DRAFT PROGRAMMATIC AGREEMENT AMONG THE FEDERAL …web.mta.info/capital/sas_docs/sdeis/draftprogrammatic.pdf · PA-1 DRAFT PROGRAMMATIC AGREEMENT AMONG THE FEDERAL TRANSIT ADMINISTRATION,

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DRAFT PROGRAMMATIC AGREEMENT

AMONG THE FEDERAL TRANSIT ADMINISTRATION,

THE METROPOLITAN TRANSPORTATION AUTHORITY NEW YORK CITY TRANSIT,

AND THE NEW YORK STATE HISTORIC PRESERVATION OFFICER

REGARDING THE SECOND AVENUE SUBWAY PROJECT

IN NEW YORK CITY, NEW YORK

WHEREAS, the New York City Transit Authority, an affiliated agency of the Metropolitan Transportation Authority of the State of New York (“MTA NYCT”) is proposing to construct the Second Avenue Subway Project (the “Project”), a new 8.5-mile-long subway line located on the east side of Manhattan that will improve transit services, transportation and access to the east side of Manhattan and includes new or improved rail yards in Manhattan and Brooklyn and subway car maintenance facilities in Manhattan and the Bronx;

WHEREAS, MTA NYCT has applied to the Federal Transit Administration (“FTA”) for monies to assist MTA NYCT in constructing the Project. Accordingly, FTA is the Project’s lead federal agency pursuant to the National Environmental Policy Act (NEPA, codified at 42 USC 4321 et seq.) and is the federal agency responsible for compliance with Section 106 of the National Historic Preservation Act (codified at 16 USC § 470f, and herein “Section 106”);

WHEREAS, due to the length and complexity of the Project and the potential for exigent circumstances to arise during construction of the Project, MTA NYCT will provide funding, subject to final MTA/MTA NYCT approvals, to the New York State Historic Preservation Office (SHPO) for expedited review services. Such review services will be fulfilled by an on-call, full-time SHPO designee stationed in New York City with full SHPO-delegated review and decision-making authority;

WHEREAS, FTA and MTA NYCT, along with SHPO and the New York City Landmarks Preservation Commission (“LPC”) as consulting parties, as the result of a consultative process in accordance with Section 106, have determined that it is appropriate to enter into this Programmatic Agreement, pursuant to Section 800.14(b) of the regulations implementing Section 106 (codified at 36 CFR Part 800, and herein the “Section 106 Regulations”), which will govern the implementation of the Project and satisfy FTA’s compliance with Section 106; [THE FINAL VERSION OF THIS AGREEMENT WILL BE SIGNED PRIOR TO THE PUBLISHING OF THE FINAL ENVIRONMENTAL IMPACT STATEMENT (FEIS)]∗

WHEREAS, FTA has invited the Advisory Council on Historic Preservation (“ACHP”) to participate in the Section 106 process for this Project and ACHP has declined;

∗ Parentheticals have been provided for the “Whereas” clauses to indicate the timing of the Section 106 processes in relation to the execution of the Programmatic Agreement. Parentheticals will not appear in the Final Programmatic Agreement.

Second Avenue Subway Draft Programmatic Agreement

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WHEREAS, FTA has coordinated its compliance with Section 106 and NEPA, pursuant to 36 CFR § 800.8 through its preparation of an Environmental Impact Statement (“EIS”) for the Project; [THE EIS WILL BE FINALIZED AFTER THE FINAL VERSION OF THIS PROGRAMMATIC AGREEMENT IS SIGNED SO THAT THE FINAL VERSION OF THIS PROGRAMMATIC AGREEMENT CAN BE INCLUDED IN THE FINAL EIS]

WHEREAS, through the process conducted in preparing the EIS, FTA has determined that the Project may have an effect on properties qualifying for protection under Section 106, consisting of those properties listed or eligible for listing on the State and National Registers of Historic Places (“Historic Properties”);

WHEREAS, pursuant to the Section 106 Regulations, FTA and MTA NYCT, in consultation with SHPO, identified the Project’s areas of potential effect (“APEs”) for Historic Properties and determined that the APEs are the areas where potential effects on Historic Properties caused by the Project may occur;

WHEREAS, generally, Historic Properties can be categorized as archaeological or built (see 36 CFR § 800.16(l)); and this Programmatic Agreement specifies the appropriate approaches for Archaeological and Built Properties in the Project’s APEs separately, due to the different issues presented by each category;

WHEREAS, the identification and evaluation of Historic Properties within the Project’s APEs was conducted by MTA NYCT, in consultation with FTA and SHPO, as documented in the EIS. As part of this process, FTA and MTA NYCT identified properties that appeared to meet the criteria for listing on the State and National Registers of Historic Places provided at 36 CRF Part 63 (herein “Historic Properties criteria”) and therefore to qualify for Section 106 protection, but for which SHPO had not yet made determinations of eligibility. FTA in consultation with SHPO, subsequently determined whether these properties constitute Historic Properties and qualify for Section 106 protection;

WHEREAS, as documented in the EIS, FTA and MTA NYCT, in consultation with SHPO and LPC, identified two Built Properties in the Project’s APEs—the Daily News Building at 42nd Street and the Brooklyn Bridge—that are National Historic Landmarks, and a total of 77 Built Properties that qualify for Section 106 protection. These Built Properties are identified in Table 9-1 of the EIS, “Known Historic Resources Within the Second Avenue Subway APEs and Potential Project Effects” annexed hereto as Exhibit A. Additionally, Figures 9-1 through 9-9 of the SDEIS, annexed hereto as Exhibit B, depict the approximate locations of these Built Properties; [BEFORE EXECUTION OF THIS PROGRAMMATIC AGREEMENT, THE FEIS WILL BE PUBLISHED AND THESE REFERENCES WILL BE CHANGED AS NECESSARY TO REFLECT THE TABLES AND FIGURES IN THE FEIS]

WHEREAS, as documented by the EIS, FTA and MTA NYCT, in consultation with SHPO and LPC, identified areas with the potential to contain Archaeological Properties in the Project’s APEs (“archaeologically sensitive areas”) and identified archaeologically sensitive areas in which construction might occur, including six areas that are potentially sensitive for human remains, and these resources are identified in Tables 10-1, 10-2, and 10-3 of the EIS, annexed hereto as Exhibit C. Additionally, Figures 10-1 through 10-6 of the EIS, annexed hereto as Exhibit D, depict the approximate locations and depths of the areas identified in Exhibit C; [[BEFORE EXECUTION OF THIS PROGRAMMATIC AGREEMENT, THE FEIS WILL BE PUBLISHED AND THESE REFERENCES WILL BE CHANGED AS NECESSARY TO REFLECT THE TABLES AND FIGURES IN THE FEIS ]


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WHEREAS, it is possible that as the Project evolves or as a result of the addition of new Project elements beyond the boundaries of the current APEs, FTA and MTA NYCT, in consultation with SHPO [and LPC], may identify additional, previously unidentified Built Properties or archaeologically sensitive areas, which may be affected by the Project;

WHEREAS, this Programmatic Agreement sets forth measures that will be implemented for all Built Properties or archaeologically sensitive areas within the Project’s current or future APEs;

WHEREAS, the length and complexity of the Project necessitate that the design and construction of the Project be phased over a 12- to 16- year period and a phasing schedule has not yet been developed;

WHEREAS, more detailed information on historic and archaeological resources will become available during the Preliminary Engineering, Final Design, and Construction stages of the Project. Preliminary Engineering is currently ongoing, Final Design will follow Preliminary Engineering, and Construction will commence after completion or concurrent with Final Design;

WHEREAS, a Cultural Resources Management Plan that includes measures to protect Built Properties and Archaeological Properties prior to and during construction of the Project has been developed for the Project and contains separate plan components that are annexed hereto as Exhibits E through M of this Programmatic Agreement;

WHEREAS, FTA has made a reasonable and good faith effort to identify and contact by letter the appropriate Native American tribes and groups (the “Tribes”) that could attach religious or cultural significance to sites within the APEs upon which the Project could have an effect;

WHEREAS, FTA and MTA NYCT have made a reasonable and good faith effort to identify and contact and seek the involvement of any descendant groups or communities associated with the areas potentially sensitive for human remains that may be affected by the Project; [THIS REASONABLE AND GOOD FAITH EFFORT HAS BEGUN AND WILL HAVE BEEN COMPLETED PRIOR TO THE EXECUTION OF THE FINAL VERSION OF THIS PROGRAMMATIC AGREEMENT]

WHEREAS, this Programmatic Agreement was developed with appropriate public participation during the NEPA public comment period pursuant to Subpart A of the Section 106 Regulations and a draft copy of this agreement was included and distributed with the Supplemental Draft EIS. The public will be duly notified as to the execution and effective dates of this Programmatic Agreement through either the Final EIS and/or FTA’s Record of Decision for the Project; [THIS PROGRAMMATIC AGREEMENT WILL HAVE BEEN DEVELOPED WITH APPROPRIATE PUBLIC PARTICIPATION; SO, AT THE TIME OF THE EXECUTION OF THE FINAL VERSION, THIS CLAUSE IS ACCURATE.]

NOW, THEREFORE, FTA, MTA NYCT, and SHPO agree that the Project shall be implemented in accordance with the following stipulations to ensure that potential effects on Historic Properties are taken into account.


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STIPULATIONS FTA, MTA NYCT, AND SHPO AGREE THAT THE FOLLOWING STEPS WILL BE UNDERTAKEN IN CONNECTION WITH THE PROJECT AND THAT FTA WILL

INCLUDE THE OBLIGATIONS SET FORTH IN THIS AGREEMENT AS PART OF ITS RECORD OF DECISION AND AS A CONDITION OF FTA’S APPROVAL OF ANY

GRANT ISSUED FOR CONSTRUCTION OF THE PROJECT, TO ENSURE THAT THESE MEASURES ARE IMPLEMENTED AS PART OF THE COMPLIANCE WITH THE SECTION 106 PROCESS AND THE SUBSEQUENT PLANNING, DESIGN, AND

CONSTRUCTION OF ANY APPROVED PROJECT ALTERNATIVE.

I. BUILT PROPERTIES

A. Construction Protection Plan

1. The EIS demonstrated that the Project could have potential adverse effects on certain Built Properties, primarily due to the proximity of the resources to proposed construction activities, including tunnel and station construction, shaft sites and/or staging areas, and building underpinning activities. The EIS also demonstrated that it is possible that additional, previously unidentified Built Properties may be identified within the Project’s APEs in the future or in the area of any new project elements (see I.C. below) and that these previously unidentified properties may be affected by the Project. Accordingly, this Programmatic Agreement sets forth the following measure that will be implemented for all Built Properties within the Project’s APEs.

