Federal Register / Vol. 62, No. 221 / Monday, November 17, 1997 / Rules and Regulations 61215

Central Avenue to Slauson Avenue; then

west along Slauson Avenue to Interstate

Highway 110; then north along Interstate

Highway 110 to Jefferson Boulevard; then

northwest along Jefferson Boulevard to

Hoover Street; then north along Hoover Street

to Alvarado Street; then northeast along

Alvarado Street to the point of beginning.

* * * * *

Done in Washington, DC, this 10th day of

November 1997.

Terry L. Medley,

Administrator, Animal and Plant Health

Inspection Service.

[FR Doc. 97–30106 Filed 11–14–97; 8:45 am]

BILLING CODE 3410–34–P

DEPARTMENT OF AGRICULTURE

Natural Resources Conservation

Service

7 CFR Part 650

Protection of Wetlands

AGENCY: Natural Resources

Conservation Service, USDA.

ACTION: Final rule.

SUMMARY: Pursuant to Government

Performance Results Act, the Natural

Resources Conservation Service (NRCS)

is removing obsolete, unnecessary, or

redundant regulations from the Code of

Federal Regulations. This action

removes the regulations found at 7 CFR

650.26 concerning the NRCS wetland

technical assistance policy.

EFFECTIVE DATE: November 17, 1997.

FOR FURTHER INFORMATION CONTACT:

Warren M. Lee (202) 720–3534.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

This document does not meet the

criteria for a significant regulatory

action as specified in E.O. 12866.

Regulatory Flexibility Act

It has been determined that the

Regulatory Flexibility Act is not

applicable to this rule because NRCS is

not required by 5 U.S.C. 553 or any

other provision of law to publish a

notice of proposed rule making with

respect to the subject matter of this rule.

Environmental Evaluation

This final rule will have no significant

effect on the human environment and is

categorically exempt under 7 CFR

1b.3(a)(6), therefore neither an

environmental assessment nor an

environmental impact statement is

required.

Paperwork Reduction Act

This rule does not contain reporting

or record keeping requirements subject

to the Paperwork Reduction Act.

Background

Pursuant to the Administration effort

to review existing agency regulations

and remove unnecessary regulations

from the Code of Federal Regulations,

the NRCS has determined that the

regulation found at 7 CFR part 650.26,

‘‘Protection of Wetlands,’’ is

unnecessary because the regulation

addresses a matter of internal agency

policy, does not regulate any member of

the public, conflicts with agency

implementation of the wetland

conservation provisions of the Food

Security Act of 1985, as amended, 16

U.S.C. 3801 et seq., and utilizes a

superseded classification of wetlands.

Executive Order 11990

Wetlands provide fish and wildlife

habitats, maintain ground water

supplies and water quality, protect

shorelines from erosion, store

floodwaters and trap sediments, and

provide recreational and educational

opportunities. Historically, wetlands

have been converted at a rapid rate with

the concomitant loss of the functions

and values that they provide to the

Nation. In some cases, activities of the

Federal government contributed to the

loss of the Nation’s wetlands. To

minimize adverse impacts on wetlands

resulting from Federally-sponsored

activities, President Carter in 1977

issued an Executive Order to protect

wetlands. Executive Order 11990

established the policy that, to the extent

authorized by law, the Executive Branch

would avoid direct or indirect support

of new construction in wetlands

wherever there exists a practicable

alternative.

Pursuant to the Soil Conservation and

Domestic Allotment Act of 1935, 16

U.S.C. 590a et seq., the Soil

Conservation Service (SCS) of the

United States Department of Agriculture

provided technical assistance to

landowners for the protection of natural

resources on private lands. Technical

assistance included the personnel and

support resources needed to conduct

planning and conservation practice

survey, layout, design, installation and

certification. Among activities

conducted prior to 1977, SCS provided

technical assistance related to the

construction of drainage ditches and

other structures that resulted in the

conversion of wetlands.

Section 6 of Executive Order 11990

requires agencies to issue or amend

their existing procedures to comply

with the policies of the order, and

accordingly, SCS revised its policy

regarding technical assistance in 1977.

These changes restricted the situations

in which SCS employees could provide

technical assistance to clients related to

new construction in wetlands. In 1979,

SCS codified the wetland technical

assistance policy at 7 CFR 650.26. SCS

modified this regulation in 1982 to

enable SCS employees to provide

assistance for new construction in

wetlands when denial of such assistance

would lead to ‘‘detrimental

consequences on soil and water

resources or on human welfare and

safety.’’ 47 FR 34111 (August 6, 1982).

