Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Proposed Rules 30553

1,623,518 in 1990, forecasted to reach

2,209,957 by the year 2000. Because

Sanford could qualify for port of entry

status on the strength of the potential

international passenger processing

figures at the airport alone, and is not

expected to process many consumption

entries, Customs believes that the

facility does not, at this time, have to

make a commitment to make optimal

use of electronic data transfer

capabilities to permit integration with

Customs Automated Commercial

System (ACS), which provides a means

for the electronic processing of entries

of imported merchandise. Lastly, since

the airport is currently a Customs user

fee airport, Customs knows that office,

storage, and examination space are

currently available for use by Customs.

Conditional Status

Based on the above, Customs believes

that there is sufficient justification for

establishment of the proposed port of

entry at Sanford. If, after reviewing the

public comments, Customs decides to

terminate Sanford’s designation as a

user-fee airport, then Customs will

notify the airport of that determination

in accordance with the provisions of 19

CFR 122.15(c). However, it is noted that

this proposal relies on potential, rather

than actual, workload figures. Therefore,

even if the proposed port of entry

designation is adopted as a final rule, in

3 years Customs will review the actual

workload generated within the new port

of entry. If that review indicates that the

actual workload is below the T.D. 82–

37 standards, as amended, procedures

may be instituted to revoke the port of

entry status. In such case, the Airport

may reapply to become a user fee airport

under the provisions of 19 U.S.C. 58b.

Description of Proposed Port of Entry

Limits

The geographical limits of the

proposed Sanford port of entry would

be as follows:

The Orlando-Sanford Airport, which

consists of approximately 2,000 acres

which are located in Seminole County,

Florida, beginning in the north/east at

the intersection of State Road 46 and

State Road 417 and proceeding south to

Lake Mary Boulevard, turning west to

Sanford Boulevard, and finally turning

north to State Road 46 to the point of

beginning.

Proposed Amendments

If the proposed port of entry

designation is adopted, the list of

Customs ports of entry at § 101.3(b)(1)

will be amended to include Sanford as

a port of entry in Florida, and Sanford

Regional Airport will be deleted from

the list of user-fee airports at

§ 122.15(b).

Comments

Before adopting this proposal as a

final rule, consideration will be given to

any written comments timely submitted

to Customs. Comments submitted will

be available for public inspection in

accordance with the Freedom of

Information Act (5 U.S.C. 552), § 1.4 of

the Treasury Department Regulations

(31 CFR 1.4), and § 103.11(b) of the

Customs Regulations (19 CFR

103.11(b)), on regular business days

between the hours of 9 a.m. and 4:30

p.m. at the Regulations Branch, Office of

Regulations and Rulings, U.S. Customs

Service, Franklin Court, 4th floor, 1099

14th St., NW, Washington, DC.

Authority

This change is proposed under the

authority of 5 U.S.C. 301 and 19 U.S.C.

2, 66, and 1624.

The Regulatory Flexibility Act, and

Executive Order 12866

Pursuant to provisions of the

Regulatory Flexibility Act (5 U.S.C. 601

et seq.), it is certified that, if adopted,

the proposed amendments will not have

a significant economic impact on a

substantial number of small entities, as

the proposed amendments concern the

status of only one airport facility.

Accordingly, the proposed amendments

are not subject to the regulatory analysis

or other requirements of 5 U.S.C. 603

and 604. This amendment does not meet

the criteria for a ‘‘significant regulatory

action’’ as specified in Executive Order

12866.

George J. Weise,

Commissioner of Customs.

Approved: May 15, 1996.

Dennis M. O’Connell,

Acting Deputy Assistant Secretary of the

Treasury.

[FR Doc. 96–15316 Filed 6–14–96; 8:45 am]

BILLING CODE 4820–02–P

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 777

[FHWA Docket No. 96–8]

RIN 2125–AD78

Mitigation of Impacts to Wetlands

AGENCY: Federal Highway

Administration (FHWA), DOT.

ACTION: Notice of proposed rulemaking

(NPRM); request for comments.

SUMMARY: In accordance with the

President’s Regulatory Reinvention

Initiative, the FHWA proposes to amend

its regulation outlining the procedures

to be followed in mitigating the impacts

of Federal-aid highway projects and

programs to wetlands. The current

regulation has become outdated as a

result of advances in the science of

wetland management and the

amendments made by sections 1006(d)

and 1007(a) of the Intermodal Surface

Transportation Efficiency Act of 1991

(ISTEA) (Pub. L. 102–240, 105

Stat.1914) to the statutory provisions of

title 23, United States Code (U.S.C.).

The ISTEA amendments significantly

alter the range and timing of alternatives

eligible for Federal-aid participation for

mitigation of wetland impacts due to

Federal-aid highway projects.

Accordingly, this proposal would revise

the current regulation to conform to the

ISTEA amendments, thereby providing

more flexibility to State highway

agencies in determining eligibility of

mitigation alternatives for Federal

participation. This proposal would

broaden the scope of the current

regulation to encompass all wetlands

mitigation projects eligible for Federal

participation, not just those involving

privately owned wetlands.

DATES: Comments must be received on

or before August 16, 1996.

