RAPID/Roadmap/11-FD-d
National Historic Preservation Act Section 106 - Resolution of Adverse Effects (11-FD-d)
The undertaking agency consults with the SHPO/THPO and other consulting parties, including Indian tribes and Native Hawaiian organizations, local governments, permit or license applicants, and members of the public, to resolve adverse effects. The ACHP may participate in the consultation when there are substantial impacts to important historic properties, when a case presents important questions of policy or interpretation, when there is a potential for procedural problems, or when there are issues of concern to Indian tribes or Native Hawaiian organizations. The purpose of the continued consultation is to develop and evaluate alternatives or modifications that may help to avoid, minimize or mitigate adverse effects on historic properties. See 36 C.F.R. § 800.6.
Consultation usually results in a Memorandum of Agreement (MOA), which outlines agreed-upon measures that the agency will take to avoid, minimize, or mitigate the adverse effects. In some cases, the consulting parties may not be able to reach an agreement, in which case the consultation is terminated and the undertaking agency must allow the ACHP an opportunity to comment before rendering its final decision. See 36 C.F.R. § 800.6(b)(iv).
In some cases, the consulting parties may not be able to reach an agreement, in which case the consultation is terminated and the undertaking agency must allow the ACHP an opportunity to comment before rendering its final decision. If the Council decides to join the consultation, the agency official shall proceed in accordance with paragraph (b)(2) of this section. If the Council decides not to join the consultation, the Council will notify the agency and proceed to comment in accordance with § 800.7(c). See 36 C.F.R. § 800.6(b)(v).
National Historic Preservation Act Section 106 - Resolution of Adverse Effects Process
11-FD-d.1 – Continue Consultation
If the proposed undertaking is found to have an adverse effect on historic properties, the undertaking agency must continue its consultation with the SHPO/THPO and other consulting parties to develop and evaluate alternatives or modifications that could avoid, minimize, or mitigate the adverse effects. See 36 C.F.R. § 800.6(a). Once the adverse effect finding is made, the undertaking agency must notify the ACHP and provide it with the documentation specified in 36 C.F.R. 800.11(e). See 36 C.F.R. § 800.6(a)(1). The documentation provided to the ACHP must be provided to all other consulting parties as well. See 36 C.F.R. § 800.6(a)(3).
In addition, the undertaking agency must request that the ACHP participate in the consultation when:
- The agency official wants the ACHP to participate;
- The undertaking has an adverse effect upon a National Historic Landmark; or
- A programmatic agreement under §800.14(b) will be prepared;
Other consulting parties, including the SHPO/THPO, may request the ACHP’s participation. The ACHP will decide whether to participate based on the criteria found in Appendix A of part 36 C.F.R. § 800.
In addition, 36 C.F.R. § 800.6(a)(4) requires the undertaking agency to make information available to the public, including the information required by 36 C.F.R. § 800.11(e), and to provide the public with an opportunity to express its views on resolving the adverse effects of the undertaking.
The agency official shall make information available to the public, including the documentation specified in § 800.11(e), subject to the confidentiality provisions of § 800.11(c). The agency official shall provide an opportunity for members of the public to express their views on resolving adverse effects of the undertaking. The agency official should use appropriate mechanisms, taking into account the magnitude of the undertaking and the nature of its effects upon historic properties, the likely effects on historic properties, and the relationship of the Federal involvement to the undertaking to ensure that the public's views are considered in the consultation. The agency official should also consider the extent of notice and information concerning historic preservation issues afforded the public at earlier steps in the section 106 process to determine the appropriate level of public involvement when resolving adverse effects so that the standards of § 800.2(d) are met. 36 C.F.R. § 800.6(a)(4)
The ACHP may provide advisory comments on the undertaking for which an MOA is being executed even though termination has not occurred. The comments are provided to the undertaking agency when the MOA is executed. See 36 C.F.R. § 800.7(b).
11-FD-d.2 to 11-FD-d.3 - Develop and Execute Memorandum of Agreement (MOA); Have the Consulting Parties and Undertaking Agency Reached an Agreement?
If the ACHP does not participate in the consultation, the undertaking agency consults with the SHPO/THPO and other consulting parties to seek ways to avoid, minimize, or mitigate adverse effects. If the parties agree on how the adverse effects are resolved, they execute a Memorandum of Agreement (MOA). The MOA is then filed, along with the documentation required by 36 C.F.R. § 800.11(f),with ACHP. This filing is the formal conclusion of the Section 106 process and must occur before the undertaking is approved by the undertaking agency.
- The agency official shall consult with the SHPO/THPO and other consulting parties to seek ways to avoid, minimize or mitigate the adverse effects.
- The agency official may use standard treatments established by the Council under § 800.14(d) as a basis for a memorandum of agreement.
- If the Council decides to join the consultation, the agency official shall follow paragraph (b)(2) of this section.
- If the agency official and the SHPO/THPO agree on how the adverse effects will be resolved, they shall execute a memorandum of agreement. The agency official must submit a copy of the executed memorandum of agreement, along with the documentation specified in § 800.11(f), to the Council prior to approving the undertaking in order to meet the requirements of section 106 and this subpart.
- If the agency official, and the SHPO/THPO fail to agree on the terms of a memorandum of agreement, the agency official shall request the Council to join the consultation and provide the Council with the documentation set forth in § 800.11(g). If the Council decides to join the consultation, the agency official shall proceed in accordance with paragraph (b)(2) of this section. If the Council decides not to join the consultation, the Council will notify the agency and proceed to comment in accordance with § 800.7(c).
See 36 C.F.R. §§ 800.6(b)(1)(i)-(iv).
