Preparing complete Section 106 agreement documents is critical because even the very best consultation effort can be undermined if agreed-upon actions are not recorded clearly and accurately in the stipulations section. The Section 106 agreement document should be straightforward and concise and use plain language wherever possible. A cold reader should be able to understand when, how, and by whom the stipulations will be implemented. Development of an agreement should also be coordinated with the appropriate parties at the right time to avoid late challenges or procedural missteps that could threaten the agency's ability to demonstrate compliance with Section 106. In addition, agencies may find it helpful to have staff responsible for the implementation of the agreement (especially if those staff were not involved in the agreement's development) review its terms to be certain its meaning is clear.
Understanding the Reviewer's Guide Checklist
This second checklist is designed to ensure that the MOA or PA is complete, comprehensive, and can be understood by the cold reader or others who may be called upon to implement the agreement at a later date.
- Are all acronyms and abbreviations identified and used consistently?
To make an agreement more readable and concise, acronyms or shorthand references may be used for the names of parties, statutes, or other terms that appear repeatedly throughout the Section 106 agreement. When this is done, the full name of the party or statute or the full definition of the term should be spelled out completely the first time it is used in the agreement, followed by the shorthand reference in parentheses. The shorthand reference then may be used in the remainder of the agreement, but special care should be taken to ensure its use is consistent. Only one shorthand reference should be used for a given party, statute, or other term. If there are numerous acronyms used it may be helpful to spell them out in an appendix.
- Are all of the provisions agreed upon during consultation included?
A Section 106 agreement that has been executed and implemented in accordance with 36 CFR Part 800 evidences the federal agency's compliance with Section 106 and governs the undertaking and all of its parts. The responsible federal agency has no obligation under Section 106 for the subject undertaking to perform actions or request another party to perform actions that are not included in the agreement. It is, therefore, essential that an executed Section 106 agreement include all the measures that have been agreed to by consulting parties for the entire undertaking. Using an outline that tracks and records decisions as consultation proceeds is one way to ensure nothing is left out of the final document.
- Do the stipulations clearly identify who is responsible for carrying out each measure?
Section 106 agreement documents should clearly identify the responsible party for each action. Sometimes agreements are explicit about the measures that will be carried out but fail to clearly assign the duty to implement such measures to a specific party or parties. For example, an agreement may state: "Prior to its demolition, Building X will be documented in accordance with Historic American Buildings Survey (HABS) standards." While this statement specifies the action, it fails to identify who will carry it out. Changing the statement in the following manner identifies both the responsible party and the specific action: "Prior to its demolition, the Department of the Navy will document Building X in accordance with HABS standards." Specifying the party assigned to implement each measure should help avoid confusion and disagreement and any delay in the agreement's completion and implementation that may result from disputes or misunderstandings.
- Do all tasks have clear timeframes for initiation and completion?
While many agreements simply state that all the stipulations will be carried out by a certain date, the individual stipulations can also contain their own specific timetable. This allows the consulting parties to monitor progress and ensure stipulations are sequenced properly and are being completed.
- Have all terms and references been used correctly and consistent with regulatory definitions?
Because Section 106 agreements are executed to satisfy the requirements of Section 106 of the NHPA, they should rely on the terms and definitions provided by this statute and Section 106's implementing regulations (see 54 U.S.C. §§ 300301-321 and 36 CFR § 800.16). For example, use of the term "cultural resources" should be avoided because the scope of Section 106 is limited to "historic properties," as defined in the statute and regulation. While not necessary, it may be helpful to state in the agreement that it incorporates the definitions included in the NHPA and 36 CFR Part 800. In circumstances where an agency is substituting NEPA compliance for its Section 106 responsibilities, agencies may need to address cultural resources as part of their effort to comply with NEPA; however, stipulations that are included within a ROD to evidence satisfaction of Section 106 responsibilities should clearly apply only to historic properties.
- Are all stipulations written in the active voice?
Include simple, straightforward statements with a clear subject and verb. When using active voice, the subject of the sentence performs the action (e.g., "the federal agency will record the building to HABS standards"). Because the stipulations of a Section 106 agreement assign responsibilities for certain measures and commit parties to identified actions, it is important to clearly state those responsibilities and commitments. Avoiding wordy, passive voice sentences (e.g., "the building will be recorded") makes the terms of the agreement easier to understand. Using active voice in an agreement helps answer the above questions and provides a construct to insert timeframes.
- Is the process for post-review decision making described in a complete, logical, and organized way?
To help ensure the expectations of all parties are met where a Section 106 agreement provides for post-review decision making, it is important to clearly delineate how and when subsequent steps will be taken. The agreement document should be written to allow cold readers, consulting parties, and future participants to understand how the process will work sequentially in keeping with the regulations. For instance, you should not stipulate how post-review adverse effects will be resolved before the procedure for phased identification is explained.
- Are all attachments and appendices cited in the agreement included?
Where the Section 106 agreement cites or references an attachment or appendix, it is imperative that the actual attachment or appendix be appended to the agreement document. References to all such attached materials should be consistent and clear so that the associated material is able to be easily located. In some cases, lengthy lists of historic properties, of consulting parties, or definitions used in the agreement are placed in an appendix so as not to interrupt the flow of the document. Similarly, attachments that are not referenced in the agreement document or are not supportive of its implementation should not be included.
