E8-21943. Special Regulation: Areas of the National Park System

AGENCY:

National Park Service, Interior.

ACTION:

Final Rule.

SUMMARY:

This final rule provides for the protection of the Western Snowy Plover (Charadrius alexandruinus nivosus), a species listed as threatened under the Endangered Species Act. Western Snowy Plovers spend approximately 10 months of the year within Golden Gate National Recreation Area (GGNRA), both at Crissy Field and Ocean Beach. This rulemaking will provide temporary protection for plovers in those two areas until a permanent determination is made through the planning process for the entire park. The park is developing a Dog Management Plan/Environmental Impact Statement (EIS) and special regulations for dog management, which are expected to be completed by winter 2010.

DATES:

This rule is effective on October 20, 2008.

FOR FURTHER INFORMATION CONTACT:

Brian O'Neill, General Superintendent, Golden Gate National Recreation Area, Fort Mason, [phone].

SUPPLEMENTARY INFORMATION:

Background

In November 2006 and July 2007, Golden Gate National Recreation Area (GGNRA) adopted emergency regulatory provisions under 36 CFR 1.5, requiring all dogs to be on-leash when plovers are present on a portion of Crissy Field designated as the Wildlife Protection Area (WPA) and on a portion of Ocean Beach designated as the Snowy Plover Protection Area (SPPA). Emergency restrictions in these two areas were established for the protection of the federally listed Western Snowy Plover. These emergency restrictions are temporary and necessary until the completion of this rulemaking.

Habitat degradation caused by human disturbance, urban development, introduced beachgrass (Ammophila spp.), and expanding predator populations has resulted in a decline in active nesting areas and in the size of the breeding and wintering populations. (Source: Recovery Plan for the Pacific Coast Population of the Western Snowy Plover (Charadrius alexandrinus nivosus), Volume 1: Recovery Plan, 8/13/2007.)

The plover's threatened status affords it protection from harassment. The regulations that implement the Act define “harass” as “an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavior patterns which include, but are not limited to, breeding, feeding, or sheltering.”

On November 20, 2007, the NPS published in the Federal Register a proposed rule (72 FR 65278) to provide for the protection of the Western Snowy Plover (Charadrius alexandruinus nivosus), a species listed as threatened under the Endangered Species Act. A 60-day public comment period closed on January 22, 2008. The National Park Service (NPS) received 1,574 comments on the proposed rule.

Summary of Comments

Enforcement (This topic was the subject of the greatest number of comments.)

1. Comment: Stiff fines are essential and a stronger presence of park law enforcement personnel is both necessary and appropriate. Increased enforcement of current rules would be insufficient to protect the Western Snowy Plover (hereafter referred to as plover). Commenters also cited a lack of enforcement action by park rangers. Some commenters supporting the proposed rule believed that strong enforcement of a clearly understood rule would be the best protection measure for the plover.

Recommendations offered regarding improved enforcement included:

• Focusing on enforcement of existing rules for wildlife harassment rather than creating new rules,
• Developing an adequate enforcement plan and obtaining necessary funding, and
• Increasing park ranger presence at the two sites and issuing citations to those visitors whose dogs actually chase and harass plovers.

Response: The park will implement several measures to support enforcement of regulations to protect the plovers. A Plover Docent Program for education and outreach was established in March 2008. Seasonal staff will be added to allow increased enforcement throughout the park, including plover areas. Additionally, the final rule has specific starting and ending dates for the annual restriction which will aid both public understanding and enforcement. Fines for violations of park regulations are determined by the Federal Court and are not within the purview of the NPS.

Fences/Enclosures

2. Comment: Some commenters felt fences or other enclosures were a problem and others felt they were a possible solution for accommodating off-leash dog recreation. Those who opposed fencing/enclosures either felt they would be too confining for dogs and their owners or that there were already too many fences in the park/city/world. Those who proposed the idea believed fences/enclosures would be a good compromise that would still allow dogs a space to play.

Response: This rule was developed to protect the snowy plover in the interim while the park completes the Dog Management Plan/EIS. The possibility of using fencing or barriers to separate dogs from the plover protection areas will be analyzed in the Dog Management EIS currently being developed by the NPS.

Education

3. Comment: There is a need for more signs and education as part of the solution. Commenters stated that they believe educating visitors and dog owners about the need to protect the plover and its habitat would be sufficient to keep their dogs away from plovers.

Response: The park will implement several educational measures as well as increase enforcement of regulations to protect the plovers, as the NPS believes that enhanced education and outreach by itself would not be sufficient to protect plovers. The NPS feels that setting specific start and end dates for the restrictions in this final rule will increase public understanding and compliance of the restrictions. The park also instituted a Plover Docent Program that will provide on site education and outreach; education will be improved by the addition of interpretive signs.

