Federal Register / Vol. 88, No. 214 / Tuesday, November 7, 2023 / Rules and Regulations 76671 

aggregate, or by the private sector of 

$100,000,000 (adjusted for inflation) or 

more in any one year. Though this rule 

will not result in such an expenditure, 

we do discuss the effects of this rule 

elsewhere in this preamble. 

F. Environment 

We have analyzed this rule under 

Department of Homeland Security 

Directive 023–01, Rev. 1, associated 

implementing instructions, and 

Environmental Planning COMDTINST 

5090.1 (series), which guide the Coast 

Guard in complying with the National 

Environmental Policy Act of 1969 (42 

U.S.C. 4321–4370f), and have 

determined that this action is one of a 

category of actions that do not 

individually or cumulatively have a 

significant effect on the human 

environment. This rule involves a safety 

zone lasting 84 total days that would 

prohibit entry within a portion of the 

Potomac River. It is categorically 

excluded from further review under 

paragraph L60(a) of Appendix A, Table 

1 of DHS Instruction Manual 023–01– 

001–01, Rev. 1. A Record of 

Environmental Consideration 

supporting this determination is 

available in the docket. For instructions 

on locating the docket, see the 

ADDRESSES section of this preamble. 

G. Protest Activities 

The Coast Guard respects the First 

Amendment rights of protesters. 

Protesters are asked to call or email the 

person listed in the FOR FURTHER

INFORMATION CONTACT section to 

coordinate protest activities so that your 

message can be received without 

jeopardizing the safety or security of 

people, places or vessels. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 46 U.S.C. 70034, 70051; 33 CFR 

1.05–1, 6.04–1, 6.04–6, and 160.5; 

Department of Homeland Security Delegation 

No. 00170.1, Revision No. 01.3. 

■ 2. Add § 165.T05–0145 to read as 

follows: 

§ 165.T05–0145 Safety Zone; Potomac 

River, Between Charles County, MD and 

King George County, VA. 

(a) Location. The following areas are 

a safety zone: These coordinates are 

based on datum NAD 83. 

(1) Area 1. All navigable waters of the 

Potomac River, encompassed by a line 

connecting the following points 

beginning at 38°21′49.10′′ N, 

076°59′32.46′′ W, thence south to 

38°21′40.04′′ N, 076°59′30.62′′ W, thence 

east to 38°21′43.52′′ N, 076°59′15.22′′ W, 

thence south along the shoreline to 

38°21′52.49′′ N, 076°58′59.70′′ W, and 

west back to the beginning point, 

located between Charles County, MD 

and King George County, VA. 

(2) Area 2. All navigable waters of the 

Potomac River within 1,500 feet of the 

explosives barge located in approximate 

position 38°21′21.47′′ N, 076°59′45.40′′ 

W. 

(b) Definitions. As used in this 

section— 

Captain of the Port (COTP) means the 

Commander, U.S. Coast Guard Sector 

Maryland-National Capital Region. 

Designated representative means any 

Coast Guard commissioned, warrant, or 

petty officer, including a Coast Guard 

coxswain, petty officer, or other officer 

operating a Coast Guard vessel and a 

Federal, State, and local officer 

designated by or assisting the Captain of 

the Port Maryland-National Capital 

Region (COTP) in the enforcement of the 

safety zone. The term also includes an 

employee or contractor of SkanskaCorman-McLean, Joint Venture for the 

sole purposes of designating and 

establishing safe transit corridors, to 

permit passage into or through the 

safety zone, or to notify vessels and 

individuals that they have entered the 

safety zone and are required to leave. 

Marine equipment means any vessel, 

barge or other equipment operated by 

Skanska-Corman-McLean, Joint Venture, 

or its subcontractors. 

(c) Regulations. (1) Under the general 

safety zone regulations in subpart C of 

this part, except for marine equipment, 

you may not enter the safety zone 

described in paragraph (a) of this 

section unless authorized by the COTP, 

Skanska-Corman-McLean, Joint Venture, 

or the COTP’s designated representative. 

If a vessel or person is notified by the 

COTP, Skanska-Corman-McLean, Joint 

Venture, or the COTP’s designated 

representative that they have entered 

the safety zone without permission, they 

are required to immediately leave in a 

safe manner following the directions 

given. 

(2) Mariners wishing to transit any of 

these safety zone areas must first contact 

the Skanska-Corman-McLean, Joint 

Venture designated representative, the 

on-site project manager by telephone 

number 785–953–1465 or on Marine 

Band Radio VHF–FM channels 13 and 

16 from the pusher tug Miss Stacy to 

request permission. If permission is 

granted, mariners must proceed at their 

own risk and strictly observe any and all 

instructions provided by the COTP, 

Skanska-Corman-McLean, Joint Venture, 

or designated representative to the 

mariner regarding the conditions of 

entry to and exit from any area of the 

safety zone. The COTP or the COTP’s 

representative can be contacted by 

telephone number 410–576–2693 or on 

Marine Band Radio VHF–FM channel 

16 (156.8 MHz). 

