Special Regulations; Areas of the National Park System, Cape Cod National Seashore, 9852-9856 [2012-3950]

Agencies

• DEPARTMENT OF THE INTERIOR
• National Park Service

[Federal Register Volume 77, Number 34 (Tuesday, February 21, 2012)]
[Rules and Regulations]
[Pages 9852-9856]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-3950]


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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: Final rule.

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SUMMARY: The National Park Service is amending special regulations for 
Cape Cod National Seashore that authorize hunting to allow for a spring 
season hunt for Eastern Wild Turkey. The Final Rule implements the 
Record of Decision for the Cape Cod National Seashore Hunting Program 
Environmental Impact Statement of August 2007.

DATES: This rule is effective March 22, 2012.

FOR FURTHER INFORMATION CONTACT: Craig Thatcher, Acting Chief Ranger, 
99 Marconi Site Road Wellfleet, MA 02667; 508-957-0735.

SUPPLEMENTARY INFORMATION: 

Description of the Park Area

    In 1961 Congress established Cape Cod National Seashore (Seashore). 
In establishing the Seashore, Congress directed that the unique flora 
and fauna, the physiographic conditions, and the historic sites and 
structures of the area be permanently preserved; authorized the 
Secretary of the Interior (Secretary) to provide for the public 
enjoyment and understanding of the unique natural, historic, and 
scientific features of 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).
    The Seashore comprises 43,608 acres of shoreline; salt marshes; 
clear, deep, freshwater kettle ponds; and 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

[[Page 9853]]

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 the Seashore authorized the 
Secretary, acting through the National Park Service (NPS), to permit 
hunting.

    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 final rule increases hunting opportunities by expanding the 
hunting season to include a spring turkey hunt. Hunting within the 
Seashore that is authorized by NPS regulations is conducted in 
accordance with Commonwealth of Massachusetts, Department of Fisheries 
and Wildlife (MDFW) regulations. Currently authorized hunting in the 
Seashore is limited to deer, upland game, and migratory waterfowl. 
Although the Eastern Wild Turkey is managed as a native upland game 
bird by the MDFW, the current special regulation for hunting within the 
Seashore prohibits all hunting from March 1 through August 31. This 
rule change 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 Seashore's current special regulation. Fall turkey 
hunting could also be initiated if MDFW established such a season in 
the Cape Cod zone, but no rule change would be needed for a fall turkey 
hunt since the State does not conduct hunting before September 1.
    For many years, the Seashore cooperated with the MDFW to release 
ring-necked pheasants within the Seashore to provide a pheasant hunt. 
In 2002, the Seashore 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 the Seashore to prepare 
a NEPA environmental assessment of the hunting program. The court also 
enjoined the pheasant hunt until the Seashore completed the NEPA 
assessment.

National Environmental Policy Act Process

    As a result of the court order, the Seashore initiated and 
completed a Final Environmental Impact Statement (FEIS), and Record of 
Decision (ROD), on the Seashore's hunting program. The chosen 
alternative as documented by the ROD, was Alternative B--Develop a 
Modified Hunting Program.
    Through Alternative B, the Seashore seeks to increase hunting 
opportunities for native upland game bird species by establishing a 
turkey season generally consistent with MDFW regulations and making 
ancillary improvements to upland game bird habitat. The alternative 
phases out pheasant stocking and hunting through adaptive management 
actions aimed at improving the availability of native upland game bird 
species. Hunting areas will be consolidated and clearly delineated and 
educational outreach concerning hunting will be expanded to hunting and 
non-hunting users. The NPS and MDFW will cooperatively monitor and 
manage game and other species. The FEIS and ROD may be reviewed at: 
https://www.nps.gov/caco/parkmgmt/planning.htm.

