[Federal Register Volume 72, Number 244 (Thursday, December 20, 2007)]
[Proposed Rules]
[Pages 72316-72318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-6152]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 7


Establishment of Negotiated Rulemaking Advisory Committee for 
Off-Road Vehicle Management, Cape Hatteras National Seashore

AGENCY: National Park Service (NPS), Interior.

ACTION: Notice of establishment and Notice of the first and second 
meetings of the Negotiated Rulemaking Advisory Committee for Off-Road 
Vehicle Management at Cape Hatteras National Seashore.

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SUMMARY: The Negotiated Rulemaking Advisory Committee for Off-Road 
Vehicle Management at Cape Hatteras National Seashore (Seashore) is 
established under the authority of 16 U.S.C. 1a-2(c), and in accordance 
with the Negotiated Rulemaking Act, 5 U.S.C. 561-570. 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 Order 11644, as amended by Executive 
Order 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.
    An unusual combination of events in the preparation, approval, and 
transmission of this notice has resulted in the publication of this 
notice less than 15 days before the date of the first meeting and 
official date of establishment. The National Park Service has made 
extraordinary efforts to provide other forms of notification to all 
Committee members and to the public.

DATES: The Committee will hold its first meeting on January 3-4, 2008, 
from 8:30 a.m. to 5:30 p.m. on January 3, and from 8:30 a.m. to 3:30 
p.m. on January 4. The meetings on both days will be held at the Avon 
Fire Hall, 40159 Harbor Drive, Avon, North Carolina 27915.
    The Committee will hold its second meeting on February 26-27, 2008, 
from 8:30 a.m. to 5:30 p.m. on February 26, and from 8:30 a.m. to 3:30 
p.m. on February 27. The meetings on both days will be held at the 
Ramada Inn, 1701 South Virginia Dare Trail, Kill Devil Hills, North 
Carolina 27948.

FOR FURTHER INFORMATION CONTACT: Mike Murray, Superintendent, Outer 
Banks Group, 1401 National Park Drive, Manteo, North Carolina 27954, 
(252) 473-2111, ext. 148.

SUPPLEMENTARY INFORMATION: The Committee's function is to assist 
directly in the development of special regulations for management of 
off-road vehicles (ORVs) at Cape Hatteras National Seashore (Seashore). 
Executive Order 11644, as amended by Executive Order 11989, requires 
certain Federal agencies to publish regulations that provide for 
administrative designation of the specific areas and trails on which 
ORV use may be permitted. In response, the NPS published a general 
regulation at 36 CFR 4.10, which provides that each park that 
designates routes and areas for ORV use must do so by promulgating a 
special regulation specific to that park. It also provides that the 
designation of routes and areas shall comply with Executive Order 
11644, and 36 CFR 1.5 regarding closures. Members of the Committee will 
negotiate to reach consensus on concepts and language to be used as the 
basis for a proposed special regulation, to be published by the NPS in 
the Federal Register, governing ORV use at the Seashore. The duties of 
the Committee are solely advisory.
    In accordance with the Negotiated Rulemaking Act, 5 U.S.C. 561-570, 
a Notice of Intent to Establish a Negotiated Rulemaking Advisory 
Committee was published in the Federal Register on June 28, 2007, 
providing a 30-day public comment period which concluded July 30, 2007. 
The NPS received 143 comment letters or comment entries in the NPS 
Planning, Environment, and Public Comment (PEPC) on-line system during 
the comment period.

Responses to Comments Suggesting Additions to the Committee

    The NPS received comments from a number of nonresident owners and 
renters of vacation homes asking that representatives of the Hatteras 
Landing Homeowners Association, Inc., and the Hatteras Island 
Homeowners Coalition be appointed as members of the Committee to 
represent their interests (nonresident property owners/renters and 
pedestrian and safety issues respectively) and to better balance the 
representation of interests on the Committee. One commenter noted that 
Hatteras Island is a premier surfing destination on the East Coast, and 
asked that NPS consider appointing a local resident from the Eastern 
Surfers Association or a representative from the Surfrider Foundation 
to represent interests of surfers.

