Who Prepares the MOA or PA?
The federal agency is responsible for preparing the MOA or PA. Because an MOA or PA sets out how a federal agency will address the adverse effects to historic properties caused by its undertaking, it is important that their professional staff or cultural resource management (CRM) contractors take responsibility for drafting agreement documents while engaging the consulting parties throughout consultation. SHPOs and THPOs often assist the agency in making sure the correct language is used and all necessary provisions are in the agreement. ACHP staff is also available to advise on the development of agreement documents, whether or not it is formally participating in the consultation.
Parts of a Section 106 Agreement
Section 106 agreements should follow a standard format. This includes the division of the document into a title, preamble, stipulations, and signatures. Each one of these parts has a specific function to perform and should be clear, complete, and distinct.
The title identifies the undertaking and the signatories to the agreement. It will also indicate whether the document is a Memorandum of Agreement or a Programmatic Agreement.
The preamble notes the statutory authority for the undertaking; introduces the signatories; provides relevant background facts about the project, activity, or program; briefly describes the Section 106 consultation process; identifies the consulting parties; and includes any additional contextual information that may be necessary for a reader to understand the intent and purpose of the agreement.
The stipulations form the heart of the agreement by detailing each of the avoidance, minimization, or mitigation measures the federal agency has agreed to ensure are implemented. Following these substantive stipulations, agreement documents contain several administrative stipulations to cover what happens when the undertaking changes or is modified, when disputes arise, when new historic properties are discovered, and how long the federal agency will take to ensure the stipulations are carried out. These administrative stipulations are included in the ACHP's template MOA.
A rule of thumb on how to frame "whereas" clauses in the preamble versus "stipulations" in the body of the agreement is that "whereas clauses" should state facts that exist at the time the agreement document is executed, and "stipulations" should denote actions the agency commits to ensuring are carried out in the future, after the agreement document is executed.
Agreement documents always end with an affirmation clause and a signature block that formalizes the commitment of the agency and other parties to the terms of the agreement.
Understanding the Content Checklist
Linked to this guidance are two agreement document checklists, each containing a series of questions to help ensure the final document contains the necessary information to be fully implemented. The checklists include references to other useful stipulations that may be appropriate in many agreement documents. The following discussion of the first checklist, "Section 106 Agreement Checklist: Content" provides more information about each item and how it applies to Section 106 agreement development and implementation.
The accompanying checklists will help those drafting or reviewing Section 106 agreements ensure they follow the customary format and include these necessary provisions.
- Are all the signatories named in the title? Is/Are the undertaking(s) named in the title?
All signatories (e.g., the federal agency or agencies, SHPO/THPO, and the ACHP, if participating) should be referenced in the title block, as should the full name of the undertaking. These vital facts of the consultation identify the necessary parties and the project for future reference. Who can or should be a signatory, invited signatory, or concurring party, and their respective rights, is discussed below.
The preamble provides information about the undertaking, the regulatory authority for the agreement, the participants in the consultation process and their roles as relevant to the undertaking and the terms of the agreement, what historic properties are affected and how, and the federal agency's findings and determinations. This information documents the federal agency's Section 106 compliance effort and should be written to allow a cold reader to understand the context for the stipulations to follow. Preambles can run from half a page to several pages, depending on the contextual information that needs to be presented. A series of questions in the checklist elicit information about the facts of the consultation that should be provided in the form of "whereas" clauses to make up the preamble. Each of these questions might be answered in separate "whereas" clauses.
Identify the agency. Because Section 106 places a statutory obligation on federal agencies, it is imperative for the responsible federal agency to be identified clearly in the agreement's title, preamble, introduction to the stipulations and concluding clause, as well as anywhere else in the document that it is appropriate. If more than one federal agency is involved in an undertaking, the agencies may designate a lead agency to collectively fulfill their individual responsibilities under Section 106. In its preamble, the agreement should document designation of the lead agency and identify the nature of involvement of all federal agencies, not just that of the lead agency.