2. To avoid Project-related construction damage to any Built Property and any additional Built Property that may not have been previously identified, as set forth below in I.C., MTA NYCT, in consultation with FTA and SHPO and all other appropriate New York City agencies, will develop Construction Protection Plans for Built Properties. Annexed hereto as Exhibit E is a list of procedures that will be included in Construction Protection Plans, which will be developed prior to construction of the Project. MTA NYCT shall ensure that any Built Property that could be adversely affected by Project construction will be included in a Construction Protection Plan, and MTA NYCT shall implement such plans as appropriate.

B. Design Specifications Governing Potential Permanent Contextual Effects

1. FTA and MTA NYCT have determined, through the EIS, that the Project has the potential to result in permanent visual effects and changes to the historic setting (herein “contextual effects”) to MTA Metro-North’s Harlem-125th Street Station and Comfort Station, which have been determined eligible for listing on the National Register of Historic Places. MTA NYCT, in consultation with SHPO, will develop design specifications to ensure that project-related construction activities in and around MTA Metro-North’s Harlem-125th Street Station are compatible with the station’s historic and architectural qualities. Annexed hereto as Exhibit F is a description of the components of the design specifications plan for MTA Metro-North’s Harlem-125th Street Station and Comfort Station, which will be developed beginning with Final Design of the Project.

2. MTA NYCT, in consultation with SHPO, will develop design specifications to ensure that any permanent Project elements that may affect the visual context or historic setting of a Built Property in the Project’s APEs, including Project construction within an existing Built


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Property, are compatible with the historic and architectural qualities of that property. Examples of such potentially visible project elements may include subway entrances and exits and ventilating structures. Annexed hereto also as Exhibit F is a description of the components for the design specifications plan for visible project elements, which will be developed beginning in Final Design of the Project.

C. Identification of Additional Built Properties and Assessment of Project Effects

1. If additional Built Properties not previously identified as Built Properties in the EIS are identified in the Project’s APEs during Preliminary Engineering, Final Design, or Construction of the Project or if new project elements are added to the Project in areas that were not previously assessed for Built Properties in the EIS, it is possible that potential effects on Built Properties, in addition to those described in the EIS, may occur. For any such new project elements, the potential effects on Built Properties will be assessed prior to construction by FTA and MTA NYCT, in consultation with SHPO [and LPC], in accordance with the Section 106 process.

2. MTA NYCT will consult with FTA, SHPO and LPC annually to ensure the FTA and MTA NYCT maintain up-to-date lists of properties that are determined to be Historic Properties as construction of the Project proceeds, and to assess potential effects on any such properties in the Project’s APEs.

D. Consultation with SHPO Regarding Built Properties

MTA NYCT shall submit any plans developed pursuant to design specifications governing potential permanent contextual effects described in I.B. to FTA, SHPO [and LPC] in advance of any construction that may result in any such effects. FTA’s and SHPO’s review and comment on such submissions shall be governed by the process set forth in III.A-B.

II. ARCHAEOLOGICAL PROPERTIES

A. Additional Evaluation for Archaeologically Sensitive Areas

The EIS first identified archaeologically sensitive areas in the Project’s APEs and then identified those areas in which construction might occur. The following stipulations describe the processes that will be followed in conducting further research to determine the potential for Archaeological Properties to be affected by the Project.

1. Soil Borings Program

During Preliminary Engineering of the Project, MTA NYCT established a soil borings program to establish geotechnical and environmental subsurface conditions along the subway corridor. MTA NYCT has consulted with SHPO and LPC regarding the establishment of a protocol for the borings to be used for archaeological purposes to reassess the potential for archaeological resources, or lack thereof; and a protocol for the taking of borings in areas potentially sensitive for human remains. MTA NYCT will implement and follow the procedures set forth in the Soil Borings Plan, annexed hereto as Exhibit G.

2. Protocol to Prioritize Archaeologically Sensitive Areas for Field Testing and Field Testing Plan


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a. At all sites where the potential for archaeological resources is confirmed to exist by soil borings conducted under II.A.1. above, MTA NYCT shall:

(i) Prioritize archaeologically sensitive areas for testing. MTA NYCT will commence this work during Preliminary Engineering of the Project. It will include an assessment of site access and testing feasibility for all archaeologically sensitive areas that would be affected by the Project. For areas sensitive for historic-period resources, MTA NYCT shall undertake additional documentary research to document historic disturbance, refine archaeological sensitivity, and evaluate research potential so as to prioritize the sites for testing based on the site’s potential to yield significant information and address meaningful research issues according to the Historic Properties criteria. The work will be undertaken as per the procedures set forth in the Site Prioritization and Additional Documentary Research Protocol, which was developed in consultation with SHPO and LPC, and annexed hereto as Exhibit H; and/or

(ii) Undertake field testing to identify the presence or absence of potential Archaeological Properties.

b. Prior to commencing any field testing, MTA NYCT shall submit a Field Testing Plan outlining the proposed methodology for SHPO’s [and LPC’s] concurrence that the field evaluation and testing program would be conducted at a level sufficient to determine if the potential resource meets the Historic Properties criteria. Annexed hereto as Exhibit I is a description of the components of the Field Testing Plan that will be developed beginning with Preliminary Engineering of the Project. SHPO’s [and LPC’s] review and comment on such submissions shall be governed by the process set forth in III.A-B.

c. In areas identified as potentially sensitive for human remains, field testing will proceed in accordance with the requirements for testing in areas potentially sensitive for human remains established in the Field Testing Protocol. Subsurface work will only be undertaken in areas potentially sensitive for human remains following the prior notification of and opportunity for consultation with the appropriate descendant community (if such appropriate descendant community can be reasonably identified and located) as outlined below in II.A.3.

d. For all field tested sites, MTA NYCT shall provide a report to FTA, SHPO [and LPC] in which the Historic Properties criteria have been applied to reach one of the following conclusions:

(i) The site does not meet the Historic Properties criteria; in which case no further action is required.

(ii) The site does meet the Historic Properties criteria, in which case the site will be treated in accordance with II.A.4 below.

e. SHPO’s [and LPC’s] review and comment on such reports shall be governed by the process set forth in III.A-B.


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3. Protocol for Work in Areas Potentially Sensitive for Human Remains

a. Consultation with Descendant Community(s) Associated with Areas Potentially Sensitive for Human Remains

At all sites sensitive for human remains where subsurface work is required for borings and/or field testing as described in II.A.1.d. and II.A.2.c. above, MTA NYCT shall:

(i) Make a reasonable and good faith effort, prior to any excavation, to locate and contact the appropriate descendant community(s). In the event that an appropriate descendant community(s) has been identified and located, MTA NYCT shall seek the involvement of the descendant community(s) during Preliminary Engineering of the Project and prior to any excavation.

(ii) Follow the protocol set forth in II.A.3.b below that outlines the appropriate notification procedures and treatment of human remains in the event that human remains are encountered. Such protocol will be in place prior to any excavation.

b. Notification Procedures and Treatment of Human Remains

If any human remains are encountered during subsurface work for borings, field testing, or Project construction the following will occur:

(i) MTA NYCT shall stop work and secure the site.

(ii) MTA NYCT shall notify the New York City Medical Examiner and Police Department. MTA NYCT’s Cultural Resources Manager, a professional archaeologist, shall notify SHPO [and LPC].

(iii) The appropriate descendant community(s) shall be notified, so that the remains may exhumed and treated in an appropriate manner as previously agreed upon by the descendant community(s) and MTA NYCT.

(iv) Once Cultural Resources Manager, in consultation with SHPO, indicates that all remains have been properly exhumed, construction may proceed.

4. Mitigation, Data Recovery, Curation, and Public Interpretation

a. For all sites identified as meeting the Historic Properties criteria, MTA NYCT, in consultation with SHPO [and LPC], shall consider measures, such as design modification, for avoidance of Archaeological Properties.

b. For those sites identified as meeting the Historic Properties criteria where FTA and MTA NYCT determine, in consultation with SHPO [and LPC], that avoidance is not practicable, MTA NYCT, in consultation with SHPO [and LPC], shall develop and implement a Data Recovery Plan. The Data Recovery Plan will be designed to recover data sufficient to address significant research issues and test assumptions, and thus substantially preserve the archaeological value of Section 106 protected sites. SHPO’s review and comment on such plan shall be governed by the process set forth in III.A-B. MTA NYCT shall be responsible for the implementation of such a plan, as appropriate.


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Annexed hereto as Exhibit K is a description of the components of the Data Recovery Plan, which will be developed beginning with the Final Design of the Project.

c. In advance of any mitigation or data recovery efforts undertaken pursuant to II.4.a and b above, MTA NYCT, in consultation with SHPO [and LPC], will develop in accordance with 36 CFR Part 79, an Analysis and Curation of Material and Records Plan for any archaeological excavations. SHPO’s [and LPC’s] review and comment on such plans shall be governed by the process set forth in III.A-B. MTA NYCT shall be responsible for the implementation of such a plan, as appropriate. Annexed hereto as Exhibit L is a description of the components of the Analysis and Curation of Material and Records Plan, which will be developed during Final Design and Construction of the Project.

d. During and/or following mitigation or data recovery efforts, MTA NYCT will make a reasonable and good faith effort to provide interpretative materials to the public. Such materials could take the form of a brochure, information kiosk, or web page to provide information on the data recovery program and any archaeological resources uncovered as a result of that program.

B. Identification of Additional Archaeologically Sensitive Areas and Assessment of Potential Project Effects

1. For any new project elements that would involve subsurface construction and for which the effects of such construction have not yet been analyzed as part of the EIS process, potential effects on archaeologically sensitive areas within the APEs (as adjusted in light of such new Project elements) will be assessed following the consultation requirements set forth in the Section 106 Regulations.

2. FTA and MTA NYCT will consult with SHPO [and LPC] in identifying archaeologically sensitive areas not previously identified and to assess potential project effects not previously assessed.

3. If any archaeologically sensitive areas are identified as a result of the research conducted as described in II.B.1 and II.B.2, MTA NYCT shall adhere to the steps described in II.A in conducting its activities within such areas.