11-FD-d.4 to 11-FD-d.7 - Request the ACHP Join the Consultation; Issue Written Comments; Consider ACHP Comments and Notify ACHP of Decision
If the undertaking agency and SHPO/THPO cannot reach an agreement, the undertaking agency must request that the ACHP join the consultation and provide the ACHP with the documentation required by 36 C.F.R. § 800.11(g). If the ACHP chooses not to join the consultation, or if the consultation is subsequently terminated, it must comment in accordance with 36 C.F.R. § 800.7(c). See 36 C.F.R. § 800.6(b)(1)(v).
36 C.F.R. § 800.7(c)(1) requires the ACHP to issue comments after providing the undertaking agency, consulting parties, and the public an opportunity to express their views. The undertaking agency must take the comments into account when reaching its final decision. See 36 C.F.R. § 800.7(c)(4).
- The Council shall provide an opportunity for the agency official, all consulting parties, and the public to provide their views within the time frame for developing its comments. Upon request of the Council, the agency official shall provide additional existing information concerning the undertaking and assist the Council in arranging an onsite inspection and an opportunity for public participation.
- The Council shall transmit its comments within 45 days of receipt of a request under paragraph (a)(1) or (a)(3) of this section or § 800.8(c)(3), or termination by the Council under § 800.6(b)(1)(v) or paragraph (a)(4) of this section, unless otherwise agreed to by the agency official.
- The Council shall provide its comments to the head of the agency requesting comment with copies to the agency official, the agency's Federal preservation officer, all consulting parties, and others as appropriate.
- Response to Council comment. The head of the agency shall take into account the Council's comments in reaching a final decision on the undertaking. Section 110(l) of the act directs that the head of the agency shall document this decision and may not delegate his or her responsibilities pursuant to section 106. Documenting the agency head's decision shall include:
- Preparing a summary of the decision that contains the rationale for the decision and evidence of consideration of the Council's comments and providing it to the Council prior to approval of the undertaking;
- Providing a copy of the summary to all consulting parties; and
- Notifying the public and making the record available for public inspection.
See 36 C.F.R. § 800.7(c)(1)-(4).
If the ACHP decides to participate in the consultation, it must be included in the consultation process and the development and execution of the MOA. See 36 C.F.R. § 800.6(b)(2).
The execution and implementation of an MOA evidences an agency's compliance with Section 106 of the NHPA. The MOA governs the undertaking with respect to historical properties. See 36 C.F.R. § 800.6(c).
The agency official may invite all consulting parties to concur in the memorandum of agreement. The signatories may agree to invite others to concur. The refusal of any party invited to concur in the memorandum of agreement does not invalidate the memorandum of agreement. 36 C.F.R. § 800.6(c)(3).
- Where the signatories agree it is appropriate, a memorandum of agreement shall include a provision for monitoring and reporting on its implementation. 36 C.F.R. § 800.6(c)(4).
- A memorandum of agreement shall include provisions for termination and for reconsideration of terms if the undertaking has not been implemented within a specified time. 36 C.F.R. § 800.6(c)(5).
- Where the signatories agree it is appropriate, a memorandum of agreement shall include provisions to deal with the subsequent discovery or identification of additional historic properties affected by the undertaking. 36 C.F.R. § 800.6(c)(6).
- The signatories to a memorandum of agreement may amend it. If the Council was not a signatory to the original agreement and the signatories execute an amended agreement, the agency official shall file it with the Council. 36 C.F.R. § 800.6(c)(7).
11-FD-d.8 to 11-FD-d.9 – Have the Parties, Including the ACHP, Reached an Agreement?; Terminate Consultation
If at any time the consultation proves unproductive, the undertaking agency, the SHPO/THPO, or the ACHP may terminate consultation. This is true when the ACHP has joined the consultation at the request of the undertaking agency, but no agreement can be reached. If the undertaking agency terminates the consultation, it must notify all of the consulting parties and request comments from the ACHP. If a SHPO terminates consultation, the agency and ACHP may conclude the consultation and prepare an MOA without SHPO involvement. If a THPO terminates consultation and the undertaking is on or affecting historic properties on tribal lands, the ACHP must provide its comments. The ACHP may also terminate the consultation, but it must still provide comments to the undertaking agency. Any party that terminates consultation must notify all other parties and provide them with the reasons for termination in writing. See 36 C.F.R. § 800.7(a). The undertaking agency must take into account the ACHP's written comments in deciding how to proceed. See 36 C.F.R. § 800.7(c)(4).
11-FD-d.10 - Sign and Execute MOA
The MOA must be executed by the signatories to the agreement. The signatories have sole authority to execute, amend or terminate the agreement. The ACHP acts as a signatory when they have been included as a part of the consultation process under 36 C.F.R. § 800.6. Oftentimes, the only signatories are the SHPO/THPO and the federal agency. See 36 C.F.R. § 800.6(c)(1)
Certain parties may be invited to be signatories in addition to those specified in 36 C.F.R. § 800.6(c)(1). They include individuals and organizations that should, but do not have to, sign agreements. It is particularly desirable to have parties who assume obligations under the agreement become formal signatories. However, once invited signatories sign MOAs, they have the same rights to terminate or amend the MOA as the other signatories. 36 C.F.R. § 800.6(c)(2).
Other parties may be invited to concur in agreements. They do not have the rights to amend or terminate an MOA. Their signature simply shows that they are familiar with the terms of the agreement and do not object to it. 36 C.F.R. § 800.6(c)(3).
11-FD-d.11 - Carry out MOA Terms
If an MOA is executed, the agency proceeds with its undertaking in accordance with the terms of the MOA.
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