Duration of Restriction

4. Comment: Seasonal closures would complicate enforcement during open periods when the plover is present. Commenters expressed concern that the proposed restriction would not be in force year-round and stated that the rule was ambiguously worded and created confusion since it identified two different dates (July 1 to May 1 or when the plover is no longer present) for lifting the seasonal restriction.

Response: To clarify the seasonal restriction, a firm ending date of May 15 replaced language that removed the restriction when monitoring determined that the species was no longer present. Long term NPS monitoring data shows the last plovers having departed from both plover protection areas by May 15. Therefore, using May 15 as the date the restriction terminates will still enable the NPS to protect the plovers. The final rule will clearly state that this annual restriction starts on July 1 and ends on May 15. All signs and public information will be updated to clearly reflect these dates.

Habitat Concerns

5. Comment: If the proposed rule were not implemented there would be a resulting loss of plover habitat. Commenters also stated that in an urban setting it was necessary to maintain spaces where a species could live in order to support its survival and to provide enjoyment for area residents. Other comments characterized the proposed rule as a response to the oil spill that took place within the San Francisco Bay several months earlier. Commenters also stated that there were plenty of locations outside of the park where the plover could live.

Response: The plover is listed as a threatened species under the Endangered Species Act (ESA), and protection for plovers is required in NPS areas used as habitat for plovers. This rule is in response to this requirement of the ESA rather than to any particular event such as the oil spill.

Plovers continue to be threatened by degradation and loss of breeding and wintering habitat caused by expanding beachfront development, encroachment of introduced European beach grass and intense recreational use of beaches. The Ocean Beach and Crissy Field sites are areas consistently used by plovers.

Protection

6. Comment: Protection of both plover habitat and the species itself is an important consideration because dogs pose a risk to plovers and their long-term survivability. Commenters stated that it was necessary to protect or “Save the Plover.” Recommendations made by those that favored increased protection for the plover included:

• Changing the rule from temporary to permanent,
• Closing the Ocean Beach Plover Protection Area (SPPA) to dogs (extending from Stairwell 21 to Sloat Boulevard),
• Closing the Crissy Field Wildlife Protection Area (WPA) year-round to all public access, and
• Establishing a permanent ban on dogs at both Ocean Beach and Crissy Field.

Response: This rulemaking will provide temporary protection for plovers in these two areas until a permanent determination is made through the Dog Management Plan/EIS and a special regulation for dog management at GGNRA, which is expected to be completed by early 2010. The EIS will analyze a range of options and some of these recommendations may be included in the EIS.

Park as Recreation Area

7. Comment: It is incumbent on GGNRA to consider human recreation needs first and foremost. GGNRA does not have designated wilderness nor is it a nature preserve and the park's enabling legislation and park purpose are aimed at meeting the recreational needs of an urban area.

Response: The park's enabling legislation (Pub. L. 92-589) states that GGNRA “shall utilize the resources in a manner which will provide for recreation and educational opportunities consistent with sound principles of land use planning and management. In carrying out the provisions of this Act, the [Secretary] shall preserve the recreation area, as far as possible, in its natural setting, and protect it from development and uses which would destroy the scenic beauty and natural character of the area.” Courts have decided that the GGNRA Act, together with the National Park Service Organic Act, impose an overriding conservation mandate on the NPS. The NPS believes that this rule is in keeping with the goals of GGNRA's enabling legislation and the National Park Service Organic Act.

Inadequate Size of Closure Area

8. Comment: The proposed rule does not include the entire beach at Crissy Field and Ocean Beach. The “imaginary boundaries” developed for the closure areas do not coincide with a visitor's typical understanding of GGNRA boundaries, which would lead to confusion and a lack of compliance

Response: The areas restricted by this rule are those sites used by plovers while they are in the park. Plovers are particular in their habitat choices; within the park, they select wide, flat open beaches for foraging and resting where they can see potential predators approaching. These conditions are found in the Crissy Field Wildlife Protection Area and the Ocean Beach Plover Protection Area. In addition, the NPS will develop new signage and outreach materials to educate the public about the rule. These efforts will help to minimize any public confusion about the geographic areas in which the restriction applies.

Feces

9. Comment: The presence of feces left by dogs and the associated human health risks are a concern as well as the potential presence of pathogens, coupled with the lack of courtesy, makes the current management of dogs in the park unacceptable.

