Public Use Limit on Commercial Dog Walking, 48990-48994 [2014-19514]

Agencies

• Presidio Trust

[Federal Register Volume 79, Number 160 (Tuesday, August 19, 2014)]
[Rules and Regulations]
[Pages 48990-48994]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-19514]


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PRESIDIO TRUST

36 CFR Part 1002


Public Use Limit on Commercial Dog Walking

AGENCY: The Presidio Trust.

ACTION: Final rule.

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SUMMARY: The Presidio Trust (Trust) is adopting an interim rule 
imposing a public use limit on persons who are walking four or more 
dogs at one time in Area B of the Presidio of San Francisco (Presidio) 
for consideration (Commercial Dog Walkers). The limit will require any 
such Commercial Dog Walker in Area B to possess a valid commercial dog 
walking permit issued by the National Park Service (NPS), Golden Gate 
National Recreation Area (GGNRA). Commercial Dog Walkers will be 
allowed a maximum of six dogs at any one time. Commercial Dog Walkers 
will be required to comply with the terms and conditions of the GGNRA 
permit as well as those rules and regulations otherwise applicable to 
Area B of the Presidio, and to visibly display their badges when 
engaging in commercial dog walking activities within Area B. To obtain 
a GGNRA permit, applicants must submit a business license, proof of 
liability insurance, and proof of dog-handling training from an 
existing training course provider (such as the San Francisco SPCA). The 
GGNRA commercial dog walking permit requirement is a compendium 
amendment for all GGNRA sites in San Francisco and Marin Counties that 
allow dog walking, and is being implemented concurrently with the 
Trust's rule. Both are interim actions and will remain in effect until 
the final special regulation for dog walking in the GGNRA is adopted as 
anticipated in late 2015, at which time the Trust expects that it will 
adopt a final rule following public input and comment. The Trust is no 
longer pursuing its proposed rule on Commercial Dog Walkers published 
in the Federal Register on November 21, 2012.

DATES: This rule will become effective October 1, 2014.

FOR FURTHER INFORMATION CONTACT: John Pelka, Compliance Manager, 
Presidio Trust, 415.561.5300 or commercialdogwalking@presidiotrust.gov.

SUPPLEMENTARY INFORMATION: Effective July 1, 2013, the City and County 
of San Francisco (City) passed legislation requiring Commercial Dog 
Walkers to carry a valid annually renewed dog walking permit issued by 
the San Francisco Department of Animal Care & Control. Under 36 CFR 
1001.5, the Trust may impose reasonable public use limits in Area B, 
given a determination that such action is necessary to maintain public 
health and safety, to protect environmental or scenic values, to 
protect natural or cultural resources, or to avoid conflict among 
visitor use activities. On November 21, 2012, in direct response to the 
City's commercial dog walking regulations, the Trust requested public 
comment on a

[[Page 48991]]

