Special Regulations, Areas of the National Park System, Cape Hatteras National Seashore, 39350-39357 [2011-16878]

Agencies

• DEPARTMENT OF THE INTERIOR
• National Park Service

[Federal Register Volume 76, Number 129 (Wednesday, July 6, 2011)]
[Proposed Rules]
[Pages 39350-39357]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-16878]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 7

RIN 1024-AD85


Special Regulations, Areas of the National Park System, Cape 
Hatteras National Seashore

AGENCY: National Park Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The National Park Service (NPS) proposes to designate routes 
where off-road vehicles (ORVs) may be used within Cape Hatteras 
National Seashore (Seashore), North Carolina. Under NPS general 
regulations, the operation of motor vehicles off of roads within areas 
of the national park system is prohibited unless otherwise provided for 
by special regulation. The proposed rule would authorize ORV use at the 
Seashore, manage it to protect and preserve natural and cultural 
resources and natural processes, and provide a variety of safe visitor 
experiences while minimizing conflicts among various users.

DATES: Comments must be received on or before midnight (Eastern 
Daylight Time) Tuesday September 6, 2011. The NPS does not anticipate 
extending the public comment period beyond the stated deadline due to a 
court imposed deadline for completing the final rule.

ADDRESSES: You may submit comments, identified by the Regulation 
Identifier Number (RIN) 1024-AD85, by any of the following methods:

--Federal eRulemaking Portal: https://www.regulations.gov. Follow the 
instructions for submitting comments.
--Mail or hand deliver to: Superintendent, Cape Hatteras National 
Seashore, 1401 National Park Drive, Manteo, North Carolina 27954.
--For additional information see ``Public Participation'' under 
SUPPLEMENTARY INFORMATION below.

    Comments submitted through Federal eRulemaking Portal: https://www.regulations.gov or submitted by mail must be entered or postmarked 
before midnight (Eastern Daylight Time) September 6, 2011. Comments 
submitted by hand delivery must be received by the close of business 
hours (5 p.m. Eastern Daylight Time) September 6, 2011. Comments will 
not be accepted by fax, e-mail, or in any way other than those 
specified above, and bulk comments in any format (hard copy or 
electronic) submitted on behalf of others will not be accepted.

FOR FURTHER INFORMATION CONTACT: Mike Murray, Superintendent, Cape 
Hatteras National Seashore, 1401 National Park Drive, Manteo, North 
Carolina 27954. Phone: (252) 473-2111 (ext 148).

SUPPLEMENTARY INFORMATION:

Background

Description of Cape Hatteras National Seashore

    Officially established in 1937 along the Outer Banks of North 
Carolina, Cape Hatteras is the nation's first national seashore. 
Consisting of more than 30,000 acres distributed along approximately 67 
miles of shoreline, the Seashore is part of a dynamic barrier island 
system.
    The Seashore serves as a popular recreation destination where 
visitors participate in a variety of recreational activities. The 
Seashore also contains important habitat for wildlife created by the 
Seashore's dynamic environmental processes. Several species, listed 
under the Endangered Species Act (ESA), including the piping plover, 
seabeach amaranth, and three species of sea turtles, are found within 
the park.

Authority and Jurisdiction

    In enacting the National Park Service Organic Act of 1916 (Organic 
Act) (16 U.S.C. 1 et seq.), Congress granted the NPS broad authority to 
regulate the use of areas under its jurisdiction. Section 3 of the 
Organic Act specifically authorizes the Secretary of the Interior, 
acting through the NPS, to ``make and publish such rules and 
regulations as he may deem necessary or proper for the use and 
management of the parks. * * *''

Off-Road Motor Vehicle Regulation

    Executive Order 11644, Use of Off-Road Vehicles on the Public 
Lands, was issued in 1972 in response to the widespread and rapidly 
increasing off-road driving on public lands ``often for legitimate 
purposes but also in frequent conflict with wise land and resource 
management practices, environmental values, and other types of 
recreational activity.'' Executive Order 11644 was amended by Executive 
Order 11989 in 1977, and together they are collectively referred to in 
this rule as ``E.O.''. The E.O. requires Federal agencies that allow 
motorized vehicle use in off-road areas to designate specific areas and 
routes on public lands where the use of motorized vehicles may be 
permitted.
    Specifically, section 3 of the E.O. requires agencies to develop 
and issue regulations and administrative instructions to provide for

[[Page 39351]]

administrative designation of the specific areas and trails on public 
lands on which the use of off-road vehicles may be permitted, and areas 
in which the use of off-road vehicles is prohibited. Those regulations 
shall direct that the designation of such areas and trails will be 
based upon the protection of the resources of the public lands, 
promotion of the safety of all users of those lands, and minimization 
of conflicts among the various uses of those lands. The regulations 
shall further require that the designation of such areas and trails 
shall be in accordance with the following--
    (1) Areas and trails shall be located to minimize damage to soil, 
watershed, vegetation, or other resources of the public lands.
    (2) Areas and trails shall be located to minimize harassment of 
wildlife or significant disruption of wildlife habitats.
    (3) Areas and trails shall be located to minimize conflicts between 
off-road vehicle use and other existing or proposed recreational uses 
of the same or neighboring public lands, and to ensure the 
compatibility of such uses with existing conditions in populated areas, 
taking into account noise and other factors.
    (4) Areas and trails shall not be located in officially designated 
Wilderness Areas or Primitive Areas. Areas and trails shall be located 
in areas of the National Park system, Natural Areas, or National 
Wildlife Refuges and Game Ranges only if the respective agency head 
determines that off-road vehicle use in such locations will not 
adversely affect their natural, aesthetic, or scenic values.
    The NPS regulation at 36 CFR 4.10(b) implements the E.O. and 
requires that routes and areas designated for ORV use be promulgated as 
special regulations and that the designation of routes and areas shall 
comply with 36 CFR 1.5 and the E.O. It also states that such routes and 
areas may be designated only in national recreation areas, national 
seashores, national lakeshores, and national preserves. The proposed 
rule is consistent with these authorities and with NPS Management 
Policies 2006, available at: https://www.nps.gov/policy/MP2006.pdf.

