[Federal Register Volume 62, Number 87 (Tuesday, May 6, 1997)]
[Proposed Rules]
[Pages 24624-24631]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-11433]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 7

RIN 1024-AC47


Cape Cod National Seashore, Off-road Vehicle Use

AGENCY: National Park Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The National Park Service (NPS) is proposing to revise the 
current regulation for off-road vehicle (ORV) use at Cape Cod National 
Seashore. Since the current plan (1981 ORV Management Plan, as amended 
in 1985) went into effect, new and unrelated measures have impacted the 
off-road vehicle corridor identified in the amended plan. These 
measures have resulted from the necessity to protect the federally 
listed threatened piping plover (Charadrius melodus). Because of a lack 
of flexibility in the Amended 1985 Plan, there has been an inability to 
adapt it to changing natural resource concerns.
    The piping plover became a federally listed threatened species in 
1986. In 1995 there were 83 pair of plovers nesting on the beaches of 
Cape Cod National Seashore. Thirty-three pair were within the eight and 
one-half miles of the ORV corridor. During the Fourth of July weekend 
(a period of peak use for ORV's) in 1994, eight-tenths of a mile of the 
ORV corridor was open. In 1995, only six-tenths of a mile was open. 
Because of the sand dune configuration on portions of the outer beach, 
1995, only six-tenths of a mile was open. Because of the sand dune 
configuration on portions of the outer beach, it is expected that the 
birds will continue to nest here. Thus, Cape Cod National Seashore 
hopes to develop a more flexible and effective regulation governing ORV 
use that will accommodate the NPS's responsibilities for managing 
natural resources.

DATES: Written comments will be accepted through June 5, 1997.

ADDRESSES: All comments should be addressed to: Superintendent, Cape 
Cod National Seashore, 99 Marconi Site Road, Wellfleet, MA 02667.

FOR FURTHER INFORMATION CONTACT:
Maria Burks, Superintendent, Cape Cod National Seashore, 99 Marconi 
Site Road, Wellfleet, MA 02667. Telephone 508-349-3785, est. 203.

SUPPLEMENTARY INFORMATION:

Background

    The mission of the NPS is to preserve and protect park resources 
while at the same time allowing for the enjoyment of these same 
resources in a manner that will leave them unimpaired for future 
generations. In September 1995, Cape Cod National Seashore convened a 
committee to negotiate a rulemaking (per the Federal Advisory 
Commission Act (FACA), 5 U.S.C. App. II conflicts, while also providing 
optimum protection for the piping plover (Charadrius melodus) in 
compliance with the Endangered Species Act of 1973, as amended, and 
other Seashore resources.
    The 1981 ORV Management Plan was challenged in U.S. District Court. 
However, the plan, as amended in 1985 (50 FR 31181), was upheld by the 
District Court in 1988 and the U.S. Court of Appeals in 1989. The 
District Court found that ORV use at Cape Cod National Seashore is not 
inappropriate; that the 1985 Plan minimized user conflicts; that the 
NPS had provided other recreational users adequate use of the Seashore; 
that the NPS had properly surveyed the sentiments of Seashore users; 
and that ORV use, as managed by the NPS, does not adversely affect the 
Seashore's values or its ecology.
    The 1985 regulation that established an 8.5 mile ORV corridor on 
the 40 miles of outer beach within the Seashore would have provided a 
satisfactory solution except that since 1988, the number of nesting 
pair of piping plover increased in this area over 800 percent. The ORV 
corridor is one of the prime nesting areas in the Seashore (in 1995, 33 
of 87 pair nested in the corridor). Primarily because of plovers in the 
corridor, the Seashore staff monitors every bird, nest and egg daily to 
determine if the ORV corridor should be open or closed. Symbolic 
fencing is put up as soon as a nest is established to identify the 
site. Wire enclosures are put up once the eggs have been laid and the 
ORV corridor is closed from the time the birds hatch until they fledge, 
approximately 28 days later. In the past few years, during the time 
when the Seashore receives the most visitors (Fourth of July), 
including people wishing to use the ORV corridor, only 0.4 to 0.6 miles 
of the corridor has been open.

Decision To Initiate Negotiated Rulemaking

    The need for a new rule and the use of the negotiated process was 
motivated by a number of events including legislative requirements, 
past litigation, management issues and inflexibility of the existing 
rule to deal with changing conditions such as the use of the corridor 
by the piping plover. The proposed regulation and the negotiated 
rulemaking process is an attempt to manage off-road vehicle (ORV) 
access on the outer beach in a way that accommodates the wishes of ORV 
enthusiasts and those choosing other forms of beach use, while 
minimizing impacts to natural and cultural resources and providing a 
degree of flexibility for managing the beach.

