National Historic Preservation Act of 1966, as amended, 16 U.S.C. 470
Section 110 of the National Historic Preservation Act of 1966, as amended (“Act”), sets forth certain responsibilities of Federal agencies in carrying out the purposes of the National Historic Preservation Act of 1966. Subsection 110(j) authorizes the Secretary of the Interior to promulgate regulations under which the requirements in section 110 may be waived in whole or
(a) When a Federal Agency Head determines, under extraordinary circumstances, that there is an imminent threat of a major natural disaster or an imminent threat to the national security such that an emergency action is necessary to the preservation of human life or property, and that such emergency action would be impeded if the Federal Agency were to concurrently meet its historic preservation responsibilities under section 110 of the Act, that Federal Agency Head may immediately waive all or part of those responsibilities, subject to the procedures set forth herein and provided that the agency head implements such measures or procedures as are possible in the circumstances to avoid or minimize harm to historic properties.
(b) Waiver under § 78.3(a) shall not exceed the period of time during which the emergency circumstances necessitating the waiver exist.
(c) In no event shall a Federal Agency Head delay an emergency action necessary to the preservation of human life or property for the purpose of complying with the requirements in section 110 of the Act.
(a) Federal Agency Heads making use of the waiver authority shall, within 12 days of the effective date of the waiver, notify the Secretary of the Interior, in writing, identifying:
(1) The major natural disaster or imminent threat to the national security necessitating the waiver and the emergency action taken;
(2) The period of effect of the waiver;
(3) Which provisions of section 110 have been waived;
(4) The geographic area to which the waiver applies; and
(5) The measures and procedures used to avoid or minimize harm to historic properties under the conditions necessitating the waiver.
(b) Information copies of the notice under § 78.4(a) shall be forwarded by the Federal Agency Head to the Advisory Council on Historic Preservation and the appropriate State Historic Preservation Officer.
(a) If the Secretary considers that all or part of the agency's decision as outlined under §78.4(a) is inconsistent with the intent of the Act or these regulations for use of the waiver under extraordinary circumstances, the Secretary shall notify the Agency Head
(b) If the waiver is still in effect at the time the Federal Agency Head receives recommendations from the Secretary, the Agency Head shall consider the recommendations and any comments received from the Advisory Council and the State Historic Preservation Officer before deciding whether to continue, withdraw, or modify the waiver. The Federal Agency Head shall respond to recommendations received from the Secretary either accepting or rejecting those recommendations, and, where recommendations are rejected, explaining the reasons for such a decision. Information copies of such response shall be forwarded by the Federal Agency Head to the Advisory Council on Historic Preservation and the appropriate State Historic Preservation Officer.
(c) If the waiver is no longer in effect at the time the Federal Agency Head receives recommendations from the Secretary or comments from the Advisory Council or the State Historic Preservation Officer, the Federal Agency Head should consider such recommendations and comments in similar future emergencies.