ORV Use at Cape Hatteras National Seashore

    Following the establishment of the Seashore in 1937, beach driving 
was primarily for the purpose of transportation, not recreation. 
Because the area was sparsely populated, the number of ORVs on the 
beach was much smaller than it is today. The paving of NC Highway 12, 
the completion of the Bonner Bridge connecting Bodie and Hatteras 
islands in 1963, and the introduction of the State of North Carolina 
ferry system to Ocracoke Island facilitated visitor access to the sound 
and ocean beaches. Improved access, increased population, and the 
popularity of the sport utility vehicle have resulted in a dramatic 
increase in vehicle use on Seashore beaches.
    Since the 1970s, ORV use at the Seashore has been managed through 
various draft or proposed plans, none were completed or published as a 
special regulation as required by 36 CFR 4.10(b). Motivated in part by 
a decline in most beach nesting bird populations on the Seashore since 
the 1990s, in July 2007 the NPS completed the Cape Hatteras National 
Seashore Interim Protected Species Management Strategy/Environmental 
Assessment (Interim Strategy) to provide resource protection guidance 
with respect to ORVs and other human disturbance until the long-term 
ORV management plan and regulation could be completed. In October 2007, 
a lawsuit was filed by Defenders of Wildlife and the National Audubon 
Society against the NPS and the US Fish and Wildlife Service, 
challenging the Interim Strategy. The lawsuit alleged the Federal 
defendants failed to implement an adequate plan to govern off-road 
vehicle use at the Seashore that would protect the Seashore's natural 
resources while minimizing conflicts with other users, and that the 
Federal defendants failed to comply with the requirements of the E.O. 
and NPS regulations regarding ORV use. The lawsuit was resolved in 
April 2008 by a consent decree agreed to by the plaintiffs, the NPS, 
and the interveners, Dare and Hyde counties and a coalition of local 
ORV and fishing groups. ORV use is currently managed pursuant to the 
consent decree, which also established deadlines of December 31, 2010 
and April 1, 2011, respectively, for completion of an ORV management 
plan/EIS and a final special regulation. On December, 20 2010, the Cape 
Hatteras ORV Plan/Final Environmental Impact Statement (plan/FEIS) was 
completed, and the Record of Decision (ROD) selecting the NPS preferred 
alternative was signed by the NPS Southeast Regional Director. The 
public was informed of the availability of the plan/FEIS and ROD 
through notice in the Federal Register on December 28, 2010. The plan/
FEIS, the ROD, and other supporting documentation can be found online 
at https://www.parkplanning.nps.gov/caha. The NPS has notified the 
parties to the litigation and the US District Court for Eastern 
District of North Carolina (Court) that the final rule will not be 
completed until late summer 2011 with implementation planned for fall 
2011. On April 12, 2011, the Court issued an order modifying the 
consent decree, extending the deadline for promulgation of the final 
rule until November 15, 2011.

The Proposed Rule

    This proposed rule establishes a special regulation pursuant to 36 
CFR 4.10(b) to manage ORV use at the Seashore. The special regulation 
will implement portions of the selected action alternative, as 
described in the ROD, by designating ORV routes at the Seashore, 
establishing requirements to obtain a permit, and imposing date and 
time and other restrictions related to operation of ORVs, including 
vehicle and equipment standards. In addition, the proposed rule would 
correct a drafting error at Sec.  7.58(b)(1) to clarify that the 
definitions only apply to Sec.  7.58 and not to the entirety of 36 CFR 
Part 7. Further the rule would delete the definition of permittee at 
Sec.  7.58(b)(1)(ii) as it is unnecessary and potentially confusing to 
the public, as the term could be applied to individuals holding 
different types of permits for different activities. The deletion 
consequently requires redesignation of the structure of paragraph (b). 
The addition of paragraph (c) would implement portions of the selected 
action alternative as described in the ROD, by designating ORV routes 
at the Seashore, establishing requirements to obtain a permit, and 
imposing date and time and other restrictions related to operation of 
ORVs, including vehicle and equipment standards.
    The following explains some of the principal elements of the 
proposed rule in a question and answer format:

What is an ``Off-Road Vehicle'' (ORV)?

    For the purposes of this regulation, an ``off-road vehicle'' or 
``ORV'' means a motor vehicle used off of park roads (off-road). Not 
all ORVs are authorized for use at the Seashore; however, all ORVs are 
subject to the vehicle requirements, prohibitions, and permitting 
requirements described below in this regulation.

Do I need a permit to operate a vehicle off road?