ADDRESSES: Submit written, signed

comments to FHWA Docket No. 96–8,

Federal Highway Administration, Room

4232, HCC–10, Office of the Chief

Counsel, 400 Seventh Street, SW.,

Washington, D.C. 20590. All comments

received will be available for

examination at the above address

between 8:30 a.m. and 3:30 p.m., e.t.,

Monday through Friday, except Federal

holidays. Those desiring notice of

receipt of comments must include a selfaddressed, stamped postcard.

FOR FURTHER INFORMATION CONTACT: Mr.

Paul Garrett, Office of Environment and

Planning, HEP–42, (202) 366–9173, or

Mr. Brett Gainer, Office of the Chief

Counsel, HCC–32, (202) 366–1372,

Federal Highway Administration, 400

Seventh Street, SW., Washington, D.C.

20590. Office hours are from 7:45 a.m.

to 4:15 p.m., e.t., Monday through

Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

Executive Order (E.O.) 11990,

‘‘Protection of Wetlands,’’ requires all

Federal agencies to ‘‘avoid to the extent

possible the long and short term adverse

impacts associated with the destruction

or modification of wetlands’’ (42 FR

26961, May 25, 1977). Specifically, this
30554 Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Proposed Rules

1Section 4(f) of Pub. L. 89–670, 80 Stat. 934, was

repealed by Pub. L. 97–449, 96 Stat. 2444, and

enacted without substantive change at 49 U.S.C.

303. Section 138 of title 23, U.S.C., remains

unchanged. Because of common usage and

familiarity, the term section 4(f) continues to be

used by the Department of Transportation in

matters relating to 49 U.S.C. 303 and 23 U.S.C. 138.

order directs Federal agencies to avoid

new construction in wetlands unless (1)

there is no practicable alternative to

such construction, and (2) the proposed

action includes all practicable measures

to minimize harm to wetlands resulting

from such construction. The Department

of Transportation subsequently issued

DOT Order 5660.1A, Preservation of the

Nation’s Wetlands, which provided

departmental policy and instruction for

implementing E.O. 11990. Copies of

these documents are available for

inspection and copying pursuant to 49

CFR Part 7, App. D.

The provisions of E.O. 11990, the

Clean Water Act (33 U.S.C 1344 et seq.),

and the DOT Order proclaim that

wetlands are a valuable national

resource and that special efforts are

required of all Federal agencies to

preserve the beneficial values inherent

in them. Wetlands are a valuable

resource for a number of reasons. They

provide habitats for numerous plants

and animals, including many

commercially important species. In

addition, wetlands can reduce the

severity of flooding, control erosion, and

remove contaminants from polluted

waters. Consequently, wetland

preservation has become a matter of

concern to Federal and State agencies

charged with resource management

responsibilities and has been

emphasized by resource conservation

groups.

Under E.O. 11990 each Federal

agency must avoid, whenever

practicable, impacts to wetlands.

Therefore, a highway location or design

which will impact a wetland must be

evaluated for its natural functions and

values, in addition to all relevant social,

economic, and physical environmental

values. Inevitably, there will be

instances when reasoned and balanced

judgments will result in the location of

highways in wetlands and in the

destruction or modification of those

resources. In such cases, E.O. 11990

requires that ‘‘all practicable measures

to minimize harm to the wetland(s) be

incorporated into the project.’’ In

addition, section 404 of the Clean Water

Act, entitled Permits for Dredged or Fill

Material, requires that a permit be

obtained through the U. S. Army Corps

of Engineers for proposed discharges of

dredged or fill material into waters of

the United States, including wetlands

(33 CFR 320–330; (Regulatory

Program)). The Regulatory Program and

associated guidelines (40 CFR 230–233)

require, among other things, assessment

of the functions and values of wetlands

to be impacted by proposed discharges

of dredged or fill material as part of the

Public Interest Review Process.

Furthermore, permits issued by the

Corps of Engineers under authority of

the Regulatory Program may contain

conditions requiring mitigation to

compensate for impacts to wetlands that

result in a loss of wetlands functions

and values to society.

Another Federal statute applicable to

Federal-aid highway projects involving

impacts to wetlands is section 4(f) of the

Department of Transportation Act 1 (49

U.S.C. 303 and 23 U.S.C. 138). Section

4(f) provides protection for certain

environmentally significant, publicly

owned land areas including parks,

wildlife refuges, and waterfowl refuges.

When such lands must be used for a

federally-assisted highway project,

section 4(f) requires all possible

planning to minimize harm to the

protected area. If wetlands included in

these publicly owned 4(f) lands are used

for or impacted by a highway project,

current FHWA policy permits Federalaid highway funds to be used in the

acquisition, restoration, or creation of

replacement wetlands or improvement

of existing wetlands as mitigation.

Federal participation must be based on

a determination that such mitigation

measures are necessary to meet the

section 4(f) requirement that all possible

planning and measures be undertaken to

minimize harm. Federal assistance in

these instances often involves the use of

Federal-aid funds for activities outside

the right-of-way. The FHWA regulations

implementing section 4(f) are found at

23 CFR 771.135.

The FHWA has long recognized that

the importance of wetland preservation

is not limited to publicly owned

wetlands. Privately owned wetlands are

often an important component of local,

State, and Federal wetland management

programs. In addition, the requirements

of E.O. 11990 and section 404 of the

Clean Water Act apply to wetlands

regardless of ownership. Consequently,

the FHWA is required to find that

proposed Federal-aid projects include

all practicable measures to minimize

harm to privately owned wetlands

adversely impacted by the projects. The

current part 777, which this NPRM

proposes to amend, was promulgated to

address these requirements.

