[Federal Register Volume 76, Number 55 (Tuesday, March 22, 2011)]
[Proposed Rules]
[Pages 15888-15891]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6703]



[[Page 15888]]

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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 7

RIN 1024-AD88


Special Regulations; Areas of the National Park System, Cape Cod 
National Seashore

AGENCY: National Park Service, Interior.

ACTION: Proposed Rule.

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SUMMARY: The National Park Service (NPS) proposes to amend special 
regulations for Cape Cod National Seashore, to allow for a spring-
season hunt for Eastern Wild Turkey. The proposed rule would implement 
the Cape Cod National Seashore Hunting Program Environmental Impact 
Statement of August 2007.

DATES: Comments must be received by April 21, 2011.

ADDRESSES: You may submit comments, identified by RIN 1024-AD88 by any 
of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Mail: Bob Grant, Chief Ranger, 99 Marconi Site Road, 
Wellfleet, MA 02667.
    All submissions received must include the agency name and docket 
number or Regulation Identifier Number (RIN) 1024-AD88 for this 
rulemaking. All comments received will be posted without change to 
http://www.regulations.gov, including any personal information 
provided. For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the ``Public 
Participation'' heading of the SUPPLEMENTARY INFORMATION section of 
this document.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Bob Grant, Chief Ranger, 99 Marconi 
Site Road, Wellfleet, MA 02667; <a href="/cdn-cgi/l/email-protection#573538350830253639231739272479303821"><span class="__cf_email__" data-cfemail="1d7f727f427a6f7c73695d736d6e337a726b">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Description of the Park Area

    In 1961 the U.S. Congress established Cape Cod National Seashore 
(CACO). In establishing the seashore, Congress directed that the unique 
flora and fauna, the physiographic conditions and the historic sites 
and structures be permanently preserved, the public enjoyment and 
understanding of the unique natural, historic, and scientific features 
the seashore be facilitated by establishing trails, observation points, 
exhibits and services for the public, and provided that adaptable 
portions of the seashore may be managed for camping, swimming, boating, 
sailing, hunting, fishing, and other activities of similar nature. 
Public Law 87-126, Sec. 7, Aug. 7, 1961, 75 Stat. 291.
    The seashore comprises 43,608 acres of shoreline; salt marshes; 
clear, deep, freshwater kettle ponds; uplands; as well as a great 
diversity of species supported by these habitats. Lighthouses, a life-
saving station, dune shacks, modern and Cape Cod-style houses, cultural 
landscapes, and wild cranberry bogs provide a glimpse into Cape Cod's 
past and continuing life ways. The Seashore offers six swimming 
beaches, eleven self-guiding nature trails, and a variety of picnic 
areas and scenic overlooks.

Background

    The 1961 legislation establishing CACO allowed the NPS to permit 
hunting within the seashore.

    The Secretary may permit hunting and fishing, including 
shellfishing, on lands and waters under his jurisdiction within the 
seashore in such areas and under such regulations as he may 
prescribe during open seasons prescribed by applicable local, State 
and Federal law. The Secretary shall consult with officials of the 
Commonwealth of Massachusetts and any political subdivision thereof 
who have jurisdiction of hunting and fishing, including 
shellfishing, prior to the issuance of any such regulations, and the 
Secretary is authorized to enter into cooperative arrangements with 
such officials regarding such hunting and fishing, including 
shellfishing, as he may deem desirable. * * * 16 U.S.C. 459b-6(c)