(3) The Coast Guard will publish a 

notice in the Fifth Coast Guard District 

Local Notice to Mariners and issue 

marine information broadcasts on VHF– 

FM marine band radio announcing 

specific enforcement dates and times. 

(d) Enforcement officials. The U.S. 

Coast Guard may be assisted in the 

patrol and enforcement of the safety 

zone by Federal, State, and local 

agencies. 

(e) Enforcement period. This section 

will be in effect, and subject to 

enforcement, from 12:01 a.m. on 

November 8, 2023, to 11:59 p.m. on 

January 30, 2023. 

Dated: November 1, 2023. 

David E. O’Connell, 

Captain, U.S. Coast Guard, Captain of the 

Port Maryland-National Capital Region. 

[FR Doc. 2023–24561 Filed 11–6–23; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF AGRICULTURE 

Forest Service 

36 CFR Part 261 

RIN 0596–AD52 

Prohibitions in Region 8, Southern 

Region 

AGENCY: Forest Service, USDA. 

ACTION: Final rule. 

SUMMARY: The Chattooga Wild and 

Scenic River is located in the Nantahala 

National Forest in North Carolina, the 

Sumter National Forest in South 

Carolina, and the Chattahoochee 

National Forest in Georgia. Forest 

Service regulations generally prohibit 

floating activities on the Chattooga Wild 

and Scenic River unless authorized by 

a permit. On January 31, 2012, the U.S. 

Department of Agriculture (USDA), 

Forest Service issued decisions to 

change some of the locations where, and 


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conditions under which, boating would 

be allowed. The 2012 decision included 

segments of the Chattooga Wild and 

Scenic River in North Carolina, which 

was not included in the original rule. 

Consequently, the Forest Service is 

amending the regulations to reflect the 

new management direction more 

accurately for the Chattooga Wild and 

Scenic River. 

DATES: This rule is effective December 7, 

2023. 

ADDRESSES: The rulemaking record for 

this final rule contains all the 

documents pertinent to this rulemaking. 

These documents are available for 

inspection and copying at the office of 

the Director, Wilderness and Wild and 

Scenic Rivers, USDA, Forest Service, 

4th Floor Central, Sidney R. Yates 

Federal Building, 1400 Independence 

Avenue SW, Washington, DC, from 8:30 

a.m. to 4 p.m., Monday through Friday, 

except holidays. Those wishing to 

inspect or copy these documents are 

encouraged to call Stephen Chesterton, 

Wild and Scenic Rivers Program 

Manager at 202–205–1398 beforehand to 

facilitate access to the building. 

FOR FURTHER INFORMATION CONTACT: John 

Campbell, Regional Wilderness and 

Wild & Scenic River Program Manager, 

Southern Region, 404–805–8110. 

Individuals who use telecommunication 

devices for the deaf (TDD) may call the 

Federal Information Relay Service 

(FIRS) at 800–877–8339 between 8 a.m. 

and 8 p.m., Eastern Standard Time, 

Monday through Friday. 

SUPPLEMENTARY INFORMATION: 

Background and Purpose for the 

Amendment 

In 1974, Congress designated the 57- 

mile Chattooga River (and its 15,432- 

acre corridor) as a component of the 

National Wild and Scenic River System. 

The uppermost portion of the Chattooga 

Wild and Scenic River is located in the 

Nantahala National Forest (NF) in North 

Carolina. The river then flows in a 

southerly, south-westerly direction to 

form the boundary between Georgia and 

South Carolina, and also the boundary 

between the Chattahoochee NF (in 

Georgia) and the Sumter NF (in South 

Carolina). 

In the initial 1976 river management 

plan for the Chattooga River, the U.S. 

Forest Service used zoning to manage 

the upper and lower segments of the 

river for different recreational 

opportunities. As part of the initial 

zoning effort, management direction 

prohibited floating on the upper 

segment above GA/SC Highway 28 

(which includes a section of the river in 

the Sumter NF in South Carolina, a 

section of the river in the Chattahoochee 

NF in Georgia, and all of the sections of 

the river in the Nantahala NF in North 

Carolina). 

Under the authority of 36 CFR 

261.70(a)(7), these prohibitions were 

codified at 36 CFR 261.77 (Federal 

Register, 43 FR 3706, January 27, 1978). 

In general terms, 36 CFR 261.77 

prohibits floating activities on the 

Chattooga Wild and Scenic River unless 

authorized by a permit. Consistent with 

the river management plan that is 

incorporated into the forest plans, the 

original terms and conditions of the 

permits issued pursuant to 36 CFR 

261.77 allowed floating on the 

Chattooga Wild and Scenic River but 

only on that portion of the river located 

downstream of GA/SC Highway 28. 

Therefore, due to the combination of 36 

CFR 261.77 and the terms of the selfregistration permit issued pursuant to 

that regulation, floating was only 

allowed on that section of the river 

downstream of GA/SC Highway 28 and 

prohibited upstream from that location. 

