[Federal Register Volume 69, Number 185 (Friday, September 24, 2004)]
[Rules and Regulations]
[Pages 57174-57181]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21470]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 7

RIN 1024-AD14


Delaware Water Gap National Recreation Area, Pennsylvania and New 
Jersey; U.S. Route 209 Commercial Vehicle Fees

AGENCY: National Park Service, Interior.

ACTION: Final rule.

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SUMMARY: This final rule revises the special regulations for Delaware 
Water Gap National Recreation Area. It changes the fee schedule for 
those commercial vehicles permitted to travel

[[Page 57175]]

U.S. Route 209 through Delaware Water Gap National Recreation Area. 
This paragraph sets a fee schedule by number of axles. It also lists 
the exceptions to commercial fee requirements. Congress authorized 
collection of the fees to make the program to manage commercial traffic 
self-sustaining. In recent years, the cost of fee collection has been 
greater than annual revenue. The intent of the final rule is to 
increase fees to a level that will return the program to one that is 
completely supported by commercial entities using the route.

DATES: This rule becomes effective October 25, 2004.

FOR FURTHER INFORMATION CONTACT: Chief Ranger Philip Selleck, at 570-
588-2414, or c/o Delaware Water Gap National Recreation Area, River 
Road, Bushkill, PA 18324.

SUPPLEMENTARY INFORMATION:

Commercial Use Background

    On March 14, 1983, the Commonwealth of Pennsylvania transferred 
ownership of approximately 21 miles of U.S. Route 209 within the 
boundaries of Delaware Water Gap National Recreation Area to the 
National Park Service. This portion of road was a heavily traveled 
commercial vehicle route between Interstates 80 and 84, primarily 
because it is shorter and flatter and more direct than the alternate 
routes, and therefore was preferred by the commercial vehicle 
operators. Since Sec.  5.6 of Title 36 Code of Federal Regulations (36 
CFR 5.6), prohibits the use of roads within National park areas by 
commercial through traffic, the National Park Service announced that 
U.S. Route 209 would be closed to commercial vehicles on April 25, 
1983. Due to negative comments from the trucking industry concerning 
the announced closure, the NPS Director, on April 23, 1983, announced a 
180-day delay in the implementation of the closure.
    On July 30, 1983, Congress enacted Public Law 98-63, closing U.S. 
Route 209 to commercial vehicle use, with certain exceptions, and 
directed the National Park Service to establish a commercial operation 
fee for certain commercial vehicles excepted from the closure. In order 
to implement the statute, Delaware Water Gap National Recreation Area 
began operation of two commercial vehicle check stations, one each near 
the North and South entrances to the recreation area on U.S. Route 209. 
The check stations were operated 24 hours a day.
    Public Law 98-63, as amended by Public Law 98-151 and Public Law 
99-88, closed U.S. Route 209 to all commercial vehicles except:
    (1) Those vehicles operated by businesses based within the 
recreation area;
    (2) Those vehicles operated by businesses that as of July 30, 1983, 
operated a commercial vehicular facility in Monroe, Pike, or 
Northampton Counties, PA, if the vehicle operation originates or 
terminates at such facility;
    (3) Those vehicles operated in order to provide services to 
businesses and persons located in or contiguous to the boundaries of 
the recreation area, that area determined to be composed of Lehman, 
Delaware, Milford, Dingman, Stroud, Westfall, Smithfield, Middle 
Smithfield and Upper Mount Bethel townships in Pennsylvania;
    (4) Up to 125 northbound, and 125 southbound, commercial vehicles 
serving businesses and persons in Orange, Ulster, Rockland and Sullivan 
Counties, New York.
    The exceptions to the closure of U.S. Route 209 were to remain in 
effect unless further action was taken by Congress.
    Under the Omnibus Parks and Public Lands Management Act of 1996, 
Public Law 104-333, enacted on November 12, 1996, U.S. Route 209 will 
be closed to commercial vehicle traffic on September 30, 2005. 
Commercial vehicles connected with the operation of the recreation 
area, or serving ``businesses within or in the vicinity of the 
recreation area'' will be permitted to use the highway. The Act directs 
the Secretary of the Interior to define the term ``businesses within or 
in the vicinity of the recreation area''.

