[Federal Register Volume 72, Number 244 (Thursday, December 20, 2007)]
[Proposed Rules]
[Pages 72316-72318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-6152]
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DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 7
Establishment of Negotiated Rulemaking Advisory Committee for
Off-Road Vehicle Management, Cape Hatteras National Seashore
AGENCY: National Park Service (NPS), Interior.
ACTION: Notice of establishment and Notice of the first and second
meetings of the Negotiated Rulemaking Advisory Committee for Off-Road
Vehicle Management at Cape Hatteras National Seashore.
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SUMMARY: The Negotiated Rulemaking Advisory Committee for Off-Road
Vehicle Management at Cape Hatteras National Seashore (Seashore) is
established under the authority of 16 U.S.C. 1a-2(c), and in accordance
with the Negotiated Rulemaking Act, 5 U.S.C. 561-570. The establishment
of this Committee is in the public interest and supports the NPS in
performing its duties and responsibilities under the NPS Organic Act,
16 U.S.C. 1 et seq.; Executive Order 11644, as amended by Executive
Order 11989; 36 CFR 4.10; the Endangered Species Act, 16 U.S.C. 1531 et
seq.; the enabling legislation for the Seashore, 16 U.S.C. 459 et seq.;
and other legal authorities.
An unusual combination of events in the preparation, approval, and
transmission of this notice has resulted in the publication of this
notice less than 15 days before the date of the first meeting and
official date of establishment. The National Park Service has made
extraordinary efforts to provide other forms of notification to all
Committee members and to the public.
DATES: The Committee will hold its first meeting on January 3-4, 2008,
from 8:30 a.m. to 5:30 p.m. on January 3, and from 8:30 a.m. to 3:30
p.m. on January 4. The meetings on both days will be held at the Avon
Fire Hall, 40159 Harbor Drive, Avon, North Carolina 27915.
The Committee will hold its second meeting on February 26-27, 2008,
from 8:30 a.m. to 5:30 p.m. on February 26, and from 8:30 a.m. to 3:30
p.m. on February 27. The meetings on both days will be held at the
Ramada Inn, 1701 South Virginia Dare Trail, Kill Devil Hills, North
Carolina 27948.
FOR FURTHER INFORMATION CONTACT: Mike Murray, Superintendent, Outer
Banks Group, 1401 National Park Drive, Manteo, North Carolina 27954,
(252) 473-2111, ext. 148.
SUPPLEMENTARY INFORMATION: The Committee's function is to assist
directly in the development of special regulations for management of
off-road vehicles (ORVs) at Cape Hatteras National Seashore (Seashore).
Executive Order 11644, as amended by Executive Order 11989, requires
certain Federal agencies to publish regulations that provide for
administrative designation of the specific areas and trails on which
ORV use may be permitted. In response, the NPS published a general
regulation at 36 CFR 4.10, which provides that each park that
designates routes and areas for ORV use must do so by promulgating a
special regulation specific to that park. It also provides that the
designation of routes and areas shall comply with Executive Order
11644, and 36 CFR 1.5 regarding closures. Members of the Committee will
negotiate to reach consensus on concepts and language to be used as the
basis for a proposed special regulation, to be published by the NPS in
the Federal Register, governing ORV use at the Seashore. The duties of
the Committee are solely advisory.
In accordance with the Negotiated Rulemaking Act, 5 U.S.C. 561-570,
a Notice of Intent to Establish a Negotiated Rulemaking Advisory
Committee was published in the Federal Register on June 28, 2007,
providing a 30-day public comment period which concluded July 30, 2007.
The NPS received 143 comment letters or comment entries in the NPS
Planning, Environment, and Public Comment (PEPC) on-line system during
the comment period.
Responses to Comments Suggesting Additions to the Committee
The NPS received comments from a number of nonresident owners and
renters of vacation homes asking that representatives of the Hatteras
Landing Homeowners Association, Inc., and the Hatteras Island
Homeowners Coalition be appointed as members of the Committee to
represent their interests (nonresident property owners/renters and
pedestrian and safety issues respectively) and to better balance the
representation of interests on the Committee. One commenter noted that
Hatteras Island is a premier surfing destination on the East Coast, and
asked that NPS consider appointing a local resident from the Eastern
Surfers Association or a representative from the Surfrider Foundation
to represent interests of surfers.
