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Get Help. The templates can be found below, and should be used with our standard clauses for frequently occurring obligations. Our templates and clauses are made available so that applicants can see the kind of document that they will be required to sign.
However, these are complex legal documents and you are strongly advised to seek legal advice before entering into an agreement of this kind. Cookies information exeter. 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. Emergencies may arise during the implementation of any undertaking. 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 When consulting parties agree that it is appropriate, Section agreements can establish procedures to expedite consultation or otherwise take historic properties into account during operations responding to emergencies and disasters. The parties to an agreement may agree to restate these responsibilities as a stipulation. Data recovery is often a common mitigation measure for historic archaeological properties stipulated in Section 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. 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. 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 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. 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. 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 agreement. This allows that agency to meet its own Section obligations while reducing delays and duplicative reviews.
For an example, see the Sample Stipulations section. All Section 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. Such a role is consistent with the ACHP's oversight of the Section process and does not obligate the agency to specific actions. 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. 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. 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.
Federal agencies make commitments in Section 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. Federal agencies often must comply with several federal and state laws for a single undertaking.
While a Section agreement document has limited authority and purpose as provided in the NHPA and 36 CFR Part , 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 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 agreement. However, Section agreements are solely for documenting an agency's compliance with Section of the NHPA, and cannot modify or require an agency's compliance with other laws. As such, Section agreement documents should not provide for an agency's compliance with other statutes.
In some circumstances, resolution measures embodied in a Section 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.
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