However, in 2012 that management 

direction changed, allowing for an 

increase in boating opportunities 

upstream of GA/SC Highway 28. To be 

consistent with this new management 

direction, this final rule amends 36 CFR 

261.77. 

On January 31, 2012, the 

Chattahoochee-Oconee, Nantahala and 

Sumter National Forests issued Decision 

Notices that amended their forest plans 

to incorporate new management 

direction for the Chattooga Wild and 

Scenic River. These changes were based 

upon an Environmental Assessment 

titled ‘‘Managing Recreation Uses in the 

Upper Segment of the Chattooga Wild 

and Scenic River Corridor.’’ Generally, 

these new decisions allow floating along 

certain segments of the Chattooga Wild 

and Scenic River above GA/SC Highway 

28, contingent upon certain restrictions. 

In the previous regulations at 36 CFR 

261.77, the sections of the river that lie 

within the Nantahala NF in North 

Carolina were not addressed. This area 

instead has been regulated by Forest 

Supervisor’s closure order pursuant to 

subpart B of 36 CFR part 261. To be 

consistent with the new management 

direction, this final rule amends 36 CFR 

261.77 to include those sections of the 

river that lie within the Nantahala NF. 

The original regulations at 36 CFR 

261.77(d) and (e) also only addressed 

the portion of the river within the 

boundaries of the Chattahoochee 

National Forest. This final rule changes 

this to be applicable to ‘‘any portion or 

segment of the Chattooga River within 

National Forest System land.’’ Through 

the public comment period, it was 

pointed out the original regulation made 

a distinction between States because the 

1971 Wild and Scenic River Report for 

the Chattooga River identified that the 

State of South Carolina has title to the 

riverbed and water from the mean highwater mark to the middle of the river. 

However, it has been firmly established 

in law and by the courts that the 

Secretary of Agriculture has the 

authority to regulate the public use of 

waters within the boundaries of a Wild 

and Scenic River. 

Another change in the proposed rule 

involved an effort to use more accurate 

and consistent terminology by replacing 

the term ‘‘special use permit’’ with 

‘‘special use authorization.’’ This 

however, created a certain amount of 

confusion with the public. In an effort 

to reduce the uncertainty as to how to 

interpret the use of the term ‘‘special 

use authorization,’’ this final rule 

maintains the original term of ‘‘special 

use permit’’ and clarifies that the other 

type of permit authorizing use is a ‘‘selfregistration floating permit.’’ 

Lastly, to better serve the public, this 

final rule amends 36 CFR 261.77 by 

eliminating references to specific 

locations where self-registration permits 

are made available to the public. 

Instead, the Forest Service will use 

other means to inform the public of the 

variety of places where it can go to 

obtain permits to float the Chattooga 

Wild and Scenic River. 

Public Comments on the Proposed Rule 

and Responses 

Overview 

On January 19, 2016, the Forest 

Service published a proposed rule in the 

Federal Register (Vol. 81, No. 11, pages 

2788–2791) seeking public comment in 

amending regulations at 36 CFR 261.77 

related to prohibitions in Region 8, 

Southern Region. The proposed rule 

was posted electronically on the Federal 

Register website at https://

www.federalregister.gov and on the local 

agency’s website at https://

www.fs.usda.gov/scnfs. The proposed 

rule would prohibit floating activities 

on the Chattooga Wild and Scenic River 

(WSR) unless authorized by permit. 

During the 60-day comment period, 

which ended on March 21, 2016, the 

Forest Service received 13 letters or 

electronic messages in response to the 

proposed rule, resulting in a total of 594 

comments. Of the 13 letter/email 

responses, 9 came from individuals, 1 

from a State Government agency, 1 from 

an environmental organization, 1 from a 

whitewater organization, and 1 from a 

homeowners association. Copies of the 

letters/emails received can be seen on 


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the website for the Francis Marion and 

Sumter National Forests website at 

https://www.fs.usda.gov/scnfs. A 

complete report of all the comments 

received and their responses are 

available by contacting the Forest 

Service (see ADDRESSES and FOR

FURTHER INFORMATION CONTACT). 

General Comments 

Comment. Some of the comments 

from respondents focused on whether 

the Forest Service should allow boating 

in the upper segment of the Chattooga 

Wild and Scenic River (Chattooga WSR). 

Some respondents stated that they are 

against boating under any circumstances 

in the Chattooga WSR, specifically in 

the Grimshawes area to Bull Pen Bridge. 

Response. Forest Plan Amendments 

signed in 2012 for the Nantahala, 

Chattahoochee-Oconee and Sumter 

National Forests permit boating under 

certain conditions in the upper segment 

of the Chattooga WSR from the 

confluence of Green Creek and the 

Chattooga WSR in North Carolina to a 

spot where boaters are required to take 

their boats out of the water near the 

confluence of Lick Log Creek and the 

Chattooga WSR in South Carolina. 

Boating is permitted from December 1st 

to April 30th during daylight hours 

(starting 30 minutes before sunrise and 

30 minutes after sunset) when flows are 

350 cubic feet per second or greater at 

the USGS water gage at Burrells Ford. 

