Federal Register, Volume 77 Issue 14 (Monday, January 23, 2012)

[Federal Register Volume 77, Number 14 (Monday, January 23, 2012)]
[Rules and Regulations]
[Pages 3123-3144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-1250]

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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 7

RIN 1024-AD85

Special Regulations, Areas of the National Park System, Cape
Hatteras National Seashore--Off-Road Vehicle Management

AGENCY: National Park Service, Interior.

ACTION: Final rule.

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SUMMARY: This rule designates off-road vehicle (ORV) routes and
authorizes limited ORV use within Cape Hatteras National Seashore
(Seashore) in a manner that will protect and preserve natural and
cultural resources, provide a variety of safe visitor experiences, and
minimize conflicts among various users. Under National Park Service
(NPS) general regulations, the operation of motor vehicles off of roads
within areas

[[Page 3124]]

of the National Park System is prohibited unless authorized by special
regulation.

DATES: This rule is effective February 15, 2012.

FOR FURTHER INFORMATION CONTACT: Mike Murray, Superintendent, Cape
Hatteras National Seashore, 1401 National Park Drive, Manteo, North
Carolina 27954. Phone: (252) 473-2111 (ext. 148).

SUPPLEMENTARY INFORMATION:

Background

Description of Cape Hatteras National Seashore

Situated along the Outer Banks of North Carolina, Cape Hatteras
National Seashore was authorized by Congress in 1937 and established in
1953 as the nation's first national seashore. Consisting of more than
30,000 acres distributed along approximately 67 miles of shoreline, the
Seashore is part of a dynamic barrier island system.
The Seashore serves as a popular recreation destination where
visitors participate in a variety of recreational activities. The
Seashore also contains important wildlife habitat created by dynamic
environmental processes. Several species listed under the Endangered
Species Act (ESA), including the piping plover, seabeach amaranth, and
three species of sea turtles, are found within the park.

Authority and Jurisdiction

In enacting the National Park Service Organic Act of 1916 (Organic
Act) (16 U.S.C. 1 et seq.), Congress granted the NPS broad authority to
regulate the use of areas under its jurisdiction. Section 3 of the
Organic Act specifically authorizes the Secretary of the Interior,
acting through the NPS, to ``make and publish such rules and
regulations as he may deem necessary or proper for the use and
management of the parks * * * .''

Off-Road Motor Vehicle Regulation

Executive Order (E.O.) 11644, Use of Off-road Vehicles on the
Public Lands, was issued in 1972 in response to widespread and rapidly
increasing off-road driving on public lands ``often for legitimate
purposes but also in frequent conflict with wise land and resource
management practices, environmental values, and other types of
recreational activity.'' E.O. 11644 was amended by E.O. 11989 in 1977
to add a provision that allows agency heads to immediately close areas
or trails to off-road vehicle use if the agency head determines that
the use of off-road vehicles will cause or is causing considerable
adverse effects on the soil, vegetation, wildlife, wildlife habitat or
cultural or historic resources of particular areas or trails on public
lands.
Section 3 of E.O. 11644 requires agencies to develop and issue
regulations and administrative instructions to provide for
administrative designation of the specific areas or trails on public
lands on which the use of off-road vehicles may be permitted, and of
areas in which the use of off-road vehicles is prohibited. Those
regulations are to direct that the designation of such areas and trails
be based upon the protection of the resources of the public lands,
promotion of the safety of all users of those lands, and minimization
of conflicts among the various uses of those lands. They also must
require that such areas and trails:
(1) Be located to minimize damage to soil, watershed, vegetation,
or other resources of the public lands.
(2) Be located to minimize harassment of wildlife or significant
disruption of wildlife habitats.
(3) Be located to minimize conflicts between off-road vehicle use
and other existing or proposed recreational uses of the same or
neighboring public lands, and to ensure the compatibility of such uses
with existing conditions in populated areas, taking into account noise
and other factors.
(4) Not be located in officially designated Wilderness Areas or
Primitive Areas. Areas and trails may be located in units of the
National Park System only if NPS determines that off-road vehicle use
will not adversely affect their natural, aesthetic, or scenic values.
The NPS regulation at 36 CFR 4.10(b) implements the E.O. and
requires that routes and areas designated for ORV use be promulgated as
special regulations and that the designation of routes and areas shall
comply with 36 CFR 1.5 and E.O. 11644. It also states that such routes
and areas may be designated only in national recreation areas, national
seashores, national lakeshores, and national preserves. The final rule
is consistent with these authorities, and with NPS Management Policies
2006, available at: http://www.nps.gov/policy/MP2006.pdf.

ORV Use at Cape Hatteras National Seashore

Following the establishment of the Seashore in 1937, beach driving
was primarily for the purpose of transportation, not recreation.
Because the area was sparsely populated, the number of ORVs on the
beach was much smaller than it is today. The paving of NC Highway 12,
the completion of the Bonner Bridge connecting Bodie and Hatteras
islands in 1963, and the introduction of the State of North Carolina
ferry system to Ocracoke Island facilitated visitor access to the sound
and ocean beaches. Improved access, increased population, and the
popularity of the sport utility vehicle have resulted in a dramatic
increase in vehicle use on Seashore beaches.
Since the 1970s, ORV use at the Seashore has been managed through
various draft or proposed plans. However, none were completed or
published as a special regulation as required by 36 CFR 4.10(b).
Motivated in part by a decline in most beach nesting bird populations
on the Seashore since the 1990s, in July 2007 NPS completed the Cape
Hatteras National Seashore Interim Protected Species Management
Strategy/Environmental Assessment (Interim Strategy) to provide
resource protection guidance with respect to ORVs and other human
disturbance until the long-term ORV management plan and regulation
could be completed.
In October 2007, a lawsuit was filed by Defenders of Wildlife and
the National Audubon Society against the NPS and the U.S. Fish and
Wildlife Service challenging the Interim Strategy. The lawsuit alleged
the federal defendants failed to implement an adequate plan to govern
off-road vehicle use at the Seashore that would protect the Seashore's
natural resources while minimizing conflicts with other users. It also
alleged that the federal defendants failed to comply with the
requirements of the E.O. and NPS regulations regarding ORV use. The
lawsuit was resolved in April 2008 by a consent decree agreed to by the
plaintiffs, the federal defendants, and the intervenors, Dare and Hyde
counties and a coalition of local ORV and fishing groups.
ORV use is currently managed under the consent decree, which also
initially established deadlines of December 31, 2010, and April 1,
2011, respectively, for completion of an ORV management plan/
environmental impact statement (plan/EIS) and a final special
regulation. The Cape Hatteras National Seashore ORV Management Plan/
Draft Environmental Impact Statement (DEIS) was released to the public
on March 5, 2010, and a 60-day public comment period followed,
beginning on March 12, 2010. On December 20, 2010, the Cape Hatteras
ORV Management Plan/Final Environmental Impact Statement (FEIS) was
completed, and the NPS Southeast Regional Director signed the Record of
Decision (ROD) choosing the NPS Preferred Alternative as the

[[Page 3125]]

Selected Action. The public was informed of the availability of the
FEIS and ROD through notice in the Federal Register on December 28,
2010. The FEIS, the ROD, and other supporting documentation can be
found online at the NPS Planning Environment and Public Comment (PEPC)
Web site at http://www.parkplanning.nps.gov/caha.
In March 2011, the NPS notified the parties to the litigation and
the U.S. District Court for the Eastern District of North Carolina
(Court) that the final rule would not be completed by the original
April 1, 2011, consent decree deadline. The Court has since issued two
orders modifying the consent decree to extend the deadline for the
effective date of the final rule which is now February 15, 2012.

Notice of Proposed Rulemaking

On July 6, 2011, NPS published a Notice of Proposed Rulemaking for
the management of ORVs at Cape Hatteras National Seashore (76 FR
39350). On July 6, 2011, NPS also published the ``Benefit-Cost Analysis
of Proposed ORV Use Regulations in Cape Hatteras National Seashore''
online at the Seashore's public planning Web site at http://www.parkplanning.nps.gov/caha.
The proposed rule for off-road vehicle management was based on the
Selected Action as described in the ROD for the FEIS. The proposed rule
was available for public comment from July 6, 2011 through September 6,
2011. However, Hurricane Irene made landfall in the area of the
Seashore on Saturday August 27, 2011, resulting in widespread damage
along the Outer Banks of North Carolina and along the east coast into
New England. Because the hurricane may have prevented some affected
persons from commenting on the rule by the September 6 deadline, NPS
reopened the public comment period on September 9, 2011, and extended
the deadline to midnight on September 19, 2011.

Summary of and Responses to Public Comments

Comments were accepted through the mail, hand delivery, and through
the Federal eRulemaking Portal at http://www.regulations.gov. A total
of 21,302 comment documents were received. A summary of comments and
NPS responses is provided below, followed by a table that sets out
section-by-section the changes NPS has made from the proposed rule in
this final rule based on the analysis of the comments.
1. Comment: By allowing ORV use at the Seashore, the proposed rule
fails to meet the mandates of the Organic Act of preserving and
protecting flora, fauna, historic objects, and scenery.
Response: NPS and the courts have consistently interpreted the
Organic Act and its amendments as providing that resource conservation
shall predominate over visitor recreation, in the event of a conflict
between the two. However, the Organic Act gives NPS broad authority and
discretion to manage these sometimes conflicting goals and to determine
how visitor activities, including recreational activities, may be
managed to avoid or minimize impacts to natural and cultural resources.
The General Authorities Act, which amended the Organic Act, requires
NPS to manage all units as part of a single National Park System for
the purpose set out in the Organic Act. Other laws and policies also
support NPS's decision to manage recreational use at the Seashore. The
laws also give NPS the management discretion to allow impact to park
resources and values when necessary and appropriate to fulfill the
purposes of a park, as long as the impact does not constitute
impairment of the affected resources and values. (NPS Management
Policies 2006, Section 1.4.3)
2. Comment: By allowing ORV use on large portions of the Seashore,
the proposed rule fails to comply with the Seashore's enabling
legislation, which said that no plan for the convenience of visitors
shall be undertaken that is incompatible with the preservation of the
park's unique flora and fauna and physiographic conditions.
Response: The Seashore's enabling legislation states in 16 U.S.C.
459a-1 that ``the administration, protection, and development'' of the
Seashore shall be exercised ``subject to the provisions of the NPS
Organic Act.'' Accordingly, recreation must be managed in a manner to
provide for resource conservation. NPS Management Policies require the
NPS to manage activities in the park unit to avoid impairing resources,
to avoid or minimize unacceptable resource impacts, and to strive to
restore the integrity of park resources that have been damaged or
compromised in the past.
The Selected Action, upon which the rule is based, is consistent
with this mandate, and is also consistent with the enabling
legislation's mandate to preserve the unique flora and fauna and
physiographic conditions. Among other things, it specifically provides
for actions to preserve sensitive and protected species during
important lifecycle stages, thus ensuring their preservation.
3. Comment: Implementing ORV restrictions such as vehicle-free
areas is in conflict with Section 3 of E.O. 11644 because these
restrictions severely limit the variety of access opportunities
available for visitors and increase the potential for conflicts among
users in the areas that remain open to recreational use.
Response: Section 3 of E.O. 11644 states that the designation of
ORV routes ``will be based upon the protection of the resources of the
public lands, promotion of the safety of all users of those lands, and
minimization of conflicts among the various uses of those lands.'' It
does not address or restrict the designation of vehicle-free areas.
Nonetheless, in the plan/EIS, NPS has sought to provide for a variety
of access opportunities through the designation of ORV routes, as well
as providing pedestrians with some vehicle-free areas. Part of the
purpose of developing the plan/EIS, as stated in the FEIS, was ``to
provide a variety of visitor use experiences while minimizing conflicts
among various users,'' which the NPS believes the plan and rule have
accomplished.
This rule designates more than half of the ocean beach mileage in
the Seashore as seasonal or year-round ORV routes, in addition to 18
soundside access routes, providing a substantial amount of vehicular
access. The remaining ocean beach and sound shoreline would be closed
to ORV use, which provides a more primitive, vehicle-free visitor
experience at the Seashore. The rule also includes measures such as
carrying capacity restrictions, reduced speed limits, and parking
requirements to reduce the potential for conflicts among Seashore
visitors.
4. Comment: This regulation conflicts with E.O. 11644 and E.O.
11989, which allow the designation of ORV routes in areas of the
National Park System only if the agency determines that off-road
vehicle use in such locations will not adversely affect their natural,
aesthetic, or scenic values. Driving on the beach clearly adversely
impacts these values of the Seashore.
Response: The NPS interprets and implements the E.O. term
``adversely affect'' in a manner that is consistent with similar
requirements in its NPS Management Policies 2006, under which NPS only
allows ``appropriate use'' of parks, and avoids ``unacceptable
impacts.'' This rule is consistent with those requirements. It will not
impede the attainment of the Seashore's desired future conditions for
natural and cultural resources as identified in the FEIS. This rule
will not unreasonably interfere with the atmosphere of peace and
tranquility or the natural soundscape maintained in natural