Discussion of Proposed Rulemaking

Congress included provisions in the

ISTEA granting the FHWA more

flexibility to authorize the use of

Federal-aid highway funds for

mitigation of impacts to wetlands

caused by federally-funded highway

projects. These provisions are codified

at 23 U.S.C. 103(i)(13) and 133(b)(11),

and pertain to projects eligible for

National Highway System (NHS) and

Surface Transportation Program (STP)

funds, respectively. Consequently, the

FHWA is proposing to amend its

regulations to authorize the expenditure

of Federal-aid highway funds for

mitigation of impacts to wetlands due to

federally-funded highway projects.

Mitigation activities may include, but

are not limited to, participation in

wetlands mitigation banks,

contributions to statewide and regional

efforts to conserve, restore, enhance and

create wetlands, and development of

statewide and regional wetlands

conservation and mitigation plans,

including any such banks, efforts, and

plans authorized pursuant to the Water

Resources Development Act of 1990

(Pub. L. 101–640, 104 Stat. 4604).

Contributions toward such efforts may

take place concurrent with or in

advance of project construction, but

contributions may occur in advance of

construction only if such mitigation

efforts are consistent with all applicable

requirements of Federal law and State

planning processes.

Most significantly, measures found by

a State highway agency and the FHWA

to be appropriate and necessary to

mitigate significant adverse impacts to

publicly or privately owned wetlands

would be eligible for Federal

participation where the impacts actually

result from an FHWA action.

Appropriate mitigation measures could

include the acquisition of additional

land or interests in land for the purpose

of mitigating adverse environmental

impacts to wetlands which actually

result from a Federal-aid highway

project.

The justification for the cost of

proposed mitigation measures should be

considered in the same context as any

other public expenditure; that is, the

proposed mitigation would have to

represent a reasonable public

expenditure when weighed against

other social, economic, and

environmental values, and the benefit

realized would have to be

commensurate with the proposed

expenditure. Decisions on mitigation

measures would be required to take into

account consideration of traffic needs,

safety, durability, and economy of

maintenance of the highway.

As previously mentioned, the

proposed amendments to 23 CFR 777

formally express the FHWA’s current
Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Proposed Rules 30555

policy and incorporate the eligibility

criteria set forth in the ISTEA with

respect to mitigation of impacts to both

publicly and privately owned wetlands

which actually result from Federal-aid

highway projects or an FHWA action.

The explanation of Federal participation

policy already included in § 777.5 is

expanded in the proposed regulation.

The proposed regulation would also

include additional guidance and

procedures to be followed in the

evaluation (§ 777.7) and mitigation of

impacts (§§ 777.9, 777.11).

The requirements of 23 CFR 777

apply to the mitigation of impacts to

wetlands which actually result from

federally-funded highway projects or

programs. The requirements and

policies stated therein do not apply to

highways or other projects funded by

other Federal, State, or private agencies

or entities.

Section-By-Section Analysis

The following section discusses both

the current provisions of 23 CFR 777

and the proposed changes to that

regulation contained in this NPRM.

Section 777.1

Section 777.1 would be amended to

expand the applicability of the

regulation to Federal-aid participation

in mitigation of all impacts to publicly

or privately owned wetlands which

actually result from Federal-aid

highway projects. The existing

regulation applies only to privately

owned wetlands.

Section 777.2

Section 777.2 would be a new section.

This section would contain definitions

for administrative, scientific, and

technical terms found in the amended

regulation.

Section 777.3

Section 777.3, Background, would be

amended to include discussion of the

ISTEA provisions which increased the

eligibility for Federal-aid participation

of efforts to mitigate the wetlands

impacts of highway projects funded

under the provisions of the National

Highway System (ISTEA § 1006 (23

U.S.C. 103)) and Surface Transportation

Program (ISTEA § 1007 (23 U.S.C. 133)).

As in the existing regulation, this

section would also cite the authority

and requirements of E.O. 11990 to

minimize wetlands losses and DOT

Order 5660.1A for implementing

wetland mitigation in FHWA programs.

Section 777.5

The FHWA wetlands policy and

practice, incorporating expanded

scientific knowledge and management

experience, have recognized that

wetland mitigation includes a wider

range of impacts, alternatives, and

activities than were known or

understood when the existing regulation

was promulgated in 1980. The science

and technology of wetland mitigation

have identified methods and needs for

effective wetland mitigation that were

not well known at the time the existing

regulation was issued. The amended

§ 777.5, Federal Participation Policy,

would expand applicability of the

regulation to include all impacts to

wetlands which actually result from

Federal-aid highway projects. The kinds

of activities needed to mitigate wetland

impacts include the general areas of

planning, design, right-of-way

acquisition, construction, and

establishment. Specific tasks and

activities which fall within these

general areas are identified and

included in the amended section as

eligible for Federal-aid participation.

Specific project criteria for Federal

participation in wetlands mitigation

activities are restated from the existing

regulation, and are consistent with 23

CFR 771, Environmental Impacts and

Related Procedures. The ‘‘test of

reasonableness’’ in the existing

regulation for the expenditure of public

funds for wetlands mitigation is

included in the NPRM. This test is

based on commensurate social,

economic, and environmental values

and benefits of wetlands mitigation

relative to costs of the mitigation and

benefits of the highway project or

program.