    The proposed rule would increase hunting opportunities by expanding 
the hunting season to include a spring turkey hunt. Hunting within CACO 
that is authorized by NPS regulations is conducted in accordance with 
Commonwealth of Massachusetts, Department of Fisheries and Wildlife 
(MDFW) regulations. Upland game hunting is currently authorized at CACO 
and Eastern Wild Turkey is managed as a native upland game bird by the 
MDFW. The existing special regulation prohibits hunting from March 1 
through August 31. The proposed rule is necessary because the 
Massachusetts spring turkey season generally takes place from late 
April to mid or late May when hunting is prohibited by the existing 
CACO special regulation. Fall turkey hunting could also be initiated if 
MDFW established such a season in its southeast region, but no rule 
change would be needed for a fall hunt since the State does not conduct 
hunting before September 1.
    For many years, CACO cooperated with the MDFW to release ring-
necked pheasants within the seashore to provide a pheasant hunt. In 
2002, CACO was sued for failure to follow the National Environmental 
Policy Act (NEPA) with respect to the hunting program. In September 
2003, the U.S. District Court ordered CACO to prepare a NEPA 
environmental assessment of the hunting program. The court also 
enjoined the pheasant hunt until CACO completed the NEPA assessment.

National Environmental Policy Act Process

    As a result of the court order, CACO initiated and completed a 
Final Environmental Impact Statement (FEIS), and Record of Decision 
(ROD), on the seashore hunting program.
    The goals of the NEPA process were to develop and evaluate several 
alternative approaches for managing hunting at CACO that would:
    <bullet> Balance diverse uses of the park while minimizing effects 
to wildlife populations, ecosystems, and sustaining natural processes;
    <bullet> Reduce or avoid conflicts during recreational uses of the 
park;
    <bullet> Protect natural and cultural resources, cultural heritage, 
and recreational values;
    <bullet> Provide opportunities for future generations to enjoy the 
natural and cultural resources, cultural heritage, and recreational 
values of CACO; and
    <bullet> Develop management solutions that address concerns related 
to the current hunting program to ensure diverse and high quality 
public experiences.

The chosen alternative as documented by the ROD, was Alternative B--
Develop a Modified Hunting Program.
    Through Alternative B, CACO seeks to increase hunting opportunities 
for native upland game bird species, including turkey, by establishing 
a turkey season generally consistent with MDFW regulations and making 
ancillary improvements to upland game bird habitat. The alternative 
would phase out pheasant stocking and hunting through adaptive 
management actions aimed at improving the availability of native upland 
game bird species. Hunting areas would be consolidated and clearly 
delineated and educational outreach concerning hunting would be 
expanded to hunting and non-hunting users. The NPS and MDFW would 
cooperatively monitor and manage game and other species.
    Alternative B, implemented in part through the proposed rule, will 
increase hunting opportunities for native upland

[[Page 15889]]

game bird species. Eastern Wild Turkeys and Northern Bobwhite Quail are 
native species that were traditionally hunted on Cape Cod. Both turkeys 
and quail were extirpated from Cape Cod and other parts of New England 
in the past, but populations have now been restored to the point where 
MDFW has allowed hunting for some time.
    The proposed rule will restore opportunities to hunt turkey by 
modifying the dates when turkey hunting is allowed within CACO, but 
does not expand hunting for any other species. Fall turkey hunting will 
also be allowed within CACO if MDFW establishes a fall season for the 
MDFW Southeast Region, which includes CACO.
    Due to the limited turkey habitat within CACO, turkey hunting will 
be a controlled hunt, limiting the number of hunters, and will require 
hunters to obtain a NPS permit. Issuance of the permits may be managed 
through a lottery system. Specific areas will be designated as open to 
turkey hunting, generally for two to four weeks during the MDFW 
designated season. Continuation of this program will be based on 
monitoring of the annual hunt by MDFW, and responsive management, to 
ensure NPS goals regarding natural resource protection, visitor 
experience, and safety are met.
    Alternative B requires the NPS to designate areas where hunting is 
permitted, replacing the current policy that allows hunting in all 
areas except where specifically prohibited (which had been designated 
by the posting of signs and maps). Some small patches of land that are 
of only minimal value for hunting will be closed to hunting. The no-
hunting buffer adjacent to bike paths will be increased from 150 feet 
to 500 feet. Hunting areas may be further adjusted if necessary to meet 
public safety needs, and any changes will be made through the authority 
of the rule, and published in the superintendent's compendium. These 
changes will provide added protection for visitors using the bike 
paths; should result in more predictable areas where hunting activity 
is likely to be encountered; and will provide consistent buffers for 
hunting set-backs from roads, buildings, and bike paths. Further, the 
changes will facilitate more efficient monitoring by law enforcement 
staff and will minimally reduce hunting opportunities. Maps of the 
areas where hunting is allowed, along with applicable CACO and MDFW 
regulations, will be made readily available at various locations within 
CACO, and will be integrated into educational outreach materials.

