Park Service publishes proposed
public comment period is open
By IRENE NOLAN
National Park Service’s Notice of Proposed Rulemaking for the
management of off-road vehicles at the Cape Hatteras National Seashore
was published today in the Federal Register.
The publication initiates 60 days of public comment on the proposed
The special regulation implements portions of the Park Service’s
selected alternative, Alternative F, as outlined in the Final
Environmental Impact Statement and the Record of Decision.
The proposed rule published today comes 33 years after the seashore's
first attempt at an ORV management plan that has been required by
Executive Orders from the 1970s. In 1978, seashore managers
a draft plan to Park Service headquarters in Washington, D.C. It was
never formally promulgated and implemented, though the park informally
was managed more or less under that plan for several decades.
Park managers started talking again about a need for a formal plan in
the mid-1990s, though the 1999 relocation of the Cape Hatteras
Lighthouse occupied management until after 2000.
In the last decade, the effort to implement an ORV managed plan has
lurched forward in fits and starts that have included an interim
management plan, which was vetted by the public and put in place in
2007, and a failed attempt at negotiated rulemaking in 2008 into 2009.
Since the end of negotiated rulemaking, the ORV plan has inched along
slowly against a deadline set under a federal court-sanctioned consent
decree that settled a lawsuit against the park by environmental groups.
The consent decree ordered that the plan be in place by April 1 of this
year, a deadline the Park Service was unable to meet. The new
deadline for implementation is Nov. 15.
After inching along since the winter 2009 end of negotiated rulemaking,
the proposed rule sprinted to the finish line this summer.
The National Park Service finished writing the rule this spring and
sent it to the Office of Management and Budget for regulatory review on
OMB is allowed 90 days for the review, and a spokesperson said last
month that the average review lasts two months.
Interested parties, groups, and agencies can meet with OMB during the
review process, though the rule was not public until today.
On June 23, Dare County officials and access advocates traveled to
Washington where they met with OMB representatives and officials from
the Park Service, U.S. Fish and Wildlife Service, and the White House
Council on Environmental Quality to discuss their problems with the
selected alternative, specifically the economic analysis.
Less than a week later, on June 28, the OMB website reported that the
ORV rule had been sent back to NPS with “changes.”
At this point, it’s impossible to tell what, if any, changes were made.
There is one interesting reference to the OMB review in the preamble to
“OMB has determined that this rule raises novel and legal or policy
issues,” it notes, apparently referring to the consent decree.
The proposed rule is short – eight pages – and deals only with such
issues as designating ORV routes, establishing a permit system, and
imposing dates and times and other restrictions on vehicle use at the
seashore, including vehicle standards and necessary equipment.
Some folks are no doubt going to be surprised by how little is included
in the proposed regulation, but its lack of detail is not necessarily a
You might consider the Park Service’s selected alternative, Alternative
F, and the Record of Decision as the meat and potatoes of seashore
The ROD details such things as pre-nesting areas, buffer zones around
bird nests, protections for sea turtles, ORV routes and areas, hours of
operation for ORVs, pet rules, beach fires, permits, and beach
carrying capacity. It addresses pedestrian access to the beach, as well
as ORV access.
Think of the proposed regulation as the nitty-gritty of rules for
operating ORVs on the seashore.
It contains a preamble, questions and answers, definitions, and the
regulations under the NPS selected alternative. There are no
alternatives to choose from.
After the preamble that establishes that the proposed regulation meets
all the various federal requirements for rulemaking, the actual
regulations cover only two pages, most of which are a description of
the proposed ORV routes, as laid out in the ROD.
You will not find anything new in the proposed rule, which still
references the RTI Economic Analysis, released last December after the
EIS was final and the “best available science.” Both of these
issues are contentious with access advocates and are defended again by
the Park Service.
You can comment on anything, but don’t expect to change issues that
were settled in the Record of Decision, and most were.
The battleground, so to speak on the proposed rule is what is included
and what is not included.
The answer is that it’s more difficult to change the regulations than
the environmental studies and seashore management practices, which the
park is already committed to re-examining every five years, after major
hurricanes, or when there is a status change on a protected species.
