2025-01210. Assateague Island National Seashore; Oversand Vehicles

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Department of the Interior

National Park Service

1. 36 CFR Part 7
2. [NPS-ASIS-NPS0039274; INSERT BILLING CODE]
3. RIN 1024-AE90

AGENCY:

National Park Service, Interior.

ACTION:

Proposed rule.

SUMMARY:

The National Park Service (NPS) proposes to amend the special regulations for Assateague Island National Seashore to remove certain permit eligibility requirements for motor vehicles that drive on designated beaches and oversand routes. The rulemaking would eliminate requirements addressing vehicle weight, ground clearance, and dimensions. These requirements were established in 1976 and are no longer necessary. In addition, the NPS proposes to make several technical, non-substantive changes to the regulations.

DATES:

Comments on the proposed rule must be received by 11:59 p.m. ET on March 18, 2025.

ADDRESSES:

You may submit comments, identified by Regulation Identifier Number (RIN) 1024-AE90, by either of the following methods:

(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov/​. Follow the instructions for submitting comments.

(2) By hard copy: Mail to: Superintendent, Assateague Island National Seashore, 7206 National Seashore Lane, Berlin, Maryland 21811.

Instructions: Comments will not be accepted by fax, email, or in any way other than those specified above. All submissions received must include the words “National Park Service” or “NPS” and must include the docket number or RIN (1024-AE90) for this rulemaking. Comments received may be posted without change to https://www.regulations.gov/​, including any personal information provided.

Docket: For access to the docket to read comments received, go to https://www.regulations.gov/​ and search for “1024-AE90”. In compliance with the Providing Accountability Through Transparency Act of 2023, the plain language summary of the proposal is available on Regulations.gov in the docket for this rulemaking.

FOR FURTHER INFORMATION CONTACT:

Hugh Hawthorne, Superintendent, Assateague Island National Seashore; [phone] Ext 6080; [e-mail]. Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION:

Background

Purpose and Significance of Assateague Island National Seashore

In 1965, Congress established the Assateague Island National Seashore to protect and develop Assateague Island and certain adjacent waters and small marsh islands for public outdoor recreation use and enjoyment. 16 U.S.C 459f. Congress directed the Secretary of the Interior, acting through the NPS, to administer the Seashore for general purposes of public outdoor recreation, including conservation of natural features contributing to public enjoyment. 16 U.S.C. 459f-5. The NPS manages the Seashore as a unit of the National Park System. In addition to the Seashore that is managed by the NPS, other public lands on the island are managed by the Maryland Department of Natural Resources (Assateague State Park) and the U.S. Fish and Wildlife Service (Chincoteague National Wildlife Refuge).

The dominant feature of the Seashore is Assateague Island, a barrier island that stretches 37 miles along the Atlantic Coast of Maryland and Virginia. The island is a dynamic place, altered daily by powerful wind and waves. It is the largest natural barrier island ecosystem in the mid-Atlantic region that remains predominantly unaffected by human development. Only a couple of miles wide at its broadest point, the island's terrain offers shelter to famed wild horses as well as sika deer, ghost crabs, and migrating birds such as the great blue heron and snowy egret. The Seashore is a three-hour drive from Washington, Baltimore, and Philadelphia. Visitors to the Seashore can explore sandy beaches, salt marshes, maritime forests, and coastal bays. Popular recreational activities include swimming in the ocean, paddling in coastal bays, fishing, hunting, stargazing, and photography.

Authority To Promulgate Regulations

The NPS Organic Act (54 U.S.C. 100101 et seq.) gives the NPS broad authority to regulate the use of lands and waters under its jurisdiction, including a specific authority to promulgate regulations it considers necessary or proper for the use and management of National Park System units. 54 U.S.C. 100751(a). The enabling act for the Seashore allows the NPS to use applicable legal authorities, including those provided by the Organic Act, for the conservation and management of natural resources. 16 U.S.C. 459f-5.

Executive Order 11644, Use of Off-Road Vehicles on the Public Lands, was issued in 1972 and amended by Executive Order 11989 in 1977. Executive Order 11644 required Federal agencies to issue regulations designating specific areas and routes on public lands where the use of off-road vehicles may be allowed. The NPS implemented these Executive orders, in part, by promulgating a regulation at 36 CFR 4.10 (Travel on park roads and designated routes). Under 36 CFR 4.10, ( print page 5787) the use of motor vehicles off park roads is not permitted unless routes and areas are designated for off-road motor vehicle use by special regulation. Such routes and areas may be designated only in national recreation areas, national seashores, national lakeshores, and national preserves. This proposed rule would remove regulatory requirements for the use of oversand vehicles (OSVs) on designated beaches and oversand routes in the Seashore in compliance with 36 CFR 4.10 and Executive Orders 11644 and 11989.