Response

    The NPS is aware that a balanced Committee is necessary for 
discussions

[[Page 72317]]

to be meaningful and fair. The Negotiated Rulemaking Act states that a 
Federal agency considering negotiated rulemaking must determine that 
there are a limited number of identifiable interests that will be 
significantly affected by the rule, and that there is a reasonable 
likelihood that a committee can be convened with a balanced 
representation of persons who can adequately represent the interests 
identified. The Act also states that a Federal agency can use the 
services of a ``convener'' to make these determinations. The NPS, 
working through the U.S. Institute for Environmental Conflict 
Resolution, contracted with the Consensus Building Institute and Fisher 
Collaborative Services, which subsequently assisted in identifying 
interests that would be significantly affected by a proposed rule, and 
representatives of those interests. The Cape Hatteras National 
Seashore: Negotiated Rulemaking Feasibility Report (Feasibility Report) 
noted that there is no Outer Banks-wide organization that represents 
nonresident property owners and that there is no known, local or 
regional organized group whose primary interest is pedestrian beach use 
and public safety. The NPS agrees that nonresident homeowner and 
pedestrian-only areas interests are underrepresented in its initial 
proposal. Accordingly, NPS has recommended that the Hatteras Landing 
Homeowners Association be given a seat on the Committee with its 
president, Jeffrey Wells, appointed as a member to represent the 
interests of nonresident homeowners. The NPS has further recommended 
that the Hatteras Island Homeowners Coalition be given a seat on the 
Committee with its president, Stephen Kayota, appointed as a member to 
represent pedestrian and safety interests.
    The Surfrider Foundation and the Eastern Surfing Association 
promote conservation and protection of ocean and coastal environments 
from pollution. Because the conservation and environmental protection 
interest is represented by other groups with similar perspectives, NPS 
determined that the interests of surfers would be represented 
adequately by the other conservation/environmental groups and that the 
access and experience interests, which are also important to surfers, 
would be represented adequately by other groups in the user category 
such as the Cape Hatteras Recreational Alliance and the Watersports 
Industry Association.

Comments Suggesting Restructuring the Committee

    Several comments stated that the Committee was not balanced, citing 
the overlapping group memberships of a number of the ORV and 
recreational fishing proponent members. One comment suggested that a 
smaller and more balanced Committee should be created. Some comments 
suggested removing proposed members perceived as argumentative, biased, 
and not willing to look for consensus.
    A Commenter also suggested that the two proposed representatives 
from the Watersports Industry Association be replaced by 
representatives from the Eastern Surfing Association or the Surfrider 
Foundation to represent interests of surfers. This comment questioned 
the appropriateness of appointing individuals with vested business 
interests in access to the beach for business purposes and stated that 
the Watersports Industry Association does not have a broad base of 
support for the sports enjoyed on Hatteras and Ocracoke.

Response

    The NPS understands that a number of representatives have 
overlapping memberships in different groups. The Feasibility Report 
also noted this overlap while recognizing that, even though there are 
common interests, each member also represents a different perspective 
and interest that needs to be represented for the Committee to 
negotiate a proposed rule that will consider all interests. All 
interest groups significantly affected by the ORV regulation must be 
involved in any meaningful negotiation. Moreover, the final membership 
proposed must represent a balance of interests. The NPS believes that 
the final composition of the Committee will accomplish these purposes.
    The NPS has been advised by the Department of the Interior ethics 
office that appointment to a negotiated rulemaking committee of 
individuals with interests in access to the beach for business purposes 
is acceptable. Further, ethics rules relating to advisory committees 
will be discussed at an early meeting of the Committee to ensure that 
members understand them. Finally, NPS agrees that the Watersports 
Industry Association is concerned with a broader spectrum of activities 
than are enjoyed at Cape Hatteras National Seashore, but notes that 
those activities, such as surfing, enjoyed on Hatteras and Ocracoke are 
included within its interests.