C. Unanticipated Discoveries Plan

1. MTA NYCT shall follow the requirements set forth in the Unanticipated Discoveries Plan for non-human archaeological resources in the event that any unanticipated archaeological resources are encountered during construction of the Project. This plan, which was developed in consultation with FTA, SHPO and LPC, is annexed hereto as Exhibit J.

2. MTA NYCT shall follow the requirements set forth in the Unanticipated Discoveries Plan for human remains in the event that any unanticipated human remains not previously identified in the Second Avenue Subway Phase 1A Archaeological Assessment are encountered during construction of the Project. The Plan includes the protocols for the notification of appropriate parties and the proper treatment of human remains. This plan, which was developed in consultation with FTA, SHPO and LPC, is annexed hereto as Exhibit J.


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3. SHPO’s and LPC’s review and comment on such plans shall be governed by the process set forth in III.A-B.

4. FTA, MTA NYCT, SHPO, and LPC acknowledge that extraordinary costs would be incurred if construction were to be halted or delayed once underway. Accordingly, the parties shall make every effort to implement the approved Unanticipated Discoveries Plan expeditiously in circumstances requiring its use.

5. Construction and Archaeology Phasing Plan

MTA NYCT will take all practical steps to initiate and complete archaeological field analysis and data recovery (depending on site access and testing feasibility) prior to construction activities in the vicinity of affected resources. MTA NYCT, in consultation with SHPO [and LPC], will develop a plan to appropriately phase the archaeological field analysis and data recovery with construction activities. SHPO’s [and LPC’s] review and comment on such plans shall be governed by the process set forth in III.A-B. Annexed hereto as Exhibit M is a description of the components of the Construction and Archaeology Phasing Plan, which will be developed beginning with Preliminary Engineering of the Project.

D. Professional Standards

MTA NYCT shall ensure that all archaeological research, testing, analysis, and plans conducted pursuant to this Agreement are carried out by or under the direct supervision of a person or persons meeting at a minimum the Secretary of Interior’s Professional Qualifications Standards. MTA NYCT shall ensure that all final archaeological reports are consistent with the New York Archaeological Council’s Standards for Cultural Resource Investigations and the Curation of Archaeological Collections in New York State and to the Department of the Interior’s Format Standards for Final Reports of Data Recovery Program.

III. DOCUMENT REVIEW

A. Under normal circumstances (ie. when exigent circumstance do not exist), SHPO [and LPC] shall provide comments on documents provided for their review as set forth below:

1. SHPO [and LPC] shall provide comments regarding amendments to any plans annexed to this Programmatic Agreement pursuant to II.A.1, II.A.2.a.i, and II.C, as promptly as possible but not to exceed 30 calendar days of its receipt of such revisions.

2. Unless otherwise stated within this Programmatic Agreement, SHPO [and LPC] shall provide comments regarding any future plans and/or amendments to such plans submitted pursuant to I.A, I.B, II.A.2.b, II.A.4.b, II.A.4.c, and II.D, or reports submitted pursuant to Exhibit H, as promptly as possible but not to exceed 30 calendar days of its receipt of such plans or reports.

3. If SHPO [and LPC] do not submit comments in writing to FTA and MTA NYCT within 30 calendar days of receipt of any such submissions, it is understood that SHPO [and LPC] have concurred with the proposed plans.


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4. If SHPO and /or LPC objects within 30 calendar days of its receipt of any submissions, then FTA, MTA NYCT, SHPO [and LPC] shall consult expeditiously in an effort to resolve the objection.

5. If FTA and MTA NYCT cannot resolve SHPO’s [and/or LPC’s] objection and if further consultation with SHPO [and/or LPC] is deemed unproductive by any party, then the parties shall adhere to the dispute resolution procedures detailed under V. below.

B. FTA, MTA NYCT, SHPO, [and LPC] acknowledge that the timeframes set forth in III.A. above are the maximum time periods allowable under normal circumstances. In exigent circumstances (such as where construction activities have been suspended or delayed pending resolution of the matter) all parties agree to make every effort to expedite their respective document review and dispute resolution obligations. In particular, SHPO shall provide comments on any submission within one business day after SHPO’s receipt thereof.

IV. REPORTING AND OVERSIGHT

A. Final Reports. MTA NYCT shall ensure that all final historic reports and all final archaeological resources reports resulting from this Programmatic Agreement shall be provided to SHPO, FTA, [and LPC].

B. Annual Reports. Commencing one year from the date this Agreement is fully executed and every year thereafter until the Project is completed or terminated by MTA NYCT, annual reports will be submitted by MTA NYCT to SHPO, FTA, [and LPC], providing information concerning the implementation of this Agreement and the effect of the Project on Historic Properties.

C. Annual Review of Programmatic Agreement. The signatories to this Programmatic Agreement, or their successors, will review the implementation of this Programmatic Agreement and determine whether revisions are needed at the time the annual reports are submitted.

D. Revisions to the Programmatic Agreement. After review of the annual reports, if FTA, MTA NYCT, and SHPO, or their successors in interest all agree that revisions to this Programmatic Agreement are necessary, such revisions will be considered and implemented pursuant to a consultative process involving all the parties to this Programmatic Agreement.

V. DISPUTE RESOLUTION

A. In the event SHPO [and/or LPC] objects to any plan or report proposed pursuant to this Programmatic Agreement within 30 calendar days of its receipt of such plan or report, FTA and MTA NYCT shall meet with SHPO [and/or LPC] to resolve the objection.

B. Following such further consultation, FTA shall determine as promptly as possible whether such objection has been satisfactorily resolved. If FTA determines that the objection has not been satisfactorily resolved, within 15 calendar days of its determination in this regard FTA shall forward all documentation relevant to the dispute, including FTA’s proposed resolution of the dispute, to ACHP.

C. Except in exigent circumstances as provided in V.E., when there is a dispute ACHP will provide FTA with recommendations or comments within 30 calendar days after receipt of all pertinent


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documentation. FTA will take such recommendations or comments into account in reaching a final decision regarding the dispute.

D. Except in exigent circumstances as provided in V.E, in the event ACHP fails to respond to FTA’s request for recommendations or comments within 30 calendar days of receiving all pertinent documents, FTA may resolve the dispute.

E. In the case of disputes arising under exigent circumstances, (such as where construction activities have been suspended or delayed pending resolution of the matter) all parties shall endeavor to resolve any dispute within seven calendar days. In particular, ACHP agrees to respond to FTA’s request for recommendations or comments within five business days of its receipt thereof.

VI. OTHER

A. SHPO [and LPC] may monitor activities carried out pursuant to this Programmatic Agreement, and will review such activities if so requested. MTA NYCT will cooperate with FTA, SHPO, [and LPC] in carrying out SHPO’s [and LPC’s] monitoring and reviewing responsibilities.

B. Notwithstanding any other provision in this Agreement, any party may propose an amendment hereto whereupon the parties will consult to consider such amendments.

C. For purposes of notices and consulting pursuant to this Agreement, the following addresses and contact information should be used for the following agencies:

MTA NYCT

Hollie Wells Administrative Project Manager MTA NYCT Capital Program Management 2 Broadway, 6th floor New York, NY 10004 Tel.: 646-252-4268 Fax: 646-252-4612

FTA

Irwin B. Kessman Director, Office of Planning and Program Development Federal Transit Administration One Bowling Green, Rm. 429 New York, NY 10004-1415 Tel.: 212-668-2177 Fax: 212-668-2136


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SHPO

Robert D. Kuhn Assistant Director New York State Office of Parks, Recreation, and Historic Preservation Historic Preservation Field Services Bureau Peebles Island P.O. Box 189 Waterford, NY 12188-0189 Tel.: 518-237-8643, ext. 3255 Fax: 518-233-9049

ACHP

Laura Henley Dean Advisory Council on Historic Preservation 1100 Pennsylvania Avenue, NW Suite 803 Washington, D.C. 20004 Tel.: 202-606-8503 Fax: 202 606-8647

LPC

Amanda Sutphin Director of Archaeology New York City Landmarks Preservation Commission 1 Centre Street, 9N New York, NY 10007 Tel.: 212-669-7823 Fax: 212-669-7818

D. This agreement shall terminate upon completion of construction or at such time as MTA NYCT notifies the other parties in writing that the project has been terminated.

EXECUTION AND IMPLEMENTATION OF THIS PROGRAMMATIC AGREEMENT EVIDENCES THAT FTA HAS SATISFIED ITS SECTION 106 RESPONSIBILITIES FOR ALL INDIVIDUAL UNDERTAKINGS OF THE PROJECT.


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APPROVAL AND SIGNATURE PAGE FOR PROGRAMMATIC AGREEMENT

AMONG THE FEDERAL TRANSIT ADMINISTRATION,

THE METROPOLITAN TRANSPORTATION AUTHORITY NEW YORK CITY TRANSIT,

AND THE NEW YORK STATE HISTORIC PRESERVATION OFFICER

REGARDING THE SECOND AVENUE SUBWAY PROJECT

EXECUTION AND IMPLEMENTATION OF THIS PROGRAMMATIC AGREEMENT EVIDENCES THAT FTA HAS SATISFIED ITS SECTION 106 RESPONSIBILITIES FOR ALL INDIVIDUAL UNDERTAKINGS OF THE PROJECT.