Use and Management of OSVs in the Seashore

The use of OSVs for access and recreation is a traditional activity that occurred on Assateague Island prior to the establishment of the Seashore. Oversand driving continues to this day and allows visitors to access locations within the Seashore, including remote areas, for recreational activities such as fishing, crabbing, viewing wildlife, and enjoying coastal scenery. The NPS formalized management of OSV use with the promulgation of special regulations in 1974 (39 FR 31633). These regulations established a system of oversand permits to manage the use of OSVs. These regulations designated areas for using OSVs under permit, provided rules of travel, and authorized the suspension or revocation of a permit for violating the regulations. In 1976 the NPS amended the special regulations (41 FR 15008) to allow the superintendent to establish a system of special recreation permits and fees for OSVs. The revised regulations also authorized OSV use in designated areas; established quantified standards to determine whether an OSV qualifies for a permit; and restricted the use of towed travel trailers. The OSV regulations for the Seashore have not changed since they were last amended in 1976.

Using the superintendent's authority to establish a permit system, the superintendent has established additional management prescriptions for OSVs in the superintendent's compendium (or written compilation) of discretionary actions taken by the superintendent that is referred to in NPS regulations at 36 CFR 1.7(b). Among other actions, the compendium requires OSVs to have four-wheel or all-wheel drive and limits the number of OSVs that may be used in the Seashore. No more than 145 OSVs are allowed at any one time in designated OSV areas in Maryland. The NPS manages vehicle access on a one-off, one-on basis after this limit has been reached.

In 2021 the NPS issued a Record of Decision (ROD) finalizing a General Management Plan (GMP) for the Seashore. The GMP provides a decision-making framework that ensures that management decisions effectively and efficiently carry out the NPS mission at the Seashore into the future. The ROD states that the NPS will manage OSV use for maximum flexibility to respond to changing conditions, protect sensitive resources, and minimize conflicts with other uses of the Seashore. The ROD also states that the NPS will periodically review regulations for OSV use at the Seashore and make changes if conditions render changes necessary.

Proposed Rule

This proposed rule would amend the special regulations for the Seashore at 36 CFR 7.65(b) by revising the quantified standards used to determine if a motor vehicle qualifies for a permit that authorizes driving on designated beaches and oversand routes. The rulemaking would remove requirements that (1) the gross vehicle weight rating (GVWR) does not exceed 10,000 pounds; (2) the vehicle has at least seven inches of ground clearance; and (3) the vehicle does not exceed 26 feet in length and 8 feet in width. These requirements were established in 1976 and are no longer necessary. In addition, this rulemaking would make several technical, non-substantive changes to the regulations. All of these changes are discussed in more detail below.

GVWR Requirement

Gross vehicle weight is the base curb weight of a vehicle plus actual cargo weight and passengers. Gross vehicle weight is not a limit or specification. It is an actual weight that should never exceed the GVWR for the vehicle. The GVWR is established by the manufacturer and is the total weight the vehicle can safely carry. The National Highway Traffic Safety Administration (NHTSA) requires manufacturers to label the GVWR on all vehicles, which includes passenger cars, trucks, and buses. The label is typically found on the driver's side door jamb or the door itself. While a vehicle's actual weight can fluctuate based on load, the GVWR is a specific figure that does not change.

The current regulations for the Seashore require the GVWR of a vehicle to be less than or equal to 10,000 pounds in order to be eligible for an OSV driving permit. 36 CFR 7.65(b)(2)(ii)(D). The Seashore is the only National Park System unit with an OSV permit system that prescribes a vehicle weight limit.^[1] Although the NPS did not explain the need for this specific requirement when it was established in 1976, it was most likely established to help ensure the safe use of two bridges that provided access to and from private land within the boundary of the Seashore. These lands have since reverted back to NPS ownership. No private property interests remain within the Seashore. One of the bridges no longer exists and the other is no longer open to motor vehicles.

The NPS does not expect the removal of the GVWR requirement to result in adverse impacts to resources at the Seashore. Soil compaction and self-repair from tide cycles mitigate damage to sand on beaches used by OSVs. The NPS uses vehicles that weigh more than 10,000 pounds for administrative actions ( e.g., moving beached whales, repairing boundary fences) that do not result in damage to the sand for those reasons. There are many other requirements in the special regulations for the Seashore that mitigate impacts to natural resources from beach driving, the most important being requirements to stay on designated routes and areas that keep OSVs away from dunes and vegetation. Cutting circles and needlessly defacing the sand also is prohibited.