[[Page 3126]]

locations within the Seashore. Within the context of the resources and
values of the Seashore, ORV use on the ORV routes designated by this
rule (which are also subject to resource closures and other species
management measures that will be implemented under the Selected Action
in the ROD) will not cause an unacceptable impact to the natural,
aesthetic, or scenic values of the Seashore. Therefore, this rule is
consistent with E.O. 11644 and E.O. 11989. A more detailed explanation
of this determination is provided in the ``Compliance with Other Laws
and Executive Orders'' section of this rule.
5. Comment: All ORVs should be banned within the Seashore.
Response: This rule implements the December 2010 ROD, which,
following input from the public during development of the EIS, allowed
for continued ORV use. ORV use is a historical use at the Seashore that
has been accounted for in various planning documents, including the
Seashore's 1984 General Management Plan, which states, ``Selected
beaches will continue to be open for ORV recreational driving and in
conjunction with surf fishing in accordance with the existing use
restrictions.''
Furthermore, prohibition of ORV use at the Seashore would not have
met the stated purpose, need, and objectives of the plan/EIS. The
purpose of the plan was to ``develop regulations and procedures that
carefully manage ORV use/access in the Seashore to protect and preserve
natural and cultural resources and natural processes, provide a variety
of visitor use experiences while minimizing conflicts among various
users, and promote the safety of all visitors * * * .'' ORV use, if
effectively managed, provides convenient access for many appropriate
visitor activities at some popular beach sites including, for example,
activities that use vehicles to transport substantial amounts of gear
for the activity. Prohibition, rather than management, of ORV use could
substantially diminish such visitor experience opportunities.
Therefore, prohibiting all ORV use would not have met the need as
described in the plan.
6. Comment: The proposed rule should refer to the Seashore as
``Cape Hatteras National Seashore Recreational Area'' because this is
the name that was established through the enabling legislation. The
name of the Seashore cannot be changed except by an act of Congress,
and removing ``Recreational Area'' from the name changes the original
purpose of the Seashore.
Response: On June 29, 1940, Congress amended the 1937 authorizing
legislation for ``Cape Hatteras National Seashore'' to permit hunting.
The same amendment also changed the formal title of the park to ``Cape
Hatteras National Seashore Recreational Area,'' in order to distinguish
it from more traditional types of parks where all hunting was generally
prohibited, and avoid setting a precedent for other parks.
NPS had already defined a ``national seashore'' as a recreational
area in its 1937 brochure explaining the Park, Parkway, and
Recreational Study Act, and the anticipated recreational purposes of
the park were established by Congress through Acting Secretary of the
Interior Oscar L. Chapman's letter to the House Committee on Public
Lands. Thus, including the term ``recreational area'' in the title was
redundant.
In 1954, NPS authorized the original park name (``national
seashore'') to be used for all administrative purposes except for
formal memoranda and documents requiring the full legal name.
Subsequently, the term ``recreational area'' fell from use in most
official references to the park. In 1961, Congress authorized Cape Cod
in Massachusetts as the second ``national seashore'' and subsequently
created eight more ``national seashores'' between 1962 and 1975, for a
total of ten. All such park units that followed Cape Hatteras were
officially named ``national seashores.''
Since 1962, Cape Hatteras has been referred to as ``national
seashore'' in all Congressional legislation and ``national seashore''
has been the standard nomenclature for this type of park. In any event,
this nomenclature question is irrelevant to this rule and the ORV plan.
The General Authorities Act of 1970 and the 1978 Redwoods Amendment
expressly clarified that all units of the National Park System are to
be managed to the same statutory standards and authorities.
Furthermore, the NPS motor vehicle regulation at 36 CFR 4.10 does not
recognize a ``national seashore recreational area'' unit designation as
one of the types of units where ORV use is permitted.
7. Comment: The proposed rule violates E.O. 13132 by not providing
a federalism summary impact statement.
Response: The proposed rule is consistent with E.O. 13132. It does
not have federalism implications that require a federalism summary
impact statement. The rule governs the use of federally owned land in
the Seashore by individual Seashore visitors. It does not have a
substantial direct effect on the State of North Carolina (or any other
state), on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government.
8. Comment: The proposed rule violates E.O. 13474, which amended
E.O. 12962, specifically section (d), which directs Federal agencies to
ensure that recreational fishing shall be managed as a sustainable
activity in national wildlife refuges, national parks, national
monuments * * * or any other relevant conservation or management areas
or activities under Federal authority, consistent with applicable law.
The ORV management plan harms recreational fishermen the most.
Response: E.O. 12962 (1995), as amended by E.O. 13474 (2008),
directs Federal agencies, ``to the extent permitted by law,'' to
improve the quantity, function, sustainable productivity and
distribution of U.S. aquatic resources for increased recreational
fishing opportunities. It further directs Federal agencies to ensure
that recreational fishing shall be managed as a sustainable activity in
national wildlife refuges, national parks or any other relevant
conservation or management areas or activities under any Federal
authority, ``consistent with applicable law.'' Numerous laws require
NPS to conserve wildlife and other natural and cultural resources
unimpaired for the enjoyment of future generations and to contribute to
the protection and recovery of migratory birds and federally listed
threatened or endangered species. As stated in Chapter 1 of the FEIS,
these laws include the Organic Act, the Seashore's enabling
legislation, the Migratory Bird Treaty Act, and the ESA. In addition,
as discussed above, E.O. 11644 (1972), E.O. 11989 (1977), and NPS
regulation 36 CFR 4.10, impose additional requirements on the
management of ORV use, if it is allowed.
The proposed rule is ``consistent with applicable law'' and places
no direct constraints on recreational fishing. Its focus is to
authorize ORV use at the Seashore, manage it to protect and preserve
natural and cultural resources and natural processes in accordance with
applicable laws, and provide a variety of safe visitor experiences
while minimizing conflicts among various users. To the extent that
management of ORV use would impact fishing and other recreational uses
of the Seashore, those impacts were analyzed during the preparation of
the plan/EIS.
9. Comment: The proposed rule will negatively impact primitive
wilderness within the Seashore and does not address Congress's goal of
preserving ``primitive wilderness'' at the Seashore as directed in the
park's enabling legislation.

[[Page 3127]]

Response: The Seashore's 1937 enabling legislation, which indicated
that areas not developed for recreational uses ``shall be permanently
reserved as a primitive wilderness,'' predates the Wilderness Act of
1964, which established the National Wilderness Preservation System and
created a process through which Congress formally designates
``wilderness areas''. At this time, there are no such proposed or
designated ``wilderness areas'' in the Seashore. The Seashore's
enabling legislation authorizes NPS to provide infrastructure and
facilities for visitors in selected areas, as needed to support
recreational use (e.g., parking areas, day-use facilities for beach-
goers, lifeguarded beaches, boat launch areas, campgrounds, and ORV
ramps), while leaving other areas undeveloped in order to retain their
primitive character. The Seashore has many undeveloped areas that are
preserved and further protected under the Selected Action and this
rule. However, since none of these areas are currently designated or
proposed wilderness, the ORV management plan/EIS did not address
preserving wilderness under the 1964 Act. A study to explore the
suitability of designating areas at the Seashore as wilderness is
outside the scope of this planning effort and will be addressed during
a future process to develop a new General Management Plan for the
Seashore.
10. Comment: The exclusion of specific fixed-distance, mandatory
buffers for wildlife and other natural resource protection in the
proposed rule violates the National Environmental Policy Act (NEPA) and
the Administrative Procedure Act (APA). By excluding those species
protections from the rule, the proposed rule is outside the range of
alternatives considered within the FEIS (and specifically the Selected
Action, Alternative F, as detailed in the ROD) and has not undergone
the ``hard look'' required by NEPA. By implementing this new
alternative that was not studied in the FEIS, the proposed rule
violates the APA's notice and comment requirements, and applicable
E.O.s and regulations.
Response: The proposed rule is based directly on the Selected
Action described in the FEIS and ROD. The rule contains those portions
of the Selected Action, such as the designated ORV routes and other ORV
management requirements, that NPS believes are necessary to comply with
the E.O.s and NPS regulations. The species management strategies for
the Selected Action, as described in the FEIS, are intended to evolve
over time, through the periodic review process, in order to ensure
accomplishment of the desired future conditions for park resources as
stated in the plan. In response to these comments, NPS has revised the
wording of Sec. 7.58(c)(10) to more clearly articulate its commitment
to the implementation of the species management strategies and periodic
review process described in the Selected Action.
11. Comment: NPS and DOI are in violation of NEPA and the E.O.s
because they did not publish the full extent of the proposed
restrictions in the Federal Register and did not provide ample
documentation, review time, and meetings or other forms of education
for the public.
Response: Not every aspect of ORV management at the Seashore is
appropriate for inclusion in this rule; this is why NPS developed an
ORV management plan. As discussed above, NPS has already developed an
ORV management plan and chosen its Selected Action in the ROD. (This
Selected Action was the NPS Preferred Alternative in the FEIS.) As part
of the NEPA planning process, the NPS published the DEIS, FEIS, and the
ROD on the NPS PEPC Web site at http://www.parkplanning.nps.gov/caha
prior to publishing the proposed rule.
This rulemaking process is governed by the APA and not by that NEPA
process, which is now complete. As required by the APA, the NPS
published the proposed regulation in the Federal Register (76 FR 39350)
on July 6, 2011. As stated in that notice of proposed rulemaking, the
purpose of the rule was to implement the Selected Action from the ROD.
As required by the APA, the public has had the opportunity to review
and comment on those aspects of ORV management that are actually being
addressed in the regulation.
This public participation under the APA is in addition to the
extensive public participation that has already occurred through the
NEPA process and the negotiated rulemaking process. The public
participation process is summarized on p. 27 of the FEIS and the
expected impact of the proposed alternatives, including the various
restrictions proposed in each alternative, is described in ``Chapter 4:
Environmental Consequences,'' pp. 325-638 of the FEIS. A complete list
of documents, public participation notices, and other information for
the project has been and still is available on the NPS PEPC Web site at
http://parkplanning.nps.gov/caha. (See ``Cape Hatteras National
Seashore Off-Road Vehicle Negotiated Rulemaking and Management Plan/
EIS'' project page, ``Document List.'')
The APA does not require an agency to conduct public hearings for
this type of rulemaking process. However, as part of the NEPA process,
the NPS:
Conducted public informational meetings in February and
March of 2007 during public scoping on the plan/EIS, conducted
additional informational meetings in January and February 2008 to
examine the range of alternatives and seek input on alternative
elements;
Accepted public comments each day during 20 days of
negotiated rulemaking advisory committee meetings; and
Conducted five public hearings during the public comment
period on the DEIS, as described on p. C-1 of the FEIS.

The rule is based on the plan/EIS that was developed through this
extensive public participation process.
12. Comment: The proposed rule does not adequately address the
Migratory Bird Treaty Act, the ESA, or the Unfunded Mandates Reform Act
(UMRA).
Response: The Selected Action in the ROD, which is the basis for
this rule, gave extensive consideration to the protection of migratory
birds and federally listed threatened or endangered species. The U.S.
Fish and Wildlife Service also reviewed the FEIS and drafted a
Biological Opinion which concurred with the NPS Determination of Effect
on protected species and provided revisions that were included in the
ROD. A detailed analysis of the impacts of the management alternatives
on threatened or endangered species is provided in Chapter 4, pp. 347-
491 of the FEIS. Please see the paragraph entitled Unfunded Mandates
Reform Act in the ``Compliance with Other Laws and Executive Orders''
section of this preamble for explanation regarding consistency with
UMRA.
13. Comment: The proposed rule makes no mention of the America's
Great Outdoors Initiative.
Response: The America's Great Outdoors Initiative (AGO) is a
program to encourage stewardship and recreational use of public lands.
AGO vision statements include the following:
All children, regardless of where they live, have access
to clean, safe outdoor places within a short walk of their homes or
schools, where they can play, dream, discover, and recreate. Americans
participate in the shared responsibility to protect and care for our
unique natural and cultural heritage for the use and enjoyment of
future generations.
Our national parks, national wildlife refuges, national
forests, and

[[Page 3128]]

other public lands and waters are managed with a renewed commitment to
sound stewardship and resilience.
Our natural areas and waterways, whether publicly or
privately owned, are reconnected, healthy, and resilient and support
both human needs and the wildlife that depend on them.
AGO does not provide specific guidance related to NPS ORV
management decisions and does not supersede or modify the laws,
regulations, and E.O.s that apply to ORV management at the Seashore.
The rule is necessary to implement the Selected Action identified
in the ROD, to bring the Seashore in compliance with the E.O.s and with
NPS laws, regulations (36 CFR 4.10), and policies to minimize impacts
to Seashore resources and values. Under the Selected Action, NPS will
provide visitors to the Seashore with a wide variety of access
opportunities for both ORV and pedestrian users, with controls or
restrictions in place to limit impacts on sensitive resources. NPS
believes implementation of this rule will be consistent with AGO's
vision of stewardship and appropriate recreational use of public lands.
14. Comment: Subjecting vehicles to search and inspection for
equipment and requiring individuals to partake in an in-person
education program to obtain a permit violates E.O. 12988 (Civil Justice
Reform).
Response: As described in the ``Compliance with Other Laws and
Executive Orders'' section of this preamble, the provisions of this
rule are consistent with E.O. 12988. Note, however, that E.O.12988
generally applies only to civil matters, and violations of this
regulation, as with other NPS regulations, would be criminal matters to
which this E.O. does not apply.
15. Comment: The rule does not comply with the following:
Regulatory Flexibility Act. There was not adequate
consideration given to economic impacts, both direct and indirect, nor
to cumulative impacts of small businesses on the islands.
Antideficiency Act. The rule makes forward looking
statements about infrastructure improvements which NPS claims will
lessen the economic impacts. There are no funds in the NPS appropriated
budget to pay for these improvements.
Architectural Barriers Act of 1968. A large number of
those submitting comments on the DEIS specifically expressed concerns
about people with disabilities and others who are unable to walk long
distances and would no longer be able to enjoy the Seashore.
Response: Under 5 U.S.C. 605(b), the Regulatory Flexibility Act
permits an agency to certify that a proposed rule would not have a
significant economic impact on a substantial number of small entities,
if the preliminary analysis supports such a decision. NPS performed the
required economic analysis and provided the above certification in the
proposed rule. NPS provided the Office of Management and Budget (OMB)
with the proposed rule before publication in the Federal Register. OMB
reviewed and commented on the rule, and approved its publication,
indicating that it was consistent with applicable regulatory
requirements under its purview.
NPS has included infrastructure and access improvements as an
integral part of the ORV plan and regulation, and anticipates that
funding for construction of the improvements will come from
appropriated NPS program funds such as ``Line Item Construction,''
``Repair and Rehabilitation,'' or from the Seashore's recreation fees,
or from grants. Consistent with the Antideficiency Act, no funds have
been obligated or expended for this purpose in excess of appropriations
or in advance of their receipt.
The Architectural Barriers Act of 1968, as amended, 41 U.S.C. 4151
et seq., imposes standards on buildings constructed under several types
of federal nexus. The rule, which designates routes for ORV use, does
not require the construction of any buildings, so the Act does not
apply.
16. Comment: NPS has failed to adequately address or even recognize
the economic impact of the rule. The Region of Influence (ROI) is
incorrectly identified. Analysis at the county-wide level masks the
impacts that would occur in the Seashore villages, and northern
communities such as Kill Devil Hills and Southern Shores should not be
included in the ROI.
Response: To gather data for the socioeconomic analysis, NPS
conducted a survey of businesses in the Seashore villages and in Kill
Devil Hills, Nags Head, and Kitty Hawk. In the business survey, some of
the businesses in the three villages north of the Seashore reported
that beach closures to ORVs would affect their revenue and would cause
revenue losses in the future, so it is not inaccurate to include these
communities in the ROI. However, it is true that other businesses in
the three northern communities reported that ORV restrictions would
have no impact on their business. Since some businesses in the three
northern communities reported impacts in the survey, NPS felt it was
important to include those in the analysis. To estimate the portion of
the economic output in Dare and Hyde counties generated in the ROI,
and, within the ROI, the amount generated in the Seashore villages, NPS
adjusted the county-level values by the percentages of employment by
business section. NPS fully agrees that the impacts will fall mainly on
the Seashore villages. For this reason, NPS reported the range of
revenue impacts used to calculate the impacts for each alternative
separately for the Seashore villages and the rest of the ROI. To
measure the economic impacts of the alternatives, NPS used ``IMPLAN,''
a computer software program that simulates how changes in sales and
employment in one industry can affect other industries and the regional
economy as a whole. Although the results from running the IMPLAN model
are presented at the county level, the discussion of each alternative
stated that the Seashore villages would experience the majority of the
direct impacts. In the discussion of the impacts on small businesses,
NPS stated that the impacts will be larger for businesses that depend
on visitors who use particular beach access ramps or visit particular
beaches that will be closed or restricted under the alternative. The
conclusion for each alternative reiterated that the Seashore villages
will experience the majority of the impacts and that small businesses
may be disproportionately impacted. The analysis forecasts higher
adverse impacts on the small businesses than for the ROI as a whole.
In initial meetings shortly before the negotiated rulemaking
committee was officially formed and in early meetings with the
committee, NPS was told that the economic impacts would be widespread.
Members of the local community urged NPS to consider the impacts on
Dare County, the State of North Carolina, and neighboring states. NPS
chose to narrow the ROI to just the island portions of Dare and Hyde
counties, and assessed the resulting indirect and induced impacts on
Dare and Hyde counties as a whole.
NPS released the results of these studies and updated relevant
sections of the FEIS to reflect them. It is an acceptable NEPA planning
practice for newly available results of studies that were not available
at the time a DEIS is written to be incorporated in the FEIS. NPS would
have prepared a supplemental DEIS for review if there was significant
new information relevant to environmental concerns and bearing on the
proposed action and its impacts (40 CFR 1502.9(c)(1)(ii)). In this
case, however, the study findings were