Since 1982, SCS updated its technical

assistance policy several times, but such

updates did not require amendments to

the regulation at 7 CFR 650.26. Pursuant

to Departmental reorganization in 1994,

SCS was abolished and the Natural

Resources Conservation Service (NRCS)

assumed most of the statutory and

regulatory responsibilities of the SCS,

including the provision of technical

assistance on private lands.

The Conflict With the Wetland

Conservation Provisions

The wetland conservation provisions

of the Food Security Act of 1985 (the

1985 Act), as amended, 16 U.S.C. 3801

et seq., encourage participants in United

States Department of Agriculture

(USDA) programs to adopt land

management measures that protect

wetland functions and values by linking

eligibility for USDA program benefits to

farming practices on converted

wetlands. In particular, the wetland

conservation (WC) provisions of the

1985 Act provide that after December

23, 1985, a program participant is

ineligible for certain USDA program

benefits for the production of an

agricultural commodity on a converted

wetland, or after November 28, 1990, for

the conversion of a wetland that makes

the production of an agricultural

commodity possible. The 1985 Act,

however, affords relief to program

participants who meet certain

conditions identified under the 1985

Act by exempting such actions from the

ineligibility provisions.

The current version of the wetland

technical assistance rule, 7 CFR 650.26,

allows NRCS to provide technical

assistance to a producer that could place

the producer in violation of the WC

provisions. In particular, the rule allows

NRCS personnel to provide technical

assistance for certain construction in

types 1 and 2 wetlands under the

Circular 39 classification of wetlands.

The wetland classification system in
61216 Federal Register / Vol. 62, No. 221 / Monday, November 17, 1997 / Rules and Regulations

Circular 39 was established by the Fish

and Wildlife Service (FWS), United

States Department of the Interior, and

used by state and Federal agencies.

Currently, the FWS and other agencies

do not use Circular 39.

Many types 1 and 2 wetlands

correlate with the NRCS definition of

‘‘farmed wetlands’’. A producer can be

found ineligible for USDA program

benefits if the drainage on farmed

wetlands is increased beyond that

which existed on or before December

23, 1985. Thus, under the current

wetland technical assistance rule, NRCS

could help design the drainage system

that causes the producer to lose program

benefits and also would violate Section

404 of the Clean Water Act if the

drainage activities were not permitted

by the Army Corps of Engineers.

The current version of the wetland

technical assistance rule also hinders

the ability of NRCS to assist producers

with WC provisions compliance. Since

December 23, 1985, program

participants are farming in a more

environmentally-oriented manner,

resulting in more wetlands remaining

available to perform the myriad of

functions and values for the Nation.

Meeting the objectives of the WC

provisions, however, has been difficult

for some producers. Wherever possible,

USDA has helped individual program

participants address their unique

resource concerns in a manner that

meets the requirements of the WC

provisions.

The Federal Agriculture Improvement

and Reform Act (the 1996 Act), enacted

April 4, 1996, made several

amendments to the WC provisions

which were intended to increase

USDA’s ability to meet these producers’

situations in a more flexible manner.

These amendments provide producers

who wish to convert a wetland with

greater flexibility to mitigate the loss of

wetland functions and values through

restoration, enhancement, or creation of

wetlands.

The WC provisions provide that a

person may remain eligible for USDA

program benefits even if their action

results in the conversion of a wetland if

the wetland functions and values are

adequately mitigated, as determined by

NRCS, and the mitigation: is in

accordance with a mitigation plan

approved by NRCS; is in advance of, or

concurrent with, the wetland

conversion; is not at the expense of the

Federal government; occurs on lands in

the same general area of the local

watershed as the converted wetlands; is

on lands for which the owner has

granted an easement to USDA, and

recorded the easement on public land

records; and provides the equivalent

functions and values that will be lost as

a result of the wetland conversion. A

person may also remain eligible for

USDA program benefits if the action has

been permitted by the Army Corps of

Engineers after December 23, 1985, via

the individual permit process.

This increased mitigation flexibility

for producers creates confusion between

NRCS responsibilities under the WC

provisions and under the current

technical assistance rules. Under the

WC provisions, NRCS must approve a

mitigation plan if the producer meets

the requirements identified above,

whether or not the impact to wetlands

from the conversion activity could have

been minimized or avoided. However,

when NRCS delivers technical

assistance, the current technical

assistance rule applies. Accordingly,

NRCS cannot provide technical

assistance to a client for the conversion

activity unless there is no practicable

alternative to the construction and the

proposed conversion actions includes

all practicable measures to minimize

harm to wetlands which may result

from such use.

