[Federal Register Volume 76, Number 129 (Wednesday, July 6, 2011)]
[Proposed Rules]
[Pages 39350-39357]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-16878]
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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
AGENCY: National Park Service, Interior.
ACTION: Proposed rule.
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SUMMARY: The National Park Service (NPS) proposes to designate routes
where off-road vehicles (ORVs) may be used within Cape Hatteras
National Seashore (Seashore), North Carolina. Under NPS general
regulations, the operation of motor vehicles off of roads within areas
of the national park system is prohibited unless otherwise provided for
by special regulation. The proposed rule would authorize ORV use at the
Seashore, manage it to protect and preserve natural and cultural
resources and natural processes, and provide a variety of safe visitor
experiences while minimizing conflicts among various users.
DATES: Comments must be received on or before midnight (Eastern
Daylight Time) Tuesday September 6, 2011. The NPS does not anticipate
extending the public comment period beyond the stated deadline due to a
court imposed deadline for completing the final rule.
ADDRESSES: You may submit comments, identified by the Regulation
Identifier Number (RIN) 1024-AD85, by any of the following methods:
--Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
--Mail or hand deliver to: Superintendent, Cape Hatteras National
Seashore, 1401 National Park Drive, Manteo, North Carolina 27954.
--For additional information see ``Public Participation'' under
SUPPLEMENTARY INFORMATION below.
Comments submitted through Federal eRulemaking Portal: http://www.regulations.gov or submitted by mail must be entered or postmarked
before midnight (Eastern Daylight Time) September 6, 2011. Comments
submitted by hand delivery must be received by the close of business
hours (5 p.m. Eastern Daylight Time) September 6, 2011. Comments will
not be accepted by fax, e-mail, or in any way other than those
specified above, and bulk comments in any format (hard copy or
electronic) submitted on behalf of others will not be accepted.
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
Officially established in 1937 along the Outer Banks of North
Carolina, Cape Hatteras is 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 habitat for wildlife created by the
Seashore's 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 11644, Use of Off-Road Vehicles on the Public
Lands, was issued in 1972 in response to the 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.'' Executive Order 11644 was amended by Executive
Order 11989 in 1977, and together they are collectively referred to in
this rule as ``E.O.''. The E.O. requires Federal agencies that allow
motorized vehicle use in off-road areas to designate specific areas and
routes on public lands where the use of motorized vehicles may be
permitted.
Specifically, section 3 of the E.O. requires agencies to develop
and issue regulations and administrative instructions to provide for
[[Page 39351]]
administrative designation of the specific areas and trails on public
lands on which the use of off-road vehicles may be permitted, and areas
in which the use of off-road vehicles is prohibited. Those regulations
shall direct that the designation of such areas and trails 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. The regulations
shall further require that the designation of such areas and trails
shall be in accordance with the following--
(1) Areas and trails shall be located to minimize damage to soil,
watershed, vegetation, or other resources of the public lands.
(2) Areas and trails shall be located to minimize harassment of
wildlife or significant disruption of wildlife habitats.
(3) Areas and trails shall 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) Areas and trails shall not be located in officially designated
Wilderness Areas or Primitive Areas. Areas 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.
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 the E.O. It also states that such routes and
areas may be designated only in national recreation areas, national
seashores, national lakeshores, and national preserves. The proposed
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, 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 the 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 US 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, and 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 NPS,
and the interveners, Dare and Hyde counties and a coalition of local
ORV and fishing groups. ORV use is currently managed pursuant to the
consent decree, which also established deadlines of December 31, 2010
and April 1, 2011, respectively, for completion of an ORV management
plan/EIS and a final special regulation. On December, 20 2010, the Cape
Hatteras ORV Plan/Final Environmental Impact Statement (plan/FEIS) was
completed, and the Record of Decision (ROD) selecting the NPS preferred
alternative was signed by the NPS Southeast Regional Director. The
public was informed of the availability of the plan/FEIS and ROD
through notice in the Federal Register on December 28, 2010. The plan/
FEIS, the ROD, and other supporting documentation can be found online
at http://www.parkplanning.nps.gov/caha. The NPS has notified the
parties to the litigation and the US District Court for Eastern
District of North Carolina (Court) that the final rule will not be
completed until late summer 2011 with implementation planned for fall
2011. On April 12, 2011, the Court issued an order modifying the
consent decree, extending the deadline for promulgation of the final
rule until November 15, 2011.