Commercial Vehicle Fee Background

    Public Law 98-63, as amended by Public Law 99-88, directed the 
Secretary of the Interior to establish a fee for the use of U.S. Route 
209 by commercial vehicles. The law directed the National Park Service 
to set aside all fees in a special account, the funds to be available 
for the management, operation, construction, and maintenance of U.S. 
Route 209 within the boundary of the recreation area. The fee schedule 
was not to exceed $7 per trip. Those commercial vehicles serving 
businesses within, or contiguous to the boundaries of, the recreation 
area were exempted from the fee.
    In accordance with Public Law 98-63, the National Park Service 
published in the Federal Register (48 FR 46779, October 14, 1983), a 
fee schedule based on the number of axles of lightweight and heavy 
commercial vehicles. The fees ranged from $0.50 for two axle cars, vans 
or pickups, to $5.00 for a five or more axle vehicle. The full 1983 fee 
schedule can be found in Table 1.
    On August 23, 1985, the National Park Service revised the fee 
schedule, publishing a final rule in the Federal Register (50 FR 
34128), revising the fee schedule. The rule was based on the revised 
estimates of costs for management, operation, construction and 
maintenance of U.S. Route 209. The raised fees ranged from $1.00 for 
two axle cars, vans or pickups, to $7.00 for a five or more axle 
vehicle. The full 1985 fee schedule can be found in Table 1.

                  Table 1.--1983 and 1985 Fee Schedules
------------------------------------------------------------------------
                                                       1983       1985
------------------------------------------------------------------------
Two axle car, van or pickup.......................      $0.50      $1.00
Two axle--four wheel vehicle with trailer.........       1.00       2.00
Two axle--six wheel vehicle.......................       2.00       3.00
Three axle vehicle................................       3.00       4.00
Four axle vehicle.................................       4.00       5.00
Five or more axle vehicle.........................       5.00       7.00
------------------------------------------------------------------------

Public Law 98-63 Authority

    Authority to collect fees for those commercial vehicles permitted 
to use U.S. Route 209 terminated on July 30, 1993. The NPS stopped 
collecting fees on that date, but was required to continue to enforce 
the statutory closure and exceptions to the commercial use of the 
highway. The commercial vehicle check stations were operated as before 
July 30, 1993, but no fees were collected.
    On November 12, 1996, Congress enacted Public Law 104-333, which 
reinstated the National Park Service's authority to collect commercial 
vehicle fees on U.S. Route 209. Public Law 104-333 specified that fees 
could not exceed $25 per trip. The NPS resumed the collection of fees, 
using the 1985 fee schedule, on November 26, 1996.

Increase in Fees

    Congress specified that the fees collected from commercial vehicles 
excepted from the closure of U.S. Route 209 be made available, 
``without further appropriation, for the management, operation, 
construction, and maintenance of highway 209 within the boundaries of 
the recreation area''. Congress intended the income from the commercial 
vehicle fee program to equal or exceed the cost of operating the 
program, and to fund the program without further appropriation or use 
of other operating funds.

[[Page 57176]]

    Initially, fee collection revenues from U.S. Route 209 provided 
enough revenue to operate the commercial use program, purchase 
equipment related to the operation of U.S. Route 209, and do some 
maintenance. The amount of revenue generated has decreased over time as 
several large commercial vehicle facilities closed their local 
terminals, and stopped traveling on U.S. Route 209. Fluctuations in the 
local economy have also had an effect. A comparison of revenue 
generated through the fee operation from fiscal years 1984 to 2002 is 
illustrated in Figure 1.
[GRAPHIC] [TIFF OMITTED] TR24SE04.000

    Large 5-axle tractor-trailers have been the most important 
permitted commercial vehicles to use U.S. Route 209, both in total 
number of commercial vehicles, and in fees generated. Trucks paying the 
maximum fee of $7.00 for a five-axle vehicle account for approximately 
75 percent of the total number of fee-paying vehicles, and nearly 90 
percent of the total revenue received. A comparison of the percent of 
total fee vehicles, by number of vehicles and revenue collected, for 
each class of vehicle may be found in Figure 2.