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consistent with the analysis already provided in the DEIS.
17. Comment: The economic analysis for the proposed rule is flawed
because it does not address the ``ripple effect'' to the local economy
and is based on faulty assumptions about visitor spending.
Response: NPS obtained relevant data for impact analysis using
IMPLAN, an economic model that specifically calculates the ``ripple
effect'' that changes in direct spending by visitors have on other
sectors of the economy. According to generally accepted economic theory
(Boardman, 1996), these ripple effects should be included in benefit/
cost analyses only if they are large enough to change prices in
affected markets. Although NPS had no information about possible
changes in prices, NPS chose to err on the side of representing all
relevant impacts and included these ripple effects in the analysis of
impacts. Therefore, NPS believes its analysis of these ripple effects
is adequate.
18. Comment: Since the proposed rule raised OMB legal or policy
issues, OMB may also have concerns about the rulemaking process.
Response: As required by federal regulatory procedures, before NPS
published the proposed rule in the Federal Register, OMB reviewed the
proposed rule and the ``Benefit-Cost Analysis of Proposed ORV Use
Regulations at Cape Hatteras National Seashore'' and approved the
publication of the proposed rule. OMB also reviewed the final rule and
the ``Benefit-Cost Analysis of Final ORV Use Regulations at Cape
Hatteras National Seashore'' and approved the final rule for
publication in the Federal Register.
19. Comment: The ORV permit requirements should require approval by
OMB.
Response: The NPS special park-use permit program allows for a
variety of activities including, but not limited to, ORV use, special
events, recreational activities, commercial filming and agricultural
use, to be authorized through a permit. The Paperwork Reduction Act (44
U.S.C. 3501 et seq.) requires that OMB review and approve forms used by
agencies to collect information used by the Superintendent to make an
informed decision whether to approve or deny a permit request. OMB has
approved NPS use of application forms until June 2013 and issued an
approval number of 1024-0026. Prior to their expiration, NPS will
initiate the renewal process, which will include publishing a Federal
Register notice soliciting public comments on the current applications.
20. Comment: The public was denied opportunities to comment on the
economic impact analysis, including the benefit-cost analysis, during
the ORV management planning and rulemaking processes.
Response: The DEIS, which was developed and open to public comment
through the NEPA process, contained a socioeconomic impact analysis of
the proposed management alternatives (Chapter 4, pp. 561-568). The DEIS
was open to public review and comment for 60 days, during which NPS
received numerous comments on the analysis. A separate report titled
``Benefit-Cost Analysis of Proposed ORV Use Regulations in Cape
Hatteras National Seashore'' was prepared, as required, for the
proposed rule and posted online at http://www.parkplanning.nps.gov/caha, on July 6, 2011, the same date the proposed rule was published in
the Federal Register. The public's opportunity to comment on the
proposed rule included the ability to comment on the benefit-cost
analysis and other documents and studies that were used to form the
basis for the rule.
21. Comment: The small business survey conducted for the proposed
rule was not completed and published before the public comment period,
and therefore there was insufficient time for public review and
comment. Several local businesses were never consulted or contacted and
the estimates are based upon flawed sample data.
Response: NPS contracted with RTI International to conduct a small
business survey to provide information for the preparation of the FEIS.
A representative cross-section of businesses was surveyed, but not all
businesses. This is standard methodology for such a survey. RTI also
conducted a survey of Seashore visitors and conducted counts of
vehicles using the ocean-side beach access ramps and counted visitors
using selected beaches at the Seashore. The results of these studies
were incorporated into the plan/FEIS, and the reports were made
available to the public on December 23, 2010 when they were posted on
the RTI Web site at http://rti.org/publications/publications.cfm and on
the NPS PEPC Web site at http://www.parkplanning.nps.gov/caha. The
Seashore issued a press release on December 23, 2010, announcing the
availability of these reports. It is not unusual for newly available
results of studies that were not available at the time a DEIS is
written to be incorporated into the FEIS. The NPS would have prepared a
supplemental EIS (with an accompanying public comment period) for
review if there was significant new information relevant to
environmental concerns and bearing on the proposed action and its
impacts (40 CFR 1502.9(c)(1)(ii)). In this case, however, the study
findings did not provide significant new information and were
consistent with the analysis provided in the DEIS. Therefore, a
supplemental EIS was not prepared. The public was given the opportunity
to comment on any completed studies or data used in the planning
process during the public comment periods for the DEIS and the proposed
rule.
22. Comment: The economic impact requirement of $100 million is not
a fair measurement for the area and should be decreased based on the
area to which the proposed rule will apply.
Response: Under E.O. 12866, agencies are required to submit an
economic analysis of certain ``significant'' regulations to the OMB.
E.O. 12866 establishes a number of different criteria under which a
regulation is determined to be ``significant''. The economic impact
threshold level of $100 million for analyzing impacts of the rule is
one of those criteria. Another criterion for determining that a
regulation is ``significant'' for purposes of triggering OMB review
under the E.O. is whether a regulation raises novel legal or policy
issues. This rule was determined to be significant because it was
determined that it raised novel legal or policy issues. The $100
million threshold was not the basis for which this rule was reviewed
under Executive Order 12866 and had no impact on the level of analysis
and review that this rule received.
23. Comment: The economic impact analysis is flawed because there
is limited information regarding the number of vehicles or visitors
that accessed the Seashore before increased access restrictions, which
began in 2003, several years before the Interim Strategy. Without
information before 2003, the baseline assessment is skewed.
Response: Reliable data on the number of ORVs using Seashore
beaches before 2003 was not available and is not directly relevant to
this study. As part of the NEPA planning process, NPS developed a set
of alternatives for management of ORVs in the Seashore that included
two no-action alternatives (the Interim Strategy and the consent
decree) and four action alternatives, and identified Alternative F as
the NPS Preferred Alternative in the plan/EIS. The Interim Strategy was
implemented in 2006-2007 and the consent decree was implemented in
2008-2010, while the plan/EIS was being developed. These no-action
alternatives

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implemented in 2006-2010 serve as the baseline for comparison of the
action alternatives, including the NPS Selected Alternative F that is
the basis for this rule. Section 2.3 of the ``Benefit-Cost Analysis of
Proposed ORV Use Regulations in Cape Hatteras National Seashore''
describes how NPS evaluated visitation and ORV use information for the
range of management alternatives considered in the plan/EIS. NPS
believes that the methodology and information sources described in the
benefit-cost analysis provide an adequate basis for assumptions about
baseline visitation.
24. Comment: The ecosystem and the associated tourism play an
important role in the economy of the Seashore. Protection of this
environment would be beneficial to the Seashore's economy.
Response: While the economic analysis of this rule did not quantify
potential benefits from the protection of the Seashore's ecosystems and
the environment resulting from the proposed actions, the FEIS did
account qualitatively for these benefits, which were considered in
choosing the NPS Preferred Alternative as the Selected Action in the
ROD, upon which this rule is based.
25. Comment: The four areas of the Seashore that the North Carolina
Beach Buggy Association had proposed as potential Traditional Cultural
Properties (TCPs) were not considered by NPS during the ORV management
planning and rulemaking processes. The National Historic Preservation
Act (NHPA) of 1966 requires Section 106 review as part of the NEPA
process.
Response: As required by Section 106 of the NHPA, NPS consulted
with the North Carolina Department of Cultural Resources, State
Historic Preservation Office (SHPO), during the NEPA process. The SHPO
sent a letter to the Seashore on April 6, 2010, which indicated that it
had reviewed the DEIS under Section 106 of the NHPA, that it was aware
of ``no historic resources which would be affected by the project,''
and that it had no comments. The Seashore has also completed a number
of studies meant to identify historic resources, including a Historic
Resource Study, an Ethnohistorical Description of the Eight Villages
Adjoining Cape Hatteras National Seashore, and an Ethnographic Study
Analysis of Cape Hatteras National Seashore. While preparing the plan/
EIS, NPS determined the areas ineligible as TCPs and provided its
determination to the SHPO, which offered no opinion.
26. Comment: It was not necessary for the NPS to consult with the
Tuscarora Indian tribe since Tribal members never lived at Cape
Hatteras.
Response: The Presidential Memorandum of April 29, 1994 and E.O.
13175 on Consultation and Coordination with Indian Tribal Governments
require NPS to maintain a government-to-government relationship with
federally recognized tribal governments. In this case, the Seashore is
mandated to consult with the Tuscarora Indian Tribe, since it is the
only federally recognized tribe affiliated with the Seashore.
27. Comment: Since Pea Island is technically owned by the NPS
(although controlled by U.S. Fish and Wildlife Service), it should be
included as a vehicle-free area in the Seashore.
Response: Pea Island National Wildlife Refuge (Refuge) is
administered by the U.S. Fish and Wildlife Service, and NPS does not
direct the management of visitor use at the Refuge. Therefore, NPS
regulations (including the designation of ORV routes) do not apply at
the Refuge.
28. Comment: The proposed rule does not reflect the will of the
people that was expressed during the public hearings and comment period
for the DEIS. A large percentage of the people who spoke during the
public comment period preferred that ORV and pedestrian access take
priority over resource protection. Why were those numbers not
considered more in the proposed rule?
Response: While the majority of the members of the public who spoke
at the DEIS public hearings supported ORV access over resource
protection, statements made at the hearings represent only a subset of
the over 15,000 pieces of correspondence that NPS received on the DEIS.
Under NEPA, all comments are considered with equal weight, regardless
of whether they were handwritten, electronic, or spoken.
NPS received thousands of comments supporting increased ORV access
and thousands calling for increased resource protection with greater
restriction of ORV use than NPS had proposed. Although NPS reviewed and
considered these comments and made changes to the Preferred Alternative
based on them, the decision to revise the Preferred Alternative was
based on the substance and merit of the comments, not merely the number
of comments received. The NPS must base its decision on applicable
legal authorities and policies, available scientific information, and
other substantive concerns, not the relative popularity of one
alternative over another. These changes were subsequently reflected in
the FEIS and the Selected Action in the ROD, which formed the basis for
this rule.
29. Comment: NPS should not accept form letters orchestrated and
submitted by advocacy groups or comment letters on the proposed rule
that failed to comply with NPS requirements that all comments include
the agency name and the Regulation Identifier Number (RIN) in the body
of the comments.
Response: The purpose of emphasizing the use of the identification
information was to ensure that comments made their way to the
appropriate place for consideration, analysis, and response. The agency
name and RIN information were automatically included in all comments
that were received through the Federal eRulemaking Portal at http://www.regulations.gov. Comments that were mailed or hand delivered to the
Seashore in accordance with the stated deadlines were accepted with or
without the RIN, as long as they were clearly applicable to the
proposed ORV rule at the Seashore.
30. Comment: Supporting documents, public comments, and transcripts
of public hearings should have been added to the public docket posted
at http://www.regulations.gov, as they contain information relevant to
the proposed rule.
Response: The proposed rule was based directly on the Selected
Action identified in the ROD, which was developed through the NEPA
process. As stated in the July 6, 2011, Federal Register notice for the
proposed rule, the FEIS, the ROD, and other supporting documentation
can be found online at http://www.parkplanning.nps.gov/caha and are
part of the public record for the plan/EIS.
31. Comment: NPS should create an advisory committee of local
residents, ORV representatives, and local officials to work with NPS in
determining future resource closures, dates for seasonal ORV
restrictions, ORV route boundaries, and other ORV management matters.
Response: Creating a standing ORV management advisory committee
under the Federal Advisory Committee Act (FACA) was considered but
dismissed as a reasonable alternative during the preparation of the
plan/EIS. Section 2(b)(2) of FACA restricts the establishment of such
committees to situations ``when they are determined to be essential.''
The NPS does not believe a standing advisory committee is essential
because this rule, once established, will provide the framework for ORV
management at the Seashore.
When NPS did establish a negotiated rulemaking advisory committee
to assist NPS in developing alternatives for the

[[Page 3131]]