FEDERAL TRANSIT ADMINISTRATION

By:___________________________________________ Date:_______________ Name Title

METROPOLITAN TRANSPORTATION AUTHORITY NEW YORK CITY TRANSIT


NEW YORK STATE HISTORIC PRESERVATION OFFICER



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LIST OF EXHIBITS

EXHIBIT TITLE

A SDEIS Table 9-1: Known Historic Resources Within the Second Avenue Subway APEs and Potential Project Effects”

B SDEIS Figures 9-1 through 9-9

C SDIES Tables 10-1, 10-2 and 10-3: Areas of Potential Archaeological Sensitivity and Potential Project Effects

D SDEIS Figures 10-1 through 10-6

E Construction Protection Plan

F Design Specifications for Contextual Effects

G Soil Borings Program and Archaeological Resources Protocol

H Site Prioritization and Additional Documentary Research Protocol

I Field Testing Plan

J Unanticipated Discoveries Plan for Archaeological Resources Including Human Remains

K Data Recovery Plan

L Analysis and Curation of Material and Records Plan

M Construction and Archaeology Phasing Plan

Exhibit A SDEIS Table 9-1 Second Avenue Subway Draft Programmatic Agreement

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EXHIBIT A

SDEIS TABLE 9-1

KNOWN HISTORIC RESOURCES WITHIN THE SECOND AVENUE SUBWAY APES AND POTENTIAL PROJECT EFFECTS

[THE FINAL PROGRAMMATIC AGREEMENT WILL INCLUDE COPIES OF THESE

TABLES, WHICH ARE INCLUDED IN CHAPTER 9 OF THIS SDEIS]

Exhibit B SDEIS Figures 9-1 through 9-9 Second Avenue Subway Draft Programmatic Agreement

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EXHIBIT B

FIGURES 9-1 THROUGH 9-9 OF THE SUPPLEMENTAL DRAFT EIS


FIGURES, WHICH ARE INCLUDED IN CHAPTER 9 OF THIS SDEIS]

Exhibit C SDEIS Table 10-1 and 10-2 Second Avenue Subway Draft Programmatic Agreement

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EXHIBIT C

SDEIS TABLES 10-1 AND 10-2

AREAS OF POTENTIAL ARCHAEOLOGICAL SENSITIVITY AND POTENTIAL PROJECT EFFECTS


TABLES, WHICH ARE INCLUDED IN CHAPTER 10 OF THIS SDEIS]

Exhibit D SDEIS Figures 10-1 through 10-6 Second Avenue Subway Draft Programmatic Agreement

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EXHIBIT D

FIGURES 10-1 THROUGH 10-6 OF THE SUPPLEMENTAL DRAFT EIS


FIGURES, WHICH ARE INCLUDED IN CHAPTER 10 OF THIS SDEIS]

Exhibit E Construction Protection Plan Second Avenue Subway Draft Programmatic Agreement

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EXHIBIT E

CONSTRUCTION PROTECTION PLANS

The primary objective of the Section 106 process is to identify Historic Properties and to protect them from adverse effects, including damage or destruction due to a project’s construction. The Second Avenue Subway Project Construction Protection Plans (CPPs) will provide protocols and stipulations for protecting identified Historic Properties located within the Project’s Areas of Potential Effect (APEs) during the demolition, excavation, and construction phases of the project. In practice, the CPPs will provide guidance for those designing as well as those constructing the project. At this time, the Project is undergoing Preliminary Engineering, and potential project effects on Historic Properties have not yet been fully determined. Prior to the commencement of any project demolition, excavation, or construction, detailed CPPs will be developed in consultation with the SHPO, FTA, and all other relevant City agencies. The CPPs will be based on the requirements stipulated in SHPO documents concerning blasting and vibration and other relevant guidance. Given the length of time over which the project will be undertaken, and the use of a phased method of construction, it is anticipated that individual CPPs within a comprehensive Second Avenue Subway CPP will be drafted specifically for each major construction segment. The CPPs will first detail the precise descriptions, locations, and dispositions of all known Historic Properties within the Second Avenue Subway APEs. All Historic Properties within the APEs will be plotted on the project’s geographic information system (GIS), along with the construction alignment to provide a basic awareness to all involved in the project’s construction. It is expected that the individual CPPs will consist of common protection measures for all Historic Properties. These measures will be described in detail, and would be expected to include the following measures:

• A preconstruction inspection of the potentially affected Historic Property(s) will be undertaken by professional engineers licensed to practice in the State of New York, to ascertain any pre-existing damage, existing structural distress, and/or other weaknesses and instability.

A written report will be prepared documenting any potential weakness or structural distress, and assessing the stability of any applied ornament, together with a protocol addressing any recommended remediation and outlining steps to be taken to secure problem areas prior to the commencement of any construction activities. Where required, the written report will be supplemented with photographic documentation keyed to a map or plan in order to provide a clear record of existing conditions and any problem areas.

• Controls on vibration will be required as per SHPO [and LPC] guidelines. The construction contractor will thereafter ensure that the appropriate vibration limits and any other criteria deemed appropriate by the project design consultants are incorporated into the sub-contracts for the work. The construction contractor will be responsible for monitoring these controls with periodic inspection by an MTA NYCT representative.

• A general plan will be prepared for the protection of Historic Properties from heavy machinery,

including the installation of construction barriers, sensitive Historic Property signage, and the development of machinery operating protocols.

In addition, specific protection measures will be developed based on Historic Property type and tailored to many other different characteristics such as the type of construction and potential construction effects,

Exhibit E Construction Protection Plan Second Avenue Subway Draft Programmatic Agreement

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integrity and condition of the site or structure, and its proximity to the impact area, which would vary from site to site. The tailored protection measures will be described in detail. Specialists from a variety of disciplines, such as seismology, may be required for their input and expertise. In such cases, the responsibilities of each specialist will also be detailed. Site specific protection measures may include the following:

• Pre-, mid-, and post-construction photography and videography • On-site monitoring during phases of demolition, excavation, and construction • The provision of vibratory monitors/sensors and continuous seismic monitoring, pursuant to the

design protocol during demolition, excavation, and construction operations. (Seismographs may need to be installed on the interiors and exteriors of potentially affected Historic Properties. Such units would be located so that they would be away from the general public but accessible to the technicians who must monitor them. The seismographs would measure vibration levels during demolition, excavation, and construction. Prior to the commencement of demolition and excavation operations, the seismographs would be installed and tested to ensure that they are in working order and to enable taking baseline readings. Daily logs of the seismic monitoring would be maintained and submitted to the SHPO upon request.)

• A

provision for stopping work if any damage or excess vibration (that which meets or exceeds the peak velocity level) to a Historic Property is detected. (In such a case, the Inspecting Engineer will stop the work causing the damage or excessive vibration. If excessive vibration is detected, the affected Historic Property(s) would be inspected for any structural degredation that may have occurred. If any damage to the Historic Property(s) was sustained, the Historic Property(s) would be secured, and the work that caused any damage would be altered to reduce the vibration levels to within acceptable limits. If any cracking to a Historic Property should occur during demolition, excavation, or construction, crack monitors would be installed over each crack and monitored on a weekly basis until the Inspecting Engineer deems the cracks to be stable.) �

Exhibit F Design Specifications for Contextual Effects Second Avenue Subway Draft Programmatic Agreement

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EXHIBIT F

DESIGN SPECIFICATIONS FOR CONTEXTUAL EFFECTS

Built Properties can be affected by visual impacts as well as physical impacts. The Second Avenue Subway project Design Specifications for Visible Project Elements will be developed to ensure that: 1) project elements which physically affect Built Properties (e.g., interior modifications to MTA’s Metro-North 125th Street-Harlem Station and Comfort Station) and 2) aboveground visible project elements (e.g., station entrances and ventilation structures) are designed in a manner consistent with the Built Properties near them. In addition to any physical modification to Built Properties, the view shed to and from Built Properties will be considered and addressed by these specifications. They will address not only how such facilities can be designed, but also the process by which their design is to be coordinated with the signatories to the Programmatic Agreement. The development of these specifications will occur during the preliminary engineering phase, once the location of project facilities is defined. The specifications will be prepared pursuant to the Secretary of the Interior’s Standards for the Treatment of Historic Properties.� �

Exhibit G Soil Borings Program/Archaeological Resources Protocol Second Avenue Subway Draft Programmatic Agreement

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EXHIBIT G

SECOND AVENUE SUBWAY PROJECT

SOIL BORINGS PROGRAM AND ARCHAEOLOGICAL RESOURCES PROTOCOL

MTA NYCT has established a Soil Borings Program to determine geotechnical and environmental subsurface conditions along the Second Avenue Subway alignment. In conjunction with the Soil Borings Program, MTA NYCT shall adhere to the following procedures with regard to soil borings and archaeological resources.

I. Retain Professional Archaeologist(s)

MTA NYCT agrees to retain the services of a professional archaeologist(s) who will provide archaeological expertise during the Soil Borings Program as described below. The professional archaeologist(s) will meet at minimum the Secretary of the Interior’s Professional Qualification Standards.

II. Review of Boring Logs by the Professional Archaeologist(s)

A. MTA NYCT agrees that any borings logs prepared as a result of geotechnical borings

taken by MTA NYCT to determine construction-related subsurface soil conditions will be done in a manner so as to provide information useful to a professional archaeologist(s). Such boring logs will be provided to the professional archaeologist for review to allow an assessment of subsurface conditions, such as previous disturbance including filling and grading, and/or the presence of original soils to refine the EIS conclusions about the potential presence or absence of archaeological resources in areas identified as archaeologically sensitive in Second Avenue Subway Project Phase 1A Archaeological Assessment dated June 2002 (“Phase IA”), prepared as part of the EIS, and/or any subsequent studies.

B. For each archaeologically sensitive area, the professional archaeologist(s) will make one

of the following determinations:

a) potential sensitivity b) lack of sensitivity c) inconclusive findings

C. Any sites that are determined to contain no archaeological sensitivity will be eliminated

from further archaeological consideration. Sites that retain potential archaeological sensitivity or for which potential sensitivity remains undetermined will be carried forward for additional archaeological evaluation, including additional documentary research and/or field testing.

III. Request for Additional Soil Borings by the Professional Archaeologist(s)

If the professional archaeologist(s) determines that a boring is needed in an area/location of likely significance that has not been investigated previously, and MTA NYCT deems that such a request is appropriate, then such boring will be undertaken.

Exhibit G Soil Borings Program/Archaeological Resources Protocol Second Avenue Subway Draft Programmatic Agreement

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IV. Borings in Potential Burial Ground Sites A. At any locations identified as sensitive for human remains, borings will be avoided

wherever practicable.Test borings will instead be performed in nearby areas not identified as sensitive for human remains.

B. Where borings cannot be practicably avoided in the areas that have been identified as

potentially sensitive for human remains, borings will be performed in a manner to avoid any insensitive disturbance to human remains as set forth below:

1. Hand augering will be performed in the sensitive area to a depth of at least 6 feet

to exceed the depth of any utilities. Beyond that depth, hand augering will be undertaken based on engineering and safety constraints. At the point where hand augering is no longer feasible, the soil boring will be undertaken.

2. The professional archaeologist(s) will be present on-site during hand augering and the execution of the boring to identify any skeletal material, if encountered. If any skeletal material is encountered, the archaeologist will contact a physical anthropologist/forensic archaeologist, who will be on-call as described below in IV.B.3.

3. A physical anthropologist/forensic archaeologist will be on-call in the event that

skeletal material is encountered, to properly identify if the skeletal material is human. The physical anthropologist/forensic archaeologist will be located in the New York City metropolitan area so that he/she may have prompt access to the site. If the remains are identified as human, the protocol for the notification of appropriate parties and treatment of human remains set forth in Section II.A.3 of the Programmatic Agreement will be followed.