Response: This topic is not within the purview of this rule, but will be addressed in the Dog Management Plan/EIS currently being developed by NPS staff.

Off-Leash Dogs

10. Comment: Off-leash dogs and their effects on the safety of visitors, other dogs and other wildlife are a concern. Off-leash dogs should not be allowed in Golden Gate National Recreation Area without safeguards such as enclosures.

Response: This topic is not within the purview of this rule, but will be addressed in the Dog Management Plan/EIS currently being developed by the NPS.

Dogs Unwelcome/Uninvited Jumping on Visitors

11. Comment: Uncontrolled off-leash dogs will run at and jump on beach users. Some commenters stated they no longer go to the park because of the perceived threat of attack or being knocked down by dogs, especially older persons or the parents of young children.

Response: This rule requires dogs to be kept on a leash not exceeding six feet in length while they are in the plover protection areas between July 1 and May 15. The Dog Management Plan/EIS will address visitor safety in dogwalking areas parkwide.

Lack of Consensus

12. Comment: The science used in developing the proposed rule is inadequate. The science the NPS relied upon is flawed or simply wrong, including the studies that the NPS conducted themselves. There is a lack of consensus within the scientific community about the impacts to plovers from human activities, and in particular, off-leash dogs. Commenters identified and submitted other studies that concluded that there are no impacts to plovers from off-leash dogs.

Response: The decision to publish a final rule was guided by section 2.1.2 of the NPS Management Policies 2006: “Decision-makers and planners will use the best available scientific and technical information and scholarly analysis to identify appropriate management actions for protection and use of park resources”. In addition to information provided by NPS monitoring and studies, the U.S. Fish and Wildlife Service's (FWS) 2007 final Recovery Plan for the Pacific Coast Population of the Western Snowy Plover (Charadrius alexandrinus nivosus) identifies disturbance from off-leash dogs as a threat to the survivorship and fecundity of individual plovers, which could affect the species at the population level. The FWS recommends that land managers should prohibit pets on beaches where plovers traditionally nest or winter because non-compliance with leash laws can cause serious adverse impacts to plovers. If pets are not prohibited, they should be leashed and under control at all times.

Laws and Regulations

13. Comment: The NPS is required to follow laws, regulations, and policies that relate to environmental protection, including the Organic Act of 1916, the Endangered Species Act, and NPS Management Policies 2006. Some commenters were confused about the jurisdiction of the subject lands and the corresponding legal and policy requirements, but expressed strong support for environmental safeguards and action.

Response: This final rule meets the requirements of the Organic Act, the Endangered Species Act, the park's enabling legislation (Pub. L. 92-589) and NPS Management Policies 2006. The final rule will augment existing regulations which prohibit the harassment of wildlife.

City-Federal Agreement

14. Comment: GGNRA is violating the terms and intent of the “City-Federal agreement”. The agreement required these two sites be used for recreation and not as a nature preserve.

Response: A letter of agreement between the City and County of San Francisco and the National Park Service, dated April 29, 1975, states that “The National Park Service, acting through the General Superintendent, agrees to utilize the resources of GGNRA in a manner which will provide for recreational and educational opportunities consistent with sound principles of land use, planning and management, to preserve GGNRA in its natural setting and protect it from development and uses which would destroy the scenic beauty and natural character of the area, and to maintain the transferred premises in a good and sightly condition; * * *” The deed granted to the federal government stated that the NPS is “To hold only so long as said real property is reserved and used for recreation or park purposes * * *” The final rule is in keeping with the terms of the agreement—the area is being used for recreation purposes while protecting its natural setting and character.

Stewardship

15. Comment: As a preservation-based agency, the NPS must act as stewards of the land and resources under its management, and when faced with a decision involving recreation and preservation of resources, the NPS should err on the side of resource preservation.

Response: The final rule allows the NPS to meet its obligations under the ESA and the Organic Act of 1916. The rule also follows management direction provided in NPS Management Policies 2006, section 1.5 which states: “When proposed park uses and the protection of park resources and values come into conflict, the protection of resources and values must be predominant.”

Harassment and Flushing

16. Comment: Dogs have been seen chasing plovers and there is concern about effects of this activity on the species, including behavioral changes and breeding success. Other commenters have stated that they have not seen evidence of dogs impacting the plovers and that the proposed rule was not based on sound science, but rather was being used by the park to arbitrarily place limits on dogs and their owners.

