“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.” (36 CFR § 800.1)
Full Section 106 Regulations:
Amendments to Section 106 effective 5 August 2004:
Plain language version of Section 106 “Archaeology Guidance”:
“Cultural Resource Management in Pennsylvania: Guidelines for Archaeological Investigations” (Pennsylvania Historical and Museum Commission, 1991):
Section 106 items directly relevant to the current Sugar House archaeological investigations include:
“Professional standards. Section 112.a.1.A of the act requires each Federal agency responsible for the protection of historic resources, including archaeological resources, to ensure that all actions taken by employees or contractors of the agency shall meet professional standards under regulations developed by the Secretary.” [36 CFR § 800.2.a.1]
“Review existing information on historic properties within the area of potential effects, including any data concerning possible historic properties not yet identified” [36 CFR § 800.4.a.2].
“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” [36 CFR § 800.11].
“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” [36 CFR § 800.4.a.3]
“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, 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.” [36 CFR § 800.4.b.1]
“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. [36 CFR § 800.4]
“The views of the public are essential to informed Federal decision making 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,…” [36 CFR § 800.2.d.1]
“Disagreement with finding. 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. [36 CFR § 800.5.c.2.i]
“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. [36 CFR § 800.5.c.3]
“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,…” [36 CFR § 800.6.b.2]
Pennsylvania “Guidelines for Archaeological Investigations” items directly relevant to the Sugar House archaeological investigations include:
“The absence of recorded sites does not imply the real absence of sites. Although are a large number of sites currently recorded in the PASS [Pennsylvania Archaeological Site Survey] files, these probably represent less than 5% of the total number of archaeological sites within the state. In order to evaluate the potential effect of an action on archaeological resources, the possibility of significant unrecorded sites being located within the project area must be considered.”“Areas which have been extensively graded or altered (e.g. through surface mining, construction, etc.) may often be eliminated from further consideration, unless there is a possibility that archaeological deposits may be preserved beneath disturbed levels.“
“The Phase I survey is intended to provide an inventory of all potentially eligible archaeological resources within the project area as per Federal Reg. 51 (169) of 9/2/86 and CFR 800.4 as revised 10/1/86.”
“Phase II. For archaeological sites, significance is usually defined as having the potential to contribute significant data to our understanding of past cultural behavior. Phase I surveys do not generally provide sufficient information to allow a determination of the significance of the resources discovered. The Phase II investigation is designed to sample the archaeological deposits at sites identified during the Phase I survey and allow a decision to be made as to their significance, defined as eligibility of the site for listing in the National Register of Historic Places.”
“Phase III investigations are intended to mitigate the adverse effects to significant sites through data recovery. Data recovery investigations generally involve large-scale excavation of a representative sample of archaeological information from a site.”
“It must be emphasized again that the agency (or applicant) remains responsible for the consideration of archaeological resources discovered during construction. Unanticipated discoveries or late finds must be reported immediately to the SHPO and steps taken to prevent any further damage to these resources until an appropriate strategy for investigating, evaluating, and protecting them developed.”
“Submerged … The lack of maritime architecture or features does not imply that submerged maritime resources do not exist.”
“Background Research …
“… a broad-based review of manuscripts, maps, historical documents, notes, prior surveys, and other published material relative to the project area that may assist in the identification of possible sites … Another component of the background investigation includes interviews with informants. These are persons (such as local residents and members of the local Society for Pennsylvania Archaeology chapter and local or county historical societies) who may be familiar with the project area and with the locations of recorded and unrecorded archaeological and historical sites. Informant interviews are very important and must be conducted whenever possible. Known locations should be recorded from informant data, collections examined and documented (photographs, drawings of representative artifacts, summary statistics, etc. are all appropriate), and the names and addresses of informants recorded. Again, this information should contribute to the development of explicit expectations regarding site locations …
“… information on the transformation of the landscape since European settlement: this might include maps prepared by early settlers and surveyors, atlases (Pomeroy, Sanborn, etc.), county histories, early editions of the U.S. Geological Survey topographic maps, or early photographic records …
“… information on settlement history: this might come from regional and local histories, maps, or informants. Both primary and secondary sources may be informative.”
“… information on the pre-urban natural environment, focusing on its relationship to prehistoric and early historic (contact or post-contact) peoples.
“… information on the development of the project area over time, from its pre-urban horizons through to its urban florescence, typically during the twentieth century. The scope of the Phase I research should be broad but integrative and should incorporate discussions of broad social, economic, architectural, technological, ethnic, and other historical and cultural trends in the project area, specifically as these relate to the possibility that potentially significant subsurface cultural resources are or are not likely to be preserved.”
“… information on the effects of the urbanization process on the project area; in particular, this phase of investigation should assess the possibility that earlier construction destroyed or has significantly disturbed any pre-existing archaeological sites or features through grading, blasting, excavation for cellars, subways, sewers, etc. The information should document, if possible, the extent to which earlier construction techniques and projects affected the potential preservation of deeply buried cultural resources.”
“In certain cases, particularly those involving a previously identified, historically significant area such as an urban historic district, informants often can provide historical information that may be useful for identifying archaeological resources. The informants usually will be professional or avocational historians, archaeologists, genealogists, urban planners or archivists who have spent much time studying the vicinity or historic period of the project area.
“Submerged. Documentary research is by far the single most important technique in the identification of underwater archaeological sites or resources. For this reason, and because it is both time and cost-efficient, documentary research should be performed as early in the project planning phase as possible. At a minimum, this research should include:
“a) A consideration of the prehistoric environment, focusing on prehistoric and early historic (contact or post-contact) shore/bank use and previous shore/bank lines.
