THE FOUR STEP SECTION 106

PROCESS: STEP FOUR

TENNESSEE STATE HISTORIC

PRESERVATION OFFICE
REVIEW AND COMPLIANCE SECTION

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What follows is a presentation text in PowerPoint format. It is being
presented that way because the staff of the Tennessee State Historic
Preservation Offices Review and Compliance Section believes you will
be able to absorb more of the message of the presentation in this
format than if it were presented as a printed text. As such, this
presentation lacks much of the punch of a normal PowerPoint
presentation. But since we are not there to narrate all the needed
information for you, this is the best way to transmit the information
you need to complete Section 106 review swiftly and successfully.
INTRODUCTION
In the event of an adverse effect determination, the Federal
agency should: (800.6(a)), (800.6(a)(4), 800.6(a)(5) and
800.11(c)):

continue consultation with the State Historic

Preservation Office and all other Consulting Parties.

develop, assess, and evaluate alternatives or

modifications to the undertaking that will avoid or minimize
the adverse effect

seek the views of the public in resolving the adverse

effect
Step Four
Resolve Adverse
Effect:
Step Four
Questions You Should Answer
Before Beginning
Consultation:
How Do You

resolve project
related adverse
effects?
Resolve Adverse Effect: 36 CFR 800.6
The agency official shall consult with the
Tennessee SHPO and other consulting
parties, including Indian tribes to DEVELOP
AND EVALUATE ALTERNATIVES OR
MODIFICATIONS TO THE UNDERTAKING that
could AVOID, MINIMIZE, OR MITIGATE
adverse effects on historic properties.
Tennessee State Historic Preservation Office policy strongly
emphasizes a good faith attempt on the part of the Federal agency to
avoid or minimize adverse effect. It does so for a number of reasons.

Because it is charged by the legislatures and executive

branches of the State of Tennessee with the responsibility of
protecting Historic Properties located within the state

Because the National Historic Preservation Act under whose

authority State Historic Preservation Offices consult with Federal
agencies was made a Federal law with the express purpose of
reducing the number and size of Federal project adverse impacts
upon Historic Properties in the United States
 Because, in those cases where the resource is significant
because of its cultural or religious value to Native Americans, the
most appropriate course of action is protective avoidance of the
resource

Because, in so many instances, avoidance of adverse effect to

Historic Properties proves to be both prudent and feasible once a
Federal agency sets its mind to pursuing such a course of action

Because, in so many instances, the Federal agency comes to

understand after re-evaluating the undertakings purpose and need
that its adversely affecting undertaking really has no true
programmatic or public interest imperative associated with the
agencys mission and therefore the agency abandons the undertaking
altogether
WHAT IS GOOD
FAITH
EVALUATION OF
ALTERNATIVES?
 DUE
DILIGENCE
Resolve Adverse Effect: Learning From NEPA,
Sec. 1502.14 Alternatives Including the Proposed
Action.
(a) Rigorously explore and objectively
evaluate all reasonable alternatives to
the preferred, impactful alternative, and
for alternatives which were eliminated
from detailed study, briefly discuss the
reasons for their having been eliminated.
Resolve Adverse Effect: Learning From NEPA,
Sec. 1502.14 Alternatives Including the Proposed
Action.
(b) Devote substantial treatment to
each alternative considered in detail
including the proposed action so that
[Consulting Parties] may evaluate
their comparative merits.
Resolve Adverse Effect: Learning From NEPA,
Sec. 1502.14 Alternatives Including the Proposed
Action.

(d) Include the alternative of no

action.
Resolve Adverse Effect: Learning From NEPA,
Sec. 1502.14 Alternatives Including the Proposed
Action.

(e) Clearly Identify the agency's

preferred alternative.
When evaluating historic building adverse effect alternatives,
you should keep in mind that the Advisory Board on National
Parks, Historic Sites, Buildings, and Monuments declared in
1936, "It is well to bear in mind the saying: `Better preserve than
repair, better repair than restore, better restore than
[re]construct.'" As a corollary it noted, "It is ordinarily better to
retain genuine old work of several periods, rather than arbitrarily
to `restore' the whole, by new work, to its aspect at a single
period." Internationally accepted historic preservation standards
continue to stress the protection and perpetuation of authentic
surviving resources.*

*NPS-28: CULTURAL RESOURCE MANAGEMENT GUIDELINE

 SECTION
106
CHECKLIST
 Questions:

Can the adverse effect be

avoided?

Yes_________ No_________
How?
 Successful Risk Management:

Avoid the risk altogether by

avoiding the adverse effect.
 Questions:

Can the adverse effect be

minimized?

Yes_________ No_________
How?
 Successful Risk Management:

Reduce the negative effect

of the risk by minimizing
the effect.
 Questions:

Can the adverse effect be

mitigated?

Yes_________ No_________
How?
 Successful Risk Management:

Accept some or all of the

consequences of the risk by
mitigating the effect.
 CONTINUE
CONSULTATION WITH
THE SHPO AND
OTHER CONSULTING
PARTIES
 Consultation:

A. Continue Consultation:

In the event of an adverse effect

determination, you should
(800.6(a)), (800.6(a)(4), 800.6(a)(5)
and 800.11(c))
continue consultation with the
Tennessee State Historic
Preservation Office
NOTIFY THE
ACHP
 Notification:

(1) If, and as soon as you have made an

adverse effect determination,
(800.6(a)(i)(a,b,c,)) notify the ACHP and
determine whether it wishes to
participate in the consultation.
What Happens If an Agency Fails to Notify
ACHP of an Adverse Effect?*
Notice to ACHP at this stage is extremely
important, as it provides the basis for ACHP to
decide whether it wishes to enter the
consultation process. Failure of an agency to do
this is a serious procedural flaw, as it denies
ACHP the opportunity to join at the outset the
consultation to resolve adverse effects.
*Advisory Council on Historic Preservation working with Section 106:
Users Guide, Section 106 Section-by-Section Questions and Answers
What Happens If an Agency Fails to Notify
ACHP of an Adverse Effect?*

Failure of an agency to notify the

Council also violates the requirement of
Section 106 that the agency must afford
the ACHP a reasonable opportunity to
comment on its determinations and
findings. *Advisory Council on Historic Preservation working with Section 106:
Users Guide, Section 106 Section-by-Section Questions and Answers
 INVOLVE
CONSULTING
PARTIES
 Consultation:

(2) Involve consulting parties. In addition to the consulting

parties identified under Sec. 800.3(f), the agency official, the
Tennessee SHPO and the ACHP, if participating, may agree
to invite other individuals or organizations to become
consulting parties. The agency official shall invite any
individual or organization that will assume a specific role or
responsibility in a Memorandum of Agreement to participate
as a consulting party
 PROVIDE
DOCUMENTATION
 (3) Provide documentation. The agency official
shall provide to all consulting parties the
documentation specified in Sec. 800.11(e),
subject to the confidentiality provisions of Sec.
800.11(c), and such other documentation as may
be developed during the consultation to resolve
adverse effects.
INVOLVE THE
PUBLIC
 Consultation:

(4) Involve the public. The agency official shall make

information available to the public, including the
documentation specified in Sec. 800.11(e), subject to
the confidentiality provisions of Sec. 800.11(c). The
agency official shall provide an opportunity for
members of the public to express their views on
resolving adverse effects of the undertaking.
 Consultation:

The agency official should use appropriate

mechanisms, taking into account the magnitude of the
undertaking and the nature of its effects upon historic
properties, the likely effects on historic properties, and
the relationship of the Federal involvement to the
undertaking to ensure that the public's views are
considered in the consultation.
 Consultation:
The agency official should also consider the extent of
notice and information concerning historic
preservation issues afforded the public at earlier steps
in the Section 106 process to determine the
appropriate level of public involvement when resolving
adverse effects so that the standards of Sec. 800.2(d)
are met.
RESTRICTIONS ON
DISCLOSURE OF
INFORMATION
 Consultation:
(5) Restrictions on disclosure of information. Section
304 of the act and other authorities may limit the
disclosure of information under paragraphs (a)(3) and
(a)(4) of this Section. If an Indian tribe or Native
Hawaiian organization objects to the disclosure of
information or if the agency official believes that there
are other reasons to withhold information, the agency
official shall comply with Sec. 800.11(c) regarding the
disclosure of such information
RESOLVE
ADVERSE
EFFECTS
 HOW DO YOU
RESOLVE ADVERSE
EFFECTS?
B. Resolve adverse effects.

(i) The agency official shall consult with

the Tennessee SHPO and other consulting
parties to seek ways to avoid, minimize or
mitigate the adverse effects.
 Questions:

Develop, assess, and evaluate alternatives or

modifications to the undertaking that will
avoid or minimize the adverse effect in
consultation with the Tennessee SHPO and
other Consulting Parties

Yes_________ No_________
 HOW MIGHT YOU
AVOID OR MINIMIZE
ADVERSE EFFECTS?
 YOU USE DUE
DILIGENCE TO EXPLORE
PRUDENT AND
FEASIBLE
ALTERNATIVES
Alternatives or Modifications

Defining
prudent and
feasible
 prudent and feasible
To be prudent, you must:

use good judgment

consider the likely consequences of various

alternatives

consider the possibility that an alternative may shift

the projects adverse effects from one set of historic
properties to another
 prudent and feasible

Prudent means to:

demonstrate shrewdness and thought for the future

avoid potential risks and uncertainties

 prudent and feasible

To be feasible, something must be:

technically possible

capable of actually being achieved or put into effect

practical and suitable with respect to engineering and

budget
 prudent and feasible

Alternatives must meet the basic need and use

requirements of the federal program.

They must be doable given contemporary

construction best practices and expense.
 prudent and feasible

Alternatives are credible if they are:

viable, that is, they must be able to be done and also they most
be worth doing

able to live successfully on their own without any artificial

supports or props
 prudent and feasible
Prudent and feasible refers to the viability of an
alternative that avoids the adverse effect to an
Historic Property. The term "feasible" refers to
the constructibility of a project whether or
not it can be built using current construction
methods technologies and practices. The term
"prudent" refers to how reasonable the
alternative is in essence, whether or not it
makes sense.
 prudent and feasible
Given a range of options, a Federal agency must select an
avoidance alternative if it is feasible and prudent. By contrast, the
Federal agency may reject an alternative if it is not feasible and
prudent. An alternative may be considered not feasible and
prudent for any of the following reasons:

It does not meet the projects purpose and need

It entails an excessive cost of construction
It creates severe operational or safety problems
It generates an unacceptable impact (social, economic or
environmental)
It causes serious community disruption
It results in a combination of any of the above
 prudent and feasible
Consulting Parties and Agency Officials should
keep these facts in mind when they review and
comment upon proposed alternatives. Any
alternative that is not prudent, feasible, and
credible as herein defined should not be
considered by the Agency Official or the
Consulting Parties.
Federal agencies must develop,
assess, and evaluate alternatives or
modifications in consultation with the
Tennessee SHPO and other Consulting
Parties.
HOW MIGHT YOU
AVOID ADVERSE
EFFECTS?
 Avoid:

Ways to avoid adverse effects.

Cancel the project (No Build

Alternative).
 Avoid:

Ways to avoid adverse effects.

Move the project Area of Potential

Effects beyond the boundary of
the Historic Property.
 Avoid:

Ways to avoid adverse effects.

Dont disturb the ground where

National Register eligible
archaeological sites are
located.
 Avoid:

Ways to avoid adverse effects.

Dont demolish the Historic

Property or modify it
inappropriately.
 Avoid:

Ways to avoid adverse effects.

Dont make incompatible

additions to the Historic
Property.
 Avoid:

Ways to avoid adverse effects.

Dont rehabilitate the Historic

Property while ignoring the
secretarys standards.
 Avoid:

Ways to avoid adverse effects.

Dont introduce out of character

elements into the setting of the
Historic Property.
 Avoid:

Ways to avoid adverse effects.

Dont neglect the Historic

Property, causing it to lose
integrity.
 Avoid:

Ways to avoid adverse effects.

Dont abandon, sell or lease the

Historic Property out of Federal
ownership.
HOW MIGHT YOU
MINIMIZE
ADVERSE
EFFECTS?
 Minimize:

Ways to minimize adverse

effects.

Make the project smaller.

 Minimize:

Ways to minimize adverse

effects.

Screen the project from the

Historic Property.
 Minimize:

Ways to minimize adverse effects.

Convey the property out of Federal

ownership with a protective
covenant.
 Minimize:

Ways to minimize adverse effects.

Rehabilitate the Historic Property

in accord with the Secretary of
the Interiors Standards.
 Minimize:

Ways to minimize adverse effects.