ORV management plan and rule, the committee represented a wide range of
interests, and accordingly their points of view were often
contradictory. That committee was unable to reach consensus on the
matters before it. Therefore, due to the extremely polarizing nature of
ORV use at the Seashore, there would be a strong probability that a
similar ORV management committee would not be able to provide NPS with
clear and consistent actionable advice, and managing the committee
would require a commitment of staff time and funding that could not be
sustained over the life of the plan.
32. Comment: The comment period should have been extended 30 to 60
days because of Hurricane Irene.
Response: The 60-day public comment period for the proposed rule
opened on July 6, 2011, and closed on September 6, 2011. With 11 days
remaining in the comment period, Hurricane Irene struck the Outer Banks
area early on Saturday, August 27, 2011. Thousands of public comments
had been received before the hurricane reached the Outer Banks. On
September 9, 2011, NPS published a Federal Register notice announcing
it would reopen the public comment period until September 19 to allow
more time (i.e., 13 more days) for those who may have been affected by
Hurricane Irene to submit comments. NPS acknowledges that many Outer
Banks residents, property owners, and businesses were impacted by
Hurricane Irene, and believes that reopening the comment period for the
length of time described above was an appropriate response to the
circumstances.
33. Comment: Numerous commenters proposed various changes to the
designated routes, including adding more year-round vehicle-free areas
or increasing vehicular access to popular fishing areas.
Response: Comments on designated ORV routes in the proposed rule
were nearly identical to those received on the DEIS. While finalizing
the FEIS, NPS thoroughly considered these comments and made revisions
to the NPS Preferred Alternative, which was the Selected Action in the
ROD and formed the basis for this rule. NPS believes this process has
identified an equitable balance of vehicle-free areas and ORV routes
that provides for both resource protection and a variety of visitor
experiences. Further information on how NPS considered and designated
routes and areas can be found in the FEIS (p. C-115).
34. Comment: NPS should reduce the size of the buffer distances
used to protect beach nesting wildlife so that closures are smaller and
recreational access is allowed along the shoreline past the nesting
areas.
Response: Resource closures are established to provide each
protected species with access to key habitat during critical points in
its annual cycle. As described in the FEIS, the buffer distances are
intended to provide adequate protection to minimize the impacts of
human disturbance on nesting birds and chicks in the majority of
situations, given the level of visitation and recreational use in areas
of sensitive wildlife habitat at the Seashore and issues related to
noncompliance with posted resource protection areas.
The buffer distances were developed after consideration of the best
available science, which includes existing guidelines and
recommendations, such as the Piping Plover Recovery Plan (USFWS 1996a)
and the U.S. Geological Survey (USGS) Open-File Report 2009-1262
(2010), also referred to as the ``USGS protocols,'' on the management
of species of special concern at the Seashore, as well as relevant
scientific literature (research, studies, reports, etc.). In addition,
buffer distances were developed using the practical knowledge gained by
NPS resources management staff during two years of implementing the
Interim Strategy (2006-2007) and three years implementing the consent
decree (2008-2010).
35. Comment: The Selected Action, Alternative F, was biased toward
environmental concerns, rather than recreation.
Response: The Selected Action, as described in the ROD, includes
the combination of ORV routes and requirements and species management
strategies that best addresses the stated purpose, need, and objectives
of the plan/EIS. NPS is obligated under its Organic Act and the
Seashore's enabling legislation to ensure that the Seashore's beach
nesting wildlife species are sufficiently protected from the impacts of
ORV use and human disturbance to ensure that those species are
conserved and remain unimpaired for the enjoyment of future
generations.
As stated in NPS Management Policies 2006, Section 1.4.3, Congress
recognizes that the enjoyment by future generations of the national
parks can be ensured only if the superb quality of park resources and
values is left unimpaired. Congress has therefore provided that when
there is a conflict between conserving resources and values and
providing for enjoyment of them, conservation is to predominate. This
is how courts have consistently interpreted the Organic Act.
36. Comment: The species protection measures are based on
incomplete science such as the ``USGS protocols,'' which are not peer
reviewed science.
Response: NPS guidelines require that all scientific and scholarly
information disseminated to the public in any format meets the
requirements of NPS Director's Order 11-B: Ensuring Quality of
Information Disseminated by the National Park Service, which may
require peer review for activities and information used in the
decision-making process. However, there is no requirement that all
information used in a NEPA document be peer reviewed.
The FEIS does not state that the USGS protocols are the primary
source of information used in the plan. NPS used a multitude of sources
in the development of the species protection strategies contained in
the FEIS, in addition to the professional experience of Seashore staff
implementing various species management measures under the Interim
Strategy and the Consent Decree.
As noted in the References section of the FEIS, the majority of the
research that was relied upon was from peer-reviewed journals and
official agency publications, such as the U.S. Fish and Wildlife
Service species recovery plans. However, NPS did review and incorporate
the results of several studies that were completed by university
researchers as part of their graduate theses or doctoral dissertations,
as many of these research projects involved species found at the
Seashore and also occurred in similar coastal or barrier island
ecosystems.
NPS believes the FEIS contains information of maximum quality,
objectivity, utility, and integrity and is therefore in compliance with
the Information Quality Act and the OMB, DOI, and NPS policies and
guidelines that address the Act.
37. Comment: The definition of ORV corridor in the proposed rule
does not sufficiently protect wildlife. The definition in the proposed
rule has the effect of setting aside far more area for driving than it
did in the FEIS, when it was clearly modified by the establishment of
Species Management Areas.
Response: The NPS has revised the definition of ORV Corridor in the
final rule to better describe the physical boundaries of the ORV
corridor on the beach and to ensure that the definition is consistent
with the intent of the language in the FEIS and ROD, thereby providing
a sufficient level of wildlife protection. Instead of using Species

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Management Areas (SMAs), the NPS revised the Preferred Alternative
(FEIS p. 79-80) and the resulting Selected Action in the ROD to provide
more intensive monitoring and response to changes in bird activity
rather than less intensive monitoring with larger and longer-lasting
closures. The purpose of this change was to simplify the plan and to
lessen the amount of time that designated ORV routes would be affected
by resource closures, while still providing sufficient protection for
wildlife, especially during critical life stages.
38. Comment: There should be corridors to provide access through
and around areas of resources closures. The Selected Action,
Alternative F, will result in less shoreline available for recreation,
resulting in crowding and user conflict.
Response: During public comment on the DEIS, some commenters
recommended providing a corridor through all species resource closures
and buffers. A buffer or resource closure is an area surrounding a
sensitive resource, such as bird nests or chicks, which is closed to
visitor access during critical life cycle stages to reduce human
disturbance and the risk of mortality due to pedestrians and ORVs. Any
passages, corridors, or pass-throughs that cut directly across or
through a resource closure would essentially undermine the biological
function of the closure and could render it compromised, perhaps even
useless, to the species it is meant to protect, particularly if all
buffers were to include ORV corridors. Therefore, including an ORV
corridor through resource closures was not included in the range of
alternatives, as it would violate the mandate to conserve wildlife and
other park resources under the Organic Act, the Seashore's enabling
legislation, the E.O.s on ORV management, and 36 CFR 4.10.
39. Comment: Vehicle traffic should be routed around nesting sites
using established roads in order to avoid impacts to wildlife.
Response: The FEIS calls for the use of species-specific buffer
distances to minimize human disturbance and protect nesting areas. In
many cases, the buffer, once established, will preclude access along
the beach adjacent to a nest site, particularly if the beach is narrow.
However, in some cases, such as on a wide beach or inlet spit, there
may be sufficient distance between the nesting area and the shoreline
to allow continued access when the prescribed buffers are implemented.
When shoreline access is temporarily closed to protect a particular
nest site, ORV traffic will be able to continue to use open routes,
which connect to established roads, in order to access other locations
that are open to ORV use.
40. Comment: The required training and ORV permits should be
available at multiple locations and online, not just ``in person'' as
indicated in paragraph 7.58(c)(2)(v). Requiring the education to be
obtained ``in person'' could cause undue delays for visitors,
especially when there is a high influx of visitors. Once an individual
has completed the education program, they should not have to complete
the education program again in the following year(s) or weeks, if
renewal of a weekly permit is desired.
Response: The NPS has modified paragraph 7.58(c)(2)(v) of the rule
by removing the ``in person'' language to provide the Superintendent
with greater flexibility for administering the ORV permit issuance
procedures. The objective of the education program is to ensure ORV
operators know the rules and to improve compliance with ORV and
resource protection requirements.
NPS will initially require that all permit applicants take the
education program in person in order to ensure completion of the
program, and applicants will be required to take the education program
annually for annual permits, or once per year if an applicant obtains
one or more 7-day permits in a year, assuming the applicant has
committed no violations since last taking the education program.
Through the periodic review process, the NPS will evaluate the
effectiveness of the education program in achieving its objectives and
could at some point, if appropriate, consider changes in the delivery
method or frequency of the education requirement.
41. Comment: The Seashore should require education for all
visitors, not just ORV users.
Response: The education requirement in the rule applies
specifically to persons applying for an ORV permit, as NPS believes
that the education program will improve compliance with the ORV
regulations. As indicated in Table 8 of the FEIS, NPS will also develop
a new voluntary (i.e. not mandatory) resource education program
targeted toward pedestrian beach users.
42. Comment: NPS should consider alternatives to a permit fee,
including alternative ways for the park to generate revenue, such as
collecting tolls at the Seashore. If ORV users are going to be charged
a user fee, then all visitors should have to pay a fee.
Response: While preparing the plan/EIS, NPS considered a variety of
alternative elements related to ORV permits and fees and then
considered public comments on the issue before determining the Selected
Action in the ROD. The idea of an entrance fee for the Seashore was
discussed thoroughly during the negotiated rulemaking process and was
dismissed primarily due to administrative and financial obstacles.
Establishing an entrance fee would require NPS to install and staff
entrance gates in the Seashore to collect entrance fees. NPS would then
need to accommodate thousands of local residents that need to travel
through the Seashore to gain access to their property. The logistics of
collecting entrance fees from all visitors would result in delays at
entrances and would restrict travel along NC-12. In addition, the
Seashore would only be able to retain a portion of the entrance fees
collected and generally those funds are not available to support key
functions associated with an ORV management program, such as law
enforcement, maintenance of routes or parking lots, or resource
management. The fee paid for a Seashore ORV permit will be collected
and retained under the NPS special park uses cost recovery authority to
support the various ORV management program functions.
43. Comment: Outer Banks residents should not be required to obtain
an ORV permit, or at least should not have to pay a fee.
Response: As a unit of the National Park System, the Seashore is
open on an equal basis to all members of the public, regardless of
where they live. Therefore, the cost of ORV permits would be the same
for all ORV users and would not vary based on their place of residence.
Additional information on how the permit system would be administered
and what fees would be used for can be found in the FEIS (p. C-70).
44. Comment: ORV permits should be issued to individuals rather
than vehicles.
Response: The option of issuing a permit to the person that would
be usable in any vehicle was considered during the development of the
plan/EIS, but eventually eliminated. Tracking and verifying that people
have ORV permits when the permits are movable between multiple vehicles
would require substantially more effort by NPS law enforcement staff.
Therefore, to provide the most efficient method for enforcing the
permit system, NPS has revised the wording in paragraph (c)(2) of the
rule to make it clear that the permit is issued to the individual for a
specific vehicle and the ``proof of permit,'' such as a windshield
sticker or a hang-tag issued by NPS, must be affixed to that vehicle
for use off-road.

[[Page 3133]]

45. Comment: The ORV permit should not be based on the calendar
year, but instead permits should be valid one year from the issue date.
Other commenters suggested that the ORV permit be issued for two weeks,
similar to the North Carolina recreational saltwater fishing license.
Response: While developing the plan/EIS, NPS considered a variety
of options for year-long permits, which included an option for permits
that would be valid for one year from the issue date, as well as
various options for short-term permits. Based on simplicity,
operational efficiency, and visitor convenience, the decision was made
to provide visitors with two permit options: annual permits, valid for
the calendar year; and 7-day permits, valid from date of purchase.
46. Comment: The proposed price range for the ORV permit is too
high and will discourage use.
Response: The price for the ORV permit will be based on a cost-
recovery system and is not designed to be prohibitive. As a cost
recovery program administered under NPS Director's Order 53, the actual
price of the ORV permit will be determined by the cost to NPS to
implement the ORV management program divided by the estimated number of
permits to be sold.
Based on prices at Cape Cod and Assateague Island National
Seashores for similar types of permits, it is reasonable to expect the
price of an annual ORV permit at Cape Hatteras to be $90-$150 and the
price of a weekly permit to be approximately 33%-50% of the annual
price (up to 50% if the annual price is lower in the price range; as
low as 33% if the annual price is higher in the price range).
47. Comment: After paying for a permit, people may not be able to
access their preferred area of the Seashore due to resource closures or
carrying capacity restrictions.
Response: Obtaining an ORV permit allows a visitor to operate the
permitted vehicle on designated ORV routes, but does not guarantee
access to all routes all the time. Certain areas of the Seashore may
also be closed to ORV access for resource protection during breeding
and nesting season for protected species. During peak use periods, such
as summer weekends and holidays, there could be occasions where certain
popular areas at the Seashore reach their established carrying capacity
limit, precluding additional ORV use until a number of vehicles leave
the particular area.
While it is true that some popular ORV areas will be inaccessible
at certain times during the year, past experience indicates that
substantial sections of the beach designated as ORV routes would remain
open for ORV use when other sections are temporarily closed.
48. Comment: There should be lower fees for less polluting
vehicles.
Response: As discussed previously, the price of the ORV permit fee
is determined by how much it costs NPS to implement the ORV management
plan. Although low emission vehicles are less polluting, they still
require the same effort and level of management as standard vehicles.
Therefore, offering a reduced fee for low emission vehicles would not
meet the NPS goal of recovering the costs of administering the ORV
management program.
49. Comment: The legality and cost of the NPS inspection and
equipment requirements are questionable.
Response: As part of the special regulation, NPS has the authority
to develop vehicle and equipment requirements associated with issuance
of an ORV permit. Much like state vehicle inspection requirements,
Seashore law enforcement personnel may inspect ORVs to ensure
compliance with the vehicle requirements contained in the rule. NPS
will not randomly search permitted ORVs for required equipment.
However, ORV operators must be able to demonstrate compliance with
vehicle and equipment requirements upon request.
NPS developed these equipment requirements, which are similar to
ORV equipment requirements at other seashore parks, in order to provide
for visitor safety and reduce incidences of vehicle strandings. The
equipment requirements contained in the rule are minimal and are
generally items that most drivers already have in their vehicles.
Accordingly, the cost of these items would be negligible.
50. Comment: Low speed vehicles, golf carts, or electric vehicles
should be allowed.
Response: Under the proposed rule, only vehicles registered,
licensed, and insured for highway use and that comply with inspection
regulations within the state, country, or province where the vehicle is
registered are allowed to operate on the Seashore. While low speed
vehicles or neighborhood electric vehicles may be authorized for local
use in certain areas, they generally are not registered, licensed, or
insured for highway use, and therefore will not be permitted to be used
on the Seashore.
51. Comment: NPS should clarify what it means in paragraph (3)(v)
by requiring a ``jack stand'' be carried. Jack stands are typically
used in an automotive repair shop.
Response: NPS concurs with this comment and has revised paragraph
(c)(3)(v) of the rule to use the phrase ``jack support board,'' rather
than ``jack stand.'' The purpose of the board is to place it under the
jack so the jack does not sink into the soft sand if the vehicle
operator is attempting to raise the vehicle to change a tire on the
beach.
52. Comment: Paragraph (6) of the rule should be clarified to
indicate that trailers with sleeping, cooking, and bathroom facilities
are excluded.
Response: NPS generally concurs with this suggestion; however, NPS
believes that trailers with only cooking facilities, such as a grill,
are appropriate for beach use. Since camping on Seashore beaches is
prohibited, the intent is to preclude the use of trailers that could
contribute to violations of the camping prohibition. NPS has revised
paragraph (c)(6) of the rule to state as follows: Towing a travel
trailer (i.e. a trailer with sleeping and/or bathroom facilities) off-
road is prohibited.
53. Comment: Additional modes of alternative transportation should
be included in the rule.
Response: Alternative transportation is outside the scope of the
rule; however, as described in the FEIS under Alternative F,
transportation strategies such as shuttles and buses could be
considered (p. 80). According to the ROD, NPS would consider
applications for commercial use authorizations to offer beach and water
shuttle services and would apply for funding to conduct an alternative
transportation study to evaluate the feasibility of alternative forms
of transportation to popular sites.
54. Comment: In paragraph (7)(iii), special-use permits for
mobility impaired individuals should be valid for all vehicle-free
areas, not just in vehicle-free areas in front of villages.
Response: Vehicle-free areas were designed to provide areas for a
``vehicle-free'' experience for park visitors and to provide for
resource protection for wildlife. There are many opportunities for
mobility impaired visitors to use an ORV for beach access on the
designated ORV routes outside of the vehicle-free areas. For mobility
impaired visitors who specifically wish to join others that have
gathered on foot on a village beach, the special-use permit option is
also provided.
55. Comment: In paragraph (7)(iii), the requirement that the
vehicle must return to the designated ORV route or Seashore road
immediately after the transport raises significant safety concerns and
is unreasonable. What if the person needs to leave the beach quickly
due to weather or health issues?