- Are spelling, grammar usage, page numbering, section numbering, etc. accurate and consistent?
It is important for the Section 106 agreement to be well drafted without these minor errors whenever possible to avoid potential confusion or misunderstanding.
- Can a cold reader understand the agreement and what it requires?
The Section 106 agreement governs the undertaking and all of its parts. Many undertakings may take months or years to complete, and the agreement should be able to be clearly interpreted and implemented throughout its duration. Because new parties may become involved in actions identified in the Section 106 agreement, or other changes may take place while the agreement is in effect, the agreement should be written in such a way that a cold reader (e.g., someone who did not participate in the drafting of the agreement) can understand its terms and intent.
- Are the signature blocks for signatories, invited signatories, and concurring parties clearly separated or designated on the signature page(s)?
As discussed in detail below, signatories, invited signatories, and concurring parties have different rights in regard to executing, amending, and terminating the Section 106 agreement. As such, their status should be clearly identified in the signature blocks.
- Are all parties assigned responsibilities in the agreement signatories or invited signatories?
Parties have no obligation to fulfill requirements set out in a Section 106 agreement unless they have signed the agreement as a signatory or invited signatory (unless a separate document -- for instance, a permit condition -- imposes such an obligation). The failure of the federal agency to obtain the signature of parties that have been assigned duties under the agreement could compromise the successful implementation of the agreement. Accordingly, the federal agency should ensure all parties with obligations assigned under the terms of an agreement have signed that agreement in the appropriate role.
- Does the duration of the agreement allow adequate time for project implementation and the completion of all stipulations?
While every Section 106 agreement must include a duration stipulation, there is no set standard for how long that duration must extend. The federal agency should assess the undertaking, its requirements, and all responsibilities assigned under the agreement to determine the agreement's appropriate duration. A federal agency's Section 106 compliance is likely to be incomplete where an agreement expires before an undertaking is finished or the agreement's terms are fully met. While an active agreement can be amended to extend its duration, an expired agreement cannot be amended.
- Do others in the agency support commitments made in the agreement?
The regulations require the federal "agency official" to sign an MOA or PA. This individual is described in the regulations as someone who has "jurisdiction over an undertaking [and] takes legal and financial responsibility for Section 106 compliance..." (36 CFR § 800.2(a)) that can commit the federal agency to take certain action for a specific undertaking as a result of Section 106 compliance. Prior to committing his/her agency to certain actions during consultation or through the execution of an agreement, the agency official should ensure that others within the agency who may have a substantial policy, program, or financial interest in these commitments support them. When an agency backs away from commitments made during consultation or changes course without explanation because others in the agency have declined to support them, it may undermine the trust consulting parties put in the agency's negotiations and cause delays.
- If the agreement is executed in counterparts, does each signature page include the title of the agreement?
Federal agencies may elect to execute Section 106 agreements in counterparts, meaning that each signatory, invited signatory, and concurring party may sign and date a separate signature page concurrently or sequentially that are then attached together to make up a single agreement with all signatures. Should an agency decide to do so, each page should include the complete title of the agreement so there is no ambiguity about what document that party is signing. The federal agency should then compile all the signatures and send a complete copy of the document to all the consulting parties, and the ACHP.
- If the ACHP is participating in the consultation, have all the other signatories signed the agreement before the agency forwards the document to the ACHP for signature?
It is the ACHP's practice to sign Section 106 agreements after all other signatories have signed the document. The agency should also have the signature(s) of those invited signatory(ies) that are assigned responsibilities under the agreement before presenting the document to the ACHP for signature. As the party who generally oversees the Section 106 process, the ACHP takes this approach to ensure that the signatory parties concur with the terms of the agreement and that all parties assigned responsibilities under the agreement have committed to fulfilling those actions. "Responsibilities" means the assignment of duties that must be performed by that party, rather than mere rights to do something (e.g., rights to review a design). Once all the signatories have signed, the agreement is executed and it goes into effect; at this time the agency can then circulate it for consulting parties' signatures. In some cases, the federal agency may request the signatures of the concurring parties prior to requesting the ACHP's signature.
Filing and Distribution
After an agreement has been executed, the agency should take further steps to ensure it is properly filed and distributed.
- In accordance with 36 CFR § 800.6(b)(1)(iv), the federal agency must forward a copy of the executed Section 106 agreement, along with the documentation specified in 36 CFR § 800.11(f), to the ACHP prior to approving the undertaking. The agency's responsibilities under the Section 106 regulations are not satisfied without this filing. The ACHP retains a copy of the fully executed Section 106 agreement and typically sends a courtesy letter of acknowledgment to the responsible federal agency upon filing.
- In accordance with 36 CFR § 800.6(c)(9), the federal agency must provide each consulting party with a copy of the executed agreement.
- Excepting information that may be withheld from public disclosure pursuant to 36 CFR § 800.11(c), the federal agency should make a copy of the executed agreement available to the public in accordance with 36 CFR § 800.2(d). All parties should be aware that the ACHP may make agreement documents that it signs publicly available.