Program Comment Questions and Answers


Answers to questions about the program comment process are based on the requirements found in the ACHP’s regulations, past experience in approving program comments, and recommendations developed based on this experience.

Program comments are an alternate method for federal agencies to meet their Section 106 obligations for a category of undertakings. Program comments are one of five program alternatives which allow agencies to tailor Section 106 to meet the needs of the agency [see 36 CFR § 800.14 for a description of all the program alternatives]. Program comments are intended to give the ACHP flexibility to issue comments on a federal program or class of undertakings in lieu of commenting on such undertakings on a case-by-case basis. The ACHP may issue program comments at the request of a federal agency or on its own initiative.

Section 800.14(e) of the Section 106 implementing regulations sets forth the process for issuing such comments. Federal agencies must consider, but are not obligated to follow, the ACHP’s comments. The ACHP may withdraw the comments if not properly implemented, in which case the agency would revert to complying with Section 106 for the subject undertakings by following the standard review process in 36 CFR Part 800 on a case-by-case basis.

Format of this Guidance

Image of a flow chart showing steps to develop a program comment.This chart illustrates the steps the ACHP recommends a federal agency take to develop and request a program comment. Citations identify the required steps outlined in the ACHP’s regulations. The left column shows the steps a federal agency is recommended to take in the program comment development process, while the middle column shows corresponding ACHP actions. The right column adds information about best practices for several of the steps. When agencies follow these recommendations, it helps the ACHP review an agency’s needs and goal for a program comment and plan appropriate consultation. The recommendations also aim to reduce potential delays in issuing a program comment. 

The following questions and answers supplement the information provided in the chart. The ACHP welcomes additional questions that users may have on program comments and this guidance. Questions should be sent to with the following subject line: “RE: ACHP Program Comment Guidance.”

1. What are the benefits of program comments? 

The primary benefit of program comments is that they allow a federal agency to comply with Section 106 of the National Historic Preservation Act (NHPA) in a tailored, consistent way for a class of undertakings rather than addressing each undertaking individually. This is especially advantageous to those federal agencies that may have repetitive management actions affecting a large inventory of similar types of historic properties or for those agencies that have programs that generate many similar undertakings. The ACHP issued a program comment to the Department of Defense (DoD) to assist it in managing its inventory of Capehart and Wherry military family housing built during the Cold War era. DoD estimated this single compliance action allowed it to avoid $82 million in administrative costs by not having to review proposed actions to each of these housing units on an individual basis.

A secondary benefit of program comments is that they allow an agency’s headquarters to establish broader and more holistic approaches to the treatment of certain types of historic properties than is possible at the agency field office level. Many federal agencies have had construction programs funded by Congress that authorize similar buildings or structures to be built across the nation. Program comments typically focus on the larger program including individual resources that may have been constructed under the program. In this way, the program comment allows an agency to put individual resources into a national historic context. 

2. Are program comments appropriate for all classes of undertakings or agency programs?

No. Program comments are not appropriate in all situations. For example, program comments may not be appropriate where an agency has a large number of historic properties but has infrequent undertakings that may actually affect these properties. Program comments may also be inappropriate for classes of undertakings or programs that are likely to be highly controversial in nature.

A program comment provides the ACHP’s comment on the resolution of anticipated adverse effects for a category of undertakings. Therefore, program comments are not typically appropriate where the program would provide for subsequent consultation to determine the appropriate measures to resolve adverse effects to certain historic properties or where later agreement with consulting parties would be sought on specific treatment measures. Such consultative measures are better accommodated in programmatic agreements.

Agencies considering program comments should contact the ACHP to discuss the appropriateness of program comments for their needs. The ACHP also encourages agencies to consider their goals for any program alternative, such as how a program comment could address identified issues in Section 106 compliance and how it could benefit the agency’s overall preservation approach. The ACHP makes its decision regarding issuance of a program alternative on a case-by-case basis based on the nature and scope of the agency proposal. 