proposed rule and use limit on Commercial Dog Walkers (77 FR 69785). 
The limit would have required Commercial Dog Walkers in Area B to 
possess a valid dog walking permit from the City. By the close of the 
comment period roughly one-half of the comments received expressed 
support of the public use limit, and roughly one-half were opposed. 
Opposition included the recommendation that the Trust should not adopt 
the proposed use limit until such time as the GGNRA published its own 
policies and requirements on Commercial Dog Walkers. They further 
requested the Trust to work with the GGNRA and ``come out together with 
one system clearly defined.'' They urged that ``a single, clear rule 
for federal park properties that can be widely broadcast to dog walkers 
in the area will allow for more efficient administration, greater 
compliance, and reduced impacts to Trust resources.''
    In a February 25, 2013 letter to the Trust, the GGNRA stated its 
support for the Trust's public use limit. The GGNRA disagreed, however, 
with the number of dogs allowed under the City permit (up to eight), 
and argued that a limit of six dogs is more reasonable, and is 
consistent with the NPS's understanding of the standard practice for 
the majority of local land management agencies that regulate commercial 
dog walking. In reaction to the City's program and the Trust's 
proposal, the GGNRA stated it would consider enacting an interim 
commercial dog walking permit system, before completing its dog 
management planning process and rulemaking. Given the Trust's and the 
GGNRA's shared management responsibilities within the Presidio, the 
GGNRA asked the Trust to consider adopting its interim permit system 
rather than that being implemented by the City.
    On May 30, 2013, the Trust announced on its Web site that it 
supported the GGNRA's proposed intention to move forward at this time 
to create and implement an interim permit system to regulate commercial 
dog walking within the park. After having examined all public comments 
and considered the new information provided by the GGNRA, the Trust 
agreed to suspend its own decisions regarding the regulation of 
commercial dog walking. Before taking any action, the Trust also 
offered to provide the public with an additional opportunity to 
comment. Accordingly, the Trust will no longer consider going final 
with its proposed rule published in the Federal Register on November 
21, 2012 (77 FR 69785) requiring Commercial Dog Walkers in Area B to 
possess a valid permit from the City.
    On March 14, 2014, the GGNRA provided 30-day public notice (https://www.parkplanning.nps.gov/projectHome.cfm?projectID=46523) of its intent 
to establish an interim permit requirement for Commercial Dog Walkers, 
with a limit of six dogs, on GGNRA lands in San Francisco and Marin 
Counties. The GGNRA's permit system for GGNRA lands became effective 
June 2, 2014, and the Trust will honor GGNRA permits in Area B. The 
annual permit cost consists of a $75 application fee and a $300 per 
person fee for a non-transferrable badge. Permit holders will be able 
to use any GGNRA and Trust lands where dog walking is allowed. The 
interim permit requirement will remain in effect until a final special 
regulation addressing dog walking and commercial dog walking in the 
GGNRA is finalized, which is expected in late 2015. The GGNRA permit 
requirement is being implemented through an amendment to the GGNRA 
Compendium. Public notification of the decision will occur through 
outreach to Commercial Dog Walkers, signage, and the GGNRA's Web site.
    On March 19, 2014, the Trust published in the Federal Register its 
proposed interim rule (79 FR 15278) to limit Commercial Dog Walkers in 
Area B, intended to be enacted in concert with the GGNRA interim 
restriction. The public use limit was also announced on the Trust's Web 
site (https://www.presidio.gov/about/Pages/commercial-dog-walking.aspx) 
and in its e-newsletters. The notice indicated the Trust's shared 
concern with the GGNRA about the possible effects of the City's action 
on Presidio users and resources, and the Trust's intent to adopt the 
GGNRA's interim permit system. A unified approach will provide 
consistency within unmarked Trust-GGNRA boundaries within the Presidio, 
and fulfill the joint visitor experience and resource protection 
mandates of the two Federal land management agencies. Prior to 
implementation, the Trust will coordinate with the GGNRA on its 
education campaign to alert Commercial Dog Walkers and others about the 
public use limit. The Trust will also post signs and provide the U.S. 
Park Police with handouts in Area B to notify Commercial Dog Walkers of 
the public use limit in areas where dog walking is a particularly high-
use activity.
    The Trust accepted public comment on the proposed interim rule 
through May 5, 2014. During the comment period, the Trust received 31 
individual comments on the proposal from four organizations and 24 
individuals. Twelve commenters (43 percent) expressed support for the 
proposed interim rule, and 16 (57 percent) were opposed. Comment 
letters are available for review at the headquarters of the Trust, and 
constitute part of the administrative record for the rulemaking.

Summary of Comments

Number of Dogs

    Comment: Comments were received requesting that more than six dogs 
be allowed. Other comments asked to require fewer than six dogs, citing 
concerns with a Commercial Dog Walker's ability to control up to six 
dogs, or more. There were concerns with impacts to commercial dog 
walking businesses and with impacts to adjacent parks from limiting the 
number of dogs to six. Comments also requested greater consistency with 
dog limits set by the City.
    Response: The rationale as to why the limit of eight dogs as 
adopted by the City is inappropriate for the GGNRA is provided in the 
GGNRA's Categorical Exclusion and attachments. The GGNRA's limit of six 
dogs is based on public comment, feedback from the GGNRA Negotiated 
Rulemaking Committee for dog management, park staff observations, 
research on national and international best practices and law 
enforcement experience. The Trust feels that adopting the City's eight-
dog limit would engender public confusion given the shared 
jurisdictions of the GGNRA and the Trust with an unmarked boundary 
within the Presidio.
    Regarding impacts to commercial dog walking businesses, the 
proposed action does not restrict access to any sites, does not 
restrict the area available within a site, does not impose time of use 
requirements, and imposes relatively minor permitting, insurance and 
numerical requirements on Commercial Dog Walkers. Commercial Dog 
Walkers retain the flexibility to avoid the proposed restriction and 
permit fees by opting to use one or more of the available open space 
lands maintained by the San Francisco Park and Recreation Department, 
the Port of San Francisco, and the San Francisco Public Utilities 
Commission. Among these lands are 28 specifically designated off-leash 
park areas for dogs throughout the City, including the Mountain Lake 
Park Dog Play Area that is immediately adjacent to Area B (see https://sfrecpark.org/parks-open-spaces/dog-play-areas-program/ for a location 
map for specified areas and for information on the process for 
establishment of

