OIRA, Section 106, and the Future of America’s Historic Places: Why FRFT Is Acting Now

The preservation of America’s historic places often depends on decisions made long before the public sees construction equipment arrive at a cemetery, historic neighborhood, church, school, burial ground, or cultural landscape.

One of the federal processes that can make early intervention possible is Section 106 of the National Historic Preservation Act.

The regulations implementing Section 106 are now being considered for modification by the Advisory Council on Historic Preservation, commonly known as the ACHP. The federal regulatory action is identified as RIN 3010-AA10 — Amendments to the Implementing Regulations for Section 106 of the National Historic Preservation Act. The Unified Agenda lists the action at the proposed-rule stage and identifies it as deregulatory.

For the Freedmen Reparations Fund Trust (FRFT), this is not an abstract regulatory debate.

FRFT is actively working with historic cemeteries, descendants, property owners, historical representatives, local governments, genealogy records, preservation professionals, and other stakeholders across the United States.

Changes to the Section 106 process could affect how historic places are identified, how communities participate, and how federal decisions involving those places are reviewed.

That is why FRFT has begun acting before the proposed rule is even published.

What Is Section 106?

Section 106 applies when a federal agency carries out, assists, funds, permits, licenses, or approves an undertaking that has the potential to affect historic properties.

It requires the federal agency to consider the effects of that undertaking on historic properties before making its final decision.

Importantly, Section 106 also provides opportunities for the ACHP, consulting parties, interested parties, and members of the public to participate in the process.

Section 106 is not an automatic prohibition against development, and it does not guarantee that every historic property will be preserved.

What it provides is a process.

That process can require important questions to be addressed before irreversible decisions are made:

• Is a historic property present?

• Have the appropriate records been examined?

• Who should participate in consultation?

• Could there be unmarked graves?

• Are descendants or property owners aware of what is happening?

• What effect could the project have?

• Can the historic property be avoided?

• Can the damage be minimized?

• Are there reasonable alternatives?

• What commitments will be made if adverse effects cannot be avoided?

• For historically underdocumented communities, the ability to ask those questions early can be extremely important.

Why This Matters Beyond Freedmen Cemeteries

This issue affects historic places throughout the United States.

Section 106 can become relevant to federally connected projects involving historic buildings, archaeological sites, traditional cultural places, historic districts, cultural landscapes, cemeteries, transportation projects, utility corridors, infrastructure, and other properties that may qualify for historic recognition.

That means changes to the regulations could have consequences far beyond one type of property or one population.

Historic preservation frequently occurs at the intersection of development and memory.

A highway may cross land containing an old burial ground.

A federally permitted project may affect a historic neighborhood.

Infrastructure may alter access to a cemetery.

Drainage changes may increase erosion.

Industrial development may surround a historically significant community.

A project may encounter a site that was never properly recorded.

The challenge becomes even greater when the people connected to that historic place moved away generations ago and do not know that their family still has a connection to the land.

Why Freedmen Historic Places Are Especially Vulnerable

FRFT’s cemetery work has repeatedly demonstrated the same problem:

The official record does not always tell the entire story.

• Historic Freedmen cemeteries may be connected to old churches, family lands, former plantations, Freedmen communities, schools, burial associations, or properties passed through generations without modern institutional documentation.

• Some cemetery records remain in county courthouses and have never been digitized.

• Some burials are unmarked.

• Some headstones have been buried, broken, vandalized, or lost.

• Some property ownership must be reconstructed through deeds and probate records.

• Some descendants have moved hundreds or thousands of miles from the communities where their ancestors are buried.

• That means a historic-property review that relies exclusively on a modern database may miss the very places most in need of protection.

• A death certificate may establish a burial connection.

• A church record may identify a community.

• An 1800s deed may establish the cemetery.

• A family obituary may connect generations.

• An old plat may show something that disappeared from later maps.

• A descendant may possess information that no government database contains.

  
  

This is why FRFT believes meaningful identification and descendant participation must remain central to historic-preservation review.

The Proposed Section 106 Rulemaking

On July 24, 2026, the ACHP announced that its members had voted to move forward with a Notice of Proposed Rulemaking concerning revisions to the Section 106 regulations contained in 36 C.F.R. Part 800.

The ACHP stated that the draft NPRM would move through interagency review with the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget before publication in the Federal Register.

The actual proposed regulatory text has not yet been publicly released.