[[Page 24625]]

    Since the current plan (1981 ORV Management Plan, as amended in 
1985) went into effect, issues which had not been anticipated or 
addressed previously impacted the off-road vehicle corridor. These 
impacts were mainly in response to the importance of and the efforts to 
protect the piping plover. Thus, Cap Cod National Seashore hopes the 
new regulation will be more flexible and effective in governing ORV 
use, and will accommodate the NPS's responsibilities for managing 
natural resources and the recreational opportunities mandated in the 
Seashore's enabling legislation.
    The objective of negotiated rulemaking is to front load the 
controversy by getting all the interested parties involved in the 
decision making process from the beginning and acknowledging, if not 
resolving, all the issues and concerns. The process brings together at 
the negotiating table the organizations that are interested in the 
issues and charges them with developing a solution that is acceptable 
to everyone. This process is used by many Federal agencies, but this 
was the first time the NPS used negotiated rulemaking to develop a rule 
that will become part of the Code of Federal Regulations (CFR).
    A total of 23 agencies, organizations and interest groups with long 
term interests and involvement in the ORV issue were identified for the 
committee. They included State agencies, the 6 towns the Seashore is 
located within, ORV user groups, environmental groups, Federal 
agencies, and tourism and preservation groups.
    Specifically, the Committee consisted of members from the following 
organizations:

1. Association for the Preservation of Cape Cod
2. Cape Cod Chamber of Commerce
3. Cape Cod Commission
4. Cape Cod Salties
5. Citizens Concerned for Seacoast Management
6. Conservation Law Foundation
7. Eastham Forum
8. Highland Fish and Game Club
9. Massachusetts Audubon Society
10. Massachusetts Beach Buggy Association
11. Massachusetts Coastal Zone Management
12. Massachusetts Department of Environmental Protection
13. Massachusetts Division of Fisheries and Wildlife
14. Massachusetts Division of Marine Fisheries
15. National Park Service
16. Sierra Club
17. Town of Chatham
18. Town of Eastham
19. Town of Orleans
20. Town of Provincetown
21. Town of Truro
22. Town of Wellfleet
23. Town of U.S. Fish and Wildlife Service

    Each organization selected one representative to sit at the table. 
This person spoke and made commitments for that organization. Only 
representatives were allowed to participate in the formal discussions. 
All participants at the table had an equal voice.
    To avoid problems with unbalanced votes on one ``side,'' the 
negotiated rulemaking was done as a consensus process (every 
organization had veto authority). The task assigned the committee was 
to develop a new ORV regulation for Cape Cod National Seashore. If the 
committee was unable to reach consensus on a new regulation, then the 
NPS would develop a new rule using the ideas, information and 
creativity that had been gathered from the group. This process allowed 
every issue, idea and concern to be heard; all sides had a chance to 
hear what was most important and what most worried the other 
participants. The NPS agreed that if consensus was reached, the 
consensus regulation would be put forward as a proposed rule through 
the notice and comment rulemaking process with full public involvement.
    As required by FACA, all formal meetings were announced in the 
Federal Register and were open to the public. There was a public 
comment period at the end of each meeting. Letters could be submitted 
to be included in the official record if someone was unable to attend.
    The rulemaking sessions were conducted by contracted professional 
negotiators. The sessions were limited to three, two-day meetings. 
These meetings were spaced one month apart to allow the representatives 
sufficient time between meetings to report back to their respective 
organizations and to ensure that they were not committing to things the 
organizations could not support and, very importantly, to allow time 
for independent interactions and negotiations among committee members 
to occur.
    The committee was successful in reaching consensus on a proposed 
ORV regulation for Cape Cod National Seashore. It is the contents of 
that regulation that have been used to identify issues, alternatives 
and potential impacts for National Environmental Policy Act (NEPA) 
compliance. The proposed rule, accompanied by the environmental 
compliance documentation for that rule, is published here for public 
comment and review.

Issues of Concern Raised During the Negotiated Rulemaking

    During the course of negotiations, many ideas and issues were 
discussed, clarified and agreed to by the negotiating committee. The 
committee reached consensus on the following items and agreed that, 
although not appropriate for inclusion in the text of the regulation, 
these items were important points, ideas and agreements that should be 
included in the preamble where they would be part of the official 
record and identified as part of the committee consensus.
    Executive Order 11644, as amended by E.O. 11989, ``Use of Off-Road 
Vehicles on Public Lands'' directs the NPS to monitor the impacts of 
the ORV program on the resources of Cape Cod National Seashore. The 
committee supported this monitoring to identify the actual effects (or 
lack of effects) of ORV use at the Seashore. The intent of this 
research is not to develop ``new'' science on the effects of ORV use on 
the outer beaches, but to document specifically the current condition 
of the ORV corridor and to monitor the changes, if any, that occur over 
time. This data will be used to assess any changes that occur in the 
area where the ORV corridor is located and to try to identify the 
causes of these changes. The monitoring methods identified for use by 
the NPS will undergo peer review by the broader scientific community to 
identify weaknesses, including areas of monitoring not covered by the 
technical research design. In this context, ``peer'' includes 
scientists beyond the NPS scientific community. The monitoring will 
result in an annual report that NPS will also distribute for public and 
peer review and comment. While user fees gathered from ORV permits can 
be used to fund this research, this funding is limited.
    The committee recognized the importance and relative fragility of 
barrier spits, such as the sand spit at Hatches Harbor. The NPS agrees 
to work in consultation with the Massachusetts Office of Coastal Zone 
Management to address concerns specific to barrier spits. It is 
understood that these areas are more sensitive; that they are important 
to shorebirds and for protecting the natural resources located behind 
them; and that a closer look at these sensitive areas may result in a 
need to limit use or further control existing uses to protect 
resources.

