where its review of the Federal agency's
findings indicate that:
(1) The project is identical with an undertaking reviewed by the
Council under 36 CFR part 800; and
(2) The project and its impacts are included within the area of
potential environmental impact described by the Federal agency;
The applicant shall notify the State Historic Preservation Officer and
the Executive Director of its finding of compliance with section 106 of
the Act and 36 CFR part 800 and provide a copy
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of the Federal agency's document where the finding occurs. Unless the
Executive Director objects within 10 days of receipt of such notice the
Council need not be afforded further opportunity for comment. If the
Executive Director objects to the finding of the applicant, the
applicant shall comply with Sec. 801.4.
Sec. 801.5 State Historic Preservation Officer responsibilities.
(a) The State Historic Preservation Officer shall have standing to
participate in the review process established by section 110(c) of the
HCDA of 1980 whenever it concerns a project located within the State
Historic Preservation Officer's jurisdiction by the following means:
providing, within 30 days, information requested by an applicant under
Sec. 801.3(b); responding, within 45 days, to submittal of a
determination by the applicant under section 110 of the HCDA of 1980
that National Register property or property which meets the Criteria may
be affected by the proposed project; participating in a Memorandum of
Agreement that the applicant or the Executive Director may prepare under
this part; and participating in a panel or full Council meeting that may
be held pursuant to these regulations. Pursuant to section 110(c) of the
HCDA of 1980, the State Historic Preservation Officer has a maximum
period of 45 days in which to formally comment on an applicant's
determination that the project may affect a property that is listed in
the National Register or which may meet the Criteria for listing in the
National Register. This period does not include the time during which
the applicant seeks information from the State Historic Preservation
Officer for determining whether a property meets the Criteria for
listing in the National Register and whether such property is affected
by the project.
(b) The failure of a State Historic Preservation Officer to
participate in any required steps of the process set forth in this part
shall not prohibit the Executive Director and the applicant from
concluding the section 106 process, including the execution of a
Memorandum of Agreement.
Sec. 801.6 Coordination with requirements under the National Environmental
Policy Act (42 U.S.C. 4321 et seq.).
The National Historic Preservation Act and the National
Environmental Policy Act create separate and distinct responsibilities.
The National Historic Preservation Act applies to those aspects of a
project which may affect National Register properties and those which
are eligible for listing in the National Register. The requirements for
the National Environmental Policy Act apply to the effect that the
project will have on the human environment. To the extent that the
applicant finds it practicable to do so, the requirements of these two
statutes should be integrated. Some projects, for reasons other than the
effects on historic properties, may require an Environmental Impact
Statement (EIS) subject to the time requirements for a draft and final
EIS, in which case the applicant may choose to separately relate to the
State Historic Preservation Officer, the Department of the Interior, and
the Council for purposes of section 110(c) of the HCDA of 1980. In that
event, information in the draft EIS should indicate that compliance with
section 106 and these regulations is underway and the final EIS should
reflect the results of this process. Applicants are directed to 36 CFR
800.9, which describes in detail the manner in which the requirements of
these two acts should be integrated and applies to all UDAG applicants
under these regulations.
In those instances in which an Environmental Impact Statement will be
prepared for the project, the applicant should consider phasing
compliance with these procedures and the preparation of the Statement.
Sec. 801.7 Information requirements.
(a) Information To Be Retained by Applicants Determining No Effect.
(1) Recommended Documentation for a Determination of No Effect. Adequate
documentation of a Determination of No Effect pursuant to Sec.
801.3(c)(2)(i) should include the following:
(i) A general discussion and chronology of the proposed project;
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(ii) A description of the proposed project including, as
appropriate, photographs, maps, drawings, and specifications;
(iii) A statement that no National Register property or property
which meets the Criteria exist in the project area, or a brief statement
explaining why the Criteria of Effect (See Sec. 801.3(c)) was found
inapplicable;
(iv) Evidence of consultation with the State Historic Preservation
Officer concerning the Determination of No Effect; and
(v) Evidence of efforts to inform the public concerning the
Determination of No Effect.
(2) The information requirements set forth in this section are meant
to serve as guidance for applicants in preparing No Effect
Determinations. The information should be retained by the applicant,
incorporated into any environmental reports or documents prepared
concerning the project, and provided to the Executive Director only in
the event of an objection to the applicant's determination.
