36 C.F.R. § 800.16

Definitions

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(a) Act means the National Historic Preservation Act of 1966, as amended, 16 U.S.C. 470-470w-6.

(b) Agency means agency as defined in 5 U.S.C. 551.

(c) Approval of the expenditure of funds means any final agency decision authorizing or permitting the expenditure of Federal funds or financial assistance on an undertaking, including any agency decision that may be subject to an administrative appeal.

(d) Area of potential effects means the geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, if any such properties exist. The area of potential effects is influenced by the scale and nature of an undertaking and may be different for different kinds of effects caused by the undertaking.

(e) Comment means the findings and recommendations of the Council formally provided in writing to the head of a Federal agency under section 106.

(f) Consultation means the process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them regarding matters arising in the section 106 process. The Secretary's “Standards and Guidelines for Federal Agency Preservation Programs pursuant to the National Historic Preservation Act” provide further guidance on consultation.

(g) Council means the Advisory Council on Historic Preservation or a Council member or employee designated to act for the Council.

(h) Day or days means calendar days.

(i) Effect means alteration to the characteristics of a historic property qualifying it for inclusion in or eligibility for the National Register.

(j) Foreclosure means an action taken by an agency official that effectively precludes the Council from providing comments which the agency official can meaningfully consider prior to the approval of the undertaking.

(k) Head of the agency means the chief official of the Federal agency responsible for all aspects of the agency's actions. If a State, local, or tribal government has assumed or has been delegated responsibility for section 106 compliance, the head of that unit of government shall be considered the head of the agency.

(l)(1) Historic property means any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in, the National Register of Historic Places maintained by the Secretary of the Interior. This term includes artifacts, records, and remains that are related to and located within such properties. The term includes properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization and that meet the National Register criteria.

(2) The term eligible for inclusion in the National Register includes both properties formally determined as such in accordance with regulations of the Secretary of the Interior and all other properties that meet the National Register criteria.

(m) Indian tribe means an Indian tribe, band, nation, or other organized group or community, including a native village, regional corporation, or village corporation, as those terms are defined in section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.

(n) Local government means a city, county, parish, township, municipality, borough, or other general purpose political subdivision of a State.

(o) Memorandum of agreement means the document that records the terms and conditions agreed upon to resolve the adverse effects of an undertaking upon historic properties.

(p) National Historic Landmark means a historic property that the Secretary of the Interior has designated a National Historic Landmark.

(q) National Register means the National Register of Historic Places maintained by the Secretary of the Interior.

(r) National Register criteria means the criteria established by the Secretary of the Interior for use in evaluating the eligibility of properties for the National Register (36 CFR part 60).

(s)(1) Native Hawaiian organization means any organization which serves and represents the interests of Native Hawaiians; has as a primary and stated purpose the provision of services to Native Hawaiians; and has demonstrated expertise in aspects of historic preservation that are significant to Native Hawaiians.

(2) Native Hawaiian means any individual who is a descendant of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii.

(t) Programmatic agreement means a document that records the terms and conditions agreed upon to resolve the potential adverse effects of a Federal agency program, complex undertaking or other situations in accordance with § 800.14(b).

(u) Secretary means the Secretary of the Interior acting through the Director of the National Park Service except where otherwise specified.

(v) State Historic Preservation Officer (SHPO) means the official appointed or designated pursuant to section 101(b)(1) of the act to administer the State historic preservation program or a representative designated to act for the State historic preservation officer.

(w) Tribal Historic Preservation Officer (THPO) means the tribal official appointed by the tribe's chief governing authority or designated by a tribal ordinance or preservation program who has assumed the responsibilities of the SHPO for purposes of section 106 compliance on tribal lands in accordance with section 101(d)(2) of the act.

(x) Tribal lands means all lands within the exterior boundaries of any Indian reservation and all dependent Indian communities.

(y) Undertaking means a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; and those requiring a Federal permit, license or approval.

(z) Senior policy official means the senior policy level official designated by the head of the agency pursuant to section 3(e) of Executive Order 13287.

[65 FR 77725, Dec. 12, 2000, as amended at 69 FR 40555, July 6, 2004]

Notes of Decisions

Cited in 52 cases (13 in the last 5 years), 2000–2026 · leading case: Coalition of Concerned Citizens to Make Art Smart v. Fed. Transit Admin. of U.S. Dep't of Transp., 843 F.3d 886 (10th Cir. 2016).