The final rule is consistent with this 

management direction. 

Comment. One respondent was 

concerned with safety and the remote 

access for search and rescue teams to do 

their jobs. 

Response. The Forest Service 

analyzed this concern in the 2012 

environmental assessment, ‘‘Managing 

Recreation Uses in the Upper Segment 

of the Chattooga Wild and Scenic River 

Corridor’’ (2012 EA) associated with the 

Forest Plan Amendments for the 

Nantahala, Chattahoochee-Oconee and 

Sumter National Forests. The 2012 EA 

disclosed, based on likely use levels and 

information from other rivers of similar 

difficulty, accidents, injuries, and 

fatalities would likely be low and few 

would require search and rescue 

responses. 

Comment. Some respondents 

requested that a new section be added 

to the final rule that references the 2012 

EA and Decision Notices to ensure that 

there is no change to restrictions and to 

the scope of the decisions with the 

issuance of the final rule. 

Response. Additional rule language is 

not needed. The final rule is consistent 

with the Forest Plan Amendments 

signed in 2012 for the Nantahala, 

Chattahoochee-Oconee and Sumter 

National Forests. The purpose of this 

regulation is not to specify the terms of 

any permit but rather to establish the 

framework that boating on the Chattooga 

River is prohibited except where 

authorized under permit. It is then up 

to site-specific decisions, which will be 

made following the National 

Environmental Policy Act (NEPA) 

procedures and involving the public, to 

determine the actual terms of any 

permit that allows boating. The 

Regulatory Certifications, 

Environmental Impact section, clearly 

provides reference to the 2012 EA and 

the signed Decisions Notices that 

incorporate plan amendments. The 

forest plan amendments provide 

sufficient management direction for the 

three national forests. 

Comment. One respondent supported 

boating in the upper Chattooga without 

a permit. 

Response. Forest Plan Amendments 

signed in 2012 for the Nantahala, 

Chattahoochee-Oconee and Sumter 

National Forests require individual 

boaters to fill out a self-registration 

floating permit. 

Comment. Some respondents stated 

that the proposed rule revisions are 

inconsistent with the 2012 EA and 

Decision Notices and would invalidate 

court rulings that upheld Forest Service 

management of the Chattooga WSR. 

Further, the respondents contend that 

the proposed rule circumvents the 

agency decision-making process and 

judicial oversight under the 

Administrative Procedures Act (APA). 

Response. The final rule is consistent 

with the 2012 EA and Decision Notices 

and amendments to the Nantahala, 

Chattahoochee-Oconee and Sumter 

National Forests. The Forest Service has 

received favorable court rulings in the 

following court cases relative to the 

2012 EA: Civil Action No.: 8:09–2665– 

MGL, Amended Order and Opinion; 7/ 

30/2013 US Court of Appeals for the 

Fourth Circuit, No. 13–1960, 11/05/ 

2014; and Civil Action No.: 8:12–CV– 

3455–BHH, Opinion and Order. The US 

District Court, District of South 

Carolina, Greenville Division found 

‘‘. . . that the Forest Service’s 2012 Plan 

for Management of the Chattooga WSR 

complies with the federal law analyzed 

. . .’’. In 2016 the Nantahala, 

Chattahoochee-Oconee and Sumter 

National Forests signed site-specific 

decisions for specific boater put-in and 

take-out locations on the Chattooga 

WSR. This is consistent with the forest 

plan amendments signed in 2012. Some 

of these access sites were constructed in 

2016. In addition, biophysical 

monitoring relative to recreation 

impacts has been completed and 

specific monitoring as specified in the 

2012 plan amendments began in 2015. 

There has been and continues to be 

considerable public interest in Forest 

Service management activities on the 

Chattooga WSR. The Forest Service is 

required to comply with NEPA, the APA 

and other Federal laws during revisions 

or amendments to land management 

plans and during planning of sitespecific projects. 

Comment. Some respondents believe 

that the Forest Service should have 

considered all the actions and decisions 

as connected actions that should have 

been considered in a single review 

process. 

Response. All management actions 

and decisions have been informed by 

the Environmental Assessment (EA), 

‘‘Managing Recreation Uses in the 

Upper Segment of the Chattooga Wild 

and Scenic River Corridor.’’ The 

Regulatory Certifications, 

Environmental Impact section, in the 

final rule clearly provides reference to 

the 2012 EA and Decisions Notices that 

incorporate plan amendments into the 

Nantahala, Chattahoochee-Oconee and 

Sumter forest plans. The final rule is 

consistent with current management on 

the three national forests. 

Comment. Some respondents contend 

that the proposed rule changes would 

allow floating through private property 

unless explicitly restricted; and that the 

proposed rule asserts the 2012 Decisions 

allow floating unless explicitly 

restricted. 

Response. The final rule prohibits 

boating on the Chattooga WSR on 

National Forest System land abutting 

the river unless authorized by permit. 