4. Subsurface work will only be undertaken in areas potentially sensitive for human

remains following the prior notification of and opportunity for consultation with the appropriate descendant community(s).

V. Reporting to SHPO, FTA [and LPC]

Following completion of any borings, MTA NYCT shall prepare a report summarizing the results of the archeological evaluations and shall submit this report(s) as addenda to the Phase 1A to SHPO, FTA, [and LPC]. �

Exhibit H Site Prioritization/Additional Documentary Research Protocol Second Avenue Subway Draft Programmatic Agreement

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EXHIBIT H

SECOND AVENUE SUBWAY PROJECT

SITE PRIORITIZATION AND

ADDITIONAL DOCUMENTARY RESEARCH PROTOCOL I. Purpose and Need

The Second Avenue Phase 1A Archaeological Assessment, dated June 2002 (herein “Phase 1A”) identified areas of potential archaeological sensitivity (herein “archaeologically sensitive areas”) within the Areas of Potential Effect (APEs) for archaeological resources. The archaeologically sensitive areas contain a wide range of potential archaeological resource categories, including precontact resources and historical resources. Examples of historical resources include, but are not limited to, residential, commercial, industrial, and military sites. In addition, six areas were identified as potentially sensitive due to potential for human burials.

Through the review of boring logs undertaken by a professional archaeologist retained in conjunction with MTA NYCT’s Soil Borings Program (see Exhibit G, Second Avenue Subway Project: Soil Borings Program and Archaeological Resources Protocol, for further details), archaeologically sensitive areas identified in the Phase 1A will be further assessed and refined using indicators of subsurface conditions, such as the presence of fill and/or original historic soil layers. Areas that the boring logs identify as exhibiting archaeological sensitivity or for which findings were inconclusive will be carried forward for additional documentary analysis, as described below.

The purpose of the additional documentary analysis program is to gather more information on the archaeologically sensitive areas, including previous disturbance and historic occupation and use, to: 1) establish a list of sites that will be field tested, and 2) prioritize those sites based on their potential to yield significant information and address meaningful research issues according to Historic Properties criteria. This will be accomplished by:

1. Refining the geographic boundaries of archaeologically sensitive areas;

2. Evaluating the potential research value of each site; and

3. Assessing the feasibility of field testing archaeologically sensitive areas. This will include prioritizing sites based on site accessibility and traffic, pedestrian, and safety constraints, and identifying sites that may be tested in advance of construction and could contain a public educational component.

To accomplish the additional documentary research analysis, MTA NYCT shall adhere to the procedures of the Protocol set forth below. It is anticipated that the research described in this Protocol will be accomplished primarily during the Preliminary Engineering phase of the Second Avenue Subway project, though certain activities may continue into the Final Design phase due to further refinements to the project, the addition of new project elements, and/or changes to the project.


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II. Site Prioritization and Additional Documentary Research Protocol

A. Establish Archaeological Resource Categories for Additional Archaeological Analysis

For the purposes of the additional analyses to be undertaken as part of this Protocol, the types of potential archaeological resources identified in the Phase 1A have been grouped into the following four categories:

1. Precontact Resources; 2. Historical Resources (all resource categories except 19th Century Residential

and Cemeteries); 3. 19th Century Residential Resources; and 4. Cemeteries.

Distinct procedures will be employed for each of these four categories. The steps for the evaluation of each archaeological resource category are provided below.

B. Protocol for Precontact Resources

See also “Flowchart A, Precontact Resources” annexed to this Protocol.

1. Assess project effects. For each site, assess potential project effects. For sites

where the project will have no effects, no further analysis will be undertaken. For sites where disturbance could occur, MTA NYCT will follow the procedures for precontact resources set forth below in II.B.2-6.

2. Evaluate the potential research value of each site. 3. Assess testing feasibility with assistance from appropriate technical experts

and government agencies. For each site, assess the feasibility of gaining access to the site by considering potential testing constraints, such as traffic, pedestrians, and safety. The potential for testing with a public education component in advance of construction will also be evaluated.

4. Based on information obtained in Steps II.B.2 and II.B.3, establish a list of

sites to be field tested. 5. Prioritize sites within list based on the potential of each site to yield

significant information and address meaningful research issues according to Historic Properties criteria.

6. Prepare a report for submission to the New York State Historic Preservation

Officer (SHPO), the Federal Transit Administration (FTA), [and New York City Landmarks Preservation Commission (LPC)] summarizing the results of the analyses for precontact resources.


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C. Protocol for Historical Resources except 19th Century Residential and

Cemeteries

See also “Flowchart B, Historical Resources except 19th Century Residential and Cemeteries” annexed to this Protocol.

1. Assess project effects. For each site, assess potential project effects. For sites

where the project will have no effects, no further analysis will be undertaken. For sites where disturbance could occur, MTA NYCT will follow the procedures for historical resources set forth below in II.C.2-7.

2. For each site, undertake additional documentary research as applicable to

determine prior disturbance, historical site occupation, and use. 3. Evaluate the potential research value of each site. 4. Assess testing feasibility with assistance from appropriate technical experts

and government agencies. For each site, assess the feasibility of gaining access to the site by considering potential testing constraints, such as traffic, pedestrians, and safety. The potential for testing with a public education component in advance of construction will also be evaluated.

5. Based on information obtained in Steps II.C.2 through II.C.4, establish a list

of sites to be field tested. 6. Prioritize sites within list based on the potential of each site to yield

significant information and address meaningful research issues according to Historic Properties criteria.

7. Prepare a report for submission to SHPO, FTA, [and LPC] summarizing the

results of the analyses for historical resources. D. Protocol for 19th Century Residential Resources

The signatories to the Programmatic Agreement recognize that there are a large number of areas sensitive for 19th century historical resources and as a result, there exists the potential for research redundancy. Therefore, additional steps are proposed in the evaluation of sites containing potential 19th century residential resources to avoid research redundancy during the testing phase. See also “Flowchart C, 19th Century Residential Resources” annexed to this Protocol.

1. Assess Project effects. For each site, assess potential project effects. For sites

where the project will have no effects, no further analysis will be undertaken. For sites where disturbance could occur, MTA NYCT will follow the procedures for 19th century residential resources set forth below in II.D.2-9.


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2. Group and map 19th century sites according to the following time periods:

a) Early 19th century (pre-1852); b) Mid 19th century (1852-1870); and c) Late 19th century (1871-1899).

3. Review public utility records for sewer and water hook-up dates. Eliminate

sites that did not exist before hook-up and prioritize others according to date of construction prior to hook-up. Using the criteria defined below, sites designated as low priority will not be carried forward for further evaluation.

a) LOW PRIORITY: structures built within 10 years of hook-up (research

potential would only relate at a maximum to a 10 year span); b) MEDIUM PRIORITY: structures built between 10 and 20 years before

hook- up; and c) HIGH PRIORITY: structures built 20 years or more before hook-up.

4. Review New York City Department of Buildings (NYCDOB) records for

disturbance information for high and medium priority sites and for sites lacking an approximate date of construction. The signatories to the Programmatic Agreement recognize that it may not be possible to access certain data at NYCDOB, and that it is therefore likely that some assumptions will have to be made based solely on cartographic information.

5. Assess testing feasibility for high and medium priority sites with assistance

from appropriate technical experts and government agencies. For any such site, assess the feasibility of gaining access to the site by considering potential testing constraints, such as traffic, pedestrians, and safety. The potential for testing with a public education component in advance of construction will also be evaluated. Eliminate sites that have a high or medium priority for research but only a low or medium rating for site accessibility.

6. For all sites that have high or medium priority for research potential and a

high priority for testing feasibility, arrange sites hierarchically based on construction date so that an appropriate size sample of each age group is represented considering that age group’s research potential. This would reduce research redundancy during the testing phase.

7. Based on information obtained in Steps II.D.2 through II.D.6, establish list of

sites to be field tested. The final site testing list shall reflect a broad diversity of historical neighborhoods, income groups, and cultural groups.

8. For sites identified in the list described in Step II.D.7, perform additional in-

depth research, such as the review of census and conveyance records, street directories, and historical photographs to stratify these sites for testing priority, based on their potential to yield significant information and address meaningful research issues according to Historic Properties criteria.


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9. Prepare a report for submission to SHPO, FTA, [and LPC] summarizing the

results of the analyses for 19th century residential resources.

E. Protocol for Cemeteries See also “Flowchart D, Cemeteries” annexed to this Protocol.

1. Establish the appropriate descendant communities for each cemetery site and initiate contact with them.

2. Undertake intensive documentary research for each cemetery site:

a) Research and review interment and reinterment records to establish the ethnicity, religious affiliation, and number of burials and reburials at each cemetery, to the extent possible.

b) Research and review conveyance records to establish cemetery boundaries, to the extent possible.

3. For each cemetery, assess potential project effects to determine if the Project

has the potential to disturb any human remains. 4. Assess potential testing issues for each site, such as street and sidewalk

closures. 5. Establish list of sites to be field tested based on potential project effects. 6. Prepare a report for submission to SHPO, FTA, [and LPC] summarizing the

results of the analyses for cemeteries. III. Reporting to SHPO, FTA [and LPC]

Following completion of the analyses for each archaeological resource category, MTA NYCT shall prepare reports as described in Steps II.B.6, II.C.7, II.D.9, and II.E.6 and shall submit such reports to SHPO, FTA, [and LPC]. �

FLOWCHART A PROTOCOL FOR

PRECONTACT RESOURCES

REVIEW ADDITIONAL BORING LOGS

REVISE ARCHAEOLOGICAL SENSITIVITY DETERMINATIONS

BASED ON SUBSURFACE CONDITIONS

SITE FOUND TO RETAIN SITE FOUND DISTURBED POTENTIAL SENSITIVITY

NO FURTHER ACTION ASSESS POTENTIAL IMPACTS

SITE WILL BE OR MAY BE IMPACTED NO IMPACTS

EVALUATE AND PRIORITIZE SITES NO FURTHER

FOR TESTING ACCORDING TO POTENTIAL ACTION* RESEARCH VALUE AND TESTING FEASIBILITY

*IF CONSTRUCTION PLANS CHANGE AND IMPACTS WILL OCCUR, THEN

TESTING RECOMMENDED FOR ALL OR A NUMBER OF SITES BASED ON PRIORITIZATION FACTORS.

