Federal Register, Volume 77 Issue 130 (Friday, July 6, 2012)

[Federal Register Volume 77, Number 130 (Friday, July 6, 2012)]
[Rules and Regulations]
[Pages 39927-39938]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-16466]

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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 4

[NPS-WASO-REGS-9886; 2465-SYM]
RIN 1024-AD97

Vehicles and Traffic Safety--Bicycles

AGENCY: National Park Service, Interior.

ACTION: Final rule.

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SUMMARY: This rule amends current regulations for designating bicycle
routes and managing bicycle use within park units throughout the
National Park System. It authorizes park superintendents to open
existing trails to bicycle use within park units under specific
conditions, in accordance with appropriate plans and in compliance with
applicable law. It also retains the current requirement for a special
regulation to authorize construction of new trails for bicycle use
outside developed areas.

DATES: The rule is effective August 6, 2012.

FOR FURTHER INFORMATION CONTACT: Russel J. Wilson, Regulations Program
Manager, 1849 C Street NW., MS-3122, Washington, DC 20240, (202) 208-
4206.

SUPPLEMENTARY INFORMATION:

Background

Bicycling is a popular recreational activity in national parks.
Bicycle riders of all skill levels and ages enjoy riding on park roads
and designated bicycle trails for beautiful scenery, exercise, and
adventure. People bicycle alone, with friends, or with family--they
bicycle to visit points of interest, to be healthy, and because it's
fun.
The National Park Service (NPS) believes that, with proper
management, bicycling is an appropriate recreational activity in many
park areas. In other areas, due to safety or other concerns, bicycling
may not be appropriate. This rule provides park superintendents with a
more efficient and effective way to determine whether opening existing
trails to bicycles would be appropriate in the park unit they manage.
The rule also offers guidance on trail sustainability and bicycle
safety.
Regulations promulgated in 1987 provide for the use of bicycles on
park roads, in parking areas, and on routes designated for bicycle use
(36 CFR 4.30). According to the 1987 regulations, a special regulation,
specific to the individual park, must be adopted if bicycles are to be
used on routes outside a park's developed areas. The NPS adopted the
special regulation requirement to ensure maximum public input on
decisions to allow bicycle use on routes outside of developed areas.

The Final Rule

For existing trails and for new trails located in developed areas,
this final rule requires enhanced planning and environmental compliance
procedures and public notice and participation, but does not require
promulgation of special regulations. In addition, existing trails may
not be designated for bicycle use if doing so would result in a
significant impact on the environment. The NPS will continue to require
the promulgation of special regulations before constructing bicycle
trails outside of developed areas. The rule does not affect other
existing statutory or regulatory protections for park resources and
enhancement of visitor experiences.
Section 8.2 of NPS Management Policies 2006 states that ``enjoyment
of park resources and values by the people of the United States is part
of the fundamental purpose of all [national] parks'' and that the NPS
``will maintain within the parks an atmosphere that is open, inviting,
and accessible to every segment of American society.'' However, the
policies emphasize that the NPS ``will allow only uses that are (1)
appropriate to the purpose for which the park was established, and (2)
can be sustained without causing unacceptable impacts. Recreational
activities and other uses that would impair a park's resources, values,
or purposes cannot be allowed.'' NPS Management Policies 2006, 8.1.1.
NPS Management Policies establish a process for determining whether a
particular use is appropriate in a park unit. NPS Management Policies
2006, 8.1.2.
In compliance with these policies, the final rule places greater
emphasis on an individual park planning process that incorporates
environmental compliance procedures and input from the public, rather
than the special rulemaking

[[Page 39928]]

process, to decide whether or not bicycle use is appropriate on a trail
in a unit of the National Park System. The designation of a particular
trail for bicycle use must be considered as part of a park plan
addressing trail use, such as a recreation use plan. The final rule
also requires that, at a minimum, the plan:
Evaluates the suitability of existing trail surface and
soil condition for accommodating bicycle use, or prescribes a
sustainable trail design for the construction of new trails.
Considers life cycle maintenance costs, safety
considerations, strategies to prevent or minimize user conflict,
methods of protecting natural and cultural resources, integration with
commercial services and alternative transportation systems (if
applicable).
The rule utilizes the public outreach aspects of the National
Environmental Policy Act (NEPA) process by requiring, at a minimum,
preparation of an Environmental Assessment (EA) for any decision to
open existing hiking or horse trails to bicycles. The rule precludes
the use of categorical exclusions for opening trails to bicycle use.
The rule also:
Requires a trail-specific analysis in the EA or
Environmental Impact Statement (EIS). In order to authorize bicycle use
on an existing trail, the EA must result in a finding of no significant
impact. When an EIS is prepared, the trails must be specifically
identified and evaluated within the EIS, and the Record of Decision, or
an amended Record of Decision, must document that there will be no
significant impacts. See NPS Management Policies 2006, 2.3.1.7.
Requires that the superintendent must provide the public
with notice of the availability of the EA and at least 30 days to
review and comment on EAs for bicycle use.
When there are no significant impacts, requires that
public notice of the superintendent's determination (made pursuant to
paragraph (d)(3) of the final rule) be published in the Federal
Register. If the determination itself is not published in full, then
the notice must state where to view or how to obtain a copy of the
determination. This Federal Register notice must provide the public a
30-day period to consider and comment on the determination prior to the
park opening any trails for bicycle use.
The comment period for the written determination will be
particularly important because it will allow for public comment
contemporaneous with the decision to implement an earlier planning
process.
Requires that the superintendent, after considering public
comment, submit to the appropriate NPS Regional Director for approval
in writing the superintendent's determination that bicycle use on a
trail is consistent with the protection of the park area's natural,
scenic and aesthetic values, safety considerations, and management
objectives and will not disturb wildlife or park resources. See NPS
Management Policies 2006, 1.4.7.1 (discussing unacceptable impacts to
NPS park resources). The requirement for Regional Director approval is
a change from the proposed rule.
The final rule clarifies that all planning and compliance
must be completed before designation of trails for bicycle use.
The rule also requires that the trail-specific, rigorous
planning and compliance process applies to new trails, and continues to
require promulgation of a special regulation for construction of a new
bicycle trail outside developed areas.
For existing trails, the final rule prohibits bicycle use
where significant impacts would occur.
For existing trails, even when the environmental
compliance analysis has found no significant impacts, the appropriate
NPS Regional Director may decide that bicycle use is not consistent
with the resources, values, and purposes of the park area, and, after
considering public comment on the written determination required by the
final rule, withhold approval.
By adopting these requirements, the rule meets the public
participation objectives of the NPS without the necessity for
promulgating a special regulation in some cases.
Unlike the proposed rule, the final rule does not require that
notice of an EA for bicycle use be published in the Federal Register.
The NPS believes that NPS Director's Order-12, Conservation Planning,
Environmental Impact Analysis, and Decision-Making, and the Department
of the Interior NEPA regulations ensure a robust public involvement and
notification process without requiring a Federal Register notice.
However, the final rule will continue to require that the notice of the
availability of the superintendent's written determination be published
in the Federal Register before the appropriate NPS Regional Director
approves the determination. Because the final rule allows the
designation of existing trails for bicycle use without rulemaking only
where there are no significant impacts, the final rule departs from the
proposed rule and does not apply 36 CFR 1.5 to the designation of
trails for bicycle use, or (for reasons discussed below) to closures,
conditions, limits and restrictions to bicycle use.
The NPS uses NEPA not only as a tool to look at whether to
designate an existing trail or build a trail for bicycle use, but also
as a guide in the larger aspects of NPS decision-making. Most NEPA
requirements are compatible with or identical to requirements for sound
management planning. In most cases, NEPA requirements are easily
integrated into the planning process, and they provide the information
that decision-makers need to make correct choices. Rather than create
additional burdens in the planning process, following NEPA requirements
should help facilitate prompt and well-informed decision-making. See
NPS Handbook for Environmental Impact Analysis, Sec. 1.5B. In some
instances, particularly when bicycle trail planning and NEPA compliance
is limited in scope, the superintendent's determination may also be
integrated with and completed concurrently with the planning and
compliance process.
The NPS will continue to prohibit bicycle use in eligible, study,
proposed, recommended, and designated wilderness areas as required by
NPS policy. In accordance with Section 6.3.1 NPS Management Policies
2006, all categories of wilderness, including eligible, study, proposed
and recommended wilderness, will be managed with the same level of
protection and under the same requirements as designated wilderness.
Therefore, a superintendent may not propose either use of bicycles on
existing trails or propose new bicycle trails on any lands that meet
the Management Policies definition of wilderness unless this policy is
specifically waived in writing by the Secretary, the Assistant
Secretary, or the Director.
Paragraph (b) of the rule addresses bicycle use on administrative
roads. The rule clarifies that an administrative road closed to motor
vehicle use by park visitors is also closed to bicycle use unless the
superintendent makes a written determination and opens the road to such
use. Rather than having the determination address the general criteria
for managing public use under 36 CFR 1.5 as proposed (73 FR 76987,
December 18, 2008), the final rule directs that the superintendent's
written determination for opening an administrative road must address
the criteria required for bicycle route designation under the existing
36 CFR 4.30 regulations. The same determination--that bicycle use is

