Federal agencies are required under Section 112(a)(1)(A) of the NHPA (54 U.S.C. § 306131 (a) (1) (A) and 36 CFR § 800.2 (a) (1) to demonstrate their responsibility for the maintenance of historic real estate by employing qualified professionals to perform work in conservation disciplines. The parties to an agreement may agree to reformulate these responsibilities as a provision. Since Section 106 agreements are entered into to satisfy the requirements of Section 106 of the NHPA, they should be based on the terms and definitions of this Act and the implementing provisions of Section 106 (see 54 U.S.C§ §§ 300301-321 and 36 CFR § 800.16). For example, the use of the term „cultural resources“ should be avoided since the scope of section 106 is limited to „historic real property“ within the meaning of the Act and regulations. While not necessary, it may be useful to state in the agreement that it contains the definitions contained in the NHPA and 36 CFR Part 800. In cases where an organization substitutes its Section 106 responsibilities for NEPA compliance, organizations may need to address cultural resources as part of their EFFORTS to comply with NEPA. However, the provisions contained in an ROD to demonstrate compliance with the responsibilities of section 106 should clearly apply only to historic real property. One of the fundamental purposes of section 106 consultation is to ensure that an authority`s decision on the implementation, financial support, licensing or approval of a business is well informed of the impact on historic real property and the views of others on that impact. This guide is a living document that includes updates and new provisions of model agreement documents to address emerging issues and needs as they arise. CHPA welcomes suggestions for updating this guide. Envoyez-GADhelp@achp.gov an email with questions or comments.
Regardless of the type of agreement the federal agency intends to develop to resolve adverse reactions (MOUs or draft PAs), it is a good idea to reconsider whether there are still reasonable ways to avoid adverse reactions altogether; and if not, if there are still feasible measures that could minimize the negative effects. Of course, the legitimate purpose and necessity of a project can sometimes be such that avoidance is impossible or impractical. Still, it`s a good idea to consider the exercise of avoidance. Two checklists for agreements are linked to this guide, each containing a series of questions to ensure that the outcome document contains the necessary information that needs to be fully implemented. Checklists contain references to other useful provisions that may be appropriate in many contractual documents. The following explanation of the first checklist, Article 106 Agreement Checklist: Content, provides more information on each element and how it applies it to the development and implementation of Article 106 agreements. The attached checklists assist those drafting or reviewing section 106 agreements to ensure that they follow the usual format and contain the necessary provisions. If a MOA or AP needs to be edited, the changes are saved in a format that looks exactly like the MOA format.
The changes will be made in the same way as the original agreement. Once a invited signatory has signed the original agreement under Article 106, that invited signatory must also sign the appropriate amendment to make it effective. Therefore, the same signatories and invited signatories sign the amended agreement, and a fully signed copy is submitted to THE ACHP by the Agency (with all annexes, exhibits, annexes – in colour if applicable). A federal agency may also pursue an „AP program“ (36 CFR § 800.14(b)(2)) if it wishes to create a section 106 process that is different from the standard review process and applies to all businesses under a particular program. The rationale for program PAs includes a program that includes commitments with similar or repetitive effects on historic real property to avoid the need for separate section 106 review for each project (e.g.B. Community Development Block Grant Agreements), or that relies on the delegation of significant decision-making responsibilities to non-federal parties (p.B delegation of certain responsibilities under Section 106 by the Federal Highway Administration to the State Departments of Transportation). ACHP has helped develop numerous PA programs for the routine management of real estate, land, and historic real estate in federal facilities such as military facilities, national forests, national energy laboratories, and National Aeronautics and Space Administration centers. A signatory or a guest signatory (who has signed the agreement) may terminate the agreement.
An agreement can be terminated because its conditions cannot be met. Terminating an agreement is a step that should not be taken lightly. Before terminating an agreement because its conditions cannot be met, signatories should consult with each other to determine whether an amendment to the agreement might be feasible and appropriate. Once an agreement is terminated and before proceeding with the Company, the federally competent authority must either enter into a new section 106 agreement for the specific company or project, or make the request and consider the opinion of the ACHP in accordance with 36 CFR § 800.7. In the event of termination of a programmatic agreement for an agency program or for multiple companies, the agency must comply with 36 CFR §§ 800.3-800.7 for each sole proprietorship covered by the agreement. Historic properties. Listing known historic properties in the preamble or regulation (or in an appendix if the list is long) provides the framework for assessing the company`s impact and prevents future misunderstandings or disagreements about what is covered in the MOU or PA. Some agreement documents indicate the specific location of the historic properties concerned, but in certain situations, such information about the location, character or ownership of a historic property may risk damaging the property, causing a violation of privacy or hindering its use by traditional religious practitioners. In such situations, an agency should consider withholding sensitive information under Section 304 of the NHPA (54 U.S.C§ 307103) and 36 CFR § 800.11(c). Publication of the exact location of an archaeological site or traditional cultural property (TCP) should generally be avoided to protect against vandalism or inappropriate access.
If the terms of an agreement have been met but the agreement remains in force due to a longer-term clause, the Agency should consider amending the agreement to amend its duration clause, recognise the work done and provide for the fulfilment of its responsibilities under Article 106. If it is necessary to develop a Memorandum of Understanding, the Agency should endeavour to gather ideas, suggestions and input from the Advisory Parties and the public to inform the design process and the development of proposed measures to prevent, minimize or mitigate adverse effects. The MOU documents how the agency would address the negative effects on historic properties. It is good practice to include the agreed measures in the provisions, as consultation on the development of a Memorandum of Understanding is progressing so that all consultative parties can see and understand the progress of the preparation of the contractual document. .