(b) Reports to the Council. In order to adequately assess the impact
of a proposed project on National Register and eligible properties, it
is necessary for the Council to be provided certain information. For the
purposes of developing Council comments on UDAG projects the following
information is required. Generally, to the extent that relevant portions
of a UDAG application meet the requirements set forth below it will be
sufficient for the purposes of Council review and comment.
(1) Documentation for Determination of No Adverse Effect. Adequate
documentation of a Determination of No Adverse Effect pursuant to Sec.
801.3(c)(1) should include the following:
(i) A general discussion and chronology of the proposed project;
(ii) A description of the proposed project including, as
appropriate, photographs, maps, drawings and specifications;
(iii) A copy of the National Register form or a copy of the
Determination of Eligibility documentation for each property that will
be affected by the project including a description of each property's
physical appearance and significance;
(iv) A brief statement explaining why each of the Criteria of
Adverse Effect (See Sec. 801.3(c)(1)) was found inapplicable;
(v) Written views of the State Historic Preservation Officer
concerning the Determination of No Adverse Effect, if available; and,
(vi) An estimate of the cost of the project including the amount of
the UDAG grant and a description of any other Federal involvement.
(2) Preliminary Case Reports. Preliminary Case Reports should be
submitted with a request for comments pursuant to Sec. 801.4(b) and
should include the following information:
(i) A general discussion and chronology of the proposed project;
(ii) The status of the project in the HUD approval process:
(iii) The status of the project in the National Environmental Policy
Act compliance process and the target date for completion of all the
applicant's environmental responsibilities;
(iv) A description of the proposed project including as appropriate,
photographs, maps, drawings and specifications;
(v) A copy of the National Register form or a copy of the
Determination of Eligibility documentation for each property that will
be affected by the project including a description of each property's
physical appearance and significance;
(vi) A brief statement explaining why any of the Criteria of Adverse
Effect (See Sec. 801.3(c)(1)(b)) apply;
(vii) Written views of the State Historic Preservation Officer
concerning the effect on the property, if available;
(viii) The views of Federal agencies, State and local governments,
and other groups or individuals when known as obtained through the OMB
Circular A-95 process or the environmental review process, public
hearings or other applicant processes;
(ix) A description and analysis of alternatives that would avoid the
adverse effects;
(x) A description and analysis of alternatives that would mitigate
the adverse effects; and,
(xi) An estimate of the cost of the project including the amount of
the
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UDAG grant and a description of any other Federal involvement.
(c) Reports for Council Meetings. Consideration of a proposed
project by the full Council or a panel pursuant to Sec. 801.4(b) is
based upon reports from the Executive Director, the State Historic
Preservation Officer and Secretary of the Interior. Requirements for
these reports are specified in 36 CFR 800.13(c). Additionally, reports
from the applicant and the Department of HUD are required by these
regulations. The requirements for these reports consist of the
following:
(1) Report of the Applicant. The report from the applicant
requesting comments shall include a copy of the relevant portions of the
UDAG application; a general discussion and chronology of the proposed
project; an account of the steps taken to comply with the National
Environmental Policy Act (NEPA); any relevant supporting documentation
in studies that the applicant has completed; an evaluation of the effect
of the project upon the property or properties, with particular
reference to the impact on the historical, architectural, archeological,
and cultural values; steps taken or proposed by the applicant to avoid
or mitigate adverse effects of the project; a thorough discussion of
alternate courses of action; and an analysis comparing the advantages
resulting from the project with the disadvantages resulting from the
adverse effects on National Register or eligible properties.
(2) Report of the Secretary of Housing and Urban Development. The
report from the Secretary shall include the status of the application in
the UDAG approval process, past involvement of the Department with the
applicant and the proposed project or land area for the proposed
project, and information on how the applicant has met other requirements
of the Department for the proposed project.
Sec. 801.8 Public participation.
(a) The Council encourages maximum public participation in the
process established by these regulations. Particularly important, with
respect to the UDAG program, is participation by the citizens of
neighborhoods directly or indirectly affected by projects, and by groups
concerned with historic and cultural preservation.
(b) The applicant, in preparing and following its citizen
participation plan called for by 24 CFR 570.456(c)(11)(i)(A), should
ensure that adequate provision is made for participation by citizens and
organizations having interests in historic preservation and in the
historic and cultural values represented in affected neighborhoods. 24
CFR 570.431(c) sets forth criteria for citizen participation plans.
