MOA/PA Duration and Expiration: Points of Consideration
It is vitally important for federal agencies to effectively monitor the expiration dates of Section 106 memoranda of agreement or programmatic agreements (MOAs/PAs). If necessary, this includes coordinating the drafting, commenting, and execution of amendments to the duration stipulation prior to the agreement’s expiration. Once an agreement expires, it cannot be amended, even to extend its duration – quite simply, no agreement to amend exists following expiration. If an MOA/PA expires prior to the stipulations being completed, the agency’s Section 106 responsibility for the undertaking or program is not complete, and consultation to develop and execute a new MOA/PA needs to be reinitiated and completed. Thus, proactive planning and monitoring the status of MOAs/PAs, including expiration dates, is essential to the successful management of ongoing agency responsibilities and commitments under Section 106.
Federal agencies should carefully monitor the MOA/PA duration. The ACHP strongly recommends that agencies draft monitoring, reporting, and/or consultation meeting mechanisms in agreement stipulations. In this way, agencies are better able to identify and resolve issues as they may arise in implementation. Further, in situations where an agreement needs to be both extended and substantially modified, an agency should ensure that it plans for sufficient time to consult and develop the substantive amendment. The ACHP understands that occasionally an agency needs additional time to consult on such changes to an agreement and therefore amends just the duration of the agreement while postponing the substantive change. However, to the extent possible, multiple subsequent amendments simply to extend an agreement’s duration by a brief time period should be avoided, and an agency should instead develop a reasonable timeframe for consultation to draft the complete amendment, including any substantive changes that may be needed to the agreement, to resolve any implementation issues.
The following are points of consideration that the ACHP recommends to federal agencies at specific stages to best anticipate and prepare for when an amendment to an MOA/PA may be needed.
WHEN DRAFTING THE AGREEMENT
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Anticipate future need for potential amendments, especially for MOAs with extensive mitigation stipulations; PAs for complex, multi-phase undertakings; or agency program PAs. The terms of an agreement can usually only be reconsidered and extended through an amendment. It is important to note that once an agreement expires, it cannot be amended to extend its duration—a new agreement must be negotiated. See the ACHP’s Guidance on Agreement Documents (GAD): Drafting.
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Make sure the language in the amendment stipulation is completely clear so that a cold reader can understand what is required to amend the agreement.
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Include stipulations with regular, scheduled reporting or monitoring mechanisms for the purpose of anticipating potential needs for amendment. Federal agencies should consult with consulting parties several months before the agreement expires to assess or review the status of the agreement’s implementation, particularly for program PAs. To this end, the agency may draft a “reminder” stipulation for a report or meeting, occurring six months (or another appropriate period of time) prior to expiration. The purpose of such a meeting would be to discuss the following types of questions: Is there a need for a duration amendment? Are the stipulations being completed in a timely fashion? Are there other programmatic improvements necessary beyond extension?
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Make sure the language in the duration provision is completely clear if it includes conditions or does not set expiration on a specific calendar date. Use a cold reader to judge whether the duration stipulation is understandable. Any conditions defining the expiration date should be explicitly identified, and any reader should be able to determine whether they have been met or not met.
WHEN IMPLEMENTING THE AGREEMENT
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Assess the health of the agreement through monitoring progress regularly. Ask the following questions: Have all stipulations been fully implemented? Should consulting parties be contacted to examine the possibility of amending the agreement? Reporting stipulations in Section 106 agreements can establish helpful regular schedules for agencies to document progress in completing stipulations and to inform consulting parties about any issues that may have arisen in the course of project implementation.
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In addition to monitoring and reporting, federal agencies, the SHPO/THPO, and other consulting parties may propose annual or bi-annual meetings. These meetings offer an opportunity to track and discuss the status of ongoing Section 106 consultations as well as the implementation of an agreement’s stipulations. For more information, see the ACHP’s GAD: Agreement Implementation, Tracking and Oversight. If problems or issues with the agreement come to light, the agency should consult to determine whether the issues can be resolved through a substantive amendment.
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Initiating consultation to amend an agreement just prior to its expiration is likely to be insufficient, as amendments must be executed prior to the agreement’s expiration date. It is important to pay particular attention to the wording of the agreement’s amendment stipulation. Different amendment stipulations may have different requirements. In meeting this “deadline” for amending the agreement prior to its expiration, we suggest several procedural considerations:
- Signatures. The amendment must be signed by all signatories and invited signatories (but not concurring parties) prior to expiration. It is recommended to establish a clear timeline for obtaining these signatures.
- Timing (calendar year). The time of year can and does affect the timeline for obtaining signatures (for examples, the end of a calendar year; an election cycle; the end of a fiscal year). Anticipate that extra time may be needed, as even a simple duration amendment could possibly require several weeks or months to execute.
In summary, it is the federal agency’s responsibility to ensure that the terms of Section 106 agreements are met. This includes keeping track of an agreement’s duration and allowing for sufficient time to consult on any amendments prior to its expiration. Duration monitoring is an important component of the agency’s oversight of Section 106 agreement implementation for its programs and undertakings.