All trails and access points to the 

Chattooga WSR are located on the 

Nantahala, Chattahoochee-Oconee and 

Sumter National Forests. All permitted 

boating activity occurs down-river from 

private land. Floating activities 

authorized by permit will take place 

entirely through National Forest System 

land abutting the Chattooga River. 

Existing trailhead locations enable 

recreationist to get to the Chattooga 

WSR using Forest Service trails and 

access points. Any changes to the 

existing terms of the permit would need 

to be approved through a separate NEPA 

analysis that would involve the public. 

Comment. The proposed rule 

contradicts the Courts understanding of 

the 2012 Plan by allowing floating use 

of the Chattooga River unless explicitly 

restricted. 

Response. The final rule is intended 

to update prohibitions in Region 8, 

Southern Region, to now be consistent 

with the Decision Notices (one for each 


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National Forest) signed on January 31, 

2012, which were based upon an 

Environmental Assessment (EA) titled 

‘‘Managing Recreation uses in the Upper 

Segment of the Chattooga Wild and 

Scenic River Corridor.’’ The final rule 

prohibits boating on the Chattooga WSR 

on National Forest System land abutting 

the river unless authorized by permit. 

The final rule does not ‘‘allow floating 

use of the Chattooga River unless 

explicitly restricted’’ as the commenter 

alleges—rather it says the opposite. The 

final rule establishes that boating on the 

Chattooga River is prohibited unless 

explicitly allowed under the terms of a 

permit. 

Comment. The proposed CFR revision 

expands Forest Service discretion to 

issue special use authorizations without 

limitations. 

Response. The self-registration 

floating permit for private boating has 

been in use for many decades on the 

lower segment of the Chattooga WSR. 

An amended version of this permit that 

includes the conditions for boating in 

the upper segment (above GA/SC 

Highway 28) has been in use since 2012. 

Based on public comments received 

during the comment period on the 

proposed rule, the final rule will replace 

the word ‘‘permit’’ with the term ‘‘selfregistration floating permit’’ when 

referring to private boaters wishing to 

boat on the Chattooga River. The 

conditions for boating are listed on the 

back of the self-registration floating 

permit and are consistent with forest 

plan direction for the Nantahala, 

Chattahoochee-Oconee and Sumter 

National Forests. 

While the proposed rule included the 

term ‘‘special use authorization,’’ which 

from 36 CFR 251.50, is the more 

appropriate term to use, the term 

‘‘special use authorization’’ is also a 

broader term that includes other types 

of ‘‘authorizations.’’ This has led to 

some confusion and consequently, the 

final rule will replace the term ‘‘special 

use authorization’’ with the original 

term ‘‘special use permit’’ when 

referring to commercial boating that is 

authorized on the lower segment of the 

Chattooga WSR. Commercial boating on 

the upper segment of the Chattooga 

WSR (above GA/SC Highway 28) is 

currently prohibited under the terms of 

the previous decisions. Any changes to 

the terms of these permits can only be 

made following the NEPA procedures 

and involving the public. 

Comment. Some respondents stated 

that the proposed rule is inconsistent 

with the 2012 Decision Notices and the 

existing 36 CFR 261.77 language by 

specifying that the prohibitions are 

applicable to ‘‘National Forest System 

land’’ instead of ‘‘any area of the . . . 

National Forest abutting the Chattooga 

River’’. 

Response. The term ‘‘National Forest’’ 

can be interpreted to include private 

lands within a proclaimed National 

Forest. However, the intent of this rule 

is not to regulate activities on privatelyowned lands. Therefore, it was 

determined that the applicable term to 

use in these regulations is ‘‘National 

Forest System land’’. 

Comment. Some respondents contend 

that the original CFR (261.77(d)) 

included a copy of a Chattooga-specific 

floater permit that listed the conditions 

of the permit. The proposed rule 

revision provides no permit conditions 

whatsoever. This leaves the proposed 

rule ‘‘undefined’’ and ‘‘limitless.’’ 

Without listing the conditions of the 

floater permit, it is impossible to know 

if the CFR revisions are consistent with 

the 2012 Decisions and forest plan 

amendments. 

Response. The Forest Service intends 

to issue a revised self-registration 

floating permit that is consistent with 

current management of the river as 

stated in the 2012 Decisions and plan 

amendments for the Nantahala, 

Chattahoochee-Oconee, and Sumter 

National Forests. The permit will list 

the conditions for private boating on the 

upper segment of the Chattooga River 

WSR on the back of the self-registration 

floating permit. The purpose of this 

regulation is not to specify the terms of 

any permit but rather to establish the 

framework that boating on the Chattooga 

River is prohibited except where 

authorized under permit. It is then up 

to site-specific decisions, which will be 

made following the NEPA procedures 

and involving the public, to determine 

the actual terms of any permit that 

allows boating. 

Comment. Some respondents 

maintain that the locations for obtaining 

a permit should be listed like they were 

in the original CFR (261.77(d)) as they 

have served a purpose of providing 

egress points to discrete locations on the 

River. The rule should include the new 

locations of where boaters can obtain a 

permit as this would direct boaters to 

the approved locations to initiate their 

trip. 