[[Page 57177]]

[GRAPHIC] [TIFF OMITTED] TR24SE04.001

    In recent years the cost of operating the commercial operation 
program has largely exceeded the income generated by fees. The trends 
of fee revenue remaining relatively steady and increasing expenses is 
expected to continue. The operating deficit is made up with funds 
appropriated for normal park operations (ONPS funds). A year by year 
comparison of income and expenditures may be found in Figure 3.

[[Page 57178]]

[GRAPHIC] [TIFF OMITTED] TR24SE04.002

Justification for the Fee Schedule

    When the current commercial vehicle policy on U.S. Route 209 was 
begun in 1983, closing the highway and charging a fee for permitted 
uses were very controversial issues. Under the circumstances, 
promulgating special regulations implementing the closure and fees was 
an appropriate action. The revenue generated was much greater than the 
cost of operating the fee program at that time, and there was a carry-
over balance that was available for other uses related to the operation 
and maintenance of U.S. Route 209. As documented above, in recent years 
the cost of managing commercial operations has been more than the 
revenue collected. The collection of fees for commercial vehicle use of 
U.S. Route 209 is authorized by Federal statute, and Congress's intent 
is that the commercial vehicle fees collected fund the commercial 
traffic management program. The National Park Service has set the fees 
to attempt to provide an amount of revenue approximately equal to or 
slightly over the cost of collection, and to fund the commercial 
traffic management program with the collected revenue. There is no plan 
to set fees at a level that would provide funds for maintenance of the 
highway, though any surplus could be used for repairs. The new fee 
schedule is provided in Table 2.

                       Table 2.--New Fee Schedule
------------------------------------------------------------------------
                      Vehicle description                          Fee
------------------------------------------------------------------------
2 axle cars, vans, trucks......................................       $3
2 axle vehicles with trailer...................................        5
2 axle, 6 wheeled vehicles.....................................        8
3 axle vehicles................................................       10
4 axle vehicles................................................       13
5 axle vehicles................................................       18
------------------------------------------------------------------------

Effect of a Fee Increase on the Trucking Industry

    Prior to the partial closure of U.S. Route 209 to commercial 
vehicles in 1983, more than 2,000 tractor-trailers per day traveled 
through the recreation area. That number has been reduced to fewer than 
200 per day in 2001, including fee-paying and fee-exempt trucks. The 5-
axle, fee-paying tractor-trailers using U.S. Route 209 use the highway 
because it is the most convenient route between their points of origin 
and destination. A majority of these trucks are making trips between 
points within one hundred miles north or south of the recreation area. 
Generally, these trucks are either based in Monroe or Northampton 
Counties, PA, or are serving businesses in the four-county New York 
area. Relatively few trucks originating more than a hundred miles from 
Delaware Water Gap National Recreation Area use the highway, even if 
they would be permitted to use the highway based on their destination. 
The trucks using U.S. Route 209 do so because it is the most 
convenient, and economically feasible, alternative.
    There are two potential alternate routes available to the majority 
of trucks currently using U.S. Route 209. The first is to bypass the 
highway through the recreation area by traveling between Interstates 80 
and 84 via Route 402. This route is not usable because there is a 
weight limit of 20,000 lbs.; an average weight for a loaded tractor 
trailer is 80,000 lbs. The second alternative is to

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use Interstate 380 between Routes 80 and 84. This route adds 
approximately 46 miles to each one-way trip. Using a 2003 estimate of 
$1.45 per mile for shipping freight via tractor trailers, travel via 
Interstate 380 adds an additional $66. Other alternatives, such as 
using Route 94 or Interstate 287, are unlikely to be chosen because of 
traffic congestion, additional miles, and tolls. Therefore, NPS expects 
the large 5-axle, fee-paying traffic to remain relatively constant.
    NPS has identified the six most common companies using U.S. Route 
209 on a fee basis. These six companies paid approximately 45 percent 
of all the 5-axle fees paid in fiscal year 2001. NPS received 
approximately $46,277 from these companies in calendar year 2001, out 
of a total of $103,838 paid by all 5-axle vehicles in fiscal year 2001. 
This compares a calendar year to a fiscal year, so therefore these are 
estimates, but they should be approximately correct because the traffic 
from these six companies is relatively constant. These companies will 
be the most affected by a fee increase. Increasing the fees by 155% 
will proportionally increase the cost of using U.S. Route 209 to these 
companies. Table 3 summarizes the total number of paid trips by these 
companies and the revenue received from them in calendar year 2001.

