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« Getting to the Point | Home | And now a word from t… »

Updating the timeline for ORV rule: Don’t look for it anytime soon

Thursday 26 May 2011 at 4:53 pm.

The National Park Service’s schedule for completing off-road vehicle rulemaking in the Cape Hatteras National Seashore continues to get pushed down the road.

Under the terms of a 2008 consent decree that ended a lawsuit against the park by environmental groups, the final ORV rule was to be in place by April 1. That did not happen.

In status conferences on the consent decree in December and April, seashore Superintendent Mike Murray said that the Park Service was running behind with the rulemaking process. The judge and all parties to the lawsuit agreed that the seashore would continue to be managed under Interim Plan, as modified by the consent decree, until there is a final rule.

At the April conference, federal District Court Judge Terrence Boyle and Rudy Renfert, the federal attorney representing the Park Service, agreed that the final rule would be in place by Nov. 15.

That just isn’t going to happen. 

In fact, we’ll be lucky to see a final plan by next April 1.

Earlier this year, Murray was still predicting that the proposed ORV rule would be published in the Federal Register this winter.

That didn’t happen, still hasn’t happened, and is apparently at least several months away.

According to Murray, the proposed ORV rule was sent to the National Park Service in Washington, D.C, to be reviewed by the national staff and Department of Interior solicitors.

The next step before it is unveiled to the public – with publication in the Federal Register – is a review by the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA).

In an e-mail last week, Murray said he had been notified that the proposed rule was sent to OMB on Wednesday, May 18.

However, it still hasn’t shown up on OMB’s website listing all regulatory actions currently under review.

Meg Riley, a public information officer with OMB, said this week that it was not necessarily unusual that the ORV regulation is not listed yet.  She said she would expect to see it listed in a few days. As of this afternoon, there has been no listing.

According to the Office of Information and Regulatory Affairs website, the agency is allowed 90 days for the review, with the possibility of a one-time 30 day extension.

Riley said the average length of a review is about two months.

This is what the website says about the reasons for review:

“Executive Order 12866 assigns OIRA the responsibility of coordinating interagency Executive Branch review of significant regulations before publication. This is to ensure agency compliance with the principles in Executive Order 12866, which include incorporating public comment, considering alternatives to the rulemaking, and analyzing both costs and benefits.”


“The OIRA review process under Executive Order 12866 seeks to ensure that agencies, to the extent permitted by law, comply with the regulatory principles stated in the Executive Order and that the President’s policies and priorities are reflected in agency rules. Such review also helps to promote adequate interagency review of draft proposed and final regulatory actions, so that such actions are coordinated with other agencies to avoid inconsistent, incompatible, or duplicative policies. OIRA review helps to ensure that agencies carefully consider the consequences of rules (including both benefits and costs) before they proceed.”


“As one of its regulatory principles, Executive Order 12866 states that agencies in developing a regulation "shall assess both the costs and the benefits of the intended regulation and, recognizing that some costs and benefits are difficult to quantify, propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs." In addition, other laws such as the Regulatory Flexibility Act and the Unfunded Mandates Reform Act require agencies to evaluate the costs and benefits of certain rulemakings.”

The regulations are not released to the public during review, but their progress can be followed on the OIRA website.

The website also notes that, during the review, OIRA staff can talk or meet with particular interest groups.

“OIRA’s policy is to meet with any party interested in discussing issues on a rule under review, whether they are from State or local governments, small business or other business interests, or from the environmental, health, or safety communities. Under OIRA procedures, as set forth in Executive Order 12866, meetings on regulatory actions must be conducted by the OIRA Administrator or a specific designee. A log, available on OIRA’s website, is kept of such meetings. Groups and individuals interested in meeting with OIRA regarding a rule under review should call 202-395-6880. Please provide the name of the regulatory action you or your group would like to discuss.”

So we can assume that once the final ORV rule enters the regulatory review system, it will stay there about two months.  During that time, OIRA can confer with the agencies about problems it sees with the regulation and about changes.