[[Page 24626]]

    The Cape Cod National Seashore Advisory Commission will be 
requested to develop a new subcommittee to provide input and advice on 
the ORV program at Cape Cod National Seashore. The chair of the 
subcommittee will be a duly appointed member of the Commission. Other 
members of the subcommittee will represent the same general mix of 
interests represented in the negotiated rulemaking committee. This 
subcommittee will be assigned to review and analyze the annual 
monitoring report. Following its review and analysis, the subcommittee 
may refer any ORV program management issues it identifies to the 
commission for further deliberation, and the Commission may advise the 
Superintendent with respect to those issues.
    Night fishing is recognized as an important activity on the beaches 
of Cape Cod National Seashore. Vehicles displaying a permit approved by 
the Superintendent are able to access paved public parking lots, closed 
to the general public after hours, for nighttime fishing. An annual 
report submitted to the Secretary of the Interior will include an 
analysis of the annual operating costs of the ORV program.
    The negotiated rulemaking committee discussed a potential future 
need for commercial permittees who would bring people to various outer 
beach locations to fish, swim, picnic or enjoy other activities 
compatible with the establishment of the Seashore. This service could 
potentially reduce the number of people needing to drive their personal 
ORV's on the beach. The Seashore agreed to evaluate the impact if the 
number of commercial permits for the ORV corridor exceeded the number 
issued in 1981 (18). Operators of a passenger vehicle for hire, engaged 
in carrying passengers for a fee on a designated ORV route, will obtain 
a permit for commercial use issued by the Superintendent. One condition 
of this permit will be that the applicants must demonstrate they 
possess adequate knowledge of the Seashore's off-road system and points 
of interest, and they must comply with all applicable Federal, State 
and local regulations. The fee for this permit will be based on the 
costs incurred by the NPS to administer this program. Failure to comply 
with any provision of an ORV permit, any regulation listed in this 
section or Part 2 or Part 4 of this chapter, or the requirements of the 
commercial use permit may result in revocation of permits by the 
Superintendent.
    The committee recognized that, even given the greater flexibility 
of the consensus rule, there is a high probability portions of the 
beach may be closed at various times because of resource protection 
concerns. To provide access to some locations immediately adjacent to 
prime fishing areas, the committee identified ``limited parking areas'' 
for fishing access. These areas will be sand pull-offs located behind 
the primary dunes and be limited to two or three cars. NPS staff will 
identify areas for these to be located on the High Head access route 
and the Power Line route. Every attempt will be made to locate the 
parking spaces on previously impacted areas. They will be located to 
provide minimal visual impact and to minimize widening of the route or 
impact to vegetation. The spaces will be posted to identify that only 
people actively fishing may park.
    It is recognized that boat launching, within the ORV corridor, is 
permitted by properly approved and permitted vehicles. The definition 
of boat in this context does not include personal watercraft (e.g., jet 
skis style vessel). Additional information regarding the requirements 
pertaining to the use of personal watercraft and boats is contained 
within the Compendium of Designations, Closures (36 CFR 1.5 and 1.7) 
for Cape Cod National Seashore and 36 CFR part 3.
    Self-contained vehicles will continue to be managed as they have in 
the past. A self-contained vehicle is a vehicle with a water or 
chemical toilet and a permanently installed holding tank able to hold a 
minimum of three days of waste material. It is recognized that self-
contained vehicles need to be located within close proximity to a beach 
access route. They also need to be located on a wider section of beach 
away from vegetation. The access route for self-contained vehicles must 
be fairly flat and stable. These factors will limit the possible 
locations for this activity. The committee agreed that, while the 
location of the self-contained parking area may need to shift somewhat, 
neither the scale nor the general level of impact would increase.
    All the organizations represented by the committee agreed that the 
protection of the piping plover is important. There was consensus of 
the need to close beaches to ORV's when chicks have hatched and before 
they have fledged.
    The committee acknowledged Executive Order 12962, Recreational 
Fisheries, which, in part, acknowledges the importance of participating 
in recreational fishing, and protecting and conserving fish stock.
    The NPS recognizes the importance of citizen participation in the 
ORV program. In accordance with NPS policy, a program will be developed 
to make use of the unique skills and knowledge of individuals within 
the ORV community. This program will formalize and recognize the 
preservation efforts, education, beach clean up and other activities 
many of these individuals already perform.

