05-20767. Statement of Policy Regarding the National Historic Preservation Act

AGENCY:

Federal Deposit Insurance Corporation (FDIC).

ACTION:

Proposed Statement of Policy.

SUMMARY:

The FDIC is proposing to revise its Statement of Policy on the National Historic Preservation Act of 1966 (NHPA). The revised Statement of Policy reflects the FDIC's experience and practices in applying the current NHPA Statement of Policy and statutory changes to the NHPA and its implementing regulations. The revised Statement of Policy is relevant to applications for deposit insurance for de novo institutions, applications for the establishment of domestic branches, and applications for the relocation of domestic branches or main offices.

DATES:

Comments must be submitted on or before December 19, 2005.

ADDRESSES:

You may submit comments by any of the following methods:

• Agency Web site: http://www.fdic.gov/​regulations/​laws/​federal/​propose.html. Follow the instructions for submitting comments.
• E-mail: [e-mail].
• Mail: Robert E. Feldman, Executive Secretary, Attention: Comments/Legal ESS, Federal Deposit Insurance Corporation, 550 17th Street, NW., Washington, DC 20429.
• Hand Delivered/Courier: The guard station at the rear of the 550 17th Street Building (located on F Street), on business days between 7 a.m. and 5 p.m.
• Public Inspection: Comments may be inspected and photocopied in the FDIC Public Information Center, Room 100, 801 17th Street, NW., Washington, DC, between 9 a.m. and 4:30 p.m. on business days.
• Internet Posting: Comments received will be posted without change to http://www.fdic.gov/​regulations/​laws/​federal/​propose.html,, including any personal information provided.

FOR FURTHER INFORMATION CONTACT:

Kevin W. Hodson, Section Chief, Risk Management and Applications Section, Division of Supervision and Consumer Protection [phone], or Susan van den Toorn, Counsel, Legal Division [phone]; Federal Deposit Insurance Corporation, Washington, DC 20429.

SUPPLEMENTARY INFORMATION:

The FDIC has determined that its Statement of Policy on the NHPA (SOP) should be revised. See: 1 FDIC Law, Regulations, Related Acts 5175. The proposed SOP, in updating and clarifying the NHPA requirements relevant to applicants and the FDIC, will provide for more efficient processing and timely resolution of matters pertaining to the NHPA. The proposed SOP incorporates the role of Tribal Historic Preservation Officers 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 proposed Statement of Policy continues to provide for public involvement in the FDIC's NHPA compliance activities through the comment periods provided for relevant applications in 12 CFR part 303.

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) has adopted regulations that implement this requirement. 36 CFR part 800. The FDIC considers applications for deposit insurance for de novo institutions, applications to establish a domestic branch, and applications 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 taking this opportunity to revise its SOP to conform to those amendments and revisions.

Request for Public Comment as Part of EGRPRA

Consistent with the spirit of section 2222 of the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (EGRPRA, 12 U.S.C. 3311), the FDIC requests public comment to identify any areas of the proposed SOP that are outdated, unnecessary, or unduly burdensome.

The Board of Directors of the FDIC hereby proposes the revised Statement of Policy on the National Historic Preservation Act, as set forth below.

National Historic Preservation Act of 1966 Procedures Relating to Filings Made With the FDIC

This Statement of Policy (SOP) addresses 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. This SOP is relevant to applications for deposit insurance for de novo institutions, applications for the establishment of domestic branches, and applications for the relocation of domestic branches or main offices (collectively, “Covered Applications”).

Prior to an Applicant taking an action with respect to a property or site relevant to a Covered Application, the FDIC must consider the potential effects of the proposal on the property or site. Relevant sites include any property of historical, architectural, archeological, or cultural significance, including land and structures; such sites may be either included in the National Register of Historic Places (National Register) or eligible for inclusion. Further, properties relevant to a Covered Application include those properties owned or to be owned by the institution, as well as any property that is or will be leased from a third party. Applicants are cautioned that no action should be taken with respect to a property or site relevant to a Covered Application prior to obtaining consent from or entering into an alternative resolution with the FDIC and, as applicable, the appropriate State or Tribal Historic Preservation Officer (SHPO/THPO) and the Advisory Council. Such actions include:

• Demolition of existing buildings or any change to the physical structure or use of the property, or of physical features within the property's setting;
• 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.