Section 777.7

Section 777.7, Evaluation of Impacts,

currently provides that the extent of

Federal participation in mitigation

measures should be directly related to

the importance and functional capacity

of the impacted wetlands and the extent

of wetland losses due to highway

impacts.

In both the existing regulation and

NPRM, Section 777.7 relates the cost of

Federal-aid participation in wetland

mitigation activities to the importance

of the wetlands impacted in the project

area. As amended, this section would

refer to scientific functional assessment

methodologies as the appropriate tool

for evaluating wetlands resources and

impacts, and would recognize the need

for interdisciplinary, interagency

coordination in evaluating wetlands

functions and values. General functions

of wetlands would be identified using

current scientific terminology and

concepts of wetlands analysis.

Section 777.9

Section 777.9, Mitigation of Impacts,

identifies general categories of actions,

taken to mitigate the impact of highway

projects on wetlands, which are eligible

for Federal-aid participation. Federal

participation is not, however, limited to

these activities, if other alternatives are

practicable, more ecologically desirable,

and represent a more effective

expenditure of public funds. The

existing § 777.9 states specific

requirements for the protection of

wetlands established as compensatory

mitigation. Two criteria for Federal-aid

participation in wetland mitigation are

that the mitigation must represent a

reasonable expenditure of public funds

and be in the public interest.

In § 777.9(a) of the NPRM, the

Environmental Protection Agency’s

Clean Water Act § 404(b)(1) guidelines

(40 CFR 230) are referenced to establish

the required sequence of alternatives

that must be considered for mitigation

of wetlands impacts. The 404(b)(1)

guidelines require that, where

practicable, avoidance and then

minimization of wetland impacts be

given first consideration. Under

§ 777.9(a)(2) of the NPRM, once

practicable avoidance and minimization

measures had been exhausted, the

regulation would establish the objective

of selecting ecologically desirable and

practicable compensatory mitigation

alternatives consistent with the

404(b)(1) guidelines. The requirement to

consider compensatory mitigation

within the highway right-of-way before

other, possibly more ecologically

desirable and reasonable alternatives

outside of the right-of-way, would be

removed by this NPRM. The existing

§ 777.9(b) contains the requirement that

the public interest in wetlands restored,

enhanced, or created as part of

mitigation for wetlands impacts due to

Federal-aid highway projects must be

sufficient to ensure that they will be

maintained as wetlands. This

requirement would be moved to

§ 777.11(b). Section 777.9(a)(3) would

be added, and would list examples of

the specific kinds of activities eligible

for Federal-aid participation when

existing wetlands are being enhanced or

restored.

A new § 777.9(b) would be added, and

would cite and explain the specific

mitigation alternatives listed in the

ISTEA eligible for Federal-aid

participation. The activities listed in the

ISTEA are related to wetlands banking,

planning, and resource inventory. These

activities are not exclusive, and other

activities listed in this regulation would

also be eligible. This paragraph would
30556 Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Proposed Rules

conform the regulation to ISTEA

provisions allowing the use of Federalaid highway funds to pay for costs of

wetland mitigation activities as needed

to mitigate impacts caused by Federalaid highway projects and programs.

Section 777.11

Like any other activity in which

Federal funds participate, the use of

those funds is governed by various

restrictions and conditions established

by Federal law and agency policy in

order to protect the public interest and

provide for sound program

management. A number of these

considerations are set forth in § 777.11,

Other Considerations, including

consultation requirements and

provisions for ownership and

management of acquired lands.

Depending upon the extent of mitigation

justified under the provisions of § 777.7,

§ 777.11(f) currently permits Federal

participation in the acquisition of

replacement land for privately owned

wetlands directly impacted by a

Federal-aid highway project. Such

privately owned lands thus acquired,

above and beyond wetlands purchased

for use as highway right-of-way, will

thereafter be retained in public

ownership and dedicated to future use

as wetlands. The replacement ratio for

wetlands directly affected by a Federalaid highway project should be

determined based on use of a scientific

methodology of wetland functional

assessment and best professional

judgment, in combination with

interagency coordination and

considerations of fiscal responsibility

and a desire to minimize adverse

impacts on the local tax base of

converting land from private to public

ownership.

In both the existing regulation and the

NPRM, § 777.11(a) emphasizes the need

for consultation with appropriate State

and Federal agencies concerning

impacts to wetlands on Federal-aid

highway projects. Section 777.11(b) of

the NPRM, furthermore, would require

that the public interest in all

compensatory wetland mitigation

projects, where wetlands have been

purchased, enhanced, restored, or

created with Federal-aid highway funds,

be sufficient to ensure that the wetlands

are permanently protected. This

includes both private and public

wetlands mitigation banks. The current

§ 777.11(b), which sets forth the

definition of wetlands to be used in

applying the regulation, would be

moved to § 777.2, Definitions. Sections

777.11 (c) through (g) of both the

existing regulation and the NPRM are

intended to state the conditions and

requirements for acquisition of interests

in lands for purposes of mitigating

wetlands impacts due to Federal-aid

highway projects. For its part,

§ 777.11(g) would emphasize that the

objective of wetlands mitigation in the

Federal-aid highway program is to

implement the policy of no-net-loss in

area or functional capacity. To that end,

this paragraph would declare eligible for

Federal-aid participation certain

activities intended to ensure the

viability of compensatory mitigation

wetlands during the period of

establishment. These would include,

but would not be limited to, such

activities as repair or adjustment of

water control structures, pest control,

irrigation, fencing modifications, and

replacement of plantings. The NPRM

would encourage mitigation bank

managers to determine the

establishment period in the mitigation

agreement itself prior to beginning any

mitigation activities.