Preserve the National Register

eligible archaeological site in
place with appropriate
protections.
 Questions:

Did you consult with the Tennessee SHPO

and other Consulting Parties in
resolving the adverse effect by
exploring alternatives that avoid or
minimize project related effects?

Yes_________ No_________
 Questions:

Did you seek the views of the

public in resolving the
adverse effect?

Yes_________ No_________
 Questions:

Did you find consensus with the

Tennessee SHPO and other
consulting parties to avoid or
minimize adverse effects?
Yes_________ No_________
 Questions:

If Yes, you have either a No

Adverse Effect or Conditional
No Adverse Effect finding, and
you have successfully
completed Section 106 review.
 Questions:

If No, you must draft an

agreement document to
mitigate adverse effects.
 HOW MIGHT YOU
MITIGATE ADVERSE
EFFECTS?
 EXPLORE POSSIBLE
MITIGATIVE ALTERNATIVES
ONLY AFTER EXPLORING AND
REJECTING ALL AVOIDENCE
AND MINIMIZATION
ALTERNATIVES
 (ii) The agency official may
use standard treatments
established by the ACHP under
36 CFR 800.14(d) as a basis for
a Memorandum of Agreement
for example
The ACHP, on its own initiative or at the request
of a consulting party, may establish standard
methods for the treatment of a category of
historic properties, a category of undertakings,
or a category of effects on historic properties to
assist Federal agencies in satisfying the
requirements of 36 CFR 800 subpart B.
Much more likely is Federal
Agency/Tennessee SHPO
consensus on a specific
set of mitigative
stipulations
 (iv) If the agency official and the Tennessee SHPO
agree on how the adverse effects will be resolved,
they shall execute a MEMORANDUM OF
AGREEMENT. The agency official must submit a
copy of the executed memorandum of agreement,
along with the documentation specified in Sec.
800.11(f), to the ACHP prior to approving the
undertaking in order to meet the requirements of
Section 106 and 36 CFR 800.6.
MEMORANDUM OF
AGREEMENT
 HOW DO YOU
PREPARE A
MEMORANDUM
OF AGREEMENT?
When all else fails

The Agency Official may be compelled

to mitigate project-related adverse
effect to Historic Properties with a
Memorandum of Agreement.
A Memorandum of Agreement is
Successful Risk Management, by
accepting some or all of the
consequences of a particular risk.
In rare cases where adverse effect cannot be
avoided or minimized, the Agency Official will
draft an appropriate Agreement Document
(800.6(c)(1), 800.7(a)(2), 800.7(a)(3) and
800.2(c)(3)(iv)).
BE MINDFUL OF
CERTAIN ISSUES
RELATING TO
MOAS
Issues Relating to MOAs
Federal agency officials are very reluctant to acknowledge
the possibility that any undertaking over which they have
responsibility would adversely affect any cultural
resource. This is true because any such acknowledgment
would normally necessitate the preparation of an
Environmental Impact Statement (EIS) rather than the
simpler and much preferred Environmental Assessment
that is usually the terminal NEPA environmental document
record or even a categorical exclusion. An adverse effect
within Section 106 terms precipitates consultation, but an
adverse effect determination within NEPA terms often
precipitates an EIS.
Issues Relating to MOAs
Federal agencies are reluctant to initiate the drafting of
MOAs and PAs, preferring that either SHPO or the ACHP
draft the agreement document for them. This reluctance is
the product of the simple principle in American common
law that the drafter of any contract bears the onus for any
deficiencies in the document. Therefore, agency officials
will attempt to pass off their regulatory responsibilities for
drafting agreement documents to SHPOs and the ACHP,
claiming that since these agencies deal with Section 106
procedural issues daily, they have the greater expertise.
Be wary when an agency requests that the SHPO draft the
agreement document. Remind them that it is the agencys
responsibility.
Issues Relating to MOAs
Federal agencies often mistake technical assistance from the
SHPO during the planning phase of an undertaking with Step
Three Consultation under Section 106 review procedures.
Agencies assume that if the SHPO has been afforded an
opportunity to comment while the undertakings planning
document is in draft, that Section 106 review has been
satisfied. SHPOs should preface any comments on federal
agency planning documents with a caveat that if the plans
near actualization, then the agency will have to seek further
SHPO review and comment that may result in an adverse
effect finding.
Issues Relating to MOAs
Federal agencies tend to over-emphasize protection of
natural resources and de-emphasize protection o cultural
resources. This is true because of the simple fact that
agency staff are subject to severe legal sanctions if they
neglect of purposefully harm natural resources and they are
not subject to any penalties for neglecting or purposefully
harming cultural resources. SHPOs must blend moral
suasion with good old fashioned jawboning and assist the
Agency Official with the preparation of MOA stipulations that
right the balance.
Issues Relating to MOAs
Federal agencies tend to feel that their internal environmental
procedure regulations supersede 36 CFR Part 800. This
seems especially true then such regulations have not been
certified by the ACHP as counterpart regulations. Agency
environmental review staffs tend to dig in their heels when
their regulations contradict 36 CFR Part 800 procedures or
definitions. This state of affairs waxes and wanes depending
upon the current policies of the national office. SHPOs must
know and be ready to defend all of the nuances of 36 CFR Part
800.6 against any agency encroachments based upon their
own mitigation regulations.
Issues Relating to MOAs
In matters of mitigation of adverse effect, Federal agencies
tend to shun innovative solutions for the tried and true.
While this is pretty much a natural human trait, agency officials
are especially prone to it because of pressures from their
policy leaders and offices of general council not to do anything
different or precedent-setting. Therefore, SHPOs must be
willing both to explore and to precipitate discussions of novel
ways to prepare MOA stipulations.
PREPARING A
MEMORANDUM
OF
AGREEMENT
Memorandum of Agreement
800.6(b)(1) When resolving adverse effects without the Council, the
Agency Official consults with the SHPO/THPO and other consulting
parties to develop a Memorandum of Agreement. If this is achieved, the
agreement is executed between the Agency Official and the Tennessee
SHPO and filed with required documentation with the ACHP. This filing is
the formal conclusion of the Section 106 process and must occur before
the undertaking is approved. Standard treatments adopted by the ACHP
may set expedited ways for competing memoranda of agreement in
certain circumstances.