    Yes. To obtain an ORV permit, you must complete a short education 
program, acknowledge in writing that you understand and agree to abide 
by the rules governing ORV use at the Seashore, and pay the applicable 
permit

[[Page 39352]]

fee. Both weekly (7-day, valid from the date of issuance) and annual 
(calendar year) ORV permits would be available.

Is there a limit to the number of ORV permits available?

    No. There would be no limit to the number of permits that the 
Superintendent could issue. However, use restrictions may limit the 
number of vehicles on a particular route at one time.

Several of my family members have ORVs that we would like to use on 
Seashore beaches. Do we need to get a permit for each vehicle?

    Yes. You would need to get a permit for each vehicle that you want 
to use for driving on designated ORV routes. A permit would need to be 
affixed to all vehicles operated on designated ORV routes within the 
Seashore.

Where can I operate my vehicle off road?

    Once you obtain an ORV permit, you may operate a vehicle off road 
only on designated routes described in the tables located in Sec.  
7.58(c)(9). The tables also provide dates for seasonal restrictions on 
driving these designated routes. Maps of designated ORV routes would be 
available in the Office of the Superintendent and on the Seashore Web 
site.

Does the ORV permit guarantee that all designated ORV routes will be 
open for me to use?

    No. In addition to the referenced seasonal restrictions, ORV routes 
are also subject to temporary resource and safety closures. However, 
past experience indicates that substantial sections of the beach that 
are designated as ORV routes would remain open for ORV use when other 
sections are temporarily closed.

Are there any requirements for my vehicle?

    Yes. To receive a permit to operate a vehicle on designated ORV 
routes, your vehicle must be registered, licensed, and insured for 
highway use and comply with inspection regulations within the state, 
country, or province where the vehicle is registered. It must have no 
more than two axles and its tires must be U.S. Department of 
Transportation listed or approved, as described at: https://
www.safercar.gov/Vehicle+Shoppers/Tires/Tires+Rating/
Passenger+Vehicles. You would also be required to carry in your vehicle 
a low-pressure tire gauge, shovel, jack, and jack stand.

Can I drive my two-wheel-drive vehicle on designated ORV routes?

    Yes. Four-wheel-drive vehicles are recommended, but two-wheel-drive 
vehicles would be allowed if, in the judgment of the vehicle operator, 
the vehicle is capable of over-sand travel.

Can I tow a boat or utility trailer with my vehicle on designated ORV 
routes?

    Yes. Towed boat and utility trailers with one or two axles would be 
allowed. Boat and utility trailers with more than two axles would be 
prohibited.

Can I tow a travel trailer (camping trailer) on designated ORV routes?

    No. Travel trailers (i.e., camping trailers) would be prohibited on 
designated ORV routes, as camping at the Seashore is prohibited except 
in designated campgrounds.

Can I ride my motorcycle off of Seashore roads?

    No. The operation of motorcycles would be prohibited on designated 
ORV routes.
    Motorcycles are generally not capable of travelling through the 
deep, soft sand or carrying the requisite equipment for self extraction 
should they become stuck.

Can I ride my all-terrain vehicle (ATV), or utility vehicle (UTV) off 
of Seashore roads?

    No. Vehicles not registered, licensed and insured for highway use, 
including ATVs and UTVs, cannot lawfully be operated to ORV access 
points, and adequate parking for trailers or other transport vehicles 
is not readily available adjacent to ORV access points. Further, these 
vehicles have historically not been allowed to operate within the 
Seashore, and authorizing such use would limit the capacity for and 
interfere with the more significant and traditional use of four-wheel 
drive pick-up trucks, sport utility vehicles and other passenger 
vehicles for off-road access associated with fishing, picnicking, sun 
bathing, surfing, wading and swimming.

What is the speed limit on designated ORV routes?

    The speed limit would be 15 miles per hour (unless otherwise 
posted), except for emergency vehicles when responding to a call.

Are there right-of-way rules for ORV drivers in addition to those 
already in effect at the Seashore?

    Yes. Vehicles must yield to pedestrians and move to the landward 
side of the ORV corridor when approaching or passing a pedestrian on 
the beach. When traveling within 100 feet of pedestrians, ORVs must 
slow to 5 mph.

Can I drive on designated ORV routes at night?

    Yes, but not at all times on all routes. ORVs would be allowed on 
designated ORV routes 24 hours a day from November 16 to April 30, 
subject to the terms and conditions established under an ORV permit. 
However, from May 1 to November 15, designated ORV routes in potential 
sea turtle nesting habitat (ocean intertidal zone, ocean backshore, and 
dunes) would be closed to ORVs from 9:00 p.m. until 7:00 a.m. However, 
from September 15 to November 15, the Superintendent may reopen 
designated ORV routes at night if there are no turtle nests remaining. 
This is a minor change to the dates in the ROD. The NPS has decided it 
would be easier for the public to understand and more convenient to 
administer if the night driving dates coincided with some of the 
seasonal ORV route dates. Therefore, as described, night driving may be 
allowed beginning on September 15 instead of September 16. Routes that 
are subject to these night driving restrictions, as well as routes 
identified as having no turtle nests remaining, will be depicted on 
maps available in the Office of the Superintendent and on the Seashore 
Web site.

Can I leave my ORV parked on the beach if I don't drive it between 9 
p.m. and 7 a.m. during the dates night driving restrictions are in 
effect?