Undertaking. The preamble should clearly establish the project or program (the undertaking), the nature of the federal involvement and/or whether it constitutes assistance, issuance of a license or permit, or other approval. It is useful to list the statutory authority(ies) that provide the legal basis for the federal agency's involvement. The name and description of the undertaking in the Section 106 agreement should be consistent throughout the agreement, and as used in other contexts, for example in documentation prepared to meet the requirements of NEPA or informational Web sites. Project numbers or titles and dates of plans can be included to further identify the specific undertaking or program. In a PA, the preamble should also describe why the federal agency decided a programmatic approach is appropriate to the circumstances of the project or program.
Area of Potential Effects. The undertaking's area of potential effects should be clearly identified in the preamble so that all parties understand the scope of the Section 106 review and the relevant area(s) under consideration. A map of the area of potential effects is often helpful and can be provided as an appendix.
Historic properties. Listing the known historic properties in the preamble or stipulations (or in an appendix if the list is extensive) sets the framework for assessing the undertaking's effects, and prevents future misunderstandings or disagreements about what is covered in the MOA or PA. Some agreement documents provide the specific locations of affected historic properties, but in certain situations presenting such information about a historic property's location, character, or ownership might risk harm to the property, result in an invasion of privacy, or impede its use by traditional religious practitioners. In such situations, an agency should consider withholding the sensitive information from public disclosure in accordance with Section 304 of the NHPA (54 U.S.C. § 307103) and 36 CFR § 800.11(c). Publication of the precise location of an archaeological site, or Traditional Cultural Property (TCP), generally should be avoided to safeguard against vandalism or inappropriate access.
Phased identification. The Section 106 regulations specifically provide for phased identification of historic properties when circumstances may impede the completion of identification and evaluation efforts prior to project approval. Federal agencies are encouraged to analyze the needs of the project or program and the complexities that may be encountered in completing the identification process in developing a tailored approach for identification and evaluation that satisfies the underlying intent of the regulations. Many linear projects, for example, may depend on acquiring access rights to land before a survey can be conducted, or multiple corridors or land parcels may be under consideration before narrowing the focus to a few or a single option. In cases where an agreement document includes provisions for phased identification, the agency is precluded from listing known historic properties within the preamble.
Parties. The involvement and role of the signatories, invited signatories, and concurring parties should be clearly documented in the Preamble section, since the roles they will play with regard to the execution, amendment, and termination of the agreement will differ (see 36 CFR § 800.6(c)). Additionally, the Preamble section should reference the public outreach that was done in the Section 106 review process.
Commitments. Preambles should conclude with a "now, therefore" statement that specifies all the signatories agree to the measures in the document and concludes by stating the purpose of the agreement--to take into account the effect of the undertaking on historic properties--in accordance with the statutory language of Section 106 of the NHPA. Boilerplate language for this clause is provided in the ACHP's Template MOA.
- Are the stipulations preceded by a clear statement that the "federal agency (or agencies) shall ensure that these terms are carried out?"
Check the ACHP's Template MOA for boilerplate language and general stipulation organization. Section 106 places statutory obligations on federal agencies; Section 110(l) of the NHPA states that where a Section 106 agreement has been executed with respect to an undertaking, such agreement shall govern the undertaking and all of its parts. The purpose of this preceding statement is to make clear that the federal agency, as the entity responsible for complying with Section 106, is the party responsible for ensuring the terms of the MOA or PA are carried out (even if other parties are assigned specific responsibilities or actions in the stipulations).
A link to substantive stipulations is provided within this guidance. These will vary depending on the nature of the undertaking, the historic properties adversely affected, and agreed-upon mitigation. Administrative stipulations, some of which must be in all agreements, are addressed below.
- Are procedures for responding to the unanticipated discovery of historic properties or inadvertent adverse effects to identified historic properties included?