Response. The Department expanded 

the number of kiosk locations for 

obtaining information and selfregistration floating permits after the 

2012 Decisions were signed. The new 

kiosk locations are adjacent to trailheads 

close to the locations where boating is 

permitted for public convenience. It is 

not necessary to define those in the final 

rule and information on where and how 

to get permits along with boating 

requirements can be shared in a number 

of venues (Forest Service websites for 

example). 

Comment. The text of the proposed 

rule does not explicitly detail any of the 

twelve boating restrictions enumerated 

in the 2012 Decision Notices. 

Response. The final rule only 

addresses floating prohibitions on the 

Chattooga WSR. The self-registration 

floating permit lists the conditions for 

boating which are consistent with the 

2012 Decision Notices and forest plan 

amendments for the Nantahala, 

Chattahoochee-Oconee, and Sumter 

National Forests. This allows flexibility 

in future management as forest plans are 

revised or amended and new sitespecific decisions are made following 

NEPA procedures. The purpose of this 

regulation is not to specify the terms of 

any permit but rather to establish the 

framework that boating on the Chattooga 

River is prohibited except where 

authorized under permit. It is then up 

to site-specific decisions, which will be 

made following the NEPA procedures 

and involving the public, to determine 

the actual terms of any permit that 

allows boating. 

Comment. One respondent asked that 

the final rule clarify that closure orders 

may still be used to restrict or even 

prohibit boating to prevent degradation 

of the Chattooga’s Outstandingly 

Remarkable Values (ORVs). 

Response. The final rule does not 

limit Forest Service authority to issue 

closure orders as needed. 

Comment. One respondent contends 

that by not stipulating where permits 

may be obtained, that eventually permit 

kiosks will be removed entirely. 

Without permit boxes being present at 

trailheads, an impression will invariably 

develop that no permits are required. 

Response. The wording in the final 

rule is clear, that boating on the 

Chattooga WSR is prohibited without a 

permit and the permit specifies the 

conditions for floating the river. Selfregistration stations are not being 

eliminated but have increased with 

stations being located at key trailheads 

that provide access to the upper 

segment of the River where boating 

takes place. The Forest Service has 

maintained self-registration stations on 

the lower segment of the Chattooga WSR 

since designation and has even added 

three additional stations on the lower 

segment over the years. Along with the 

permit itself, the self-registration 

stations provide information on rules 

and regulations. 


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Federal Register / Vol. 88, No. 214 / Tuesday, November 7, 2023 / Rules and Regulations 76675 

Comments on Regulatory Certifications 

in the Proposed Rule 

Environmental Impact 

Comment. One respondent contends 

that the proposed rule can only be 

applied to that portion of the Chattooga 

WSR within the geographic scope of the 

Environmental Assessment (EA), 

‘‘Managing Recreation Uses in the 

Upper Segment of the Chattooga Wild 

and Scenic River Corridor’’ to which it 

tiers. 

Response. The 1976 and 1985 forest 

management plans prohibited boating 

above GA/SC Highway 28. The 2012 

forest plan amendments for the 

Nantahala, Chattahoochee-Oconee, and 

Sumter National Forests permitted 

boating under certain conditions on 

National Forest System land abutting 

the Chattooga River. These amendments 

did not change the status quo on any 

prohibition that already exists on 

National Forest System land above the 

confluence of the Chattooga River and 

Green Creek all the way to the upper 

limit of the Chattooga WSR Corridor. 

The 2012 Decisions simply made 

conditional exceptions to the longstanding prohibition on floating above 

GA/SC Highway 28 on National Forest 

System land abutting the Chattooga 

WSR. This was reiterated in the July 30, 

2013, Amended Order and Opinion 

from Judge Mary G. Lewis in Civil 

Action No.: 8:09_2665–MGL, page 4. 

No Takings Implications 

Comment. Some respondents 

maintain that a taking analysis was not 

completed for the proposed rule as 

required by Executive Order 12630. In 

addition, the respondents want language 

added to the final rule that floating is 

prohibited above the confluence of 

Green Creek, a section of the River that 

contains private property. 

Response. The final rule does not 

pose a risk of taking private property. 

The potential impacts to private lands 

were evaluated in the Environmental 

Assessment (EA), ‘‘Managing Recreation 

Uses in the Upper Segment of the 

Chattooga Wild and Scenic River 

Corridor.’’ The portions of the River that 

are permitted for boating are located on 

National Forest System land and do not 

include private property or public use of 

private land. Any changes to what might 

be allowed under permit can only be 

made following the NEPA procedures 

and involving the public. 

Federalism and Consultation and 

Coordination With Indian Tribal 

Governments 

Comment. Some respondents stated 

that some segments of the Chattooga 

River are owned by the State and are 

therefore beyond the scope of Forest 

Service statutory authority. 