    No. During the restricted hours, all vehicles would be prohibited 
on designated ORV routes, including the beach.

Is a separate permit required for night driving?

    No. It would be covered by the ORV permit required to drive on the 
designated ORV routes in the Seashore.

I have a family member who is disabled or mobility-impaired. Can I use 
my ORV to drive that family member to the beach where we are gathering, 
even if it is not designated as an ORV route?

    Yes, such use would be accommodated on a case-by-case basis in 
front of villages only, and would be subject to the conditions of a 
special use permit issued by the Superintendent. The permit would allow 
you to transport mobility-impaired individuals to a predetermined 
location in an otherwise vehicle-free area (VFA) in front of the 
villages. After transporting the person to the beach, you would have

[[Page 39353]]

to immediately return the vehicle to the nearest ORV route or Seashore 
road. Additionally, you should keep in mind that there would be many 
miles of beach open to ORVs year-round or seasonally that will be 
accessible by ORV for family gatherings and other activities. In those 
areas, vehicles may simply be parked in the ORV corridor.

Do commercial use authorization holders and commercial fisherman need a 
separate ORV permit?

    No. Commercial Use Authorizations (CUAs) would, as appropriate, 
also authorize ORV use by the CUA holder but not their clients. ORV use 
by commercial fisherman who are actively engaged in a commercial 
fishing activity would be authorized ORV use under the terms of their 
commercial fishing special use permit.

Can commercial fishermen drive in the vehicle-free areas (VFA)?

    Yes. In keeping with the current practice, commercial fishermen 
when actively engaged in their authorized commercial fishing activity 
would be allowed to enter VFAs, except for resource closures and 
lifeguarded beaches. Lifeguarded beaches would be closed seasonally by 
the Superintendent. Commercial fishing activities and use of associated 
fishing gear conflicts with the significant, concentrated beach use and 
associated swimming use of these areas by visitors.
    Commercial fishermen while actively engaged in authorized 
commercial fishing activity and who are able to present a fish-house 
receipt from the previous 30 days would be allowed to enter the beach 
at 5 a.m. on days when night driving restrictions are in effect for the 
general public.

Compliance With Other Laws and Executive Orders

Use of Off-Road Vehicles on the Public Lands (Executive Order 11644)

    Section 3(4) of E.O. provides that ORV ``areas and trails shall be 
located in areas of the National Park system, Natural Areas, or 
National Wildlife Refuges and Game Ranges only if the respective agency 
head determines that off-road vehicle use in such locations will not 
adversely affect their natural, aesthetic, or scenic values.'' Since 
the E.O. clearly was not intended to prohibit all ORV use everywhere in 
these units, the term ``adversely affect'' does not have the same 
meaning as the somewhat similar terms ``adverse impact'' or ``adverse 
effect'' commonly used in the National Environmental Policy Act of 1969 
(NEPA) . Under NEPA, a procedural statute that provides for the study 
of environmental impacts, the term ``adverse effect'' refers to any 
effect, no matter how minor or negligible. Section 3(4) of the E.O. by 
contrast, does not prescribe procedures or any particular means of 
analysis. It concerns substantive management decisions, and must 
instead be read in the context of the authorities applicable to such 
decisions. The Seashore is an area of the National Park System. 
Therefore, the NPS interprets the E.O. term ``adversely affect'' 
consistent with its NPS Management Policies 2006. Those policies 
require that NPS only allows ``appropriate use'' of parks, and avoids 
``unacceptable impacts.''
    Specifically, this rule will not impede the attainment of the 
Seashore's desired future conditions for natural and cultural resources 
as identified in the plan/FEIS. We have determined this rule will not 
unreasonably interfere with the atmosphere of peace and tranquility, or 
the natural soundscape maintained in natural locations within the 
Seashore. Therefore, we have determined that within the context of 
E.O., the resources and values of the Seashore, ORV use on the ORV 
routes designated by this rule (which are also subject to resource 
closures and other species management measures that will be implemented 
under the selected action in the ROD) will not adversely affect the 
natural, aesthetic, or scenic values of the Seashore.
    Section 8(a) of the E.O. requires the respective agency head to 
monitor the effects of the use of off-road vehicles on lands under 
their jurisdictions. On the basis of the information gathered, such 
agency head shall from time to time amend or rescind designations of 
areas or other actions taken pursuant to the E.O. as necessary to 
further the policy of the E.O. The selected action for the plan/EIS, as 
described in the ROD, identifies monitoring and resource protection 
procedures, periodic review, and desired future condition to provide 
for the ongoing and future evaluation of impacts of ORV use on 
protected resources. The park Superintendent has the existing authority 
under both this proposed regulation and under 36 CFR Sec.  1.5 to close 
portions of the Seashore as needed to protect park resources.

Regulatory Planning and Review (Executive Order 12866)

    This document is a significant rule and the Office of Management 
and Budget (OMB) has reviewed this rule under Executive Order 12866. 
The assessments required by Executive Order 12866 and the details of 
potential beneficial and adverse economic effects of the proposed rule 
can be found in the report entitled ``Benefit-Cost Analysis of Proposed 
ORV Use Regulations in Cape Hatteras National Seashore'' which is 
available online at https://www.parkplanning.nps.gov/caha.
    (1) This rule will not have an effect of $100 million or more on 
the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities.
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency.
    (3) This rule does not alter the budgetary effects of entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients.
    (4) OMB has determined this rule raises novel legal or policy 
issues. ORV use at the Seashore has been the subject of litigation in 
the past; a settlement agreement between the parties was reached in May 
2008 and ORV use at the Seashore is currently managed under a court 
order/consent decree until the final rule is promulgated.

