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FDIC Federal Register Citations

State Historical Society of Iowa

December 16, 2005

Mr. Robert E. Feldman, Executive Secretary
Attention: Comments/Legal ESS
Federal Deposit Insurance Corporation
550 17th Street, Northwest
Washington, DC 20429

RE: Comments on Statement of Policy Regarding the National Historic Preservation Act [Federal
Register: Volume 70, Number 200, Tuesday, October 18, 2005, pages 60523-60524]

Dear Mr. Feldman,

I am writing to comment on the FDIC’s proposed policy statement regarding compliance with Section
106 of the National Historic Preservation Act (NHPA) and its implementing regulations, 36 CFR Part
800. I review FDIC undertakings under Section 106 for the State Historical Society of Iowa, State
Historic Preservation Office (SHPO).

Our office is glad that the FDIC is seeking to make its policy consistent with the most current versions
of NHPA and 36 CFR Part 800. In recent years, we have seen the level of consultation on FDIC projects
improve. More applicants are seeking our comments prior to beginning their projects. However, we also
find that we spend considerable time and effort educating FDIC applicants on how to consult with our
office. Many are unaware of the NHPA or the process outlined in 36 CFR Part 800. The Policy
Statement does not appear to clarify any of the basic confusion applicants have regarding the process,
and might even complicate matters further. Furthermore, it puts into policy a process that already
requires at least three separate contacts with our office, when in most cases one contact should be
sufficient to complete the process.

In the first paragraph of Section B, applicants are directed to request information from SHPO “to
determine whether or not their proposal may affect an historic property or district.” While we maintain a
list of previously identified historic properties, there are many historic properties that have yet to be
identified throughout the state. This portion of the Policy Statement perpetuates the myth that we know
where every historic property exists. In addition, it puts the burden on us to identify properties and
effects for the applicant, when it is the responsibility of the Federal Agency to review information on
historic properties and consult with our office regarding identified historic properties and the effects of
the undertaking on them (36 CFR 800.4 and 800.5).
The first paragraph of Section B further instructs applicants to obtain “SHPO/THPO clearance” before
proceeding. The SHPO does not have the authority to provide “clearance” on any project. As a
consulting party in the process, we merely provide comments and recommendations. It is up to the
agency official to consider our comments and continue the process according to 36 CFR Part 800, and
they alone have the approval authority for the undertaking [36 CFR Part 800.2(a)].

The second paragraph of Section B is very vague and may not be in keeping with 36 CFR Part 800. It
suggests that SHPO’s “consent may not be necessary in all circumstances.” Included in the list of
examples are applications for financial institution offices located in “supermarkets, existing shopping
centers” and the like. While we may not be concerned about projects involving recent construction, there
are a number of “shopping centers” in Iowa that meet the minimum 50-year age requirement for listing
in the National Register of Historic Places and may be eligible for listing due to their association with
commercial development in the state. Moreover, properties that are less than 50 years of age may also be
eligible for listing if they meet National Register Criteria Consideration G by possessing exceptional
importance. Undertakings that take place within these buildings may have the potential to adversely
affect a historic property.

In conclusion, it is our opinion that while the Policy Statement makes an attempt to clarify the
consultation process, consultation could be much more effective and efficient if alternative procedures
were developed as part of a Nationwide Programmatic Agreement (PA). A PA would outline the
responsibilities of all participants in the consultation process, including the applicants and the FDIC. It
would provide legal guidance to FDIC applicants who have little prior knowledge of Section 106 of the
NHPA. It could allow us to categorically agree that certain types of undertakings have little potential to
affect historic properties, such as those involving modern construction. It could also incorporate FDIC
policies regarding demolition of buildings for bank parking lots without consultation under Section
106—a concern repeatedly brought to our attention by Iowa’s citizens. Alternately, we would be willing
to develop a PA between the FDIC and our office to cover undertakings in Iowa. We also recommend
that the FDIC develop guidance materials for its applicants regarding compliance with Section 106. We
have found that a little technical assistance goes a long way and FDIC applicants have been more than
willing to do a bit of legwork once they understand what needs to be done.

We appreciate the opportunity to comment on this Policy Statement and look forward to continuing to
improve the consultation process with the FDIC.


Barbara A. Mitchell
Architectural Historian

Last Updated 12/20/2005

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