3. Who can make requests for program comments?

Because program comments provide a method of managing effects to broad classes of resources or from agency programs, program comment requests typically come from an agency’s headquarters level. The ACHP will typically not issue program comments to an agency’s field or regional office unless an agency can demonstrate a particular class of undertaking is limited to that field or regional office, and it has wide applicability to numerous undertakings.

The ACHP can also issue program comments on its own initiative [36 CFR § 800.14(e)]. In reviewing federal agency missions and the nature of their undertakings, the ACHP may determine a category of undertakings or a federal program would be most appropriately addressed by a program comment. While the ACHP may issue such a program comment, it is up to the agency official [36 CFR § 800.2(a)] to decide whether to follow it. To date, the ACHP has not issued any program comments on its own initiative.

4. Does my agency need to justify the use of program comments?

The ACHP recommends agencies provide justification as to why a program comment is the best way for the agency to comply with Section 106 for a particular group of undertakings. Since developing a program comment is a resource-intensive process on the part of the agency and the ACHP, and it modifies the review and consultation process for that group of undertakings, the federal agency should be able to show a need exists to deviate from the standard Section 106 process, or that another program alternative might not better meet an agency’s needs.

5. What should my agency do prior to requesting a program comment?

Although not a requirement, the first, and the most important, step prior to beginning the program comment process is for an agency to meet with ACHP staff. This initial meeting will allow the agency to identify the need for a program comment, the historic properties likely to be affected, and the classes of undertakings or programs that might be addressed. This initial meeting will give agency and ACHP staffs an opportunity to assess whether the program comment process is appropriate to meet the agency’s needs before committing time and resources in developing more detailed mitigation or treatment measures.

The ACHP also recommends the agency meet with other stakeholders such as the National Trust for Historic Preservation (NTHP), the National Conference of State Historic Preservation Officers (NCSHPO), and the National Association of Tribal Historic Preservation Officers (NATHPO) to begin to seek input on its program comment concept.

If the agency decides to move forward with requesting a program comment, it should notify the ACHP, in writing, of its intent to request a program comment. This will allow the ACHP to assist the agency in planning the public comment and consultation process, and it will help the ACHP to anticipate the resources necessary to move the program comment process forward.

6. What is my agency’s responsibility in the program comment process?

The agency must first identify the category of undertaking(s), specify the likely effects on historic properties, specify the steps to be taken to ensure effects are taken into account,  and identify the time period for which a comment is requested [36 CFR § 800.14(e)(1)].

The agency is then responsible for the public participation process. The agency must arrange for public participation appropriate to the subject matter and the scope of the category for which the program comment will be sought, providing to the public the information outlined in the paragraph above [36 CFR § 800.14(e)(2)]. The ACHP has no specific requirements as to how an agency carries out its public participation process. Agencies are encouraged to use their own public participation procedures and mechanisms to the greatest extent possible.

The ACHP strongly recommends the agency work with ACHP staff in the public participation process. The ACHP recommends a federal agency communicate its intention to request a program comment to consulting parties, such as SHPOs/THPOs, Indian tribes, and Native Hawaiian organizations, and seek their input at the same time that it is conducting public participation. Since the ACHP will be required to act on an agency’s program comment request within 45 days [36 CFR § 800.14(e)(5)] from receipt of the formal request, advanced notification during the agency’s public participation process provides additional time for consulting party involvement. The ACHP will also notify and consult with consulting parties during that 45-day period.

The agency must complete the public participation process prior to formally requesting a program comment as a summary of the public’s views will form a part of the agency’s submittal to the ACHP [36 CFR § 800.14(e)(1)]. The program comment request should be addressed to the executive director of the ACHP. In addition to this summary of the public’s views, the agency’s request must provide the ACHP with a description of the category of undertakings to be considered under the program comment, the likely effects on historic properties, the steps the agency will take to ensure that the effects are taken into account, and the time period for which the program comment is being requested [36 CFR § 800.14(e)(1)].

