Special Regulations, Areas of the National Park System, Cape Hatteras National Seashore-Off-Road Vehicle Management, 3123-3144 [2012-1250]

Agencies

• DEPARTMENT OF THE INTERIOR
• National Park Service

[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: 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. 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 https://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 https://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 https://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 https://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 
https://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 https://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 https://rti.org/publications/publications.cfm and on 
the NPS PEPC Web site at https://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 https://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 https://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 https://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

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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 en