Section-by-Section Analysis

    The two main reasons for use of off-road vehicles on the outer 
beach are to get to prime fishing areas that are located a considerable 
distance from parking lots or other access points, and to participate 
in family related activities including swimming, picnicking and other 
activities compatible with the establishment of the Seashore. The 
proposed rule will permit flexibility, while protecting resources and 
restricting off-road vehicle use to a limited portion of the beaches.

Section 7.67(a) Off-road Operation of Motor Vehicles

    The proposed rule will permit flexibility, while protecting 
resources and restricting off-road vehicle use to a limited portion of 
the beach. The major changes in the rule include the following.

Section 7.67(a)(1) Closure

    This new paragraph clarifies that the Superintendent may close any 
access or route when necessary to protect resources.

Section 7.67(a)(2) Route Designations

    The new rule will close a section of the existing off-road vehicle 
corridor from April 1 through July 20. This section is prime plover 
nesting area and consequently is usually closed. The total closure of 
this area will also eliminate the need, by Seashore staff, to watch 
daily the nests, eggs and unfledged chicks of piping plover.
    The rule will open a section of the outer beach which is currently 
closed to ORV's to allow use for night fishing of prime fishing areas.
    The rule will authorize the use of an alternative access route 
(route through the inner dunes to the outer beach), which previously 
could only be open during emergencies, to be opened by the 
superintendent for a variety of reasons. Often one pair of plover, by 
nesting at the end of an access route, will close off large portions of 
the corridor.
    The new rule will establish small, undeveloped parking areas, 
located behind the primary dunes, for people who want to fish. These 
parking areas would be used when the off-road corridor was closed to 
vehicles. The location of these lots would improve the

[[Page 24627]]

transportation of fishing equipment to and from the outer beach to a 
vehicle.

Section 7.67(a)(3) Travel Restriction

    This new paragraph will allow boat launching in designated open 
route corridors.

Section 7.67(a)(4) Equipment Requirements

    This paragraph is unchanged.

Section 7.67(a)(5) Oversand Permit

    During the off-season (November 16 through April 14), a person with 
an oversand permit would be able to access a limited section of the ORV 
corridor for fishing, as well as for the recovery of personal property, 
flotsam and jetsam, and for caretaker functions at dune cottages. This 
can be prime fishing season, and would provide access to isolated 
locations.

Section 7.67(a)(6) Commercial Vehicle Permits

    This new paragraph is broken out from Sec. 7.67(a)(5) Oversand 
permits for clarity.

Section 7.67(a)(7) Camping

    The new rule will eliminate language which suggests that the only 
beach camping that is allowed is in a self-contained ORV, and will 
allow the park to consider potential future camping on the beach, if 
authorized by the Superintendent through another approved permitting 
process.

Section 7.67(a)(8) Program Management and Review

    This new paragraph strengthens the NPS commitment to monitoring the 
use and condition of the oversand routes for the purpose of reviewing 
the effects on natural, cultural and aesthetic resources by vehicles in 
designated corridors, but recognizes that funding is a limiting factor 
in this research. The rule also commits the NPS to producing an annual 
report. Cape Cod National Seashore is one of the approved Inventory and 
Monitoring parks, and the need for this information has already been 
integrated into this program.

Section 7.67(a)(9) Penalties

    This new paragraph clarifies the penalty for a violation of the 
section.

Section 7.67(a)(10) Information Collection

    This paragraph is unchanged.