[[Page 48992]]

additional off-leash areas within the City's park system). Should 
Commercial Dog Walkers choose to use Trust lands, the permit cost will 
only average just over $1.00 per day, per year. It is expected that 
Commercial Dog Walkers could pass this expense to their clients, and 
thus there could be a negligible effect on their income. To walk the 
same number of dogs walked prior to the proposed six-dog limit, 
Commercial Dog Walkers may have to increase the number of trips, which 
could increase their transportation costs. However, the overall net 
change in Commercial Dog Walker trips, and thus transportation costs, 
is expected to be relatively minor, and will not have a significant 
impact.
    Finally, the City's restriction on commercial dog walking will 
minimize the possible re-distributional effects of this interim action. 
Some Commercial Dog Walkers may prefer to use City lands, in that they 
are allowed an additional two dogs per walker under the City's permit. 
However, the difference is not expected to result in a significant 
amount of displacement from Trust lands to San Francisco-managed sites. 
And, while the City's Department of Animal Care and Control enforces a 
limit of eight dogs, their commercial dog walking informational 
pamphlet recommends not more than six. The City's ordinance prohibiting 
dogs in all sensitive habitat areas, athletic fields, tennis/
basketball/volleyball courts, children's play areas, and other key 
areas prohibited by Park Code Section 5.02 will further minimize 
impacts to park users and park resources.

Training and Certification Requirements

    Comment: Concerns were expressed regarding training and 
certification in order to obtain the commercial dog walking permit. 
Some commenters noted that experienced Commercial Dog Walkers do not 
need required training and certification, and expressed a desire for 
the GGNRA to honor the City's training and certificate requirements to 
relieve any financial burden and promote efficiency. Other commenters 
noted that training and certification promotes responsibility, safety 
and education.
    Response: Training and certification are important components of 
any permit program. The GGNRA has, however, sought to streamline 
training and certification where possible. If a commercial dog walking 
applicant wishes to engage in commercial dog walking activities in the 
Presidio, the Commercial Dog Walker must either complete one of the 
courses accepted by San Francisco Animal Care and Control or show proof 
of three consecutive years as a Commercial Dog Walker in good standing. 
If the Commercial Dog Walker has completed one of the courses in the 
past, s/he will not need to re-take it, but rather must provide 
documentation of completion to the GGNRA as part of their application 
process.

Permit Costs and Financial Burden

    Comment: Some commenters expressed concerns regarding the permit 
fee, which they believed was too high and unfair, and as public land, 
should be reduced or removed. Some commenters noted that the required 
fee would create a financial burden for their businesses.
    Response: The GGNRA is expressly authorized by statute to recover 
costs related to special park uses. Under the authority of 16 U.S.C. 
3a, the GGNRA may recover from a permittee the agency's costs incurred 
in processing a Special Use Permit application and monitoring the 
permitted activity. The GGNRA informs applicants early in the process 
that they will be responsible for reimbursing the park for all costs 
incurred by the park in processing the application and monitoring the 
permitted activity. The annual commercial dog walking (CDW) permit fees 
are based on cost recovery estimates relating to the management and 
administration of CDW permits. For the 2014 permit, which will be valid 
through January 31, 2015, the $300 Company Badge fee, however, will be 
prorated according to the date of issue. Because the permit fee to be 
assessed by the GGNRA is based on the actual costs of administering the 
program, the fee is fair for a special use authorized in a national 
park setting.

Timing of the Proposal

    Comment: Some commenters expressed concerns that there would not be 
enough time for commercial dog walking businesses to prepare for 
implementation, complete the application process and obtain a permit.
    Response: Application forms were released on May 27, 2014. The 
GGNRA began processing permit applications on June 2, 2014. The GGNRA 
is issuing permits no longer than 30 days after receipt of completed 
qualifying applications. Applicants who have submitted completed 
application packages were given a ``reference number'' as proof they 
have begun the process while they waited to receive the permit and 
badge. A transition period was implemented until July 15, 2014, for 
enforcement to allow submission of permit application packages and 
receipt of the GGNRA permit. The Trust is also providing a transition 
period until October 1, 2014 to allow Commercial Dog Walkers in Area B 
to gather the supporting documentation and file the permit application 
package with the GGNRA.

