[Federal Register Volume 77, Number 14 (Monday, January 23, 2012)]
[Rules and Regulations]
[Pages 3123-3144]
From the Federal Register Online via the Government Printing 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

[[Page 3129]]

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

[[Page 3132]]

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