Several models of trucks meet or exceed the current limit of 10,000 pounds.^[2] This proposed rule would make those vehicles eligible to receive OSV driving permits. This would create more opportunities for recreation by increasing the pool of applicants that is eligible to receive an OSV driving permit, without any adverse impacts to resources.

Vehicle Ground Clearance

Ground clearance refers to the vertical distance between a vehicle's undercarriage or underside of the chassis and the ground. The current regulations for the Seashore require a vehicle to have a minimum ground clearance of seven inches in order to be eligible for an OSV driving permit. 36 CFR 7.65(b)(2)(ii)(D). Like the GVWR requirement, the NPS did not explain the need for this specific requirement when it was established in 1976. The NPS assumes that it was established to help prevent vehicles from getting stuck on the sand. Although ground clearance can be a contributing factor to whether ( print page 5788) a vehicle becomes stuck, a specific, minimum ground clearance requirement has disadvantages as a management action, and ground clearance in general is not among the most important factors that cause vehicles to become stuck.

Variation in vehicle design, manufacturing, and owner modifications have made the minimum ground clearance requirement difficult to measure and challenging to enforce. Ground level clearance can vary across the same model of a vehicle due to several factors such as trim levels, suspension types, packages and options, wheel and tire sizes, load and weight, production variations, and owner modifications. Further, the NPS has no documented or observational evidence that seven inches of ground clearance is a meaningful distance compared to other clearance levels from the ground. Many contemporary sport-utility-vehicles (SUVs) have less than seven inches of ground clearance.^[3] The NPS has no reason to believe that vehicles with less than seven inches of ground clearance, as a category, are incapable of driving directly over sand.

In general, insufficient vehicle ground clearance rarely causes vehicles to get stuck at the Seashore if other contributing factors are not present. In most cases, vehicles become stuck because the tires have not been properly deflated, which is recommended for all vehicles. In almost all other cases, vehicles become stuck because they are driven into dunes or wet sand, or because they do not have modern vehicle technology that did not exist when the existing regulations were issued in 1976. This technology includes electronic stability control,^[4] traction control systems, modern four-wheel drive (4WD), and all-wheel drive (AWD). Tire choice and condition also has a meaningful effect on vehicle traction over sand. Driver judgement, skill, and responsibility are other key factors. The NPS offers tips on the Seashore website to help avoid vehicles getting stuck. Examples are (1) spinning a vehicle's tires makes them dig deeper into the sand thereby increasing the chance the vehicle's frame will bottom out; (2) after stopping a vehicle back up several feet before proceeding forward; (3) carry 4 boards (2″x 6″x 36″) for placement under each tire when stuck; (4) driving in the tracks of another vehicle is easier than driving through fresh sand; and (5) walk across soft sand first to be sure that it will hold your vehicle. Existing regulations require vehicles to carry a shovel and a tow rope or chain that can help clear vehicles off the sand when they do get stuck. 36 CFR 7.65(b)(2)(ii)(A). The factors described above demonstrate that there are many ways to avoid vehicles getting stuck in the sand that do not require a minimum ground clearance requirement, which is poorly tailored to the problem it is intended to address and difficult to administer and enforce.

Vehicle Length and Width

The current regulations for the Seashore require a vehicle to be no longer than 26 feet and no wider than 8 feet in order to be eligible for an OSV driving permit. 36 CFR 7.65(b)(2)(ii)(D). Like the GVWR and ground clearance requirements, the NPS did not explain the need for these specific requirements when they were established in 1976. The NPS speculates that they may have been established in reference to the size of military surplus vehicles that were commonly used at the time for off-road driving. In any event, the NPS does not manage vehicle dimensions using the length and width requirements in the regulations anymore. Vehicle width is limited in practice by the size of the gate that provides OSV access to the designated beaches and oversand routes. This limiting factor, together with the requirement in the special regulations that vehicles have no more than 2 axles, has proven to be sufficient to keep vehicles that are too large from entering the designated OSV routes and areas.

Technical, Non-Substantive Changes

In addition to the changes described above, this rulemaking would make several technical, non-substantive changes to the current regulations.