Comments on Committee Purpose and Process

    Comments were received on additional factors surrounding the 
establishment of the Committee. Broadly categorized, these comments 
addressed: the willingness of members to negotiate and reach consensus, 
and proposed procedures and guidelines for the Committee.

Response

    Committee members are required to negotiate in good faith, 
including considering others' perspectives and approaching negotiations 
with an open mind. Every proposed Committee member has agreed to do 
this. Also, to police itself, the Committee will adopt ground rules to 
enhance its ability to negotiate and reach consensus. Finally, the NPS 
Designated Federal Official for the Committee has the authority to 
recommend to the Secretary that a member who is not negotiating in good 
faith be removed from the Committee.
    The procedures and guidelines for the Committee that one commenter 
proposed are similar to those recommended by the Feasibility Report 
with which the NPS has concurred. The NPS expects that the Committee 
will consider these procedures and guidelines when it adopts its ground 
rules.

Additional Comments

    A number of comments were received that did not address the 
establishment, scope or membership of the negotiated rulemaking 
Committee, but did address the general issue of ORVs at Cape Hatteras 
National Seashore. Those comments fell into the following categories: 
Support or opposition for different levels of ORV access; options for 
specific elements of an ORV management plan; opinions on the meaning of 
the Seashore's enabling legislation; support for strict enforcement and 
penalties for violations of ORV regulations; concerns about visitor 
safety and beach driving; park values, including recreational surf-
fishing, enjoyment of wildlife and nature, opportunity for family 
bonding, and enjoyment of the park's beaches; potential impacts of ORV 
management on socioeconomics, visitor use and experience, wildlife and 
wildlife habitat, and topographic conditions; the recent U.S. District 
Court Order; the Interim Protected Species Management Strategy/
Environmental Assessment; and the proposed critical habitat 
designation.

[[Page 72318]]

Response

    The NPS is preparing an ORV Management Plan and associated 
environmental impact statement that will evaluate a full range of 
reasonable alternatives for ORV management at Cape Hatteras National 
Seashore. The NPS will take these comments into consideration when 
preparing the plan.