According to the Section 106 regulations, at 36 CFR §800.6(c)(6), where the signatories agree it is appropriate, Section 106 agreements should include provisions to address the subsequent discovery or identification of additional historic properties affected by the undertaking. Discovery provisions establish an expedited timeframe for notification and response procedures in the event a previously unidentified historic property or unanticipated effects are found during project implementation. They address one of the major "what ifs" involved in implementation of an undertaking by averting confusion and delay when something is found, particularly when the discovery involves human remains. Since the regulations do not mandate that every historic property be identified during the four-step process, a good discovery provision is like an insurance policy for the MOA or PA. If such provisions are not included in the agreement, discoveries would be handled in accordance with 36 CFR § 800.13(b).
- Are procedures for responding to emergency situations included?
Emergencies may arise during the implementation of any undertaking. The Section 106 regulations include emergency provisions at 36 CFR §800.12. The regulations define an emergency undertaking as an essential and immediate response to a disaster or emergency declared by the President, a tribal government, or the governor of a state or another immediate threat to life or property. Section 800.12(c) of the regulations extends in most circumstances the provisions of Section 800.12(a) and (b) to those disasters and emergencies declared by local governments responsible for Section 106 compliance under the Department of Housing and Urban Development's (HUD) environmental regulations at 24 CFR Part 58. When consulting parties agree that it is appropriate, Section 106 agreements can establish procedures to expedite consultation or otherwise take historic properties into account during operations responding to emergencies and disasters. The ACHP encourages agencies to include such provisions in PAs wherever potentially applicable.
- Is the need for confidentiality of sensitive information identified where appropriate?
If the federal agency has determined that certain information should be withheld from public disclosure in a Section 106 review because the release of information about a historic property's location, character, or ownership might risk harm to the property, result in an invasion of privacy, or impede the use of a traditional religious site by practitioners in accordance with 36 CFR § 800.11(c) and Section 304 of the NHPA, then measures to ensure confidentiality would be referenced in the Section 106 agreement stipulations.
- Has the use of qualified professionals been stipulated where appropriate?
Federal agencies have an obligation, established in 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 responsibility in the care of historic properties by using professionals qualified to carry out work in preservation disciplines. The parties to an agreement may agree to restate these responsibilities as a stipulation.
- If archaeological data recovery is stipulated, is a data recovery plan attached or referenced in the agreement?
Data recovery is often a common mitigation measure for historic archaeological properties stipulated in Section 106 agreements. Data recovery stipulations should include specific research questions, a requirement that work is carried out or supervised by an archaeologist with appropriate qualifications, and other measures to ensure the work is achievable and yields benefit for the public. For more information on data recovery plans, see the ACHP's online Archaeological Guidance.
The plan, if already developed, may be referenced in the stipulation. If the plan will be developed after the agreement is executed, the agreement should include a process for consultation to develop and finalize the plan. The stipulations should include a commitment to implement the plan as agreed upon or to reinitiate consultation on its terms.
- Are procedures for public involvement included for any ongoing reviews carried out according to the agreement's terms?
The public should be informed about the progress of agreement implementation, commensurate with the public interest in its implementation. As appropriate, they may be given the opportunity to provide views to the federal agency regarding subsequent reviews stipulated in a Section 106 agreement, particularly those in which evaluations of historic properties, assessment of effects to historic properties, or the development of treatment measures will occur. These provisions are especially important in a PA that sets forth an ongoing process for the implementation of a program or multiple undertakings.
- Are procedures for monitoring and reporting on agreement implementation included as appropriate to the project?
Monitoring and reporting provisions offer the federal agency and consulting parties the opportunity to periodically assess progress in fulfillment of the stipulations. Intervals and methods of reporting should be determined through consultation. The regulations encourage the use of such provisions at 36 CFR § 800.6(c)(4).
- If other federal funds, permits, or licenses may be used or required for the undertaking in the future, is an "other federal involvement" stipulation included?