Response. The final rule recognizes 

that the Secretary of Agriculture has the 

authority to regulate the public use of 

waters within the boundaries of a Wild 

and Scenic River. (See 16 U.S.C. 551, 36 

CFR 261.1(a)(4), 36 CFR 261.58(z), and 

Forest Service Manual 2354.01.) The 

Forest Service’s authority to manage 

recreational uses, including the 

regulation of floating, in the Chattooga 

Wild and Scenic River corridor was also 

challenged in American Whitewater, et 

al. v. Tidwell, et al. The U.S. District 

Court for the District of South Carolina 

upheld the decision of the Forest 

Service. The decision of the court was 

subsequently affirmed by the 4th Circuit 

Court of Appeals. 

Regulatory Certifications for the Final 

Rule 

Environmental Impact 

The final rule amends an existing 

regulation to make it consistent with a 

USDA, Forest Service decision on the 

management of the Chattooga Wild and 

Scenic River, which lies within the 

Chattahoochee, Nantahala and Sumter 

National Forests. The Decision Notices 

(one for each National Forest) were 

signed on January 31, 2012, which were 

based upon an Environmental 

Assessment (EA) titled ‘‘Managing 

Recreation Uses in the Upper Segment 

of the Chattooga Wild and Scenic River 

Corridor.’’ The social and 

environmental effects of this decision 

are documented in this EA. The final 

rule amendment is to update the Forest 

Service regulations to be consistent with 

this new management decision. 

Regulatory Impact 

This final rule has been reviewed 

under USDA procedures and Executive 

Order 12866 on regulatory planning and 

review. It has been determined that this 

is not a significant rule. This rule will 

not have an annual effect of $100 

million or more on the economy, nor 

will it adversely affect productivity, 

competition, jobs, the environment, 

public health and safety, or State or 

local governments. This rule will not 

interfere with an action taken or 

planned by another agency, nor will it 

raise new legal or policy issues. Finally, 

this rule will not alter the budgetary 

impact of entitlement, grant, user fee, or 

loan programs or the rights and 

obligations of beneficiaries of such 

programs. Accordingly, this rule is not 

subject to Office of Management and 

Budget (OMB) review under Executive 

Order 12866. 

Regulatory Flexibility Act 

This final rule has been considered in 

light of the Regulatory Flexibility Act (5 

U.S.C. 602 et seq.). The rule makes 

minor, technical changes to the Forest 

Service’s regulations. This rule will not 

have a significant economic impact on 

a substantial number of small entities as 

defined by the act because the rule will 

not impose recordkeeping requirements 

on them; it will not affect their 

competitive position in relation to large 

entities; and it will not affect their cash 

flow, liquidity, or ability to remain in 

the market. 

No Takings Implications 

This final rule has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

12630. It has been determined that the 

rule will not pose the risk of a taking of 

private property. 

Civil Justice Reform 

This final rule has been reviewed 

under Executive Order 12988 on civil 

justice reform. After adoption of this 

rule, (1) all State and local laws and 

regulations that conflict with this rule or 

that impede its full implementation will 

be preempted; (2) no retroactive effect 

will be given to this rule; and (3) it will 

not require administrative proceedings 

before parties may file suit in court 

challenging its provisions. 

Federalism and Consultation and 

Coordination With Indian Tribal 

Governments 

The Department has considered this 

final rule under the requirements of 

Executive Order 13132 on federalism, 

and has determined that the rule 

conforms with the federalism principles 

set out in this Executive order; will not 

impose any compliance costs on the 

States; and will not have substantial 

direct effects on the States, the 

relationship between the Federal 

Government and the States, or the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, the 

Department has determined that no 

further assessment of federalism 

implications is necessary. 

Moreover, this final rule does not 

have Tribal implications as defined by 

Executive Order 13175, Consultation 

and Coordination with Indian Tribal 

Governments. The Department 

recognized that one or more Indian 

Tribes may have direct interest in the 

management of Chattooga Wild & Scenic 

River. These Indian Tribes were 

consulted during the public comment 

period and no concerns with the 

proposed rule were expressed. 


khammond on DSKJM1Z7X2PROD with RULES
76676 Federal Register / Vol. 88, No. 214 / Tuesday, November 7, 2023 / Rules and Regulations 

1Proposed rule, Air Plan Approval and 

Disapproval; Colorado; Serious Attainment Plan 

Elements and Related Revisions for the 2008 8-Hour 

Ozone Standard for the Denver Metro/North Front 

Range Nonattainment Area, 88 FR 54975; the 

response to comments document is in the docket. 

Energy Effects 

This final rule has been reviewed 

under Executive Order 13211 of May 18, 

2001, Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use. It has been 

determined that this rule does not 

constitute a significant energy action as 

defined in the Executive order. 

Unfunded Mandates 

Pursuant to Title II of the Unfunded 

Mandates Reform Act of 1995 (2 U.S.C. 

1531–1538), which the President signed 

into law on March 22, 1995, the 

Department has assessed the effects of 

this final rule on State, local, and Tribal 

Governments and the private sector. 