Regulatory Flexibility Act (RFA)

    The Department of the Interior certifies that this document will 
not have a significant economic effect on a substantial number of small 
entities under the RFA (5 U.S.C. 601 et seq.). This certification is 
based on information contained in the report entitled ``Benefit-Cost 
Analysis of Proposed ORV Use Regulations in Cape Hatteras National 
Seashore'', available for review online at https://www.parkplanning.nps.gov/caha. According to that report, no entities, 
small or large, are directly regulated by the proposed rule, which only 
regulates visitors' use of ORVs.
    As part of the socio-economic impact analysis for the plan/EIS, and 
based on suggestions from negotiated rulemaking advisory committee 
members, NPS conducted a small business survey, a visitor intercept 
survey, and a vehicle count study to supplement the existing sources of 
socio-economic data that were available in the public domain. We 
carefully considered his information in analyzing the rule's costs, 
benefits and impact.
    While close to 100 percent of the rule's impacts would fall on 
small businesses, some popular areas, such as Cape Point, South Point, 
and Bodie Island spit, would have designated year-round or seasonal ORV 
routes. The presence of more Vehicle Free Areas (VFAs) for pedestrians, 
combined with increased parking for pedestrian access,

[[Page 39354]]

could increase overall visitation and thereby help businesses to recoup 
some of the revenues lost as a result of ORV restrictions.
    The proposed rule includes a number of measures designed to 
mitigate effect on the number of visitors as well as the potential for 
indirect economic effects on village businesses that profit from 
patronage by Seashore visitors using ORVs. These include: New 
pedestrian and ORV beach access points, parking areas, pedestrian 
trails, routes between dunes, and ORV ramps to enhance ORV and 
pedestrian access; a designated year-round ORV route at Cape Point and 
South Point, subject to resource closures when breeding activity 
occurs; and pedestrian shoreline access along ocean and inlet 
shorelines adjacent to shorebird pre-nesting areas until breeding 
activity is observed. In addition, we will seek funding for an 
alternative transportation study and consider applications for 
businesses to offer beach and water shuttle services. These extra 
efforts to increase overall access and visitor use under the Selected 
Action, which we developed with extensive public involvement, should 
increase the probability that the economic impacts are on the low 
rather than high end of the range.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under the SBREFA, 5 U.S.C. 804(2). 
This rule:
    a. Does not have an annual effect on the economy of $100 million or 
more.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.
    This determination is based on information contained in the report 
titled ``Benefit-Cost Analysis of Proposed ORV Use Regulations in Cape 
Hatteras National Seashore'', available for review online at https://www.parkplanning.nps.gov/caha. This action will result in increased 
costs to those visitors desiring to operate ORVs on the beach, due to 
the requirement for an ORV special use permit. However, the price of 
the permit would be based on a cost recovery system and would not 
result in a major increase in costs to visitors. Businesses operating 
in the Seashore under a commercial use authorization or commercial 
fishermen operating under a commercial fishing special use permit would 
not need an ORV permit.

Unfunded Mandates Reform Act (UMRA)

    This rule does not impose an unfunded mandate on State, local, or 
Tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or Tribal governments or the private sector. The designated ORV 
routes are located entirely within the Seashore, and will not result in 
direct expenditure by State, local, or Tribal governments. This rule 
addresses public use of NPS lands, and imposes no requirements on other 
agencies or governments. Therefore, a statement containing the 
information required by the UMRA (2 U.S.C. 1531 et seq.) is not 
required.

Takings (Executive Order 12630)

    Under the criteria in E.O. 12630, this rule does not have 
significant takings implications. No taking of personal property will 
occur as a result of this rule. Access to private property located 
within or adjacent to the Seashore will not be affected by this rule. 
This rule does not regulate uses of private property. A takings 
implication assessment is not required.

Federalism (Executive Order 13132)

    Under the criteria in E.O. 13132, this rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism summary impact statement. This rule only affects use of NPS-
administered lands and imposes no requirements on other agencies or 
governments. A Federalism summary impact statement is not required.

Civil Justice Reform (Executive Order 12988)

    This rule complies With the requirements of E.O. 12988. 
Specifically, this rule:
    (a) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    (b) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

Consultation With Indian Tribes (Executive Order 13175)

    Under the criteria in E.O. 13175 we have evaluated this rule and 
determined that it would have no potential effect on Federally 
recognized Indian Tribes.
    On August 27, 2010, the NPS sent a letter to the Tuscarora Nation 
requesting information on any historic properties of religious or 
cultural significance to the Tribe that would be affected by the plan/
FEIS. The Tuscarora Nation has not informed the Seashore of any such 
properties.

Paperwork Reduction Act (PRA)

    This rule does not contain any new collection of information that 
requires approval by OMB under the PRA of 1995 (44 U.S.C. 3501 et 
seq.). OMB has approved the information collection requirements 
associated with NPS special use permits and has assigned OMB control 
number 1024-0026 (expires 06/30/2013). An agency may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid OMB control number.