7. What is the ACHP’s responsibility in the program comment process?

Upon receiving a formal request for a program comment, the ACHP is responsible for consultation with SHPOs/THPOs [36 CFR § 800.14(e)(3)]. The ACHP will notify the SHPOs/THPOs and consider their views on the proposed program comment. In the past, the ACHP has sought comments by publishing a “notice of intent to issue a program comment” in the Federal Register and requesting, by e-mail, SHPO/THPO views on the agency’s proposal. The ACHP’s communication to SHPOs/THPOs will include details about the program comment request, the ACHP’s point of contact for further questions, and the due date for submission of views (typically 30 days).

The ACHP is also responsible for consultation with Indian tribes and Native Hawaiian organizations when the undertakings subject to a proposed program comment have the potential to occur on or affect historic properties on tribal lands or historic properties of religious and cultural significance to an Indian tribe or Native Hawaiian organization [36 CFR § 800.14(e)(4)]. The ACHP will ensure that development of any program comment will include appropriate government-to-government consultation with affected Indian tribes [36 CFR § 800.14(f)]. Where an agency’s proposal is nationwide in scope, the ACHP will consult in accordance with existing executive orders, presidential memoranda, and applicable provisions of law [36 CFR § 800.14(f)(1)]. The ACHP will make summaries of the views, along with written comments provided by affected Indian tribes and Native Hawaiian organizations, part of the official program comment record and will take those views into account in reaching a final decision on issuing a program comment [36 CFR § 800.14(f)(2)]. 

Because the ACHP’s consultation process usually takes up two-thirds of the 45 days in which the ACHP has to respond to an agency’s request, it is strongly recommended that the agency and the ACHP work closely together in the process leading to the agency’s formal request for a program comment. Agencies are also encouraged to coordinate with ACHP staff to share information about their program comment proposals with ACHP members in advance of a formal request, since ACHP members would ultimately vote to issue or not issue the proposed program comment. Program comment requests received by the ACHP without previous knowledge of an agency’s intent do not provide ACHP staff appropriate time to prepare for consultation, ACHP member briefing, and additional outreach as may be needed in reviewing the request. In these cases, the ACHP would likely decline to issue program comments.

8. How long does the program comment process take?

While the ACHP has 45 days from receipt to respond to a formal request for a program comment, an agency should understand that the entire process to develop, request, and consider issuance of the program comment will take considerably longer. Initial meetings with stakeholders and ACHP staff, development of the program comment, and an agency’s public participation process all add time to the program comment process. While there is no set time in which this advance work must be completed, the length of time it will take an agency depends on the nature of the requested program comment and the amount of time and resources both the agency and the ACHP dedicate to the effort. The ACHP’s experience is that a thorough program comment development process typically takes from one to two years to complete.

9. When do SHPOs/THPOs become involved in the program comment process?

The consultation process with SHPOs and THPOs is the responsibility of the ACHP, although it is a best practice for agencies to engage these consulting parties early in the development of program comment proposals. The required consultation does not begin until after the ACHP has received a request to consider a proposed program comment from an agency [36 CFR § 800.14(e)(2)]. However, the agency is responsible for public participation, which must be done prior to submitting a formal request for a program comment to the ACHP. In developing a proposed program comment request the agency must take into consideration any views submitted by the public as part of the public participation process [36 CFR § 800.14(e)(1)]. 

The ACHP strongly recommends that agencies work closely with the ACHP staff during the agency’s public participation process, so the agency and the ACHP can notify SHPOs/THPOs in the early stages of an agency’s program comment development. This allows SHPOs/THPOs to comment directly to the agency with any concerns they may have prior to the formal request being made to the ACHP, and it also helps them identify any issues that remain for the following ACHP consultation process. While the timing of the agency public participation process is not set by the ACHP, the ACHP consultation process must be completed within the 45-day review period provided for in the regulations [36 CFR § 800.14(e)(5)]. The ACHP will strive to work with agencies to allow for maximum SHPO/THPO consultation.