[[Page 39929]]

consistent with the protection of the park area's natural, scenic and
aesthetic values, safety considerations, and management objectives and
will not disturb wildlife or park resources--is required for
authorizing bicycle trails in this rule.
After designating an administrative road as open, the
superintendent may find it necessary to impose certain limits or
restrictions on the use of bicycles on administrative roads to address
safety considerations, avoid visitor use conflicts, or protect park
resources and values. Paragraph (f) of the final rule clarifies and
strengthens the superintendent's authority to close, limit, restrict,
or impose conditions on bicycle use or terminate a closure or
restriction on any trail or area designated as open for bicycle use,
including administrative roads.
Although state law is already adopted in Part 4, specifically at 36
CFR 4.2 ``State law applicable,'' paragraphs (g)(2) and (h)(6) of the
final rule explicitly provide that state laws are adopted and apply to
bicycle use. This is consistent with the NPS's response to public
comments on bicycle use in its 1987 rulemaking:

Several persons submitted comments indicating that various
issues involving the use of bicycles such as speeding, reckless
operation, conflicts with pedestrian use, operation against traffic,
etc., were not specifically addressed by this section. The NPS
intends such problems to be resolved by applying State law or
paragraph (c) of this section [the provisions that now appear in
paragraph (g) of this rule] which makes a bicycle operator subject
to most of the other traffic regulations in Part 4.

52 FR 10675, April 2, 1987.

The rule eliminates the term ``special use zone'' because this term
is no longer used in NPS planning documents and therefore has created
unnecessary confusion in interpreting its meaning within the context of
this regulation.
The NPS recognizes that some parks have completed bicycle trail
planning or may have bicycle planning in progress that does not meet
the new procedures in this rule for designation of trails without
rulemaking. As stated, this rule is intended to provide a more
efficient and effective way to determine whether opening existing
trails to bicycles would be appropriate. Parks that have completed the
planning process may still authorize bicycle use by supplementing their
planning and compliance to conform to this rule or by concluding with a
special regulation. This includes existing trails, provided that the
appropriate NEPA document concludes that such use will have no
significant impacts. Existing NPS special regulations authorizing
bicycle routes, and routes in developed areas that have been designated
through a written determination, remain in effect, and the new rule
does not require that they be reissued or reauthorized.

Planning Topics

Trail Sustainability

NPS Management Policies 2006 describe backcountry as ``primitive,
undeveloped portions of parks. This is not a specific management zone,
but rather refers to a general condition of land that may occur
anywhere within a park.'' NPS Management Policies 2006, 8.2.2.4. NPS
Natural Resource Management Reference Manual 77 (RM
77) (2006) offers comprehensive guidance to NPS employees
responsible for managing, conserving, and protecting the natural
resources found in National Park System units. To prevent trail
deterioration, RM 77 counsels that backcountry trail corridors
be sustainable:

Sustainability of backcountry trail corridors is defined as the
ability of the travel surface to support current and anticipated
appropriate uses with minimal impact to the adjoining natural
systems and cultural resources. Sustainable trails have negligible
soil loss or movement and allow the naturally occurring plant
systems to inhabit the area, while allowing for the occasional
pruning and removal of plants necessary to build and maintain the
trail. If well-designed, built, and maintained, a sustainable trail
minimizes braiding, seasonal muddiness and erosion. It should not
normally affect natural fauna adversely nor require re-routing and
major maintenance over long periods of time.

Minimizing impacts to natural and cultural resources is a
foundation of NPS management decisions and a management responsibility.
The NPS Organic Act (16 U.S.C. 1, et seq.) mandates conservation of
park resources for future generations and precludes impairment of park
resources, and these requirements can best be met through sustainable
trail design and practices.
Trampling of vegetation, compaction and erosion of trail tread
materials, and trail muddiness are impacts associated with trail
corridors. Trail erosion causes gullies and can cause impacts
immediately adjacent to the trail corridor by exposing tree roots.
Erosion of trail materials also dries out the soil substrate adjacent
to trails, which is critical to ground cover, grasses, and understory
plant health and success, causing further impacts and trail widening.
Eroded materials can also be deposited downhill from trails and enter
aquatic systems causing changes to water quality and related impacts.
See ParkScience, 28(3), The Science of Trail Surveys: Recreation
ecology provides new tools for managing wilderness trails, p. 60-65,
Marion, Wimpey and Park, available online at http://www.nature.nps.gov/ParkScience/index.cfm?ArticleID=544.
To ensure that trails are sustainable, the NPS recommends an
average trail profile grade of 10-12 percent, a maximum trail profile
grade of 12-15 percent, and the relationship between the trail profile
gradient and prevailing cross slope grade in the immediate vicinity
along the trail centerline at less than one quarter (``high slope
alignment angle'' (Marion, Jeffrey L., 2006)). Design techniques such
as grade reversals and rolling contour trails will increase
sustainability by ensuring prompt drainage of rainfall and snowmelt off
the trail. Construction techniques such as retaining walls,
switchbacks, stone paving, and bridges can improve trail surfaces,
reduce impacts, increase sustainability, and improve the visitor
experience. Trail project guidelines may be augmented by state-of-the-
art scientific research and landscape architectural criteria to
increase sustainability. See Developing Sustainable Mountain Trail
Corridors: An Overview, National Park Service, Denver, Colorado. 1991;
Guide to Sustainable Mountain Trails, Trail Assessment, Planning &
Design Sketchbook (Sketchbook (2007)), National Park Service, Denver,
Colorado. 2007 edition, and other resources available online at the NPS
Sustainable Trails page at http://www.nps.gov/dsc/trails.htm.
The NPS must consider the cost of initial construction as well as
on-going maintenance in its management decisions. Therefore, the NPS
must carefully factor costs into all analyses of trailside decisions
that enhance sustainability and minimize impacts to natural and
cultural resources, and consider cost variables in the NEPA compliance
processes.
The Sketchbook (2007) makes the case that the sustainability of
backcountry trails is as much an art as it is a science. To ensure
quality and sustainability, it is essential that the expertise of an
interdisciplinary team of professionals with experience in backcountry
trails be utilized in the NEPA compliance processes. Trails literature
since the Civilian Conservation Corps era has emphasized that
interdisciplinary teams are best qualified to provide trail
sustainability expertise for trail projects. Landscape architects,
civil engineers, soil scientists, natural resource specialists,
cultural resource specialists, botanists, biologists, interpreters,
restoration ecologists, trail design

[[Page 39930]]

specialists, and others are important members of interdisciplinary
backcountry trail teams.