In the existing table codified at 36 CFR 7.65(b)(2)(ii)(D), there is a row entitled “maximum number of wheels (per axle)” but there is no corresponding number in the right-hand column. When the regulations were published in 1976, the table showed “2” as the maximum number of wheels per axle, but then in 1999, a printing error resulted in the omission of that number from the table, where it has not appeared for 25 years. For some time, the NPS has issued permits to OSVs that have up to four wheels per axle without any observed adverse impacts to resources or visitors. In order to eliminate potential confusion about what the CFR requires compared to current management of OSVs, this rulemaking would remove the reference to “maximum number of wheels (per axle)” in the regulations.

Because the rulemaking would remove all of the quantified standards in the existing table except for the requirement that vehicles have no more than two axles, having a table is no longer necessary. As a result, the rulemaking would remove the table and instead locate the no more than two axle requirement in paragraph (b)(2)(ii)(D), in narrative form. Revised paragraph (b)(2)(ii)(D) would omit an existing reference to “four-wheel-drive vehicles” that is located in an introductory clause to the table. The rulemaking also would remove the paragraph immediately following the table. The first part of that paragraph establishes specific requirements for two-wheel-drive vehicles. The references to four-wheel-drive vehicles (before the table) and to two-wheel-drive vehicles (after the table) are no longer necessary because all OSVs must have 4WD or AWD by administrative action in the superintendent's compendium. The rest of the paragraph immediately following the table provides an exception to the vehicle dimension requirements that would no longer be necessary because the dimension requirements would be removed. Finally, the rulemaking would remove the defined term “dunes crossing,” which is not used elsewhere in the special regulations.

Compliance With Other Laws, Executive Orders and Department Policy

Regulatory Planning and Review (Executive Orders 12866 and 13563 and 14094)

Executive Order (E.O.) 14094 amends E.O. 12866 and reaffirms the principles of E.O. 12866 and E.O. 13563 and states that regulatory analysis should facilitate agency efforts to develop regulations that serve the public interest, advance statutory objectives, and are consistent with E.O. 12866 and E.O. 13563. Regulatory analysis, as practicable and appropriate, shall recognize distributive impacts and equity, to the extent permitted by law. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We developed this rulemaking in a manner consistent with these requirements.

E.O. 12866, as reaffirmed by E.O. 13563 and amended and reaffirmed by E.O. 14094, provides that the Office of Information and Regulatory Affairs ( print page 5789) (OIRA) in the Office of Management and Budget (OMB) will review all significant rules. OIRA determined that this proposed rule is not significant.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

This proposed rule would 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.). No small entities would be directly regulated by the proposed rule, which would modify vehicle requirements for visitors seeking to obtain an OSV permit for driving on designated beaches and oversand routes. OSV permits are non-transferable which means that only those persons who initially receive a permit would be affected by changes to permitting requirements. There is no limit on the number of permits that can be issued. On average, the NPS issues 1,000 OSV permits per year. In recent years, approximately 10% of permit applications have been denied due to vehicles not meeting the GWVR requirement. The NPS has not denied any permit applications for failure to meet the minimum ground clearance requirement or the vehicle dimension requirements because they have not been enforced by the NPS for the reasons explained above. As discussed above, the NPS expects that the rulemaking would slightly increase the pool of applicants eligible to receive an OSV permit by removing the GVWR requirement. This could lead to an incremental increase of visitor activity at the Seashore. The NPS expects this effect, however, to be mitigated by the fact that on many days in peak season the designated beaches and oversand routes are at maximum capacity for OSVs early in the morning through late evening. When this occurs, although the composition of visitors recreating in the designated OSV areas may be different, the total amount of visitor activity will remain the same. In summary, the NPS has considered whether this rulemaking will result in a significant economic impact on a substantial number of small entities. The NPS certifies that this rulemaking will not have a significant economic impact on a substantial number of small business entities. Therefore, a regulatory flexibility analysis is not required.

Congressional Review Act

This proposed rule is not a major rule under 5 U.S.C. 804(2). This proposed rule:

(a) Does not have an annual effect on the economy of $100 million or more.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

This proposed 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 proposed rule does not have a significant or unique effect on State, local or Tribal governments or the private sector. It addresses public use of national park lands and imposes no requirements on other agencies or governments. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

Takings (E.O. 12630)

This proposed rule does not effect a taking of private property or otherwise have takings implications under E.O. 12630. A takings implication assessment is not required.

Federalism (E.O. 13132)

Under the criteria in section 1 of E.O. 13132, the proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. This proposed rule only affects use of federally administered lands and waters. It has no direct effects on other areas. A federalism summary impact statement is not required.