The NPRM would allow Federal-aid

participation in the mitigation of

impacts to both publicly or privately

owned wetlands if such impacts

actually resulted from Federal-aid

highway projects. This proposal would

not, however, require States to

undertake mitigation efforts. Instead,

part 777 would continue to provide

policy and procedures for the evaluation

and mitigation of adverse environmental

impacts to wetlands which actually

result from new construction of Federalaid highway projects. Therefore, the

FHWA believes the current

§ 777.11(h)—with its explicit statement

that the program is not a mandatory

one—is no longer necessary and the

NPRM would delete this provision.

Finally, § 777.11(i) of the existing

regulation, which addresses mitigation

of ecological impacts in non-wetlands,

would be deleted. Since this NPRM

would apply solely to wetlands issues,

the FHWA has determined that the

current § 777.11(i) would not be

applicable to the policy set forth in this

proposal. The FHWA has also

determined that this paragraph is not

consistent with 23 U.S.C. 133(b)(1),

added by the ISTEA, which allows

States to obligate STP funds to mitigate

damage to wildlife, habitat, and

ecosystems caused by a transportation

project funded under title 23, United

States Code.

Rulemaking Analyses and Notices

All comments received before the

close of business on the comment

closing date indicated above will be

considered and will be available for

examination in the docket at the above

address. Comments received after the

comment closing date will be filed in

the docket and will be considered to the

extent practicable, but the FHWA may

issue a final rule at any time after the

close of the comment period. In

addition to late comments, the FHWA

will also continue to file in the docket

relevant information that becomes

available after the comment closing

date, and interested persons should

continue to examine the docket for new

material.

Executive Order 12866 (Regulatory

Planning and Review and DOT

Regulatory Policies and Procedures)

The FHWA has considered the impact

of this document and has determined

that it is neither a significant

rulemaking action within the meaning

of Executive Order 12866 nor a

significant rulemaking under the

regulatory policies and procedures of

the Department of Transportation. This

rulemaking would amend FHWA

regulations regarding mitigation of

impacts to privately owned wetlands,

which have become outdated because of

provisions in §§ 1006 and 1007 of the

ISTEA authorizing greater flexibility for

Federal participation in mitigating

impacts to wetlands. These amendments

have been codified at 23 U.S.C. 103 and

133.

This rulemaking would not cause any

significant changes to the amount of

funding available to the States under the

STP or NHS programs or add to the

process by which States receive

funding. The provisions of this

proposed rulemaking would not require

the additional expenditure of Federalaid or State highway funds. Thus, it is

anticipated that the economic impact of

this rulemaking would be minimal. In

addition, it would not create a serious

inconsistency with any other agency’s

action or materially alter the budgetary

impact of any entitlements, grants, user

fees, or loan programs; nor will

amendment of this regulation raise any

novel legal or policy issues. Therefore,

a full regulatory evaluation is not

required.

Regulatory Flexibility Act

In compliance with the Regulatory

Flexibility Act (5 U.S.C. 601–612), the

FHWA has evaluated the effects of this

rule on small entities and has

determined that amendment of the

FHWA regulations regarding mitigation

of impacts to wetlands would not have

a significant economic impact on a

substantial number of small entities.

Amending this regulation would not

affect the amount of funding available to

the States through the STP or NHS

programs, or the procedures used to
Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Proposed Rules 30557

select the States eligible to receive these

funds. Furthermore, States are not

included in the definition of ‘‘small

entity’’ set forth in 5 U.S.C. 601. For

these reasons, and for those set forth in

the analysis of E.O. 12866, the FHWA

hereby certifies that this action will not

have a significant economic impact on

a substantial number of small entities.

Executive Order 12612 (Federalism

Assessment)

This action has been analyzed in

accordance with the principles and

criteria contained in Executive Order

12612, and it has been determined that

this action does not raise sufficient

federalism implications to warrant the

preparation of a federalism assessment.

Amendment of this FHWA regulation

concerning the mitigation of impacts to

wetlands would not preempt any State

law or State regulation. No additional

costs or burdens would be imposed on

the States as a result of this action, and

the States’ ability to discharge

traditional State governmental functions

would not be affected by this

rulemaking.

Executive Order 12372

Catalog of Domestic Assistance

Program Number 20.205, Highway

Planning and Construction. The

regulations implementing Executive

Order 12372 regarding

intergovernmental consultation on

Federal programs and activities apply to

this program.

Paperwork Reduction Act

This action does not create a

collection of information requirement

for the purposes of the Paperwork

Reduction Act of 1995, 44 U.S.C. 3501–

3520.

National Environmental Policy Act

The FHWA has analyzed this

rulemaking for the purposes of the

National Environmental Policy Act of

1969 (NEPA) (42 U.S.C. 4321–4347).

This NPRM would not, in and of itself,

constitute a major Federal action

significantly affecting the quality of the

human environment. Instead, it would

increase the flexibility available to

States when deciding how to mitigate

impacts to wetlands caused by those

Federal-aid highway projects they

undertake. Such impacts and

appropriate mitigation measures would

be evaluated pursuant to NEPA on a

project-by-project basis by the States

and the FHWA. Accordingly,

promulgation of this NPRM would not

require the preparation of an

environmental impact statement.