Response
The NPS is aware that a balanced Committee is necessary for
discussions
[[Page 72317]]
to be meaningful and fair. The Negotiated Rulemaking Act states that a
Federal agency considering negotiated rulemaking must determine that
there are a limited number of identifiable interests that will be
significantly affected by the rule, and that there is a reasonable
likelihood that a committee can be convened with a balanced
representation of persons who can adequately represent the interests
identified. The Act also states that a Federal agency can use the
services of a ``convener'' to make these determinations. The NPS,
working through the U.S. Institute for Environmental Conflict
Resolution, contracted with the Consensus Building Institute and Fisher
Collaborative Services, which subsequently assisted in identifying
interests that would be significantly affected by a proposed rule, and
representatives of those interests. The Cape Hatteras National
Seashore: Negotiated Rulemaking Feasibility Report (Feasibility Report)
noted that there is no Outer Banks-wide organization that represents
nonresident property owners and that there is no known, local or
regional organized group whose primary interest is pedestrian beach use
and public safety. The NPS agrees that nonresident homeowner and
pedestrian-only areas interests are underrepresented in its initial
proposal. Accordingly, NPS has recommended that the Hatteras Landing
Homeowners Association be given a seat on the Committee with its
president, Jeffrey Wells, appointed as a member to represent the
interests of nonresident homeowners. The NPS has further recommended
that the Hatteras Island Homeowners Coalition be given a seat on the
Committee with its president, Stephen Kayota, appointed as a member to
represent pedestrian and safety interests.
The Surfrider Foundation and the Eastern Surfing Association
promote conservation and protection of ocean and coastal environments
from pollution. Because the conservation and environmental protection
interest is represented by other groups with similar perspectives, NPS
determined that the interests of surfers would be represented
adequately by the other conservation/environmental groups and that the
access and experience interests, which are also important to surfers,
would be represented adequately by other groups in the user category
such as the Cape Hatteras Recreational Alliance and the Watersports
Industry Association.
Comments Suggesting Restructuring the Committee
Several comments stated that the Committee was not balanced, citing
the overlapping group memberships of a number of the ORV and
recreational fishing proponent members. One comment suggested that a
smaller and more balanced Committee should be created. Some comments
suggested removing proposed members perceived as argumentative, biased,
and not willing to look for consensus.
A Commenter also suggested that the two proposed representatives
from the Watersports Industry Association be replaced by
representatives from the Eastern Surfing Association or the Surfrider
Foundation to represent interests of surfers. This comment questioned
the appropriateness of appointing individuals with vested business
interests in access to the beach for business purposes and stated that
the Watersports Industry Association does not have a broad base of
support for the sports enjoyed on Hatteras and Ocracoke.
Response
The NPS understands that a number of representatives have
overlapping memberships in different groups. The Feasibility Report
also noted this overlap while recognizing that, even though there are
common interests, each member also represents a different perspective
and interest that needs to be represented for the Committee to
negotiate a proposed rule that will consider all interests. All
interest groups significantly affected by the ORV regulation must be
involved in any meaningful negotiation. Moreover, the final membership
proposed must represent a balance of interests. The NPS believes that
the final composition of the Committee will accomplish these purposes.
The NPS has been advised by the Department of the Interior ethics
office that appointment to a negotiated rulemaking committee of
individuals with interests in access to the beach for business purposes
is acceptable. Further, ethics rules relating to advisory committees
will be discussed at an early meeting of the Committee to ensure that
members understand them. Finally, NPS agrees that the Watersports
Industry Association is concerned with a broader spectrum of activities
than are enjoyed at Cape Hatteras National Seashore, but notes that
those activities, such as surfing, enjoyed on Hatteras and Ocracoke are
included within its interests.