In the event additional federal permits, licenses, or funding are required, or have the potential to be required, for the undertaking in the future and there is no change to the undertaking, a stipulation providing for this situation can allow another federal agency to join in a Section 106 agreement. This allows that agency to meet its own Section 106 obligations while reducing delays and duplicative reviews. For an example, see the Sample Stipulations section.
- Is a dispute resolution procedure included?
All Section 106 agreements should include a dispute resolution stipulation to adjudicate disputes over stipulation meaning, responsibility, or performance. Boilerplate language for a dispute resolution provision is included in the Template MOA. Although it includes referral of unresolved disputes to the ACHP, inclusion of the ACHP in this manner does not always require the ACHP's signature on the MOA or PA. Such a role is consistent with the ACHP's oversight of the Section 106 process and does not obligate the agency to specific actions.
- Are provisions for amendment and termination of the agreement included?
Per 36 CFR § 800.6(c)(7) and (8), all agreements must include provisions for amendment and termination. These two stipulations are tools for managing changes that arise during agreement implementation, and for terminating the agreement if a signatory determines that its terms cannot be met for any reason and the signatories cannot agree to an amendment.
- Is the agreement's duration specified?
Per 36 CFR § 800.6(c)(5), agreements must include duration provisions. The term of the agreement should allow adequate time for completion of all the stipulations and the undertaking. If not an actual date, it should be a fixed point in time that a cold reader could understand, such as "five years from the date of execution" or "one month after the date the fieldwork is completed." The term of an agreement can only be reconsidered and extended, if necessary, through an amendment. It is important to note here that once an agreement expires, it cannot be amended to extend its life--a new agreement must be negotiated. Parties should ensure that the duration agreed to is realistic and achievable; if in doubt, the parties should provide for a longer duration period.
- Is compliance with the Anti-Deficiency Act recognized where appropriate?
Federal agencies make commitments in Section 106 agreements based upon best knowledge of available funding. However, circumstances beyond agencies' control can sometimes affect their ability to fulfill those commitments. In this situation, language referencing the Anti-Deficiency Act can be useful in affirming the agency's responsibility to seek alternatives. The Sample Stipulations provide model language.
- Is compliance with other federal laws, such as the Native American Graves Protection and Repatriation Act (NAGPRA) and the Archeological Resources Protection Act, and state laws, including state burial laws, acknowledged where appropriate?
Federal agencies often must comply with several federal and state laws for a single undertaking. While a Section 106 agreement document has limited authority and purpose as provided in the NHPA and 36 CFR Part 800, an agency should work to coordinate its compliance with multiple cultural resource requirements, and this coordination may be referenced or acknowledged in an agreement where relevant to the Section 106 process. For example, when a federal agency's actions are directed by its compliance with another law, such as actions following the discovery of human remains on federal land in accordance with NAGPRA, it would be helpful to note such compliance in the discovery provisions of a Section 106 agreement. However, Section 106 agreements are solely for documenting an agency's compliance with Section 106 of the NHPA, and cannot modify or require an agency's compliance with other laws. As such, Section 106 agreement documents should not provide for an agency's compliance with other statutes. In some circumstances, resolution measures embodied in a Section 106 agreement document may be used to evidence the minimization of harm to historic properties consistent with the goals of Section 4(f) of the Department of Transportation Act. The Sample Stipulations provide example language.
When working on non-federal, non-tribal lands, state or local laws may apply. MOAs and PAs should, for reference purposes only, indicate such statutes where they may be applicable. For example an MOA could cite state unmarked burial or cemetery laws that may apply should human remains be encountered.
- Does the stipulations section conclude with an affirmation statement consistent with the template MOA?
The stipulations section should end with a statement affirming that by carrying out the terms of the MOA or PA, the federal agency will meet its responsibilities under Section 106 of the NHPA to "take into account" the undertaking's effects on historic properties, and afford the ACHP a "reasonable opportunity" to comment on the undertaking. The statement follows the statutory language to demonstrate fulfillment of the agency's responsibilities under Section 106 of the NHPA.