Cape Cod National Seashore, Off-road Vehicle Use

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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