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Section 106 Consultation – Your Rights and Responsibilities

Under section 106 of the National Historic Preservation Act, consultation means “the process of seeking, discussing, and considering the views of others, and, where feasible, seeking agreement with them on how historic properties should be identified, considered, and managed.” Consultation is built upon the exchange of ideas, not simply providing information.

As part of the section 106 process, the Federal Highway Administration (FHWA) and Pennsylvania Department of Transportation (PennDOT) work with consulting parties.  Consulting parties include: the State Historic Preservation Officer (Pennsylvania Historical and Museum Commission), Federally-recognized Indian Tribes, local governments, as well as other individuals and organizations with a demonstrated interest in the project.

Interest is demonstrated by the nature of a legal or economic relation to the project or affected properties, or concern with the project’s effects on historic properties.  A landowner and a local preservation group are examples of an individual and organization with a demonstrated interest.

Consultation does not mandate a specific outcome. Rather, it is the process of seeking views on the project’s effect on eligible historic properties and, if the effect is adverse how project effects on historic properties should be resolved.

Rights of Consulting Parties compared to the rights of the public:



Consulting Party

Information in a timely manner about a project and its effects on historic properties

Participate in the Section 106 process

Formally seek consulting party status based on a demonstrated interest


Provide comment on a PennDOT/FHWA finding that a project has an effect on historic resources within 30 days of notice

Provide comment on how a project would avoid, minimize, or mitigate adverse effects to a historic resource

Attend and participate in consulting party meetings


Provide comment on the eligibility of historic resources within 30 days of notice


Concur on a memorandum of agreement


Object to a PennDOT finding within 30 days of a finding


Elevate an unresolved objection to FHWA, and Advisory Council on Historic Preservation or National Register of Historic Places, as appropriate


Responsibilities of FHWA/PennDOT to consulting parties and the public:

Public Interested Group Consulting Party
Clearly describe the project at the start of the section 106 process, including the project schedule  
Identify and invite consulting parties to participate in the section 106 process for a project    
Consider all requests for formal consulting party status    
Acknowledge (the public and consulting parties’) interests in a project and seek to understand them  
Provide clear comment deadlines where appropriate  
Provide findings of effect and supporting documentation  
Invite comments to resolve an adverse effect  
Document comments received from the public and consulting parties  
Have PennDOT work to resolve an objection to a determination of National Register eligibility, and if necessary involve FHWA in attempting to resolve the objection  
Provide findings of eligibility and supporting documentation and invite comments    
Invite (a consulting party) to concur on a memorandum of agreement, where appropriate    
Have PennDOT work to resolve a (consulting party) objection to a finding, and, if necessary involve FHWA in attempting to resolve the objection    

Consulting Party Responsibilities

Consulting parties and the public have a responsibility to:
  1. Become knowledgeable about the section 106 process.
  2. Become involved early in a project’s development.
  3. Provide information about historic properties in the project’s Area of Potential Effect (APE).
  4. Provide comments and input within established time limits.
  5. Maintain confidentiality on shared information that might cause a significant invasion of privacy or risk harm to a historic resource.

FHWA/PennDOT Rights

FHWA/PennDOT has a right to:
  1. Use existing public involvement procedures under the National Environmental Policy Act.
  2. Scale the efforts to seek public involvement to the likely interest of the public, the complexity of the project and the likely effects on historic resources.
  3. Make the final determination on all requests for formal consulting party status.
  4. Make the final determination on a project’s effect on historic resources.
  5. Proceed to the next section 106 step in the process if the SHPO or other consulting parties fail to respond to a request for comment on a determination or finding.
  6. Elevate an objection to the Advisory Council on Historic Preservation or the Keeper of National Register of Historic Places, as appropriate.
  7. Terminate consultation when it becomes clear to FHWA/PennDOT that agreement cannot be reached.