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Coalition of Concerned Citizens to Make Art Smart v. Fed. Transit Admin. of U.S. Dep't of Transp., 843 F.3d 886 (10th Cir. 2016). · cites it 5× “” 36 C.F.R. § 800.16 (d). The agency must also, as relevant, consult with the SHPO in identifying the area of potential effects and determining the likely effect of the undertaking at issue.”

Natl Mining Assn v. Fowler, John, 324 F.3d 752 (D.C. Cir. 2003). · cites it 2× “” 36 C.F.R. § 800.16 (y). Because this circuit has held that Congress’s expanded definition of “undertaking” does not alter the statutory requirement that the Council regulate only “federally funded or federally licensed undertakings,” Sheridan Kalorama Historical Ass’n v.”

CTIA—Wireless Ass'n v. Fed. Commc'ns Comm'n, 466 F.3d 105 (D.C. Cir. 2006). · cites it 3× “” 36 C.F.R. § 800.16 (1)(2). In other words, some properties have been “formally determined” as eligible, and others may, in fact, meet the criteria for eligibility, but have not yet been “formally determined” eligible.”

Valley Cmty. Pres. Comm'n v. Mineta, 373 F.3d 1078 (10th Cir. 2004). · cites it 2× “” 36 C.F.R. § 800.16 (d). Unlike Section 4(f), Section 106 is essentially a procedural statute and does not impose a substantive mandate on the FHWA.”

Nat'l Mining Ass'n v. Slater, 167 F. Supp. 2d 265 (D.D.C. 2001). · cites it 5× “26 36 C.F.R. § 800.16 (y). Section 106 of the Act applies to “any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted under-, taking .”

Wildearth Guardians v. Heather Provencio, 923 F.3d 655 (9th Cir. 2019). “” 36 C.F.R. § 800.16 (l)(1). 36 WILDEARTH GUARDIANS V.”

Save Our Heritage, Inc. v. Fed. Aviation Admin., 269 F.3d 49 (1st Cir. 2001). “§ 470w(7)(C); 36 C.F.R. § 800.16 (y) (2000); see also Sugarloaf Citizens Ass’n v.”

Te-Moak Tribe of W. Shoshone v. United States Dep't of Interior, 608 F.3d 592 (9th Cir. 2010). “” 36 C.F.R. § 800.16 ; see also id. § 800.5(a)(1) (defining an “adverse effect” as the direct or indirect alteration of “any of the characteristics of a historic property that qualify the property for inclusion in the National Register in a manner that would diminish the…”

Monumental Task Comm., Inc. v. Foxx, 157 F. Supp. 3d 573 (E.D. La. 2016). “§ 300320 ; 36 C.F.R. § 800.16 (y). “If the undertaking is a type of activity that does not have the potential to cause effects on historic properties, .”

Save Ardmore Coalition v. Lower Merion Twp., 419 F. Supp. 2d 663 (E.D. Pa. 2005). · cites it 3× “” 36 C.F.R. § 800.16 (y) (2005). The NHPA process is initiated by an agency official who “shall determine whether the proposed Federal action is an undertaking as defined in § 800.”

Eagle Cnty., Colorado v. STB, 82 F.4th 1152 (D.C. Cir. 2023). · cites it 2× “See generally Kathryn Sears Ore, Form and Substance: The National Historic Preservation Act, Badger- Two Medicine, and Meaningful Consultation, 38 PUB.”

Havasupai Tribe v. Heather Provencio, 906 F.3d 1155 (9th Cir. 2018). “See 36 C.F.R. § 800.16 (y). We therefore disagree with the Tribe that the current definition of “undertaking” encompasses a continuing obligation to evaluate previously approved projects.”

Show all 52 citing cases →

— 36 C.F.R. § 800.16(d) — 1 case

Quechan Indian Tribe of Fort Yuma Indian Reservation v. U.S. Dep't of Interior, 547 F. Supp. 2d 1033 (D. Ariz. 2008).

— 36 C.F.R. § 800.16(y) — 1 case

Frank D. Unger v. Roane Cnty. Comm'n (2025).

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