Regulatory Identification Number

A regulation identification number

(RIN) is assigned to each regulatory

action listed in the Unified Agenda of

Federal Regulations. The Regulatory

Information Service Center publishes

the Unified Agenda in April and

October of each year. The RIN contained

in the heading of this document can be

used to cross reference this action with

the Unified Agenda.

List of Subjects in 23 CFR Part 777

Flood plains, Grant programs—

transportation, Highways and roads,

Wetlands.

Issued on: June 4, 1996.

Rodney E. Slater,

Federal Highway Administrator.

In consideration of the foregoing, the

FHWA proposes to revise part 777 of

title 23, Code of Federal Regulations, as

set forth below.

PART 777—MITIGATION OF IMPACTS

TO PRIVATELY OWNED WETLANDS

1. Part 777 is revised to read as

follows:

Sec.

777.1 Purpose.

777.2 Definitions.

777.3 Background.

777.5 Federal participation policy.

777.7 Evaluation of impacts.

777.9 Mitigation of impacts.

777.11 Other considerations.

Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C.

303; 23 U.S.C. 101(a), 103, 109(h), 133(b)(1),

133(b)(11), 133(d)(2), 138, 315; E.O. 11990;

DOT Order 5660.1A; 49 CFR 1.48(b).

§ 777.1 Purpose.

To provide policy and procedures for

the evaluation and mitigation of adverse

environmental impacts to wetlands

which actually result from new

construction of Federal-aid highway

projects.

§ 777.2 Definitions.

In addition to those contained in 23

U.S.C. 101(a), the following definitions

shall apply as used in this regulation:

Biogeochemical transformations.

Those changes in chemical compounds

and substances which naturally occur in

ecosystems. Examples are the carbon,

nitrogen, and phosphorus cycles in

nature, in which these elements are

incorporated from inorganic substances

into organic matter and recycled on a

continuing basis.

Compensatory mitigation. Activities

such as wetland restoration,

enhancement, or creation, performed to

replace or compensate for the loss of

wetlands functional capacity actually

the result of Federal-aid highway

construction projects. Compensatory

mitigation usually occurs in advance of

or concurrent with the impact to be

mitigated, but may occur after such

impacts in special circumstances.

Ecologically desirable. A state or

condition desired or wanted as the

result of a mitigation agreement that

provides additional wetland functional

capacity.

No-net-loss of wetlands. A wetland

resource conservation and management

principle, under which, over the long

term, loss of wetlands area or functional

capacity is offset by gains in wetland

area or functional capacity due to

wetland restoration, enhancement,

preservation, or creation.

On-site, in-kind mitigation.

Compensatory wetland mitigation

which replaces wetlands functional

capacity lost as a result of a highway

project on the same site or in the

immediate vicinity of the impacts.

Wetland or wetlands. The terms

wetland and wetlands have the same

meaning as the definition issued by the

U. S. Army Corps of Engineers (33 CFR

328.3(b)) and the U.S. Environmental

Protection Agency (40 CFR 230.3).

Wetlands banking and related

measures. Efforts, or contributions to

efforts, to restore, create, enhance, or, in

exceptional circumstances, preserve

wetlands functional capacity, usually

undertaken outside the area of potential

effect of proposed highway projects and

intended expressly to compensate for

unavoidable adverse wetlands impacts

caused by such projects, when

compensation could not be achieved or

would not be as environmentally

beneficial if located at individual

project sites.

Wetland enhancement. Increasing

wetland functional capacity by

modifying the site conditions of an

existing wetland. Examples include, but

are not limited to, alteration of

hydrologic regime, vegetation

management, fencing, pest control, and

fertilization.

Wetland establishment period. The

period required to establish wetland

functional capacity in a compensatory

wetland mitigation project sufficient to

compensate losses due to impacts of

Federal-aid highway projects. The

establishment period may vary

depending on the specific wetland type

being developed.

Wetland functional capacity. The

ability of a wetland to perform natural

functions, such as provide wildlife

habitat, store surface water, or perform

biogeochemical transformations, as

determined by a scientific assessment

methodology. Natural functions of

wetlands include those listed by the
30558 Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Proposed Rules

U.S. Army Corps of Engineers at 33 CFR

320.4(b)(2) (i) through (viii).

Wetland restoration. Reestablishment

of wetlands functional capacity at a site

at which such capacity formerly existed

but has since essentially been

eliminated.

Wetlands mitigation credit. A unit of

wetlands mitigation, defined either by

(1) area or (2) a measure of functional

capacity through application of a

scientific functional assessment

methodology.

§ 777.3 Background.

Executive Order 11990, Protection of

Wetlands, and DOT Order 5660.1A,

Preservation of the Nation’s Wetlands,

emphasize the important functions and

values inherent in the Nation’s

wetlands. Federal agencies are directed

to avoid new construction in wetlands

unless the head of the agency

determines that: (1) There is no

practicable alternative to such

construction, and (2) the proposed

action includes all practicable measures

to minimize harm to wetlands which

may result from such use. Sections 1006

and 1007 of the Intermodal Surface

Transportation Efficiency Act of 1991

(ISTEA) (Pub. L. 102–240, 105 Stat.

1914)(codified at §§ 103 and 133 of title

23, United States Code, respectively)

identify additional approaches for

mitigation and management of wetland

impacts which actually result from

highway projects as eligible for Federal

participation.