These should be carefully considered with specific reference to ensuring
that local concerns relevant to historic preservation are fully
identified, and that citizens are provided with full and accurate
information about each project and its effects on historic properties.
The applicant should ensure that potentially concerned citizens and
organizations are fully involved in the identification of properties
which may meet the National Register Criteria, and that they are fully
informed, in a timely manner, of determinations of No Effect, No Adverse
Effect, and Adverse Effect, and of the progress of the consultation
process. Applicants are referred to 36 CFR 800.15 for Council guidelines
for public participation.
(c) The Council welcomes the views of the public, especially those
groups which may be affected by the proposed project, during its
evaluation of the applicant's determination of effect, and will solicit
the participation of the public in Council and panel meetings held to
consider projects.
Appendix 1 to Part 801--Identification of Properties: General
A. Introduction
Because of the high probability of locating properties which are
listed in the National Register or which meet the Criteria for listing
in many older city downtowns, this appendix is designed to serve as
guidance for UDAG applicants in identifying such properties. This
appendix sets forth guidance for applicants and does not set a fixed or
inflexible standard for identification efforts.
B. Role of the State Historic Preservation Officer
In any effort to locate National Register properties or properties
which meet the Criteria, the State Historic Preservation Officer is a
key source of information and advice.
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The State Historic Preservation Officer will be of vital assistance to
the applicant. The State Historic Preservation Officer can provide
information on known properties and on studies which have taken place in
and around the project area. Early contact should be made with the State
Historic Preservation Officer for recommendations about how to identify
historic properties. For UDAG projects, identification of National
Register properties and properties which meet the Criteria is the
responsibility of the applicant. The extent of the identification effort
should be made with the advice of the State Historic Preservation
Officer. The State Historic Preservation Officer can be a knowledgeable
source of information regarding cases wherein the need for a survey of
historic properties is appropriate, recommended type and method of a
survey and the boundaries of any such survey. Due consideration should
be given to the nature of the project and its impacts, the likelihood of
historic properties being affected and the state of existing knowledge
regarding historic properties in the area of the project's potential
environmental impact.
C. Levels of Identification
1. The area of the project's potential environmental impact consists
of two distinct subareas: that which will be disturbed directly
(generally the construction site and its immediate environs) and that
which will experience indirect effects. Within the area of indirect
impact, impacts will be induced as a result of carrying the project out.
Historic and cultural properties subject to effect must be identified in
both subareas, and the level of effort necessary in each may vary. The
level of effort needed is also affected by the stage of planning and the
quality of pre-existing information. Obviously, if the area of potential
environmental impact has already been fully and intensively studied
before project planning begins, there is no need to duplicate this
effort. The State Historic Preservation Officer should be contacted for
information on previous studies. If the area has not been previously
intensively studied, identification efforts generally fall into three
levels:
a. Overview Study: This level of study is normally conducted as a
part of general planning and is useful at an early stage in project
formulation. It is designed to obtain a general understanding of an
area's historic and cultural properties in consultation with the State
Historic Preservation Officer, by:
(1) Assessing the extent to which the area has been previously
subjected to study;
(2) Locating properties previously recorded;
(3) Assessing the probability that properties eligible for the
National Register will be found if the area is closely inspected, and
(4) Determining the need, if any, for further investigation.
An overview study includes study of pertinent records (local histories,
building inventories, architectural reports, archeological survey
reports, etc.), and usually some minor on-the-ground inspection.
b. Identification Study: An identification study attempts to
specifically identify and record all properties in an area that may meet
the criteria for listing in the National Register. In conducting the
study, the applicant should seek the advice of the State Historic
Preservation Officer regarding pertinent background data. A thorough on-
the-ground inspection of the subject area by qualified personnel should
be undertaken. For very large areas, or areas with uncertain boundaries,
such a study may focus on representative sample areas, from which
generalizations may be made about the whole.
c. Definition and Evaluation Study: If an overview and/or an
identification study have indicated the presence or probable presence of
properties that may meet the National Register Criteria but has not
documented them sufficiently to allow a determination to be made about
their eligibility, a definition and evaluation study is necessary. Such
a study is directed at specific potentially eligible properties or at
areas known or suspected to contain such properties. It includes an
intensive on-the-ground inspection and related studies as necessary,
conducted by qualified personnel, and provides sufficient information to
apply the National Register's ``Criteria for Evaluation'' (36 CFR 60.6).