*Advisory Council on Historic Preservation Working With

Section 106: Users Guide
Memorandum of Agreement

800.6(b)(2) When the ACHP is involved, the consultation proceeds in the

same manner, but the agreement of the Agency Official, the
SHPO/THPO and the ACHP is required for a Memorandum of
Agreement.

*Advisory Council on Historic Preservation Working With

Section 106: Users Guide
Memorandum of Agreement

800.6(c) A Memorandum of Agreement evidences an agencys

compliance with Section 106 and the agency is obligated to follow its
terms. Failure to do so requires the Agency Official to reopen the
Section 106 process and bring it to suitable closure as prescribed in the
regulations. The reference to Section 110(l) of the Act is intended to
conform the streamlining provisions of these regulations with current
statutory requirements, pending amendment of that section.

*Advisory Council on Historic Preservation Working With

Section 106: Users Guide
Memorandum of Agreement

800.6(c)(1) The rights of signatories to an agreement are spelled out,

along with who is required to sign the agreement under specific
circumstances. The term signatory has a special meaning as
described in this section, which is the ability to terminate or agree to
amend the Memorandum of Agreement. The term does not include
others who sign the agreement as concurring parties.

*Advisory Council on Historic Preservation Working With

Section 106: Users Guide
Memorandum of Agreement

800.6(c)(2) Certain parties may be invited to be signatories in addition

to those specified in Section 800.6(c)(1). They include individuals and
organizations that should, but do not have to, sign agreements. It is
particularly desirable to have parties who assume obligations under the
agreement become formal signatories. However, once invited
signatories sign MOAs, they have the same rights to terminate or
amend the MOA as the other signatories.

*Advisory Council on Historic Preservation Working With

Section 106: Users Guide
Memorandum of Agreement

800.6(c)(3) Other parties may be invited to concur in agreements. They

do not have the rights to amend or terminate an MOA. Their signature
simply shows that they are familiar with the terms of the agreement
and do not object to it.

*Advisory Council on Historic Preservation Working With

Section 106: Users Guide
Memorandum of Agreement

800.6(c)(4)-(9) These sections set forth specific features of a

Memorandum of Agreement and the way it can be terminated or
amended.

*Advisory Council on Historic Preservation Working With

Section 106: Users Guide
 Resolution of Adverse Effect
Memorandum of Agreement

36 CFR 800.16(o) defines a Memorandum of

Agreement as the signed legal document that
records the terms, conditions, and stipulations
agreed upon by the agency official, the State
Historic Preservation Office, and other invited
signatory parties and concurring parties to
resolve the adverse effects of an undertaking
upon historic properties.
 WHO ARE
SIGNATIRIES, INVITED
SIGNATORIES, AND
CONCURRENCE BY
OTHERS?
 SIGNATORIES

Memorandum of Agreement

c) Memorandum of agreement. A memorandum of agreement executed and implemented

pursuant to this section evidences the agency official's compliance with Section 106 and
this part and shall govern the undertaking and all of its parts. The agency official shall
ensure that the undertaking is carried out in accordance with the memorandum of
agreement.
(1) Signatories. THE SIGNATORIES HAVE SOLE AUTHORITY TO EXECUTE, AMEND OR
TERMINATE THE AGREEMENT in accordance with this subpart.
(i) The agency official and the SHPO/THPO are the signatories to a memorandum
of agreement executed pursuant to paragraph (b)(1) of this section.
(ii) The agency official, the SHPO/THPO, and the Council are the signatories to
a memorandum of agreement executed pursuant to paragraph (b)(2) of this section.
(iii) The agency official and the Council are signatories to a memorandum of
agreement executed pursuant to Sec. 800.7(a)(2).
 INVITED SIGNATORIES

Memorandum of Agreement
(2) Invited signatories.
(i) The agency official may invite additional parties to be signatories to a memorandum
of agreement. Any such party that signs the memorandum of agreement shall have the
same rights with regard to seeking amendment or termination of the memorandum of
agreement as other signatories.
(ii) The agency official may invite an Indian tribe or Native Hawaiian organization that
attaches religious and cultural significance to historic properties located off tribal lands to
be a signatory to a memorandum of agreement concerning such properties.
(iii) The agency official should invite any party that assumes a responsibility under a
memorandum of agreement to be a signatory.
(iv) The refusal of any party invited to become a signatory to a memorandum of
agreement pursuant to paragraph (c)(2) of this section does not invalidate the
memorandum of agreement
 CONCURRENCE BY OTHERS

Memorandum of Agreement
(3) Concurrence by others. The agency official may
invite all consulting parties to concur in the
memorandum of agreement. The signatories may
agree to invite others to concur. The refusal of any
party invited to concur in the memorandum of
agreement does not invalidate the memorandum of
agreement
MEMORANDUM OF
AGREEMENT: WHAT
IS THE ORDER OF
PRESENTATION?
 In the preamble of a
Memorandum of
Agreement, you will
 Questions:
WHEREAS

caption the title that lists the

signatories, names the
undertaking, and references the
regulation under which the MOA
is authorized and required.
Yes_________ No_________
 EXAMPLE
MEMORANDUM OF AGREEMENT
AMONG THE FEDERAL HIGHWAY ADMINISTRATION;
THE TENNESSEE DEPARTMENT OF
TRANSPORTATION, THE TENNESSEE HOUSING
DEVELOPMENT AGENCY REPRESENTING THE U. S.
DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT; THE TENNESSEE STATE HISTORIC
PRESERVATION OFFICE; AND
THE CITY OF NEWPORT HOUSING AUTHORITY
FOR THE RHEA MIMS HOTEL REHABILITATION
PURSUANT TO 36 CFR PART 800.6(A)
 Questions:
WHEREAS

name the undertaking and locate it

by county, township, or other
geographical designation.
Yes_________ No_________
 Questions:

identify the current slate of

historic properties within the
projects Area of Potential
Effects
Yes_________ No_________
 EXAMPLE
WHEREAS: the City of Newport Housing Authority (Authority)
has determined to rehabilitate a property known as the Rhea
Mims Hotel located in Newport, Cocke County Tennessee, a
property listed in the National Register of Historic Places, and

WHEREAS: the Authority has applied to the Federal Highway

Administration (FHwA), through the Tennessee Department of
Transportation (TDOT) for a grant of $500,000 through the
Intermodal Surface Transportation Efficiency Act program to
facilitate the rehabilitation of the Rhea Mims Hotel, and
 EXAMPLE