The Proposed Rule
This proposed rule establishes a special regulation pursuant to 36
CFR 4.10(b) to manage ORV use at the Seashore. The special regulation
will implement portions of the selected action alternative, 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 proposed rule would
correct a drafting error at Sec. 7.58(b)(1) to clarify that the
definitions only apply to Sec. 7.58 and not to the entirety of 36 CFR
Part 7. Further the rule would 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. The deletion
consequently requires redesignation of the structure of paragraph (b).
The addition of paragraph (c) would implement portions of the selected
action alternative 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.
The following explains some of the principal elements of the
proposed rule in a question and answer format:
What is an ``Off-Road Vehicle'' (ORV)?
For the purposes of this regulation, an ``off-road vehicle'' or
``ORV'' means a motor vehicle used off of park roads (off-road). Not
all ORVs are authorized for use at the Seashore; however, all ORVs are
subject to the vehicle requirements, prohibitions, and permitting
requirements described below in this regulation.
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
[[Page 39352]]
fee. Both weekly (7-day, valid from the date of issuance) and annual
(calendar year) ORV permits would be available.
Is there a limit to the number of ORV permits available?
No. There would 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 would need to get a permit for each vehicle that you want
to use for driving on designated ORV routes. A permit would need to be
affixed to all vehicles operated on designated ORV routes within the
Seashore.
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 would 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 also subject to temporary resource and safety closures. However,
past experience indicates that substantial sections of the beach that
are designated as ORV routes would remain open for ORV use 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 regulations within the state,
country, or province where the vehicle is registered. It must have no
more than two axles and its tires must be U.S. Department of
Transportation listed or approved, as described at: http://www.safercar.gov/Vehicle+Shoppers/Tires/Tires+Rating/Passenger+Vehicles. You would also be required to carry in your vehicle
a low-pressure tire gauge, shovel, jack, and jack stand.
Can I drive my two-wheel-drive vehicle on designated ORV routes?
Yes. Four-wheel-drive vehicles are recommended, but two-wheel-drive
vehicles would 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 would be
allowed. Boat and utility trailers with more than two axles would be
prohibited.
Can I tow a travel trailer (camping trailer) on designated ORV routes?
No. Travel trailers (i.e., camping trailers) would 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 would 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. Vehicles not registered, licensed and insured for highway use,
including ATVs and UTVs, cannot lawfully be operated to ORV access
points, and adequate parking for trailers or other transport vehicles
is not readily available adjacent to ORV access points. Further, these
vehicles have historically not been allowed to operate within the
Seashore, and authorizing such use would limit the capacity for and
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 would be 15 miles per hour (unless otherwise
posted), except for emergency vehicles when 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 would be allowed on
designated ORV routes 24 hours a day from November 16 to April 30,
subject to the terms and conditions established under an ORV permit.
However, from May 1 to November 15, designated ORV routes in potential
sea turtle nesting habitat (ocean intertidal zone, ocean backshore, and
dunes) would be closed to ORVs from 9:00 p.m. until 7:00 a.m. However,
from September 15 to November 15, the Superintendent may reopen
designated ORV routes at night if there are no turtle nests remaining.
This is a minor change to the dates in the ROD. The NPS has decided it
would 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, as described, 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
identified as having no turtle nests remaining, will be depicted 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 would be prohibited
on designated ORV routes, including the beach.
Is a separate permit required for night driving?