[[Page 3134]]

Response: NPS concurs that the vehicle removal requirement in
paragraph (c)(7)(iii) of the proposed rule may create safety concerns
or be unreasonable under certain circumstances. NPS revised the wording
in the rule to eliminate the vehicle removal requirement and to state
that special-use permits are subject to the resource, safety, and other
closures implemented under Sec. 7.58(c)(10), and may only be used in a
manner consistent with the terms and conditions of the permit.
56. Comment: Vehicular access should only be allowed for mobility
impaired visitors.
Response: ORV use, if effectively managed, provides convenient
access for many appropriate visitor activities at some popular beach
sites including, for example, activities that use vehicles to transport
substantial amounts of gear for the activity. Allowing only mobility-
impaired visitors to operate vehicles on ORV routes would essentially
preclude vehicular access for the majority of ORV users at the
Seashore.
As noted above, this rule implements the ROD which allows for
continued ORV use. Allowing ORV use only by mobility-impaired visitors
would not have met the purpose, need, and objectives of the plan/EIS.
This approach would also have been inconsistent with the Seashore's
1984 General Management Plan which states that ``selected beaches will
continue to be open for ORV recreational driving and in conjunction
with surf fishing in accordance with the existing use restrictions.''
57. Comment: The proposed rule makes no mention of the Americans
with Disabilities Act (ADA). Special-use permits should be issued to
anyone who possesses a legally registered handicapped sticker from
their state.
Response: The Rehabilitation Act, 29 U.S.C. 791 et seq., applies to
Federal agencies in lieu of the ADA, and NPS is required to provide
reasonable access to programs and services at the Seashore.
``Reasonable'' does not necessarily mean ``total'' and must be viewed
in the light of the entire program or activity, including its purpose
(i.e., providing the visitor with a variety of experiences).
In developing the plan/EIS and rule, NPS recognized that visitors
to the Seashore have different needs, and therefore provided that:
ORVs are allowed on designated routes for those visitors
who feel they may require a vehicle to be readily available due to a
medical condition or disability or may need to have a family member
with them at all times,
Vehicular transport of mobility-impaired individuals is
allowed via the shortest, most direct distance from the nearest
designated ORV route or Seashore road to a predetermined location in a
beach area in front of a village that is not otherwise open to ORV use.
Anyone who has a license plate or placard issued by a State
Division of Motor Vehicles to a mobility-impaired individual is
eligible for the special-use permit; however, the special-use permit is
not intended to provide blanket vehicular access to all vehicle-free
areas. Because the special-use permit is intended only to allow
vehicular transport of mobility-impaired individuals via the shortest,
most direct distances from the nearest designated ORV route or Seashore
road to a predetermined location in a designated vehicle-free area in
front of a village, NPS will issue the special-use permit upon request
on a case-by-case basis. The specific terms and conditions of each
special-use permit, such as the location to be accessed or the duration
of the permit, will be determined based on the individual need. These
opportunities are consistent with the applicable requirements and NPS
policies.
58. Comment: Implementation and enforcement of special-use permits
will create an undue workload burden on the Superintendent and NPS
personnel.
Response: The operational impacts of ORV management and the
associated costs for adequate staffing to implement the ORV management
plan and rule, including the special-use permit provision, were
carefully considered in the FEIS. The specific circumstances described
in paragraph (c)(7) for issuance of a special-use permit to authorize
temporary off-road driving in areas not designated as ORV routes are
limited in scope, number, and frequency of occurrence. The expected
special-use permit workload will not add substantially or uniquely to
the general ORV management workload that was considered and addressed
in the FEIS.
59. Comment: Non-emergency use by nonessential vehicles should be
prohibited within a resource closure and special-use permits should
state that the holder must adhere to all closures.
Response: NPS concurs with this comment. The wording of paragraph
(c)(7) of the rule has been revised to state that the special-use
permits are subject to the resource, safety, and other closures
implemented under Sec. 7.58(c)(10), and may only be used in a manner
consistent with the terms and conditions of the permit.
60. Comment: NPS should increase its law enforcement presence and
focus on enforcing the existing rules, which are sufficient, rather
than establishing additional rules.
Response: Without a rule designating ORV routes, NPS is out of
compliance with its own regulations and the E.O.s on ORV use.
Therefore, this rule is needed to allow continued ORV use at the
Seashore. The operational impacts of ORV management and the associated
costs for adequate staffing to enforce regulations related to ORV use
were considered and addressed in FEIS.
61. Comment: NPS should create a 1,000-meter ORV exclusion zone on
beaches adjacent to all NPS campgrounds to improve the experience for
people staying in the campgrounds and to reduce visitor conflicts and
improvement of amenities.
Response: The beach in front of the Ocracoke campground is
designated as vehicle-free during periods of high visitor use (April 1
to October 31). At Cape Point, Oregon Inlet, and Frisco Campgrounds,
adjacent areas are open to ORV use year-round to maintain an ORV route,
and the Seashore knows of no major issues raised related to safety or
conflicts at the campgrounds that would warrant additional
restrictions. However, the Superintendent has the authority under
paragraph (c)(10) of this rule to temporarily restrict access to ORV
routes or areas in accordance with public health and safety criteria.
62. Comment: The NPS has mischaracterized beach driving as a
``new'' activity in order to justify new infrastructure.
Response: ORV use at the Seashore is not new. NPS briefly
summarized the history of ORV use at the Seashore in the preamble to
the proposed rule and more extensively in pp. 17-27 of the FEIS. What
is new is that the rulemaking process will result in the formal
designation of ORV routes in order to comply with the E.O.s on ORV use
and with NPS regulation 36 CFR 4.10(b). As described in the FEIS and
ROD, new infrastructure will facilitate public use of designated ORV
routes and the vehicle-free areas that are not designated for ORV use.
63. Comment: An area that is not endangering the wildlife should be
set aside for recreational beach driving. Please act responsibly and
build a nearby track for racing around in a dune buggy or off-road
vehicle.
Response: The E.O.s require that ORV activities on public lands be
limited to designated routes or areas and that these designations be
based on the protection of resources, the promotion of visitor safety,
and the minimization of user

[[Page 3135]]

conflicts. Designating an area for recreational driving or racing would
not meet these requirements, as these types of vehicular uses would not
promote visitor safety, minimize conflicts, or adequately protect
resources.
This rule implements the ROD, which did not provide for such use.
Establishing this type of use would have been inconsistent with the
purpose of the plan/EIS, which was to ``develop regulations and
procedures that carefully manage ORV use/access in the Seashore to
protect and preserve natural and cultural resources and natural
processes, to provide a variety of visitor use experiences while
minimizing conflicts among various users, and to promote the safety of
all visitors.''
64. Comment: Where ORV use is allowed could be based on seasonal
indicators such as the summer tourist season or by seasonal nesting
patterns for species at the Seashore.
Response: While preparing the plan/EIS, NPS considered a variety of
seasonal factors, including shorebird and turtle nesting seasons, and
park visitation and rental unit occupancy trends, before determining
the dates used for seasonal restrictions in the Selected Action and
ROD. The proposed rule was based on and is consistent with the ROD.
65. Comment: Seasonal ORV closures of villages should be based on
conditions, not arbitrary dates. Dates should not be permanently
established in the proposed rule, but should be determined annually by
the Superintendent through consultation with Dare County, Hyde County,
and North Carolina Department of Transportation officials.
Response: The seasonal dates when ORV use is allowed in front of
villages and Ocracoke Campground are not arbitrary. In the ROD, NPS
determined these areas would be open to ORVs from November 1 to March
31, when visitation and rental occupancy is lowest. To provide for
increased visitor safety and additional opportunities for a vehicle-
free experience, these areas will be closed to ORV use from April 1 to
October 31 when visitation and rental occupancy is highest.
66. Comment: The language describing user conflicts in the proposed
rule is inaccurate. NPS would have everyone believe that the people who
use the Seashore are in conflict with each other, which is not true.
Response: The existence of visitor conflicts has been documented in
many public comments received on the Interim Strategy and on the DEIS.
The Seashore also receives letters from visitors complaining about the
adverse effects of ORVs on their experience at the Seashore. Some
members of the negotiated rulemaking committee represented members of
the public that consider the presence of vehicles driving on the beach
as a conflict with their experience of the Seashore.
The Seashore does not compile data on numbers of these complaints
or incidents of visitor conflict, nor is a quantitative analysis
required to manage or minimize it under the E.O.s. As required, the
Seashore is designating routes to ``minimize visitor conflict.''
67. Comment: ORVs should be limited as to the amount of noise each
vehicle can make.
Response: Vehicles used off-road must be registered, licensed, and
insured for highway use and must comply with inspection regulations
within the state, country, or province where the vehicle is registered.
Most jurisdictions require that vehicles authorized for highway use
have functioning exhaust and muffler systems and prohibit modifications
to those systems that could result in excessive noise. In addition, 36
CFR 2.12, Audio Disturbances, prohibits the operation of motorized
vehicles within NPS units in excess of 60 dBA at a distance of 50 feet
from the source, or if below that noise level, noise which is
unreasonable. The rule also establishes reduced speed limits, which
will reduce vehicular noise.
NPS believes that this combination of restrictions will adequately
protect the soundscape in the Seashore.
68. Comment: There should be substantial fines for violation of ORV
rules and requirements.
Response: Most of the violations observed at the Seashore are
considered petty offenses (Class B Misdemeanors) in the Federal Court
System, which carry a maximum fine of $5,000.00 and/or six months in
prison. The size of fines is also governed by a collateral forfeiture
schedule, as approved by the Chief Judge of the Eastern District of
North Carolina. The last update to the collateral forfeiture schedule
was approved by the court in 2004. NPS will submit an updated
collateral forfeiture schedule in the next year or two and may request
higher fines for ORV related offenses. In addition to the possibility
of fines for the violator, an ORV permit may be revoked for violation
of applicable park regulations or terms and conditions of the permit,
which includes violation of resource protection closures.
69. Comment: Night driving should be prohibited during sea turtle
and bird nesting season.
Response: This rule prohibits night driving from May 1 through
September 14, which coincides with sea turtle nesting season. The rule
also authorizes the Superintendent to permit night driving from
September 15 through November 15, but only in areas where no sea turtle
nests remain. Pre-nesting and seasonal resource closures described in
the FEIS prohibit any ORV use in these areas during the nesting period
for sensitive bird species. NPS believes that these measures provide
ample nighttime protection for birds, sea turtles, and their nests.
70. Comment: Night driving restrictions are not needed, are not
based on science, and should not be included in the rule. There has
only been one documented case in the history of the Seashore of a sea
turtle being hit by an ORV, and that occurred in an area closed to the
public while the consent decree night driving restriction was in
effect.
Response: The sea turtle management procedures at the Seashore are
based on the latest scientific research and are consistent with the
latest U.S. Fish and Wildlife Service Recovery Plan for the Northwest
Atlantic Population of the Loggerhead Sea Turtle (2008) and North
Carolina Wildlife Resources Commission guidelines, which were both
developed by scientific experts in the field of loggerhead sea turtle
biology and conservation. For example, the loggerhead sea turtle
recovery plan recommends that nighttime driving on beaches during the
loggerhead nesting season be prohibited because vehicles on the beach
have the greatest potential to come into contact with nesting females
and emerging hatchlings at night.
Driving on the beach at night has been shown to impact nesting sea
turtles and hatchlings both directly and indirectly. Because visibility
is reduced at night, there is also the potential for nesting, live
stranded, or hatchling turtles to be hit by ORVs operating at night. In
addition, because NPS does not have the resources to monitor the entire
beach 24 hours per day, the number of recorded incidents resulting from
human activities, especially at night, likely underestimates the actual
number of incidents that occur.
Even in areas that people do not normally access due to the
distance from beach access points, the Seashore has documented vehicle
lights and people with lights and cameras causing false crawls--false
crawls that would likely not have occurred if ORVs had not brought
people to those locations. Park staff have also documented turtles
crawling toward vehicle lights after