National Environmental Policy Act (NEPA)

    This rule implements portions of the plan/FEIS and ROD which is a 
major Federal action significantly affecting the quality of the human 
environment. In accordance with NEPA, the NPS prepared a Draft 
Environmental Impact Statement (DEIS) and a Final Environmental Impact 
Statement for the plan/FEIS. The plan/FEIS was released on November 15, 
2010. The NPS Notice of Availability and the EPA Notice of Availability 
for the plan/FEIS were published in the Federal Register on November 15 
and November 19, 2010, respectively. The plan/FEIS evaluated six 
alternatives for managing off-road motorized vehicle access and use at 
the Seashore, including two no-action alternatives. The ROD, which 
selected Alternative F, was signed on December 20, 2010, and a notice 
of the decision was published in the Federal Register on December 28, 
2010. This rule is proposed for the purpose of implementing the 
selected action as described in the ROD. A full description of the 
alternatives that were considered, the environmental impacts associated 
with the project, and public involvement is contained in the plan/FEIS 
available for review online at: https://www.parkplanning.nps.gov/caha.

Information Quality Act (IQA)

    Information presented in the plan/FEIS is based on a wide range of 
scientific and peer reviewed data which was used to determine potential 
impacts and to develop a range of alternatives. Studies, surveys, or 
reports used or referenced are listed in the Reference section of the 
plan/FEIS, available for review at https://www.parkplanning.nps.gov/caha. The NPS believes that the information used

[[Page 39355]]

in preparing the plan/FEIS and the subsequent decision to issue this 
proposed rule is of sufficient quality, objectivity, utility, and 
integrity to comply with the IQA (Pub. L. 106-554).

Effects on the Energy Supply (Executive Order 13211)

    This rule is not a significant energy action under the definition 
in E.O. 13211. A Statement of Energy Effects is not required.

Clarity of This Rule

    We are required by Executive Orders 12866 and 12988, and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

Public Participation

    All submissions received must include the agency name and RIN for 
this rulemaking: 1024-AD85. All comments received through the Federal 
eRulemaking portal at https://www.regulations.gov will be available 
without change. Before including your address, phone number, e-mail 
address, or other personal identifying information in your comment, you 
should be aware that your entire comment including your personal 
identifying information may be made publicly available at any time. 
While you can ask us in your comment to withhold your personal 
identifying information, we cannot guarantee that we will be able to do 
so. To view comments received through the Federal eRulemaking portal, 
go to https://www.regulations.gov and enter 1024-AD85 in the Keyword or 
ID search box.

List of Subjects in 36 CFR Part 7

    District of Columbia, National Parks, Reporting and recordkeeping 
requirements.

    In consideration of the foregoing, the National Park Service 
proposes to amend 36 CFR part 7 as follows:

PART 7--SPECIAL REGULATIONS, AREAS OF THE NATIONAL PARK SYSTEM

    1. The authority citation for part 7 continues to read as follows:

    Authority: 16 U.S.C. 1, 3, 9a, 462(k); Sec. 7.96 also issued 
under 36 U.S.C. 501-511, DC Code 10-137 (2001) and DC Code 50-2201 
(2001).

    2. In Sec.  7.58,
    A. Revise the introductory language in paragraph (b)(1).
    B. Remove paragraph (b)(1)(ii),
    C. Redesignate paragraphs (b)(1)(iii) through (b)(1)(v) as 
(b)(1)(ii) through (b)(1)(iv).
    D. Add paragraph (c).
    The revisions to read as follows:


Sec.  7.58  Cape Hatteras National Seashore.

* * * * *
    (b) * * *
    (1) Definitions. As used in this section:
* * * * *
    (c) Off-road motor vehicle use.
    (1) Definitions. In addition to the definitions found in Sec.  1.4 
of this chapter, the following terms apply in this paragraph (c):
    ORV means a motor vehicle used off of park roads (off-road), 
subject to the vehicle requirements, prohibitions, and permitting 
requirements described in this regulation.
    ORV corridor means the actual physical limits of the designated ORV 
route in the Seashore. The ORV corridor generally runs from the toe of 
the dune or the vegetation line on the landward side to the water line 
on the seaward side. Where the ocean beach is at least 30 meters wide 
above the high tide line, the landward side of the corridor will be 10 
meters seaward of the toe of the dune. The ORV corridor will usually be 
marked by posts on the landward side (the seaward side of the corridor 
usually will not be posted).
    (2) ORV permits. The Superintendent administers the NPS special 
park use permit system at the Seashore, including permits for ORV use, 
and charges fees to recover NPS administrative costs.
    (i) A permit issued by the Superintendent is required to operate a 
vehicle on designated ORV routes at the Seashore.
    (ii) Operation of a motor vehicle authorized under an ORV permit is 
limited to those routes designated in this paragraph (c).
    (iii) There is no limit to the number of ORV permits that the 
Superintendent may issue.
    (iv) Annual ORV permits are valid for the calendar year for which 
they are issued. Seven-day ORV permits are valid from the date of 
issue.
    (v) In order to obtain a permit, an applicant must comply with 
vehicle and equipment requirements, complete a short education program 
in person, acknowledge in writing an understanding of the rules 
governing ORV use at the Seashore, and pay the permit fee.
    (vi) Each permit holder must affix the permit in a manner and 
location specified by the Superintendent to the vehicle authorized for 
off-road use.
    (3) Vehicle and equipment requirements. The following requirements 
apply for driving off-road:
    (i) The vehicle must be registered, licensed, and insured for 
highway use and must comply with inspection regulations within the 
state, country, or province where the vehicle is registered.
    (ii) The vehicle must have no more than two axles.
    (iii) A towed boat or utility trailer must have no more than two 
axles.
    (iv) Vehicle tires must be listed or approved by the U.S. 
Department of Transportation.
    (v) The vehicle must carry a low-pressure tire gauge, shovel, jack, 
and jack stand.
    (4) Vehicle inspection. Authorized persons may inspect the vehicle 
to determine compliance with the requirements of paragraphs (c)(3)(i) 
through (c)(3)(v).
    (5) The off-road operation of a motorcycle, all-terrain vehicle 
(ATV) or utility vehicle (UTV) is prohibited.
    (6) The towing of a travel trailer (i.e. camping trailer) off-road 
is prohibited.
    (7) Special use permits for off-road driving, temporary use. The 
Superintendent may issue a special use permit for temporary off-road 
vehicle use to:
    (i) Authorize the North Carolina Department of Transportation to 
use Seashore beaches as a public way, when necessary, to bypass 
sections of NC Highway 12 that are impassable or closed for repairs; or
    (ii) Allow participants in regularly scheduled fishing tournaments 
to drive in an area if such tournament use was allowed in that area for 
that tournament before January 1, 2009; or
    (iii) Allow vehicular transport of mobility impaired individuals 
via the shortest, most direct distance from the nearest designated ORV 
route or Seashore road to a predetermined location in a designated 
vehicle-free