Committee Membership

    The Secretary of the Interior has appointed the following primary 
and alternate members to the Committee:
    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 Island Homeowners Coalition, member Steven Kayota, 
alternate Vincenzo Sanguineti (Hatteras Island Homeowners Coalition).
    4. Hatteras Village Civic Association, member Roy Kingery.
    5. Hatteras Landing Homeowners Association, Inc., member Jeffrey 
Wells.
    Commercial Fishermen:
    6. North Carolina Fisheries Association, Michael Peele, alternate 
William Foster (North Carolina Fisheries Association).
    Environmental and Natural Resource Conservation Groups, State/
Regional/Local:
    7. Southern Environmental Law Center, member Derb Carter, alternate 
Michelle Nowlin (Southern Environmental Law Center).
    8. North Carolina Audubon, member Walker Golder, alternate Sidney 
Maddock (National Audubon Society).
    Environmental and Natural Resource Conservation Groups, National:
    9. Coalition of National Park Service Retirees, member Robert 
Milne, alternate Dwight Rettie (Coalition of National Park Service 
Retirees).
    10. Defenders of Wildlife, member Jason Rylander, alternate Andrew 
Hawley (Defenders of Wildlife).
    11. Natural Resources Defense Council and The Wilderness Society, 
member Destry Jarvis, alternate Leslie Jones (The Wilderness Society).
    12. The Nature Conservancy, member Sam Pearsall, alternate Aaron 
McCall (The Nature Conservancy).
    Government, County:
    13. Dare County, member Warren Judge, alternate Lee Wrenn (Dare 
County).
    14. Hyde County, member David Scott Esham, alternate Eugene 
Ballance (Hyde County).
    Government, Federal:
    15. Cape Hatteras National Seashore, member Michael Murray, 
alternate Thayer Broili (Cape Hatteras National Seashore).
    16. U.S. Fish and Wildlife Service, member Pete Benjamin, alternate 
David Rabon (U.S. Fish and Wildlife Service).
    Government, State:
    17. North Carolina Marine Fisheries Commission, member Wayne 
Mathis, alternate Sara Winslow (North Carolina Marine Fisheries 
Commission).
    18. North Carolina Wildlife Resources Commission, member David 
Allen, alternate Susan Cameron (North Carolina Wildlife Resources 
Commission).
    Tourism, Visitation, and Business organizations:
    19. Cape Hatteras Business Allies, member Judy Swartwood, alternate 
David Goodwin (Cape Hatteras Business Allies).
    20. Outer Banks Chamber of Commerce, member Scott Leggat, alternate 
Sam Hagedon (Outer Banks Chamber of Commerce).
    21. Outer Banks Visitors Bureau, member Carolyn McCormick, 
alternate Renee Cahoon (Outer Banks Chamber of Commerce).
    User Groups, OVR Use:
    22. North Carolina Beach Buggy Association, member Jim Keene, 
alternate David Joyner (North Carolina Beach Buggy Association).
    23. United Four Wheel Drive Associations, member Carla Boucher, 
alternate Lyle Piner (United Four Wheel Drive Associations).
    User Groups, Open Access:
    24. Outer Banks Preservation Association, member John Alley, 
alternate John Couch (Outer Banks Preservation Association).
    User Groups, Other Users:
    25. Cape Hatteras Bird Club, member Ricky Davis, alternate Raymond 
Moore (Cape Hatteras Bird Club).
    26. Cape Hatteras Recreational Alliance, member Jim Lyons, 
alternate Burnham Gould, Jr. (Cape Hatteras Recreational Alliance).
    27. Water Sports Industry Association, member Trip Forman, 
alternate Matt Nuzzo (Water Sports Industry Association).
    User Groups, Recreational Fishing:
    28. American Sportfishing Association, member Bob Eakes, alternate 
Patricia Doerr (American Sportfishing Association).
    29. Cape Hatteras Anglers Club, member Larry Hardham, alternate 
Robert Davis (Cape Hatteras Anglers Club).
    30. Recreational Fishing Alliance, member Patrick Paquette, 
alternate Ronald Bounds (Recreational Fishing Alliance).
    In accordance with the Federal Advisory Committee Act, 5 U.S.C. 
Appendix 2, copies of the Committee's charter will be filed with the 
appropriate committees of Congress and with the Library of Congress.
    Notice of First and Second Meeting: Notice is hereby given, in 
accordance with the Federal Advisory Committee Act (Pub. L. 92-463, 86 
Stat.770, 5 U.S.C. App 1, section 10), of the first and second meeting 
of the Negotiated Rulemaking Advisory Committee for Off-Road Vehicle 
Management at Cape Hatteras National Seashore. (See DATES section.)
    These, and any subsequent meetings, will be held for the following 
reason: to work with the National Park Service to assist in potentially 
developing special regulations for ORV management at Cape Hatteras 
National Seashore.
    The proposed agenda for the first and second meeting of the 
Committee may contain the following items: FACA Ethics Briefing, 
Managing Administrative Record, Review FACA Charter, Discuss and 
Approve Groundrules, NEPA Update, Subcommittee Update, Alternatives 
Discussion, Review and Approve Workplan, and Public Comment. However, 
the Committee may modify its agenda during the course of its work. The 
meetings are open to the public. Interested persons may provide brief 
oral/written comments to the Committee during the public comment period 
of the meeting or file written comments with the Park Superintendent.

Certification

    I hereby certify that the administrative establishment of the 
Negotiated Rulemaking Advisory Committee for Off-Road Vehicle 
Management at Cape Hatteras National Seashore 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.

    Dated: November 26, 2007.
Dirk Kempthorne,
Secretary of the Interior.
[FR Doc. 07-6152 Filed 12-19-07; 8:45 am]
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