Inappropriate Use of National Environmental Policy Act (NEPA) 
Categorical Exclusion

    Comment: Several commenters expressed concerns that the use of a 
Categorical Exclusion (CE) is inappropriate because the impacts of this 
proposed action would be significant, and therefore a thorough 
environmental review under the NEPA is required. Two of these 
commenters requested that the action be compared against a fictional 
baseline in which there is no commercial or private dog walking.
    Response: This action is short-term in nature, limited in both 
duration and scope, and will only remain in effect until the final 
special regulation for dog walking in the GGNRA is adopted. The action 
simply seeks to manage and minimize the impacts of an existing use. The 
proposed action will only affect Commercial Dog Walkers, a subset of 
the dog walking that occurs on Trust lands. The proposed action does 
not ban commercial dog walking; it allows the use to continue, with the 
requirement of a permit for those with more than three dogs, and a 
limit of six dogs, in Area B. Because this interim action limits the 
number of dogs per Commercial Dog Walker, it potentially allows greater 
control of dogs. More effective dog management through this interim 
action will result in primarily beneficial effects to park visitors and 
public health and safety, and to wildlife, including sensitive species. 
Without this interim action, it is reasonably expected that Trust lands 
could see an increase in the amount of Commercial Dog Walkers with 
large groups of dogs, which in turn would affect the use and enjoyment 
of park lands by other visitors, including non-commercial dog walkers.
    Forecasting impacts against a fictional baseline would artificially 
inflate impacts, as such a no commercial dog walking baseline does not 
reflect the well-established reality on the ground in the GGNRA. 
Instead, in determining level of impact, the GGNRA's environmental 
review, which the Trust relied on in categorically excluding the 
action, compared its proposal to the existing condition, in which 
commercial dog walking inside the GGNRA is unregulated, with no 
numerical caps, permitting, training, or insurance requirements, and 
where commercial dog walking external to the GGNRA is regulated. When 
comparing this interim

[[Page 48993]]

action to the existing condition of unregulated use, this interim 
action is beneficial to park resources, with minimal impacts to 
adjacent areas as described above, and in the GGNRA's administrative 
record for the project.

Consistency With the Presidio Trust Management Plan and Other Policies

    Comment: Some commenters expressed concerns that the interim action 
is inconsistent with the Presidio Trust Management Plan (PTMP), noting 
that the PTMP is aimed at preserving the natural and historic resources 
of the Presidio and protecting the park experience for future users.
    Response: The 2002 PTMP did not address commercial dog walking, 
thus this interim action is not inconsistent with the plan. The PTMP 
requires the Trust to consider the type and level of visitor use that 
can be accommodated while sustaining desired resource and visitor 
experience conditions, which is the intent of this proposed interim 
rule. The PTMP urges the Trust to work cooperatively with the NPS in 
areas of joint concern and interest for the overall management of the 
Presidio. The interim action is a joint collaboration with the NPS for 
commercial dog management within the Presidio.
    This interim action, which reduces the number of dogs that any one 
Commercial Dog Walker can handle at one time, will not adversely 
affect, and is likely to have a beneficial effect on natural, aesthetic 
and cultural values of Trust lands. Accordingly, this interim action 
furthers the policies contained within the PTMP which direct the Trust 
to preserve the natural, historic, scenic, cultural and recreational 
resources of the Presidio and to maintain an atmosphere that is open, 
inviting and accessible to visitors.

