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Proposed Rule

Cape Hatteras National Seashore; Off-Road Vehicle Management

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National Park Service, Interior.


Notice of Intent (NOI) to Establish a Negotiated Rulemaking Committee, Cape Hatteras National Seashore.


The Secretary of the Interior is giving notice of intent to establish the Negotiated Rulemaking Advisory Committee for Off-Road Vehicle Management at Cape Hatteras National Seashore (Committee) to negotiate and develop special regulations (proposed rule) for management of off-road vehicles (ORV) at Cape Hatteras National Seashore (Seashore).


Interested persons are invited to comment on the proposal to create this Committee. In addition, any persons who believe that they will be affected significantly by the proposed rule and who believe their interests will not be represented adequately by the persons identified in this NOI are invited to apply for or nominate another person for membership on the Committee. Each application must contain the information described in the “Application for Membership” section below. Comments and/or applications or nominations for membership on the Committee must be received by close of business July 30, 2007.


Comments and/or applications for membership may be submitted to Michael B. Murray, Superintendent, Cape Hatteras National Seashore, 1401 National Park Drive, Manteo, North Carolina 27954. Alternatively, comments and applications may be submitted on-line through the National Park Service (NPS) Planning, Environment and Public Comment system (PEPC) at​CAHA. Only comments and/or applications submitted through PEPC or hand-carried or mailed to the address above will be accepted. Comments and applications received will be available for inspection at the address listed above from 8:30 to 4, EST, Monday through Friday following the close of the comment period. 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 from public review, we cannot guarantee that we will be able to do so.

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Michael B. Murray, Superintendent, Cape Hatteras National Seashore at the address listed below, or by telephone at 252 473-2111 extension 148. Information on negotiated rulemaking and on the ORV Management Plan/EIS is also available on-line at​CAHA by clicking on Cape Hatteras National Seashore Off-Road Vehicle Negotiated Rulemaking and Management Plan/EIS, and on Documents List and/or Links.

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The establishment of this Committee is in the public interest and supports the NPS in performing its duties and responsibilities under the NPS Organic Act, 16 U.S.C. 1 et seq., Executive Orders 11644 and 11989, 36 CFR 4.10, the Endangered Species Act, 16 U.S.C. 1531 et seq., the enabling legislation for the Seashore, 16 U.S.C. 459 et seq., and other legal authorities. The Committee will negotiate to reach consensus on concepts and language to be used as the basis for a proposed rule governing ORV use at the Seashore. With the participation of knowledgeable affected parties, NPS expects to develop a practical approach to addressing the management and public-use issues involved in the public's desire for (1) access to beach areas by ORV for fishing and other recreational activities, (2) the quiet enjoyment of the natural scenery without motorized vehicles or their tire tracks, or sounds associated with their use, (3) public safety, and (4) the protection of beach environments and their associated plant and wildlife communities.


Use of ORVs has become an issue of concern and a source of controversy at several units of the National Park System in recent years. Executive Order 11644, amended by Executive Order 11989, requires certain Federal agencies permitting ORV use on agency lands to publish regulations designating specific trails and areas for this use. Title 36, § 4.10 of the Code of Federal Regulations implements the Executive Orders for the NPS by providing that routes and areas designated for ORV use shall be promulgated as special regulations. Section 4.10 also provides that the designation of routes and areas shall comply with Executive Order 11644, and with § .5 of Title 36 of the Code of Federal Regulations, regarding closures. While special regulations governing ORVs have been developed at some units of the National Park System, presently no comprehensive ORV Management Plan nor special regulations are in place at the Seashore. An ORV management plan and special regulations are necessary to ensure NPS compliance with the above authorities and NPS management policies. The absence of special regulations governing ORVs at the Seashore has led to inconsistent management of ORV use, increased conflicts between Seashore uses, and potential damage to natural and cultural resources. An ORV Management Plan and special regulations must be developed in order to provide consistency in ORV management and resource protection in areas of ORV use.