Safety--Bicycle Helmet Use in National Parks

In 1987, states began adopting bicycle laws which require children
18 years of age or younger to wear a helmet. Currently, 22 states and
the District of Columbia have enacted these laws. Thirteen states have
no state helmet laws (Arkansas, Colorado, Idaho, Indiana, Iowa,
Minnesota, Nebraska, North Dakota, South Dakota, South Carolina, Utah,
Vermont, and Wyoming). Studies show that helmet use while riding
decreases the risk of head and brain injury by 70-88 percent (Thompson
et al., 1989) and facial injury to upper and mid-face areas by 65
percent (Thompson et al., 1996). See http://depts.washington.edu/hiprc/practices/topic/bicycles/helmeteffect.html.
Among parks where statistically meaningful injury data is
available, bicycling is one of the leading causes of injuries--
particularly in urban parks and parks frequented by local visitors. To
enhance the safety of visitors who bicycle in parks, the adoption of
state law in paragraph (g)(2) includes state helmet-use laws and
regulations, and parks will enforce these requirements. Also, as part
of an effort to support the Healthy Parks, Healthy People initiative
and safe adventures, park superintendents should consider using their
authority under 36 CFR 1.5 to mandate helmet use where state laws do
not exist, particularly in parks where bicycle use is prevalent in
highly populated or other at-risk areas. This effort by superintendents
would be consistent with NPS Management Policies, which state:

The Service will strive to identify and prevent injuries from
recognizable threats to the safety and health of persons and to the
protection of property by applying nationally accepted codes,
standards, engineering principles, and the guidance contained in
Director's Orders * * * and their associated reference manuals * *
*. These management policies do not impose park-specific visitor
safety prescriptions. The means by which public safety concerns are
to be addressed is left to the discretion of superintendents and
other decision-makers at the park level. * * *

NPS Management Policies 2006, 8.2.5.1.

Both the National Highway Traffic Safety Administration (NHTSA) and
Centers for Disease Control and Prevention, partners in traffic injury
prevention, support the use of bicycle helmets by all bicyclists, every
ride. Bicycle helmets are proven to be the single most important piece
of safety equipment to prevent head injuries and fatalities resulting
from bicycle crashes. Despite the fact that nearly 60 percent of all
fatal bicycle crashes involve head injuries, only about 19 percent of
adults and 15 percent of children wear bicycle helmets. According to
NHTSA, in 2009 the average age of bicyclists killed and injured was 41
and 31 years old, respectively. This emphasizes the need for all
riders, children and adults, to wear a bicycle helmet. NHTSA advocates
that adults should be role models by following the same safety
principles that they insist be followed by their children. See http://www.cdc.gov/program/performance/fy2000plan/2000xbicycle.htm; and
National Strategy for Advancing Bicycle Safety, http://www.nhtsa.gov/people/injury/pedbimot/bike/bicycle_safety/index.htm.

Other Planning Considerations

Concession contracts and commercial use authorizations (CUA) give
the NPS the ability to regulate commercial bicycle tours. CUAs may be
issued to authorize a qualified person to offer suitable commercial
services to park area visitors if the superintendent determines that
the commercial services will have minimal impact on the park area's
resources and values; are consistent with the purposes for which the
park area was established; and are consistent with all applicable park
area management plans, policies and regulations. A decision to issue a
CUA (or to limit the number of CUAs to be issued) must be made in
accordance with park area planning policies and procedures, including
compliance with NEPA. If a concession contract authorizes the provision
of bicycle services or if CUAs are issued, the NPS may include
operating standards that limit numbers, require insurance, specify
safety standards, and require reports from the operators to help the
NPS monitor the effects of the use. Superintendents should refer to the
NPS, November 18, 2005, Interim Guidelines for Commercial Use
Authorizations.
The planning process can help determine if bicycling opportunities
may increase overall visitation, generate youth interest in parks, or
expand appreciation for our national parks. Proper planning with public
participation also provides the opportunity to consider a range of
alternatives to avoid or minimize impacts on natural, historic, and
cultural resources and reduce conflicts with other user groups. No
matter what type of planning is conducted, ``(i)n its role as steward
of park resources, the National Park Service must ensure that park uses
that are allowed would not cause impairment of, or unacceptable impacts
on, park resources and values.'' NPS Management Policies 2006, 1.5.

Summary of and Responses to Public Comments

The NPS published the proposed rule at 73 FR 76987 (December 18,
2008) and a correction was made in 73 FR 78680 (December 23, 2008). We
accepted comments through the mail, hand delivery, and through the
Federal eRulemaking Portal at http://www.regulations.gov. Comments were
accepted through February 17, 2009, and a total of 6,576 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 we have made from the proposed rule to the final rule based
on the analysis of the comments.

Impacts to Natural Resources

1. Comment: The proposed rule should be rejected because bicycle
use on trails increases soil erosion and damages trails and nearby
vegetation. The proposed rule does not adequately protect natural
resources (including wildlife and wildlife habitats) from adverse
impacts and would dramatically change the character of the parks.
Bicycle use causes greater impacts to wildlife and habitats than other
uses, such as hiking and horseback riding.
Response: The NPS has considered this issue and reviewed studies
that gauge the environmental impacts of bicycling. It should be noted
that this rule does not authorize any trails for bicycle use. This rule
revises the procedure for authorizing bicycle use on certain existing
trails. Individual parks that use these procedures will have to
demonstrate, consistent with NPS Management Policies 2006, 1.4.7.1,
that authorizing bicycle use will not cause unacceptable impacts to
natural resources, including soils, vegetation, and wildlife.
Generally, impacts to soils, vegetation, and wildlife from bicycles are
similar to impacts from hiking and less than impacts from horseback
riding or motorized vehicle use. When a trail is sustainably located,
designed, and constructed, it can support low-impact uses such as
hiking and biking with minimal maintenance and with no degradation of
the natural resources.
The final rule requires, among other prerequisites for bicycle use,
a trail suitability determination for existing trails and the
sustainable design of new trails. Superintendents are required to

[[Page 39931]]

follow NPS Management Policies 2006, including Chapter 8, Use of the
Parks (see e.g., sections 8.1 through 8.2.2.4). This rule also provides
planning guidelines.
2. Comment: If bicycling on a trail is misused, abused, or
disruptive to the environment, the NPS should maintain the right to
shut the trail down through a process of public hearings.
Response: We agree, and the final rule provides superintendents
with a restriction and closure authority in paragraph (f) that is
independent of the general 36 CFR 1.5 ``Closures and public use
limits'' authority. This will allow superintendents to take actions to
mitigate or eliminate unforeseen safety issues, resource damage, or
other management problems should they arise. Public notice of limits,
restrictions, or closures must be provided under 36 CFR 1.7.
3. Comment: An EA should not be required for designating existing
trails for bicycle use because bicycles cause no significant
environmental impacts (including impacts upon soil and topography), and
cause less impacts than horseback riding and no more impacts than
hiking. Impacts from bicycle use can be decreased by effective NPS
management and visitor education.
Response: Because impacts from bicycle use can vary depending on
where a trail is located, an EA or an EIS with a specific finding of no
significant impact for a bicycle trail(s) is required to designate an
existing trail for bicycle use. When trails are sustainably located,
designed, and constructed, impacts are normally insignificant. However,
there may be cases where impacts are significant, including soil
erosion, safety, and conflicts with other visitors. Consequently, this
rule will preclude the use of a categorical exclusion for designating
existing trails for bicycle use.
4. Comment: The NPS should evaluate the impact of increased biking
and trail construction on wildlife, streams, and fisheries before
changing the existing rule which works well.
Response: This new rule clarifies and strengthens planning and NEPA
procedural requirements by which bicycle use may be considered on both
existing and newly constructed trails. The previous rule simply
required promulgation of a special regulation to allow bicycle use on
existing or new trails outside of a developed area. This revision
requires that bicycle use on trails must be addressed in a planning
document that addresses specific key criteria. Some of these criteria
are trail suitability or sustainable trail design, lifecycle
maintenance costs, safety considerations, methods to prevent or
minimize user conflict, and integration with commercial services and
alternative transportation systems (if applicable). Bicycle use must
also be addressed with a site-specific NEPA analysis. The site-specific
EA or EIS would address impacts to wildlife, streams, and fisheries
from increased bicycle use and trail construction.