Updating the 1984 Special Regulation

    CACO's hunting program has generally followed the Commonwealth of 
Massachusetts' program, administered by the MDFW, with additional 
specific provisions or restrictions as necessary to meet park 
objectives and NPS policies. CACO regards MDFW as a key expert agency, 
with the State and region-wide perspective important for determining 
hunting seasons, bag limits, and other elements of a sound hunting 
program. As a result, management of hunting at CACO is best 
accomplished through close coordination between CACO and MDFW. CACO has 
adopted many of the State's regulations without additional 
restrictions, although the ultimate responsibility for developing and 
managing an appropriate hunting program for CACO rests with the NPS.
    The current special regulation controlling hunting at CACO was 
promulgated through a proposed and final rule (48 FR 56971, December 
27, 1983; and 49 FR 18442, April 30, 1984). That rulemaking recognized 
that the superintendent needed the discretion afforded by 36 CFR 1.5, 
Closures and public use limits, to designate appropriate locations 
where hunting is allowed, and to impose reasonable limits or 
restrictions necessary to address park specific issues such as public 
safety, resource protection and visitor use concerns. The proposed rule 
would authorize a new hunt during a time that previously was closed to 
hunting. It also creates a CACO-specific discretionary authority for 
the superintendent, consistent with the public notice requirement of 36 
CFR 1.7, to require permits where appropriate and ensure that potential 
park specific issues such as public safety, resource protection, and 
visitor use can be addressed should they arise.
    For example, at the time the FEIS (July 2007) and the ROD 
(September 2007), were completed, the MDFW had a two week spring turkey 
hunting season, at the end of April to early May. The FEIS/ROD 
statements of being ``consistent with'' the State season and ``expand 
CACO's hunting season to accommodate the State's spring turkey hunt'' 
was written in the context of the two week season. Since that date, the 
State has expanded its spring turkey season from two to four weeks, 
ending in late May. Due to possible user conflicts that may arise in 
late May, the CACO superintendent, using discretionary authority of the 
rule, will set the closing date of the season. CACO will strive to be 
consistent with the MDFW's turkey season dates, to avoid confusion, 
however the superintendent will have the discretion to adjust CACO's 
closing date, based on factors such as safety, use patterns, and the 
park's best interest.
    Other locations within Massachusetts, such as the Massachusetts 
Military Reservation, have their own special regulations that have 
different dates than the standard dates/times established by the MDFW, 
in order to authorize hunting activities that are compatible with their 
land management concerns. The superintendent's discretion in this case 
would be similar to this established practice. The public will be 
notified of the spring turkey closing date, and other special 
conditions for the CACO hunting program, which will also be published 
in the superintendent's compendium.