The NPS contracted with the U.S. Institute for Environmental Conflict Resolution to provide a feasibility assessment as to whether a negotiated rulemaking is a practicable means to develop consensus on proposed special regulations for the Seashore. The feasibility assessment concluded that this negotiated rulemaking would satisfy the requirements of the Negotiated Rulemaking Act, 5 U.S.C. 561 et seq., and that a rulemaking for ORV management at the Seashore is appropriate for development through negotiation. Concurrently with the negotiated rulemaking, NPS will develop the ORV Management Plan using the National Environmental Policy Act (NEPA) planning process.

Scope of the Proposed Rule. Within the constraints of NPS statutory and policy responsibilities to preserve natural and cultural resources and to provide for their enjoyment, the Committee will evaluate and address key issues possibly including, but not limited to, the designation of specific ORV routes and areas, the periods of the year and times of day during which ORVs may be operated, and other conditions that govern the operation of ORVs at the Seashore. Special ORV regulations at the Seashore would identify criteria to designate appropriate ORV use areas and routes, and would establish consistent ORV management practices and procedures that include the ability to adjust ORV management in response to changes in the Seashore's dynamic physical and biological environment. The management methodology embodied in the proposed rule would minimize adverse impacts to park resources due to ORV use, provide for visitor enjoyment and safety, and allow ORV use for those activities that are consistent with resource Start Printed Page 35374preservation as recognized under the Seashore's enabling legislation.

List of Interests Significantly Affected. The NPS has identified a number of interests that are likely to be affected significantly by the rule. Those parties are Federal, State, and county government interests; local civic and neighborhood association and homeowner interests; environmental and conservation interests; various Seashore user interests, including ORV use, open access, recreation, water sports, recreational fishing, bird watching, and other general uses; and local tourism, visitation and business interests. Other parties who believe they are likely to be affected significantly by the proposed rule may apply for membership on the Committee under the “Application for Membership” section below.

Proposed Agenda and Schedule for Publication of Proposed Rule. Members of the Committee, with the assistance of a neutral facilitator, will determine the agenda for the Committee's work, which will include interactions with the concurrent NEPA planning process for developing an ORV Management Plan at the Seashore.

Records of Meetings. In accordance with the requirements of the Federal Advisory Committee Act, 5 U.S.C. Appx. 1994, the NPS will keep a record of all Committee meetings.

Administrative Support. To the extent authorized by law, the NPS will fund the costs of the Committee, keep a record of all Committee meetings, and provide administrative support and technical assistance for the activities of the Committee. The NPS will also provide staff expertise in resource management and operations to facilitate the Committee's work.

Committee Membership. In accordance with the Negotiated Rulemaking Act, membership is limited to 25, with each member having an alternate, unless the agency head determines that a greater number of members is necessary for the functioning of the committee or to achieve balanced membership. For this committee to achieve balanced membership among diverse national, regional, and local interests the feasibility assessment has recommended and the agency has determined, that a greater number of members is necessary. A membership of 28 is proposed for the Committee, consisting of the following:

Civic and Homeowner Associations:

1. Rodanthe-Waves-Salvo Civic Association, member C.A. Duke, alternate Pat Weston (Greater Kinnakeet Shores Homeowners Inc. and Rodanthe-Waves-Salvo Civic Association)

2. Avon Property Owners Association, member Frank Folb, alternate Pat Weston (Greater Kinnakeet Shores Homeowners Inc. and Rodanthe-Waves-Salvo Civic Association)

3. Hatteras Village Civic Association, member Roy Kingery, alternate Jeffrey Wells (Hatteras Landing Homeowners Association)

Commercial Fishermen:

4. North Carolina Fisheries Association, Michael Peele, alternate William Foster (North Carolina Fisheries Association)

Environmental and Natural Resource Conservation Advocates, State/Regional/Local:

5. Southern Environmental Law Center, member Derb Carter, alternate Michelle Nowlin (Southern Environmental Law Center)

6. North Carolina Audubon, member Walker Golder, alternate Sidney Maddock (National Audubon Society)

Environmental and Natural Resource Conservation Advocates, National:

7. Coalition of National Park Service Retirees, member Robert Milne, alternate Dwight Rettie (Coalition of National Park Service Retirees)

8. Defenders of Wildlife, member Jason Rylander, alternate Andrew Hawley (Defenders of Wildlife)

9. Natural Resources Defense Council and The Wilderness Society, member Destry Jarvis, alternate Leslie Jones (The Wilderness Society)