WHEREAS: the Authority has applied to the

Tennessee Housing Development Agency (THDA)
representing the U. S. Department of Housing and
Urban Development (HUD) for a grant of
$500,000.00 under the HUD HOME program to
facilitate the rehabilitation of the Rhea Mims
Hotel, and
 EXAMPLE

acknowledge that the Federal

undertaking either will or may
(phased compliance) have an
adverse effect upon Historic
Properties
Yes_________ No_________
 Questions:
WHEREAS
Identify and acknowledge
consultation with appropriate
Consulting Parties and the
SHPO/THPO
Yes_________ No_________
 EXAMPLE

WHEREAS, the THDA, FHwA, and TDOT have determined that

the rehabilitation of the Rhea Mims Hotel will have an effect
upon this historic property, and have consulted with the
Tennessee Historical Commission (SHPO) pursuant to 36 CFR
Part 800.6(a) regulations implementing Section 106 of the
National Historic Preservation Act (16 U. S. C. Part 470f); and

WHEREAS: the City of Newport Housing Authority has

participated in the consultation and has been invited to concur
in the Memorandum of Agreement
 Questions:
WHEREAS

acknowledge past agency or

applicant efforts to identify,
evaluate and treat Historic
Properties.
Yes_________ No_________
 Questions:
NOW, THEREFORE

Commit the Agency Official to ensure that

certain stipulations shall be
implemented to take into account the
effects of the undertaking on historic
properties.
Yes_________ No_________
 EXAMPLE

NOW, THEREFORE, the U. S. Department of Housing

and Urban Development, through the Tennessee
Housing Development Agency, and the Federal Highway
Administration through the Tennessee Department of
Transportation, and the Tennessee State Historic
Preservation Officer agree that the undertaking shall be
implemented in accordance with the following
stipulations in order to take into account the effect of
the undertaking upon historic properties.
 In the body of a
Memorandum of
Agreement, you will
 Questions:
assign legal and contractual responsibility
to the Federal agency funding, licensing,
or permitting the undertaking for
ensuring that the specified mitigations
are carried out even if the mitigations
are to be carried out by another named
party (commitment tracking)

Yes_________ No_________
 EXAMPLE

The Tennessee Department of Transportation

and the Tennessee Housing Development
Agency shall ensure that the following
measures are carried out:
 Questions:

stipulate a method for

mitigating or resolving that
adverse effect
Yes_________ No_________
 EXAMPLE
1. Project Design:

TDOT and THDA shall ensure that the design of the

rehabilitation project for the Rhea Mims Hotel is compatible with
the historic and architectural qualities of the Rhea Mims Hotel
and is consistent with the recommended approaches to
rehabilitation set forth in the Secretary of the Interiors
standards for Rehabilitation and Guidelines for Rehabilitating
Historic Buildings (U. S. Department of the Interior, National
Park Service, 1983: hereafter Standards and Guidelines), and
that the design and specifications of the project comport with
the revised floor plans submitted to the Tennessee SHPO by the
Newport Housing Authority on December 13, 1999.
 EXAMPLE
2. Project Documentation:

Prior to the commencement of any demolition work, the

Newport Housing Authority will document
photographically the exterior and interior of the Rhea
Mims Hotel utilizing 35mm black and white film and 3X5
prints mounted on acid free paper and suitably labeled.
One set of this photographic documentation will be
retained at the administrative offices of the Rhea Mims
Hotel, and another set submitted to the Tennessee
SHPO.
 EXAMPLE
3. Project Mitigation:

The Newport Housing Authority will ensure that the following mitigative
measures are incorporated into the project plans and specifications and
implemented by the work contractor:

Preservation of the double loaded corridor on the second floor of the south
wing, including four original doors and transoms plus wood door frames
and base molding (from the existing corridor to tenant rooms 203A, 203B,
204A, and 204B). These doors will remain in their current position and the
dimensions of the original corridor will be maintained. Based on
Tennessee Fire Code Regulations, it will be necessary to reconstruct these
walls to create a one-hour fire rated partition.
 EXAMPLE
Salvage all interior wood doors and transoms plus frames and
base molding. These materials will be reconditioned, where
possible, and incorporated as interior doors and woodwork in
the new affordable elderly apartment units.

Salvage all existing exterior windows and casements, where

possible, and replace destroyed or unsalvageable sash and
frame units with identically configured units. Where possible,
install interior glass storm panels behind existing double hung
window units to provide additional energy efficiency. Double
pane windows will be specified for replacement sash.
 EXAMPLE
The apartment entrance door and glass window panels facing out onto the
single loaded corridors, on the first and second floors, will be designed in
a manner to be sympathetic with existing architectural wood door, and
frame trim details. Fire code regulations require fire-rated doors and
windows. As a result, it will be apparent to a visitor to the building that
these apartment entrance doors and windows are not original to the
structure.

The boiler flue rising on the southeast side of the south wing of the
building will be removed because of its deteriorated structural condition.
This boiler flue cannot be seen from the street and will not be needed by
the new HVAC system in the building.
 Questions:

specify a method for monitoring

the stipulations of an agreement
document to ensure that they
are carried out (commitment
tracking)
Yes_________ No_________
 EXAMPLE

4. Monitoring and Reporting:

The Newport Housing Authority shall provide the

Tennessee SHPO reasonable access to the project site
so that the Tennessee SHPO may monitor the
implementation of the project and report to the other
parties to this agreement document.
 Questions:

specify a method for amending

and/or terminating the
agreement document
Yes_________ No_________
 EXAMPLE

5. Amendment of the agreement document:

Any party to this agreement document may request that

it be amended, whereupon the parties will consult in
accordance with 36 CFR Part 800.6(c)(7) to consider
such amendment.
 EXAMPLE

6. Duration of the agreement document:

If any of the stipulations contained within this agreement document have not been
implemented within two (2) calendar years after execution of this agreement document,
the parties to this agreement document shall review this agreement document to
determine whether revisions are needed. If revisions are needed, the parties to this
agreement document will consult in accordance with 36 CFR Part 800, Subpart B to
make such revisions.