[[Page 39356]]

area in front of a village; provided that, the vehicle must return to 
the designated ORV route or Seashore road immediately after the 
transport.
    (8) Commercial fishing vehicles. The Superintendent may authorize a 
commercial fishing permit holder when actively engaged in authorized 
commercial fishing to operate a vehicle on a beach:
    (i) Not designated for ORV use, provided the beach is not subject 
to a resource closure and is not lifeguarded; and
    (ii) Beginning at 5 a.m. on days when night driving restrictions 
are in effect, to set or tend haul seine or gill nets, if the permit 
holder is carrying and able to present a fish-house receipt from the 
previous 30 days.
    (9) ORV routes. The following tables indicate designated ORV 
routes. The following ramps are designated as open to ORV use (subject 
to resource, safety, seasonal, or other closures) to provide access to 
ocean beaches: 2.5, 4, 23, 25.5, 27, 30, 32.5, 34, 38, 43, 44, 47.5, 
49, 55, 59.5, 63, 67, 68, 70, 72. Soundside ORV access ramps are 
described in the table below. For a village beach to be open to ORV use 
during the winter season, it must be at least 20 meters (66 feet) wide 
from the toe of the dune seaward to mean high tide line. Maps depicting 
designated routes and ramps are available in the Office of the 
Superintendent and for review on the Seashore Web site.

----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
                                         BODIE ISLAND--DESIGNATED ROUTES
----------------------------------------------------------------------------------------------------------------
YEAR ROUND..................................  Ramp 2.5 (0.5 miles south of the southern boundary of Coquina
                                               Beach) to 0.2 miles south of ramp 4.
SEASONAL--September 15 to March 14..........  0.2 miles south of ramp 4 to the eastern confluence of the
                                               Atlantic Ocean and Oregon Inlet.
----------------------------------------------------------------------------------------------------------------
                                       HATTERAS ISLAND--DESIGNATED ROUTES
----------------------------------------------------------------------------------------------------------------
YEAR ROUND..................................  1.5 miles south of ramp 23 to ramp 27.
                                              Ramp 30 to ramp 32.5.
                                              The following soundside ORV access routes from NC Highway 12 to
                                               Pamlico Sound between the villages of Salvo and Avon: soundside
                                               ramps 46, 48, 52, 53, 54 and the soundside ORV access at Little
                                               Kinnakeet.
                                              Ramp 38 to 1.5 miles south of ramp 38.
                                              The following soundside ORV access routes from NC Highway 12 to
                                               Pamlico Sound between the villages of Avon and Buxton: soundside
                                               ramps 57, 58, 59, and 60.
                                              0.4 miles north of ramp 43 to Cape Point to 0.3 miles west of
                                               ``the hook''.
                                              Interdunal route from intersection with Lighthouse Road (i.e.,
                                               ramp 44) to ramp 49, with one spur route from the interdunal
                                               route to the ORV route below.
                                              Ramp 47.5 to east Frisco boundary.
                                              A soundside ORV access route from Museum Drive to Pamlico Sound
                                               near Coast Guard Station Hatteras Inlet.
                                              Pole Road from Museum Drive to Spur Road, with two spur routes to
                                               Pamlico Sound (one at the terminus of Spur Road and one commonly
                                               known as Cable Crossing) and four spur routes to the ORV route
                                               below.
                                              Ramp 55 southwest along the ocean beach for 1.6 miles, ending at
                                               the intersection with the route commonly known as Bone Road.
SEASONAL--November 1 to March 31............  0.1 mile south of Rodanthe Pier to ramp 23.
                                              Ramp 34 to ramp 38 (Avon).
                                              East Frisco boundary to west Frisco boundary (Frisco village
                                               beach).
                                              East Hatteras boundary to ramp 55 (Hatteras village beach).
September 15 to March 14....................  Interdunal route south of the intersection of Pole Road and Spur
                                               Road stopping at least 100 meters from the ocean or inlet
                                               shoreline.
----------------------------------------------------------------------------------------------------------------
                                       OCRACOKE ISLAND--DESIGNATED ROUTES
----------------------------------------------------------------------------------------------------------------
YEAR ROUND..................................  Ramp 59.5 to ramp 63.
                                              Three routes from NC Highway 12 to Pamlico Sound located north of
                                               the Pony Pens, commonly known as Prong Road, Barrow Pit Road, and
                                               Scrag Cedar Road.
                                              1.0 mile northeast of ramp 67 to 0.5 mile northeast of ramp 68.
                                              A route from NC Highway 12 to Pamlico Sound located near Ocracoke
                                               Campground, commonly known as Dump Station Road.
                                              0.4 miles northeast of ramp 70 to Ocracoke inlet.
                                              A route from ramp 72 to a pedestrian trail to Pamlico Sound,
                                               commonly known as Shirley's Lane.
SEASONAL--September 15 to March 14..........  A seasonal route 0.6 mile south of ramp 72 from the beach route to
                                               a pedestrian trail to Pamlico Sound.
                                              A seasonal route at the north end of South Point spit from the
                                               beach route to Pamlico Sound.
November 1 to March 31......................  0.5 mile northeast of ramp 68 to ramp 68 (Ocracoke Campground
                                               area).
----------------------------------------------------------------------------------------------------------------