Impacts to Visitor Use and Experience

5. Comment: Bicycle use should not be allowed on existing trails in
order to avoid conflicts and accidents with established users of such
trails (e.g. hikers, equestrians). Each trail should be limited to a
single use (e.g. bicycles, hiking, or horseback riding) to avoid user
conflicts. The NPS should be more concerned with the safety of hikers
and equestrians than the promotion of bicycle use. The proposed rule
does not adequately prevent user conflicts and ensure safety on multi-
use trails. The proposed rule will displace existing users of trails.
Response: The NPS is concerned with the safety of all park
visitors. This rulemaking places more emphasis on planning and impact
analysis and requires that safety and user conflict must be evaluated.
Specifically, the rule requires that an existing trail cannot be
designated for bicycle use unless it is determined that there will be
no significant impacts, including impacts to visitor safety. The final
rule also requires that ``safety considerations [and] methods to
prevent or minimize user conflicts'' be considered as part of the
planning process in paragraph (d)(1)(ii).
6. Comment: Bicycle use should be limited to existing paved roads
and should not be permitted on any trails. There are many trails open
to mountain bike use in national forests and other federally-owned
lands.
Response: Bicycling is a family-oriented activity that contributes
to the health and well-being of those that enjoy it, and the NPS
believes that bicycle use need not be limited to existing paved roads.
In many park areas bicycling on various types of trails, fire roads,
abandoned railroad right-of-ways, and canal towpaths is an appropriate
method of touring, sightseeing, and otherwise enjoying National Park
System resources. In other park areas bicycling may not be appropriate.
This determination is best made at the park level with appropriate NPS
regional level review. Currently, the NPS has a variety of bicycle use
trails in a variety of park areas around the country, including Golden
Gate National Recreation Area, Saguaro National Park, Grand Teton
National Park and Delaware Water Gap National Recreation Area.
7. Comment: Trails should be open to specific uses at assigned
times based upon the amount of traffic on the trails.
Response: This rule implements procedural changes that will provide
an opportunity to consider specific uses at assigned times and the
appropriateness of other local rules and mitigation measures during the
bicycle use planning process undertaken by the individual park areas.
8. Comment: The proposed rule should include rules of the road for
bicycle use on roads and trails open to other uses (e.g., hiking,
horseback riding). There should be a national standard for
``appropriate use'' of bicycles on backcountry trails and
administrative roads that complies with NPS Management Policies and
emphasizes slow-paced sightseeing rather than thrill-seeking at fast
speeds.
Response: This rule contemplates consideration of locally crafted
rules of the road and equipment restrictions during planning and
compliance with NEPA. Time-of-day or alternate-day authorization of
uses, one-way riding requirements on loop trails, and requiring
bicyclists to dismount and walk their bicycle through congested areas
are some options for consideration during planning processes. Paragraph
(f) of the rule also authorizes the superintendent to impose use
restrictions should the need arise. When implementing this rule,
individual parks may, for example, consider ways to accommodate the
safe use of bicycle trails for slow to moderate paced access,
sightseeing, and exercise. Generally speaking, thrill-seeking at fast
speeds would not be an appropriate activity in National Park System
units. This issue is also addressed in the trail sustainability
discussion of this rule and through NPS service-wide requirements in
paragraph (g)(1) and state requirements (where a state has laws that
regulate bicycle use) adopted in paragraph (g)(2).
9. Comment: All existing hiking trails should also be designated
for bicycle use in order to spread out the amount of traffic on certain
trails.
Response: This rule implements procedural changes to the process by
which bicycle trails may be authorized. For a number of reasons,
including safety and visitor conflicts, all existing hiking trails are
not appropriate for bicycle use. As the rule provides, whether an
existing trail is appropriate for such use is best determined through
an impact analysis of the activity as part

[[Page 39932]]

planning and environmental compliance on a park-specific, trail-
specific basis.

Policy and Compliance Issues

10. Comment: Bicycle use should be allowed in Wilderness Areas and
will not affect their wilderness qualities.

Response: Section 2(a) of the Wilderness Act states:

In order to assure that an increasing population, accompanied by
expanding settlement and growing mechanization, does not occupy and
modify all areas within the United States and its possessions,
leaving no lands designated for preservation and protection in their
natural condition, it is hereby declared to be the policy of the
Congress to secure for the American people of present and future
generations the benefits of an enduring resource of wilderness.

Section 4(c) of the Wilderness Act generally prohibits
mechanization within designated wilderness areas, stating that ``there
shall be * * * no use of motor vehicles, motorized equipment or
motorboats, no landing of aircraft, [and] no other form of mechanical
transport. * * *'' The Wilderness Act emphasizes that mechanization,
including mechanical transport, is not compatible with wilderness
qualities and is contrary to preservation of the wilderness character
of an area. As a result, the use of bicycles is already prohibited by
law in wilderness areas.
11. Comment: In order to comply with section 6.4.3.3 of NPS
Management Policies, the NPS should revise the proposed rule to clarify
that bicycle use is prohibited in eligible, studied, proposed,
recommended, and designated Wilderness Areas.
Response: The NPS will continue to prohibit bicycle use in
eligible, study, proposed, recommended, and designated wilderness areas
as a matter of NPS policy. In accordance with Section 6.3.1 of NPS
Management Policies 2006, all categories of wilderness, including
eligible, study, proposed, and recommended wilderness, will be managed
with the same level of protection and under the same requirements as
designated wilderness, unless specifically waived or modified in
writing by the Secretary, the Assistant Secretary, or the Director.
12. Comment: The proposed rule has no rational basis and it
discriminates against bicycle use by presuming with no scientific
justification that bicycle use has a greater potential to cause adverse
resource impacts than heavy animals like horses or pack stock.
Response: Similar to other uses in parks, bicycle use does have
impacts on resources and other visitor activities that must be
considered before allowing the use. Bicycle use also has different
types of impacts in park areas (such as safety concerns as a result of
speed differential) than horses and pack stock. Conflicts between
various user groups, including conflicts between hikers and
equestrians, hikers and bicyclists, equestrians and bicyclists, and
between bicyclists and other bicyclists, are well documented in social-
scientific studies and were well represented in the public comments
submitted on the proposed rule. See Federal Highway Administration
Report Number PD-94-031 (Moore 1994).
This rule addresses visitor use conflicts by requiring that an
existing trail cannot be designated for bicycle use unless it is
determined that there will be no significant impacts, including impacts
to visitor safety. The final rule also requires that ``safety
considerations [and] methods to prevent or minimize user conflicts'' be
considered as part of the planning process in paragraph (d)(1)(ii).
13. Comment: Publication in the Federal Register is not an adequate
means of notifying the public. The NPS should proactively notify
interested members of the public by email and USPS, in addition to
notification in local newspapers.
Response: The NPS agrees that notice in the Federal Register is not
the only approach to reach interested members of the public. The NPS
policy for NEPA compliance encourages parks to use various other
methods of notifying the public, including creating mailing lists of
interested persons, publication in local newspapers, and the use of new
media.
For NEPA compliance, the NPS guidelines for public involvement
require an early and open process to determine the scope of
environmental issues and alternatives to be addressed in an EA or EIS.
EAs are sent out for review by the interested and affected public,
including affected agencies and tribes, for a minimum of 30 days. The
notice that an EA is available for review will be published in a
visible location in the local newspaper of record and posted on the NPS
Web site. Publication in the Federal Register may also be appropriate
and will be considered by superintendents on a case-by-case basis.
Public notice is also accomplished by mail and anyone may request a
copy of the EA or EIS for specific bicycle trail designations in park
units. If you are interested in actions taking place in a particular
park, you can inform the park that you would like to be notified of any
proposed action or any environmental impact analysis that might be
prepared for that area. The NPS requires that draft EISs be available
for public review for a minimum of 60 calendar days from the day the
Notice of Availability (NOA) is published in the Federal Register.
In the final rule, the NPS has retained the requirement in the
proposed rule that an EA be open for public comment for a minimum of 30
days. In a change from the proposed rule, the NPS will not require that
the availability of the EA be published as a notice in the Federal
Register. The NPS will instead adhere to its existing guidelines for
public notice of the availability of an EA. The final rule also retains
the requirement in the proposed rule that, when rulemaking is not
required, a NOA of the superintendent's written determination be
published in the Federal Register with a 30-day public comment period.
It is our intent that this procedure should function similar to the
period of public comment provided for in rulemaking.
14. Comment: By allowing increased bicycle use in the parks, the
proposed rule violates the conservation mandate of the Organic Act ``to
conserve the scenery and the natural and historic objects and the
wildlife therein and to provide for the enjoyment of the same in such
manner and by such means as will leave them unimpaired for the
enjoyment of future generations.''
Response: The final rule clearly provides that bicycle use may be
allowed on existing trails only if the NPS has determined that there
will be no significant impacts to natural and cultural resources and
visitor enjoyment. This rule provides protection for resources and
values through more uniform and improved planning and NEPA procedures
before a bicycle trail designation. The NPS agrees that it cannot take
any action that would impair park resources in violation of its 1916
Organic Act. Accordingly, a non-impairment determination would be
necessary before any trail could be designated for bicycle use.
15. Comment: Government-to-government consultation with tribes is
required and cannot be satisfied by determining that tribes will not be
affected by the proposed rule.
Response: This rule implements procedural changes to the methods by
which bicycle routes are authorized at individual park areas and does
not make any changes to consultation requirements. The Council on
Environmental Quality (CEQ) regulations implementing NEPA require
agencies to contact affected Indian tribes and provide them with
opportunities to participate at various stages in the preparation of an
EA or EIS. The