SOME SITES MAY DROP OUT DUE TO FEASIBILITY, ACCESS, RELATIVELY LOW SENSITIVITY, REDUNDANCY, OR A CHANGE IN SITE STATUS TO NO IMPACT.

FLOWCHART B

PROTOCOL FOR HISTORICAL RESOURCES

EXCEPT 19TH CENTURY RESIDENTIAL AND CEMETERIES

ESTABLISH DISTURBANCE THROUGH

REVIEWING ADDITIONAL BORING LOGS



SITE FOUND DISTURBED SITE FOUND TO RETAIN POTENTIAL SENSITIVITY NO FURTHER ACTION

ASSESS POTENTIAL IMPACTS


NO FURTHER UNDERTAKE ADDITIONAL RESEARCH ACTION*

TO INCLUDE REVIEWING BUILDING DEPARTMENT RECORDS, PUBLIC UTILITY

RECORDS, STREET DIRECTORIES, CENSUS *IF CONSTRUCTION PLANS DATA AND HISTORICAL PHOTOGRAPHS CHANGE AND IMPACTS

WILL OCCUR, THEN

EVALUATE AND PRIORITIZE SITES FOR TESTING ACCORDING TO POTENTIAL

RESEARCH VALUE AND TESTING FEASIBILITY

TESTING RECOMMENDED FOR ALL OR A NUMBER OF SITES BASED ON

PRIORITIZATION FACTORS. SOME SOME SITES MAY DROP OUT DUE TO FEASIBILITY, ACCESS, RELATIVELY LOW SENSITIVITY, REDUNDANCY, OR A CHANGE

IN SITE STATUS TO NO IMPACT

FLOWCHART C PROTOCOL FOR

19TH CENTURY RESIDENTIAL RESOURCES

ESTABLISH DISTURBANCE THROUGH

REVIEWING ADDITIONAL BORING LOGS



SITE FOUND TO RETAIN SITE FOUND DISTURBED POTENTIAL SENSITIVITY

NO FURTHER ACTION ASSESS POTENTIAL IMPACTS


NO FURTHER UNDERTAKE ADDITIONAL RESEARCH TO ACTION*

INCLUDE PUBLIC UTILITY RECORDS AND BUILDING DEPARTMENT RECORDS. EVALUATE AND PRIORITIZE

SITES ACCORDING TO POTENTIAL RESEARCH *IF CONSTRUCTION VALUE (ALL LOW PRIORITIY SITES FALL OUT) PLANS CHANGE

AND IMPACTS WILL OCCUR, THEN

ASSESS AND PRIORITIZE HIGH AND MEDIUM

PRIORITY SITES BASED ON TESTING FEASIBILITY, ACCESS, AND POTENTIAL RESEARCH REDUNDANCY

PRIORITIZE SITES FOR SUBSURFACE TESTING BY COMPLETING ADDITIONAL RESEARCH

TO INCLUDE REVIEWING STREET DIRECTORIES, CENSUS DATA, CONVEYANCE RECORDS AND HISTORICAL PHOTOGRAPHS

FLOWCHART D PROTOCOL FOR

CEMETERIES

ESTABLISH APPROPRIATE DESCENDANT COMMUNITY(S)

AND INITITATE CONTACT

INTENSIVE DOCUMENTARY RESEARCH TO ESTABLISH

INTERMENT AND DISINTERMENT DATA, AND BOUNDARIES

IF POSSIBLE

REASSESS PROJECT EFFECTS

SITE TO BE IMPACTED SITE TO BE AVOIDED NO AVOIDANCE POSSIBLE

NO FURTHER ASSESS POTENTIAL ACTION* TESTING ISSUES

* IF CONSTRUCTION PLANS CHANGE AND

IMPACTS WILL OCCUR, PROPOSED FIELD TESTING FOR ALL THEN OR SOME SITES BASED ON POTENTIAL PROJECT EFFECTS TO ESTABLISH PRESENCE/ABSENCE OF EXISTING BURIALS WITH COORDINATION THROUGH SHPO AND NYCLPC

Exhibit I Field Testing Plan Second Avenue Subway Draft Programmatic Agreement

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EXHIBIT I

FIELD TESTING PLAN

The Second Avenue Subway project Field Testing Plan will detail the protocols to be followed to assess the potential for Archaeological Properties. Methods to assess the presence or absence of subsurface archaeological resources and to assess whether any resources meet Historic Properties criteria would consist of Phase IB archaeological surveys and Phase II evaluations. Phase IB archaeological investigations will be conducted in archaeologically sensitive areas identified for additional archaeological evaluation through the work undertaken as set forth in the Site Prioritization/Additional Documentary Research Protocol (Exhibit H of this Programmatic Agreement). The Phase IB survey will be designed to determine the presence or absence of archaeological resources, including human and non-human remains, in the probable effect areas. As deemed appropriate by a professional archaeologist, the Phase 1B survey may include non-soil disturbing investigative measures, such as ground penetrating radar, or subsurface testing. If no cultural resources are discovered, the Phase IB survey process is complete. However, archaeological monitoring may be warranted in areas proximate to cemetery locations. If resources are identified during the Phase IB survey then additional archaeological investigation will be needed in the form of Phase II evaluations to establish the significance of the resource and whether or not it meets Historic Properties criteria. The Phase II survey will include a detailed evaluation of any identified archaeological resource(s). Evaluation is carried out on each of the identified resources to provide adequate data to make a determination of eligibility for listing on the State and National Registers of Historic Places, in other words, whether the resource(s) meets Historic Properties criteria. Any Phase II investigations will seek to establish the boundaries, integrity and significance of the resource(s) and evaluation of the impact of the proposed project as well as any additional data necessary to evaluate eligibility. For resources that are found to qualify as Historic Properties and that will be disturbed by the proposed project, a plan to avoid minimize or mitigate the impacts of the project will be developed and implemented. This plan may be an archaeological data recovery. If the Archaeological Property(s) cannot be avoided, data recovery would proceed as per the Data Recovery Plan (Exhibit K of this Programmatic Agreement). It should be noted that there may be instances where it may be most effective and appropriate to combine Phase 1B and Phase II evaluations due to the Project’s urban setting. All archaeological subsurface investigations will follow the Standards for Cultural Resource Investigations and the Curation of Archaeological Collections in New York State (1994), the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation (48 FR 44716, September 29, 1983); and the Advisory Council on Historic Preservation's handbook Treatment of Archeological Properties (1980). The Field Testing Plan will be developed once the Additional Documentary Research (see Exhibit H) has been completed, though additional documentary research may need to be conducted throughout the Phase 1B and Phase II evaluations as more information is made available through the completion of such evaluations. �

Exhibit J Draft Unanticipated Discovery Plan Second Avenue Subway Draft Programmatic Agreement

EXHIBIT J

DRAFT UNANTICIPATED DISCOVERY PLAN FOR ARCHAEOLOGICAL PROPERTIES INCLUDING HUMAN REMAINS


CONTENTS

Page

I. INTRODUCTION 1

II. DEFINITIONS 1

III. PERSONNEL 3

IV. ARCHAEOLOGICAL RESOURCE IDENTIFICATION/TRAINING 3

V. ARCHAEOLOGICAL FEATURE DISCOVERIES 3

A. STOP ACTIVITIES 4

B. MAKE NOTIFICATIONS 4

C. INITIAL DETERMINATIONS 4

VI. HUMAN REMAINS DISCOVERIES 6

VII. FEDERAL LANDS 7

VIII. APPLICABLE STATUTES AND REGULATIONS 7

A. FEDERAL 7

B. STATE AND CITY 7

LIST OF CONTACTS 8


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I. INTRODUCTION

The purpose of archaeological surveys during the project design phase is to determine the presence and disposition of potential historic and pre-contact Archaeological Properties within the Project areas of potential effect (APEs). These archaeological studies are conducted pursuant to Section 106 of the National Historic Preservation Act of 1966 (16 USC 470f), as amended (1976, 1980, 1992, and 1999) and implementing regulations of the Advisory Council on Historic Preservation (36 CFR 800). All work is undertaken pursuant to the Secretary of the Interior Standards for Archaeology and Historic Preservation (48 FR 44716-42 (1983)) and the applicable laws and regulations pertaining to the identification, preservation and protection of Historic Properties in New York City. These procedures are consistent with the relevant federal regulations (36 CFR 800.11).

MTA New York City Transit (MTA NYCT) is committed to the protection and preservation of Historic Properties, in accordance with federal and state legislation. MTA NYCT recognizes that despite the intensive archaeological resource field investigations that are typically performed prior to project construction, it is nonetheless possible that previously unknown archaeological resources could be discovered during the project construction process, particularly during trenching activities. MTA NYCT recognizes the requirement for strict compliance with federal and state regulations and guidelines regarding the treatment of human remains, if any are discovered. The following details the protocol that will be followed in the event that new archaeological resources, including human remains, are discovered during the construction process.

These procedures present the approach that MTA NYCT will use to address unanticipated discoveries of archaeological resources during construction activities along the Second Avenue Subway Project’s APEs. The procedures are in accordance with the current Standards for Cultural Resource Investigations and Curation of Archaeological Collections in New York State, New York Archaeological Council (NYAC).

II. DEFINITIONS

Areas of Potential Effect (APEs): These are the areas identified in consultation with SHPO and LPC where project construction has the potential to disturb potential archaeological resources.

Second Avenue Subway Phase 1A Archaeological Assessment (Phase 1A): The Second Avenue Phase 1A Archaeological Assessment (Historical Perspectives, Inc. 2003) is the documentary study prepared for the Second Avenue Subway Project that assesses the potential for the Project APEs to contain archaeological resources and the project’s potential to affect any such archaeological resources.

Artifact: An artifact may be defined as an object that has been intentionally made or produced for a certain purpose.

Archaeological Feature: An archaeological feature implies the presence of human activity or occupation. Archaeological features may consist of concentrations of artifacts. However, an archaeological feature may not always be tangible in the same way as an artifact, as it may indicate the prior presence of a monument, building, structure, or other use, including truncated shafts (e.g. wells, cisterns, privies), foundation and cellar remains, and remains


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from fire hearths, storage pits, wharves, cribbing, and fill-retaining devices. A comprehensive list of potentially significant features common to the types of archaeological sites that may be encountered within the Second Avenue Subway project APE is attached to this document (Attachment A).

Archaeological Property: An archaeological resource that meets Historic Properties criteria.

Archaeological Resource: An archaeological resource may be composed of archaeological features and/or skeletal and human remains.