Civil Justice Reform (E.O. 12988)

This proposed rule complies with the requirements of E.O. 12988. This proposed rule:

(a) Meets the criteria of section 3(a) requiring that 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 (E.O. 13175 and Department Policy)

The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and Tribal sovereignty. The NPS has evaluated this proposed rule under the criteria in E.O. 13175 and under the Department's Tribal consultation policy and has determined that Tribal consultation is not required because the proposed rule will have no substantial direct effect on federally recognized Indian Tribes. Nevertheless, in support of the Department of the Interior's and the NPS's commitment to government-to-government consultation, the NPS intends to send letters of notification to Indian Tribes that are traditionally associated with the land that is now part of the Seashore, including the Accohannock, Pocomoke, Nanticoke, and Assateague peoples.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

This rulemaking contains existing information collections. All information collections require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA, 44 U.S.C. 3501 et seq.). We may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has reviewed and approved the information collection requirements associated with this rulemaking and assigned OMB Control Number 1024-0026 (expires March 31, 2027). This proposed rule contains no new information requirements that will affect the currently approved information collection. The NPS will use Recreation.gov to collect information necessary to make the financial transaction required to purchase an OSV permit.

National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.)

This proposed rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because the rulemaking is covered by a categorical exclusion. NPS NEPA Handbook (2015) Section 3.3.D.3 allows for the following to be categorically excluded: Minor changes in programs and regulations pertaining to visitor activities. This rulemaking would make minor changes to the eligibility requirements for obtaining an OSV permit for the Seashore. The substantial majority of requirements for OSV use at the Seashore will remain the same. The NPS has also determined that the proposed rule does not involve any of the extraordinary circumstances listed in 43 ( print page 5790) CFR 46.215 that would require further analysis under NEPA.

Effects on the Energy Supply (E.O. 13211)

This proposed rule is not a significant energy action under the definition in E.O. 13211; the proposed rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy, and the proposed rule has not otherwise been designated by the Administrator of Office of Information and Regulatory Affairs as a significant energy action. A statement of energy effects is not required.

Clarity of This Rulemaking

The NPS is required by E.O.s 12866 (section 1(b)(12)) and 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential memorandum of June 1, 1998, to write all rules in plain language. This means that each rule the NPS publishes must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use common, everyday words and 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 the NPS has not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help the NPS revise the rule, your comments should be as specific as possible. For example, you should identify the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

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 by one of the methods listed in the ADDRESSES section of this document.

Public Availability of Comments

Before including your address, phone number, email 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.

List of Subjects in 36 CFR Part 7

• National parks
• Reporting and Recordkeeping requirements

For the reasons stated in the preamble, and under the authority of 16 U.S.C. 363 and 54 U.S.C. 100751, the National Park Service proposes to amend 36 CFR part 7, as set forth below:

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

1. The authority citation for part 7 continues to read as follows:

Authority: 54 U.S.C. 100101, 100751, 320102; Sec. 7.96 also issued under DC Code 10-137 and DC Code 50-2201.07.

2. Amend § 7.65 by removing paragraph (b)(1)(iv) and revising paragraph (b)(2)(ii)(D) to read as follows:

§ 7.65

Assateague Island National Seashore.

* * * * *

(b) * * *

(2) * * *

(ii) * * *

(D) Which has more than two axles on vehicles and trailers towed by any vehicle.

* * * * *

Shannon Estenoz,

Assistant Secretary for Fish and Wildlife and Parks.

Footnotes

1.  See special regulations for Gulf Island National Seashore (36 CFR 7.12), Gateway National Recreation Area (36 CFR 7.29), Cape Lookout National Seashore (36 CFR 7.49), Cape Hatteras National Seashore (36 CFR 7.58), and Cape Cod National Seashore (36 CFR 7.67).

2.  Examples include Ford F-250, Ford F-450, GMC Sierra 2500HD, Chevy Silverado 2500HD Work Truck, and Ram 2500 Tradesman. Source: Edmunds.com (last visited December 5, 2024).

3.  Examples include Toyota C-HR, Buick Encore, Mini Cooper Countryman, Kia Soul, Hyundai Kona, Ford Escape, Kia Sorento, and Cadillac XTC. Source: https://motorandwheels.com/​suvs-with-lowest-ground-clearance/​ (last visited December 6, 2024).

4.  NHTSA required all new passenger vehicles with a GVWR of 10,000 or less to be equipped with electronic stability control beginning in model year 2012. 72 FR 17236 (April 6, 2007).