Last Friday we posted on the Advisory Council on Historic Preservation’s move to weaken Section 106’s consultation requirements. We emphasized that the proposed rule, which hasn’t yet been published in the Federal Register, may include a short window of 30 days for submission of comments.
Likely Problems with an Anticipated Short 30-Day Comment Window
Thirty days is notably short, not consistent with best practices identified by EO 13563(2)(b) and EO 12866(6)(a)(1), and unlikely to afford sufficient opportunity for meaningful Tribal participation. Once the NPRM is published, Tribes will need to share the draft with their THPOs, legal counsel, natural resources and cultural staff, executive leadership, and Tribal Council before submitting their comments. The process for Tribal government preparation of comments is profoundly different than national industry associations and corporations, which have dedicated regulatory counsel whose jobs are dedicated to monitoring and immediately responding to federal rulemaking. If ACHP publishes the notice of proposed rulemaking with only 30 days for comments, Tribes and their advocates could consider immediately requesting an extension to at least 60 or even 90 days. The argument would be that given the breadth of the proposed revisions and the consultation and internal review required for affected Tribes, a longer period is necessary to provide a meaningful opportunity for informed comment.
Tribes Can Request a Meeting with OIRA within OMB to Address Changes to Section 106 Now
Tribes and other interested parties don’t have to wait for the comment period to engage. They can weigh in now by requesting a meeting with the Office of Information and Regulatory Affairs (OIRA) within OMB. OIRA review isn’t just an internal federal process conducted behind closed doors. Interested parties, including Tribes, can request meetings while regulatory actions are under review. Regulated industries routinely use these opportunities, and Tribes should know that the same opportunity is available to them. All Tribes should know that they don’t have to wait until the proposed rule is published in the Federal Register to make their concerns known.
The link to request a meeting is here. To request a meeting, you’ll need to provide the Regulatory Identification Number (RIN) for OIRA’s current review of amendments to the Implementing Regulations for Section 106. The RIN is 3010-AA10. OIRA’s role in the rulemaking process is described in EO 12866.
There are no OIRA meetings currently scheduled with Tribes or Tribal organizations regarding its consideration of changes to Section 106 regulations, although the National Association of Tribal Historic Preservation Officers (NATHPO) reports that they submitted a request for a meeting on August 11. So far, OIRA met with Edison Electric Institute on August 13, and it has meetings scheduled for the Society for American Archaeology, the Wisconsin SHPO, the WA Dept of Archaeology and Historic Preservation, Agora Consulting LLC on behalf of the American Cultural Resources Association, and the National Conference of State Historic Preservation Officers.
A How To Guide for EO 12866 meetings (Meetings on a Regulatory Action under Review with the Office of Information and Regulatory Affairs) is available on the OIRA website here.