Since 1987, USDA has identified the

threshold characteristics that define:

when a wetland has been manipulated

sufficiently to make the production of

an agricultural commodity possible;

when a wetland is ‘‘converted;’’ which

conditions meet a particular exemption

identified under the WC provisions; or

when a producer has expanded the

drainage system beyond that which

existed prior to December 23, 1985. The

current wetland technical assistance

rule is outdated because it fails to

recognize these distinctions, utilizes a

superseded classification system, and

describes identical terms differently

from the current prevailing

methodologies and scientific

understanding of wetland systems.

The removal of this regulation will

not have any effect on the public, any

private enterprise, or any other

Government agency. This action will

result in the removal of an unnecessary

regulation from the Code of Federal

Regulations. As a matter related to

internal agency management, the

policies and procedures related to the

subject matter of the wetland technical

assistance rule is currently addressed

through agency manuals, handbooks,

and directives.

The Revised NRCS Wetland Technical

Assistance Policy

It is the policy of NRCS to protect and

promote wetland functions and values

in all NRCS planning and application

assistance. NRCS recognizes the

beneficial and varied functional

attributes of the different wetland types,

and as such, strives to reconcile the

need for wetland protection with that of

promoting viable agricultural

enterprises. NRCS supports the

restoration, enhancement, creation, and

preservation of wetlands as important

and realistic components of

comprehensive conservation plans, not

only on a farm-by-farm basis, but also

on a watershed or landscape basis.

When providing technical assistance,

NRCS will conduct an environmental

evaluation, considering the objectives of

the client in the context of

environmental, economic, and other

pertinent factors.

Upon conducting an environmental

evaluation, NRCS will identify whether

any practicable alternatives exist that

will either adequately maintain or

improve the wetland functions and

values, or avoid or minimize the harm

to wetlands. If practicable alternatives

exist, NRCS will inform and advise the

client of the available options and

explain the benefits of conducting the

desired activity in a manner that will

achieve the objectives of the client,

while adequately maintaining or

improving the functions and values of

wetland resources in the area.

If the client selects one of the

practicable alternative options, NRCS

may provide technical assistance for the

conversion activity, as well as the

development of a mitigation plan. If the

findings of the environmental

evaluation show that no practicable

alternatives exist, NRCS may provide

technical assistance which allows for

the conversion of the wetland and

develop a mitigation plan for

compensation of the functions and

values that were lost through the

conversion activity. Prior to or

concurrent with NRCS assistance, the

client will obtain all necessary permits

or approvals related to the conversion

activity.

If the client chooses to pursue an

activity other than a practicable

alternative, NRCS should advise the

client about eligibility criteria under the

WC provisions of the Food Security Act,

as amended.

The regulation at 7 CFR 650.26

defines wetlands in accordance with

Circular 39 of the Fish and Wildlife

Service, and not the current definition

recognized by all Federal agencies with

wetland responsibilities. Additionally,

the former wetland technical assistance

policy and regulation allowed NRCS

employees to provide technical

assistance to producers which placed

such producers in violation of the

wetland conservation provisions of the
Federal Register / Vol. 62, No. 221 / Monday, November 17, 1997 / Rules and Regulations 61217

Food Security Act of 1985, as amended

(FSA). The removal of the regulation

will prevent the implementation of

inconsistent policies.

List of Subjects in 7 CFR Part 650.26

Technical Assistance, wetlands.

§ 650.26 [Removed]

In consideration of the above, 7 CFR

part 650.26 is removed.

Signed at Washington, D.C. on November

6, 1997.

Paul W. Johnson,

Chief, Natural Resources Conservation

Service.

[FR Doc. 97–29996 Filed 11–14–97; 8:45 am]

BILLING CODE 3410–16–P

FEDERAL RESERVE SYSTEM

12 CFR Part 271

[Docket No. R–0983]

Federal Open Market Committee; Rules

Regarding Availability of Information

AGENCY: Federal Open Market

Committee, Federal Reserve System.

ACTION: Final rule.

SUMMARY: The Federal Open Market

Committee (Committee) hereby amends

its Rules Regarding Availability of

Information (Rules) to reflect recent

changes in the Freedom of Information

Act (FOIA) as a result of the Electronic

Freedom of Information Act

Amendments (EFOIA).

EFFECTIVE DATE: December 17, 1997.