[[Page 3136]]

nesting, false crawls adjacent to fire pits, hatchlings disoriented by
fires, hatchlings caught in tire ruts, and vehicles running over turtle
nests before morning turtle patrols--some with recorded damage to eggs.
Though it is the only known recorded incident at the Seashore where
an adult nesting turtle was struck and killed by an ORV, the recent
death of an adult nesting turtle that likely occurred during the early
morning hours of June 24, 2010 indicates that the potential does exist
for vehicles driving at night to strike and kill nesting turtles.
71. Comment: The regulation should allow portions of designated ORV
routes to remain open to night driving rather than closing the entire
route containing a turtle nest.
Response: NPS concurs with this comment and has revised the rule
language to provide the Superintendent with the authority to open
``portions of'' designated ORV routes in sea turtle nesting habitat to
night driving if no turtle nests remain within those portions.
72. Comment: NPS should close the Seashore to night driving from 10
p.m.-6 a.m. or from one hour after sunset to one hour before sunrise.
Response: As described in the FEIS, NPS studied several different
scenarios for establishing the hours and dates for night driving at the
Seashore. Restricting night driving between the hours of 9 p.m. and 7
a.m. provides an easily understood, enforceable restriction that
provides a balance between conservation and public access by
encompassing the majority of the nesting and hatching periods at night
while generally allowing turtle patrol staff time to find and protect
nests before ORVs are on the beach each day.
73. Comment: The rule should allow vehicle operators to avoid
turtles rather than closing routes to night driving.
Response: As noted above, night driving has been shown to impact
sea turtles, and turtle management experts who developed the loggerhead
sea turtle recovery plan recommend that night driving be prohibited
during the turtle nesting season. Allowing vehicles in close proximity
to sea turtles, especially at night, greatly increases the potential
for direct and indirect disturbance to nesting turtles and hatchlings.
Therefore, seasonally closing ORV routes (or portions of ORV routes) to
night driving is a reasonable method of protecting sea turtles while
continuing to provide ORV users with some level of night driving
opportunities outside of seasonal restrictions.
74. Comment: NPS should require applicants for night driving
permits to complete an educational program.
Response: The education program that must be taken in order to
obtain the standard ORV permit will address night driving restrictions
and reasons for those restrictions. The rule does not require a
separate or special permit for night driving.
75. Comment: The night driving restriction will curtail other early
evening and nighttime activities at the Seashore, such as night sky
viewing and beach fires. Lack of ORV access at night will create safety
issues by requiring fisherman to walk in the dark to access prime
historic fishing grounds.
Response: Seasonal night driving restrictions may affect the
ability of visitors to have beach fires in more remote areas of the
Seashore after 9 p.m. However, beach fires will still be permitted
throughout the Seashore outside of turtle nesting season and in front
of villages and other selected beaches during the nesting season. Night
driving restrictions will actually improve the ability of visitors to
enjoy night sky viewing by reducing the amount of ambient light on the
beaches. Although night driving restrictions will preclude fishermen
from driving to or from fishing grounds after 9 p.m., nothing in the
rule will prohibit fishermen (or other visitors) from carrying a
flashlight along the beach outside of resource closures.
76. Comment: Camping in self-contained vehicles, vehicles engaged
in fishing, and vehicles remaining stationary should be allowed on the
beach at night.
Response: Off-season, self-contained vehicle camping in park
campgrounds was analyzed in the FEIS in Alternative E. It was not
selected in the ROD or included in the rule due to the staffing and
operating costs, and the permitting, law enforcement patrol, and
maintenance workloads associated with keeping campgrounds open in the
off-season for a limited number of campers.
NPS believes that local commercial campgrounds provide appropriate
opportunities for off-season vehicle camping. Allowing overnight
parking on the beach when night driving is restricted would create
patrol and enforcement problems, and would rely on the unrealistic
expectation that visitors parked in such locations would strictly
comply with the night driving restrictions. NPS does not have the
resources to patrol the entire Seashore at night to enforce compliance,
and allowing parked vehicles on the beach at night would potentially
result in additional compliance problems that would cause adverse
impacts to park resources.
77. Comment: The Seashore should be closed to commercial fishing.
If not closed to commercial fishing, there should be specific
restrictions on commercial fishing activity and permits.
Response: The Seashore's enabling legislation provides that the
legal residents of the villages have the right to earn a livelihood by
fishing within the boundaries of the Seashore. Therefore, NPS allows
commercial fishing. However, the activity is managed and permitted in
accordance with the eligibility requirements in 36 CFR 7.58(b). Under
the ORV rule, commercial fishermen will not be required to obtain a
separate ORV permit, but their use of vehicles on Seashore beaches will
be regulated through their commercial fishing permit issued by the
Seashore.
78. Comment: Commercial fishing should be allowed only where there
is neither a resource closure nor a lifeguarded beach.
Response: Commercial fishing vehicles have been prohibited from
entering either resource closures or lifeguarded beaches for a number
of years under the Superintendent's Compendium, and NPS is continuing
this prohibition in this rule. To make it clear that the restriction
applies to either situation, NPS has revised the wording in paragraph
(c)(8)(i) of the rule.
79. Comment: The list of ``open ramps'' in paragraph (c)(9) is
misleading because it includes proposed ramps that are not yet funded.
Since there are ramps, parking areas, and dune walkovers identified as
mitigation that are not funded, they should not be included in the rule
and the rule should not be implemented until the ramps are constructed.
The funds needed to construct the proposed ramps and other
infrastructure need to be identified.
Response: Implementation of the FEIS, ROD and this rule will
require funding for construction of supporting infrastructure, such as
new access ramps and parking areas. NPS anticipates that funding for
this construction will come from appropriated NPS program funds such as
``Line Item Construction'' or ``Repair and Rehabilitation,'' or from
the park's recreation fees, or from grants. The only designated year-
round ORV route at the Seashore that will not have an established ORV
access point until after the new ramps are constructed is the area
between ramp 59.5 and ramp 63. Therefore, NPS has amended the language
in the rule to allow existing ramp 59 to remain open to ORV use

[[Page 3137]]

until ramp 59.5 can be funded and constructed.
80. Comment: Some areas that have been historically open to ORVs
have been excluded from the designated routes listed in the tables in
paragraph (c)(9). If NPS moves forward with its plan to close these
areas to ORV use, the rule should be revised to provide for an adaptive
management process under which NPS could reopen these closures based on
visitor use patterns.
Response: The designated ORV routes in paragraph (c)(9) of the rule
are taken from Alternative F in the FEIS, which became the Selected
Action in the ROD. An NPS regulation, 36 CFR 4.10, requires NPS to
designate routes through the promulgation of this special regulation.
NPS received and considered numerous comments on the proposed ORV
routes during the review of the DEIS and addressed these public
comments in Appendix C of the FEIS. While the FEIS contains adaptive
management provisions for protected species management, the designation
of ORV routes in a regulation does not lend itself to the principles of
adaptive management, which is designed to make iterative adjustments to
management techniques as new scientific information becomes available.
If, at some point in the future, NPS needs to revise the designated ORV
routes, additional NEPA compliance will be required, followed by a new
proposed and final rule.
81. Comment: Paragraph (c)(9) of the proposed rule (ORV Routes)
should be amended to state explicitly that these routes will be subject
to mandatory resource, safety, seasonal, and other closures. These
clarifications are necessary to make it clear that even if a route is
``open,'' it is still subject to certain closures. By not putting in
these clarifications, NPS would violate E.O. 11644.
Response: The wording of paragraph (c)(9) has been revised in the
rule to make it clear that the routes and ramps listed are
``designated'' for ORV use, not necessarily ``open.'' Paragraph (c)(10)
indicates that routes or areas designated for off-road use are subject
to closure or restriction by the Superintendent for a variety of
reasons, including natural and cultural resource protection.
82. Comment: Section 7.58(c)(10) should be revised to provide the
Superintendent with the discretion to authorize enhanced access when he
or she determines that such enhanced access is appropriate based upon
consideration of the relevant factors.
Response: Paragraph (c)(10) applies specifically to the
Superintendent's authority to establish temporary closures of ORV
routes as needed to provide for resource protection, public health and
safety, and other conditions described in that paragraph. Examples
could include pre-nesting closures, carrying capacity closures, and
implementation of resource protection buffers described in the FEIS.
The Superintendent does not have the discretion to allow vehicular
access to areas that are not authorized or designated as ORV routes in
the special regulation, except for the specific situations addressed in
paragraph (c)(7), related to temporary special-use permits for off-road
driving.
83. Comment: There is no basis for the NPS to establish parking
requirements and reduced speed limits in the rule.
Response: As described in the FEIS, NPS decided to implement the
``one deep'' beach parking restriction as a safety measure to ensure
that two-way traffic will not be impeded during times of high ORV use.
Although parking multiple rows deep may seem desirable to some
visitors, law enforcement staff have documented that it has resulted in
parking and traffic congestion, especially on narrow beaches. This
congestion blocks vehicle travel lanes, impedes safe traffic flow,
fosters disorderly behavior, and results in a potentially dangerous
situation in the event of an emergency. Reduced speed limits were
implemented to increase pedestrian safety in areas where pedestrians
and ORVs are in close proximity to one another.
84. Comment: The use of the term ``may'' in paragraph (c)(10),
Superintendent's Closures, renders the section permissive rather than
obligatory. As written, the proposed rule seems to allow the
Superintendent to choose not to impose any closures at all, even in the
presence of protected species nests or chicks that would warrant
imposition of buffers under the FEIS and ROD. The wording should be
revised to state ``the Superintendent shall limit, restrict, or
terminate access to routes or areas designated for off-road use'' based
on the considerations listed.
Response: The intent of the special regulation is to implement the
Selected Action as described in the FEIS and ROD, which includes
implementation of the Species Management Strategies described in Table
10-1 in the FEIS. As also described in response 10, the
strategies will be periodically reviewed to evaluate their
effectiveness. The wording of paragraph (c)(10) has been revised to
state that the Superintendent ``will'' temporarily limit, restrict, or
terminate access to routes and areas designated for off-road use in
accordance with the criteria listed; and wording has been added that
states ``the Superintendent will conduct periodic reviews of the
criteria and the results of these closures to assess their
effectiveness.''
85. Comment: The vehicle carrying capacity is objectionable and not
necessary, as the capacity of the area regulates itself. Carrying
capacity should be struck from the rule.
Response: NPS disagrees with the assertion that ``the capacity of
the area regulates itself.'' Numerous documented law enforcement
incidents have occurred over the years at popular locations during peak
use periods, such as summer holiday weekends, involving crowded
conditions, disorganized parking, and unsafe vehicle operation. The 260
vehicle per linear mile limit, based on a physical space requirement of
20 feet per vehicle, will allow enough space for vehicles to be parked
side-by-side with their doors open without touching each other and with
room for a person to pass between them safely. This, along with the
other measures in the rule, will improve visitor experience and visitor
safety during busy weekends.
86. Comment: The carrying capacity in the proposed rule should be
much lower and allow no more than 130 ORVs per mile of Seashore.
Language should be added to the rule to clarify that density
limitations apply per mile of the beach, and not to the entire National
Seashore.
Response: As described above, NPS developed carrying capacity
restrictions to work with other measures in the rule to mitigate public
safety and visitor experience impacts during peak ORV use periods at
the Seashore. The established capacity limits are intended to apply to
beach segments open to ORV use at any particular time and not as a
method of establishing the total allowable numbers of vehicles in the
entire Seashore at any one time. Paragraph (c)(13) of the rule has been
revised to make it clear that the carrying capacity applies to that
portion of an ORV route that is open for ORV use.

Changes From the Proposed Rule

After taking the public comments into consideration and after
additional review, NPS made the following changes in the final rule:

[[Page 3138]]

------------------------------------------------------------------------

------------------------------------------------------------------------
7.58(c)(1)........................ Changed definition of ORV corridor
to:
Describe the physical
boundaries of the ORV corridor on
the beach; and
Ensure that the definition
is consistent with the intent of
the language in the FEIS and ROD.
7.58(c)(2)(v)..................... Removed the ``in person''
language from the rule to provide
the Superintendent with greater
flexibility for administering the
ORV permit issuance procedures.
7.58(c)(7)(iii)................... Allowed ORVs that transport
mobility-impaired individuals to
remain on the beach, subject to
conditions in the special-use
permit issued for the activity.
Clarified that these
special-use permits are subject to
all resource, safety, seasonal, and
other closures implemented under
paragraph Sec. 7.58(c)(10) of the
rule.
7.58(c)(8)(i) and (ii)............ Clarified exactly where
commercial fishing permit holders
can operate ORVs when engaged in
authorized commercial fishing
activities.
7.58(c)(9)........................ Clarified that designated
ORV routes and ramps are subject to
resource, safety, seasonal, and
other closures.
Indicated that ramp 59 will
be temporarily designated as an ORV
ramp until ramp 59.5 is
constructed.
Edited designated routes
table for Hatteras Island to
provide a more accurate description
of the current conditions at
Hatteras Inlet spit, as a result of
physical changes to the island
caused by Hurricane Irene in August
2011.
Edited designated routes
table for Ocracoke Island to
provide that ramp 59 is temporarily
designated as an ORV ramp until
ramp 59.5 is constructed and
operational.
7.58(c)(10)....................... Clarified the
Superintendent's authority to
implement and remove closures.
Clarified the criteria for
establishing closures.
Added language regarding
the periodic review process.
7.58(c)(12)(i).................... Clarified that the
Superintendent may open portions of
designated ORV routes in sea turtle
nesting habitat to night driving
from September 15 through November
15, if no turtle nests remain
within these portions of ORV
routes. The proposed rule stated
that only entire routes with no
turtle nests remaining could be
opened to night driving.
7.58(c)(13)....................... Clarified that carrying
capacity refers to the maximum
number of vehicles allowed on any
open ORV route, at one time, and is
the length of the route (or, if
part of the route is closed, the
length of the portion of the route
that is open) divided by 6 meters
(20 feet).
------------------------------------------------------------------------

The Final Rule

This final rule establishes a special regulation as provided in 36
CFR 4.10(b) to manage ORV use at the Seashore. The regulation
implements portions of the Selected Action, as described in the ROD, by
designating ORV routes at the Seashore, establishing requirements to
obtain a permit, and imposing date and time and other restrictions
related to operation of ORVs, including vehicle and equipment
standards. In addition, the final rule corrects a drafting error at
Sec. 7.58(b)(1) to clarify that the definitions found there only apply
to Sec. 7.58 and not to the entirety of 36 CFR part 7.
The rule will also delete the definition of permittee at Sec.
7.58(b)(1)(ii) as it is unnecessary and potentially confusing to the
public, as the term could be applied to individuals holding different
types of permits for different activities. This deletion consequently
requires redesignation of the remaining provisions in paragraph (b).
The following explains some of the principal elements of the final
rule in a question and answer format:

What is an Off-Road Vehicle (ORV)?

For the purposes of this rule, an off-road vehicle or ORV means a
motor vehicle used off of park roads (off-road). Vehicles will need to
comply with vehicle and equipment requirements in this rule; vehicles
that do not comply are not authorized for ORV use at the Seashore.

Do I need a permit to operate a vehicle off road?

Yes. To obtain an ORV permit, you must complete a short education
program, acknowledge in writing that you understand and agree to abide
by the rules governing ORV use at the Seashore, and pay the applicable
permit fee. Both weekly (7-day, valid from the date of issuance) and
annual (calendar year) ORV permits will be available.

Is there a limit to the number of ORV permits available?

No. There will be no limit to the number of permits that the
Superintendent could issue. However, use restrictions may limit the
number of vehicles on a particular route at one time.

Several of my family members have ORVs that we would like to use on
Seashore beaches. Do we need to get a permit for each vehicle?

Yes. You will need to get a permit for each vehicle that you want
to use for driving on designated ORV routes. You must display the proof
of permit, in a manner and location specified by the Superintendent, on
each vehicle that you operate on designated ORV routes within the
Seashore. (The proof of permit may be a color coded windshield sticker,
hang tag for the rear-view mirror, or some other indicator provided by
NPS.)

Where can I operate my vehicle off road?

Once you obtain an ORV permit, you may operate a vehicle off road
only on designated routes described in the tables located in Sec.
7.58(c)(9). The tables also provide dates for seasonal restrictions on
driving these designated routes. Maps of designated ORV routes will be
available in the Office of the Superintendent and on the Seashore Web
site.

