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Guidance on Standard Treatments Questions and Answers
Questions and Answers
Standard treatments are a program alternative that is meant to assist federal agencies in meeting their obligations to comply with Section 106. Unlike other program alternatives, such as program comments or exempted categories, standard treatments do not supplant or substitute for the normal Section 106 process. Using standard treatments in the planning and design of agency undertakings as a best practice may allow an agency to make a finding of no adverse effects for the relevant aspects of the undertaking. In other cases, an agency may find its undertaking will have an adverse effect on historic properties, and it can elect to negotiate an approved standard treatment into an agreement document, either a memorandum of agreement or a programmatic agreement. An agency may also elect to apply standard treatments on an agency-wide basis, using them in conjunction with another program alternative.
Standard treatments represent best practices related to certain categories of undertakings, historic properties, or effects that have been approved by the ACHP; best practices need not be the most expensive or costly treatments that are available for implementation. Agencies that may not have the technical expertise or experience in particular undertakings can use ACHP-approved standard treatments without having to develop detailed treatment options on their own.
Standard treatments also streamline the agency’s Section 106 review process. Standard treatments that delineate practices that fall below the adverse effect threshold may benefit federal agencies by providing certainty in the Section 106 process. Federal agencies would know ahead of time that if they tailor their undertaking in a manner that fits a standard treatment, they will have a no adverse effect finding with regard to the part of the undertaking pertaining to the standard treatment. Standard treatments generally benefit preservation as incentives to federal agencies to avoid adverse effects.
Standard treatments used in negotiating Section 106 agreements may benefit federal agencies and other Section 106 stakeholders in several ways. For example, a federal agency that has little or no experience facing a particular adverse effect will have easy access to the pertinent standard treatments, rather than negotiating from scratch. The standard treatments will contain approved mitigation or minimization measures that will enhance Section 106 agreements. For this same reason, and the ACHP’s explicit endorsement they carry, these standard treatments should facilitate Section 106 agreement negotiations. A consistently applied standard treatment can be useful in reducing implementation costs. Contractors may provide agencies better pricing where standard treatments are regularly built into contract specifications.
State Historic Preservation Officers (SHPO), Tribal Historic Preservation Officers (THPO), and others benefit from standard treatments in knowing that a federal agency that uses them seeks to apply a standard way in which to treat similar undertakings or effects resulting from the agency’s proposed actions. Federal permit or license applicants are better able to project costs of their projects if they know treatments will likely be negotiated into Section 106 agreements consistently.
Yes, any federal agency may request a standard treatment to meet these needs [§800.14(d)(1)]. The ACHP recommends an agency meet with ACHP staff before formally requesting a standard treatment to discuss its needs and the nature of the standard treatments it intends to seek. The ACHP is especially open to establishing standard treatments that have a broad application within the federal government rather than those that meet only the narrow needs of a single agency.
Yes, any other party with an interest in the application of standard treatments in the Section 106 process can request that the ACHP establish a standard treatment [§800.14(d)(1)]. As with requests from a federal agency, the ACHP recommends the other party meet with ACHP staff before requesting a standard treatment to discuss its needs and the nature of the standard treatments it seeks or proposes. The ACHP is especially open to establishing standard treatments that have a broad application rather than those that meet only narrow needs.
While there is no fixed time period established in § 800.14(d) within which the ACHP must act on requests for standard treatments, the ACHP will provide a timely response to parties requesting standard treatments. The ACHP will typically respond to requests within 30 days and may request additional information or schedule a time to meet with the requesting party to discuss its request.
Agencies, in requesting standard treatments, should recognize the nature and extent of the public participation and consultation processes that must take place before the ACHP can implement standard treatments. Although public participation and consultation with SHPOs, THPOs, Indian tribes, and Native Hawaiian organizations may take a significant amount of time to complete, the ACHP will act expeditiously to issue standard treatments once it has agreed with the need for such treatments. Because the issuance of standard treatments is a resource intensive process, the ACHP may ask a federal agency to arrange for public participation in the development of a standard treatment [§800.14(d)(2)].
Yes, standard treatments established by the ACHP may be used by any federal agency [§800.14(d)(1)]. The ACHP’s intent in establishing standard treatments is that each standard treatment be a best practice in meeting a specific need or solving a particular problem. When the ACHP establishes a standard treatment, the ACHP does not necessarily issue standard treatments to a particular agency or other party. All standard treatments published in the Federal Register as a “Notice of Approval of Standard Treatments” are available to any federal agency.
Although federal agencies that request standard treatments do not have a fixed role in the standard treatment process, the ACHP recommends that agency staff meet with ACHP staff to discuss the needs of the agency before formally requesting them. If the ACHP moves forward on the agency’s request for standard treatments, the ACHP may also request that the agency arrange for public involvement appropriate to the subject matter and scope of the requested standard treatment [§800.14(d)(2)].
SHPOs and THPOs have the right to request standard treatments from the ACHP. Where standard treatments are not requested by SHPOs or THPOs, the ACHP will involve SHPOs and THPOs in the standard treatment process by requesting and considering their views on the proposed standard treatment [§800.14(d)(3)]. The ACHP is likely to request their views through such methods as publication in the Federal Register of a “Notice of Intent to Issue Standard Treatments” and broadcast electronic mail messages. The ACHP will ensure there is adequate time to respond to the ACHP with comments.
