Section 106 Agreement Documents

This advanced seminar focuses on programmatic agreements and arrangements under section 106 of the National Historic Heritage Preservation Act. Learn how to survive and thrive during the deal process through careful analysis, clear writing, and good negotiations. Review the tools, policies, alternatives, and non-alternatives available to get a favorable conclusion to the process. Development of Kiel Ranch Historical Park in the City of North Las Vegas MoA and Amendment #1 (also included in the National Park Service section below) Welcome to the Historic Preservation Advisory Council (CPHA) Guidelines on Section 106 Contract Documents. Section 106 contractual documents play a critical role in documenting a federal agency`s obligation to fulfill its responsibilities under Section 106 of the National Historic Preservation Act (NHPA) (54 U.S.C§ 306108). This advice is provided to assist federal agencies, states, Native American tribes, Hawaiian organizations, applicants, local governments, advisory parties, and the public in developing, implementing, and entering into such agreements. Experienced Section 106 review practitioners and/or Introductory Seminar Veterans who require assistance in developing agreements. 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.

If a federal agency has determined that the business may have a negative impact on historic real property, or if it has determined the need to develop a programmatic approach to comply with section 106, it demonstrates that it is meeting its obligations under section 106 to “consider the impact of its obligation on historic properties” and to provide CHPA with a “reasonable opportunity” to express itself through the implementation and implementation of work of an agreement document (MOA or PA). In the rare event that the advisory parties fail to reach an agreement, a requested signatory may terminate the consultation and request formal comments from CHPA (see 36 CFR § 800.7). Well before the Agency begins to prepare an agreement document, it should convene one or more consultative meetings of the parties to assist in drawing these conclusions and discussing how the company may adversely affect the characteristics of historic real property. Advisory parties must include state historic preservation officers (outside of tribal areas or tribal areas where no tribal historic preservation officers are designated) and/or tribal historic preservation officers or Native American tribes (on tribal lands) and may include ACHP, Native American tribes, Hawaiian native organizations, Fellows, licensees, conservation organizations, local governments, the National Park Service (NPS). and others (see 36 CFR § 800.2 for a full description of the advisory parties and their roles in accordance with the provisions of Article 106). This guide is intended for all stakeholders referred to in section 106. It is designed to assist federal agencies, state and tribal conservation officers, Native American tribes, Hawaiian organizations, applicants, local governments, and other advisory parties in developing clear, concise, and comprehensive Protocols of Understanding (MOAs) and Programmatic Agreements (PAs) under Section 106 of the National Historic Preservation Act (NHPA). It will also assist federal organizations and those they consult through the section 106 process to develop, implement, monitor, amend and terminate these agreements. The use of this guide can help minimize disputes over agreed measures at all levels and save time that would be best spent on finding creative ways to avoid, minimize or mitigate negative effects on historic properties. The SHPO determined that most, but not all, of the following agreements meet the conditions set out in NRS 383.121 for an “existing agreement with a federal agency signed under the Federal Act Respecting the Discovery of Prehistoric Native American Remains or a Funerary Object.” The SHPO has determined that the execution of these documents means that the notification provisions of NRS 383.121, as amended, are not applicable.

The standard reporting obligations contained in NRS 383.150 to NRS 383.190, as amended, apply accordingly. If the Section 106 process is supplemented by a Memorandum of Understanding or executed APP (either a project or a program AP), such agreement will be legally binding on the Agency pursuant to Section 110(l) of the NHPA (54 U.S.C§ 306114). Such agreements “govern the company and all its parts.” As such, they must be drafted with care and clarity so that everyone understands what they are asking for and the Agency is able to fully comply with all the legal obligations it has accepted. There is another type of agreement mentioned in the provisions of Article 106 under 36 CFR § 800.2 (c) (2) (ii) (E). A consultation protocol is an agreement developed between the federal agency and one or more native American tribes or hawaiian organizations approved by the state that determines how the agency consults that Native American tribe or NHO on one, several or all of their projects or programs. They are strictly negotiated between the agency and the tribe or NHO and may include confidentiality provisions and other specific tribal or NHO concerns. The parties only have to submit a copy to the relevant SHPO(s) and to the ACHP; no other party needs to be involved in its negotiations. Such agreements may also go beyond the requirements of the standard process under Section 106 and other aspects of the agency-tribe relationship with the NHO terms (para. B example, who is the contact person, for which types of companies the tribe or NHO wishes to participate in the consultation, etc.).

However, the Protocol may not modify or condition the role of other participants under Article 106 (e.B. SHPO, ACHP, etc.) without their consent. For more information, see the ACHP manuals to consult native American tribes and Hawaiian organizations. 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. an email with questions or comments. This guide replaces previous CHPA publications to assist in the development of agreement documents.

In 1988, CHHA issued Preparatory Agreement Documents (PCAs). The DPA should provide samples to determine the most common types of mitigation measures used to address adverse effects on historic properties at that time. As with this guide, the DPA provided examples of provisions that serve as reference tools that provide an appropriate framework for documenting obligations in contractual documents. While some of the model provisions proposed in this guide can be used as they are, the NDMP encourages individuals developing agreements to assess each situation and agreement individually and to determine the appropriate wording that may be required in certain circumstances. These provisions are not a substitute for creative thinking when advisory parties propose new, innovative or even better mitigation ideas that better reflect negative effects in the public interest. This guide also provides examples of administrative provisions that should either be included in the tender specifications (e.B in terms of duration, modification and termination) or included in the document (e.B. with regard to dispute resolution, monitoring and reporting provisions, detections, , emergencies and professional qualifications, as well as applicable standards). Federal organizations should consider the views of the advisory parties when deciding whether a Memorandum of Understanding or PA is the appropriate agreement under section 106. In addition to carefully considering the SHPO`s views on businesses outside of tribal lands, it is important that the agency also consider the views of Native American tribes and Hawaiian organizations (NHOs) regarding the development of an agreement that has implications for the treatment of historic properties of religious and cultural significance to them on or outside tribal lands. The agency should coordinate quickly with Native American tribes and NHOs interested in developing such an agreement. Tribes and national health authorities should have the opportunity to share their views on whether a programmatic approach allows for ongoing and meaningful consultation and to participate in the development of provisions for consultation in PAs […].