Section-by-Section Comparison

Section 7.67 Cape Cod National Seashore

    (a) Off-road operation of motor vehicles. (1) Route designations.
    Existing: (i) From April 15-November 15 on the outer beach from the 
opening to Hatches Harbor, around Race Point to High Head, and 
including the beach access routes at Race Point and High Head and the 
bypass route at Race Point Light.
    (iv) Except as described in paragraph (a)(1)(ii), from November 16 
through April 14 oversand travel is restricted to uses and routes 
approved in writing or by permit by the Superintendent on a single-trip 
basis.
    New: (2) Route designations. (i) From April 15 through November 15 
on the outer beach between the opening to Hatches Harbor, around Race 
Point to High Head including the North and South beach access routes at 
Race Point, the bypass route at Race Point Light, the access route at 
High Head, and for night fishing (hours as posted) from Coast Guard 
Beach in Truro to Longnook Beach. The off-road vehicle corridor from 
Exit 8 to High Head will be closed from April 1 through July 20. The 
Superintendent may open the Power Line Route access and fishing parking 
area when high tides, beach erosion, shorebird closures, or other 
circumstances exist that warrant public use of this access way.
    (iv) From January 1 through December 31 the access road and parking 
area for fishing only at High Head.
    (v) From July 1 through August 31 on the outer beach from High Head 
to Head of the Meadow.
    (3) Travel restrictions. (vii)(a)
    Existing: No such section.
    New: (vii) The following is permitted: (a) Boat trailering and 
launching in designated open route corridors.
    (5) Oversand permits.
    Existing: (E) during the period from November 16 through April 14 
the Superintendent may issue a limited-access pass to the holder of an 
oversand permit.
    (1) Travel under this pass is limited to that portion of the beach 
between High Head and Hatches Harbor only.
    (2) Vehicle travel under this pass is prohibited within two hours 
either side of high tide.
    (3) The pass will specify the times and routes of travel 
authorized.
    (4) The pass may be issued for the following purposes:
    (i) Access to town shellfish beds at Hatches Harbor;
    (ii) Recovery of personal property, flotsam and jetsam from the 
beach; or
    (iii) Caretaker functions at a dune cottage.
    New: (i)(A) An oversand permit is a type of Special Use Permit that 
is issued under the authority found at 36 CFR 1.6 and 4.10. The 
following information must be provided for each vehicle for which a 
permit is requested: Name and address of registered owner; drivers 
license number and State of issue; vehicle license plate number and 
State of issue; vehicle description, including year, make, model and 
color; make, model and size of tires; and the equipment on board as 
required by section 4 of this rule.
    (ii) Off-season oversand use. During the period from November 16 
through April 14, an oversand route user will possess an oversand 
permit and a limited access pass that requires the viewing of an 
educational program that outlines the special aspects of off-season 
oversand use. The limited access pass will be issued to any vehicle 
operator possessing a valid permit issued under section 5(i)(A) of this 
rule.
    (A) Vehicle travel during this season is limited to that portion of 
the beach between High Head and Hatches Harbor.
    (B) Vehicle travel during this season is prohibited within two 
hours either side of high tide.
    (C) The limited access pass may be issued for the following 
purposes
    (1) Access to town shellfish beds at Hatches Harbor;
    (2) Recovery of personal property, flotsam and jetsam from the 
beach;
    (3) Caretaker functions at a dune cottage; or
    (4) Fishing
    The limited access pass will be annotated to specify the purpose(s) 
for which the permit is being issued.
    (ii) Commercial vehicle permits
    Existing: (ii) Commercial vehicle permits. The operation of a 
passenger vehicle for hire on a designated oversand route is permitted 
only pursuant to a commercial vehicle permit issued by the 
Superintendent, subject to all applicable regulations in this section 
and all applicable Federal, State and local regulations concerning 
vehicles for hire.
    (A) Commercial vehicle permits are limited to 18, which is the 
number issued in the 1981 permit year.
    (B) Each operator of a passenger vehicle for hire who is engaged in 
carrying passengers for a fee on a designated oversand route will 
obtain a guide permit issued by the Superintendent. Such permit may 
only be issued upon a showing that the applicant possesses adequate 
knowledge of the Seashore's off-road system and points of interest and 
has complied with

[[Page 24628]]

all applicable Federal, State and local regulations.
    (C) Annual permit fees.
    (1) Commercial Vehicle Permit: $10 for each passenger-carrying seat 
in the vehicle to be operated.
    (2) Guide Permit: $15 for the calendar year or any part thereof.
    (iii) Failure to comply with any provision of an oversand permit or 
with any regulation listed in this section or part 2 or part 4 of this 
chapter is prohibited and is grounds for immediate revocation of an 
oversand permit.
    New: (6) Commercial vehicle permits. (i) The operation of a 
passenger vehicle for hire on a designated oversand route is permitted 
only pursuant to a permit issued by the Superintendent, subject to all 
applicable regulations in this section and all applicable Federal, 
State and local regulations concerning vehicles for hire. A commercial 
vehicle permit is issued under the authority found at 36 CFR 1.6, 4.10 
and 5.6. The following information must be provided by the applicant 
for each vehicle that will use a designated oversand route: Name and 
address of tour company and name of company owner; make and model of 
vehicle; vehicle license plate number and State of issue; and number of 
passenger seats.
    (7) Camping
    Existing: (5) Camping. (v) Tents and camping trailers are 
prohibited on the beach.
    (vi) Beach camping in any manner other than authorized by this 
section is prohibited.
    New: (7) Camping. The operator of an oversand vehicle wishing to 
camp on the beach must possess a valid permit issued under section 
(5)(i)(A) of this rule and under the authority found at 36 CFR 2.10. In 
addition, the operator must provide the following information for each 
vehicle for which a permit is requested: Name and address of registered 
owner; drivers license number and State of issue; vehicle license plate 
number and State of issue; vehicle description, including year, make, 
model, color, pickup or motor home; and the equipment on board as 
required by section 4 of this rule.
    (v) Camping on the beach in any manner other than authorized in the 
provisions of this section or as authorized by the Superintendent 
through another approved permitting process, is prohibited.
    (vi) deleted.
    (8) Program management and review.
    Existing: No such section.
    New: (8) Program management and review. In implementing this rule, 
the Superintendent will:
    (i) monitor the use and condition of the oversand routes for the 
purpose of reviewing the effects on natural, cultural and aesthetic 
resources of vehicles in designated corridors. The Superintendent may 
amend, rescind, limit the use of, or close designated routes for the 
purpose of resource protection if monitoring results find resource 
degradation or visitor impact is occurring, consistent with 36 CFR 1.5 
and 1.7, Executive Order 11644 Sec. 3 and Executive Order 11989 Sec. 8;
    (ii) consult with the Cape Code National Seashore Advisory 
Commission regarding management of the off-road vehicle program;
    (iii) pursuant to 16 U.S.C. 18g-j, recognize and utilize volunteers 
to provide education, inventorying, monitoring, field support, and 
other activities involving off-road vehicle use;
    (iv) provide an annual report to the Secretary and the public of 
the results of the monitoring conducted under subparagraph (7)(i) 
subject to the availability of funding; and
    (v) issue no more than a combined total of 3400 oversand permits 
annually, including self-contained permits.
    (9) Penalties.
    Existing: No such section.
    New: (9) Penalties. Failure to comply with any provision of an 
oversand permit, or with any regulation listed in this section or part 
2 or part 4 of this chapter, is prohibited and may result in revocation 
of an oversand permit by the Superintendent.