[[Page 39933]]

Secretary of the Interior's Order No. 3317 (December 1, 2011) requires
meaningful consultation early in a planning process. The National
Historic Preservation Act requires consultation with Indian tribes
regarding places of traditional religious and cultural significance
within the area potentially affected by a proposed project activity or
program. Consultation is also required with tribes on the effects to
historic and sacred places on federal land. Should a park's proposal to
authorize bicycle use trigger consultation, the affected tribe(s) will
be consulted.
16. Comment: The proposed rule is subject to a categorical
exclusion under NEPA and does not require an environmental review
rising to the level of an EA or EIS.
Response: We agree. This regulation has been determined to be
categorically excluded under 43 CFR 46.210(i). No extraordinary
circumstances have been found under 43 CFR 46.215.
17. Comment: The proposed rule should require that the NPS comply
with NEPA before designating any trails for bicycle use.
Response: We agree. The proposed rule and the final rule require
that NEPA compliance be completed through an EA or an EIS evaluating
bicycle use on trails within the park unit, including the specific
trail(s) being considered, before the trail may be designated for
bicycle use.
18. Comment: Performing NEPA analysis concurrently with the process
of accepting public comments is illegal and inappropriate. The NPS
should reopen the public comment period for the proposed rule after
NEPA analysis is made available for review by the public.
Response: The rulemaking process is governed by the Administrative
Procedure Act, and the impact analysis process is governed by NEPA.
Nothing in either statute prohibits the NPS from analyzing the impacts
of a proposed rule concurrently with consideration of public comments
on that proposed rule. The NPS has conducted NEPA analysis subsequent
to receiving and analyzing comments on the proposed rule and determined
that the final rule is categorically excluded from NEPA under 43 CFR
46.210(i).
19. Comment: The rationale for requiring rulemaking for opening
existing backcountry trails to bicycle use applies today as it did when
the existing rule was published in 1987. The NPS should keep the
current rule to ensure transparency and public engagement in the
rulemaking process. The process set forth in the existing rule is
workable and should be maintained instead of the proposed rule which
would impose additional requirements upon the parks. The requirement of
a special regulation in the existing rule provides a needed safeguard
against damage to natural resources.
Response: Whether or not bicycle use is an appropriate activity in
a unit of the National Park System, and if so on what trail(s), should
be considered through an individual park's planning process. Parks can
accomplish this either in a specific plan for bicycle use in the park
or as part of another plan, such as a recreation use plan. The
designation of bicycle use on any particular trail should ideally be
considered as part of a comprehensive plan for trail use in a park
area, which also involves environmental compliance and input from the
public. This rule requires bicycle use planning as part of the
authorization process. The NPS believes that the rule achieves a
primary benefit of the special regulations process--public notice and
comment--by providing two opportunities for public input, while
eliminating the time consuming procedural requirements of the
rulemaking process when designating existing trails with no significant
impacts for bicycle use. The NPS would continue to require the
promulgation of special regulations for bicycle trails involving new
trail construction outside developed areas.

Park Planning and Management of Bicycle Use

20. Comment: The NPS should require the purchase of a permit or
season pass for bicycle use and use the receipts for trail maintenance.
Permits would help keep bicycle riders on designated trails and reduce
impacts to sensitive areas.
Response: Bicycle riders will pay entrance fees in those parks that
have an established entrance fee. Entrance fees are often used to
support trail construction and maintenance. The NPS does not believe
establishing a uniform, nationwide bicycle permit and fee in this rule
is appropriate. Consideration of such a fee may or may not be
appropriate at an individual park area and could be considered as a
part of that area's planning process.
21. Comment: The proposed rule transfers too much discretion and
decision-making authority to park superintendents which will lead to a
loss of uniformity in the way bicycle trails are designated and
managed. This could result in adverse consequences as superintendents
are vulnerable to political pressure and local pressure which lead to
decisions which are not in the best interests of the American taxpayer
and the National Park System.
Response: The proposed rule required a more uniform and improved
bicycle use planning and NEPA compliance (EA or EIS) with public notice
and comment, including review and approval by the respective NPS
Regional Office. In response to public comment, the final rule adds a
requirement that, before implementing a decision to designate a trail
for bicycle use, the respective Regional Director must approve in
writing the superintendent's written determination that bicycle use on
the specific park trail(s) is consistent with the protection of the
park area's natural, scenic and aesthetic values, safety
considerations, and management objectives, and will not disturb
wildlife or park resources. Except for new trails outside of developed
areas where rulemaking is required, notice of the written determination
must be published in the Federal Register with an opportunity for
public review and comment for at least thirty (30) days. Following
review of the comments, the respective Regional Director may consider
approving the determination. If the determination is approved, then the
superintendent would be authorized to designate the trail(s) for
bicycle use. The appropriate NPS Regional Director may instead decide
that bicycle use on a trail is not consistent with the resources,
values, and purposes of the park area and withhold approval--in which
case bicycle use would be prohibited.
22. Comment: The NPS should use the recently published ``Guide to
Sustainable Mountain Trails: Assessment, Planning & Design Sketchbook,
2007 Edition'' as the trail planning and design tool for mountain bike
trails. This would significantly improve achievement of sustainability
(minimum impact to natural and cultural resources) and the least cost
over the long term. Proposed design and construction techniques should
be transparent and open to public review and comment.
Response: We agree. The NPS supports and encourages the use of the
Sketchbook (2007) as a guide for assessing, planning, designing, and
implementing trails with minimum impact to natural and cultural
resources at a lower cost for all trails in National Park System units.
The Sketchbook (2007) and other resources are available online at the
NPS Sustainable Trails page at http://www.nps.gov/dsc/trails.htm.
The Sketchbook (2007) presents a rational and sensible process for:
Assessing existing trails for sustainability criteria; planning,