Indian tribes and Native Hawaiian organizations have the right to request standard treatments from the ACHP. Indian tribes and Native Hawaiian organizations also have a role in the standard treatment process when a 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. In those occasions, the ACHP will consult with the affected Indian tribes and Native Hawaiian organizations. In consultations with Indian tribes, the ACHP will identify an appropriate government-to-government consultation process that meets existing Executive Orders, Presidential memoranda, and any applicable provisions of law. [§800.14(d)(4)].
Under § 800.14(d) of the Section 106 regulations, the ACHP may establish standard treatments on its own initiative or follow a request by federal agencies or other parties interested in seeing standard treatments applied to a category of historic properties, a category of undertakings, or a category of effects.
The ACHP is responsible for arranging for public participation [§800.14(d)(2)], consultation with SHPOs and THPOs [§800.14(d)(3)] and, as necessary, consulting with Indian tribes and Native Hawaiian organizations [§800.14(d)(4)]. The ACHP will likely publish in the Federal Register a “Notice of Intent to Issue Standard Treatments.” This notice of intent would include the language of the proposed standard treatment. The ACHP would provide SHPOs, THPOs, and others with a copy of the notice of intent and a request for comments on the proposed standard treatment. Depending upon the nature of the proposed standard treatment, the ACHP may arrange for other methods of outreach as it deems necessary. Consultation with Indian tribes and Native Hawaiian organizations would take place in accordance with the answer to the previous question.
The ACHP will take into consideration any views it receives and will modify a proposed standard treatment as it deems necessary. The ACHP executive director is responsible for the final approval of standard treatments. Approved standard treatments will be published in the Federal Register [§800.14(d)(1)] as a “Notice of Approval of Standard Treatment.” Upon publication, standard treatments go into effect and are available for use in the Section 106 process.
The ACHP uses the Federal Register as its primary method of outreach to notify SHPOs, THPOs, Indian tribes, Native Hawaiian organizations, and the public about standard treatments it intends to consider under § 800.14. However, because the public is typically unfamiliar with the Federal Register, the ACHP will also notify organizations such as the National Trust for Historic Preservation and other preservation groups and professional associations of the ACHP’s intent to issue standard treatments. The ACHP will ensure it has provided adequate time for these organizations to notify their members and for the members to provide any comments they may have concerning the proposed standard treatments.
While the ACHP regulations do not provide a direct role for the National Park Service (NPS) in the standard treatment process, the ACHP relies on the NPS to help guide the development of specific standard treatments. Standard treatments, as best practices, should comport with the Secretary of the Interior’s Standards and Guidelines (http://www.cr.nps.gov/standards.htm), as applicable. Agencies and other parties requesting standard treatments from the ACHP should refer to the Secretary of the Interior’s Standards and Guidelines in shaping their requests. The NPS Preservation Briefs (http://www.cr.nps.gov/hps/tps/briefs/presbhom.htm), as well as its Preservation Tech Notes (http://www.cr.nps.gov/hps/tps/technotes/tnhome.htm) may provide valuable information in developing standard treatments.
Although standard treatments are a program alternative under 36 CFR §800.14, they are meant to assist federal agencies in satisfying the requirements of Subpart B of the Section 106 regulations [§800.14(d)(1)], and not to supplant or substitute for those requirements. Agencies electing to use standard treatments cannot avoid the Section 106 process simply because these treatments have been established by the ACHP. Subpart B of the Section 106 regulations (the default Section 106 process), requires agencies to identify historic properties, evaluate their eligibility to the National Register of Historic Places, make a determination of effect and attempt to resolve adverse effects. These steps are conducted in consultation with SHPOs, THPOs, Indian tribes, and Native Hawaiian organizations and others interested in those agency undertakings that may have effects on historic properties.
However, as stated above in the answer to the first question on this guidance, standard treatments may describe practices that the ACHP deems to fall below the adverse effect threshold or provide ACHP-endorsed mitigation and minimization measures for use in negotiating Section 106 agreements.
Some standard treatments describe practices that the ACHP deems to fall below the adverse effect threshold. Standard treatments may be built into an agency’s planning design and construction process for a particular undertaking. Federal agencies could make changes to relevant aspects of their undertakings so that they would fit such standard treatments. A “no adverse effect” finding would be appropriate with regard to those aspects of the undertakings that met such standard treatments.
Other standard treatments would provide ACHP-endorsed mitigation and minimization measures. Federal agencies could use applicable standard treatments in negotiating Section 106 agreements. The standard treatment could become part of the final Section 106 agreement.
In certain circumstances, the ACHP may work with a federal agency to use standard treatments in conjunction with other program alternatives such as program comments and exempted undertakings. Agencies requesting a program alternative to implement an established standard treatment must go through the process required by such a program alternative.
Yes, the ACHP may terminate a standard treatment [§800.14(d)(5)]. To do so, the ACHP must publish a notice of termination in the Federal Register. Terminations take effect 30 calendar days after the date the ACHP’s notification appears in the Federal Register.
It is not the ACHP’s intent to review previously made decisions that relied on a standard treatment that the ACHP has subsequently terminated. Existing “no adverse effect” determinations and Section 106 agreement documents that are based on or incorporate standard treatments should not be affected by the subsequent termination of the relevant standard treatments. However, Section 106 agreements can be terminated according to their own terms. The termination of a standard treatment that was used in a previous Section 106 agreement could be a legitimate reason for a signatory to seek to terminate or amend such an agreement.
Standard treatments issued by the ACHP, along with other program alternatives are posted on the ACHP Web site at http://www.achp.gov/progalt/.