“b) A reconstruction of the development of the project area over time, from early prehistoric times to the twentieth century. The scope of Phase I research should be broad but integrative and should incorporate discussions of broad social, economic, architectural, technological, ethnic, and other historical and cultural trends in the project area, with an emphasis on their relationship to potentially significant submerged cultural resources. For example the effects of levee construction, dam construction, and dredging should be considered.
“c) A discussion of the effects of maritime development on the project area; in particular the possibility that earlier construction destroyed or has significantly altered pre-existing archaeological sites or features through dredging, harbor expansion, pier/dock construction, etc.
“d) Documentary research for Phase I archaeological investigations in the submerged environment includes an examination of the following:
“i) Applicable general or specific secondary histories;
“ii) Applicable historical and archaeological survey or excavation reports;
“iii) Historic maps, atlases, photographs, navigation charts, and other primary sources as appropriate to identify potentially significant submerged cultural resources in the project area and to assess their condition;
“In some cases, additional primary documents such as deeds, tax assessments insurance surveys, census data, naval records, admiralty records, ships’ manifests, or other public and/or private records should be consulted. In general, detailed research into such records beyond a level necessary to identify and assess submerged resources is not required at the Phase I level. More detailed historical documentation may be required during site assessment or data recovery work.
“Interviews with local watermen, the family members or descendants of watermen, and the local diving community may also prove to be valuable. It should be noted that, in many cases, documentary evidence will indicate that potentially significant submerged archaeological sites, vessels, or contexts are or were once present in the project area. However, it is often possible to demonstrate by further research that such sites, vessels, or contexts are no longer likely to be preserved. In cases where the documentary record is found to be sufficiently complete, specific, and unambiguous, and clearly demonstrates the destruction of potential cultural resources, a report detailing these results will normally meet archaeological survey requirements, with the concurrence of the BHP.
“Phase II Guidelines, Background Research.
“… Supplementary documentary research beyond that conducted at the Phase I level is necessary to place the project area and its archaeological resources or classes of resources into their proper historical and cultural contexts. This allows a more comprehensive understanding of the significance of the resources and, accordingly, of their potential eligibility for the National Register. This phase of documentary research is necessarily more intensive and specific than that conducted at the Phase I level and should address the following considerations:
“a) a more in-depth understanding of the historic character of the project area including the history of property ownership, occupation, land-use, and development. As an example, if the area was primarily industrial in character, the industrial and technological history of the project area should be documented. If the project area was largely residential, more detailed information on, for example, its socio-economic and ethnic character should be assembled.
“b) site-specific documentary data on properties to be examined by archaeological field testing (see next section) are particularly important in this phase. This is necessary so that the empirical data derived from the archaeological testing can be interpreted more fully and in historical context.
“c) documentation of significant persons or events associated with the project area or sites in the project area should be undertaken. This will allow a more informed evaluation of the project area in light both of the anthropologically-oriented National Register criteria and also those linking archaeological resources with significant events or people.
“It should be noted that all the Phase II documentary research outlined above should be conducted prior to any field testing; however, this may not always be possible. In such cases, sufficient documentary research should be conducted prior to the field testing, so that archaeological data will not be evaluated and interpreted in a historical vacuum and so that basic decisions may be made as to field strategy and appropriate techniques.
“The minimum level of documentary research for a Phase II archaeological investigation includes examination of the following types of information.
“a) Primary documents not previously consulted at the Phase I level should be examined and assessed for the project-relevant information they contain. Typical classes of documents that should be consulted include deeds, tax assessments, insurance surveys, census data, road dockets, city directories, maps and atlases, city plots, buildings permits, lithographs, photographs, and other public and private records as may be appropriate for achieving the goals of the Phase II investigation.
“b) Historic properties which, on the basis of Phase I information, appear to have high potential for archaeological significance (i.e., National Register eligibility) should be subjected to briefs of title.
“c) Secondary literature not consulted at the Phase I level and which pertains to the historical, cultural, or processual contexts of identified sites or properties should be consulted in order to address more fully issues of site significance and National Register eligibility.
“Urban … Additional and intensive background research will usually be necessary to define the potential significance, extent, and distribution of the artifact concentrations and features identified in the Phase I study. Since Phase I field testing in urban situations, will normally be very limited, background research is a particularly crucial component of urban Phase II studies in defining the nature and potential of the expected site. It is particularly important in urban contexts that a major portion of the documentary research should be completed prior to fieldwork, since the results of this research will guide Phase II methodology and determine the appropriate techniques and testing locations. Particular attention should be given to the history of city services, water, sewer, and trash collection, as they affect the nature of the archaeological record. Researchers should consult the reports of earlier archaeological investigations, ordinances and resolutions, health department records, utility company records, and other municipal records and maps, as needed. The differences between public policy and actual practice should be recognized in predicting the existence of archaeological resources.
“Submerged. Documentary research is of utmost importance for Phase II survey of submerged archaeological remains.
“a) If a vessel is located, documentation of its history, construction, and importance must be examined. Significant events and individuals associated with the vessel should also be noted.
“b) If other cultural remains such as rock-filled timber cribs for city water intake, chevaux-de-frise, submerged maritime commercial sites, or submerged sites are located, research should focus on their construction and purpose. Such research should include the history of the industry and technology of the project area, as well as it’s socio-economic and ethnic affiliations.
“c) If the area is believed to contain submerged historic resources but has been covered with fill to such an extent that remote sensing techniques are impractical, the documentation should be as complete as possible, incorporating maritime influences, commerce, industry, and residential patterns on the site.
“d) The minimum level of documentary research for a Phase II archaeological investigation would include, but not be limited to, those discussed above for historic and urban contexts.”