Limitations on the Delegation of Authority by Federal Agencies to Initiate Tribal Consultation under Section 106 of the National Historic Preservation Act
A federal agency is allowed, in some circumstances, to delegate to its applicants the responsibility to initiate consultation pursuant to the regulations that implement Section 106 of the National Historic Preservation Act (NHPA), “Protection of Historic Properties” (36 CFR Part 800). The provision in Section 800.2(c)(4) of the regulations has been used frequently by federal agencies such as the Federal Communications Commission, the Surface Transportation Board, and the Department of Health and Human Services. Although federal agencies can delegate this responsibility without the involvement of the Advisory Council on Historic Preservation (ACHP), inquiries are often made about the applicability of this authority regarding consultation with Indian tribes. This guidance clarifies the restrictions on the use of this provision regarding Section 106 consultation with Indian tribes.