[[Page 39934]]

establishing and designing new trails; and maintaining, rehabilitating
and armoring trails to bring them up to sustainable condition. The
Sketchbook (2007) builds upon the language of RM 77, which
defines sustainability of natural surface trails, and explains the
purpose and means of achieving it. Using the Sketchbook (2007) as the
trail planning and design tool reference for backcountry trails would
significantly improve sustainability (minimum impact to natural and
cultural resources) at a lower cost over the long term. The Sketchbook
(2007) was written for use by trail planners for use on all trails, not
just hiking and equestrian trails, and principles in the Sketchbook
(2007) can be applied to create new backcountry bicycle trails or to
adapt existing hiking and equestrian trails for bicycle use. Graphics
in the Sketchbook (2007) support and illustrate the concepts presented.
The interdisciplinary team for each park or trail project should
apply the NPS sustainable trail principles and guidelines generally,
but sufficiently so that the proposed design and construction
techniques can be available for comment as a part of the NEPA process.
The Sketchbook (2007) shows a hierarchy for design solutions on page
51, which can be a starting point for the interdisciplinary team when
developing alternatives. The NPS will continually look for best ideas
and best practices to promote sustainable trail design and maintenance.
23. Comment: The proposed rule should include requirements for
monitoring and evaluating the resource impacts and visitor use
conflicts caused by opening trails to bicycle use. Monitoring records
should be open to the public upon request.
Response: The final rule requires that planning for bicycle use
includes the consideration of methods for protecting natural and
cultural resources. Monitoring for resource impacts is a key component
of this requirement. NPS monitoring records are generally open to the
public and available on request.
24. Comment: The proposed rule should be abandoned because the NPS
does not have the funding and staff needed to effectively enforce,
monitor, and maintain the designation of additional trails for bicycle
use. Accordingly, the NPS will not be able to meet the needs of public
safety and protect natural and cultural resources. The NPS should
evaluate the costs of implementing the proposed rule, particularly of
rescue and medical response, which is necessary for visitor access to
the backcountry. Mountain bike damage in parks costs taxpayers and
agencies thousands of dollars per year in additional policing and
repairs.
Response: This rule changes the process for authorizing bicycle
trails at individual parks. Issues such as funding, staffing, costs,
monitoring, enforcement, and emergency medical services, and whether it
is provided by the NPS or others, are best resolved through planning
and impact analysis on a park-specific, trail-specific basis. The
rule's planning requirements ensure that these issues will be analyzed.
The NPS recognizes that trails require maintenance and policing;
however, bicycle use does not necessarily significantly increase costs
for maintenance or ranger services if the trails are well planned and
constructed. The NPS will not approve any bicycle use that cannot be
properly managed.
The NPS Office of Public Health data from Golden Gate National
Recreation Area (2004-2011), a National Park System unit that allows
bicycling on park roads and also on backcountry trails, recorded 445
biking accidents. On-road accidents accounted for 90 percent of the
total; off-road (mountain) biking 5 percent; and 5 percent were
unspecified. Of the road accidents, 20 percent were with rented
bicycles.
25. Comment: The proposed rule should stipulate that where two or
more parks share one or more common boundaries (e.g., federal and
state), all of the adjoining park units must agree before bicycle use
is allowed in that area.
Response: The NPS generally agrees, but believes this situation
will only arise in a very limited number of circumstances. Section
8.1.2 of NPS Management Policies 2006 requires that the NPS
``coordinate with appropriate state authorities regarding activities
that are subject to state regulation or to joint federal/state
regulation.'' The rule's planning requirements will ensure that, where
it exists, the issue will be considered.
26. Comment: The proposed rule does not require comprehensive
recreation planning and there are no existing NPS planning standards
for the development of such plans.
Response: This final rule establishes minimum requirements for
bicycle use planning. The current regulations simply require
promulgation of a special regulation to allow bicycle use on existing
or new trails outside of a developed area. This revision requires that
not only must bicycle use on trails be addressed in a planning document
which will evaluate key planning criteria (such as sustainable trail
design, lifecycle maintenance costs, safety considerations, methods to
prevent or minimize user conflict, and integration with commercial
services and alternative transportation systems (if applicable)),
bicycle use must also be addressed by a site-specific NEPA analysis.

Structure and Clarity of Proposed Rule

27. Comment: Section 4.30(e) of the proposed rule suggests that
existing trails are presumed to be open to bicycle use unless and until
a superintendent closes them pursuant to 36 CFR 1.5 and 1.7. The
proposed rule should be revised to clarify that bicycle use on existing
or new trails will not be permitted unless and until the requirements
of 36 CFR 4.30 are met.
Response: That was not the intent, and in the final rule the NPS
has added the phrase ``[b]efore [designating a trail for bicycle use]
the superintendent must ensure that all of the following requirements
[of Sec. 4.30] have been satisfied'' to paragraph (d) to clarify that
designating bicycle use on existing or new trails will not be permitted
unless and until the requirements of 36 CFR 4.30 are met.
28. Comment: The designation of new trails for bicycle use outside
of developed areas should not require the promulgation of a special
regulation, but instead should be treated the same as designating
existing trails for bicycle use. New trails offer the greatest
opportunity to mitigate environmental and social impacts.
Response: The NPS agrees that constructing new trails using
sustainable principles and guidelines provides opportunities to
mitigate environmental impacts adjacent to the trail and could provide
separation of user groups and consequently reduce conflicts.
Nevertheless, constructing trails in undeveloped areas of a park can
have significant impacts and result in significant long-term
modification in the resource management objectives of a park area.
Accordingly, the NPS believes that new trails for bicycle use outside
of developed areas should continue to be authorized only through
special regulations.
29. Comment: The proposed rule could allow bicycle use on a new
trail outside of developed areas without a special regulation. This
could happen if a new trail is initially designated for non-bicycle
uses only (e.g., hiking) and then, once built and deemed an existing
trail, is designated also for bicycle use. This loophole should be
closed.
Response: Although the commenter is correct that a special
regulation may not be required in such circumstances, we believe that
the process required under the regulations remains fully protective

[[Page 39935]]

