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FDIC Federal Register Citations
[Federal Register: July 26, 2006 (Volume 71, Number 143)]
[Notices]
[Page 42399-42402]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26jy06-81]
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FEDERAL DEPOSIT INSURANCE CORPORATION
Statement of Policy Regarding the National Historic Preservation Act
AGENCY: Federal Deposit Insurance Corporation (FDIC).
ACTION: Statement of Policy.
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SUMMARY: The FDIC is revising its Statement of Policy Regarding the
National Historic Preservation Act of 1966 (NHPA). The Statement of
Policy clarifies and revises the NHPA Statement of Policy so that it
reflects the statutory changes to the NHPA and its implementing
regulations. The Statement of Policy is relevant to applications for
deposit insurance for de novo institutions and applications by state
non-member banks to establish a domestic branch and to relocate a
domestic branch or main office.
DATES: This Statement of Policy is effective on July 11, 2006.
FOR FURTHER INFORMATION CONTACT: Kathryn M. Beach, Review Examiner,
Risk Management and Applications Section, Division of Supervision and
Consumer Protection (202) 898-6617, or Susan van den Toorn, Counsel,
Legal Division (202) 898-8707; Federal Deposit Insurance Corporation,
Washington, DC 20429.
SUPPLEMENTARY INFORMATION: On October 18, 2005, the FDIC issued a
request for comment for a proposed Statement of Policy in the Federal
Register concerning revisions to its Statement of Policy Regarding the
NHPA (SOP). (70 FR 60523). The proposed SOP provided for more efficient
processing and timely resolution of matters pertaining to the NHPA and
its implementing regulations and incorporated the role of Tribal
Historic Preservation Officers (THPOs) in the review process to take
into account the responsibilities of the FDIC pursuant to a number of
statutes relating to Indian Tribes and Native Hawaiian organizations.
The NHPA sets forth a national policy to promote the preservation
of historic resources. It requires, in part, that all agencies of the
Federal Government consider the effects of their undertakings on
historic properties. The Advisory Council on Historic Preservation
(Advisory Council or ACHP) has adopted regulations that implement this
requirement (36 CFR part 800). The FDIC considers applications for
deposit insurance for de novo institutions and applications by state
non-member banks to establish a domestic branch and to relocate a
domestic branch or main office (collectively, ``Covered Applications'')
to be undertakings for the purposes of section 106 of the NHPA. Because
the NHPA has been amended and the Advisory Council has revised its
regulations during the interim period, the FDIC is revising its SOP to
conform to those amendments and revisions.
Overview of Comments Received
The FDIC received 11 comments on the proposed Statement of Policy.
Comments were received from the Advisory Council, state historic
preservation offices, the Department of Natural Resources of the
Confederated Tribes of the Umatilla Indian Reservation, financial
institutions and individuals. While a number of commenters supported
the proposed SOP, others did not. Commenters generally requested that
terminology used in the SOP conform to the terminology used in the
Advisory Council's implementing regulations. In addition, commenters
also suggested clarifying the consultation process, streamlining
consultation with state and national organizations, and educating
applicants regarding the availability of additional resources valuable
to assessing proposed undertakings. Commenters also requested that the
SOP be amended to make clear that Applicants and the FDIC will consult
with tribes regarding Historic Properties and the identification and
evaluation of such properties, including those of traditional religious
and cultural importance where tribes are located or were traditionally
located. A commenter suggested that when there may be an adverse effect
on an Historic Property that additional background information be
included in the Covered Applications.
Advisory Council Comment
The Advisory Council's comment stated that, ``In its present format
the ACHP cannot endorse the proposal * * * since it does not comport
with our regulations.'' The Advisory Council suggested that the FDIC
delay revising the SOP ``pending further consultation with the ACHP,
the National Conference of State Historic Preservation Officers
(NCSHPO), Indian tribes, and a review
[[Page 42400]]
of the public comments received in response to the Federal Register
notice.'' As an overall issue, the Advisory Council believes that the
process described in the proposed SOP did not reflect all the steps
outlined in, or the information required by, its regulations. Instead,
it believes the proposals included in the SOP modify the process in a
manner that may compromise the FDIC's ability to demonstrate that it
followed those regulations. The Advisory Council suggested that the
modifications to the SOP required the approval of the ACHP through one
of the alternatives set forth in its regulation. In particular, it
commented that the proposed SOP modifies the coordination of the
initial step of the review process, which requires the FDIC to specify
if the process is being coordinated with other applicable reviews,
identify consulting parties, and develop a plan to involve the public.