     (10) Superintendent's closures. The Superintendent may temporarily 
limit, restrict, or terminate access to routes or areas designated for 
off-road use after taking into consideration public health and safety, 
natural and cultural resource protection, carrying capacity and other 
management activities and objectives, such as those described in the 
plan/FEIS. The public will be notified of such closures through one or 
more of the methods listed in Sec.  1.7(a) of this chapter. Violation 
of any closure is prohibited.
    (11) Rules for Vehicle Operation. (i) Notwithstanding the 
definition of ``Public Vehicular Area'' (PVA) in North Carolina law, 
the operator of any motor vehicle anywhere in the Seashore, whether in 
motion or parked, must at all times comply with all North Carolina 
traffic laws that would apply if the operator were operating the 
vehicle on a North Carolina highway.

[[Page 39357]]

    (ii) In addition to the requirements of Part 4 of this chapter, the 
following restrictions apply:
    (A) A vehicle operator must yield to pedestrians on all designated 
ORV routes.
    (B) When approaching or passing a pedestrian on the beach, a 
vehicle operator must move to the landward side to yield the wider 
portion of the ORV corridor to the pedestrian.
    (C) A vehicle operator must slow to 5 mph when traveling within 
30.5 meters (100 feet) or less of pedestrians at any location on the 
beach at any time of year.
    (D) An operator may park on a designated ORV route, but no more 
than one vehicle deep, and only as long as the parked vehicle does not 
obstruct two-way traffic.
    (E) When driving on a designated route, an operator must lower the 
vehicle's tire pressure sufficiently to maintain adequate traction 
within the posted speed limit.
    (F) The speed limit for off road driving is 15 mph, unless 
otherwise posted.
    (12) Night Driving Restrictions.
    (i) Hours of operation and night driving restrictions are listed in 
the following table:

----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
                                  HOURS OF OPERATION/NIGHT DRIVING RESTRICTIONS
----------------------------------------------------------------------------------------------------------------
November 16-April 30........................  All designated ORV routes are open 24 hours a day.
May 1-September 14..........................  Designated ORV routes in sea turtle nesting habitat (ocean
                                               intertidal zone, ocean backshore, dunes) are closed from 9 p.m.
                                               to 7 a.m.
September 15-November 15....................  Designated ORV routes in sea turtle nesting habitat (ocean
                                               intertidal zone, ocean backshore, dunes) are closed from 9 p.m.
                                               to 7 a.m., but the Superintendent may open designated ORV routes
                                               in sea turtle nesting habitat (if no turtle nests remain), 24
                                               hours a day.
----------------------------------------------------------------------------------------------------------------

     (ii) Maps available in the office of the Superintendent and on the 
Seashore's Web site will show routes closed due to night driving 
restrictions, and routes the Superintendent opens because there are no 
turtle nests remaining.
    (13) Vehicle carrying capacity. The maximum number of vehicles 
allowed on any particular ORV route, at one time, is the linear 
distance of the route divided by 6 meters (20 feet).
    (14) Violating any of the provisions of this paragraph, or the 
terms, conditions, or requirements of an ORV or other permit 
authorizing ORV use is prohibited. A violation may also result in the 
suspension or revocation of the applicable permit by the 
Superintendent.
    (15) Information Collection. As required by 44 U.S.C. 3501 et seq. 
The Office of Management and Budget has approved the information 
collection requirements contained in this paragraph. The OMB approval 
number is 1024-0026. The NPS is collecting this information to provide 
the Superintendent data necessary to issue ORV special use permits. The 
information will be used to grant a benefit. The obligation to respond 
is required to order to obtain the benefit in the form of the ORV 
permit.

    Dated: May 16, 2011.
Eileen Sobeck,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-16878 Filed 7-5-11; 8:45 am]
BILLING CODE 4310-X6-P