In the event the Newport Housing Authority does not carry out the terms of this agreement
document, the Federal Highway Administration and the U. S. Department of Housing and
Urban Development shall re-open consultation on this undertaking and comply with 36
CFR Part 800.6 with regard to this undertaking.
 Questions:

specify a method for dispute

resolution
Yes_________ No_________
 EXAMPLE
5. Dispute Resolution:

Once the demolition and construction phases of this project

have begun, should the Tennessee SHPO, or the Tennessee
Department of Transportation, or the Tennessee Housing
Development Agency object to Newport Housing Authoritys
interpretation of any plan provided for review relative to this
project and pursuant to this agreement document, the Newport
Housing Authority shall consult with the objecting party to
resolve the objection.
 EXAMPLE
If the objecting party and/or the Tennessee SHPO determines that the objection cannot be resolved,
the Newport Housing Authority shall forward all documentation relevant to the dispute, including
written comments from the Tennessee SHPO and the objecting party to the appropriate federal
agency for review and comment. Within 30 days of receipt of this documentation, the federal
agency will either:

provide the parties to this agreement document with recommendations which

they shall take into account when reaching a final decision regarding the dispute; or

notify the parties to this agreement document that the federal agency will
submit appropriate documentation to the Advisory Council on Historic Preservation. Within fifteen
(15) days of receipt of this documentation the Council will either provide the parties to this
agreement document with recommendations which they shall take into account when reaching a
final decision regarding the dispute; or interject itself into the consultation pursuant to 36 CFR Part
800.6(b), and proceed to act. Any such Council consultation will be taken into account by all parties
to this agreement document in accordance with 36 CFR Part 800.6(c)(2) when reaching a final
decision regarding the dispute.
 Questions:

afford both the SHPO and the Agency Official

who has specific responsibilities assigned
within the stipulations an opportunity to
endorse the agreement documents
stipulations through signature of the
document as Signatories
Yes_________ No_________
 Questions:

afford all Consulting Parties with specific

responsibilities assigned within the
stipulations an opportunity to endorse the
agreement documents stipulations through
signature of the document as Invited
Signatories
Yes_________ No_________
 Questions:

afford other Consulting Parties an

opportunity to endorse the agreement
documents stipulations through
signature of the document as
Concurring Signatories
Yes_________ No_________
 EXAMPLE

Execution of this Memorandum of Agreement by the Federal Highway

Administration, The Tennessee Department of Transportation, the
Tennessee Housing Development Agency representing the U. S.
Department of Housing and Urban Development, the Tennessee Historical
Commission (SHPO), and the Newport Housing Authority, and
implementation of its terms, evidence that the above-referenced federal
agencies have afforded the Council an opportunity to comment on the
rehabilitation of the Rhea Mims Hotel located in Newport, Cocke County,
Tennessee, and on the effects of this undertaking upon historic properties,
and that the above-referenced federal agencies have taken into account
the effects of the undertaking on historic properties.
 EXAMPLE
FEDERAL HIGHWAY ADMINISTRATION:

BY:__________________________________ Date:____________
(Name and title of signer)

TENNESSEE DEPARTMENT OF TRANSPORTATION:

BY:__________________________________ Date:____________
(Name and title of signer)

TENNESSEE HOUSING DEVELOPMENT AGENCY:

BY:__________________________________ Date:____________
(Name and title of signer)

TENNESSEE HISTORICAL COMMISSION:

BY:__________________________________ Date:____________
Deputy State Historic Preservation Officer

NEWPORT HOUSING AUTHORITY:

BY:__________________________________ Date:____________
(Name and title of signer)
Resolution of adverse effects

Mitigations counterbalance negative project

adverse effects with a positive treatment of the
historic property adversely affected. Standard
mitigations have been developed over the years
to resolve recurring adverse effects on historic
properties.
Resolution of adverse effects
The agency official may choose to propose standard
mitigative treatments to the State Historic Preservation
Office and other consulting parties. These standard
mitigations were developed over the years under 36 CFR
Part 800.14(d) as a help toward crafting appropriate
stipulations contained in a project Memorandum of
Agreement.
Resolution of adverse effects
Then again, the agency official may choose to consult further about the
possibility of carrying out creative and innovative mitigative
treatments to be crafted into appropriate stipulations contained in a
Memorandum of Agreement. The agency official may also choose
to do both at the same time. Remember, a Memorandum of
Agreement is nothing more and nothing less that the sum of what a
willing agency official, and a willing State Historic Preservation
Office/Tribal Historic Preservation Officer, and willing invited
signatories agree to.
HOW DO YOU
MITIGATE
ADVERSE
EFFECTS?
Mitigate:

Ways to mitigate adverse effects.

Market the building or structure for

adaptive reuse in conformance with
the secretary of the interiors
standards.
Mitigate:

Ways to mitigate adverse effects.

Convey the property with appropriate

protections in the form of preservation
covenants to a third party.
Mitigate:

Ways to mitigate adverse effects.

Record the building or structure

photographically, with measured
drawings, etc..
Mitigate:

Ways to mitigate adverse effects.

Interpret the building or structure with

plaques, monuments, waysides, etc..
Mitigate:

Ways to mitigate adverse effects.

Develop a Historic Preservation Plan.

Mitigate:

Ways to mitigate adverse effects.

Prepare and disseminate historic property

reports.
Mitigate:

Ways to mitigate adverse effects.

Incorporate historic preservation goals

into future agency planning
documents.
Mitigate:

Ways to mitigate adverse effects.

Record the property photographically and/or

through the creation of elevation
drawings and plans to a standard set by
the Historic American Building
Survey/Historic American Engineering
Record.
 Mitigate:

Ways to mitigate adverse effects.

Rehabilitate the property in accord with the

"Secretary of the Interior's Standards for
Rehabilitation and Guidelines for Rehabilitating
Historic Buildings" and an "Historic Building
Preservation Plan" prepared by qualified
preservation professionals and reviewed and
approved by the Review and Compliance Section.
Mitigate:

Ways to mitigate adverse effects.

landscaping and vegetative screening around

historic properties to protect them from the
undertaking and its introduction of out of
character elements into the setting of the
historic property
Mitigate:

Ways to mitigate adverse effects

additions to/new construction within or next to

historic properties that accord with the
Secretary of the Interiors Standards for New
Construction.
Mitigate:

Ways to mitigate adverse effects.

salvage and banking of architectural features

from historic properties before the
undertaking can cause its adverse effects to
happen
 Mitigate:

Ways to mitigate adverse effects.

in place preservation of archaeological historic

properties including burials

respectful reburial of human remains removed

from archaeological historic properties
Mitigate:

Ways to mitigate adverse effects.

Curate and interpret archaeological

materials from the site.
 Mitigate:

Ways to mitigate adverse effects.