As such, the ACHP noted that the FDIC must issue delegations of
authority letters to applicable State Historic Preservation Officers
(SHPOs) and THPOs authorizing Applicants to act on the FDIC's behalf to
initiate the consultative process. The Advisory Council also commented
on its concern about Applicants altering properties prior to
considering the NHPA issues and requirements. The Advisory Council
raised the issue of ``anticipatory demolition'' or the modification of
a property by an Applicant prior to the determination that no Historic
Property was affected. Section 110(k) of the NHPA provides that a
Federal agency cannot approve a license (in this case a ``Covered
Application'') if the Applicant intentionally altered an Historic
Property in order to avoid the requirements of the NHPA unless the
Federal agency, after consulting with the Advisory Council, makes a
finding that the circumstances justify granting the license. The
Advisory Council requested that a warning to Applicants relative to
section 110(k) of the NHPA be incorporated into the SOP. The Advisory
Council also suggested that additional background information be
required of the Applicant when an Historic Property may be affected.
In order to clarify the concerns raised by the Advisory Council,
the FDIC initiated follow-up discussion with the Advisory Council
telephonically and requested that they provide clarification regarding
their initial comments. The Advisory Council suggested that with regard
to Applicants initiating the Section 106 process, ``36 CFR 800.2(c)(4)
allows for a blanket delegation of authority to all applicants. The
publication of this SOP in the Federal Register and placement of it in
FDIC's Web site constitutes a valid blanket delegation and notice
thereof.'' The Advisory Council also provided further comments relating
to clarification language regarding the issue of ``anticipatory
demolition,'' and additional clarification regarding terminology used
in the SOP.
Revisions to the Statement of Policy
After a review of the comments, the FDIC has modified the proposed
SOP. In response to concerns raised by the Advisory Council, the SOP
has been amended to state expressly that the purpose is to provide
guidance that supplements, but does not alter, FDIC regulations and
those of the Advisory Council. The SOP has also been amended so that it
is consistent with the regulations implementing section 106 of the NHPA
promulgated by the ACHP as amended in 2000. Cross-references have been
added to relevant statutes, regulations, and executive orders, but
those materials have not been reproduced or extensively summarized in
the SOP. In this regard, several areas that could have been viewed as
more than general guidance were eliminated or modified. Terminology was
conformed to language in the Advisory Council's regulations; most
notably, the SOP now references ``consultation'' with the state and
tribal entities, rather than ``clearance'' from such entities. In
addition, the SOP has been revised to specify that the FDIC and
Applicants will consult with Indian tribes that may attach religious
and cultural significance to sites located off of tribal lands. The SOP
also has been modified to clarify when the consultative process may not
be required and notes that Applicants must consult with the appropriate
Regional Office to confirm that consultation is not required. In
response to the comment regarding background information, the SOP now
requires that Applicants submit additional information with the Covered
Application relating to alternative activities in cases when the
proposed undertaking may otherwise result in an adverse effect on an
Historic Property.
The SOP has been revised to include language regarding section
110(k) of the NHPA and now requires a discussion of alternatives when
proposed undertakings would result in an adverse effect on an Historic
Property. In response to the Advisory Council's comment regarding the
initiation of the section 106 process, the FDIC has amended the SOP so
that the SOP is the requisite authorization pursuant to 36 CFR
800.2(c)(4) for Applicants to initiate consultation with the SHPOs/
THPOs and others under the ACHP's regulations and notice of such to all
SHPOs/THPOs.
After review of all the comments received and for the reasons set
forth above, the Board of Directors of the FDIC hereby adopts the
Statement of Policy Regarding the National Historic Preservation Act of
1966, as set forth below.
Statement of Policy Regarding the National Historic Preservation Act of
1966
This Statement of Policy (SOP) provides general guidance regarding
the FDIC's compliance with the National Historic Preservation Act of
1966, as amended, 16 U.S.C. 470 et seq. (NHPA), with respect to certain
applications submitted to the FDIC in accordance with governing
regulations at 12 CFR part 303. The SOP is intended to supplement, but
not alter, the procedures detailed in FDIC regulations and the
regulations implementing Section 106 of the NHPA at 36 CFR part 800.
Those statutes and regulations will be followed by the FDIC regardless
of whether they are highlighted in this SOP. This guidance addresses
applications for deposit insurance for de novo institutions and
applications by state non-member banks to establish a domestic branch
and to relocate a domestic branch or main office (collectively,
``Covered Applications'').
