National Historic Preservation Act - Section 106

36 CFR Part 800 Subpart A (up to date as of 10/01/2024)
Purposes and Participants

36 CFR Part 800 Subpart A (Oct. 1, 2024)

This content is from the eCFR and is authoritative but unofficial.

Title 36 —Parks, Forests, and Public Property
Chapter VIII —Advisory Council on Historic Preservation
Part 800 —Protection of Historic Properties
Authority: 16 U.S.C. 470s.
Source: 65 FR 77725, Dec. 12, 2000, unless otherwise noted.

Subpart A Purposes and Participants
§ 800.1 Purposes.
§ 800.2 Participants in the Section 106 process.
Subpart A—Purposes and Participants
§ 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.

§ 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
36 CFR 800.2(a) (enhanced display)

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36 CFR Part 800 Subpart A (up to date as of 10/01/2024)
Purposes and Participants

36 CFR 800.2(a)(1)

has approval authority for the undertaking and can commit the Federal agency to take appropriate action
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 agencyspecific 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.
36 CFR 800.2(c) (enhanced display)

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36 CFR 800.2(c)(1)

(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
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 § 800.3(c)(1), or if the Indian tribe agrees to include the SHPO pursuant to §
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.
36 CFR 800.2(c)(2)(ii)(A) (enhanced display)

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36 CFR Part 800 Subpart A (up to date as of 10/01/2024)
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36 CFR 800.2(c)(2)(ii)(B)

(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 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 § 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 governmentto-government relationships with Indian tribes.
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(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.

36 CFR 800.2(d)(3) (enhanced display)

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