2. An overview study will normally be needed to provide basic
information for planning in the area of potential environmental impact.
Unless this study indicates clearly that no further identification
efforts are needed (e.g., by demonstrating that the entire area has
already been intensively inspected with negative results, or by
demonstrating that no potentially significant buildings have ever been
built there and there is virtually no potential for archeological
resources), and identification study will probably be needed within the
area of potential environmental impact. This study may show that there
are no potentially eligible properties within the area, or may show that
only a few such properties exist and document them sufficiently to
permit a determination of eligibility to be made in accordance with 36
CFR part 60. Alternatively, the study may indicate that potentially
eligible properties exist in the area, but may not document them to the
standards of 36 CFR part 60. Should this occur, a definition and
evaluation study is necessary for those properties falling within the
project's area of direct effect and for those properties subject to
indirect effects. If a property falls within the general area of
indirect effect, but no indirect effects are actually anticipated on the
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property in question, a definition and evaluation study will normally be
superfluous.
Appendix 2 to Part 801--Special Procedures for Identification and
Consideration of Archeological Properties in an Urban Context
A. Archeological sites in urban contexts are often difficult to
identify and evaluate in advance of construction because they are sealed
beneath modern buildings and structures. Prehistoric and historic sites
within cities may be important both to science and to an understanding
of each city's history, however, and should be considered in proj ect
planning. Special methods can be used to ensure effective and efficient
consideration and treatment of archeological sites in UDAG projects.
1. If it is not practical to physically determine the existence or
nonexistence of archeological sites in the project area, the probability
or improbability of their existence can be determined, in most cases,
through study of:
a. Information on the pre-urban natural environment, which would
have had an effect on the location of prehistoric sites;
b. Information from surrounding areas and general literature
concerning the location of prehistoric sites;
c. State and local historic property registers or inventories;
d. Archeological survey reports;
e. Historic maps, atlases, tax records, photographs, and other
sources of information on the locations of earlier structures;
f. Information on discoveries of prehistoric or historic material
during previous construction, land levelling, or excavation, and
g. Some minor on-the-ground inspection.
2. Should the study of sources such as those listed in section
(1)(a) above reveal that the following conditions exist, it should be
concluded that a significant likelihood exists that archeological sites
which meet the National Register Criteria exist on the project site:
a. Discoveries of prehistoric or historic material remains have been
reliably reported on or immediately adjacent to the proj ect site, and
these are determined by the State Historic Preservation Officer or other
archeological authority to meet the Criteria for the National Register
because of their potential value for public interpretation or the study
of significant scientific or historical research problems; or
b. Historical or ethnographic data, or discoveries of material,
indicate that a property of potential cultural value to the community or
some segment of the community (e.g., a cemetery) lies or lay within the
proj ect site; or
c. The pre-urbanization environment of the project site would have
been conducive to prehistoric occupation, or historic buildings or
occupation sites are documented to have existed within the project site
in earlier times, and such sites or buildings are determined by the
State Historic Preservation Officer or other archeological authority to
meet the Criteria of the National Register because of their potential
value for public interpretation or the study of significant scientific
or historical research questions, and
d. The recent history of the project site has not included extensive
and intensive ground disturbance (grading, blasting, cellar digging,
etc.) in the location, or extending to the depth at which the remains of
significant sites, buildings, or other features would be expected.
B. Where review of sources of information such as those listed in
section (1)(a) above reveals no significant likelihood that
archeological resources which meet the National Register Criteria exist
on the project site, no further review is required with respect to
archeology provided the State Historic Preservation Officer concurs.
C. Where review of sources of information such as those listed in
section (1)(a) above, reveals that archeological resources which meet
the National Register Criteria are likely to exist on the project site,
but these resources are so deeply buried that the proj ect will not
intrude upon them, or they are in a portion of the project site that
will not be disturbed, a determination of ``No Effect'' is appropriate
in accordance with Sec. 801.3(c)(2)(i).