Reduced Public Comment Period

    The NPS intends the public be given the greatest possible 
opportunity to comment, while simultaneously recognizing that a delay 
in the rulemaking process is impracticable, and will not allow 
sufficient time to establish a spring 2011 turkey season, consistent 
with the start date identified by the State of Massachusetts for 
Wildlife Management Zone 12 (which includes CACO). Further, if there is 
a delay in the rulemaking process, CACO and the MDFW will not have 
sufficient time to notify the public of the regulatory change.
    The proposed rule follows an extensive environmental analysis 
process described below, which concluded with the publication of a 
Final Environmental Impact Statement and subsequent Record of Decision 
that allows for implementation of this rule. The environmental analysis 
included a series of public meetings and a 60-day period for comment. 
The comments received from the public were considered while evaluating 
the alternatives in the FEIS resulting in the selection of Alternative 
B, which included establishing turkey hunting consistent with MDFW 
regulations. In developing the rule, the NPS consulted with the MDFW, 
which strongly supports a spring 2011 season. The National Wild Turkey 
Federation and more than a dozen Cape Cod sporting groups in the 
Barnstable League, including among others, the Highland Fish and Game 
Club, the Brewster Rod and Gun Club and the Bass River Rod and Gun 
Club, have also collectively strongly urged the NPS to initiate a 
turkey season this spring.
    Finally, the failure to establish a spring 2011 season will have a 
direct negative effect on the economy of the

[[Page 15890]]

local communities as a result of lost sales of goods and services to 
turkey hunters. The NPS therefore finds that timely action is required, 
and consistent with 318 DM 5, is reducing the public comment period 
from 60 to 30 days.

Compliance With Other Laws and Executive Orders

Regulatory Planning and Review (Executive Order 12866)

    This document is not a significant rule and the Office of 
Management and Budget has not reviewed this rule 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.
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency. 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.
    (4) This rule does not raise novel legal or policy issues. The rule 
meets the requirements of the NPS general regulations at 36 CFR 
2.2(b)(2).

Regulatory Flexibility Act (RFA)

    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.).

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. The rule will benefit small businesses in the local communities 
through the sale of goods and services to turkey hunters.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions. The rule will not impose restrictions 
on business in the local communities in the form of fees, recordkeeping 
or other requirements that would increase costs.
    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 (UMRA)

    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. A statement 
containing the information required by the UMRA (2 U.S.C. 1531 et seq.) 
is not required.

Takings (Executive Order 12630)

    Under the criteria in Executive Order 12630, this rule does not 
have significant takings implications. A takings implication assessment 
is not required.

Federalism (Executive Order 13132)

    Under the criteria in Executive Order 13132, the rule sufficient 
federalism implications to warrant the preparation of a Federalism 
summary impact statement. A Federalism summary impact statement is not 
required.

Civil Justice Reform (Executive Order 12988)

    This rule complies with the requirements of Executive Order 12988. 
Specifically this rule:
    (a) Meets the requirements of section 3(a) requiring all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    (b) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

Consultation With Indian Tribes (Executive Order 13175)

    Under the criteria in Executive Order 13175 we have evaluated this 
rule and determined that it has no potential effects on Federally 
recognized Indian Tribes.

Paperwork Reduction Act (PRA)

    This rule does not contain information collection requirements and 
a submission under the PRA is not required. An individual seeking a NPS 
turkey hunting permit will only be required to present a drivers 
license, vehicle registration and Massachusetts State Hunting license, 
to ensure compliance with legal requirements, to verify the identity of 
the applicants and facilitate management of emergent or other incidents 
if they occur. OMB regulations at 5 CFR 1320.3(h) define this action as 
an exemption to the requirements of the PRA.

National Environmental Policy Act (NEPA)