§ 777.5 Federal participation.

(a) Those measures which the Federal

Highway Administration (FHWA) and a

State Highway Agency (SHA) find

appropriate and necessary to mitigate

adverse environmental impacts to

wetlands are eligible for Federal

participation where the impacts actually

result from an FHWA action. The

justification for the cost of proposed

mitigation measures should be

considered in the same context as any

other public expenditure; that is, the

proposed mitigation represents a

reasonable public expenditure when

weighed against other social, economic,

and environmental values, and the

benefit realized is commensurate with

the proposed expenditure. Mitigation

measures shall give like consideration to

traffic needs, safety, durability, and

economy of maintenance of the

highway.

(b) It is FHWA policy to permit,

consistent with the limits set forth in

this part, the expenditure of Federal-aid

highway funds for activities required for

the planning, design, construction, and

establishment of wetlands mitigation

projects, and acquisition of land or

interests therein.

§ 777.7 Evaluation of impacts.

(a) The reasonableness of the public

expenditure should be directly related

to:

(1) The importance of the impacted

wetlands, as determined through a

scientific functional assessment

methodology and interagency

coordination with the appropriate

resource management agencies; and

(2) The highway impact on the

wetlands, as determined through a

scientific functional assessment

methodology.

(b) Evaluation of the importance of

the impacted wetlands should consider:

(1) The wetlands’ functional capacity;

(2) The relative importance of these

functions to the total wetland resource

of the area; and

(3) Other factors such as uniqueness,

esthetics, or cultural values.

(c) A determination of the highway

impact should focus on the short- and

long-term effects of the project on the

wetlands’ functional capacity.

§ 777.9 Mitigation of impacts.

(a) Actions eligible for Federal

funding. There are a number of actions

that can be taken to minimize the

impact of highway projects on wetlands.

The following actions qualify for

Federal-aid highway funding:

(1) Where practicable, avoidance or

minimization of wetland impacts

through realignment and special design

or construction features. In accordance

with the Environmental Protection

Agency’s Clean Water Act Section

404(b)(1) guidelines (40 CFR 230 et

seq.), avoidance and then minimization

must be given first consideration in the

sequence for mitigating wetlands

impacts.

(2) After practicable avoidance and

minimization measures have been

exhausted, other ecologically desirable

compensatory mitigation alternatives

consistent with the Section 404(b)(1)

guidelines, either inside or outside of

the right-of-way. This may include onsite mitigation, when that alternative is

determined to be ecologically desirable

and practicable, improvement of

existing degraded or historic wetlands

through restoration or enhancement, or

creation of new wetlands from nonwetland areas. Restoration or

enhancement of wetlands is generally

preferable to construction or creation of

new wetlands from non-wetland areas.

Under this approach, first consideration

should be given to the development of

compensatory mitigation on publicly

owned lands.

(3) Improvements to existing

wetlands. Such activities may include,

but are not limited to, construction of

water level control structures,

establishment of wetland vegetation,

recontouring of the site, installation or

removal of irrigation or water

distribution systems, pest control,

installation of fencing and other

measures to protect, enhance, or restore

the wetland character of the site.

(4) Wetlands mitigation banking and

related measures.

(b) Participation in wetlands

mitigation banks. If the development or

acquisition of wetland mitigation credits

in wetland mitigation banks, either on

or off-site, is determined to be the most

ecologically desirable and practicable

alternative for compensatory mitigation,

the first alternative in mitigation bank

use should be those established as

publicly owned resources. These can

be—

(1) Restored or enhanced wetlands on

public lands;

(2) Single purpose publicly owned

banks, established by and for the use of

a highway agency with Federal-aid

participation; or multipurpose publicly

owned banks, established with public,

non-Federal-aid funds, in which credits

may be purchased by highway agencies

using Federal-aid funds on a per-credit

basis; or

(3) Other forms of mitigation banks in

which credits are purchased by State

highway agencies to mitigate wetlands

impacts actually the result of Federalaid highway projects.

(c) Contributions to statewide and

regional efforts to conserve, restore,

enhance and create wetlands. Federalaid funds may participate in the

development of statewide and regional

wetlands conservation plans, including

any efforts and plans authorized

pursuant to the Water Resources

Development Act of 1990. Contributions

to these efforts may occur in advance of

project construction only if such efforts

are consistent with all applicable

requirements of Federal law and

regulations and State transportation

planning processes.

§ 777.11 Other considerations.

(a) The development of measures

proposed to mitigate wetlands impacts

should include consultation with

appropriate State and Federal agencies.

(b) Federal-aid funds may not

participate in the replacement of

wetlands absent sufficient assurances

that the area will be maintained as a

wetland.

(c) The acquisition of proprietary

interests in replacement wetlands as a

mitigation measure may be in fee simple
Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Proposed Rules 30559

or by easement, as appropriate. The

acquisition of ‘‘mitigation credits’’ in

wetland mitigation banks should be

accomplished through a legally

recognized instrument, such as

permanent easement or deed restriction,

which provides for protection and

permanent continuation of the wetland

nature of the mitigation.

(d) A State Highway Agency (SHA)

may acquire privately owned lands in

cooperation with another public agency

or third party. Such an arrangement may

accomplish greater benefits than would

otherwise be accomplished by the

individual agency acting alone.

