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.
FOR MORE INFORMATION
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.