    This rule implements a portion of a major Federal action 
significantly affecting the quality of the human environment. CACO 
formally initiated the NEPA process with a Notice of Intent (NOI) to 
prepare an Environmental Impact Statement (EIS) on the Cape Cod 
National Seashore Hunting Program. CACO published the NOI in the 
Federal Register on June 21, 2004. A series of public and agency 
scoping meetings followed to solicit input on hunting in the park from 
American Indian Tribes, Federal and State agencies and local towns, the 
public and interested groups. Using the information gathered during the 
scoping process, CACO prepared a Draft Environmental Impact Statement 
(Draft EIS) for public review and comment.
    The comment period opened on April 21, 2006, with the Environmental 
Protection Agency's publication of a Notice of Availability (NOA) in 
the Federal Register, and closed on June 19, 2006, 60 days later. Two 
public meetings were held during the 60-day review period to receive 
oral comment. The availability of the Draft EIS and the dates and times 
of the public meetings were also publicized through a second NOA 
published by the NPS in the Federal Register on May 10, 2006, and 
through press releases sent to local newspapers and radio stations. 
Over 200 comments were received on the Draft EIS. These comments were 
used to improve the Draft and produce the Final EIS.
    Completion of the Final EIS was noticed in the Federal Register by 
the DOI and EPA on August 7 and August 10, 2007, respectively. The 
Record of Decision (ROD) was signed on September 18, 2007. The chosen 
alternative was Alternative B--Develop a Modified Hunting Program. The 
Final EIS and ROD may be reviewed at: http://www.nps.gov/caco/parkmgmt/planning.

Information Quality Act (IQA)

    In developing this rule we did not conduct or use a study, 
experiment or survey requiring peer review under the Information 
Quality Act (Pub. L. 106-554).

Effects on the Energy Supply (Executive Order 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211. A statement of Energy Effects is not 
required.

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Clarity of This Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

Drafting Information

    The primary authors of this regulation were Stephen Prokop, former 
Chief Ranger CACO; Bob Grant, Chief Ranger CACO; Carrie Phillips, 
former Chief of Resources Management, CACO; Robin Lepore, Office of the 
Regional Solicitor, Department of the Interior; Philip A. Selleck, 
Associate Regional Director, Operations and Education, National Park 
Service, National Capital Region; Russel J. Wilson, Chief Regulations 
and Special Park Uses, National Park Service, Washington, DC; and A.J. 
North, Regulations Coordinator, National Park Service, Washington, DC.

Public Participation

    Instructions: All submissions received must include the agency name 
and docket number or Regulation Identifier Number (RIN) for this 
rulemaking. All comments received will be posted without change to 
http://www.regulations.gov, including any personal information 
provided.

Public Availability of Comments

    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment, including your personal identifying 
information, may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

List of Subjects in 36 CFR Part 7

    National Parks, Hunting, Reporting and recordkeeping requirements.

    For the reasons stated in the preamble, the National Park Service 
proposes to amend 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, 462(k); Sec. 7.96 also issued 
under 36 U.S.C. 501-511, DC Code 10-137 (2001) and DC Code 50-2201 
(2001).

    2. In Sec.  7.67 revise paragraph (f) to read as follows:


Sec.  7.67  Cape Cod National Seashore.

* * * * *
    (f) Hunting. (1) Hunting is allowed at times and locations 
designated by the Superintendent as open to hunting.
    (2) Except as otherwise provided in this section, hunting is 
permitted in accordance with Sec.  2.2 of this chapter.
    (3) Only deer, upland game (including Eastern Wild Turkey), and 
migratory waterfowl may be hunted.
    (4) Hunting is prohibited from March 1st through August 31st each 
year, except for the taking of Eastern Wild Turkey as designated by the 
superintendent.
    (5) The superintendent may:
    (i) Require permits and establish conditions for hunting.
    (ii) Temporarily limit, restrict, or terminate hunting access or 
activities after taking into consideration public health and safety, 
natural and cultural resource protection, and other management 
activities and objectives, such as those described in the Cape Cod 
National Seashore Hunting Program/Final Environmental Impact Statement.
    (6) The public will be notified of such closures through one or 
more methods listed in Sec.  1.7(a) of this chapter.
    (7) Violating a closure, designation, use or activity restriction 
or a term or condition of a permit is prohibited. Violating a term or 
condition of a permit may also result in the suspension or revocation 
of the permit by the superintendent.

    Dated: March 14, 2011.
Will Shafroth,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-6703 Filed 3-21-11; 8:45 am]
BILLING CODE 4310-WV-P


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