Comments on Committee Purpose and Process
Comments were received on additional factors surrounding the
establishment of the Committee. Broadly categorized, these comments
addressed: the willingness of members to negotiate and reach consensus,
and proposed procedures and guidelines for the Committee.
Response
Committee members are required to negotiate in good faith,
including considering others' perspectives and approaching negotiations
with an open mind. Every proposed Committee member has agreed to do
this. Also, to police itself, the Committee will adopt ground rules to
enhance its ability to negotiate and reach consensus. Finally, the NPS
Designated Federal Official for the Committee has the authority to
recommend to the Secretary that a member who is not negotiating in good
faith be removed from the Committee.
The procedures and guidelines for the Committee that one commenter
proposed are similar to those recommended by the Feasibility Report
with which the NPS has concurred. The NPS expects that the Committee
will consider these procedures and guidelines when it adopts its ground
rules.
Additional Comments
A number of comments were received that did not address the
establishment, scope or membership of the negotiated rulemaking
Committee, but did address the general issue of ORVs at Cape Hatteras
National Seashore. Those comments fell into the following categories:
Support or opposition for different levels of ORV access; options for
specific elements of an ORV management plan; opinions on the meaning of
the Seashore's enabling legislation; support for strict enforcement and
penalties for violations of ORV regulations; concerns about visitor
safety and beach driving; park values, including recreational surf-
fishing, enjoyment of wildlife and nature, opportunity for family
bonding, and enjoyment of the park's beaches; potential impacts of ORV
management on socioeconomics, visitor use and experience, wildlife and
wildlife habitat, and topographic conditions; the recent U.S. District
Court Order; the Interim Protected Species Management Strategy/
Environmental Assessment; and the proposed critical habitat
designation.
[[Page 72318]]
Response
The NPS is preparing an ORV Management Plan and associated
environmental impact statement that will evaluate a full range of
reasonable alternatives for ORV management at Cape Hatteras National
Seashore. The NPS will take these comments into consideration when
preparing the plan.
Committee Membership
The Secretary of the Interior has appointed the following primary
and alternate members to the Committee:
Civic and Homeowner Associations:
1. Rodanthe-Waves-Salvo Civic Association, member C.A. Duke,
alternate Pat Weston (Greater Kinnakeet Shores Homeowners, Inc., and
Rodanthe-Waves-Salvo Civic Association).
2. Avon Property Owners Association, member Frank Folb, alternate
Pat Weston (Greater Kinnakeet Shores Homeowners, Inc., and Rodanthe-
Waves-Salvo Civic Association).
3. Hatteras Island Homeowners Coalition, member Steven Kayota,
alternate Vincenzo Sanguineti (Hatteras Island Homeowners Coalition).
4. Hatteras Village Civic Association, member Roy Kingery.
5. Hatteras Landing Homeowners Association, Inc., member Jeffrey
Wells.
Commercial Fishermen:
6. North Carolina Fisheries Association, Michael Peele, alternate
William Foster (North Carolina Fisheries Association).
Environmental and Natural Resource Conservation Groups, State/
Regional/Local:
7. Southern Environmental Law Center, member Derb Carter, alternate
Michelle Nowlin (Southern Environmental Law Center).
8. North Carolina Audubon, member Walker Golder, alternate Sidney
Maddock (National Audubon Society).
Environmental and Natural Resource Conservation Groups, National:
9. Coalition of National Park Service Retirees, member Robert
Milne, alternate Dwight Rettie (Coalition of National Park Service
Retirees).
10. Defenders of Wildlife, member Jason Rylander, alternate Andrew
Hawley (Defenders of Wildlife).
11. Natural Resources Defense Council and The Wilderness Society,
member Destry Jarvis, alternate Leslie Jones (The Wilderness Society).
12. The Nature Conservancy, member Sam Pearsall, alternate Aaron
McCall (The Nature Conservancy).
Government, County:
13. Dare County, member Warren Judge, alternate Lee Wrenn (Dare
County).
14. Hyde County, member David Scott Esham, alternate Eugene
Ballance (Hyde County).
