Frequently Asked Questions
The questions and answers below address common issues regarding the Nationwide Programmatic Agreement (PA) signed in 2008. Topics include the differences between the PAs signed in 1995 and 2008, when elements of the PA can and cannot be used, information on the streamlined review process, reporting requirements, and more. Links are included to more specific discussions of the topics within the PA Toolkit.
Why was the 1995 PA replaced with the 2008 PA?
The PA signed in 2008 incorporates changes in policy and the revisions to 36 CFR 800, the implementing regulations of the ACHP. It also responds to a number of challenges posed through the implementation of the 1995 PA. Among them were inappropriate use of the PA, disagreement between the parks and SHPOs about the interpretation of programmatic exclusions, concern over improving accountability, and improving tribal consultations. The development of the new PA allowed the NPS to create a document that conforms with the requirements of the revised regulations; meets the operational and planning needs of the NPS; and takes into account the concerns of Indian tribes, SHPOs, and others with an interest in NPS cultural resources.
How is the new PA similar to the 1995 PA?
Both the 2008 and 1995 PAs outline a set of undertakings for which parks may use a special, streamlined process if specific criteria are met. Both also outline requirements for staffing and training.
How is the new PA different from the 1995 PA?
The 2008 PA uses different terminology and is more specific than the 1995 PA. Similarly to the 1995 PA, it outlines a set of undertakings for which parks may use a special, streamlined process if specific criteria are met. The 1995 PA called these undertakings "programmatic exclusions," but the 2008 PA calls them "streamlined activities." The streamlined activities are more explicit in the 2008 PA than the old programmatic exclusions, and help to define better which activities qualify. If you are uncertain whether a particular undertaking is a streamlined activity, contact your Regional Section 106 Coordinator or SHPO. An important difference is that the review process for streamlined activities has changed.
The 2008 PA also contains new emphasis on the consultation requirements of Section 106. Revisions to the Section 106 regulations after the 1995 PA was executed placed a new and greater emphasis on consulting with federally recognized Indian tribes, as well as other interested parties. As a result, the 2008 PA includes information on government-to-government consultation with federally recognized tribes for projects proposed both on and off tribal lands. It also discusses consultation with SHPOs and the public.
What do these changes mean?
The 2008 PA, in effect, provides parks that have completed cultural resource inventories and Determinations of Eligibility for historic properties potentially eligible for the National Register of Historic Places with a streamlined way to conduct reviews; emphasizes consultation and communication throughout the Section 106 review process; provides an internal checks system through the collaboration of the Superintendent, Park Section 106 Coordinator, and Cultural Resource Management Team; and increases accountability through required meetings and training. All these provisions aim to ensure that parties involved in the stewardship of NPS resources can fulfill their responsibilities.
How do the streamlined activities compare to the programmatic exclusions?
See Section III.C of the 2008 PA for a detailed discussion of streamlined activities, the circumstances under which the streamlined process may not be used, and what action should be taken if a proposed project includes ground disturbing activity. Key points are:
- Archeological monitoring and limited testing are not streamlined activities in the 2008 PA because they are Section 110 activities and are exempt from Section 106 review.
- New streamlined activities include battlefield preservation and maintenance, hazardous fuel and fire management, culvert replacement, reburial of human remains and other cultural items subject to NAGPRA, and meeting accessibility standards in historic structures and cultural landscapes.
Do parks have discretion in the Streamlined Review Process?
Yes. The PA is flexible to meet specific park needs as outlined in PA III.D. The list of activities eligible for streamlined review can be amended and new ones adopted. To do so, a park might:
- Review all of the activities in PA III.C and amend or add to them in consultation with the SHPO at your earliest convenience;
- Coordinate all national park units in the state to adopt the same amendments/additions to expedite consultation with the SHPO; and
- Choose a NPS employee to be a PA coordinator in your state. The individual could keep track of recommended amendments/additions to the streamlined reviews to update the PA statewide instead of park-by-park, and arrange a statewide biennial meeting with the SHPO and all the parks. The meeting would save time for the SHPO (one meeting instead of several) and allow parks to understand how each uses the PA.
Can I use the Streamlined Review Process when the undertaking will adversely affect a historic property?
No. Only use the process when preliminary planning results in a finding of no historic properties affected or no adverse effect. The regular Section 106 procedures, known as the Standard Review Process, apply when streamlined review does not.
Can I use the Streamlined Review Process when the undertaking will affect historic properties on tribal lands?
If the tribe is not a signatory to the PA or to a park specific agreement (see PA Section II.2.4 for information) then streamlined review may not be used when the undertaking will affect a historic property within park boundaries, but not on tribal land, in which a tribe or tribes have asserted a tribal interest. Once tribal consultation is complete, however, the streamlined process may be used as appropriate for the remainder of the compliance process.
What are the new reporting requirements?
The PA requires parks to report annually to the SHPO and/or THPO on projects that were reviewed using the Streamlined Review Process (PA III.B.5.d). Every two years, each park will compile the information reported to the SHPO/THPO into a report submitted to the Regional Director. The report should include information on staff training completed and basic data demonstrating compliance with the provisions of the PA. Regional Directors will consolidate the reports into a single report for the Director. See the Review and Monitoring section for details.
Won't these new reporting requirements be a lot of additional work for the parks?
The reporting requirements aim to ensure communication between the NPS and consulting parties. The PA strongly encourages parks to use the NPS Planning, Environment and Public Comment (PEPC) system to track and document Section 106 compliance activities. PEPC allows parks to submit the project information into a reporting format that requires little effort from the system user. See Working with PEPC for help.
When do Superintendents meet with their SHPO?
Parks will meet with their SHPO on an annual basis. Superintendents, or another individual designated by the Superintendent, will initate setting up the meeting. The requirement is a carryover from the previous PA, and now is a good time to amend/add to the streamlined activities. During this meeting, bring your list of undertakings for which the PA was used.
What are the staffing requirements at the park?
In order to use the PA, each park is required to have a Section 106 Coordinator and a Cultural Resource Management (CRM) Team, both designated by the Superintendent. The Park Section 106 Coordinator provides day-to-day staff support for Section 106 activities and serves as a liaison among park personnel, the NPS Regional Office, NPS Centers, and others involved in undertakings. The coordinator determines whether a project constitutes a Section 106 undertaking and, in consultation with the CRM Team, makes recommendations to the Superintendent regarding the appropriate course of action under the PA. The CRM Team provides expertise and technical advice to the Superintendent and the Park Section 106 Coordinator for purposes of Section 106 compliance and implementation of the PA. CRM Team members may be on the park staff or in other parks, or from NPS Regional Offices, NPS Centers, federally recognized Indian tribes, Native Hawaiian organizations, or elsewhere in the public or private sector. See the Qualifications section for qualifications.
What are the training requirements in the PA and how can I meet them?
The 2008 PA requires park staff to receive periodic training on Section 106 compliance issues and the provisions of the PA. Superintendents are required to demonstrate that they and their staff have completed training during their biennial review and monitoring meetings. See the Training section for more information.
Where can I get help with Section 106 issues or implementation of the PA if I need it?
Each region has a Regional Section 106 Coordinator who works with parks and other NPS offices to provide support for Section 106 compliance and implementation of the PA. The Regional Section 106 Coordinators provide guidance materials and technical assistance for implementing the PA and assist the parks in meeting the training, reporting, and consultation requirements of the PA.