    Note: Section (6) Information Collection of existing rule is now 
section (10) of new rule, same language.

Public Participation

    It is the policy of the Department of the Interior, whenever 
practicable, to afford the public an opportunity to participate in the 
rulemaking process. Accordingly, interested persons may submit written 
comments regarding this proposed rule to the address noted at the 
beginning of this rulemaking. The NPS will review all comments and 
consider making changes to the rule based upon an analysis of the 
comments.

Drafting Information

    A formal negotiated rulemaking was utilized in the development of 
this proposed rule in accordance with the Federal Advisory Commission 
Act (FACA) and the Negotiated Rulemaking Act (5 U.S.C. 561).

Paperwork Reduction Act

    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.), the information collection requirements contained in this 
proposed rule have been approved by the Office of Management and Budget 
and assigned clearance number 1024-0026. This information is being 
collected to solicit information that is necessary for the 
Superintendent to issue off-road vehicle permits. The public is being 
asked to provide this information in order for the park to track the 
number of permits issued and to whom they are issued. Should the park 
need to contact the permittees, a mechanism will be in place to allow 
them to do so. The information will be used to grant administrative 
benefits. The obligation to respond is required to obtain a benefit.
    Specifically, the NPS needs the following information to issue a 
permit:
    (1) Name and address of registered owner.
    (2) Drivers license number and State of issue.
    (3) Vehicle license plate number and State.
    (4) Vehicle description, including year, make, model and color.
    (5) Make, model and size of tires.
    (6) List of equipment on board as required in section 4 of the 
rule.
    The public reporting burden for the collection of information in 
this instance is estimated to be 0.28 hours per response, including the 
time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed and completing and reviewing 
the collection of information. Send comments regarding this burden 
estimate or any other aspect of this collection of information, 
including suggestions for reducing the burden of these information 
collection requests, to Information Collection Officer, National Park 
Service, 800 North Capitol Street, Washington, DC 20001; and the Office 
of Management and Budget, Office of Information and Regulatory Affairs, 
Attention: Desk Officer for Department of the Interior (1024-0125), 
Washington, DC 20503.

Compliance With Other Laws

    This rule is subject to Office of Management and Budget review 
under Executive Order 12866. The Department of the Interior determined 
that this document will not have a significant economic effect on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et. seq.). The economic effects of this rulemaking 
are local in nature and negligible in scope.
    The NPS has determined and certifies pursuant to the Unfunded 
Mandates Reform Act (2 U.S.C. 152 et seq.), that

[[Page 24629]]

this rule will not impose a cost of $100 million or more in any given 
year on local, State or tribal governments or private entities.
    This regulation is subject to National Environmental Policy Act 
(NEPA) compliance and a draft Environmental Assessment (EA) has been 
completed. This document is available for public review and can be 
obtained by contacting the park at the address noted at the beginning 
of this rulemaking.

List of Subjects in 36 CFR Part 7

    National parks, Reporting and recordkeeping requirements.

    In consideration of the foregoing, the NPS proposes to amend 36 CFR 
Ch. I, as follows:

PART 7--SPECIAL REGULATIONS, AREAS OF THE NATIONAL PARK SYSTEM

    1. The authority citation for Part 7 continues to read as follows:

    Authority: 16 U.S.C. 1, 3, 9a, 460(q), 462(k), Sec. 7.96 also 
issue under Code 8-137 (1981) and D.C. Code 40-721 (1981).

    2. Section 7.67(a) is proposed to be revised to read as follows:


Sec. 7.67  Cape Cod National Seashore.