Summary of and Responses to Public Comments

    The NPS published a proposed rule on March 22, 2011, and accepted 
public comments through April 21, 2011. Comments were accepted through 
the mail, hand delivery, and through the Federal eRulemaking Portal: 
https://www.regulations.gov. A total of eleven comments were received 
during the comment period. Ten comments supported the establishment of 
the spring turkey season within the Seashore. One comment was not 
responsive to the proposed rule, but contained strong, general anti-
hunting sentiment.
    Seven comments were received from individuals. Of these, two came 
from the same person. Two of the remaining individual comments were 
very similar in context and point, but did not contain the name(s) of 
the person(s) that sent them.
    Three comments were received from organizations: the Cranberry 
County Longbeards Chapter of the National Wild Turkey Federation; the 
Barnstable County League of Sportsman's Clubs, Inc.; and the Bass River 
Rod and Gun Club, Inc. One comment was from the agency that manages 
hunting in Massachusetts, the MDFW.
    Two individual comments expressed general support for establishing 
a spring turkey season at the Seashore that was consistent with the 
MDFW program, but also recognized that the Seashore season and the 
State season were separately managed. Two individual comments supported 
the spring turkey season based on reducing motor vehicle and turkey 
conflicts on Route 6, a well travelled State highway that runs through 
the Seashore.
    The comments received from the three organizations supported 
establishing a spring turkey season at the Seashore. These comments 
also suggested there should be:
     Consistency between the Seashore and MDFW regulations,
     A youth turkey hunt similar to the State youth hunt,
     Flexibility in the rule for the Seashore to adjust to any 
changes MDFW makes with the spring turkey season, and
     No extra geographic restraints in the Seashore spring 
turkey season that might create a high hunter density.
    The MDFW made similar suggestions and also expressed concern about 
the possible need for a hunter to have a permit issued by the Seashore 
in addition to their State hunting license and turkey stamp.

Analysis and Response

    The Seashore's hunting FEIS evaluated a turkey hunting season that 
was consistent with the MDFW regulations. The Seashore's hunting 
program has generally followed the MDFW program, with additional 
provisions or restrictions as necessary to meet park objectives and NPS 
policies. The Seashore regards MDFW as a key expert agency with State 
and region-wide perspective that is important for determining hunting 
seasons, bag limits, and other elements of a sound hunting program. 
Accordingly, management of hunting at the Seashore will be accomplished 
through close coordination between the Seashore and MDFW. The Seashore 
has adopted many of the MDFW regulations without additional 
restrictions, although the ultimate responsibility for developing and 
managing an appropriate hunting program for the Seashore rests with the 
NPS.
    The existing special regulation utilizes 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 resource

[[Page 9854]]

protection, public safety and other visitor use concerns. While the 
general authority of Sec.  1.5 remains available as an alternative 
closure authority, the new Sec.  7.67(f)(5) creates Seashore-specific 
discretionary authority for the Superintendent, consistent with the 
public notice requirement of 36 CFR 1.7, to require permits where 
appropriate and to ensure that potential park specific concerns or 
conflicts, such as resource protection, visitor use, and public safety, 
can be addressed should they arise. Section 1.7 describes four 
alternative methods of notifying the public: Signs; maps; newspaper 
publication; and electronic media, brochures, or hand-outs. In 
addition, the Superintendent must annually compile all park closures 
and restrictions into a document generally referred to as the 
Superintendent's Compendium, which is available to the public on the 
Seashore's Web site at https://www.nps.gov/caco. Although, closures 
under the new Sec.  7.67(f)(5)(ii) are ``temporary'' insofar as they 
must be annually re-evaluated and renewed by the Superintendent, they 
may be renewed each year whenever appropriate. In order to clarify this 
point, and because the requirement for annual review already exists in 
36 CFR 1.7, NPS has deleted the word ``temporarily'' from Sec.  
7.67(f)(5)(ii) in this final rule. This closure authority will allow 
for such closures to remain flexible in light of changes in visitor 
use, public safety, wildlife resource impacts, or other changed or 
unanticipated conditions. Hunters are urged to consult with the 
Seashore each season to ascertain whether or not there are any changes 
from the prior year.
    For similar reasons, NPS has deleted the reference to management 
activities and objectives ``such as those described in the Cape Cod 
National Seashore Hunting Program/Final Environmental Impact 
Statement'' from Sec.  7.67(f)(5)(ii) in this final rule. Although the 
FEIS will continue to be an important guiding document, the Seashore 
will gain knowledge and experience each season that will inform the 
ongoing management process, and accordingly some flexibility is 
necessary.
    For example, when the FEIS (July 2007) and ROD (September 2007), 
were completed, the MDFW had a two-week spring turkey hunting season, 
starting at the end of April and ending in early May. The FEIS and ROD 
statements of being ``consistent with'' the State season and expanding 
the Seashore'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 Seashore Superintendent, using discretionary 
authority of the rule, will set the closing date of the season. The 
Seashore will strive to be consistent with the MDFW's turkey season 
dates to avoid confusion. However, the Superintendent will have the 
discretion to adjust the Seashore's opening and closings dates based on 
factors such as safety, use patterns, and the public interest.
    To authorize and manage hunting activities compatible with their 
land management concerns, other federal and Commonwealth facilities 
within Massachusetts, such as the Massachusetts Military Reservation, 
have different rules and different dates than the dates/times 
established by the MDFW. The Superintendent's discretion in this case 
would be similar to such established practice. The public will be 
notified of the spring turkey hunt opening and closing dates and other 
special conditions for the Seashore hunting program, all of which will 
also be published in the Superintendent's Compendium.
    Affording the Seashore Superintendent this discretion provides the 
flexibility suggested by the three organizations and the MDFW to allow 
for accommodation of future changes in the State's program (provided 
the changes fall within the scope of discretion authorized by this 
regulation) without further rulemaking. For example, MDFW currently has 
a special youth turkey hunt, which is allowed on a specific day, as 
part of its spring turkey season. The Seashore may consider, and this 
rulemaking accommodates, the possibility of incorporating a youth 
turkey hunt into the Seashore's program in the future. Consideration of 
the youth turkey hunt component may be entertained after the Seashore 
has implemented and evaluated the regular spring turkey hunt.
    The ROD directed that: ``[t]urkey hunting within [the Seashore] 
will be a controlled hunt requiring a permit, limiting the number of 
hunters, and likely managed through a lottery system.'' Accordingly, to 
control issues such as hunter density for safety, this rule provides 
that the Seashore will manage the turkey hunt through permits. A person 
seeking the turkey hunting permit must present a driver's license, 
vehicle registration and Massachusetts State Hunting license with 
turkey stamp to ensure compliance with MDFW turkey hunt legal 
requirements and to verify the identity of the applicant. Seashore 
hunters should understand that some areas where hunting has previously 
been allowed might be closed to hunting during the spring turkey season 
for safety reasons.