When the proposed regulation passes muster at OMB, it is published in the Federal Register for public review.

If we assume a two-month review, the date of publication would be about Aug.1, but remember this is summer in D.C., when the slow pace of the government works even more slowly.

The proposed ORV regulation will be open for public comment for 60 days.

Now we’re up to at least Oct. 1.

After the public comment ends, the Park Service will review, analyze, and respond to the comments before issuing a final rule.

That review period took three months after public comment closed last May 15 on the Draft Environmental Impact Statement.  The Final EIS was release on Nov. 15.

Let’s say that NPS can analyze the comment this time around in two months. 

Now we’re up to Dec. 1.

The next step is to write the final rule, which again must be reviewed both by the Park Service and OMB.

The final rule is then published in the Federal Register and becomes effective in 30 days.

The Nov. 15 deadline does not appear to be possible at this point.

But then maybe the folks in D.C. will work overtime all summer and all fall to get this ORV regulation done.

Meanwhile, the attitude of most beach access advocates is the Park Service’s preferred alternative for ORV rulemaking is even more despicable than the very despised consent decree. 

Despite the massive closures of beaches to ORVs and pedestrians this summer, it’s probably better than what comes next.


To keep track of regulations under review by OMB, go to the Office of Information and Regulatory Affairs “dashboard,” at http://www.reginfo.gov/public/jsp/EO/eoDashboard.jsp

Click here to read the very informative and interesting Frequently Asked Questions on regulatory review on the Office of Information and OIRA website.

fourteen comments

Rob Alderman

Nooooo surprise there…Everyone but the NPS will continue to run the park..Par for the course

Rob Alderman - 26-05-’11 17:33
Salvo Jimmy

I guess if the final ORV rule had been on time and not about a year behind schedule, instead of just an award, there would have been a promotion to director.

Salvo Jimmy (Email ) - 27-05-’11 08:02
Fred Westervelt

While marvelling at the ponderous process we await the system’s collapsing inward upon itself, creating a bureaucratic black hole.
But wait!- there may be hope within. Briefly recapitulated, E.O 12866 requires that a regulation shall be adopted “only upon a reasoned determination that the benefits of the intended regulation justify its costs.”
Surely there remains a sane reviewer who will abort this monstrosity on the grounds of unwarranted cost- to us all, victims and government alike.
Whee! Free at last!

Fred Westervelt (Email ) - 27-05-’11 09:23
bert smith

Sorry Fred, The result would still be the consent decree would rule the day, forever, Judge and people haters running our park and probably closing all the beaches. This whole mess is sounding like a repeat of the last time they tried to come up with roles, except then they just misplaced the plan and forgot where to find it again. The requirement that the result be worth the cost is a sound one, but at this point the opposition seems to think that any cost, economic, real or emotional is worth getting all of the park beaches closed forever. The only hope is for the judge to die (of natural causes) and we get a real judge who will rule impartially. (Don’t anyone dare take this to mean any covert action).

bert smith (Email ) - 27-05-’11 11:18

Proponents of the ORV ban have all the time in the world to wait. Wait until our interest wanes or we get old or die first. Add in the bureaucracy you get the picture. By that time, the nation’s number five beach as announced today will be wilderness. Businesses gone. Bonner Bridge collapsed. Highway 12 duned over. Bleak view, but those who hate responsible people using the beach who happen to drive ORVs do not care about your jobs, your culture. We are, as described in posts on this site, knuckle-dragging, idiots who cannot be trusted.

joe - 27-05-’11 11:49
Keith H

Although this particular situation has come about under the guise of being about ORV on the beach, it is important to remember that the consent decree eliminates humans (walking, crawling, or knuckle dragging) from broad stretches of the beach. The ORV rule may be about ORVs (not convinced myself of that) but the impact of the CD is ALL beach users (including surfers, waders, sunbathers, swimmers) and not just the fishing community or ORV users.
(Side thought: Has anyone ever looked into the legality of imposing the CD and its change in the rules on the National Seashore without an opportunity for the affected public to comment?)

