[Federal Register Volume 79, Number 117 (Wednesday, June 18, 2014)]
[Proposed Rules]
[Pages 34678-34681]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-14273]



[[Page 34678]]

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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Parts 212 and 261

RIN 0596-AD17


Use by Over-Snow Vehicles (Travel Management Rule)

AGENCY: Forest Service, USDA.

ACTION: Notice of proposed rule; request for public comment.

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SUMMARY: Consistent with a court order on March 29, 2013, the U.S. 
Forest Service (Forest Service) is proposing to amend the agency's 
travel management rule (TMR) to require designation of National Forest 
System (NFS) roads, NFS trails, and areas on NFS lands where over-snow 
vehicle (OSV) use is allowed, restricted, or prohibited. Under the 
amended subpart C, the responsible official could establish a system of 
routes and areas where OSV use is prohibited except where allowed or a 
system of routes and areas where OSV use is allowed unless prohibited. 
The proposed rule would continue to exempt OSV use from subpart B of 
the TMR, which provides for designation of a system of routes and areas 
where motor vehicle use is allowed and prohibits motor vehicle use off 
the designated system.

DATES: Comments must be received in writing by August 4, 2014.

ADDRESSES: Submit comments electronically by following the instructions 
at the Federal eRulemaking portal at http://www.regulations.gov. 
Comments also may be submitted by mail to the U.S. Forest Service, 
Attn: Joseph Adamson, Recreation, Heritage, and Volunteer Resources 
Staff, 1400 Independence Avenue SW., Stop 1125, Washington, DC 20250-
1125. If comments are sent electronically, please do not send duplicate 
comments by mail. Please confine comments to issues pertinent to the 
proposed rule, explain the reasons for any recommended changes, and, 
where possible, reference the specific section and wording being 
addressed. All comments, including names and addresses when provided, 
will be placed in the record and will be available for public 
inspection and copying. The public may inspect comments received on 
this proposed rule in the Office of the Director, Recreation, Heritage, 
and Volunteer Resources Staff, 5th Floor SW., 1400 Independence Avenue 
SW., Washington, DC, on business days between 8:30 a.m. and 4:00 p.m. 
Those wishing to inspect comments are encouraged to call ahead at (202) 
205-0813 to facilitate entry into the building.

FOR FURTHER INFORMATION CONTACT: Joseph Adamson, (202) 205-0931, 
Recreation, Heritage, and Volunteer Resources Staff.

SUPPLEMENTARY INFORMATION:

Background and Need for the Rule

    Between 1982 and 2009, the number of people who operated motor 
vehicles off road increased by more than 153 percent in the United 
States (``Outdoor Recreation Trends and Futures, a Technical Document 
Supporting the Forest Service 2010 RPA [Resources Planning Act] 
Assessment,'' p. 135 (H. Cordell, 2012)). While both motor vehicle use 
and OSV \1\ use are increasing in the National Forests and Grasslands, 
so are many other types of recreational activities. From 1982 to 2009, 
the number of people in the United States participating in viewing or 
photographing birds increased 304.2 percent, the number of people 
participating in day hiking increased 228.2 percent, the number of 
people participating in backpacking increased 167 percent, the number 
of people participating in fishing increased 36 percent, and the number 
of people participating in hunting increased 34 percent (id. at 135-
36). Providing for the long-term sustainable use of NFS lands and 
resources is essential to maintaining the quality of the recreation 
experience in the national forests and grasslands.
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    \1\ See 36 CFR 212.1 for the definition of an OSV.
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    In 2005, the Forest Service promulgated the TMR to provide more 
effective management of public motor vehicle use. Subpart B of the TMR 
requires designation of those NFS roads, NFS trails, and areas on NFS 
lands where public motor vehicle use is allowed (36 CFR 212.51(a)). 
Unless exempted from the designations, public motor vehicle use is 
prohibited off designated routes and outside designated areas (36 CFR 
261.13). Under subpart B, the responsible official must establish a 
system of routes and areas where motor vehicle use is allowed. This 
information will be displayed for the public at local district offices. 
Motor vehicle use off the designated system is prohibited, unless it is 
exempted from the designations. Subpart C of the current TMR authorizes 
but does not require the responsible official to allow, restrict, or 
prohibit OSV use on NFS roads, NFS trails, and areas on NFS lands. 
Under subpart C, the responsible official has the discretion to 
determine whether to regulate OSV use and to establish a system of 
routes and areas where OSV use is allowed unless prohibited or a system 
of routes and areas where OSV use is prohibited unless allowed. The TMR 
treats OSVs differently from other types of motor vehicles because an 
OSV traveling over snow results in different impacts on natural and 
cultural resource values than motor vehicles traveling over the ground. 
Consequently, in contrast to motor vehicles, it may be appropriate for 
OSVs to travel off route. 69 FR 42386, 42389 (July 15, 2004) (proposed 
TMR); 70 FR 68273 (Nov. 9, 2005) (final TMR).
    On March 29, 2013, the United States District Court for the 
District of Idaho ruled that subpart C of the TMR violated Executive 
Order (EO) 11644, as amended by EO 11989, governing use of off-road 
vehicles on federal lands in giving the Forest Service discretion to 
determine whether to regulate OSV use, and that the agency therefore 
improperly denied the plaintiff's petition to amend the TMR. Winter 
Wildlands Alliance v. USFS, 2013 WL 1319598, No. 1:11-CV-586-REB (D. 
Idaho Mar. 29, 2013). The court did not rule that the Agency lacks the 
discretion to determine how to regulate OSV use. To the contrary, the 
court held that the Forest Service has the discretion to determine 
where and when OSV use can occur on NFS lands. This ruling requires the 
Agency to designate routes and areas where motor vehicle use is 
permitted and routes and areas where motor vehicle use is not permitted 
on NFS lands, consistent with EO 11644, as amended by EO 11989, sec. 
3(a)), but does not dictate where and when motor vehicle use can occur 
on those lands. The court ordered the Forest Service to issue a new 
rule consistent with the EOs.
    The Forest Service is proposing to amend subpart C of the TMR to 
provide for management of OSVs on NFS lands consistent with the EOs and 
the court's order. Specifically, the Forest Service is proposing to 
amend subpart C of the TMR to require the responsible official to 
designate NFS roads, NFS trails, and areas on NFS lands where OSV use 
is allowed, restricted, or prohibited in administrative units or Ranger 
Districts, or parts of administrative units or Ranger Districts, where 
snowfall is adequate for OSV use to occur. The Forest Service is not 
proposing to remove the exemption for OSVs from subpart B because the 
Agency wants to preserve the discretion in subpart C to establish a 
system of routes and areas where OSV use is allowed unless prohibited 
or a system of routes and areas where OSV use is prohibited unless 
allowed. In contrast, subpart B

[[Page 34679]]

requires designation of a system of routes and areas where motor 
vehicle use is prohibited unless allowed. Regardless of whether a unit 
or district establishes a system of routes and areas where OSV use is 
allowed unless prohibited or a system or routes and areas where OSV use 
is prohibited unless allowed, the decision would be based on an 
analysis of the impacts from the proposed designations and anticipated 
uses in accordance with subpart B, as modified in subpart C to provide 
for consistency in terminology. This information will be displayed for 
the public at local district offices.
    The difference in management of motor vehicle use and OSV use on 
NFS lands stems from differences in their associated settings, 
activities, environmental impacts, and public preferences. National 
forests and grasslands change when snow blankets the landscape. 
Vegetation camouflages, animals burrow, and water transforms into ice. 
Recreationists and others accessing snow-covered National Forests and 
Grasslands typically trade hiking boots for skis and snowshoes and 
motor vehicles with tires for those with tracks and sleds.
    Because of snowfall patterns, National Forests and Grasslands vary 
significantly in their need to address OSV use. National Visitor Use 
Monitoring (NVUM) data from 2008 to 2012 show that approximately 30 
percent of NFS lands do not offer OSV recreation opportunities.
    OSV use occurs only in the months when snow is present, in contrast 
to other types of motor vehicle use, which can occur at any time of the 
year. Other types of motor vehicles operating over snow are regulated 
under subpart B of the TMR.
    A key difference between OSV use and other types of motor vehicle 
use is that, when properly operated and managed, OSVs do not make 
direct contact with soil, water, and vegetation, whereas most other 
types of motor vehicles operate directly on the ground. Unlike other 
types of motor vehicles traveling cross-country, OSVs traveling cross-
country generally do not create a permanent trail or have a direct 
impact on soil and ground vegetation. In some areas of the country, OSV 
use is therefore not always confined to roads and trails.
    The public's OSV preferences and practices on NFS lands vary 
nation-wide due to different terrain, snow typology and amount, 
recreational activities, and transportation needs. OSV use on NFS lands 
in the northeast and mid-west is largely trail-based, while the larger, 
wide-open, powder-filled bowls in western mountains support cross-
country OSV use.
    Subpart B of the TMR recognizes that cross-country travel by other 
types of motor vehicles is generally unacceptable. Subpart C of the TMR 
as originally promulgated and in the proposed rule recognizes that 
cross-country travel by OSVs may be acceptable in appropriate 
circumstances.
    Recreational preferences are another factor accounting for the 
difference in management of other types of motor vehicle use and OSV 
use. The public's desire for recreational opportunities is different in 
the summer and the winter. NVUM data from 2008 to 2012 show that most 
public use of NFS lands (79 percent) occurs during non-snow seasons. 
Per NVUM data from 2008 to 2012, most snow season use on NFS lands (69 
percent) occurs at alpine ski areas and generally does not involve 
OSVs, back-country skiing, snowshoeing, or any other snow-based 
activity.
    Consistent with Sec.  212.50(b) of subpart B of the current TMR, 
existing decisions that allow, restrict, or prohibit OSV use on NFS 
roads, NFS trails, or areas on NFS lands that were made under prior 
authorities (part 295 or subpart C) would remain in effect under the 
proposed rule and would not have to be revisited.
    Analogous to Sec.  212.52(a) of subpart B of the current TMR, the 
proposed rule would provide that public notice with no further public 
involvement would be sufficient if an administrative unit or a Ranger 
District has made previous administrative decisions, under other 
authorities and including public involvement, that allow, restrict, or 
prohibit OSV use on NFS roads, on NFS trails, and in areas on NFS lands 
over the entire administrative unit or Ranger District, or parts of the 
administrative unit or Ranger District, where snowfall is adequate for 
OSV use to occur and no change is proposed to these previous decisions. 
In short, existing OSV use determinations will remain in effect.
    In requiring designation of NFS routes and areas on NFS lands where 
OSV use is allowed, restricted, or prohibited, the proposed rule would 
be consistent with the EOs and the court's order. Equally important, 
the resulting system of OSV routes and areas would sustain natural 
resource values, enhance user's experiences and provide opportunities 
for use on NFS lands.

