Section 106 and Coronavirus Impacts

September 22, 2022

This page includes information about working with the Section 106 review process in light of impacts from the coronavirus (COVID-19) pandemic. Please note the posting date, as information may have been recently updated.

CARES Act and American Rescue Plan Act Funding

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.

Electronic Submissions and Notices to the ACHP

Please communicate directly with the ACHP on all Section 106 matters via phone or email and submit new notices of adverse effect through our Electronic Section 106 Documentation Submittal System (e106). The system allows for receipt acknowledgment and quicker turnaround times since materials are not delayed by mailing or manual processing. Attachments such as a cover letter, reports, maps, and responses or summaries of consulting party comments can and should be included.

Please refrain from mailing duplicate hard copies of any materials sent via electronic mail to the e106 system or ACHP staff. Responses to hard copy notifications of adverse effect may be delayed. Agencies should also communicate electronically with other Section 106 stakeholders, including State and Tribal Historic Preservation Officers, and Indian tribes and Native Hawaiian organizations (NHOs), and other consulting parties consistent with their capacity and stated willingness to do so. Discretion about whether to accept electronic submissions remains with each SHPO and THPO. The ACHP is available to answer questions about Section 106 requirements when challenges are encountered.

Contacting the ACHP about Ongoing Cases

If you need to contact the ACHP staff about Section 106 consultations where the ACHP is participating or providing technical assistance, please use email or telephone to reach the appropriate staff member in the ACHP’s Office of Federal Agency Programs. This agency assignment chart will help identify the ACHP point of contact for a matter involving a specific federal agency. If a document can only be provided in hard copy, please contact us first via email to provide advance notice.

Section 106 Timeframes and ACHP Assistance

While most consulting parties have resumed normal business operations, extraordinary circumstances during the COVID-19 pandemic may warrant case by case adjustments to managing Section 106 reviews. 

The Section 106 deadlines for the response of State and Tribal Historic Preservation Officers, and Indian tribes and Native Hawaiian organizations (NHOs) that attach religious and cultural significance to historic properties affected by the undertaking, regardless of its location (collectively, states/tribes/NHOs), will be considered paused while, due to a COVID-19 outbreak, an office is closed or work conditions are such that the states/tribes/NHOs are unable to carry out their Section 106 duties or statutory rights to consultation in a timely fashion (e.g., staff unavailability due to health reasons; restricted access to records; state or tribal laws requiring hard copy records; lack of Internet access or telework capabilities). The clock will resume once the conditions are no longer in effect.

The ACHP strongly encourages federal agencies to be flexible with Section 106 deadlines when the relevant consulting parties may be facing challenges in meeting such deadlines due to an outbreak. It is also important for federal agencies to remember that their responsibility to consult with any Indian tribe or NHO that attaches religious and cultural significance to a historic property that may be affected by an undertaking is a statutory requirement.

If an agency encounters circumstances where a SHPO/THPO/tribe/NHO has closed or is otherwise unable to respond, and the pausing of the deadlines poses an immediate problem for the agency in conducting its Section 106 review for a priority project, the agency should contact the ACHP staff for advice and assistance. As a reminder, the ACHP must be provided an opportunity to comment on an agency’s proposed course of action for handling an emergency undertaking under 36 C.F.R. § 800.12(b)(2) or a post-review discovery of a historic property under 36 C.F.R. § 800.13(b)(3) regardless of whether the SHPO/THPO comments.