No. It would 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, such use would be accommodated on a case-by-case basis in
front of villages only, and would be subject to the conditions of a
special use permit issued by the Superintendent. The permit would allow
you to transport mobility-impaired individuals to a predetermined
location in an otherwise vehicle-free area (VFA) in front of the
villages. After transporting the person to the beach, you would have
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to immediately return the vehicle to the nearest ORV route or Seashore
road. Additionally, you should keep in mind that there would be many
miles of beach open to ORVs year-round or seasonally that will be
accessible by ORV for family gatherings and other activities. In those
areas, vehicles may simply be parked in the ORV corridor.
Do commercial use authorization holders and commercial fisherman need a
separate ORV permit?
No. Commercial Use Authorizations (CUAs) would, as appropriate,
also authorize ORV use by the CUA holder but not their clients. ORV use
by commercial fisherman who are actively engaged in a commercial
fishing activity would be authorized ORV use under the terms of their
commercial fishing special use permit.
Can commercial fishermen drive in the vehicle-free areas (VFA)?
Yes. In keeping with the current practice, commercial fishermen
when actively engaged in their authorized commercial fishing activity
would be allowed to enter VFAs, except for resource closures and
lifeguarded beaches. Lifeguarded beaches would be closed seasonally by
the Superintendent. Commercial fishing activities and use of associated
fishing gear conflicts with the significant, concentrated beach use and
associated swimming use of these areas by visitors.
Commercial fishermen while actively engaged in authorized
commercial fishing activity and who are able to present a fish-house
receipt from the previous 30 days would 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 (Executive Order 11644)
Section 3(4) of E.O. provides that ORV ``areas 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'' commonly used in the National Environmental Policy Act of 1969
(NEPA) . Under NEPA, a procedural statute that provides for the study
of environmental impacts, the term ``adverse effect'' refers to any
effect, no matter how minor or negligible. Section 3(4) of the E.O. by
contrast, does not prescribe procedures or any particular means of
analysis. It concerns substantive management decisions, and must
instead be read in the context of the authorities applicable to such
decisions. The Seashore is an area of the National Park System.
Therefore, the NPS interprets the E.O. term ``adversely affect''
consistent with its NPS Management Policies 2006. Those policies
require that NPS only allows ``appropriate use'' of parks, and avoids
``unacceptable impacts.''
Specifically, this rule will not impede the attainment of the
Seashore's desired future conditions for natural and cultural resources
as identified in the plan/FEIS. We have determined 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, we have determined that within the context of
E.O., 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 adversely affect the
natural, aesthetic, or scenic values of the Seashore.
Section 8(a) of the E.O. requires the respective agency head to
monitor the effects of the use of off-road vehicles on lands under
their jurisdictions. On the basis of the information gathered, such
agency head shall from time to time amend or rescind designations of
areas or other actions taken pursuant to the E.O. as necessary to
further the policy of the E.O. The selected action for the plan/EIS, as
described in the ROD, identifies monitoring and resource protection
procedures, periodic review, and desired future condition 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 proposed regulation and under 36 CFR Sec. 1.5 to close
portions of the Seashore as needed to protect park resources.
Regulatory Planning and Review (Executive Order 12866)
This document is a significant rule and the Office of Management
and Budget (OMB) has reviewed this rule under Executive Order 12866.
The assessments required by Executive Order 12866 and the details of
potential beneficial and adverse economic effects of the proposed rule
can be found in the report entitled ``Benefit-Cost Analysis of Proposed
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) OMB has determined this rule raises novel legal or policy
issues. 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)
The Department of the Interior certifies that this document will
not have a significant economic effect on a substantial number of small
entities under the RFA (5 U.S.C. 601 et seq.). This certification is
based on information contained in the report entitled ``Benefit-Cost
Analysis of Proposed ORV Use Regulations in Cape Hatteras National
Seashore'', available for review online at http://www.parkplanning.nps.gov/caha. According to that report, no entities,
small or large, are directly regulated by the proposed 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 his information in analyzing the rule's costs,
benefits and impact.
