The effort to comprehensively rewrite the regulations implementing Section 106 of the National Historic Preservation Act continues to move through the federal rulemaking process.
Following the Advisory Council on Historic Preservation’s (ACHP) July vote to advance a Notice of Proposed Rulemaking, the draft is now undergoing interagency review before publication in the Federal Register. Once published, the public will have an opportunity to submit formal comments.
Although the public comment period has not yet begun, several ACHP members submitted comments in response to the Council’s internal review process under the original August 3 deadline initially established by the ACHP. Among them, NCSHPO, and the National Trust for Historic Preservation.
Key Takeaways
- The need for a transparent and collaborative rulemaking process
- Concern that the proposal was not supported by sufficient evidence demonstrating existing regulations are the source of project delays
- Support for targeted improvements that increase efficiency while maintaining meaningful consultation
- Importance of preserving consistent opportunities for SHPO, THPO, Tribal, and public involvement
- Need to avoid creating uncertainty or increased litigation risk
- Several provisions are in direct violation of the National Historic Preservation Act
What’s Next?
The proposed rule is currently undergoing review by the Office of Information and Regulatory Affairs (OIRA) before publication in the Federal Register. After publication, the formal public comment period will begin, providing the first opportunity for anyone to submit comments that become part of the administrative record.
NCSHPO remains engages on this rulemaking process and will share updates, resources, and opportunities for engagement as they become available.
Be sure to bookmark the process timeline, as it is updated.
Where’s Congress at on 106?
Meanwhile, Congress continues to debate broader permitting reform while oversight of the proposed rule remains active, including statements from Senate Energy and Natural Resources Committee Ranking Member Martin Heinrich and other lawmakers. Underscoring, that the ACHP proposed rule process isn’t occurring in isolation.
The Senate Energy and Natural Resources Committee continues to examine Section 106, though it’s unlikely that anything is buttoned up ahead of August recess. Negotiations could continue over the break and may likely advance in September, with current thinking that a larger permitting bill (of which 106/NHPA is a component of), could advance in the lame-duck session, following the November election.
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