On January 20, 2025, President Donald Trump issued an Executive Order Declaring a National Energy Emergency (EO 14156), in which he declared an energy emergency in regard to the availability of domestic energy resources and domestic energy production, transportation, refining, and generation. In section 2(a) of the Executive Order, the President directed all executive departments and agencies, including the ACHP, to identify and exercise any lawful emergency authorities available to them, as well as all other lawful authorities they may possess, to facilitate the identification, leasing, siting, production, transportation, refining, and generation of domestic energy resources, including, but not limited to, on federal lands. In accordance with the President’s declaration and directives to agencies, the ACHP is providing advice on the availability of existing emergency provisions in the Section 106 regulations to facilitate the identification, leasing, siting, production, transportation, refining, and generation of domestic energy resources, including, but not limited to, on federal lands. It is the responsibility of each federal agency to determine what actions would be subject to the terms of this Executive Order.

Most actions proposed by agencies in accordance with the Executive Order will likely constitute federal undertakings requiring compliance with Section 106. The regulations implementing Section 106, 36 CFR part 800, acknowledge that activities that respond to a disaster or emergency declared by the President require expeditious review. Accordingly, the ACHP is providing the following information to assist agencies in implementing the terms of the Executive Order in regard to historic preservation reviews. 

It is the federal agency's responsibility to determine whether a proposed undertaking is subject to EO 14156 and responsive to the declared emergency. While the ACHP is available to provide technical assistance on the use of 36 CFR § 800.12 for Section 106 purposes, the ACHP cannot advise agencies on whether an undertaking meets the criteria of the EO. Consistent with 36 CFR § 800.12(b)(1), for any proposed undertaking that falls within the scope of the Executive Order, agencies should follow the terms of any applicable Section 106 agreement that contains emergency provisions, when such agreements exist. 

In the absence of such a Section 106 agreement document, agencies can avail themselves of the expedited emergency provisions in Section 800.12(b)(2) of the Section 106 regulations, which require, prior to the undertaking, the agency to notify the ACHP, the appropriate State Historic Preservation Officer or Tribal Historic Preservation Officer (SHPO/THPO), Indian Tribes or Native Hawaiian Organizations (NHOs) of the undertaking and provide them an opportunity to comment within seven days of notification. Where circumstances allow, agencies are encouraged to consider providing additional time for review and comment, as certain activities addressed by the Executive Order may allow additional time to consider potential effects to historic properties.

Agencies should keep in mind that Section 110(f), 54 U.S.C. § 306107, of the NHPA requires the agency, to the maximum extent possible, undertake such planning and actions as may be necessary to minimize harm to any National Historic Landmark (NHL) that may be directly and adversely affected by a proposed undertaking. Where a proposed emergency response undertaking may directly and adversely affect an NHL, the agency should ensure it meets the higher level of consideration required by Section 110(f) in following the expedited Section 106 review process described above. This would include notifying the National Park Service (NPS) and inviting its comment in the time allowed. 

While Section 800.12 only applies for 30 days following an emergency declaration, pursuant to Section 800.12(d), the ACHP is hereby extending the applicability of the Section 106 emergency provisions to run for the duration of the Presidential declaration. This is consistent with the National Emergencies Act, which allows an emergency declaration to remain in effect until a subsequent Presidential proclamation ends it, or until Congress passes a concurrent resolution terminating the emergency.

Additional information may be shared by the ACHP as agencies begin to identify emergency actions relating to this Executive Order. The ACHP will also provide updates via email and on its website as needed. Questions can be directed to Jaime Loichinger, Director of the Office of Federal Agency Programs, at jloichinger@achp.gov.

Frequently Asked Questions

What documentation is needed for a notification under 36 CFR § 800.12(b)(2)?

Agencies are not required to follow the documentation standards set forth in 800.11(d)-(e) because, under the emergency section, agencies do not need to make formal effect findings for each proposed emergency response undertaking. Rather, the agency should provide as much information as may be available about the proposed undertaking, its likely effects to historic properties, and any measures proposed to resolve adverse effects in its notification.

