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5000 - Statements of Policy
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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.
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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;
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• 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.
[The page following this is 5185.]
1 National Historic Preservation Act of 1966 section 301(5). Go Back to Text
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