Prohibitions in Region 8, Southern Region, 76671-76676 [2023-24569]
Download as PDF
Federal Register / Vol. 88, No. 214 / Tuesday, November 7, 2023 / Rules and Regulations
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:
khammond on DSKJM1Z7X2PROD with RULES
■
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:
■
VerDate Sep<11>2014
15:47 Nov 06, 2023
Jkt 262001
§ 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
PO 00000
Frm 00047
Fmt 4700
Sfmt 4700
76671
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
Forest Service, USDA.
Final rule.
AGENCY:
ACTION:
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
SUMMARY:
E:\FR\FM\07NOR1.SGM
07NOR1
76672
Federal Register / Vol. 88, No. 214 / Tuesday, November 7, 2023 / Rules and Regulations
khammond on DSKJM1Z7X2PROD with RULES
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 57mile Chattooga River (and its 15,432acre 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
VerDate Sep<11>2014
15:47 Nov 06, 2023
Jkt 262001
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
PO 00000
Frm 00048
Fmt 4700
Sfmt 4700
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
E:\FR\FM\07NOR1.SGM
07NOR1
Federal Register / Vol. 88, No. 214 / Tuesday, November 7, 2023 / Rules and Regulations
khammond on DSKJM1Z7X2PROD with RULES
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,
VerDate Sep<11>2014
15:47 Nov 06, 2023
Jkt 262001
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
PO 00000
Frm 00049
Fmt 4700
Sfmt 4700
76673
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
E:\FR\FM\07NOR1.SGM
07NOR1
khammond on DSKJM1Z7X2PROD with RULES
76674
Federal Register / Vol. 88, No. 214 / Tuesday, November 7, 2023 / Rules and Regulations
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
VerDate Sep<11>2014
15:47 Nov 06, 2023
Jkt 262001
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
PO 00000
Frm 00050
Fmt 4700
Sfmt 4700
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.
E:\FR\FM\07NOR1.SGM
07NOR1
Federal Register / Vol. 88, No. 214 / Tuesday, November 7, 2023 / Rules and Regulations
Comments on Regulatory Certifications
in the Proposed Rule
khammond on DSKJM1Z7X2PROD with RULES
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
VerDate Sep<11>2014
15:47 Nov 06, 2023
Jkt 262001
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.
PO 00000
Frm 00051
Fmt 4700
Sfmt 4700
76675
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.
E:\FR\FM\07NOR1.SGM
07NOR1
76676
Federal Register / Vol. 88, No. 214 / Tuesday, November 7, 2023 / Rules and Regulations
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
Andrea Delgado Fink,
Chief of Staff, Natural Resources and
Environment.
[FR Doc. 2023–24569 Filed 11–6–23; 8:45 am]
1. The authority citation for part 261
continues to read as follows:
■
BILLING CODE 3411–15–P
Authority: 7 U.S.C. 1011(f); 16 U.S.C.
460l–6d, 472, 551, 620(f), 1133(c)–(d)(1),
1246(i).
ENVIRONMENTAL PROTECTION
AGENCY
Subpart C–Prohibitions in Regions
40 CFR Part 52
■
[EPA–R08–OAR–2023–0272; FRL–11237–
02–R8]
2. Revise § 261.77 to read as follows:
§ 261.77 Prohibitions in Region 8,
Southern Region.
khammond on DSKJM1Z7X2PROD with RULES
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.
(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
VerDate Sep<11>2014
15:47 Nov 06, 2023
Jkt 262001
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
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
PO 00000
Frm 00052
Fmt 4700
Sfmt 4700
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.
SUMMARY:
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
1 Proposed 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.
E:\FR\FM\07NOR1.SGM
07NOR1
Agencies
[Federal Register Volume 88, Number 214 (Tuesday, November 7, 2023)]
[Rules and Regulations]
[Pages 76671-76676]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-24569]
=======================================================================
-----------------------------------------------------------------------
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
[[Page 76672]]
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 self-registration 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 high-water 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 ``self-registration 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
[[Page 76673]]
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 site-specific 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
[[Page 76674]]
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 ``self-registration 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 privately-owned
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 self-registration 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 site-specific
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. Self-registration
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.
[[Page 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 long-standing
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.
[[Page 76676]]
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
0
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
0
2. Revise Sec. 261.77 to read as follows:
Sec. 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