                    Table 3.--Total 5-Axle Fee Trips and Revenue Received Calendar Year 2001
----------------------------------------------------------------------------------------------------------------
                                       Dicks      East Penn      Rollin       Moyer       Roadway        F.T.
                                      Concrete     Trucking     Johnson    Packing Co.    Express      Silfies,
                                        Co.          Co.          Inc.       (MOPAC)        Inc.         Inc.
----------------------------------------------------------------------------------------------------------------
Total number of 5-axle fees trips.        1,941          274        1,607          678          859        1,252
Total fees paid ($)...............       13,587        1,918       11,249        4,746        6,013        8,764
----------------------------------------------------------------------------------------------------------------

Effect of Proposed Fee Increase on NPS

    NPS anticipates fee revenue will increase by about 155% the when 
the proposed rule becomes final and the fee schedule is increased. 
Revenue from commercial vehicles decreased over the years of the 
program, but NPS does not have enough years of data since the 
resumption of fee collection in 1996 to predict future collections. A 
small percentage of commercial vehicles may elect to use an alternate 
route, rather than using U.S. Route 209. However, the larger 5-axle 
trucks are still expected to use the highway, as $18 per trip will 
still be less expensive than driving the additional miles on alternate 
routes. If those assumptions are correct, the revenue collected will be 
affected mostly by economic conditions.
    The NPS estimates the fee revenue will be $270,300 in the first 
fiscal year following implementation of the revised fee schedule. NPS 
believes the fee increase will be implemented on or shortly before the 
beginning of fiscal year 2005 on October 1, 2004. NPS anticipates 
spending an average additional 3.3 percent per year to operate the 
commercial vehicle fee program, based on increases in personnel costs. 
Figure 4 illustrates expected revenue collected, expenses, and 
carryover until the end of fiscal year 2005. This projection is based 
on the current hours of operation, which target about 90 percent of the 
commercial traffic. If the fee collection operation were extended 
beyond the end of fiscal year 2005, and revenue remained constant, the 
operation would be operating at a deficit during fiscal year 2007.
[GRAPHIC] [TIFF OMITTED] TR24SE04.003

Summary of Comments

    The National Park Service published a proposed rule on July 6, 
2004, (69 FR 40562). Two comments were received on the rule during the 
30-day comment period.
    Comment: A private citizen from New Jersey commented that the 
increase in fees was not sufficient, and that the National Park Service 
should charge each commercial vehicle the maximum of $25.00 as allowed 
by the 1995 law. In addition, the comment included the statement that 
the fees should be $25.00 per axle.
    Response: The National Park Service fee structure was originally 
designed to be consistent to those used by

[[Page 57180]]

governmental entities that collect fees or tolls for roadway or bridge 
use; i.e., the amount of the fee is based on the number of axles the 
vehicle has. For example smaller, lighter vehicles such as pickup 
trucks are charged a fee at the lower end of the schedule, while the 
largest, heaviest vehicles such as tractor-trailers pay the highest 
fees.
    The National Park Service wishes to retain that accepted fee 
structure. It has adjusted fees to a level that, given no decrease in 
present use, will make the commercial vehicle regulation program self-
sustaining as directed by Public Law 98-63; increasing fees to $25.00 
per vehicle would likely result in an excess of funds above the cost of 
managing the program. Though Congress has also authorized the use of 
funds to perform maintenance on the highway, no maintenance/
construction on U.S. Route 209 is expected during fiscal year 2005. 
Thus collecting funds in excess of operating costs would therefore be 
inappropriate. In addition, the suggestion of charging $25.00 per axle 
would exceed the maximum fee authorized by Congress.
    Comment: The second comment received was from the management of a 
truck terminal in the local area. The terminal is a branch facility of 
a large multinational corporation. The comment received was to suggest 
a 6-year phase-in of the increase in fees.
    Response: P.L. 104-333 ends the National Park Service authority to 
collect fees on September 30, 2005, so any collections beyond that time 
would not be authorized, and a phase-in therefore not possible. As 
mentioned before, the Service established the fee schedule to cover 
costs; any lesser amounts would prevent the program from becoming self-
sufficient.