Response: According to the USFWS Snowy Plover Recovery Plan dogs on beaches can pose a serious threat to western snowy plovers during both the breeding and non-breeding seasons. Unleashed pets, primarily dogs, sometimes chase plovers and destroy nests. Repeated disturbances by dogs can interrupt brooding, incubating, and foraging behavior of adult plovers and can cause chicks to become separated from their parents. At wintering sites such as Ocean Beach in San Francisco, California, off-leash dogs have caused frequent disturbance and flushing of plovers and other shorebirds. Off-leash dogs chase wintering plovers at this beach and have been observed to regularly disturb and harass birds (P. Baye, U.S. Fish and Wildlife Service, pers. comm. 1997). When shorebirds are flushed, they must spend more energy on vigilance and avoidance behaviors at the expense of foraging and resting activity (Burger 1993, Hatch 1997). Disruption of foraging and roosting may result in decreased accumulation of energy reserves necessary for shorebirds to complete the migration cycle and successfully breed (Burger 1986, Pfister et al. 1992). Dog disturbance at wintering and staging sites, therefore, may adversely affect individual survivorship and fecundity, thereby affecting the species at the population level (U.S. Fish and Wildlife Service. 2007. Recovery Plan for the Pacific Coast Population of the Western Snowy Plover (Charadrius alexandrinus nivosus). In 2 volumes. Sacramento, California. xiv + 751 pages). In addition, NPS monitoring data over the last several years have documented instances of dogs disturbing plovers. The NPS believes there is adequate scientific support for this final rule.

Protected Species Listing

17. Comment: GGNRA, as a federal agency, has a responsibility to protect the plover, a protected species listed under the ESA, according to the requirements of the law and for the values that protected species represent to society.

Response: The Western Snowy Plover's threatened status under the ESA requires the NPS to proactively conserve it and prevent detrimental effects on the species. This rulemaking will provide temporary protection for two areas until a permanent determination is made through the Dog Management/EIS for the entire park. As stated in NPS Management Policies 2006, section 4.4.2.3: “The Service will fully meet its obligations under the NPS Organic Act and the Endangered Species Act to both proactively conserve listed species and prevent detrimental effects on these species.”

Off-Leash Exercise Opportunities

18. Comments: GGNRA is one of the few areas available to provide off-leash opportunities; dog owners need these park areas to exercise their dogs. Commenters stated that dogs had “rights” and watching them run in the surf and on the beaches give both the dogs and their owners great pleasure. Those opposed to off-leash exercising felt there are plenty of other areas for dogs to run or exercise off-leash.

Response: The final rule does not eliminate the opportunity for off-leash dog walking at Ocean Beach and Crissy Field outside of the designated plover protection areas. Outside of the protected areas 0.99 miles of beach at Crissy Field, as well as the Crissy Field airfield and promenade, are available for off-leash dog walking. At Ocean Beach and Fort Funston 2.4 miles of beach are available for off-leash dog walking. Other areas that provide additional off-leash dog opportunities also exist both within GGNRA and outside of the park.

Public Access

19. Comment: Park visitors have a right to use all recreation sites as off-leash areas. Other commenters felt that dog owners had a responsibility to keep their dogs under control and did not have special rights or access privileges.

Response: As stated in section 1.5 of the NPS Management Policies 2006: “An `appropriate use' is a use that is suitable, proper, or fitting for a particular park, or to a particular location within a park. Not all uses are appropriate or allowable in units of the national park system, and what is appropriate may vary from one park to another and from one location to another within a park * * *. When proposed park uses and the protection of park resources and values come into conflict, the protection of resources and values must be predominant.” The NPS believes that the plover protection areas are not appropriate for off-leash dog recreation when the plover is present.

Changes to the Final Rule

After examining all public comments received and additional monitoring data, the NPS is amending the final rule to set firm dates for both the start and end of the annual restrictions (July 1 to May 15) to clarify the seasonal restriction and improve compliance with the regulation. In the proposed rule the annual end date would have been determined by monitoring the departure of plover from these areas. The firm ending date of May 15 replaced language that removed the restriction when monitoring determined that the species was no longer present. Long term NPS monitoring data show the last plovers having departed from both plover protection areas by May 15. Therefore, using May 15 as the date the restriction terminates will still enable the NPS to protect the plovers. The final rule will clearly state that this annual restriction starts on July 1 and ends on May 15.

Compliance With Other Laws

Regulatory Planning and Review (Executive Order 12866)

This document is not a significant rule and is not subject to review by the Office of Management and Budget 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. Most of the areas proposed to be restricted through this rulemaking have been closed or restricted for the same activity through the park's compendium in the past, although those closures or restrictions were not published in the Federal Register. Since this is not a new closure or restriction, and because opportunities for off-leash dogwalking still exist in these areas, the proposed rule will not significantly affect the existing patterns of park users.