A. Relevant Laws, Executive Orders and Regulations
The NHPA and its implementing regulations are the primary Federal
historic preservation laws and regulations affecting Covered
Applications and outline the historic preservation responsibilities of
the FDIC. Among these responsibilities, the FDIC must consider the
effects of the Covered Application on Historic Properties and afford
the Advisory Council on Historic Preservation (Advisory Council or
ACHP) a reasonable opportunity to comment on such undertakings before
they occur. The NHPA and other applicable statutes, regulations, and
guidance are as follows:
National Historic Preservation Act of 1966, as amended
through 2000, (16 U.S.C. 470 et. seq.).
National Environmental Policy Act of 1969 (NEPA), (42
U.S.C. 4321-4347).
Archeological and Historic Preservation Act of 1974,
(AHPA), (16 U.S.C. 469-469c).
Archeological Resources Protection Act of 1979 (ARPA), (16
U.S.C. 470aa-mm).
[[Page 42401]]
Native American Graves Protection and Repatriation Act of
1990 (NAGPRA), (25 U.S.C. 3001).
American Indian Religious Freedom Act of 1978 (AIRFA), (42
U.S.C. 1996 and 1996a).
Executive Order 12898: Environmental Justice (see 59 FR
2935, January 20, 1994).
Executive Order 13007: Indian Sacred Sites (see 61 FR
28721, June 5, 1996).
12 CFR part 303.
36 CFR part 68.
36 CFR part 800
B. Covered Applications
In assessing Covered Applications, the FDIC must consider the
effects an Applicant's proposed undertaking may have on an historic
property. ``Proposed undertaking,'' as that term is used in this SOP,
refers to any property associated with a Covered Application. An
historic property is defined in the NHPA as ``any prehistoric or
historic district, site, building, structure or object included in, or
eligible for inclusion on, the National Register of Historic Places
(National Register), including artifacts, records, and material remains
related to such a property or resource'' \1\; hereafter, referred to as
``Historic Property.'' Proposed undertakings that may potentially
affect historic properties include those that may impact the properties
associated with Covered Applications in which the land and structures
are of historical, architectural, archeological, religious, or cultural
significance, by virtue of the significance of the structure or land
itself or its location within an area with historic, architectural,
archeological, religious, or cultural significance. The FDIC must
consider the impact of the proposed undertaking relative to properties
that not only are owned, or to be owned, by the financial institution
but also those that are leased, or will be leased, from a third party.
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\1\ National Historic Preservation Act of 1966 section 301(5).
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Applicants should consult with the FDIC, appropriate State Historic
Preservation Officer (SHPO), Tribal Historic Preservation Officer
(THPO), Native Hawaiian organizations and other interested parties
prior to, or in conjunction with, the filing of a Covered Application,
to determine if the proposed undertaking may have a potential effect on
an Historic Property. Such consultations are particularly important if
there is a question as to whether the proposed undertaking involves an
Historic Property, or whether the proposed undertaking may have an
adverse effect on the Historic Property. To the extent an Applicant or
a particular SHPO/THPO relies upon independent third-parties to review
Historic Properties or perform other studies or assessments, such third
parties should satisfy the Secretary of the Interior's professional
qualification standards. The appropriate Indian tribe or Native
Hawaiian organization is to be consulted in situations involving
proposed undertakings that may affect historic properties of cultural
or religious significance. THPO consultation may be required for
properties that are located on tribal lands as well as for those that
are located on non-tribal lands but with which Indian tribes may attach
a significant religious or cultural meaning.
Consultation with the SHPO/THPO may not be necessary if the
proposed undertakings are located in recently constructed supermarkets
or shopping centers, are properties that have been newly constructed
and the Applicant had no ownership interest prior to or during
construction, or are newly constructed properties whose immediate prior
usage was that of a financial institution and no ground disturbing
activities will take place. Consultation may also not be necessary for
applications involving messenger services where no new physical
location is necessary or temporary or seasonal branches which do not
involve permanent structures that will alter the location or
surrounding areas. These examples are intended to provide general
guidance for Covered Applications where the proposed location does not
exhibit historic characteristics that would require a more complex
review. The Applicant must consult with the appropriate FDIC Regional
Office to confirm that further consultation with the SHPO/THPO is not
required.