Compliance With Other Laws

Regulatory Planning and Review (Executive Order 12866)

    This document is not a significant rule and has not been reviewed 
by the Office of Management and Budget under Executive Order 12866.
    (1) This rule will not have an effect of $100 million or more on 
the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities. The NPS has prepared an Initial Cost-Benefit analysis to 
support this statement. That analysis can be viewed at http://www.nps.gov/dewa.
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency. Actions 
taken under this rule will not interfere with other agencies or local 
government plans, policies, or controls. This is an agency-specific 
rule.
    (3) This rule does not alter the budgetary effects of entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients. This rule will have no effects on entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients. No grants or other forms of monetary supplements are 
involved.
    (4) This rule does not raise novel policy issues.

Regulatory Flexibility Act

    The Department of the Interior certifies 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.). 
This certification is based on a Regulatory Flexibility threshold 
analysis performed by NPS economists in October 2003. That document can 
be viewed at http://www.nps.gov/dewa.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million or 
more.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local or tribal governments or the private sector.
    This rule is an agency-specific rule and imposes no other 
requirements on other agencies, governments, or the private sector.

Takings (Executive Order 12630)

    In accordance with Executive Order 12630, the rule does not have 
significant taking implications. A taking implication assessment is not 
required. No takings of personal property will occur as a result of 
this rule.

Federalism (Executive Order 13132)

    In accordance with Executive Order 13132, the rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment.
    This proposed rule only affects use of NPS-administered lands and 
waters. It has no outside effects on other areas.

Civil Justice Reform (Executive Order 12988)

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order.

Paperwork Reduction Act

    This regulation does not require an information collection from 10 
or more parties and a submission under the Paperwork Reduction Act is 
not required. An OMB form 83-I is not required.

National Environmental Policy Act

    A Final Environmental Impact Statement for the management of U.S. 
Route 209 was issued in September 1983. The Department has determined 
that further compliance under this Act is not required for any of these 
proposed actions.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government to Government Relations with Native American Tribal 
Governments'' (59 FR 22951) and 512 DM 2:
    We have evaluated potential effects on federally recognized Indian 
tribes and have determined that there are no potential effects.

Clarity of Rule

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand, including answers to questions such as 
the following: (1) Are the requirements in the rule clearly stated? (2) 
Does the rule contain technical language or jargon that interferes with 
its clarity? (3) Does the format of the rule (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity? (4) Would the rule be easier to read if it were divided into 
more (but shorter) sections? (A ``section'' appears in bold type and is 
preceded by the

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symbol ``Sec.  '' and a numbered heading; for example Sec.  7.71 
Delaware Water Gap National Recreation Area. (5) Is the description of 
the rule in the ``Supplementary Information'' section of the preamble 
helpful in understanding the proposed rule? What else could we do to 
make the rule easier to understand?
    Send a copy of any comments that concern how we could make this 
rule easier to understand to: Office of Regulatory Affairs, Department 
of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240.

Drafting Information

    The principal contributors to this proposed rulemaking are Joel 
Schwartz, Fee Collection Program Manager, and Brian McDonnell, Park 
Ranger, and Philip A. Selleck, Chief Ranger, Delaware Water Gap NRA.

List of Subjects in 36 CFR Part 7

    District of Columbia, National parks, reporting and recordkeeping 
requirements.

    For the reasons stated in the preamble, the National Park Service 
amends 36 CFR Part 7 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 
issued under DC Code 8-137 (1981) and DC Code 40-721 (1981).

    2. Section 7.71 is amended by revising paragraphs (e)(1)(i) through 
(vi) to read as follows:


Sec.  7.71  Delaware Water Gap National Recreation Area.

    (e) Commercial Vehicle Fees.
    (1) * * *

(i) Two-axle car, van or truck--$3
(ii) Two-axle vehicle with trailer--$5
(iii) Two-axle 6-wheeled vehicle--$8
(iv) Three-axle vehicle--$10
(v) Four-axle vehicle--$13
(vi) Five or more-axle vehicle--$18
* * * * *

    Dated: September 16, 2004.
Paul Hoffman,
Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-21470 Filed 9-23-04; 8:45 am]
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