(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. GGNRA has received letters of concurrence for the emergency restrictions in these areas, and has begun informal consultation with U.S. Fish and Wildlife Service. This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients.

(3) This rule does not raise novel legal or policy issues.

Regulatory Flexibility Act

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.). The economic effects of this rule are local in nature and negligible in scope. The primary purpose of this rule is to provide protection for a threatened species. The rule will require dogwalkers to leash their dogs when in specified areas. There will be no economic effect of this additional required action.

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. This rule will only affect those who choose to walk their dogs in two designated areas.

b. Will not cause a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions. There will be no costs associated with the requirement to leash dogs in these two designated areas.

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. The primary purpose of this regulation is to provide additional protection for a threatened species. This rule will not change the ability of United States based enterprises to compete in any way.

Unfunded Mandates Reform Act

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. The restrictions under this regulation do not have a significant effect or impose an unfunded mandate on any agency or on the private sector. This rule applies only to Federal parkland administered by the National Park Service in GGNRA, and no costs will be incurred by any parties.

Takings (Executive Order 12630)

In accordance with Executive Order 12630, the rule does not have significant takings implications. This rule does not apply to private property, or cause a compensable taking, there are no takings implications.

Federalism (Executive Order 13132)

In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. This regulation will not have a substantial direct effect on the states, or on the distribution of power and responsibilities among the various levels of government. The rule addresses dog walking in two areas of the Golden Gate National Recreation Area. The affected lands are under the administrative jurisdiction of the National Park Service.

Civil Justice Reform (Executive Order 12988)

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

This regulation does not require an information collection from 10 or more parties and a submission under the Paperwork Reduction Act is not required. An OMB form 83-I is not required.

National Environmental Policy Act

The Handbook for NPS Director's Order 12 contains a listing of Categorical Exclusions. Section 3.4 D(2) of the Director's Order 12 Handbook provides that “minor changes in programs and regulations pertaining to visitor activities” may be categorically excluded under NEPA. The proposed regulations for Ocean Beach and Crissy Field are actions that would result in minor changes to regulated visitor activities in these areas (transitioning seasonally from unleashed to leashed dog recreation). GGNRA has prepared all the appropriate Categorical Exclusion screening forms. These forms disclose that the adoption of these regulations would result in no measurable adverse environmental effects. Furthermore, no exceptional circumstances or conditions exist that would make use of a Categorical Exclusion inappropriate. As such, a Categorical Exclusion under NEPA is the appropriate form of NEPA compliance for these regulatory actions.

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994, “Government to Government Relations with Native American Tribal Governments” (59 FR 22951) and 512 DM 2, we have evaluated potential effects on federally recognized Indian tribes and have determined that there are no potential effects.

Clarity of 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.

Drafting Information: The primary authors of this rule are: Marybeth McFarland, Law Enforcement Specialist; Christine Powell, Public Affairs Specialist, Shirwin Smith, Management Analyst, Barbara Goodyear, Solicitor, PWRO; and Jerry Case, Regulations Program Manager, NPS, Washington, DC.

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

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

Authority: 16 U.S.C. 1, 3, 9a, 460(q), 462(k); Sec. 7.96 also issued under D.C. Code 8-137 (1981) and D.C. Code 40-721 (1981).

2. Add new paragraph (d) to § 7.97 to read as follows:

§ 7.97

Golden Gate National Recreation Area.

* * * * *

(d) Dogs—Crissy Field and Ocean Beach Snowy Plover Areas. (1) Dogs must be restrained on a leash not more than six feet in length starting July 1 and ending May 15, in the following areas:

(i) Crissy Field Wildlife Protection Area (WPA): Dog walking restricted to on-leash only in the area encompassing the shoreline and beach north of the Crissy Field Promenade (excluding the paved parking area, sidewalks and grass lawn of the former Coast Guard Station complex) that stretches east from the Torpedo Wharf to approximately 700 feet east of the former Coast Guard station, and all tidelands and submerged lands to 100 yards offshore.

(ii) Ocean Beach Snowy Plover Protection Area (SPPA): Dog walking restricted to on-leash only in the area which encompasses the shoreline and beach area west of the GGNRA boundary, between Stairwell 21 to Sloat Boulevard, including all tidelands and submerged lands to 1,000 feet offshore.

(2) Notice of these annual restrictions will be provided through the posting of signs at the sites, on maps identifying the restricted areas on the park's official website and through maps made available at other places convenient to the public.

Dated: September 5, 2008.

Lyle Laverty,

Assistant Secretary for Fish and Wildlife and Parks.