If the proposal may affect an Historic Property, the Applicant
should provide the FDIC with information relevant to the Historic
Property. This information will facilitate the FDIC's review of the
proposal, and should include:
Locational details, such as appropriate maps and
photographs;
Description of the historical use of the Historic
Property;
Previous ownership, to the extent known;
Plans for destruction or alteration of all or any part of
the Historic Property;
Plans for isolation from or alteration of the surrounding
environment;
Plans for the introduction of visual, audible, or
atmospheric elements;
Details regarding any restrictions or conditions affecting
the long-term preservation of the property's historic significance;
An analysis of alternatives for activities that may
otherwise result in an adverse affect on the Historic Property;
Information received from the SHPO/THPO, as applicable;
and
Such other details as appropriate for the proper
evaluation of the proposal.
Section 110(k) of the NHPA prohibits a Federal agency from granting
a license to an applicant who, with the intent to avoid the NHPA's
requirements, intentionally significantly adversely affects the
historic property, unless the Federal agency makes a finding, after
consultation with the ACHP, that the circumstances justify granting the
license. This means that any action regarding the property prior to the
FDIC making a finding could potentially jeopardize the approval of the
application. As a result, it is very important that assessment of the
property occur prior to the Applicant taking any action with respect to
the proposed undertaking relevant to the Covered Application,
especially when such actions include:
Demolition of existing buildings or any change to the
external or internal physical structure or use of the property, or of
physical features within the property's settings;
Excavation of the land, construction of any new
structures, or the introduction of visual, atmospheric, or audible
elements that diminish the integrity of the property's significant
historic features;
Neglect of a property that causes its deterioration; or
The transfer, lease, or sale of a property or any portion
of the property by the applicant without adequate and legally
enforceable restrictions or conditions to ensure long-term preservation
of the property's historic significance.
The Applicant may not take any action, as defined above, with
respect to the property associated with the Covered Application prior
to one of the following: (1) Confirmation from the appropriate Regional
Office that the proposed undertaking, based upon the characteristics of
the property, does not require further consultation, (2) submission to
the appropriate Regional Office of documented evidence from the
appropriate SHPO, THPO, or other relevant party stating that the SHPO,
THPO, or other relevant party has reviewed the proposed undertaking and
determined that it will have no adverse
[[Page 42402]]
effect on historic properties, (3) the receipt of documented evidence
from the FDIC that the proposed undertaking will have no adverse effect
on historic properties, or (4) the implementation of an alternate
resolution with the FDIC and, as applicable, the appropriate SHPO or
THPO, and the Advisory Council. Resolution of the historic preservation
aspects of a Covered Application does not constitute approval of the
application.
C. Authorization To Initiate Section 106 Consultation
Pursuant to 36 CFR 800.2(c)(4), the FDIC authorizes Applicants to
initiate the consultation process with the appropriate SHPOs/THPOs and
others to identify historic properties within the area of potential
effects. However, the FDIC remains legally responsible for all findings
and determinations.
D. Other Consulting Parties
At its discretion, the FDIC may also solicit participation from
parties other than the Applicant and appropriate SHPO/THPO at any time
while a Covered Application is pending. Further, the FDIC may, in its
discretion, designate such third parties as Consulting Parties.
E. FDIC Determinations and Resolution of Potential Adverse Effects
Pursuant to the provisions of the NHPA and 36 CFR part 800, the
FDIC will make a determination as to whether the proposed undertaking
has an effect on an Historic Property. If the FDIC determines that the
proposed undertaking may affect an Historic Property, the FDIC will
work closely with the Applicant, the SHPO/THPO, and designated
consulting parties to determine whether the proposed undertaking will
have an adverse effect on the Historic Property. If there is no adverse
effect, the FDIC will proceed with consideration of the Covered
Application and any agreed-upon conditions. If there is an adverse
effect, the FDIC, pursuant to the ACHP's regulations, will begin
consultation to seek ways to avoid, minimize, or mitigate the adverse
effects. Consultation may result in a Memorandum of Agreement, which
outlines agreed-upon measures the FDIC, Applicant, and other consulting
parties may take to avoid, minimize, or mitigate the adverse effects.
If consultation proves ineffective, the FDIC will proceed pursuant to
the ACHP's regulations, including by obtaining, considering, and
responding to the ACHP's formal comments on the undertaking.
F. Information Requests
Public involvement through the comment period for a Covered
Application (as provided for in 12 CFR part 303) is an important part
of the consultation process. Inquiries by interested parties regarding
specific Covered Applications should be directed to the appropriate
Regional Director of the FDIC's Division of Supervision and Consumer
Protection.
Dated at Washington, DC, this 11th day of July 2006.
By order of the Board of Directors, Federal Deposit Insurance
Corporation.
Valerie Best,
Assistant Executive Secretary.
[FR Doc. E6-11898 Filed 7-25-06; 8:45 am]
BILLING CODE 6714-01-P
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