    (a) Off-road operation of motor vehicles.--(1) Closure. The 
Superintendent may close any access or oversand route at any time for 
weather, impassable conditions due to changing beach conditions or to 
protect resources.
    (2) Route designations. The operation of motor vehicles, other than 
on established roads and parking areas, is limited to the following 
oversand routes during the prescribed dates:
    (i) From April 15 through November 15, on the outer beach between 
the opening to Hatches Harbor, around Race Point to High Head, 
including the North and South Beach access routes at Race Point, the 
bypass route at Race Point Light, the access route at High Head, and 
for night fishing (hours as posted), from Coast Guard Beach in Truro to 
Longnook Beach. The off-road vehicle corridor from Exit 8 to High Head 
will be closed from April 1 through July 20. The Superintendent may 
open the Power Line Route access and fishing parking area when high 
tides, beach erosion, shorebird closures of other circumstances exist 
that warrant public use of this access way.
    (ii) From January 1 through December 31, on controlled access 
routes for residents or caretakers of individual dune cottages in the 
Province Lands.
    (iii) From April 15 through November 15, on commercial dune taxi 
routes following portions of the outer beach and cottage access routes 
as described in the appropriate permit.
    (iv) From January 1 through December 31, the access road and 
parking area at High Head for fishing only.
    (v) From July 1 through August 31, on the outer beach from High 
Head to Head of the Meadow.
    (3) Travel restrictions. The operation of a motor vehicle on 
oversand routes is subject to all applicable provisions of this 
chapter, including part 4 as well as the specific provisions of this 
section.
    (i) Route limits. (A) On the beach, a vehicle operator will drive 
in a corridor extending from a point 10 feet seaward of the spring high 
tide drift line to the berm crest. An operator may drive below the berm 
crest only to pass a temporary cut in the beach, but will regain the 
crest immediately following the cut. Delineator posts mark the landward 
side of the corridor in critical areas.
    (B) On an inland oversand route, a vehicle operator will drive only 
in a lane designated by pairs of delineator posts showing the sides of 
the route.
    (ii) An oversand route is closed at any time that tides, nesting 
birds or surface configuration prevent vehicle travel within the 
designated corridor.
    (iii) When two vehicles meet on the beach, the operator of the 
vehicle with the water on the left will yield.
    (iv) When two vehicles meet on a single-lane oversand route, the 
operator of the vehicle in the best position to yield will pull out of 
the track only so far as necessary to allow the other vehicle to pass 
safely, and then will back into the established track before resuming 
the original direction of travel.
    (v) When the process of freeing a vehicle that has been stuck 
results in ruts or holes, the operator will fill the ruts or holes 
created by such activity before removing the vehicle from the immediate 
area.
    (vi) The following are prohibited:
    (A) Driving off a designated oversand route.
    (B) Exceeding a speed of 15 miles per hour unless posted otherwise.
    (C) Parking a vehicle in an oversand route so as to obstruct 
traffic.
    (D) Riding on a fender, tailgate, roof, door or any other location 
on the outside of a vehicle.
    (E) Driving a vehicle across a designated swimming beach at any 
time when it is posted with a sign prohibiting vehicles.
    (F) Operating a motorcycle on an oversand route.
    (vii) Boat trailering and launching by permitted ORV's in 
designated open route corridors is permitted.
    (4) Equipment requirements. (i) Each vehicle operated on an 
oversand route will be equipped to the standard identified by the 
Superintendent, including:
    (A) Shovel;
    (B) Tow rope, chain, cable or other similar towing device;
    (C) Jack;
    (D) Jack support board;
    (E) Low air pressure tire gauge; and
    (F) Five tires that meet or exceed established standards.
    (ii) Operating a vehicle on an oversand route without the required 
equipment is prohibited.
    (5) Oversand permits. No oversand vehicle, other than an authorized 
emergency vehicle, will be operated on a designated oversand route 
without an oversand permit issued by the Superintendent.
    (i) The Superintendent may establish a permit system for oversand 
vehicles and establish fees, designed to recover the costs incurred by 
the National Park Service to administer the oversand program.
    (A) An oversand permit is a type of Special Use Permit that is 
issued under the authority found at 36 CFR 1.6 and 4.10. The following 
information must be provided for each vehicle for which a permit is 
requested: Name and address of registered owner; drivers license number 
and State if issue; vehicle license plate number and State of issue; 
vehicle description, including year, make, model and color; make, model 
and size of tires; and the equipment on board as required by paragraph 
(a)(4) of this section.
    (B) Prior to being issued a permit, an operator of an oversand 
vehicle will:
    (1) Demonstrate that the vehicle is equipped as required in 
paragraph (a)(3) of this section; and
    (2) Demonstrate evidence of compliance with all Federal and State 
regulations that apply to licensing, registering, inspecting and 
insuring such a vehicle.
    (C) Before being issued a permit, an applicant for an oversand 
permit will view an oversand vehicle operation educational program and 
shall assure that all other potential operators view the same program.
    (D) The Superintendent will affix an oversand permit to the 
permitted vehicle at the time of issuance.
    (E) Transfer of an oversand permit from one vehicle to another is 
prohibited.
    (ii) Off-season oversand use. During the period from November 16 
through April 14, an oversand route user will possess an oversand 
permit and a limited access pass that requires the viewing of an 
educational program that outlines the special aspects of off season