Regulatory and Environmental Compliance

    Regulatory Impact: The interim rule will not have an annual effect 
of $100 million or more on the economy nor adversely affect 
productivity, competition, jobs, the environment, public health or 
safety, or State or local or tribal governments or communities. The 
interim rule will not interfere with an action taken or planned by 
another agency or raise new legal or policy issues. In short, little or 
no effect on the national economy will result from adoption of the 
interim rule. Because the rule is not ``economically significant,'' it 
is not subject to review by the Office of Management and Budget under 
Executive Order 12866 or Executive Order 13536. The interim rule is not 
a ``major rule'' under the Congressional review provisions of the Small 
Business Regulatory Enforcement Fairness Act, 5 U.S.C. 801 et seq.
    The Trust has determined and certifies pursuant to the Regulatory 
Flexibility Act, 5 U.S.C. 601 et seq., that the interim rule will not 
have a significant economic effect on a substantial number of small 
entities. The economic effect of the rule is local in nature and 
negligible in scope, restricting only a single use (commercial dog 
walking) in a limited geographic area (Area B of the Presidio occupies 
less than four percent of the City's total acreage) for purposes of 
protecting public health and safety and the natural environment. There 
will be no loss of significant numbers of jobs, as Commercial Dog 
Walkers will retain the flexibility to avoid the public use limit and 
permit fees by opting to use one or more of the available open space 
lands maintained by the San Francisco Park and Recreation Department, 
the Port of San Francisco, and the San Francisco Public Utilities 
Commission (see  https://sfrecpark.org/parks-open-spaces/dog-play-areas-program/).
    The Trust has determined and certifies pursuant to the Unfunded 
Mandates Reform Act, 2 U.S.C. 1502 et seq., that the interim rule will 
not impose a cost of $100 million or more in any given year on local, 
State, or tribal governments or private entities.
    Environmental Impact: The NEPA and the Trust's NEPA regulations (36 
CFR 1010.16) encourage cooperation with other governmental agencies in 
the preparation of environmental analyses and documentation. 
Furthermore, the adoption of one Federal agency's environmental 
document by another Federal agency is an efficiency that the Council on 
Environmental Quality (CEQ) regulations provide (40 CFR 1506.4, 
1500.4(k) & (n). The Trust is a cooperating agency with special 
expertise for the GGNRA interim commercial dog walking permit 
requirement (as well as the special regulation for dog walking) under 
the NEPA and the CEQ regulations (an agency is considered to have 
special expertise when it has a related ``statutory responsibility, 
agency mission, or . . . program experience'' (40 CFR 1508.26)). At the 
request of the GGNRA, the Trust participated in the development of the 
interim permit requirement from the outset. For the NEPA process, the 
Trust assisted the GGNRA in the preparation of a Project Description 
and Environmental Screening Form and assumed co-responsibility for its 
scope and content to ensure that the form met the standards for an 
adequate analysis under its NEPA regulations. The form disclosed that 
no measurable adverse environmental effects will result from the 
actions, and no extraordinary circumstances are involved that may have 
a significant environmental effect (https://www.parkplanning.nps.gov/documentsList.cfm?projectID=46523).
    The Trust's NEPA regulations contain categories of actions that do 
not require an environmental assessment or environmental impact 
statement. 36 CFR 1010.7(a)(31) provides that ``minor changes in 
programs and regulations pertaining to visitor activities'' may be 
categorically excluded under the NEPA. The regulatory actions by the 
GGNRA and the Trust regarding interim commercial dog management for 
Areas A and B are substantially the same. Having independently reviewed 
the GGNRA's Project Description and Environmental Screening Form for 
adequacy under its NEPA regulations and having considered the public 
comments, the Trust has adopted the form as the environmental document 
prepared for this action, has made it part of the administrative record 
of the rulemaking, and has categorically excluded the action from 
further NEPA analysis.
    Other Authorities: The Trust has drafted and reviewed the interim 
rule in light of Executive Order 12988 and has determined that it meets 
the applicable standards provided in secs. 3(a) and (b) of that Order.

List of Subjects in 36 CFR Part 1002

    National parks, Natural resources, Public lands, Recreation and 
recreation areas.

    For the reasons set forth in the preamble, part 1002 of Title 36 of 
the Code of Federal Regulations is amended as set forth below:

PART 1002--RESOURCE PROTECTION, PUBLIC USE AND RECREATION

0
1. The authority citation for part 1002 continues to read as follows:

    Authority:  16 U.S.C. 460bb note.


0
2. Add Sec.  1002.6 to read as follows:


Sec.  1002.6  Commercial dog walking.

    (a) The walking of more than six dogs at one time by any one person 
for consideration (commercial dog walking) is prohibited within the 
area administered by the Presidio Trust.
    (b) The walking of more than three dogs, with a limit of six dogs, 
at one time by any one person for consideration (commercial dog 
walking) within the area administered by the

[[Page 48994]]

Presidio Trust, where dog walking is otherwise allowed, is hereby 
authorized provided that:
    (1) That person has a valid commercial dog walking permit issued by 
the Golden Gate National Recreation Area (GGNRA);
    (2) The walking of more than three dogs, with a limit of six dogs, 
is done pursuant to the conditions of that permit; and
    (3) The commercial dog walker badge issued to the permittee by the 
GGNRA shall be visibly displayed at all times as directed in the permit 
while the permittee is engaging in commercial dog walking activities, 
and shall be provided upon request to any person authorized to enforce 
this provision.

    Dated: August 11, 2014.
Karen A. Cook,
General Counsel.
[FR Doc. 2014-19514 Filed 8-18-14; 8:45 am]
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