Changes From the Proposed Rule

    After review and analysis of the public comments, NPS has:
     Deleted the word ``temporarily'' in paragraph (f)(5)(ii), 
for the reasons discussed in the previous section;
     Deleted the reference to activities and objectives ``such 
as those described in the Cape Cod National Seashore Hunting Program/
Final Environmental Impact Statement'' in paragraph (f)(5)(ii), for the 
reasons discussed in the previous section; and
     Added the terms ``limitations, restrictions * * * or other 
hunting related designations'' to the public notification requirements 
for closures in paragraph (f)(6) to clarify that the requirement 
applies to all such actions.

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 RFA (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 SBREFA. 
This rule:
    a. Does not have an annual effect on the economy of $100 million or 
more.

[[Page 9855]]

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, record 
keeping 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 does not have 
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 any new collection of information that 
requires approval by OMB under the PRA of 1995 (44 U.S.C. 3501 et 
seq.). OMB has approved the information collection requirements 
associated with NPS special use permits and has assigned OMB control 
number 1024-0026 (expires 06/30/2013). An agency may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid OMB control number.

National Environmental Policy Act (NEPA)

    This rule implements a portion of a major Federal action 
significantly affecting the quality of the human environment. The 
Seashore formally initiated the NEPA process on June 21, 2004 by 
publishing in the Federal Register a Notice of Intent (NOI) to prepare 
an Environmental Impact Statement (EIS) on the Seashore Hunting 
Program.
    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, the Seashore 
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 (EPA) publication of a Notice of 
Availability (NOA) in the Federal Register, and closed 60 days later, 
on June 19, 2006.
    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 FEIS.
    Completion of the FEIS was noticed in the Federal Register by the 
DOI and EPA on August 7 and August 10, 2007, respectively. The ROD was 
signed on September 18, 2007. The chosen alternative was Alternative 
B--Develop a Modified Hunting Program. The FEIS and ROD may be reviewed 
at: https://www.nps.gov/caco/parkmgmt/planning.htm.

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.

Drafting Information

    The primary authors of this regulation were Craig Thatcher, Acting 
Chief Ranger, Cape Cod National Seashore; Robin Lepore, Office of the 
Regional Solicitor, Department of the Interior; Russel J. Wilson, Chief 
Regulations and Special Park Uses, National Park Service; and, A.J. 
North, Regulations Coordinator, National Park Service.

List of Subjects in 36 CFR Part 7

    National Parks, Reporting and recordkeeping requirements.

    For the reasons stated in the preamble, the National Park Service 
amends 36 CFR part 7 as follows:

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

0
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).

0
2. Revise Sec.  7.67(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; and
    (ii) 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.
    (6) The public will be notified of such limitations, restrictions, 
closures, or other hunting related designations 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

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condition of a permit is prohibited. Violating a term or condition of a 
permit may result in the suspension or revocation of the permit by the 
Superintendent.

    Dated: February 10, 2012.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-3950 Filed 2-17-12; 8:45 am]
BILLING CODE 4310-WV-P