Keith H (Email ) - 27-05-’11 21:11

“But then maybe the folks in D.C. will work overtime all summer and all fall to get this ORV regulation done. “. If that happens, the beaches will be ruined anyhow, by the droppings from all of the pigs flying over from the hog farms on the mainland.

MadMarv - 27-05-’11 23:16
Tony Hess

This exactly why the SELC ,DOW and AS sued the Park Service in the first place. When it’s to their advantage it doesn’t matter how long it takes to get a workable ORV plan into effect. That seems to me to be alittle one sided. Why don’t the pro access folks get together, take a que from SELC, DOW AND AS and sue the Park Service for dragging their feet. Oh wait it’s already been done, hence the situation we are in now. Go figure

Tony Hess (Email ) - 28-05-’11 08:05
Phil Anderson

Why is everyone in such a hurry for the NPS to take over? The consent decree allows more access than Alt F, and does not require a permit. Once Alt F is in place, there will be permits required, area permently closed, and the NPS will stil be required to use 1000 meter buffers.

The NPS plan is even more restrictinve than the consent decree. so what is the hurry?

Just as in the past, the NPS is not gonna be swayed at all by public comment.

Phil Anderson - 31-05-’11 09:37

Should we sue to insure the plan cannot be implemented until the infastructures promised are in place? This alone should keep the consent decree in place for at least a decade due mostly to the studies that would need to take place in order to accomplish all that was promised.

Alt F will be the doom of the island. After spending that last four days down there in Frisco and Buxton I am all too convinced that 85% of visitors do not have a clue!!! The ones I spoke to all do not even read the signs and just turn around when a section of the beach is closed. these same people will not go the extra step required to attain a permit let alone attend a seminar on how to get one. The will simply turn around and not come back!!! Mark my words.

samsdad1 (Email ) - 31-05-’11 10:15
Rob Alderman

THere is a fair amount of people that only come down once a year for their favorite, major fishing tourny. These people will not go through what will be neccesary just to fish for a week.

The permit, instructions and the required jacks, wood, straps, 1st aid kits and so-on..

The face of the HI, Ocock and Bodie ORV user is about to change forever..no doubt.

And yes.. there has already been an overwhelming loss of ORV users. Some permanently lossed people and those that trimmed their trips to almost nothing.

Rob Alderman - 31-05-’11 13:19

Thanks to the NPS/DOI, Hatteras Island is quickly loosing title of the surf fishing mecca of the world. Their current and proposed plans will prevent access to the traditional fishing spots during the prime fishing seasons.

How can any HI business plan for these possible changes? Does any HI business really believe that these current and proposed changes will have any positive effect on their business? At this point, any smart HI tourism based business would putting together their exit strategy, plan for serious down sizing, or completely change to not depend on tourism???

Here we are in the prime of tourist season and the easily reachable beach access in Buxton can be measured in yards!!!

surffisherman - 01-06-’11 12:07

This time line must really be pissing off Audubon, Derb, and the rest of the money hungry enviro-lawyers. Is it true they can’t sue again until the Park presents the final plan? I bet they never saw this coming. Then again, I’m sure the SELC and Derb are thinking real hard to explain why this year’s piping plover crop at Cape Point is not doing very good. Could it be all the National Park trucks and bio-tecs are disturbing everything while driving and walking in the enclosures each day? There has never been more ghost crabs in the Cape Point area. Guess what they eat? An ex bio-tec said their predators are all gone. Good job trappers….

James - 02-06-’11 14:59

James, I have to agree. I think the park is dragging their feet on this one because they are afraid of the next move from Audubon, etc. And………..every predator has a predator. The raccoon is one to the ghost crab.

mrsbee (Email ) - 03-06-’11 06:53

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