(e) An SHA may either transfer the

title of lands acquired outside the rightof-way, without credit to Federal funds,

to an appropriate public agency (e.g.,

U.S. Fish and Wildlife Service or State

natural resource agency) or enter into an

agreement with such agency to manage

such lands. When such transfer occurs,

there shall be an explicit agreement that

the lands or interests therein transferred

shall remain in the grantee agency’s

ownership or control so long as the

lands continue to serve the purpose of

the original acquisition. In the event the

area transferred no longer serves the

purpose of the original acquisition, the

lands or interests therein transferred

shall revert to the SHA for proper

disposition.

(f) The reasonable costs of acquiring

lands or interests therein to provide

replacement lands with equivalent

wetlands functional capacity are eligible

for Federal participation.

(g) The objective in mitigating impacts

to all wetlands in the Federal-aid

highway program is to implement the

policy of no-net-loss in area or

functional capacity. Certain activities to

ensure the viability of compensatory

mitigation wetlands during the period of

establishment are eligible for Federalaid participation. These include, but are

not limited to, such activities as repair

or adjustment of water control

structures, pest control, irrigation,

fencing modifications, and replacement

of plantings. The establishment period

should be specifically determined by

the mitigation agreement among the

mitigation bank managers prior to

beginning any mitigation activities.

[FR Doc. 96–15297 Filed 6–14–96; 8:45 am]

BILLING CODE 4910–22–P

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 154

RIN 1076–AD41

Osage Roll; Certificate of Competency

AGENCY: Bureau of Indian Affairs,

Interior.

ACTION: Proposed rule.

SUMMARY: The Bureau of Indian Affairs

is proposing to amend its regulations on

the Osage competency roll as required

by the National Performance Review

regulatory reform effort.

DATES: Comments must be received on

or before August 16, 1996.

ADDRESSES: Mail or hand carry your

comments to Terrance L. Virden, Acting

Director, Office of Trust

Responsibilities, Bureau of Indian

Affairs, Department of the Interior, 1849

C Street, NW, MS 4513 MIB,

Washington, DC 20240. Comments may

be hand delivered from 9:00 a.m. to 4:00

p.m., Monday through Friday or sent by

facsimile to Facsimile No. (202) 219–

1065.

FOR FURTHER INFORMATION CONTACT:

Alice Harwood, Acting Chief, Division

of Real Estate Services, Office of Trust

Responsibilities, Bureau of Indian

Affairs, Department of the Interior, 1849

C Street, NW, MS 4513 MIB,

Washington, DC 20240, Telephone No.

(202) 208–7737.

SUPPLEMENTARY INFORMATION: The

proposed rule has been rewritten to

facilitate its use by the general public

and the individual Indians affected by

the rule. Sections that no longer apply

have been deleted and sections added

for clarification. No substantive

revisions are proposed in this rule.

The authority to issue rules and

regulations is vested in the Secretary of

the Interior by 5 U.S.C. 301 and sections

463 and 465 of the Revised Statutes, 25

U.S.C. 2 and 9, and delegated to the

Assistant Secretary-Indian Affairs by

209 DM 8.

Publication of the proposed rule by

the Department of the Interior

(Department) provides the public an

opportunity to participate in the

rulemaking process. Interested persons

may submit written comments regarding

the proposed rule to the location

identified in the ADDRESSES section of

this document.

This rule is not a major rule under

Executive Order 12866 and will not

require a review by the Office of

Management and Budget.

The Department has determined that

this rule:

• Does not have significant federalism

effects.

• Will not have a significant

economic impact on a substantial

number of small entities under the

Regulatory Flexibility Act (5 U.S.C. 601

et. seq.) because this rule applies only

to Osage Indian applicants.

• Does not have significant takings

implications under E.O. 12630.

• Does not have significant effects on

the economy, nor will it result in

increases in costs or prices for

consumers, individual industries,

Federal, State, or local governments,

agencies, or geographical regions.

• Does not have any adverse effects

on competition, employment,

investment, productivity, innovation, or

the export/import market.

• Is categorically excluded from the

National Environmental Policy Act of

1969 because it is of an administrative,

technical, and procedural nature.

Therefore, neither an environmental

assessment nor an environmental

impact statement is warranted.

• Does not impose any unfunded

mandates on any governmental or

private entity and is in compliance with

the provisions of the Unfunded

Mandates Act of 1995.

• Has been found to contain no

information collection requirements

under the Paperwork Reduction Act of

1995. By memorandum January 11,

1984, then Deputy Administrator for the

Office of Information and Regulatory

Affairs, Office of Management and

Budget (OMB), determined that

information collections related to Indian

land records and title documents did

not require OMB clearance.

Drafting Information

The primary author of this document

is Pearl Kennedy, Realty Specialist,

Division of Real Estate Services, Bureau

of Indian Affairs, Department of the

Interior, 1849 C Street, NW, MS 4522

MIB, Washington, DC, 20240.

List of Subjects in 25 CFR Part 154

Indians, Indians—lands.

For the reasons given in the preamble,

Part 154 of Title 25, Chapter I of the

Code of Federal Regulations is proposed

to be revised as set forth below.

PART 154—OSAGE ROLL,

CERTIFICATE OF COMPETENCY

Sec.

154.1 What are the definitions of the terms

used in this part?

154.2 Why do I need a certificate of

competency?

154.3 How do I apply for a certificate of

competency?

154.4 How do I qualify for a certificate of

competency?