Develop an appropriate Phase III Data

Recovery archaeological scope of work
and carry it out.*

*except where human remains or grave goods are involved

PHASED COMPLIANCE
AGREEMENT
DOCUMENT
Phased Compliance Agreement Document:

Adverse effect can sometimes be resolved

through a phased compliance
Memorandum of Agreement, if the
project has various elements that are
slated for implementation over a series
of years.
PROGRAMMATIC
AGREEMENTS
 Programmatic Agreements

36 CFR Part 800.14(b) Federal Agency Program

Alternatives,

Programmatic Agreements are agreement

documents that:

oversee the resolution of known or anticipated

adverse effects, resulting from certain complex
federal undertakings or programs.
 Programmatic Agreements

Sometimes the ACHP and the agencys

Federal Preservation Officer negotiate a
Nationwide Programmatic Agreement in
consultation with the National Conference of
State Historic Preservation Officers.
 Programmatic Agreements

Other times, the agency official negotiates a

programmatic agreement with the State Historic
Preservation Office within whose state the
program will occur.
 Programmatic Agreements

Still other times, the agency official negotiates

with the Tribal Historic Preservation Officer for
programs slated to occur on tribal lands.
Programmatic Agreements are appropriate :

When the adverse effects of a program on historic

properties are similar and repetitive; or,

when the program is multi-State or regional in

scope; or,

when the extent or kind of effects on historic

properties cannot be fully determined before federal
final approval of an undertaking: or,
 Programmatic Agreements are appropriate :
when nonfederal parties are assigned major
decision making or operational responsibilities by
the agency official; or,

where routine management and operational

activities are undertaken at Federal installations,
facilities, or other land management units; or,

where other circumstances warrant a departure

from the normal Section 106 process.
 Programmatic Agreements

identify all parties to the agreement;

specify how additional historic properties will be

identified, evaluated, and treated;

list activities excluded from further review; list

activities required for further review; clarify public
involvement;
 Programmatic Agreements

establish monitoring protocols;and specify

processes for amendment, dispute resolution,
termination, etc..

establish protocols for preparing historic

preservation plans and other administrative and
documentary materials.
 Programmatic Agreements

Programmatic Agreements take effect when

executed by the ACHP, the agency official, and the
appropriate SHPOs/ THPOs when the programmatic
agreement concerns a specific region or the
president of NCSHPO when NCSHPO has
participated in the consultation.
 Programmatic Agreements

After being executed by the signatories, the

programmatic agreement has no legal force,
however, UNTIL after the agency has provided
public notice of its terms and allowed for public
comment. Id. 800.14(b)(2)(iv). Only then may the
agency issue an order that makes the terms of the
agreement binding.
 HOW DO I
PREPARE A
PROGRAMMATIC
AGREEMENT?
A prototype Programmatic Agreement contains:

A Title Caption
A Preamble
A Commitment Block
A Block that Specifies the Responsibilities of the Signatories
A Set of Activities Excluded from Further Section 106 Review
A Set of Identification and Evaluation Stipulations (ICRMP)
A Set of Effect Assessment Stipulations
A Set of Treatment Stipulations that Avoid, Minimize, or Mitigate
Adverse Effect
A Set of Miscellaneous Stipulations
A Set of Housekeeping Stipulations
An Execution Block
A Signature Block
Appendices
 Programmatic Agreements

The Title Caption

Specifies the document as a Programmatic

Agreement
States the 36 CFR 800 language that authorizes it
Lists the Signatories to the PA: Lead Federal Agency,
Additional Agencies, SHPO/THPO, ACHP, etc
Lists the Program/Undertaking
Lists the Regulatory Authority for the PA
 Programmatic Agreements

The Preamble

Lists the participants in the Section 106 review process

Lists the purposes for which the PA has been drafted
Describes the program/undertaking covered by the PA
Lists any undertaking-associated activities not covered by the PA
States the Federal Agency finding of possible adverse effect
Notes consultation with the SHPO/THPO, other Consulting Parties and an
invitation to sign or concur
References known surveys of Historic Properties within the APE
References agency policies, executive orders, regulations, laws, etc. that
bear upon the PA
A declaration that the agency and other signatories will abide by the
provisions of the PA
 Programmatic Agreements

The Commitment Block

Carries a statement that the Federal agency shall

ensure that the measures contained within the
body of the PA are carried out
 Programmatic Agreements

The Block that Specifies the Responsibilities of the Signatories

Lists the responsibilities of the Federal agency

Lists the responsibilities of all sub-grantees
Lists the responsibilities of all invited signatories
Lists all required notifications
Lists all pertinent laws, regulations, executive orders, or policies
Lists all previous Section 106 Agreement Documents that apply
Lists all ongoing responsibilities of other consulting parties
 Programmatic Agreements

The Set of Activities Excluded from Further Section 106 Review

Lists the classes of program activities for which there

is agreement that none have the potential to affect
historic properties. This may be carried as a list of
exclusions in appendices.
 Programmatic Agreements

The Set of Identification and Evaluation Stipulations

Lists the process by which the agency or applicant will identify

and evaluate historic properties usually through the
preparation of a Section 110 document such as an
Integrated Cultural Resources Management Plan
Lists the process by which consulting parties will make available
previous surveys and National Register eligibility
determinations
Lists the process by which the SHPO and other affected
consulting parties will review those determinations
 Programmatic Agreements

The Set of Effect Assessment Stipulations

Lists the process the Federal Agency or applicant for

Federal assistance will use to assess project effects
upon identified historic properties
Lists classes of program activity that may be so assessed
by the agency or applicant and other classes that
must be submitted to the SHPO for review and
comment
Lists the process by which the agency or applicant may
expedite SHPO review of their eligibility
determinations and effect findings
 Programmatic Agreements

The Set of Treatment Stipulations that Avoid, Minimize, or

Mitigate Adverse Effect

Lists the various kinds of program activities covered by the

PA that are not excluded from further SHPO review.
Lists the standards, guidelines, and policy documents to which
agencies and applicants will adhere in carrying out each
class of treatment to avoid, minimize, or mitigate effect
Lists a schedule for SHPO monitoring of adherence
Lists a process for dispute resolution
Lists a process for resolving inadvertent discoveries
 Programmatic Agreements