Unanticipated Discovery: For purposes of the Second Avenue Subway Project, an unanticipated discovery is a discovery that would require project construction to stop so that an archaeologist may evaluate the nature of the find. Such archaeological evaluation may require a very short period of time if the discovery is easily determined by the professional archaeologist to be of modern origin or to be not significant, or a longer period of time, to be established through the construction documents prepared for the Project, for the archaeologist to determine, as appropriate, the nature and extent of the discovery. An unanticipated discovery may consist of non-skeletal material or skeletal material, as defined below.

a) Non-skeletal material: Non-skeletal discoveries during construction that would constitute “unanticipated discoveries” are archaeological features in areas determined to have potential archaeological sensitivity as reported in the Phase 1A and subsequent addenda to that document prepared as a result of soil borings analysis, additional documentary research, and site prioritization that refine the conclusions of the Phase 1A. Prior to construction, Stage 1B/Stage II archaeological evaluations will be completed for areas that were determined in the Phase 1A and addenda to possess archaeological sensitivity and that have been found to possess potential significance and research value, in consultation with SHPO, and hence warrant archaeological testing. However, since a Stage 1B archaeological survey is conducted using a type of statistical sampling strategy, whereby a percentage of a given area of archaeological sensitivity is tested, it is possible that parts of a sensitive area may contain archaeological site elements not identified by the sampling survey and that these may be encountered during construction. Typically, however, sampling strategies are successful in identifying the majority of sites in the sensitive area, which leads to an evaluation of the resource, including the delineation of vertical and horizontal site limits. Unanticipated discoveries are those not expected to be encountered because a survey has been conducted. Sites determined in consultation with SHPO and LPC to not warrant archaeological testing as a result of soil borings analyses and documentary research will not be considered unanticipated discoveries if encountered during construction.

b) Skeletal material: Skeletal material encountered during construction that constitutes an unanticipated discovery consists of any human remains located anywhere in the Project APEs that were not previously identified in the Phase 1A. Areas identified in the Phase 1A and addenda as potentially sensitive for human remains would be considered anticipated discoveries, since appropriate protocols for the disinterment and treatment of any human remains if encountered during archaeological testing or construction have been developed in consultation with the appropriate descendant communities as described in Section II.A.3 of the Programmatic Agreement for the Project. Any other skeletal remains encountered during project construction would be considered unanticipated, as they would not have been identified in the Phase 1A.


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III. PERSONNEL

Cultural Resources Manager: MTA NYCT will appoint a Cultural Resource Manager who will be responsible for the implementation of this plan. The Cultural Resource Manager will be a professional archaeologist who meets the standards of the NYAC and the National Park Service (36 CFR 61). The Cultural Resource Manager will be located in the New York City metropolitan area and available on an on-call basis in the event of an unanticipated discovery. It will be the responsibility of the Cultural Resource Manager to determine the nature of any discovery during construction, be it a modern artifact or an isolated artifact, or a feature that may warrant construction to cease for a certain period of time to permit the Cultural Resource Manager to undertake further archaeological investigations to evaluate the potential extent and significance of the find. In addition the Cultural Resource Manager will arrange for a physical anthropologist in the New York City area to be on-call in the event that the unanticipated discovery is skeletal material.

State Historic Preservation Office expedited reviewer: It is anticipated that MTA NYCT will provide funding, subject to final MTA/MTA NYCT approvals, to the State Historic Preservation Office (SHPO) for expedited review services and that such review services will be fulfilled by an on-call, full-time SHPO designee stationed in New York City with full SHPO-delegated review and decision-making authority. The funding and responsibilities of this position will be negotiated as part of a separate Memorandum of Agreement (MOA) between MTA NYCT and SHPO.

IV. ARCHAEOLOGICAL RESOURCE IDENTIFICATION/TRAINING

The identification of archaeological resources requires basic training in order to recognize potential sites. Training will be provided for resident engineers and construction supervisors. The purpose of this training will be to review MTA NYCT’s commitments regarding archaeological resource compliance and to provide an overview of the project specific resources along the subway route, so that both construction contractor and project personnel will be aware of the kinds of unanticipated archaeological resources that may be encountered in the field. In addition, the training program will emphasize the exact procedures to be followed, as outlined herein (and depicted in Figure 1), regarding actions to be taken and notification required if an unanticipated discovery is identified during construction.

The training will be designed to ensure that project personnel and construction contractors understand the extent of the archaeological survey program that has been performed for the project and are fully aware of the distinction between sites that have been located and "cleared" under the archaeological resource program (i.e., determined to be non-significant after appropriate levels of investigation or sites that have already undergone a data recovery) and new discoveries during the construction process.

V. ARCHAEOLOGICAL FEATURE DISCOVERIES

Archaeological features (see Attachment A) may be discovered by project or contractor personnel. The following protocols will be adhered to in the event of a discovery of features during construction (see Figure 1).


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A. Stop Activities

If features are uncovered during a construction activity, the on-site contractor’s construction supervisor will stop all activity within the immediate vicinity of the discovery, unless safety concerns are an issue. Specifically, the construction crew will stop at the spot where the find was uncovered and not resume within construction within 20 feet of the find until cleared to proceed by the MTA NYCT’s resident engineer. This is necessary in order to provide the Cultural Resources Manager the opportunity to determine whether the feature(s) represents a potentially significant site.

B. Make Notifications

After construction activity has stopped the contractor’s construction supervisor will notify the MTA NYCT’s resident engineer, who will notify immediately the on-call Cultural Resource Manager.

C. Initial Determinations

The on-call Cultural Resource Manager and the MTA NYCT’s resident engineer will determine whether the feature(s) is within a site previously recorded through archaeological excavations conducted as part of any previous archaeological survey(s) and subsequently determined by the SHPO and/or LPC to not possess archaeological sensitivity. The on-call Cultural Resource Manager and the MTA NYCT resident engineer will also determine whether the feature is within a site determined in consultation with SHPO and LPC to not warrant archaeological testing as a result of soil borings analyses and documentary research. Previously excavated sites that have been determined by the SHPO and/or LPC to not possess archaeological sensitivity and sites where SHPO and LPC have determined that the site does not possess sufficient research value to warrant archaeological testing will be considered “cleared” sites and construction may proceed in these areas with no further archaeological evaluations required.

The determination of whether a site has been cleared for construction will be made through the review of project maps and other applicable data which will be located on- site during construction. If the discovery is determined to be within a cleared area (i.e., a previously identified site area where archaeological excavation has taken place with a determination by the SHPO and/or LPC that it no longer possess archaeological sensitivity or potential significance, or the site was determined by SHPO and LPC to not possess sufficient research value to warrant archaeological testing), the MTA NYCT’s resident engineer will notify the contractor’s construction supervisor that construction activities may resume.

If the feature(s) is discovered in a potentially sensitive area that has not been cleared for construction as described above, the Cultural Resource Manager, if not on-site at this time, will undertake a site visit and will review the location and type of discovered material with the appropriate on-site construction personnel. If it is determined by the Cultural Resource Manager, in consultation with SHPO, that on-site archaeological investigations are required, MTA NYCT’s resident engineer will inform the construction contractor. The Cultural Resource Manager will arrange for


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an archaeological excavation crew to be on site. The determinations listed above should take place as soon as practicably possible.

Construction activities in the area of the discovery, the boundaries of which will be defined based on a review of the resources identified, will not resume until the site has been surveyed and the results reviewed by SHPO. The site will be flagged as being off-limits for work, but will not be identified as an archaeological site per se in order to protect the resources. In addition, the site will be secured to protect the potential significant resource.

The following activities will take place as quickly as possible so that construction can continue in a timely manner:

1. The Cultural Resource Manager will conduct a physical review of the site and will test the site area as necessary. Since the area may have already been partially disturbed by construction activities, the objective of any archaeological resource investigations will be to recover data quickly so that an evaluation of the site’s significance can be made.

2. The Cultural Resource Manager will determine the research potential and the sensitivity of the area in general, and whether the site is significant or not. The evaluation of the site’s significance will be made through the application of the National Register eligibility criteria, to determine if the site does or does not qualify as a Historic Property. The Cultural Resource Manager will contact the SHPO or its’ designee immediately by telephone with a recommendation and request a concurrence, if possible, immediately. If the Cultural Resource Manager determines that the site is not potentially significant and the SHPO or its’ designee concurs that the site is not a Historic Property, the Cultural Resource Manager will notify the MTA NYCT’s resident engineer that construction may resume. A letter detailing the results of the archaeological activities, the recommendation, and the concurrence will be sent to the FTA, the SHPO and the MTA NYCT for the project file.

3. If the Cultural Resource Manager recommends the site is a Historic Property and the FTA and SHPO concurs, a recommendation for avoidance or data recovery will be made. Every effort will be made to avoid significant Historic Properties during construction or to implement mitigation measures in consultation with the FTA and SHPO to avoid adversely impacting any site.

4. If avoidance is not feasible, the Cultural Resource Manager will prepare a data recovery plan and will submit the plan to the SHPO for review and comment under the provisions of 36 CFR 800.11(b)(2)(ii). SHPO will provide comment on an acceptable research design for data recovery within 24 hours of receipt of the data recovery plan. Construction in the archaeological site area will not recommence until all archaeological survey work is completed and a management summary is commented on by SHPO. A final technical report will be filed within one year of the completion of fieldwork.


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VI. HUMAN REMAINS DISCOVERIES

A. The treatment of any human remains encountered during construction will be guided by the policy statement adopted by the Advisory Council on Historic Preservation ([Advisory Council]; see Consulting About Archaeology Under Section 106, Advisory Council 1990), and by the relevant state laws and guidelines. The Advisory Council policy statement recommends that, to the extent allowed by law, treatment of human remains should adhere to the following principles:

1. Human remains and grave goods should not be removed or otherwise disinterred unless required in advance of some kind of disturbance, such as construction;

2. Disinterment, when necessary, should be done carefully, respectfully, and completely, in accordance with proper archaeological methods;

3. In general, human remains and grave goods should be reburied in consultation with the descendants of the dead;

4. Prior to reburial, scientific studies should be performed as necessary to try to identify the appropriate descendant community(s) so that such community(s) may be consulted regarding reburial. If a descendant community(s) is identified, they would be consulted and their approval sought prior to the undertaking of any additional analyses/testing which may be sought to address justified research topics;

5. Scientific studies and reburial should occur according to a definite, agreed-upon schedule.

B. The procedures that will be followed in the event that potential skeletal material is discovered during construction of the Second Avenue Subway Project are as follows:

1. Stop Activities

If any personnel on the construction site identify potential skeletal remains or indicators of potential skeletal remains such as mortuary monuments such as gravestones, the contractor’s on-site construction supervisor will stop all construction work that could affect the integrity of the remains. The remains will not be touched, moved, or further disturbed until assessed by the Cultural Resource Manager.