Section-by-Section Analysis of the Proposed Rule

Part 212, Subpart A

Section 212.1 Definitions
    Current Sec.  212.1 of the TMR defines an area as a discrete, 
specifically delineated space that is smaller, and in most cases much 
smaller, than a Ranger District. The definition for an area in the 
proposed rule would recognize that cross-country OSV use may occur 
across a broader landscape. As with evaluation of an area for other 
types of motor vehicle use using the designation criteria in Sec.  
212.55, evaluation of an area for OSV use using the designation 
criteria in Sec.  212.55 may be holistic and need not address each 
route within the area, as OSVs will be able to travel cross-country 
within it.
    Current Sec.  212.1 also defines ``designated road, trail, or 
area''. To avoid conflict with this terminology in subpart B, the 
proposed rule would add a definition for ``designation of over-snow 
vehicle use.''

Part 212, New Subpart C--Over-Snow Vehicle Use

Subpart C--Over-Snow Vehicle Use
    The title of part 212, subpart C, would be changed from ``Use by 
Over-Snow Vehicles'' to ``Over-Snow Vehicle Use.''
Section 212.80 Purpose and Scope
    Current Sec.  212.80 states that the purpose of subpart C is to 
provide for regulation of OSV use on NFS roads, NFS trails, and areas 
on NFS lands. The proposed rule would amend this section to require 
designation of NFS roads, NFS trails, and areas on NFS lands where OSV 
use is allowed, restricted, or prohibited. Consistent with Sec.  
212.50(b) in subpart B of the current TMR, the proposed rule would 
include a provision authorizing the responsible official to incorporate 
previous administrative decisions regarding OSV use made under other 
authorities in allowing, restricting, or prohibiting OSV use on NFS 
roads, on NFS trails, and in areas on NFS lands.
Section 212.81 Over-Snow Vehicle Use
    The proposed rule would amend Sec.  212.81 to require designation 
of NFS roads, NFS trails, and areas on NFS lands where OSV use is 
allowed, restricted, or prohibited on administrative units or Ranger 
Districts, or parts of administrative units or Ranger Districts, of the 
NFS where snowfall is adequate for that use to occur, subject to the 
exemptions currently enumerated in Sec.  212.81(b).