That distinction is important.

FRFT is not claiming that the unpublished proposal eliminates a specific protection.

Instead, FRFT is establishing the preservation principles that should be evaluated once the federal government publishes the actual proposed text.

What Is OIRA?

The Office of Information and Regulatory Affairs, or OIRA, is part of the Office of Management and Budget within the Executive Office of the President.

Among its responsibilities, OIRA conducts centralized review of certain federal regulatory actions before agencies publish or finalize them.

When an eligible regulatory action is under OIRA review, interested members of the public may have an opportunity to request an E.O. 12866 meeting and present information concerning the regulatory action.

That creates an important opportunity for FRFT.

Instead of simply telling federal officials that historic cemeteries need protection, FRFT can build a documented record showing why particular regulatory procedures matter in actual cemetery-preservation work.

FRFT Has Already Entered the Federal Process

FRFT did not wait for the proposed rule to appear in the Federal Register.

The Trust prepared and transmitted a formal:

Request for Stakeholder Engagement and Preliminary Statement of Preservation Concerns Regarding RIN 3010-AA10

The submission requested:

• Notice when the NPRM is published;

• Identification of an ACHP point of contact;

• Information concerning stakeholder meetings and other engagement opportunities;

• A preliminary stakeholder meeting;

• Preservation of meaningful public and descendant participation; and

• Adequate opportunity for communities to retrieve non-digitized historical records and supporting evidence.

The response came directly from ACHP leadership.

Reid Nelson, Executive Director of the Advisory Council on Historic Preservation, acknowledged receipt of FRFT’s submission and advised that the correspondence would be reviewed. He also directed the ACHP’s Office of Federal Agency Programs to respond to FRFT’s requests.

FRFT subsequently received a response from Jaime Loichinger, Director of the Office of Federal Agency Programs, confirming that the draft NPRM is in the interagency review process with OIRA before publication in the Federal Register.

FRFT has therefore moved beyond simply observing the federal regulatory process.

We have entered it.

FRFT Is Building a Real-World Preservation Record

One of FRFT’s goals is to ensure that the federal discussion is connected to what actually happens on the ground.

Several cemetery matters can help demonstrate those realities.

Thompson Chapel Cemetery — Fort Bend County, Texas

Thompson Chapel demonstrates why cemetery identification can require more than searching a government database.

FRFT’s work involves genealogy, family reconstruction, historical records, descendant engagement, county historical coordination, cemetery documentation, partially buried markers, possible unmarked graves, and ongoing preservation concerns.

The lesson is straightforward:

Families, deeds, death records, church records, cemetery records, historical files, photographs, and descendants may collectively reveal information that no single database contains.

Lane Cemetery — Fort Bend County, Texas

• Lane Cemetery illustrates the importance of identifying cemetery conditions before infrastructure, utility, water, erosion, or development pressures become irreversible.

• A cemetery may still exist while its surrounding environment changes dramatically.

• Early review gives preservation professionals, governments, property interests, and families more options.

Waiting until a burial ground is physically threatened leaves everyone with fewer choices.

Old Memphis Cemetery — Manatee County, Florida

Old Memphis Cemetery demonstrates another preservation reality.

Following vandalism affecting graves, preservation cannot end with a one-time cleanup.

Long-term protection may require documentation, government coordination, family participation, monitoring, maintenance, and a continuing preservation structure.

Potomac Creek / Hampton Cemetery — Stafford County, Virginia

The Stafford County work demonstrates why preservation discussions should begin before development decisions become fixed.

• Once engineering, financing, construction schedules, permits, and property decisions have advanced, preservation becomes considerably more complicated.

• Early engagement creates more opportunities to examine alternatives.

FRFT’s Position: Efficiency and Preservation Are Not Opposites

• Federal regulatory processes can be improved.

• Reviews should not be unnecessarily complicated.

• Agencies should not spend years resolving issues that could have been addressed efficiently.

• But efficiency should not mean that historically underdocumented places become even easier to overlook.

• FRFT believes a modernized Section 106 process should continue to protect several fundamental principles.

• Historic properties should be reasonably identified before irreversible federal decisions are made.

• Descendants and people with demonstrated preservation interests should have meaningful opportunities to participate.

• Agencies should consider evidence beyond modern inventories when records are incomplete.

• Cemeteries, cultural landscapes, historic communities, and unmarked burial areas should not disappear simply because documentation is difficult.

