FDIC Law, Regulations, Related Acts
5000 - Statements of Policy
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).
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.
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 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.
By order of the Board of Directors, July 11, 2006.
1National Historic Preservation Act of 1966 section 301(5). Go back to Text