2. Make Notifications

If potential skeletal remains are discovered, the construction supervisor will notify the MTA NYCT resident engineer, who will in turn notify the Cultural Resource Manager.

3. Initial Determinations

The Cultural Resource Manager will determine if the skeletal remains are human; this may require consultation with an on-call, local physical anthropologist. If the Cultural Resource Manager determines the skeletal remains to be non-human the MTA NYCT’s resident engineer will notify the contractor’s construction supervisor that construction may proceed.


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If the Cultural Resource Manager, or physical anthropologist, determines the remains to be human, the MTA NYCT’s resident engineer will notifythe NYC Medical Examiner, the NYC police department, and the FTA. The Cultural Resource Manager will notify the SHPO.

4. Site Protection/Exhumation and Treatment of Human Remains

In consultation with the FTA and SHPO, every effort will be made to avoid adversely affecting the remains. However, if avoidance is not possible, any human remains will be carefully exhumed, following a protocol to be prepared prior to commencement of Project construction that establishes the appropriate exhumation process and subsequent treatment of skeletal material, including testing to determine, if possible, the appropriate descendant community. In all cases, due care will be taken in the excavation and subsequent transport and storage of the remains. Such protocol will be prepared pursuant to the provisions of 36 CFR 800.11(b)(2)(ii) in consultation with SHPO and FTA. The protocol will be in place prior to commencement of project construction and shall also be provided to the New York City Medical Examiner’s Office.

Construction in the archaeological site area will not recommence until all exhumation work is complete. A management summary will subsequently be prepared for review by SHPO. A final technical report will be filed within one year of the completion of fieldwork.

5. Descendant Groups

Following exhumation of human remains, a physical anthropologist will analyze the remains. If the remains are not modern, every best effort would be made to identify and consult with the appropriate descendant group(s) or interested parties regarding the subsequent treatment of the remains and reburial. If no descendant community or interested party may be identified, MTA NYCT shall consult with SHPO and FTA regarding the final disposition of the remains. If the remains are of modern origin, MTA NYCT shall consult with the NYC Medical Examiner’s Office and NYC Police Department regarding their final disposition.

VII. FEDERAL LANDS

Unanticipated cultural resource discoveries made on Federal Lands will be addressed in a similar manner as described above. In addition, the appropriate Federal Lands manager will be notified at the same time as FTA and SHPO. The Federal Lands cultural resources representative will participate with FTA, SHPO, and any appropriate Native American Tribes or groups, in the development of mitigation measures and treatment plans as necessary.


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VIII. APPLICABLE STATUTES AND REGULATIONS

A. Federal

Section 106 of the National Historic Preservation Act of 1966, as amended (16 USC 470f)

Native American Graves Protection and Repatriation Act regulations (43 CFR 10) (only on Federal lands)

B. State and City

New York State Historic Preservation Act of 1980 (Chapter 354 of the Laws of 1980)

The Landmarks Law of 1965 (New York City Charter Section 3020; Title 25, Chapter 3 of the New York City Administrative Code)

IX. LIST OF CONTACTS

Federal Transit Administration

New York State Historic Preservation Officer

New York City Landmarks Preservation Commission

New York City Police Department

New York City Medical Examiner

Cultural Resource Manager

�


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Features

Construction Proceeds

Features in Non-cleared Sensitive Area

Cultural Resource Manager Visit

Site Not Significant (not NR Eligible)

Site Significant (NR Eligible)

Data Recovery Construction Proceeds


Skeletal Material

Non-Human Remains


Human Remains

Notify Medical Examiner and

Police Department,

FTA and SHPO

Resident Engineer Notifies Cultural Resource Manager

Contractor Notifies Resident Engineer

Stop Work Stop Work

Contractor Notifies Resident Engineer

Resident Engineer Notifies Cultural Resource Manager

Unanticipated Discovery

Excavation Construction Proceeds

Site Not Significant Site May Be Significant

Features in Cleared Area or in Non-Sensitive Area


Avoidance

Consult with descendant group, if identified, regarding

reburial

Analyze Remains to identify

descendant group

If no descendant group identified,

consult w/SHPO re: proper treatment


Excavation/ Exhumation of

all remains

Figure 1

Attachment A for Exhibit J Draft Unanticipated Discovery Plan Second Avenue Subway Draft Programmatic Agreement

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APPENDIX A: POTENTIALLY SIGNIFICANT ARCHAEOLOGICAL FEATURES COMMON

TO DOCUMENTED RESOURCE TYPES, SECOND AVENUE SUBWAY PROJECT

(This Appendix is part of Exhibit J: Draft Unanticipated Discovery Plan for

Archaeological Properties Including Human Remains) Pre-Contact Features • Large stone implements (e.g., axes, gouges) • Fire pits/hearths -- reddened/burnt stone clusters with charcoal and blackened soil • Shell middens -- dense layers of oyster, clam, scallop, etc. • Lithic workshops -- dense layers of chipping debris • Burial pits (darkened soil, textile, shell-lined) and/or human remains Historic Features • Wooden pylons, planking, flooring with and without nails, hinges, etc. • Timber cribbing (possibly representing wharves) • Stone (fieldstone, cut granite, rubble) walls and flooring - with and without mortar or other

adhesive materials • Brick walls and flooring - with and without mortar or other adhesive materials • Concrete walls and flooring – verify aggregate and reinforcement materials for age • Privies, Cisterns, Wells, Trash Pits - dense layers of bottles, dishes, animal bones, and other

household items in dark, greasy organic soil, with or without stone/brick/concrete lining • Large iron or other metal objects, including farm implements (e.g., hoes, rakes, plows, sleigh

parts). • Transportation-related objects – wheels, tracks, trolley supports • Ship and boat hulls and hardware • Gravestones, marked granite, slate pieces �

Exhibit K Data Recovery Plan Second Avenue Subway Draft Programmatic Agreement

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EXHIBIT K

DATA RECOVERY PLAN

If any Archaeological Property is going to be impacted by the Project, means to avoid, minimize, or mitigate the impacts must be considered. If the impacts cannot be avoided a data recovery plan to mitigate the adverse effect to the Archaeological Property will be developed. This mitigation will be accomplished by the recovery and preservation of data from the archaeological site. The data recovery plan will provide a detailed discussion of the site-specific research questions deemed appropriate by the signatories to the Programmatic Agreement and considered important at the local, regional, and/or national level. The plan will provide a discussion of the research topics and questions to be addressed, the types of data that will be collected to address these questions; strategies and testing methodology for the recovery of the necessary data; methods of analyses and interpretation; and any other necessary information deemed appropriate by the SHPO, [LPC], and other involved state and federal agencies. The data recovery field excavations will be as complete as possible to address the research questions established in the plan. Detailed laboratory analyses will be performed on recovered cultural materials, followed by cataloguing and preparation for curation. A public education program will also be included in the data recovery investigations to disseminate the recovered information to the archaeological community and the public. All data recovery program investigations will follow the Standards for Cultural Resource Investigations and the Curation of Archaeological Collections in New York State (1994), the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation (48 FR 44716); and the Advisory Council on Historic Preservation's handbook Treatment of Archeological Properties (1980). The plan will be developed and implemented by a Principal Investigator meeting the Secretary of the Interior’s Professional Qualifications Standards (48 FR 44738-44739). The final report will follow the Secretary of the Interior’s Format Standards for Final Reports of Data Recovery Programs (42 FR 5377-79). The Data Recovery Plan will be developed once the Field Testing Plan (see Exhibit I) has been completed. �

Exhibit L Analysis and Curation of Materials and Records Plan Second Avenue Subway Draft Programmatic Agreement

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EXHIBIT L

ANALYSIS AND CURATION OF MATERIAL AND RECORDS PLAN

All archaeological materials and records resulting from archaeological survey, evaluation, and data recovery program investigations will be subjected to laboratory analysis, conservation, and curation. Laboratory processing and analysis will include cleaning, identification, and cataloging of any recovered cultural materials; cataloging and processing of select soil control and feature flotation samples; specialized analysis and interpretation of organic remains; and in-depth analysis of spatial distributions of the archaeological materials. Appropriate conservation measures of artifacts will be taken when necessary. The disposition of archaeological materials and records will be completed following all necessary laboratory analysis and conservation measures. The project proponent will designate an appropriate repository in consultation with the SHPO that meets the criteria for institutions serving as repositories for archaeological collections, as specified in the Standards for the Curation of Archaeological Collections, Section 7 of the Standards for Cultural Resource Investigations and the Curation of Archaeological Collections in New York State (1994), adapted from the Department of the Interior, National Park Service 36 CFR Part 79 and the Standards of Research Performance of the Register of Professional Archaeologists. The Analysis and Curation of Material and Records Plan will be developed once the Data Recovery Plan (see Exhibit K) has been completed. �

Exhibit M Construction and Archaeology Phasing Plan Second Avenue Subway Draft Programmatic Agreement

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EXHIBIT M

CONSTRUCTION AND ARCHAEOLOGY PHASING PLAN

The Construction and Archaeology Phasing Plan will outline, by construction contract, the order and type of the archaeological investigations. It will include all mapping/GIS data on the locations of known archaeologically sensitive areas, areas that contained archaeological resources or were sensitive for archaeological sites and have been cleared (only human remains will be assumed to be of value in “cleared” areas), archaeological sites that have been evaluated and found not to meet Historic Properties criteria, cemeteries, and Archaeological Properties (archeological resources that meet Historic Properties Criteria). The plan will correlate construction activities with the archaeological investigations that are necessary within the areas encompassed in each contract. The Construction and Archaeology Phasing Plan will be developed once the construction contracts and schedule are further developed during preliminary engineering. The plan will be reviewed and amended (as appropriate) as each construction contract is awarded. �

Documents

DRAFT PROGRAMMATIC AGREEMENT AMONG THE FEDERAL …web.mta.info/capital/sas_docs/sdeis/draftprogrammatic.pdf · PA-1 DRAFT PROGRAMMATIC AGREEMENT AMONG THE FEDERAL TRANSIT ADMINISTRATION,