• Avoidance and minimization should remain meaningful considerations when historic properties could be damaged.

• Federal decisions should also leave a sufficient record showing what was considered and why a particular outcome was selected.

What FRFT Is Doing Next

• FRFT is now operating on several tracks simultaneously.

• The Trust is monitoring the federal regulatory process surrounding RIN 3010-AA10.

• We are maintaining the correspondence record with ACHP.

• We are preparing cemetery evidence that can demonstrate the real-world consequences of regulatory decisions.

• FRFT is also coordinating with professional cultural-resources specialists to evaluate cemetery conditions, archaeological considerations, preservation options, and the technical implications of potential Section 106 changes.

• The Trust is preparing for potential engagement with OIRA when the public regulatory-review process makes that opportunity available.

• After the NPRM is published, FRFT intends to examine the actual proposed regulatory language and determine which provisions require support, opposition, modification, clarification, or additional safeguards.

• Any formal public comment will be based on the actual published rule, not speculation about an unpublished draft.

Why FRFT Is Moving Before the Rule Is Published

• Once a federal proposal reaches the Federal Register, the clock starts.

• Comment periods have deadlines.

• Government meetings have schedules.

• Professionals need time to review language.

• Historical records need to be retrieved.

• Families need to be identified.

• Case studies need documentation.

• Waiting until the final weeks of a federal comment period is not a preservation strategy.

• FRFT is building the record now so that when the federal government asks for evidence, we already have it.

Protecting More Than Cemeteries

• This work ultimately reaches beyond burial grounds.

• The same federal preservation structure can affect places throughout American history:

• Historic neighborhoods.

• Churches.

• Schools.

• Historic settlements.

• Archaeological sites.

• Family land.

• Cultural landscapes.

• Civil Rights sites.

• Tribal and Indigenous historic properties.

• Industrial and agricultural heritage.

• Military sites.

• Historic transportation corridors.

• And places whose stories have never received the recognition they deserve.

• Once a historic place is destroyed, some evidence can never be recovered.

• A document can be copied.

• A photograph can be preserved.

• A history can be written.

• But an original burial ground, historic landscape, or archaeological context cannot simply be recreated after it disappears.

FRFT Will Remain at the Table

• The Freedmen Reparations Fund Trust intends to participate in this federal process from the beginning.

• We are not approaching Section 106 solely as a political debate.

• We are approaching it from the perspective of the cemeteries, families, land records, descendants, communities, and historic places encountered through our preservation work.

Our position is simple:

Federal efficiency should not require America to know less about its own history.

The places that were historically overlooked deserve a preservation process capable of finding them before they are gone.

FRFT will continue monitoring RIN 3010-AA10, engaging with the Advisory Council on Historic Preservation, preparing for the appropriate OIRA process, coordinating professional expertise, developing documented cemetery case studies, and preparing for the formal public-comment process when the proposed rule is published.

This work is about more than regulation.

It is about determining whether the systems responsible for protecting America’s historic places will continue to hear from the people whose history is buried there.

Support the Work

Protecting historic Freedmen cemeteries and other historic places requires more than awareness.

FRFT’s work involves genealogy, archival and courthouse research, government engagement, historical documentation, preservation planning, professional services, public advocacy, and long-term institutional development.

Individuals who want to support this work can make a voluntary contribution.

Cash App: $Freedmenlegalfund

Contributions support FRFT’s institutional operations, preservation work, research, advocacy, public engagement, and continued development.

FRFT is a private irrevocable trust and is not a charitable organization. Contributions are voluntary and are not represented as charitable or tax-deductible donations.

Place Your Name or Business in History

Sponsor a Freedmen Historical Marker

FRFT is developing the Freedmen Historical Marker Program to create lasting public records of Freedmen cemeteries, families, communities, institutions, land, people, and historical events across the United States.

A Freedmen Historical Marker sponsorship does more than place a marker.

Sponsorship funding can help support the historical and genealogical research necessary to document a site; professional preservation assessments; cemetery and burial documentation; marker development and installation; coordination with property owners, descendants, governments, and preservation professionals; and, where applicable, continuing cemetery maintenance and grounds protection.

For physical cemetery projects, sponsorship can help FRFT move a location from identification to documentation, preservation, public recognition, and long-term stewardship.

Sponsors also have an opportunity to associate their name or business with the preservation of Freedmen history for future generations.