Wednesday, June 22, 2016

No, the Advisory Council’s Regulations are Not Just Advisory

So, I’ve heard from another hip-shooting federal agency official that his agency need not do what the regulations of the Advisory Council on Historic Preservation (36 CFR Part 800) say, because the Advisory Council is only Advisory.
Sigh. Read my lips, fool: the Council is advisory, but its regulations are not.
Section 211 of the National Historic Preservation Act (NHPA) says:
The Council is authorized to promulgate such rules and regulations as it deems necessary to govern the implementation of section 106 of this Act in its entirety.
“Regulation,” say dictionaries of law like the one at, when used as noun means:
…rules and administrative codes issued by governmental agencies at all levels, municipal, county, state and federal. Although they are not laws, regulations have the force of law, since they are adopted under authority granted by statutes… (emphasis added).
Got that? The 36 CFR 800 regulations – federal regulations adopted in accordance with the Administrative Procedures Act after due interagency and public review and comment, under the authority of NHPA Section 211 – have the force of law. When they say that the agency official shall do something, they mean do it. They do not mean “we respectfully advise you pretty please to do it if you feel like it.”
There are parts of the regulations that are advisory; there, words like “should” or “may” are used. But when the regulations say “shall,” they bloody well mean shall.

Sheesh, that I should even have to explain this…


Thomas F King said...

Oh, yeah -- and they "govern the implementation of section 106." Got that? "Govern."

Anonymous said...

Technically, the regulations might not be advisory, but they might as well be called that. There are no penalties for non-compliance with them. The risks of non-compliance are low - only a tiny number of cases will ever go to court, which is the only legal means of enforcement. Nobody pays attention to the vast majority of undertakings. Maybe the Corps will hold up a 404 permit until it receives proof of compliance. Maybe Federal Highways will hold up a transportation grant. Maybe other federal grants and federal permits will be held up until proof of compliance is submitted by an applicant. But all of these secondary controls are a very small percentage of the total, and in these few examples it is other agencies, not the Council, that police the Council's regs and make them more than "advisory". The regulations themselves provide no built in mechanism, and no built in incentive, to ensure compliance. The agency official gets the final say, and the Council can do no more than wag its' finger and make non-binding recommendations in any unresolved dispute. So from the average agency officials' point of view, this is as close to advisory it gets. That's why the agency official uses the term "advisory" - effectively, the regs are advisory, even though they are not. You have done more than anyone to promote the better aspects of the Council's regs and give them as much visibility and lasting impact as possible. For that, you are genuinely owed a very wide debt of gratitude. Unfortunately, Congress never had your back, nor the Council's, nor the backs of the countless other every day defenders of the NHPA regulations.

Thomas F King said...

OK, so what do you want to do about it? I can think of some things, but I'd like to see some ideas from other people?