The people who advocate for more reasonable beach access will want to
see as few details as possible in the regulation.
The environmentalists will want to get as many details as possible in
“Some people think we need to put buffers in the rule,” Mike Murray
said at a meeting with reporters last December.
Beach access groups did not want to see buffers in the regulations –
and they are not included in the proposed regulation..
Writing the regulation, Murray said is an “art” that “requires some
Murray said NPS will be concerned about getting enough into the
regulation to enforce them without getting too specific.
“We want maximum flexibility,” he said. “I have had experience with
parks that locked in regulations that are too specific.
A good example, he said, is Cape Cod, where Murray was assistant
superintendent shortly after an ORV rule was implemented.
That rule spelled out a limit on ORV permits, leading to the
“perception of scarcity.” The result was a rush to get permits, which
were quickly sold out the first year.
The Defenders of Wildlife and the Southern Environmental Law Center did
not respond to e-mailed requests for comments today.
Bobby Outten, Dare County manager and attorney, was cautiously
encouraged by the fact that the regulations are treated fairly briefly
– with no mention of such issues as buffers and pre-nesting areas.
However, Outten was disappointed that the contentious economic
analysis, which was a major area of discussion when the delegation met
with OMB last month, is still included.
The county, access advocacy groups, the Outer Banks Chamber of
Commerce, and others consider that the analysis of the economic effects
of the selected alternative has major flaws.
“DOI (Department of Interior) accepts the junk Economic Impact Analysis
knowing all its flaws,” said Mike Berry, one of the access advocates
who attended the meeting with OMB.
“I do believe DOI loves junk science,” added Berry who has also written
and spoken extensively about what he considers the flaws in the science
on which much of the selected alternative is based.
“They put sugar on it and crammed it down our throats,” he said. “The
visiting public will never know what has hit them until they show up,
try to get a permit in a timely manner, and attempt to drive on the
national seashore, especially between April and September.”
Outten said that the federal officials who attended last month’s
meeting, “asked the right questions and delved into the right issues.”
“It is just so frustrating,” Outten added. “We’ve been up there (to
Washington) so many times and come out of the meetings feeling good but
then nothing happens.
“OMB had the power to stop this,” he said, “and they didn’t.
After the public comment period ends Sept 6, the Park Service will have
to respond to the comments before issuing a final regulation.
In today’s publication of the proposed rule, the Park Service says it
still expects that the final ORV plan will be in place by Nov. 15.
FOR MORE INFORMATION
here to read the regulation.
Click here to read the Record of
Decision on the
selected alternative which was published last December.
The public comment period will be open from today until Sept.
Comments must be received on or before midnight (Eastern Daylight Time)
on Tuesday, Sept. 6. The NPS says that it does not anticipate
extending the public comment period beyond Sept. 6 because of the court
deadline for completing the final rule.
You may submit comments on the Proposed Rule, identified by the
Regulation Identifier Number: (RIN) 1024-AD85, by any of the following
eRulemaking Portal: http://www.regulations.gov.
instructions for submitting comments
or hand deliver to: Superintendent, Cape Hatteras National
Seashore, 1401 National Park Drive, Manteo, North Carolina 27954.
submitted through the Federal eRulemaking portal: http://www.regulations.gov
or submitted by mail must be entered or postmarked before midnight
(Eastern Daylight Time) Sept. 6. Comments submitted by hand
delivery must be received by the close of business hours (5 p.m.
Eastern Daylight Time) September 6, 2011. Comments will not
accepted by fax, e-mail, or in any way other than those specified
above, and bulk comments in any format (hard copy or electronic)
submitted on behalf of others will not be accepted.
All submissions received must include the agency name and RIN for this
rulemaking: 1024-AD85. All comments received through the
eRulemaking portal at http://www.regulations.gov
will be available without charge. Before including your
phone number, e-mail address, or other personal identifying information
in your comment, you should be aware that your entire comment including
your personal identifying information may be made publicly available at
any time. While you can ask us in your comment to withhold
personal identifying information from public review, we cannot
guarantee that we will be able to do so.
To view comments received through the Federal eRulemaking portal, go to
and enter “1024-AD85" in the “Keyword or ID” search box.