The Set of Miscellaneous Stipulations

Procedures for Public Participation

Procedures for the Treatment of Human Remains
Procedures for Protecting the Confidentiality of Sensitive
Locational Information
Procedures for data collection, curation, interpretation, display,
etc.
Procedures for dealing with unanticipated discoveries
 Programmatic Agreements
The Set of Housekeeping Stipulations

Lists a process by which agency personnel and applicants

may be trained in Section 106 review procedures
Lists a process for dispute resolution
Lists a process for amending the PA
Lists a process for monitoring compliance with the
stipulations carried in the PA
Lists a process for periodic review of the effectiveness of the
PA
Lists a process by which the PA may be terminated
Specifies a duration date for the PA that voids the PA if its
conditions have not been met by that date (sunset
clause)
 Programmatic Agreements

The Execution Block

Reaffirms the commitment of the signatories to abide by the

stipulations carried in the PA
Reaffirms the fact that the PA recognizes and responds to
the requirements of Section 106
 Programmatic Agreements

The Signature Block

Lists the Signatories (lead Federal agency, SHPO/THPO,

ACHP)
Lists the Invited Signatories (those who have enumerated
responsibilities)
Lists Others who Concur

All by signed name and date of signature

 Programmatic Agreements

Appendices

Appendices that carry definitions of words and terms found

in the PA
Appendices that locate the undertaking and its APE
cartographically
Appendices that document historic properties (matrix)
Appendices that contain affected laws, regulations,
executive orders, agency policy statements,
standards, and guidelines that inform the stipulations
in the PA
 Reality Check:

Do not proceed to submit a draft

Memorandum of Agreement or
Programmatic Agreement to the State
Historic Preservation Officer until all of
the answers to the preceding questions
are Yes,
 HOW IS A
MEMORANDUM OF
AGREEMENT
DIFFERENT FROM A
MEMORANDUM OF
UNDERSTANDING?
A Memorandum of Agreement:

establishes and documents a formal and legally binding contractual

relationship between an agency official and a State Historic
Preservation Office/ Tribal Historic Preservation Officer

Is a duly signed and dated document

records the terms, conditions, and stipulations agreed upon by

these signatories, other invited signatory parties, and other
concurring parties

resolves the adverse effects of an undertaking upon historic

properties. is a legally recognized and authorized Section 106
document that, if violated by one of the signatories, can lead to
litigation in Federal District Court
A Memorandum of Understanding:

is a kind of gentlemens agreement between two

parties (federal agency and Indian tribe for example)

defines the roles and responsibilities of each

signatory in relation to the other with respect to
issues over which they have a common interest
(Section 106 review of undertakings for example)

is a much less formal document than a Memorandum

of Agreement
A Memorandum of Understanding:

is not contractual in the way that a Memorandum of Agreement

is

is not subject to litigation if violated

sets out agreed to operational arrangements between the

signatories involving

the time of notice from the initiating party to the

reviewing party

the person to whom notice should be addressed

the protocols for informing each other of benchmark

occurrences such as the inadvertent discovery of human remains
during project implementation, et cetera.
 Agreement Documents
Although a number of federal agencies have
executed Memoranda of Understanding with each
other or with various consulting parties
concerning Section 106 matters, these documents
are beyond the purview of Section 106 review,
and are made void if they contradict either
Section 106 of the NHPA or 36 CFR Part 800
statutes, regulations, policies, and procedures.
 SUPPOSE THERE
IS A FAILURE TO
RESOLVE
ADVERSE EFFECT?
 Memorandum of Agreement: Failure to Agree

(v) If the agency official, and the Tennessee SHPO fail to

agree on the terms of a memorandum of agreement, the
agency official shall request the ACHP to join the
consultation and provide the ACHP with the documentation
set forth in Sec. 800.11(g). If the ACHP decides to join the
consultation, the agency official shall proceed in
accordance with paragraph (b)(2) of this section. If the ACHP
decides not to join the consultation, the ACHP will notify the
agency and proceed to comment in accordance with Sec.
800.7(c).
How will you resolve adverse project
effects to historic properties?

1. Continue consultation.
2. Seek alternatives that avoid or minimize
adverse effects.
3. If necessary, mitigate adverse effects
through an agreement document.
4. Seek concurrence of the Tennessee
SHPO and other Consulting Parties. .
 Firewall:

Resolution of adverse effects either

by avoidance, minimization, or
mitigation through a ratified
Memorandum of Agreement or
Programmatic Agreement
completes Step Four.
 The results of successful Section
106 consultation
Most of the remaining five percent of all
cases end at step four Resolution of
Adverse Effects with avoidance,
minimization, or mitigation through an
agreement document.
You are nearing
completion of
Step Four.
PRACTICE
SCENARIO
The Huey County Highway Department plans to use funds from the
Federal Emergency Management Agency to repair the 1945
concrete, wood, and steel bridge over the Frog Suck River. The
bridge was severely damaged by the Shonuff Flood (Flood# 714)
that crested the river last May. The County plans to replace broken,
bent, or washed away decking, rails, and I-beam underpinnings
and do extensive re-grading and re-paving of the approaches on
both sides of the river. The County has hired the engineering firm of
Dewey, Swim n Lake (DS&W) to facilitate completion of
environmental review, including Section 106 review. DS&W has
contacted the Grace State Historic Preservation Office to begin
Section 106 consultation, and has submitted preliminary
documentation to the Mudpuppy Tribe of Indians as well.
The Cultural Resources Survey Report commissioned by DS&W
identified the bridge as being National Register eligible.
Additionally, the survey identified an intact pre-historic
archaeological site located within one of the bridge approaches as
worthy of further testing. The County consulted with the Grace
State Historic Preservation Office and other consulting parties .
This consultation resulted in a consensus determination that the
bridge was eligible and the archaeological site was not.
The proposed demolition of the eligible bridge constituted an
adverse effect. The Federal Emergency Management Agency
notified the ACHP of the adverse effect determination.
How do we resolve adverse project effects
successfully?
ANSWERS
The Federal Emergency Management Agency (FEMA) and the
County consulted with the Grace State Historic Preservation Office
and other consulting parties to explore alternatives that would avoid
or minimize or mitigate the adverse effect. This consultation resulted
in a consensus finding that the purpose and need for the
undertaking allowed for no prudent or feasible avoidance or
minimization. The FEMA and the SHPO then drafted and executed
a Memorandum of Agreement containing stipulations that mitigated
the adverse effect.
 END SECTION 106
REVIEW AS CODIFIED
AT 36 CFR 800.3
THRU .6 HERE