This rule will not compel the 

expenditure of $100 million or more by 

any State, local, or Tribal Government 

or anyone in the private sector. 

Therefore, a statement under section 

202 of the act is not required. 

Controlling Paperwork Burdens on the 

Public 

This final rule does not contain any 

recordkeeping or reporting requirements 

or other information collection 

requirements as defined in 5 CFR part 

1320 that are not already required by 

law or not already approved for use. 

Accordingly, the review provisions of 

the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.) and its 

implementing regulations at 5 CFR part 

1320 do not apply. 

List of Subjects in 36 CFR Part 261 

Law enforcement, National forests, 

Prohibitions. 

Therefore, for the reasons set out in 

the preamble, part 261 of title 36 of the 

Code of Federal Regulations is amended 

as follows: 

PART 261–PROHIBITIONS 

■ 1. The authority citation for part 261 

continues to read as follows: 

Authority: 7 U.S.C. 1011(f); 16 U.S.C. 

460l–6d, 472, 551, 620(f), 1133(c)–(d)(1), 

1246(i). 

Subpart C–Prohibitions in Regions 

■ 2. Revise § 261.77 to read as follows: 

§ 261.77 Prohibitions in Region 8, 

Southern Region. 

(a) Using or occupying any area of 

National Forest System land abutting 

the Chattooga River for the purpose of 

entering or going upon the River in, on, 

or upon any floatable object or craft of 

every kind or description, unless 

authorized through a self-registration 

floating permit or through a special use 

permit. (The Chattooga River is located 

in the Nantahala National Forest in 

North Carolina, the Sumter National 

Forest in South Carolina, and the 

Chattahoochee National Forest in 

Georgia.) 

(b) Using or occupying within the 

scope of any commercial operation or 

business any area of National Forest 

System land abutting the Chattooga 

River for the purpose of entering or 

going upon the River in, on, or upon any 

floatable object or craft of every kind or 

description, unless authorized under a 

special use permit. 

(c) Violating or failing to comply with 

any of the terms or conditions of any 

self-registration floating permit or 

special use permit authorizing the 

occupancy and use specified in 

paragraph (a) or (b) of this section is 

prohibited. 

(d) Entering, going, riding, or floating 

upon any portion or segment of the 

Chattooga River within National Forest 

System land in, on, or upon any 

floatable object or craft of every kind or 

description, unless authorized through a 

self-registration floating permit or 

through a special use permit. 

(e) Entering, going, riding, or floating 

within the scope of any commercial 

operation or business upon any portion 

or segment of the Chattooga River 

within National Forest System land in, 

on, or upon any floatable object or craft 

of every kind or description, unless 

authorized under a special use permit. 

(f) Violating or failing to comply with 

any of the terms or conditions of any 

self-registration floating permit or 

special use permit authorizing the 

occupancy and use specified in 

paragraph (d) or (e) of this section is 

prohibited. 

Andrea Delgado Fink, 

Chief of Staff, Natural Resources and 

Environment. 

[FR Doc. 2023–24569 Filed 11–6–23; 8:45 am] 

BILLING CODE 3411–15–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2023–0272; FRL–11237– 

02–R8] 

Air Plan Approval and Disapproval; 

Colorado; Serious Attainment Plan 

Elements and Related Revisions for 

the 2008 8-Hour Ozone Standard for 

the Denver Metro/North Front Range 

Nonattainment Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving portions and 

disapproving portions of a state 

implementation plan (SIP) revision 

submitted by the State of Colorado to 

meet Clean Air Act (CAA) requirements 

for the 2008 8-hour ozone national 

ambient air quality standards (NAAQS) 

in the Denver Metro/North Front Range 

nonattainment area (DMNFR Area). 

Specifically, the EPA is approving the 

submitted enhanced monitoring SIP 

element as meeting applicable Serious 

area requirements for the 2008 8-hour 

ozone NAAQS, and is disapproving the 

contingency measure element of the SIP 

submittal. The EPA is taking this action 

pursuant to the CAA. 

DATES: This rule is effective December 7, 

2023. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–R08–OAR–2023–0272. All 

documents in the dockets are listed on 

the https://www.regulations.gov 

website. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available through https://

www.regulations.gov, or please contact 

the person identified in the FOR FURTHER

INFORMATION CONTACT section for 

additional availability information. 

FOR FURTHER INFORMATION CONTACT: 

Abby Fulton, Air and Radiation 

Division, EPA, Region 8, Mailcode 

8ARD–IO, 1595 Wynkoop Street, 

Denver, Colorado, 80202–1129, 

telephone number: (303) 312–6563, 

email address: fulton.abby@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us,’’ 

and ‘‘our’’ means the EPA. 

I. Background 

The background and rationale for this 

action are discussed in detail in our 

August 14, 2023 proposed rule and our 

Response to Comments document for 

this action.1 In the proposed rule, we 

proposed to approve the enhanced 

monitoring element and to disapprove 

the contingency measures element of 

the March 22, 2021 8-hour ozone 

attainment plan SIP submission from 

the State of Colorado for the DMNFR 


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