Does the ORV permit guarantee that all designated ORV routes will be
open for me to use?

No. In addition to the referenced seasonal restrictions, ORV routes
are subject to temporary resource and safety closures. However, past
experience indicates that substantial portions of the beach designated
as ORV routes will remain open for ORV use even when other sections are
temporarily closed.

Are there any requirements for my vehicle?

Yes. To receive a permit to operate a vehicle on designated ORV
routes, your vehicle must:
Be registered, licensed, and insured for highway use and
comply with inspection requirements for the state, country, or province
where the vehicle is registered;

[[Page 3139]]

Have no more than two axles and be equipped with tires
that are listed or approved by the U.S. Department of Transportation as
described at: http://www.safercar.gov/Vehicle+Shoppers/Tires/Tires+Rating/Passenger+Vehicles.
Be equipped with a low-pressure tire gauge, shovel, jack,
and jack support board.

Can I drive my two-wheel-drive vehicle on designated ORV routes?

Yes. Four-wheel-drive vehicles are recommended, but two-wheel-drive
vehicles will be allowed if, in the judgment of the vehicle operator,
the vehicle is capable of over-sand travel.

Can I tow a boat or utility trailer with my vehicle on designated ORV
routes?

Yes. Towed boat and utility trailers with one or two axles will be
allowed. Boat and utility trailers with more than two axles will be
prohibited.

Can I tow a travel trailer (i.e., a trailer with sleeping and/or
restroom facilities) on designated ORV routes?

No. Travel trailers will be prohibited on designated ORV routes, as
camping at the Seashore is prohibited except in designated campgrounds.

Can I ride my motorcycle off of seashore roads?

No. The operation of motorcycles will be prohibited on designated
ORV routes. Motorcycles are generally not capable of travelling through
the deep, soft sand or carrying the requisite equipment for self-
extraction should they become stuck.

Can I ride my all-terrain vehicle (ATV), or utility vehicle (UTV) off
of seashore roads?

No. ATVs and UTVs may not be operated on park roads or designated
off-road routes. These vehicles have historically not been allowed to
operate within the Seashore. Authorizing their use would interfere with
the more significant and traditional use of four-wheel drive pick-up
trucks, sport utility vehicles, and other passenger vehicles for off-
road access associated with fishing, picnicking, sun bathing, surfing,
wading, and swimming.

What is the speed limit on designated ORV routes?

The speed limit will be 15 miles per hour (unless otherwise
posted), except for emergency vehicles responding to a call.

Are there right-of-way rules for ORV drivers in addition to those
already in effect at the Seashore?

Yes. Vehicles must yield to pedestrians and move to the landward
side of the ORV corridor when approaching or passing a pedestrian on
the beach. When traveling within 100 feet of pedestrians, ORVs must
slow to 5 mph.

Can I drive on designated ORV routes at night?

Yes, but not at all times on all routes. ORVs will be allowed on
designated ORV routes 24 hours a day from November 16 through April 30,
subject to the terms and conditions established under an ORV permit.
From May 1 through September 14, designated ORV routes in potential sea
turtle nesting habitat (ocean intertidal zone, ocean backshore, and
dunes) will be closed to ORVs from 9 p.m. until 7 a.m. From September
15 through November 15, designated ORV routes in potential sea turtle
nesting habitat (ocean intertidal zone, ocean backshore, and dunes)
will remain closed to ORVs from 9 p.m. until 7 a.m., however, the
Superintendent may reopen portions of designated ORV routes at night if
there are no turtle nests remaining. This is a minor change to the
dates in the ROD. NPS has decided it will be easier for the public to
understand and more convenient to administer if the night-driving dates
coincided with some of the seasonal ORV route dates. Therefore, night
driving may be allowed beginning on September 15 instead of September
16. Routes that are subject to these night-driving restrictions, as
well as routes or portions of routes identified as having no turtle
nests remaining, will be shown on maps available in the Office of the
Superintendent and on the Seashore Web site.

Can I leave my ORV parked on the beach if I don't drive it between 9
p.m. and 7 a.m. during the dates night-driving restrictions are in
effect?

No. During the restricted hours, all vehicles will be prohibited on
designated ORV routes, including the beach.

Is a separate permit required for night driving?

No. It will be covered by the ORV permit required to drive on the
designated ORV routes in the Seashore.

I have a family member who is disabled or mobility-impaired. Can I use
my ORV to drive that family member to the beach where we are gathering,
even if it is not designated as an ORV route?

Yes, if you obtain a special-use permit for that purpose. The
special-use permit will allow you to transport mobility-impaired
individuals to a predetermined location in a beach area in front of a
village that is not otherwise open to ORV use. You will be subject to
the terms and conditions set forth in the permit. Additionally, you
should keep in mind that with a standard ORV permit you will have
access to many miles of beach open to ORVs year-round or seasonally. In
those areas, vehicles may simply be parked in the ORV corridor.

Are there other types of permits that allow ORV use at the seashore?

Yes. Commercial use authorizations would, as appropriate, also
authorize ORV use by commercial use authorization holders, but not
their clients. ORV use by commercial fishermen who are actively engaged
in a commercial fishing activity would be authorized under the terms of
their commercial fishing special-use permit.
In addition, the Superintendent may issue a special-use permit for
temporary ORV use to:
Allow the North Carolina Department of Transportation to
use Seashore beaches as a public way, when necessary, to bypass
sections of NC Highway 12 that are impassable or closed for repairs;
Allow participants in regularly scheduled fishing
tournaments to drive in an area if such tournament use was allowed in
that area for that tournament before January 1, 2009; or
Allow vehicular transport of mobility impaired individuals
via the shortest, most direct distance from the nearest designated ORV
route or Seashore road to a predetermined location in a beach area in
front of a village that is not otherwise open to ORV use.

Can commercial fishermen drive in vehicle-free areas?

Yes. In keeping with the current practice, commercial fishermen
when actively engaged in their authorized commercial fishing activity
may be allowed to operate an ORV in a vehicle-free area if the beach is
neither subject to a resource closure nor a lifeguarded beach.
Lifeguarded beaches will be seasonally closed to ORVs by the
Superintendent. Commercial fishing activities and use of associated
fishing

[[Page 3140]]

gear conflict with the significant concentrated beach use and
associated swimming in these areas.
Commercial fishermen who are actively engaged in authorized
commercial fishing activity and are carrying and able to present a
fish-house receipt from the previous 30 days will be allowed to enter
the beach at 5 a.m. on days when night driving restrictions are in
effect for the general public.

Compliance With Other Laws and Executive Orders

Use of Off-Road Vehicles on the Public Lands (E.O. 11644 and 11989)

Section 3(4) of E.O. 11644 provides that ORV ``[a]reas and trails
shall be located in areas of the National Park system, Natural Areas,
or National Wildlife Refuges and Game Ranges only if the respective
agency head determines that off-road vehicle use in such locations will
not adversely affect their natural, aesthetic, or scenic values.''
Since the E.O. clearly was not intended to prohibit all ORV use
everywhere in these units, the term ``adversely affect'' does not have
the same meaning as the somewhat similar terms ``adverse impact'' or
``adverse effect'' used in the National Environmental Policy Act of
1969 (NEPA). In analyses under NEPA, a procedural statute that provides
for the study of environmental impacts, the term ``adverse effect''
includes minor or negligible effects. Section 3(4) of the E.O., by
contrast, concerns substantive management decisions and must be read in
the context of the authorities applicable to such decisions. The
Seashore is an area of the National Park System. Therefore, NPS
interprets the E.O. term ``adversely affect'' consistent with its NPS
Management Policies 2006. Those policies require that the NPS only
allow ``appropriate use'' of parks and avoid ``unacceptable impacts.''
This rule is consistent with those requirements. It will not impede
the attainment of the Seashore's desired future conditions for natural
and cultural resources as identified in the FEIS. NPS has determined
that this rule will not unreasonably interfere with the atmosphere of
peace and tranquility or the natural soundscape maintained in natural
locations within the Seashore. Therefore, within the context of the
resources and values of the Seashore, ORV use on the ORV routes
designated by this rule (which are also subject to resource closures
and other species management measures that will be implemented under
the Selected Action in the ROD) will not cause an unacceptable impact
to the natural, aesthetic, or scenic values of the Seashore.
Section 8(a) of the E.O. requires agency heads to monitor the
effects of ORV use on lands under their jurisdictions. On the basis of
the information gathered, agency heads shall from time to time amend or
rescind designations of areas or other actions as necessary to further
the policy of the E.O. The Selected Action for the FEIS, as described
in the ROD, identifies monitoring and resource protection procedures,
periodic review, and desired future conditions to provide for the
ongoing and future evaluation of impacts of ORV use on protected
resources. The park Superintendent has the existing authority under
both this final rule and 36 CFR 1.5 to close portions of the Seashore
as needed to protect park resources.

Regulatory Planning and Review (Executive Order 12866 and 13563)

This document is a significant rule, and the Office of Management
and Budget (OMB) has reviewed the rule in accordance with E.O. 12866
and 13563. The assessments required by E.O. 12866 and the details of
potential beneficial and adverse economic effects of the final rule can
be found in the report entitled ``Benefit-Cost Analysis of Final ORV
Use Regulations in Cape Hatteras National Seashore,'' which is
available online at http://www.parkplanning.nps.gov/caha.
(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.
(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) The rule does raise novel legal or policy issues since ORV use
at the Seashore has been the subject of litigation in the past; a
settlement agreement between the parties was reached in May 2008 and
ORV use at the Seashore is currently managed under a court order/
consent decree until the final rule is promulgated.

Regulatory Flexibility Act (RFA)

According to the RFA and subsequent court decisions, NPS must
assess the impacts on directly regulated entities, but is not required
to analyze in a regulatory flexibility analysis the indirect effects on
small entities resulting from rules (see Small Business Administration
[2003] for a discussion of indirect versus direct impacts). No
entities, small or large, are directly regulated by the final rule.
Accordingly, NPS certifies that the final rule will not have a
significant impact on a substantial number of small entities, as
defined by the RFA and interpreted by the courts. This certification is
based on information contained in the report entitled ``Benefit-Cost
Analysis of Final ORV Use Regulations in Cape Hatteras National
Seashore,'' available for review online at http://www.parkplanning.nps.gov/caha. As stated in that report, no entities, small or large,
are directly regulated by the final rule, which only regulates
visitors' use of ORVs.
As part of the socio-economic impact analysis for the plan/EIS, and
based on suggestions from negotiated rulemaking advisory committee
members, NPS conducted a small business survey, a visitor intercept
survey, and a vehicle count study to supplement the existing sources of
socio-economic data that were available in the public domain. We
carefully considered this information in analyzing the rule's costs,
benefits, and impact.
While close to 100 percent of the rule's economic impacts will fall
on small businesses, some popular areas, such as Cape Point, South
Point, and Bodie Island spit, would have designated year-round or
seasonal ORV routes. The presence of more vehicle-free areas for
pedestrians, combined with increased parking for pedestrian access,
could increase overall visitation and thereby help businesses to recoup
some of the revenues lost as a result of ORV restrictions.
The Selected Action described in the ROD, which is the basis for
the final rule, includes a number of measures designed to mitigate the
effect on the number of visitors, as well as the potential for indirect
economic effects on village businesses that profit from patronage by
Seashore visitors who use ORVs. These include: new pedestrian and ORV
beach access points, parking areas, pedestrian trails, routes between
dunes, and ORV ramps to enhance ORV and pedestrian access; a designated
year-round ORV route at Cape Point and South Point, subject to resource
closures when breeding activity occurs; and pedestrian shoreline access
along ocean and inlet shorelines adjacent to shorebird pre-nesting
areas until breeding activity is observed. In addition, NPS will seek
funding for an alternative transportation study and consider
applications for businesses to offer beach and water shuttle services.

[[Page 3141]]

These extra efforts to increase overall access and visitor use under
the Selected Action, which were developed with extensive public
involvement, should increase the probability that the economic impacts
are on the low rather than high end of the range.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

This rule is not a major rule under the SBREFA, 5 U.S.C. 804(2).
This 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.
This determination is based on information contained in the report
titled ``Benefit-Cost Analysis of Final ORV Use Regulations in Cape
Hatteras National Seashore,'' available online at http://www.parkplanning.nps.gov/caha. This action will result in increased
costs for those visitors desiring to operate ORVs on the beach, due to
the requirement for an ORV permit. However, the price of the permit
will be based on a cost recovery system and will not result in a major
increase in costs to visitors. Businesses operating in the Seashore
under a commercial use authorization and commercial fishermen operating
under a commercial fishing special-use permit will not need an ORV
permit.

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. The designated ORV
routes are located entirely within the Seashore, and will not result in
direct expenditures by State, local, or tribal governments. This rule
addresses public use of NPS lands, and imposes no requirements on other
agencies or governments. Therefore, a statement containing the
information required by the UMRA (2 U.S.C. 1531 et seq.) is not
required.

Takings (E.O. 12630)

Under the criteria in E.O. 12630, this rule does not have
significant takings implications. No taking of real or personal
property will occur as a result of this rule. Access to private
property located within or adjacent to the Seashore will not be
affected by this rule. This rule does not regulate uses of private
property. A takings implication assessment is not required.

Federalism (E.O. 13132)

Under the criteria in E.O. 13132, this rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism summary impact statement. This rule only affects use of NPS-
administered lands and imposes no requirements on other agencies or
governments. A Federalism summary impact statement is not required.

Civil Justice Reform (E.O. 12988)

This rule complies with the requirements of E.O. 12988.
Specifically, this 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)

Under the criteria in E.O. 13175, we have evaluated this rule and
determined that it will have no potential effect on federally
recognized Indian tribes.
On August 27, 2010, the NPS sent a letter to the Tuscarora Nation
requesting information on any historic properties of religious or
cultural significance to the tribe that would be affected by the FEIS.
The Tuscarora Nation has not informed the Seashore of any such
properties.

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 portions of the FEIS and ROD, and is a major
Federal action significantly affecting the quality of the human
environment. In accordance with NEPA, NPS prepared the DEIS and the
FEIS. The DEIS was released to the public on March 5, 2010, and a 60-
day public comment period followed beginning on March 12, 2010. The
FEIS was released on November 15, 2010. The NPS Notice of Availability
and the EPA Notice of Availability for the FEIS were published in the
Federal Register on November 15 and November 19, 2010, respectively.
The FEIS evaluated six alternatives for managing off-road motorized
vehicle access and use at the Seashore, including two no-action
alternatives. The ROD, which selected Alternative F, was signed on
December 20, 2010, and a notice of the decision was published in the
Federal Register on December 28, 2010. The purpose of this rule is to
implement the Selected Action as described in the ROD. A full
description of the alternatives that were considered, the environmental
impacts associated with the project, and public involvement is
contained in the FEIS available online at: http://www.parkplanning.nps.gov/caha.