of park resources and will fully engage the public in any decision to
designate such a trail. A decision to build a new trail for any non-
biking purpose (e.g., hiking) would still have been subject to
appropriate NEPA compliance. Later, if a designation of that trail for
bicycling use is to be made, this regulation requires specific bike use
planning, compliance with NEPA (including public notice and comment),
and a written determination that park resources will be protected
(including public notice and comment) by the superintendent and
approved by the respective Regional Director. To the extent the
commenter is suggesting that some park officials might seek to utilize
such a process to avoid the rulemaking requirement, although we believe
that is unlikely, the required processes will ensure that the public is
fully engaged and the potential for controversy as a result is itself a
check on any such misuse. Accordingly, we have declined to adopt this
recommendation in the final rule.
30. Comment: The proposed rule should provide guidance on what
types of uses would trigger federal rulemaking under the criteria set
forth in 36 CFR 1.5(b).
Response: In a change from the proposed rule, the NPS does not
intend 36 CFR 1.5(b) to apply to the designation of trails for bicycle
use under 36 CFR 4.30, and has accordingly deleted the reference to 36
CFR 1.5(b) in the regulatory text. The final rule authorizes
designation of existing trails without rulemaking, if the enhanced
planning and compliance requirements have been met, including public
notices and opportunities for public comment, and if there are no
significant impacts. The NPS believes that this requirement, in
addition to a written determination that bicycle use on the trail is
consistent with the protection of the park area's natural, scenic and
aesthetic values, safety considerations and management objectives, and
will not disturb wildlife or park resources, make the application of 36
CFR 1.5 to the designation of bicycle use on existing trails repetitive
and unnecessary.
31. Comment: The proposed rule should include a definition of
``administrative road'' and distinguish between administrative roads
within and outside of developed areas. Designation of bicycle use on
administrative roads which are closed to the public and outside of
developed areas should require public comment and a decision according
to NEPA. The proposed rule should state that administrative roads are
closed to bicycle use until opened.
Response: The rule defines administrative roads as ``roads closed
to motor vehicle use by the public, but open to motor vehicle use for
administrative purposes'' (e.g., service roads, fire roads). The rule
provides that administrative roads may be designated for bicycle use
following a determination by the superintendent that such bicycle use
is consistent with protection of the park area's natural, scenic and
aesthetic values, safety considerations and management objectives, and
will not disturb wildlife or park resources. Once the rule is
effective, administrative roads are closed to bicycle use unless
opened. Opening an administrative road to bicycle use requires
compliance with NEPA, although under some circumstances a categorical
exclusion may apply. The NPS does not see a need to distinguish between
administrative roads within and outside of developed areas for the
purpose of allowing bicycle use. Roads wide enough to accommodate
vehicular traffic are generally capable of safely accommodating
multiple non-motorized user groups, and this must be specifically
determined by the superintendent in writing prior to designating
administrative roads for bicycle use.
32. Comment: The proposed rule should be amended to clarify that
designations can only be made after completion of the park planning
document referenced in paragraph (b)(1) and both of the 30-day public
review and comment periods referenced in paragraphs (b)(2) and (3).
Response: The NPS agrees and has made this change. The NPS intended
the proposed rule to require completion of the steps in paragraphs
(b)(1)-(3) before designation could occur. In the final rule, the NPS
has split the requirements of proposed paragraph (b)(3) into (d)(3) and
(d)(4)(i), and has added the phrase ``[b]efore [designating a trail for
bicycle use] the superintendent must ensure that all of the following
requirements [of Sec. 4.30] have been satisfied'' to paragraph (d) to
clarify that bicycle use on existing or new trails will not be
permitted unless and until the requirements of 36 CFR 4.30 are met.
33. Comment: The proposed rule should be amended to clarify that
the EA or EIS required under paragraph (b)(2) be performed on a trail-
specific (not park-wide) level.
Response: The final rule (now at paragraph (d)(2)) requires that an
impact analysis must be conducted on bicycle use in the park as well as
on the specific trails proposed to be designated for bicycle use. The
NPS declines to limit the scope of the impact analysis to only those
trails considered for bicycle use, as a broader analysis may be
required to address indirect and cumulative impacts, and avoid
segmentation of an action. For example, a park plan and associated NEPA
document may consider bicycle use among a wider range of visitor uses,
which would require an impact analysis beyond that suggested by the
commenter.
34. Comment: The 30-day public review and comment period after the
issuance of an EA under paragraph (b)(2) should be eliminated. This is
duplicative with the 30-day public review and comment period in
paragraph (b)(3) which is sufficient.
Response: The first opportunity for public comment on the EA, in
the final rule at paragraph (d)(2), is important and appropriate for
this regulation. The CEQ regulations require the NPS to involve
environmental agencies, applicants, and the public, to the extent
practicable, in preparing EAs. Moreover, the NPS encourages the public
to use this opportunity to make thoughtful, rational suggestions on the
impacts and alternatives in the EA. Some of the most constructive and
beneficial interaction between the public and the NPS occurs when
citizens identify or develop other reasonable alternatives or
mitigation strategies that the agency can consider and evaluate in the
EA process. The second opportunity for public comment provided by this
rule in paragraph (d)(4)(i), follows release of the superintendent's
written determination that bicycle use is consistent with the
resources, values, and purposes of the park area. Similar to the period
of public comment allowed for in rulemaking, it gives the public an
opportunity to comment on the agency's decision to implement the
bicycle use plan before the decision is made final.
In response to public comment, the final rule has eliminated the
requirement for publication of a Federal Register notice announcing the
first 30-day opportunity for public comment on the EA. The NPS will
instead follow its policy guidelines that encourage a variety of other
notification methods. However, because the written determination
process is an alternative to special regulation rulemaking, the NPS
will retain the Federal Register notice requirement to announce the
second 30-day opportunity for public review and comment on the
determination.

Socioeconomic Impacts

35. Comment: The proposed rule will improve opportunities for
biking in the

[[Page 39936]]

parks which will increase park visitation and provide economic benefits
to the parks and nearby communities.
Response: This rule changes the methods by which bicycle trails are
authorized at individual park areas. It does not actually designate a
bicycle trail in any park. Nevertheless, this rule will generate
positive benefits through procedural specificity and clarity and
improved management of bicycle use within parks.
36. Comment: The proposed rule will increase bicycle use in the
parks. This will have a negative economic impact as parks will lose
revenue from hikers and equestrians who will visit other areas where
they can enjoy the outdoors safely and in solitude, without
interference from mechanical devices.
Response: According to a U.S. Forest Service study, ``Updated
Outdoor Recreation Use Values on National Forests and Other Public
Lands.'' General Technical Report PNW-GTR-658. U.S. Department of
Agriculture, Forest Service (Loomis, J. 2005.), the net economic
benefits of mountain biking generally exceed those of either hiking or
horseback riding. Nevertheless, the rule provides that new bicycle use
on existing trails can be designated only if there will be no
significant impacts, including impacts to visitor safety and user
conflict. Therefore, any increased bicycle use resulting from this rule
can only happen if the park determines that the designation of bicycle
use will not impose significant impacts on other users, including
hikers and equestrians.

Changes From the Proposed Rule

After taking the public comments into consideration and after
additional review, the NPS made the following changes in the final
rule:

------------------------------------------------------------------------
36 CFR 4.30 paragraph in Substantive changes from the proposed rule in
the final rule the final rule
------------------------------------------------------------------------
(a)...................... No change.
(b)...................... Provision regarding administrative roads
moved from (d) to (b); superintendent's
determination required instead of 36 CFR 1.5
to designate for bicycle use.
(c)...................... Reserved.
(d)...................... Provision regarding existing trails moved
from (b) to (d); reference to 36 CFR 1.5
deleted.
(d)(1)................... Minimum requirements for plan established.
(d)(2)................... Requires evaluating the effects of bicycle
use on specific trail(s); Federal Register
notice requirement deleted.
(d)(3)................... Requirement of superintendent's determination
moved from (b)(3).
(d)(4)................... Introductory text added.
(d)(4)(i)................ 30-day public review and comment of
superintendent's determination moved from
(b)(3); no significant impact required; and
Regional Director must approve determination
by superintendent for designation.
(d)(4)(ii)............... Requires statement documenting bicycle use
cannot be authorized when there may be
significant impacts.
(e)...................... Provision regarding bicycle use on new trails
moved from (c) to (e); NPS sustainable trail
guidelines required.
(e)(1)................... Consolidated requirements from (c)(1) and
(c)(2)(ii); clarified requirements for
constructing new trails in parks' developed
areas.
(e)(2)................... Consolidated requirements from (c)(1) and
(c)(2)(i); clarified requirements for
constructing new trails outside of parks'
developed areas.
(f)...................... Superintendents given separate authority from
36 CFR 1.5 to impose or terminate closures,
restrictions or conditions.
(g)(1)................... Clarified applicability of Part 4 on roads
and trails; adds Sec. 4.15 exception.
(g)(2)................... Consolidates (f) and authority of 36 CFR 4.2
to clarify that state bicycle laws apply.
(h)(1)................... Clarified that off-road bicycling is
prohibited unless authorized; implicit in
proposed rule, explicit in existing
regulation at 36 CFR 4.30(a).
(h)(2)-(5)............... Renumbered as (h)(2)-(5) from (g)(1)-(4); no
other changes.
(h)(6)................... Specifies that violations of state law are
prohibited.
------------------------------------------------------------------------

Compliance With Other Laws and Executive Orders

Regulatory Planning and Review (Executive Orders 12866 and 13563)

Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs has determined that this rule is
not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.

Regulatory Flexibility Act (RFA)

The Department of the Interior certifies that this document will
not have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
This certification is based on information contained in the report
titled, ``Benefit-Cost/Unfunded Mandates Act Analysis, Small Business
and Regulatory Flexibility Act Analysis'' (U.S. Department of the
Interior, National Park Service, Environmental Quality Division)
available on-line at: http://www.nature.nps.gov/socialscience/docs/RegulatoryAnalyses2012.pdf.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

This rule is not a major rule under 5 U.S.C. 804(2), the SBREFA.
This rule:
a. Does not have an annual effect on the economy of $100 million or
more.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
This determination is based on information contained in the report
titled ``Benefit-Cost/Unfunded Mandates Act Analysis, Small Business
and

[[Page 39937]]

Regulatory Flexibility Act Analysis'' (U.S. Department of the Interior,
National Park Service, Environmental Quality Division) available online
at http://www.nature.nps.gov/socialscience/docs/RegulatoryAnalyses2012.pdf.

Unfunded Mandates Reform Act (UMRA)

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

Takings (Executive Order 12630)

Under the criteria in Executive Order 12630, this rule does not
have significant takings implications. No taking of real or personal
property will occur as a result of this rule. Access to private
property located within or adjacent to National Park Service parks will
not be affected by this rule, and this rule does not regulate uses of
private property. Therefore, a takings implication assessment is not
required.

