Statement of Policy Regarding the National Historic Preservation Act, 42399-42402 [E6-11898]

Agencies

• FEDERAL DEPOSIT INSURANCE CORPORATION

[Federal Register Volume 71, Number 143 (Wednesday, July 26, 2006)]
[Notices]
[Pages 42399-42402]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-11898]


=======================================================================
-----------------------------------------------------------------------

FEDERAL DEPOSIT INSURANCE CORPORATION


Statement of Policy Regarding the National Historic Preservation 
Act

AGENCY: Federal Deposit Insurance Corporation (FDIC).

ACTION: Statement of Policy.

-----------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \1\ National Historic Preservation Act of 1966 section 301(5).
---------------------------------------------------------------------------

    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