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

This rule is not a significant energy action under the definition
in E.O. 13211. A Statement of Energy Effects is not required.

Administrative Procedure Act

This rule is effective on February 15, 2012. Under 5 U.S.C. 553(d),
new rules ordinarily go into effect no less than thirty days after
publication in the Federal Register, except under specified
circumstances, including a finding by the agency that there is good
cause for making the rule effective earlier. For this regulation, the
NPS has determined under 5 U.S.C. 553(d) and 318 DM 6.25 that this rule
should be effective no later than February 15, 2012. The NPS has found
that good cause exists for this effective date, for the following
reasons:
(1) The ROD for the FEIS, which this rule implements, was signed on
December 20, 2010, and the public was informed of the availability of
the FEIS and ROD through notice in the Federal Register on December 28,
2010. Therefore, by February 15, 2012, the public will have had 415
days notice of the NPS decision that forms the basis of this rule.
(2) An integral part of the FEIS and rule is the species management
strategies described in the FEIS, which were developed to manage ORV
use in a manner conducive to the protection of the migratory birds and
sea turtle species that rely on the Seashore's beach habitat for
nesting. The shorebird breeding season at the Seashore begins

[[Page 3142]]

in early March. Implementation of the rule and the associated species
management strategies would be most effective if the designated ORV
routes and ORV permit and education requirements were implemented, and
signs reflecting the new requirements were installed, prior to the
start of the breeding season. A significant change in management
procedures and information regarding ORV requirements implemented after
the breeding season begins would compromise the efficiency and
effectiveness of ORV management and species protection at the Seashore
and be confusing to Seashore visitors.
(3) There is a court-approved deadline of February 15, 2012, for
the rule to take effect, which would not be met if this rule were
further delayed.
There is no benefit in delaying the effective date of this rule,
and the above-described harms to the public resulting from a procedural
delay of this rule should be avoided. An effective date of February 15,
2012, is therefore warranted.

List of Subjects in 36 CFR Part 7

National parks, Reporting and recordkeeping requirements.
In consideration of the foregoing, 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. In Sec. 7.58:
0
A. Revise the introductory text in paragraph (b)(1).
0
B. Remove paragraph (b)(1)(ii).
0
C. Redesignate paragraphs (b)(1)(iii) through (b)(1)(v) as (b)(1)(ii)
through (b)(1)(iv).
0
D. Add paragraph (c).
The revisions and addition read as follows:

Sec. 7.58 Cape Hatteras National Seashore.

* * * * *
(b) * * *
(1) Definitions. As used in this section:
* * * * *
(c) Off-road motor vehicle use.
(1) Definitions. In addition to the definitions found in Sec. 1.4
of this chapter, the following terms apply in this paragraph (c):
ORV means a motor vehicle used off of park roads (off-road),
subject to the vehicle requirements, prohibitions, and permitting
requirements described in this paragraph (c).
ORV corridor means the actual physical limits of the designated ORV
route in the Seashore. On the landward side, the ORV corridor on
Seashore beaches will be marked when possible by posts that are located
seaward of the toe of the dune or the vegetation line. On the seaward
side, the corridor runs to the water line, which will not be marked by
posts unless necessary. Where the ocean beach is at least 30 meters
wide above the high tide line, the landward side of the corridor will
be posted at least 10 meters seaward of the toe of the dune.
(2) ORV permits. ORV permits are a form of NPS special park use
permits, which are issued and administered by the Superintendent and
for which the NPS charges a fee to recover its administrative costs.
(i) A permit issued by the Superintendent is required to operate a
vehicle on designated ORV routes at the Seashore.
(ii) Operation of a motor vehicle authorized under an ORV permit is
limited to those routes designated in this paragraph (c).
(iii) There is no limit to the number of ORV permits that the
Superintendent may issue.
(iv) Annual ORV permits are valid for the calendar year for which
they are issued. Seven-day ORV permits are valid from the date of
issue.
(v) In order to obtain a permit, an applicant must comply with
vehicle and equipment requirements, complete a short education program
in a manner and location specified by the Superintendent, acknowledge
in writing an understanding of the rules governing ORV use at the
Seashore, and pay the permit fee.
(vi) Each permit holder must affix the proof of permit, in a manner
and location specified by the Superintendent, to the vehicle covered by
the permit for use off-road.
(3) Vehicle and equipment requirements. The following requirements
apply for driving off-road:
(i) The vehicle must be registered, licensed, and insured for
highway use and must comply with inspection requirements for the state,
country, or province where the vehicle is registered.
(ii) The vehicle may have no more than two axles.
(iii) A towed boat or utility trailer may have no more than two
axles.
(iv) Vehicle tires must be listed or approved by the U.S.
Department of Transportation.
(v) The vehicle must carry a low-pressure tire gauge, shovel, jack,
and jack support board.
(4) Vehicle inspection. Authorized persons may inspect the vehicle
to determine compliance with the requirements of this paragraph (c).
(5) Certain vehicles prohibited. The off-road operation of a
motorcycle, all-terrain vehicle (ATV), or utility vehicle (UTV) is
prohibited.
(6) Travel trailers prohibited. The towing of a travel trailer
(i.e., a trailer with sleeping or bathroom facilities) off-road is
prohibited.
(7) Special-use permits for off-road driving, temporary use.
Special-use permits issued under this paragraph are subject to
resource, safety, and other closures implemented under Sec.
7.58(c)(10), and may only be used in a manner consistent with the terms
and conditions of the permit. The Superintendent may issue a special-
use permit for temporary off-road vehicle use to:
(i) Authorize the North Carolina Department of Transportation to
use Seashore beaches as a public way, when necessary, to bypass
sections of NC Highway 12 that are impassable or closed for repairs;
(ii) Allow participants in regularly scheduled fishing tournaments
to drive in an area if driving was allowed in that area for that
tournament before January 1, 2009; or
(iii) Allow vehicular transport of mobility impaired individuals
via the shortest, most direct distance from the nearest designated ORV
route or Seashore road to a predetermined location in a beach area in
front of a village that is not otherwise open to ORV use.
(8) Commercial fishing vehicles. The Superintendent, when issuing a
commercial fishing permit, may authorize the holder, when actively
engaged in authorized commercial fishing, to operate a vehicle off-
road.
(i) An authorization under this paragraph may allow off-road
driving on a beach not otherwise designated for ORV use, only if the
beach is not subject to a resource closure or is not a lifeguarded
beach.
(ii) An authorization under this paragraph may allow off-road
driving beginning at 5 a.m. on days when night-driving restrictions are
in effect, to set or tend haul seine or gill nets, only if the permit
holder is carrying and able to present a fish-house receipt from the
previous 30 days.

[[Page 3143]]

(9) ORV routes. The following tables indicate designated ORV
routes. The following ramps are designated for off-road use to provide
access to ocean beaches: 2.5, 4, 23, 25.5, 27, 30, 32.5, 34, 38, 43,
44, 47.5, 49, 55, 59, 59.5, 63, 67, 68, 70, and 72. Designated ORV
routes and ramps are subject to resource, safety, seasonal, and other
closures implemented under Sec. 7.58(c)(10). Soundside ORV access
ramps are described in the table below. For a village beach to be open
to ORV use during the winter season, it must be at least 20 meters (66
feet) wide from the toe of the dune seaward to mean high tide line.
Maps showing designated routes and ramps are available in the Office of
the Superintendent and on the Seashore Web site.

------------------------------------------------------------------------

------------------------------------------------------------------------
BODIE ISLAND--DESIGNATED ROUTES
------------------------------------------------------------------------
YEAR ROUND........................ Ramp 2.5 (0.5 miles south of the
southern boundary of Coquina Beach)
to 0.2 miles south of ramp 4.
-------------------------------------
SEASONAL:
September 15 to March 14...... 0.2 miles south of ramp 4 to the
eastern confluence of the Atlantic
Ocean and Oregon Inlet.
------------------------------------------------------------------------
HATTERAS ISLAND--DESIGNATED ROUTES
------------------------------------------------------------------------
YEAR ROUND........................ 1.5 miles south of ramp 23 to ramp
27.
Ramp 30 to ramp 32.5.
The following soundside ORV access
routes from NC Highway 12 to
Pamlico Sound between the villages
of Salvo and Avon: soundside ramps
46, 48, 52, 53, 54 and the
soundside ORV access at Little
Kinnakeet.
Ramp 38 to 1.5 miles south of ramp
38.
The following soundside ORV access
routes from NC Highway 12 to
Pamlico Sound between the villages
of Avon and Buxton: soundside ramps
57, 58, 59, and 60.
0.4 miles north of ramp 43 to Cape
Point to 0.3 miles west of ``the
hook.''
Interdunal route from intersection
with Lighthouse Road (i.e., ramp
44) to ramp 49, with one spur route
from the interdunal route to the
ORV route below.
Ramp 47.5 to east Frisco boundary.
A soundside ORV access route from
Museum Drive to Pamlico Sound near
Coast Guard Station Hatteras Inlet.
Pole Road from Museum Drive to Spur
Road to Pamlico Sound, with one
spur route, commonly known as Cable
Crossing, to Pamlico Sound and four
spur routes to the ORV route below.
Ramp 55 southwest along the ocean
beach for 1.6 miles, ending at the
intersection with the route
commonly known as Bone Road.
-------------------------------------
SEASONAL:
November 1 to March 31........ 0.1 mile south of Rodanthe Pier to
ramp 23.
Ramp 34 to ramp 38 (Avon).
East Frisco boundary to west Frisco
boundary (Frisco village beach).
East Hatteras boundary to ramp 55
(Hatteras village beach).
------------------------------------------------------------------------
OCRACOKE ISLAND--DESIGNATED ROUTES
------------------------------------------------------------------------
YEAR ROUND........................ Ramp 59 to ramp 63. After ramp 59.5
is constructed, it will replace
ramp 59 for ORV access and the
route will be from ramp 59.5 to
ramp 63.
Three routes from NC Highway 12 to
Pamlico Sound located north of the
Pony Pens, commonly known as Prong
Road, Barrow Pit Road, and Scrag
Cedar Road.
1.0 mile northeast of ramp 67 to 0.5
mile northeast of ramp 68.
A route from NC Highway 12 to
Pamlico Sound located near Ocracoke
Campground, commonly known as Dump
Station Road.
0.4 miles northeast of ramp 70 to
Ocracoke inlet.
A route from ramp 72 to a pedestrian
trail to Pamlico Sound, commonly
known as Shirley's Lane.
-------------------------------------
SEASONAL:
September 15 to March 14...... A seasonal route 0.6 mile south of
ramp 72 from the beach route to a
pedestrian trail to Pamlico Sound.
A seasonal route at the north end of
South Point spit from the beach
route to Pamlico Sound.
November 1 to March 31........ 0.5 mile northeast of ramp 68 to
ramp 68 (Ocracoke Campground area).
------------------------------------------------------------------------

(10) Superintendent's closures. (i) The Superintendent will
temporarily limit, restrict, or terminate access to routes or areas
designated for off-road use based on one or more of the following
criteria:
(A) Public health and safety;
(B) Vehicle carrying capacity and other ORV management
considerations;
(C) Natural and cultural resource protection;
(D) Applicable species management strategies including buffer
distances; or
(E) Desired future conditions for threatened, endangered, state-
listed, and special status species.
(ii) The Superintendent will conduct periodic reviews of the
criteria for and results of these closures to assess their
effectiveness. The public will be notified of such closures through one
or more of the methods listed in Sec. 1.7(a) of this chapter.
Violation of any closure is prohibited.
(iii) The Superintendent will remove or relax closures based on the
same criteria used for closure.
(11) Rules for Vehicle Operation. (i) Notwithstanding the
definition of ``Public Vehicular Area'' (PVA) in North Carolina law,
the operator of any motor vehicle anywhere in the Seashore, whether in
motion or parked, must at all times comply with all North Carolina
traffic laws that would apply if the operator were operating the
vehicle on a North Carolina highway.

[[Page 3144]]

(ii) In addition to the requirements of Part 4 of this chapter, the
following restrictions apply:
(A) A vehicle operator must yield to pedestrians on all designated
ORV routes.
(B) When approaching or passing a pedestrian on the beach, a
vehicle operator must move to the landward side to yield the wider
portion of the ORV corridor to the pedestrian.
(C) A vehicle operator must slow to 5 mph when traveling within
30.5 meters (100 feet) or less of pedestrians at any location on the
beach at any time of year.
(D) An operator may park on a designated ORV route, but no more
than one vehicle deep, and only as long as the parked vehicle does not
obstruct two-way traffic.
(E) When driving on a designated route, an operator must lower the
vehicle's tire pressure sufficiently to maintain adequate traction
within the posted speed limit.
(F) The speed limit for off-road driving is 15 mph, unless
otherwise posted.
(12) Night-Driving Restrictions.
(i) Hours of operation and night-driving restrictions are listed in
the following table:

------------------------------------------------------------------------

------------------------------------------------------------------------
HOURS OF OPERATION/NIGHT DRIVING RESTRICTIONS
------------------------------------------------------------------------
November 16-April 30.............. All designated ORV routes are open
24 hours a day.
May 1-September 14................ Designated ORV routes in sea turtle
nesting habitat (ocean intertidal
zone, ocean backshore, dunes) are
closed from 9 p.m. to 7 a.m.
September 15-November 15.......... Designated ORV routes in sea turtle
nesting habitat (ocean intertidal
zone, ocean backshore, dunes) are
closed from 9 p.m. to 7 a.m., but
the Superintendent may open
designated ORV routes, or portions
of the routes, in sea turtle
nesting habitat (if no turtle nests
remain), 24 hours a day.
------------------------------------------------------------------------

(ii) Maps available in the office of the Superintendent and on the
Seashore's Web site will show routes closed due to night-driving
restrictions, and routes or portions of the routes the Superintendent
opens because there are no turtle nests remaining.
(13) Vehicle carrying capacity. The maximum number of vehicles
allowed on any ORV route, at one time, is the length of the route (or,
if part of the route is closed, the length of the portion of the route
that is open) divided by 6 meters (20 feet).
(14) Violating any of the provisions of this paragraph, or the
terms, conditions, or requirements of an ORV or other permit
authorizing ORV use is prohibited. A violation may also result in the
suspension or revocation of the applicable permit by the
Superintendent.
(15) Information Collection. As required by 44 U.S.C. 3501 et seq.,
OMB has approved the information collection requirements contained in
this paragraph. The OMB approval number is 1024-0026. NPS is collecting
this information to provide the Superintendent data necessary to issue
ORV special-use permits. The information will be used to grant a
benefit. The obligation to respond is required in order to obtain the
benefit in the form of the ORV permit.

Dated: January 18, 2012.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-1250 Filed 1-20-12; 8:45 am]
BILLING CODE 4310-X6-P