Government, Federal:
15. Cape Hatteras National Seashore, member Michael Murray,
alternate Thayer Broili (Cape Hatteras National Seashore).
16. U.S. Fish and Wildlife Service, member Pete Benjamin, alternate
David Rabon (U.S. Fish and Wildlife Service).
Government, State:
17. North Carolina Marine Fisheries Commission, member Wayne
Mathis, alternate Sara Winslow (North Carolina Marine Fisheries
Commission).
18. North Carolina Wildlife Resources Commission, member David
Allen, alternate Susan Cameron (North Carolina Wildlife Resources
Commission).
Tourism, Visitation, and Business organizations:
19. Cape Hatteras Business Allies, member Judy Swartwood, alternate
David Goodwin (Cape Hatteras Business Allies).
20. Outer Banks Chamber of Commerce, member Scott Leggat, alternate
Sam Hagedon (Outer Banks Chamber of Commerce).
21. Outer Banks Visitors Bureau, member Carolyn McCormick,
alternate Renee Cahoon (Outer Banks Chamber of Commerce).
User Groups, OVR Use:
22. North Carolina Beach Buggy Association, member Jim Keene,
alternate David Joyner (North Carolina Beach Buggy Association).
23. United Four Wheel Drive Associations, member Carla Boucher,
alternate Lyle Piner (United Four Wheel Drive Associations).
User Groups, Open Access:
24. Outer Banks Preservation Association, member John Alley,
alternate John Couch (Outer Banks Preservation Association).
User Groups, Other Users:
25. Cape Hatteras Bird Club, member Ricky Davis, alternate Raymond
Moore (Cape Hatteras Bird Club).
26. Cape Hatteras Recreational Alliance, member Jim Lyons,
alternate Burnham Gould, Jr. (Cape Hatteras Recreational Alliance).
27. Water Sports Industry Association, member Trip Forman,
alternate Matt Nuzzo (Water Sports Industry Association).
User Groups, Recreational Fishing:
28. American Sportfishing Association, member Bob Eakes, alternate
Patricia Doerr (American Sportfishing Association).
29. Cape Hatteras Anglers Club, member Larry Hardham, alternate
Robert Davis (Cape Hatteras Anglers Club).
30. Recreational Fishing Alliance, member Patrick Paquette,
alternate Ronald Bounds (Recreational Fishing Alliance).
In accordance with the Federal Advisory Committee Act, 5 U.S.C.
Appendix 2, copies of the Committee's charter will be filed with the
appropriate committees of Congress and with the Library of Congress.
Notice of First and Second Meeting: Notice is hereby given, in
accordance with the Federal Advisory Committee Act (Pub. L. 92-463, 86
Stat.770, 5 U.S.C. App 1, section 10), of the first and second meeting
of the Negotiated Rulemaking Advisory Committee for Off-Road Vehicle
Management at Cape Hatteras National Seashore. (See DATES section.)
These, and any subsequent meetings, will be held for the following
reason: to work with the National Park Service to assist in potentially
developing special regulations for ORV management at Cape Hatteras
National Seashore.
The proposed agenda for the first and second meeting of the
Committee may contain the following items: FACA Ethics Briefing,
Managing Administrative Record, Review FACA Charter, Discuss and
Approve Groundrules, NEPA Update, Subcommittee Update, Alternatives
Discussion, Review and Approve Workplan, and Public Comment. However,
the Committee may modify its agenda during the course of its work. The
meetings are open to the public. Interested persons may provide brief
oral/written comments to the Committee during the public comment period
of the meeting or file written comments with the Park Superintendent.
Certification
I hereby certify that the administrative establishment of the
Negotiated Rulemaking Advisory Committee for Off-Road Vehicle
Management at Cape Hatteras National Seashore is necessary and in the
public interest in connection with the performance of duties imposed on
the Department of the Interior by the Act of August 25, 1916, 16 U.S.C.
1 et seq., and other statutes relating to the administration of the
National Park System.
Dated: November 26, 2007.
Dirk Kempthorne,
Secretary of the Interior.
[FR Doc. 07-6152 Filed 12-19-07; 8:45 am]
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