A. Relevant Laws, Executive Orders and Regulations

The NHPA is the primary historic preservation law affecting Covered Applications and outlines the historic preservation responsibilities of Federal agencies. Among these responsibilities, Federal agencies must consider the effects of their undertakings on historic properties and afford the Advisory Council on Historic Preservation (Advisory Council) 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.
• National Environmental Policy Act of 1969 (NEPA).
• Archeological and Historic Preservation Act of 1974 (AHPA).
• Archeological Resources Protection Act of 1979 (ARPA).
• Native American Graves and Repatriation Act of 1990 (NAGPRA).
• American Indian Religious Freedom Act of 1978 (AIRFA).
• Executive Order 12898: Environmental Justice (1994).
• Executive Order 13007: Indian Sacred Sites (1996).
• 12 CFR part 303.
• 36 CFR part 68.
• 36 CFR part 800.

This SOP supplements the Advisory Council regulations found at 36 C.F.R. part 800.

B. Covered Applications

In connection with a Covered Application and prior to taking any action that would affect a proposed site, Applicants should assess whether or not their proposal involves an historic property or district and determine whether or not the property is included (or eligible for inclusion) in the National Register. Applicants should request information from their SHPO and, in the case of tribal lands, the THPO to determine whether or not their proposal may affect an historic property or district. If there is a question as to whether a proposal involves an historic property or district, the Applicant should obtain SHPO/THPO clearance before proceeding with the proposal.

SHPO/THPO consent may not be necessary in all circumstances. Examples under which such consent may be unnecessary are those applications for messenger services or in which financial institution offices would be located in supermarkets, existing shopping centers, mobile or seasonal facilities, or properties that have been newly constructed and in which the Applicant had no ownership interest prior to or during construction. If there is a question as to the requirements for prior SHPO/THPO clearance, Applicants should consult with the appropriate FDIC Regional Office.

If the proposal involves a district, site, building, structure or object that is included in or eligible for inclusion in the National Register, the Applicant should provide the FDIC with information relevant to the proposed site. This information will facilitate the FDIC's review of the proposal, and should include:

• Plans for destruction or alteration of all or any part of the 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;
• Information received from the SHPO/THPO, as applicable; and
• Such other details as appropriate for the proper evaluation of the proposal.

In order for the Applicant to participate fully in consultations, the FDIC will generally issue a letter to the appropriate SHPO/THPO specifically designating the Applicant as a “consulting party.” It is the FDIC's view that all applicants should be so designated in order to facilitate the assessment and consultation process.

C. FDIC Determinations and Resolution of Potential Adverse Effects

If, upon review, the FDIC concurs that no historic properties are present or affected, it will provide documentation to the SHPO/THPO and, barring any objection within 30 days, will proceed with the Covered Application.

If the FDIC, in consultation with the appropriate SHPO/THPO, finds that a proposal involves a district, site, building, structure or object that is included in or eligible for inclusion in the National Register, the FDIC must consider the potential effect of the proposal on the property or district, or any property of historical, architectural, archeological, or cultural significance that is located in the area of the proposed undertaking. After considering relevant information provided by the consulting parties or otherwise available, a determination will be made as to the effect the proposal may have on the historic property or district.

In the event the FDIC determines that the proposal may have an adverse effect, the FDIC will consult with the SHPO/THPO and the Applicant to seek an agreeable resolution. Such a resolution may be executed in the form of a Memorandum of Agreement among the consulting parties. If the Advisory Council has not participated in the consultation, a copy of the proposed or executed Memorandum of Agreement and supporting documentation (as specified in the Advisory Council regulations) will be provided to the Advisory Council.

Consultation may be terminated by the SHPO/THPO or other designated consulting party if determined to be unproductive. In this case, the FDIC, Advisory Council and, as appropriate, the remaining consulting parties, may enter into a Memorandum of Agreement.

D. 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 6th day of October 2005.

By order of the Board of Directors.

Federal Deposit Insurance Corporation.

Robert E. Feldman,

Executive Secretary.