10. The Nature Conservancy, member Sam Pearsall, alternate Aaron McCall (The Nature Conservancy)

Government, County:

11. Dare County, member Warren Judge, alternate Ray Sturza (Dare County)

12. Hyde County, member David Scott Esham, alternate Kevin Howard (Hyde County)

Government, Federal:

13. Cape Hatteras National Seashore, member Michael Murray, alternate Thayer Broili (Cape Hatteras National Seashore)

14. U.S. Fish and Wildlife Service, member Pete Benjamin, alternate David Rabon (U.S. Fish and Wildlife Service)

Government, State:

15. North Carolina Marine Fisheries Commission, member Wayne Mathis, alternate Sara Winslow (North Carolina Marine Fisheries Commission)

16. North Carolina Wildlife Resources Commission, member David Allen, alternate Susan Cameron (North Carolina Wildlife Resources Commission)

Tourism, Visitation, and Businesses:

17. Cape Hatteras Business Allies, member Judy Swartwood, alternate Stacy Stacks (Cape Hatteras Business Allies)

18. Outer Banks Chamber of Commerce, member Scott Leggat, alternate Sam Hagedon (Outer Banks Chamber of Commerce)

19. Outer Banks Visitors Bureau, member Carolyn McCormick, alternate Renee Cahoon

User Groups, ORV Use:

20. North Carolina Beach Buggy Association, member Jim Keene, alternate David Joyner (North Carolina Beach Buggy Association)

21. United Four Wheel Drive Associations, member Carla Boucher, alternate Lyle Piner (United Four Wheel Drive Associations)

User Groups, Open Access:

22. Outer Banks Preservation Association, member David Goodwin, alternate John Alley (Outer Banks Preservation Association)

User Groups, Other Users:

23. Cape Hatteras Bird Club, member Ricky Davis, alternate Raymond Moore (Cape Hatteras Bird Club)

24. Cape Hatteras Recreational Alliance, member Jim Lyons, alternate Steven Kayota (Frisco and Hatteras Homeowners Coalition)

25. Water Sports Industry Association, member Trip Foreman, alternate Matt Nuzzo (Water Sports Industry Association)

User Groups, Recreational Fishing:

26. American Sportfishing Association, member Bob Eakes, alternate Carol Forthman (American Sportfishing Association)

27. Cape Hatteras Anglers Club, member Larry Hardham, alternate Robert Davis (Cape Hatteras Anglers Club)

28. Recreational Fishing Alliance, member Patrick Paquette, alternate Ronald Bounds (Recreational Fishing Alliance)

Application for Membership. Persons who believe they will be significantly affected by proposals to develop special regulations for ORV use at the Seashore and who believe that their interests will not be represented adequately by any person identified in the “Committee Membership” section above may apply for or nominate another person for membership on the Committee. In order to be considered, each application or nomination must include:

1. The name of the applicant or nominee and a description of the interest(s) such person shall represent,

2. Evidence that the applicant or nominee is authorized to represent parties related to the interest(s) the person proposes to represent,

3. A written commitment that the applicant or nominee will actively participate in good faith in the development of the proposed rule, and Start Printed Page 35375

4. The reasons that the proposed members of the committee identified above do not represent the interests of the person submitting the application or nomination.

To be considered, the application must be complete and received by the close of business 30 days after publication of this NOI in the Federal Register at the location indicated in the ADDRESSES section above. Full consideration will be given to all applications and nominations submitted in a timely manner. The decision whether or not to add a person to the Committee will be based on NPS's determination whether an interest of that person will be significantly affected by the proposed rule, whether that interest is already adequately represented on the Committee, and if not, whether the applicant or nominee would adequately represent it.

Certification. I hereby certify that the administrative establishment of the Cape Hatteras National Seashore Negotiated Rulemaking Advisory Committee is necessary and in the public interest in connection with the performance of duties imposed on the Department of the Interior by the Act of August 25, 1916, 16 U.S.C. 1 et seq. and other statutes relating to the administration of the National Park System.

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Dated: June 13, 2007.

Dirk Kempthorne,

Secretary of the Interior.

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[FR Doc. E7-12012 Filed 6-27-07; 8:45 am]