D. Where review of sources of information such as those listed in
section (1)(a) above, reveals that archeological resources which meet
the Criteria exist or are likely to exist on the project site, and that
the project is likely to disturb them, a determination of ``No Adverse
Effect'' may be made in accordance with Sec. 801.3(c)(2)(ii) if:
1. The applicant and/or developer is committed to fund a
professionally supervised and planned pre-construction testing program,
and to modification of the project in consultation with the State
Historic Preservation Officer to protect or incorporate within the
project the archeological resources discovered with a minimum of damage
to them, or if:
2. The applicant and/or developer is committed to fund a
professionally supervised and planned archeological salvage program,
coordinated with site clearing and construction, following the standards
of the Secretary of the Interior issued pursuant to the Archeological
and Historic Preservation Act (16 U.S.C. 469) and the applicant finds
that this program negates the adverse effect, in accordance with the
standards set forth in section X of the Council's ``Supplementary
Guidance for Review of Proposals for Treatment of Archeological
Properties'' (45 FR 78808).
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E. When archeological sites included in the National Register or
which meet the Criteria are found to exist on the project site or in the
area of the project's environmental impact, and where the project is
likely to disturb such resources, and where the adverse effect of such
disturbance cannot be negated by archeological salvage, a determination
of ``Adverse Effect'' is appropriate in accordance with Sec.
801.3(a)(2)(iii).
PART 805_PROCEDURES FOR IMPLEMENTATION OF NATIONAL ENVIRONMENTAL POLICY
ACT--Table of Contents
Sec.
805.1 Background.
805.2 Purpose.
805.3 Applicability.
805.4 Ensuring environmental documents are actually considered in
Council decisionmaking.
805.5 Typical classes of action.
805.6 Interagency cooperation.
805.7 Environmental information.
Authority: Pub. L. 89-665, 80 Stat. 915 (16 U.S.C. 470), as amended,
84 Stat. 204 (1970), 87 Stat. 139 (1973), 90 Stat. 1320 (1976), 92 Stat.
3467 (1978); E.O. 11593, 3 CFR 1971 Comp., p. 154; President's
Memorandum on Environmental Quality and Water Resources Management, July
12, 1978.
Source: 45 FR 4353, Jan. 22, 1980, unless otherwise noted.
Sec. 805.1 Background.
(a) The National Environmental Policy Act (NEPA) of 1969 (42 U.S.C.
4321 et seq.) establishes national policies and goals for the protection
of the environment. Section 102(2) of NEPA contains certain procedural
requirements directed toward the attainment of such goals. In
particular, all Federal agencies are required to give appropriate
consideration to the environmental effects of their proposed actions in
their decisionmaking and to prepare detailed environmental statements on
recommendations or reports on proposals for legislation and other major
Federal actions significantly affecting the quality of the human
environment.
(b) Executive Order 11991 of May 24, 1977, directed the Council on
Environmental Quality (CEQ) to issue regulations to implement the
procedural provisions of NEPA. Accordingly, CEQ issued final NEPA
regulations (40 CFR parts 1500-1508) on November 29, 1978, which are
binding on all Federal agencies as of July 30, 1979. These regulations
provide that each Federal agency shall as necessary adopt implementing
procedures to supplement the regulations. Section 1507.3(b) of the NEPA
regulations identifies those sections of the regulations which must be
addressed in agency procedures.
Sec. 805.2 Purpose.
The purpose of this part is to establish Council procedures that
supplement the NEPA regulations and provide for the implementation of
those provisions identified in Sec. 1507.3(b) of the regulations (40
CFR 1507.3(b)).
Sec. 805.3 Applicability.
(a) These procedures apply to actions of the full Council and the
Council staff acting on behalf of the full Council.
(b) The following actions are covered by these procedures:
(1) Recommendations for legislation.
(2) Regulations implementing section 106 of the National Historic
Preservation Act (NHPA).
(3) Procedures implementing other authorities.
(4) Policy recommendations that do not require implementation by
another Federal agency.
(c) In accordance with Sec. 1508.4 of the NEPA regulations (40 CFR
1508.4), Council comments on Federal, federally assisted and federally
licensed undertakings provided pursuant to section 106 of the NHPA and
36 CFR part 800 are categorically excluded from these procedures. This
exclusion is justified because Federal agencies seeking the Council's
comments under section 106 have the responsibility for complying with
NEPA on the action they propose. The Council's role is advisory and its
comments are to be considered in the agency decisionmaking process.
Coordination between the section 106 and the NEPA processes is set forth
in 36 CFR 800.9.