While close to 100 percent of the rule's impacts would 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 (VFAs) for pedestrians,
combined with increased parking for pedestrian access,
[[Page 39354]]
could increase overall visitation and thereby help businesses to recoup
some of the revenues lost as a result of ORV restrictions.
The proposed rule includes a number of measures designed to
mitigate 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 using 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, we will seek funding for an
alternative transportation study and consider applications for
businesses to offer beach and water shuttle services. These extra
efforts to increase overall access and visitor use under the Selected
Action, which we 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 Proposed ORV Use Regulations in Cape
Hatteras National Seashore'', available for review online at http://www.parkplanning.nps.gov/caha. This action will result in increased
costs to those visitors desiring to operate ORVs on the beach, due to
the requirement for an ORV special use permit. However, the price of
the permit would be based on a cost recovery system and would not
result in a major increase in costs to visitors. Businesses operating
in the Seashore under a commercial use authorization or commercial
fishermen operating under a commercial fishing special use permit would
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 expenditure 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 (Executive Order 12630)
Under the criteria in E.O. 12630, this rule does not have
significant takings implications. No taking of 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 (Executive Order 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 (Executive Order 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 (Executive Order 13175)
Under the criteria in E.O. 13175 we have evaluated this rule and
determined that it would 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 plan/
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 plan/FEIS and ROD which is a
major Federal action significantly affecting the quality of the human
environment. In accordance with NEPA, the NPS prepared a Draft
Environmental Impact Statement (DEIS) and a Final Environmental Impact
Statement for the plan/FEIS. The plan/FEIS was released on November 15,
2010. The NPS Notice of Availability and the EPA Notice of Availability
for the plan/FEIS were published in the Federal Register on November 15
and November 19, 2010, respectively. The plan/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. This rule is proposed for the purpose of implementing 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 plan/FEIS
available for review online at: http://www.parkplanning.nps.gov/caha.
Information Quality Act (IQA)
Information presented in the plan/FEIS is based on a wide range of
scientific and peer reviewed data which was used to determine potential
impacts and to develop a range of alternatives. Studies, surveys, or
reports used or referenced are listed in the Reference section of the
plan/FEIS, available for review at http://www.parkplanning.nps.gov/caha. The NPS believes that the information used
[[Page 39355]]
in preparing the plan/FEIS and the subsequent decision to issue this
proposed rule is of sufficient quality, objectivity, utility, and
integrity to comply with the IQA (Pub. L. 106-554).
Effects on the Energy Supply (Executive Order 13211)
This rule is not a significant energy action under the definition
in E.O. 13211. A Statement of Energy Effects is not required.
Clarity of This Rule
We are required by Executive Orders 12866 and 12988, and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.
Public Participation
All submissions received must include the agency name and RIN for
this rulemaking: 1024-AD85. All comments received through the Federal
eRulemaking portal at http://www.regulations.gov will be available
without change. Before including your address, phone number, e-mail
address, or other personal identifying information in your comment, you
should be aware that your entire comment including your personal
identifying information may be made publicly available at any time.
While you can ask us in your comment to withhold your personal
identifying information, we cannot guarantee that we will be able to do
so. To view comments received through the Federal eRulemaking portal,
go to http://www.regulations.gov and enter 1024-AD85 in the Keyword or
ID search box.
List of Subjects in 36 CFR Part 7
District of Columbia, National Parks, Reporting and recordkeeping
requirements.
In consideration of the foregoing, the National Park Service
proposes to amend 36 CFR part 7 as follows:
PART 7--SPECIAL REGULATIONS, AREAS OF THE NATIONAL PARK SYSTEM
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).
2. In Sec. 7.58,
A. Revise the introductory language in paragraph (b)(1).
B. Remove paragraph (b)(1)(ii),
C. Redesignate paragraphs (b)(1)(iii) through (b)(1)(v) as
(b)(1)(ii) through (b)(1)(iv).