Federalism (Executive Order 13132)

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

Civil Justice Reform (Executive Order 12988)

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

Consultation With Indian Tribes (Executive Order 13175)

Under the criteria in Executive Order 13175 we have evaluated this
rule and determined that it has no potential effects on federally
recognized Indian tribes. This rule is administrative, legal and
procedural in nature. The effect on tribes is too speculative for
analysis at this stage, and will be evaluated later on a case-by-case
basis as new bicycle trail designations are considered.

Paperwork Reduction Act (PRA)

This rule does not contain information collection requirements and
a submission under the PRA is not required.

National Environmental Policy Act (NEPA)

This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under the NEPA of 1969 is not required because the rule is covered by a
categorical exclusion under 43 CFR 46.210(i): ``Policies, directives,
regulations, and guidelines: that are of an administrative, financial,
legal, technical, or procedural nature; or whose environmental effects
are too broad, speculative, or conjectural to lend themselves to
meaningful analysis and will later be subject to the NEPA process,
either collectively or case-by-case.'' We have also determined that the
rule does not involve any of the extraordinary circumstances listed in
43 CFR 46.215 that would require further analysis under the NEPA.

Effects on the Energy Supply (Executive Order 13211)

This rule is not a significant energy action under the definition
in Executive Order 13211. A statement of Energy Effects is not
required.

Drafting Information

The primary author of this rule is Russel J. Wilson, Chief,
Regulations and Special Park Uses, National Park Service. Michael
Tiernan, Division of Parks and Wildlife, Office of the Solicitor,
Department of the Interior; Michael B. Edwards, Environmental
Protection Specialist, Environmental Quality Division, Planning and
Compliance Branch, National Park Service; Hugh Duffy, PLA, ASLA, PMP,
LEED Green Associate, Project Manager, Denver Service Center, National
Park Service; and CDR Sara B. Newman, DrPH, MCP, U.S. Public Health
Service, Deputy Chief, Office of Risk Management, National Park
Service, also contributed.

List of Subjects in 36 CFR Part 4

National parks, Traffic regulations.

For the reasons stated in the preamble 36 CFR Part 4 is amended as
set forth below:

PART 4--VEHICLES AND TRAFFIC SAFETY

0
1. The authority citation for part 4 continues to read as follows:

Authority: 16 U.S.C. 1, 3, 9a, 462(k).

0
2. Section 4.30 is revised to read as follows:

Sec. 4.30 Bicycles.

(a) Park roads. The use of a bicycle is permitted on park roads and
in parking areas that are otherwise open for motor vehicle use by the
general public.
(b) Administrative roads. Administrative roads are roads that are
closed to motor vehicle use by the public, but open to motor vehicle
use for administrative purposes. The superintendent may authorize
bicycle use on an administrative road. Before authorizing bicycle use
on an administrative road the superintendent must:
(1) Make a written determination that such bicycle use is
consistent with protection of the park area's natural, scenic and
aesthetic values, safety considerations and management objectives, and
will not disturb wildlife or park resources; and
(2) Notify the public through one or more methods listed in Sec.
1.7(a) of this chapter.
(c) [Reserved]
(d) Existing trails. The superintendent may authorize by
designation bicycle use on a hiking or horse trail that currently
exists on the ground and does not require any construction or
significant modification to accommodate bicycles. Before doing so, the
superintendent must ensure that all of the following requirements have
been satisfied:
(1) The superintendent must complete a park planning document that
addresses bicycle use on the specific trail and that includes an
evaluation of:
(i) The suitability of the trail surface and soil conditions for
accommodating bicycle use. The evaluation must include any maintenance,
minor rehabilitation or armoring that is necessary to upgrade the trail
to sustainable condition; and
(ii) Life cycle maintenance costs, safety considerations, methods
to prevent or minimize user conflict, methods to protect natural and
cultural resources and mitigate impacts, and integration with
commercial services

[[Page 39938]]

and alternative transportation systems (if applicable).
(2) The superintendent must complete either an environmental
assessment (EA) or an environmental impact statement (EIS) evaluating
the effects of bicycle use in the park and on the specific trail. The
superintendent must provide the public with notice of the availability
of the EA and at least 30 days to review and comment on an EA completed
under this section.
(3) The superintendent must complete a written determination
stating that the addition of bicycle use on the existing hiking or
horse trail is consistent with the protection of the park area's
natural, scenic and aesthetic values, safety considerations and
management objectives, and will not disturb wildlife or park resources.
(4)(i) If under paragraph (d)(2) of this section, the resulting
Finding of No Significant Impact, Record of Decision (ROD), or an
amended ROD concludes that bicycle use on the specific trail will have
no significant impacts, the superintendent must publish a notice in the
Federal Register providing the public at least 30 days to review and
comment on the written determination required by paragraph (d)(3) of
this section. After consideration of the comments submitted, the
superintendent must obtain the Regional Director's written approval of
the determination required by paragraph (d)(3) of this section; or
(ii) If under paragraph (d)(2) of this section, the conclusion is
that bicycle use on the specific trail may have a significant impact,
the superintendent with the concurrence of the Regional Director must
complete a concise written statement for inclusion in the project files
that bicycle use cannot be authorized on the specific trail.
(e) New trails. This paragraph applies to new trails that do not
exist on the ground and therefore would require trail construction
activities (such as clearing brush, cutting trees, excavation, or
surface treatment). New trails shall be developed and constructed in
accordance with appropriate NPS sustainable trail design principles and
guidelines. The superintendent may develop, construct, and authorize
new trails for bicycle use after:
(1) In a developed area, the superintendent completes the
requirements in paragraphs (d)(1) through (d)(3) of this section,
publishes a notice in the Federal Register providing the public at
least 30 days to review and comment on the written determination
required by paragraph (d)(3) of this section, and after consideration
of the comments submitted, obtains the Regional Director's written
approval of the determination required by paragraph (d)(3) of this
section; or
(2) Outside of a developed area, the superintendent completes the
requirements in paragraphs (d)(1), (2), and (3) of this section;
obtains the Regional Director's written approval of the determination
required by paragraph (d)(3) of this section; and promulgates a special
regulation authorizing the bicycle use.
(f) Closures and other use restrictions. A superintendent may limit
or restrict or impose conditions on bicycle use or may close any park
road, parking area, administrative road, trail, or portion thereof to
bicycle use, or terminate such condition, closure, limit or restriction
after:
(1) Taking into consideration public health and safety, natural and
cultural resource protection, and other management activities and
objectives; and
(2) Notifying the public through one or more methods listed in
Sec. 1.7(a) of this chapter.
(g) Other requirements. (1) A person operating a bicycle on any
park road, parking area, administrative road or designated trail is
subject to all sections of this part that apply to an operator of a
motor vehicle, except Sec. Sec. 4.4, 4.10, 4.11, 4.14, and 4.15.
(2) Unless specifically addressed by regulations in this chapter,
the use of a bicycle within a park area is governed by State law. State
law concerning bicycle use that is now or may later be in effect is
adopted and made a part of this section.
(h) Prohibited acts. The following are prohibited: (1) Bicycle
riding off of park roads and parking areas, except on administrative
roads and trails that have been authorized for bicycle use.
(2) Possessing a bicycle in a wilderness area established by
Federal statute.
(3) Operating a bicycle during periods of low visibility, or while
traveling through a tunnel, or between sunset and sunrise, without
exhibiting on the operator or bicycle a white light or reflector that
is visible from a distance of at least 500 feet to the front and with a
red light or reflector that is visible from at least 200 feet to the
rear.
(4) Operating a bicycle abreast of another bicycle except where
authorized by the superintendent.
(5) Operating a bicycle while consuming an alcoholic beverage or
carrying in hand an open container of an alcoholic beverage.
(6) Any violation of State law adopted by this section.

Dated: June 20, 2012.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-16466 Filed 7-5-12; 8:45 am]
BILLING CODE 4312-52-P