ACRA leadership met with the White House Office of Information and Regulatory Affairs (OIRA) Monday to express its profound concerns about the ACHP’s radical overhaul of the regulations that implement Section 106 and call on the ACHP to rescind and rewrite it.
OIRA is the federal government’s central authority for the review of Executive Branch regulations. The ACHP transmitted its overhaul to OIRA after the Council approved it in July. OIRA is tasked with determining if a proposed rule is “significant,” triggering additional analysis, and whether it aligns with federal policies requiring that regulations to foster economic growth while promoting predictability and certainty. OIRA meetings are listening sessions, meaning that federal personnel do not respond to the points that stakeholders make but collect perspectives to inform their decision-making process.
As the nation’s trade association for CRM firms, ACRA briefed OIRA on the effects that the ACHP’s plan would have on the industry, particularly on smaller firms. ACRA pointed out that, if implemented, the proposed regulations would require firms to incur considerable costs on additional training for staff and additional overhead for needing to complete the same work (at the same rate) under dramatically shortened timelines. The proposed regulations, ACRA said, also would cause reputational and legal exposure for CRM firms as it conflicts with state laws and regulations and potentially violates federal law.
ACRA highlighted the many ways in which the ACHP’s proposal was in conflict with executive orders that govern the rulemaking process, as well as with the NHPA itself. The proposed rules would create less stability and predictability by allowing agencies to forgo public consultation at the earliest stages of the Section 106 process, where problems can be identified before shovels hit the ground. The proposed rule also violates federal policies that require agencies to consult with the public and experts on their proposals, ACRA said, noting that the ACHP rushed the changes through the Council without discussion or engagement. ACRA also described the ways in which the proposal would violate the NHPA by attempting to redefine concepts like undertakings, effects, and historic properties that are established in law.
ACRA urged OIRA to call on the ACHP to rewrite the proposed rule to address its conflicts with federal policy and violations of the NHPA. ACRA also called on OIRA to require the ACHP to conduct more extensive analyses of its costs and benefits, including its effects on small businesses.
OIRA is holding additional meetings with stakeholders in the coming weeks. CRM firms can request meetings with OIRA to express their perspectives on the proposed rule. If you firm has a meeting scheduled with OIRA, we have guidance for your meeting available on the Section 106 Action Center now.