D. Add paragraph (c).
The revisions to 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 regulation.
ORV corridor means the actual physical limits of the designated ORV
route in the Seashore. The ORV corridor generally runs from the toe of
the dune or the vegetation line on the landward side to the water line
on the seaward side. Where the ocean beach is at least 30 meters wide
above the high tide line, the landward side of the corridor will be 10
meters seaward of the toe of the dune. The ORV corridor will usually be
marked by posts on the landward side (the seaward side of the corridor
usually will not be posted).
(2) ORV permits. The Superintendent administers the NPS special
park use permit system at the Seashore, including permits for ORV use,
and charges fees to recover NPS 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 person, 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 permit in a manner and
location specified by the Superintendent to the vehicle authorized for
off-road use.
(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 regulations within the
state, country, or province where the vehicle is registered.
(ii) The vehicle must have no more than two axles.
(iii) A towed boat or utility trailer must 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 stand.
(4) Vehicle inspection. Authorized persons may inspect the vehicle
to determine compliance with the requirements of paragraphs (c)(3)(i)
through (c)(3)(v).
(5) The off-road operation of a motorcycle, all-terrain vehicle
(ATV) or utility vehicle (UTV) is prohibited.
(6) The towing of a travel trailer (i.e. camping trailer) off-road
is prohibited.
(7) Special use permits for off-road driving, temporary use. 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; or
(ii) 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
(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 designated
vehicle-free
[[Page 39356]]
area in front of a village; provided that, the vehicle must return to
the designated ORV route or Seashore road immediately after the
transport.
(8) Commercial fishing vehicles. The Superintendent may authorize a
commercial fishing permit holder when actively engaged in authorized
commercial fishing to operate a vehicle on a beach:
(i) Not designated for ORV use, provided the beach is not subject
to a resource closure and is not lifeguarded; and
(ii) Beginning at 5 a.m. on days when night driving restrictions
are in effect, to set or tend haul seine or gill nets, if the permit
holder is carrying and able to present a fish-house receipt from the
previous 30 days.
(9) ORV routes. The following tables indicate designated ORV
routes. The following ramps are designated as open to ORV use (subject
to resource, safety, seasonal, or other closures) to provide access to
ocean beaches: 2.5, 4, 23, 25.5, 27, 30, 32.5, 34, 38, 43, 44, 47.5,
49, 55, 59.5, 63, 67, 68, 70, 72. 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 depicting
designated routes and ramps are available in the Office of the
Superintendent and for review 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, with two spur routes to
Pamlico Sound (one at the terminus of Spur Road and one commonly
known as Cable Crossing) 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).
September 15 to March 14.................... Interdunal route south of the intersection of Pole Road and Spur
Road stopping at least 100 meters from the ocean or inlet
shoreline.
----------------------------------------------------------------------------------------------------------------
OCRACOKE ISLAND--DESIGNATED ROUTES
----------------------------------------------------------------------------------------------------------------
YEAR ROUND.................................. 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. The Superintendent may temporarily
limit, restrict, or terminate access to routes or areas designated for
off-road use after taking into consideration public health and safety,
natural and cultural resource protection, carrying capacity and other
management activities and objectives, such as those described in the
plan/FEIS. 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.
(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 39357]]
(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
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 the Superintendent opens because there are no
turtle nests remaining.
(13) Vehicle carrying capacity. The maximum number of vehicles
allowed on any particular ORV route, at one time, is the linear
distance of the route 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.
The Office of Management and Budget has approved the information
collection requirements contained in this paragraph. The OMB approval
number is 1024-0026. The 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 to order to obtain the benefit in the form of the ORV
permit.
Dated: May 16, 2011.
Eileen Sobeck,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-16878 Filed 7-5-11; 8:45 am]
BILLING CODE 4310-X6-P