10. What is the ACHP’s process for issuing program comments?

Program comments are issued following a favorable vote by ACHP members. Over the course of developing the program comment, ACHP staff will brief the members on the nature of the program comment and the agency’s efforts in developing an appropriate proposal. These briefings take place during the ACHP’s business meetings and other regular communication with members. While not necessary, the ACHP prefers to coordinate the members’ vote and potential final issuance of a program comment at its business meetings in order to allow open discussion of an agency’s proposal before a vote is taken. The requirement for a vote of the membership whether to issue a program comment is provided in the ACHP’s Operating Procedures.

11. Can the ACHP’s issuance process exceed 45 days?

Yes, but only if the agency official [36 CFR § 800.2(a)] grants the ACHP an extension on its 45-day period [36 CFR § 800.14(e)(5)]. Extensions have been granted previously to allow ACHP members further time to consider an agency’s proposal or to allow the ACHP to coordinate the issuance process with one of its business meetings.

12. What happens if the ACHP declines to comment?

If the ACHP declines to comment on an agency’s proposal, the agency must comply with the requirements of 36 CFR §§ 800.3 – 800.7 for all individual undertakings that would have been subject to the program comment [36 CFR § 800.14(e)(5)(ii)].

13. What responsibilities does an agency have after the program comment is issued by the ACHP?

When the ACHP issues a program comment, the agency official [36 CFR § 800.2(a)] will take into account the ACHP’s comments in carrying out its undertaking within the category for which the program comment was granted. The agency must also publish a notice in the Federal Register of the ACHP’s comments and the steps the agency will take to ensure that effects to historic properties are taken into account [36 CFR § 800.14(e)(5)(i)]. 

Some program comments previously issued by the ACHP have included treatment and/or mitigation requirements as part of the agency’s responsibilities. The ACHP will work with the agency to develop an appropriate schedule for completion of any requirements. This completion schedule may be part of the program comment or may be completed shortly after issuance.

Once the ACHP has issued a program comment, an agency should provide guidance to its field operating offices on how to apply the program comment in relation to compliance with other federal statutes and regulations and the agency’s own internal policies and regulations.

14. How are consulting parties and the public involved in an agency’s program comment after the ACHP’s approval?

While the ACHP’s regulations do not provide a formal role for consulting parties or the public after a program comment is issued, the ACHP is interested in receiving input or answering questions concerning an agency’s implementation of program comments. The ACHP uses this information to assist in reviewing changes that may be needed in the program comment process, in clarifying our guidance, in issuing future program comments to other agencies, and in deciding whether to consider withdrawing previously issued program comments.

15. What happens if the ACHP withdraws a previously issued program comment?

The ACHP can withdraw a previously issued program comment if it determines that an agency’s consideration of historic properties is not being carried out in a manner consistent with the program comment. If the ACHP withdraws a program comment, the agency must comply with the requirements of 36 CFR §§ 800.3 – 800.7 for all individual undertakings that were subject to the comment [36 CFR § 800.14(e)(6)]. If the ACHP withdraws a program comment, it will publish a notice in the Federal Register and notify SHPOs, THPOs, and other consulting parties regarding the withdrawal.

16. Once a program comment is issued, does the ACHP monitor its implementation?

The ACHP recommends that an agency consider a process for monitoring implementation of a program comment and include the process as part of its proposal. In addition to ensuring that the agency’s actions continue to meet the terms of the program comment, e.g., through regular reporting, an agency should consider how it can accomplish two further goals for monitoring. The first goal should be to ensure that any products required under the program comment are produced in a timely manner and are provided to those SHPOs/THPOs and other parties that were involved in the consultation process. For example, this may be done by providing copies of documentation produced under the program comment directly to consulting parties or by posting results on an agency website. The second goal should be to measure the outcomes of having approached Section 106 requirements through the program comment process. The agency should be able to address whether the program comment has produced the desired results expressed in their goal statement and whether the program comment has had the desired effect on the agency’s historic properties.

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