Section 106 Archaeology Guidance

The ACHP’s regulations [36 CFR § 800.3(c)(4)]¹ specify timeframes for consulting parties to respond to agency findings and determinations. When the regulations specify a timeframe for a response, the federal agency cannot proceed before that specified period has ended. Where no timeframe is given, agencies should expect a response within a reasonable time.

While consulting parties determine their level of participation in the Section 106 process, the refusal of a participant to consult or provide their views within a time frame specified in the regulations or a reasonable time frame does not stop the process. When a consulting party has been notified of a reasonable deadline for response but has exceeded that time limit, the federal agency may elect to extend the review period or may decide to proceed in the Section 106 process. In either case, the agency should ensure that it can document a reasonable and good faith effort to consult (See “Consulting with Indian Tribes in the Section 106 Review Process” at www.achp.gov/regs-tribes.html and “Native Hawaiian organizations and the Section 106 Review Process” at www.achp.gov/regs-nhos.html).

However, federal agencies and their contractors should be aware that there may be cultural prohibitions preventing or limiting information sharing, such as with archaeological sites that are properties of traditional religious and cultural significance to Indian tribes or NHOs. Where such a restriction exists, the agency should work closely with that consulting party to ensure sufficient information can be shared to support informed decision-making.

Section 304 of the National Historic Preservation Act provides protection from public disclosure of information about a historic property that might result in harm to the property, a significant invasion of privacy, or impediments to traditional religious practice at a site. For example, a tribe might be concerned that sharing information about the location of an archaeological site that contains human remains could make that site more vulnerable to the destructive activities of looters. The federal agency should inquire into the reasons behind an Indian tribe or other consulting party’s non-response since a concern protected by Section 304 may be involved.

The ACHP’s regulations require federal agencies to make a “reasonable and good faith effort” to identify Indian tribes or NHOs that should be consulted and provide them a “reasonable opportunity” to share their views in all steps of the Section 106 process. In practice, this does not mean an agency must put the progress of the undertaking on hold indefinitely until all tribes or NHOs respond. When the designated tribal or NHO representative has been involved in consultation and received adequate information, the agency may proceed if no response is received within a reasonable time.

For tribal consultation, the ACHP strongly recommends the agency follow-up to ensure its request has reached the correct tribal representative and that the time provided for response took into account any tribal government procedures. For example, a federal agency may propose a response within 30 days. If the tribal council meets every 90 days, and must approve all tribal correspondence, the agency’s time frame for response may not be reasonable. Federal agencies should take all reasonable measures to ensure a consulting party’s views are considered as it moves forward through the Section 106 process.