States and Indian tribes were the recipients of funding to assist in responding to the COVID-19 pandemic under the CARES Act and American Rescue Plan Act (ARP Act). In responding to questions from states and tribes about the potential applicability of Section 106 to CARES Act and ARP Act funded projects, the ACHP noted that Congress mandated that these funds be given directly to states and tribes, and some federal agencies (such as the Department of the Treasury) acted strictly as a pass-through for the funds to states or tribes. Since the transmittal of the funds to the states and tribes was solely a ministerial act by the federal agency, in the ACHP's view, no Section 106 review is required.

However, CARES Act or ARP Act funded projects could be subject to the requirements of Section 106 if other federal involvement is anticipated for the same project. For instance, if the funds will be used for broadband development, an FCC license, triggering a Section 106 review for the FCC, will likely be involved. The state or local unit of government receiving the CARES Act or ARP Act funds should coordinate with any involved federal agency in determining whether a Section 106 review is required.

Funding under both these laws also supplemented some existing federal agency programs. In cases where the federal agency retains the ability to decide whether a project receives funding or other federal assistance, a Section 106 review would be conducted for the proposed undertaking.