How should agencies identify Indian Tribes or Native Hawaiian organizations that may attach religious and cultural significance to historic properties that may be affected by an emergency undertaking?

If the emergency action will take place on or affect historic properties on Tribal lands as defined by 36 CFR § 800.16(x), agencies are required to notify the Tribal Historic Preservation Officer; or if the Tribe has not assumed THPO duties, the agency must notify the Tribe's cultural resource officer and/or other designated Tribal official, along with the SHPO. If the emergency action will take place off Tribal lands, agencies would need to identify and notify Tribes who may have properties of religious and cultural significance affected by the emergency action by reviewing archival records and past consultations in the same geographic area, or by utilizing tools such as HUD's Tribal Directory Assessment Tool.

Must undertakings implemented in response to the emergency be completed within 30 days? Or may implementation take longer?

Undertakings responding to EO 14156 do not need to be completed within 30 days. As a general rule, emergency response undertakings must be initiated within a 30-day window. However, in this case, the ACHP has extended the applicable time period for use of 800.12 procedures to review emergency undertakings to coincide with the duration of the Presidential declaration, meaning that the undertakings must be initiated while the emergency declaration is still in effect.

The advice does not mention the public or other consulting parties other than SHPO/THPO, Tribes/NHOs, and the ACHP (and NPS if an NHL is affected). Is there no requirement for public review and/or other consulting parties to be involved?

Section 800.12(b)(2) does not require public involvement or notification to other consulting parties, although agencies are encouraged to do so as time allows.

How does this advice apply to proposed undertakings subject to ongoing Section 106 consultations?

Agencies should exercise reasonable application of this advice to proposed undertakings currently undergoing Section 106 review and consultation. For reviews close to completing consultation, for instance, agencies should continue the process to obtain the relevant concurrence of the consulting parties on an effect finding or to finalize and execute a Section 106 agreement resolving any adverse effects. However, an agency may determine the expedited review process is warranted for a proposed undertaking for which a Section 106 review has been initiated. If so, the agency should clearly articulate the rationale for the change in its approach to compliance and share that information with the consulting parties. The agency should also ensure information about the proposed undertaking and its effects already identified and developed in consultation is shared in the expedited review, so the information can inform conditions to avoid or minimize effects to historic properties.

When following 36 CFR § 800.12(b)(2), is the agency required to develop a Section 106 agreement document if the proposed undertaking would adversely affect historic properties? 

No, the emergency provisions in 800.12(b)(2) do not require execution of a Section 106 agreement to conclude the review. However, if time permits, the ACHP recommends the agency work with consulting parties to document the resolution of adverse effects in an agreement document. If time does not allow for the development of a Section 106 agreement, the agency should describe the proposed resolution of adverse effects in the notification to consulting parties for review and comment and document the final measures following the expedited review process in other available documentation (e.g., permit terms, funding agreement, etc., as appropriate).

What happens if an agency has a post-review discovery during construction of an undertaking that was reviewed pursuant to 36 CFR § 800.12?

An agency should handle any post-review discovery that occurs after completion of the review process under 36 CFR § 800.12 in accordance with either an existing agreement document applicable to the undertaking that stipulates response steps or the process in 36 CFR § 800.13(b), which includes notification to the ACHP, the SHPO/THPO, and any Tribe or NHO that might attach religious and cultural significance to the affected property.

Could an agency propose emergency procedures pursuant to 36 CFR § 800.12(a)?

Yes. The development of such procedures would require consultation with SHPOs, Tribes, NHOs, and the ACHP. If approved by the ACHP’s executive director, those procedures would then govern the agency’s historic preservation responsibilities during the energy emergency. Should an agency be interested in developing such procedures, please contact the Director of the Office of Federal Agency Programs, Jaime Loichinger, at jloichinger@achp.gov.

Why did the ACHP extend the emergency provisions to run for the length of the Executive Order?

Such an extension is consistent with the National Emergencies Act, where an emergency declaration remains in effect until rescinded by the President or through a concurrent resolution by Congress. This is unlike disasters or emergencies declared under the Stafford Act, which has a specific incident period that relates to the applicability of the emergency period.

Updated March 27, 2025