Alternate Procedures Questions and Answers


Under 36 CFR § 800.14(a), federal agencies may develop their own procedures to implement Section 106, which would substitute for Subpart B of ACHP’s regulations.

What are the Advisory Council on Historic Preservation’s regulations?

Section 106 of the National Historic Preservation Act (NHPA) requires that Federal agencies take into account the effect that their undertakings have on properties that are listed on or eligible for the National Register of Historic Places. NHPA also authorizes ACHP to promulgate regulations that implement Section 106 in its entirety. These regulations are published in the Code of Federal Regulations at 36 CFR Part 800.

ACHP’s regulations apply to all Federal agencies and the undertakings that each conducts in carrying out its mission. Undertakings can range from construction projects to issuance of permits, from maintaining national transportation infrastructure to providing funding for State and local projects. Because of this great diversity of agency missions, ACHP’s regulations are necessarily very broad in how they address the goals of historic preservation at the national level.

What are alternate procedures?

ACHP realizes that its regulations may not perfectly fit the needs of an agency’s program, and that increased savings may be realized when an agency develops alternate procedures rather than attempting to “fit” the agency’s undertakings to the Section 106 process defined by ACHP regulations. Under 36 CFR §800.14(a), ACHP allows Federal agencies to develop their own procedures to implement Section 106, which would substitute for Subpart B of ACHP’s regulations. Subpart B details the process that is normally followed to comply with Section 106.

How can alternate procedures benefit my agency?

Alternate procedures allow Federal agencies to restructure and streamline the Section 106 process to meet the missions of the agency specifically. For a smaller agency whose missions are limited in scope or deal with limited historic resources, alternate procedures can result in both time and cost savings. Larger, multiple-mission agencies can develop alternate procedures that allow different organizational elements to tailor their approach to Section 106 to best meet their individual needs. Time and cost savings to the agency can be realized here as well.

Many larger Federal agencies have developed agency-wide policies to address their individual historic preservation needs, such as land management and permit issuance. These policies can be incorporated into alternate procedures to provide a more holistic approach to an agency’s historic preservation program.

How do I begin the process of preparing alternate procedures?

ACHP recommends that an agency considering alternate procedures contact ACHP to discuss the costs and benefits of this process. While this is not a prerequisite to beginning the alternate procedure process, ACHP can provide agencies with valuable information to assist them in making a sound decision that will ultimately provide the streamlining the agency desires.

Can I prepare alternate procedures or will I need assistance?

Since ACHP must approve an agency’s alternate procedures and find them consistent with its own regulations, ACHP should be involved as early as possible. This involvement should continue throughout the development of the agency’s alternate procedures. ACHP is willing to enter into interagency agreements to assist agencies in coauthoring alternate procedures.

Who must be consulted in developing alternate procedures?

An agency must consult with ACHP in developing its alternate procedures. The agency must also consult with the National Conference of State Historic Preservation Officers or individual State Historic Preservation Officers/Tribal Historic Preservation Officers *, as appropriate, and Indian tribes and Native Hawaiian organizations (36 CFR §800.14(f)). In addition, ACHP recommends that agencies consult with the National Association of Tribal Historic Preservation Officers. Finally, the agency must seek public input into the development process.

Who approves my agency’s alternate procedures?

When an agency is satisfied that the alternate procedures it has developed meet the needs of the agency, it submits the procedures to ACHP for a 60-day review period. If ACHP finds that the agency’s procedures are consistent with 36 CFR Part 800, ACHP will notify the agency that it may adopt them as final procedures. Finally, the agency must publish notice of final alternate procedures in the Federal Register.

What is the difference between alternate procedures and counterpart regulations?

ACHP has published revised regulations that allow Federal agencies to develop alternate procedures to replace Subpart B of ACHP’s regulations. Prior to the revised regulations, the only comparable avenue an agency had to streamline ACHP’s regulations was to develop “counterpart regulations.” The counterpart regulation process was a much more arduous process, eventually resulting in the counterpart regulations being codified in the Code of Federal Regulations. The current regulations of ACHP neither require nor prevent an agency from codifying its alternate procedures.

My agency has already developed Programmatic Agreements with ACHP—what more do alternate procedures offer?

Programmatic Agreements offer a method for streamlining specific programs and projects. Alternate procedures allow the process itself to be changed to meet the agency’s needs, thereby streamlining all of the agency’s programs and undertakings.

Who can I contact for further information on alternate procedures?

Agencies interested in finding out more about the alternate procedures process should contact Reid Nelson, Director, Office of Federal Agency Programs, Advisory Council on Historic Preservation, 401 F Street NW, Suite 308, Washington, DC 20001-2637 - (202) 517-0200

* The regulations define the term "THPO" as those tribes that have assumed SHPO responsibilities on their tribal lands and have been certified pursuant to Section 101(d)(2) of the NHPA. Nevertheless, remember that tribes that have not been so certified have the same consultation and concurrence rights as THPOs when the undertaking takes place, or affects historic properties, on their tribal lands. The practical difference is that during such undertakings, THPOs would be consulted in lieu of the SHPO, while non-certified tribes would be consulted in addition to the SHPO.