FOR FURTHER INFORMATION CONTACT:

Elaine M. Boutilier, Senior Counsel,

(202/452–2418), or Stephen L. Siciliano,

Special Assistant to the General Counsel

for Administrative Law, (202/452–

3920), Legal Division, Board of

Governors of the Federal Reserve

System. For the hearing impaired only,

contact Diane Jenkins,

Telecommunications Device for the Deaf

(TDD) (202/452–3544), Board of

Governors of the Federal Reserve

System, 20th and Constitution, NW.,

Washington, DC 20551.

SUPPLEMENTARY INFORMATION: Last year,

Congress passed the Electronic Freedom

of Information Act Amendments of

1996, Public Law 104–231, which

amend the Freedom of Information Act,

5 U.S.C. 552. Among other things,

EFOIA requires agencies to promulgate

regulations that provide for expedited

processing of requests for records. In

addition to amendments intended to

implement EFOIA, the Committee has

updated its fee schedule and made other

changes to streamline and clarify the

Rules.

To implement these changes, the

Committee published proposed

amendments to the Rules on August 26,

1997 (62 FR 45178). The Committee

received only one comment, submitted

by an association established by news

editors and reporters to defend First

Amendment rights of the media. This

comment requested two changes to the

Committee’s proposed rule—one

specific change and one general change.

Specifically, the association requested

that the Secretary be given the

discretion to waive the formal

certification requirement for persons

requesting expedited treatment of a

FOIA request. The second, general

suggestion was to incorporate the key

mandates of EFOIA into the regulation,

because ‘‘future FOI officers and

specialists at the Committee [may not]

realize the additional requirements

placed on them by this law if

regulations do not make adherence

necessary.’’ After review of the

comment, the Committee has made the

specific change regarding the

discretionary waiver of formal

certification. With regard to the second

comment, the Committee does not

believe that the Rules need to be

amended to reflect statutory provisions

that are not required to be implemented

by regulation. When a FOIA request is

received, FOMC officers routinely work

with attorneys in the Board’s Legal

Division who are familiar with the law

and the procedural requirements.

Furthermore, incorporating these

changes into the regulation would add

nothing to the public’s understanding of

FOIA and would unnecessarily lengthen

and complicate the regulation at a time

when all agencies are attempting to

simplify and streamline their

regulations. The following is a sectionby-section discussion of the final

amendments.

Section 271.1—Authority and Purpose

This section has been revised to state

the statutory authority for promulgation

of the Rules and the purpose of the

Rules.

Section 271.2—Definitions

The definitions have been

alphabetized and now include the

definitions relating to the fee schedule

that were previously in § 271.8.

Section 271.3—Published Information

No substantive changes have been

made to this section.

Section 271.4—Records Available for

Public Inspection and Copying

This new section describes the types

of Committee records that are available

in the reading room of the Board’s

Freedom of Information (FOI) Office.

Pursuant to EFOIA, it also describes the

Committee records available on the

Board’s website.

Section 271.5—Records Available to the

Public on Request

This is a revision of existing § 271.4,

which describes the types of records

available upon request, and the

procedures for making such a request.

Section 271.6—Processing Request

This is a new section that describes

the Committee’s procedures in

processing requests for information and

appeals of denials of such requests. This

section also contains the procedures for

expedited processing of requests. As

noted above, this section has been

modified to give the Secretary the

discretion to waive the formal

certification requirement for expedited

processing in exceptional situations. It

is expected that, as a routine matter,

certification will be required.

Nevertheless, where time is important

and the certification is in fact a

formality, then the Secretary has the

discretion to waive that formality.

Section 271.7—Exemptions From

Disclosure

This section combines the rules

currently found in §§ 271.5 and 271.6,

regarding deferred release of

information and information that is

exempt from release under FOIA.

Section 271.8—Subpoenas

There are no substantive changes to

this section, except that it is

renumbered from § 271.7 to § 271.8.

Section 271.9—Fee Schedules; Waiver

of Fees

This section is renumbered from

§ 271.8 to § 271.9. The Committee has

moved the definitions that were in this

section to § 271.2, which contains the

other definitions for this part. The fee

schedule provisions have been revised

to clarify that the processing time of a

FOIA request does not begin in cases

where advance payment is required

until payment is received; or, where a

person has requested a waiver of the

fees, until the person agrees to pay the

fees if the waiver request is denied.

Additionally, the standards under

which the Secretary may grant a request

for waiver of fees have been modified to

reflect the development of case law in

this area. The rule provides for

administrative appeal of a denial of a

waiver request.