[[Page 24630]]

oversand use. The limited access pass will be issued to any vehicle 
operator possessing a valid permit issued under paragraph (a) (5)(i)(A) 
of this section. The limited access pass will be annotated to specify 
the purpose(s) for which the permit is being issued.
    (A) Vehicle travel during the off-season is limited to that portion 
of the beach between High Head and Hatches Harbor.
    (B) Vehicle travel during the off-season is prohibited within two 
hours either side of high tide.
    (C) The limited access pass may be issued for the following 
purposes:
    (1) Access to town shellfish beds at Hatches Harbor;
    (2) Recovery of personal property, flotsam and jetsam from the 
beach;
    (3) Caretaker functions at a dune cottage; or
    (4) Fishing
    (6) Commercial vehicle permits. (1) The operation of a passenger 
vehicle for hire on a designated oversand route is permitted only 
pursuant to a permit issued by the Superintendent, subject to all 
applicable regulations in this section and all applicable Federal, 
State and local regulations concerning vehicles for hire. A commercial 
vehicle permit is issued under the authority found at 36 CFR 1.6, 4.10 
and 5.6. The following information must be provided by the applicant 
for each vehicle that will use a designated oversand route: Name and 
address of tour company and name of company owner; make and model of 
vehicle; vehicle license plate number and State of issue; and number of 
passenger seats.
    (7) Camping. The operator of an oversand vehicle wishing to camp on 
the beach must possess a valid permit issued under paragraph 
(a)(5)(i)(A) of this section and under the authority found at 36 CFR 
2.10. In addition, the operator must provide the following information 
for each vehicle for which a permit is requested: Name and address of 
registered owner; drivers license number and State if issue; vehicle 
license plate number and State of issue; vehicle description, including 
year, make, model, color, pickup or motor home; and the equipment on 
board as required by paragraph (a)(4) of this section.
    (i) A self-contained vehicle is defined as one that has a self-
contained water or chemical toilet and a permanently installed holding 
tank with a minimum capacity of three days' waste material.
    (ii) Camping is allowed only in self-contained vehicles in areas 
designated for that purpose.
    (iii) Two areas with a maximum combined capacity of 100 vehicles 
are designated.
    (A) An operator will drive the self-contained vehicle off the beach 
for the purpose of emptying holding tanks at a dumping station at 
intervals of no more than 72 hours.
    (B) Before returning to the beach, a vehicle operator will notify 
the Oversand Station as specified by the Superintendent.
    (iii) An operator will not drive a self-contained vehicle outside 
the limits of a designated camping area except when entering or leaving 
the beach by the most direct authorized route.
    (iv) Each self-contained vehicle permit holder is limited to a 
maximum of 21 days camping on the beach from July 1 through Labor Day.
    (v) Camping on the beach in any manner other than authorized in the 
provisions of this section or as authorized by the Superintendent 
through another approved permitting process is prohibited.
    (8) Program management and review. In implementing this program, 
the Superintendent will: (i) Monitor the use and condition of the 
oversand routes for the purpose of reviewing the effects on natural, 
cultural and aesthetic resources of vehicles in designated corridors. 
The Superintendent may amend, rescind, limit the use of or close 
designated routes for the purpose of resource protection if monitoring 
results find resource degradation or visitor impact is occurring, 
consistent with 36 CFR 1.5 and 1.7, Executive Order 11644 Sec. 3 and 
Executive Order 11989 Sec. 8;
    (ii) Consult with the Cape Cod National Seashore Advisory 
Commission regarding management of the off-road vehicle program;
    (iii) Pursuant to 16 U.S.C. 18g-j, recognize and utilize volunteers 
to provide education, inventorying, monitoring, field support, and 
other activities involving off-road vehicle use;
    (iv) Provide an annual report to the Secretary of the Interior and 
the public of the results of the monitoring conducted under paragraph 
(a)(8)(i) of this section subject to the availability of funding; and
    (v) Issue no more than a combined total of 3400 oversand permits 
annually, including self-contained permits.
    (9) Penalties. Violation of a term or condition of an oversand 
permit issued in accordance with this section is prohibited. A 
violation may also result in the suspension or revocation of the 
permit.
    (10) Information collection. The information collection requirement 
contained in this rule has been approved by the Office of Management 
and Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 
1024-0026. The information is being collected to solicit information 
necessary for the Superintendent to issue off-road vehicle permits. 
This information will be used to grant administrative benefits. The 
obligation to respond is required to obtain a benefit.
* * * * *
    Dated: March 23, 1997.
Don Barry,
Assistant Secretary for Fish and Wildlife and Parks.

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[FR Doc. 97-11433 Filed 5-5-97; 8:45 am]
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