[[Page 34680]]

    In contrast to subpart B and its corresponding prohibition at 36 
CFR 261.13, which requires designation of a system of routes and areas 
that are open to motor vehicle use and prohibits motor vehicle use off 
the designated system, proposed subpart C would continue to allow the 
responsible official to designate a system of routes and areas where 
OSV use is allowed unless prohibited or a system of routes and areas 
where OSV use is prohibited unless allowed. An OSV use map could look 
like a motor vehicle use map, i.e., a map that identifies only the 
routes and areas where OSV use is allowed, or the opposite, i.e., a map 
that identifies only the routes and areas where OSV use is prohibited. 
In addition, local Forest Service officials would retain the discretion 
to manage OSV use to address local conditions and to establish 
restrictions, as appropriate, based on the season of use and other 
local factors. Decisions to designate OSV use may be made concurrently 
or separately from decisions to designate other types of motor vehicle 
use.
    Consistent with Sec.  212.52(a) of subpart B of the current TMR, 
Sec.  212.81(b) of the proposed rule would provide that public notice 
with no further public involvement is sufficient if an administrative 
unit or Ranger District has made previous administrative decisions, 
under other authorities and including public involvement, that allow, 
restrict, or prohibit OSV use on NFS roads, on NFS trails, and in areas 
on NFS lands over the entire administrative unit or Ranger District, or 
parts of the administrative unit or Ranger District, where snowfall is 
adequate for OSV use to occur and no change is proposed to these 
previous decisions.
    Except as modified by proposed Sec.  212.81(b) governing prior 
comprehensive OSV decisions and proposed Sec.  212.81(c) with respect 
to reference to the map displaying routes and areas where OSV use is 
allowed, restricted, or prohibited, Sec.  212.81(c) of the proposed 
rule would apply the requirements governing designation of NFS roads, 
NFS trails, and areas on NFS lands in Sec. Sec.  212.52 (public 
involvement); 212.53 (coordination with other governmental entities); 
212.54 (revision of designations); 212.55 (criteria for designation of 
roads, trails, and areas); 212.56 (identification of designated roads, 
trails, and areas); and 212.57 (monitoring of effects of motor vehicle 
use) to designation of NFS roads, NFS trails, and areas on NFS lands 
where OSV use is allowed, restricted, or prohibited.

Part 261, Subpart A--General Prohibitions

Subpart A--General Prohibitions
    The title of Sec.  261.14 would be changed from ``Use by over-snow 
vehicles'' to ``Over-snow vehicle use.''

Regulatory Certifications

Regulatory Impact

    This proposed rule has been reviewed under USDA procedures and EO 
12866 on regulatory planning and review. The Office of Management and 
Budget (OMB) has determined that this proposed rule is significant and 
is therefore subject to OMB review under E.O. 12866.

Environmental Impact

    This proposed rule would require designation at the field level, 
with public input, of NFS roads, NFS trails, and areas on NFS lands 
where OSV use is allowed, restricted, or prohibited. This proposed rule 
would have no effect on the ground until designation of NFS roads, NFS 
trails, and areas on NFS lands for OSV use is completed at the field 
level, with opportunity for public involvement. Forest Service 
regulations at 36 CFR 220.6(d)(2) exclude from documentation in an 
environmental assessment or environmental impact statement ``rules, 
regulations, or policies to establish service-wide administrative 
procedures, program processes, or instructions.'' The Agency has 
concluded that this proposed rule falls within this category of actions 
and that no extraordinary circumstances exist which would require 
preparation of an environmental assessment or environmental impact 
statement.

Regulatory Flexibility Act Analysis

    This proposed rule has been considered in light of the Regulatory 
Flexibility Act (5 U.S.C. 602 et seq.). This proposed rule would not 
have any effect on small entities as defined by the Regulatory 
Flexibility Act. The proposed rule would require designation at the 
field level, with public input, of NFS roads, NFS trails, and areas on 
NFS lands where OSV use is allowed, restricted, or prohibited. The 
proposed rule would not directly affect small businesses, small 
organizations, and small governmental jurisdictions. The Forest Service 
has determined that this proposed rule would not have a significant 
economic impact on a substantial number of small entities pursuant to 
the Regulatory Flexibility Act because it would not impose 
recordkeeping requirements on them; it would not affect their 
competitive position in relation to large entities; and it would not 
affect their cash flow, liquidity, or ability to remain in the market.

Federalism and Consultation and Coordination With Indian Tribal 
Governments

    The Agency has considered this proposed rule under the requirements 
of EO 13132 on federalism and has concluded that the proposed rule 
conforms with the federalism principles set out in this EO; would not 
impose any compliance costs on the States; and would not have 
substantial direct effects on the States, the relationship between the 
Federal Government and the States, or the distribution of power and 
responsibilities among the various levels of government. Therefore, the 
Agency has determined that no further assessment of federalism 
implications is necessary at this time. Moreover, this proposed rule 
does not have tribal implications as defined by EO 13175, entitled 
``Consultation and Coordination with Indian Tribal Governments,'' and 
therefore advance consultation with Tribes is not required.

No Takings Implications

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in EO 12630. The Agency has 
determined that the proposed rule would not pose the risk of a taking 
of private property.

Controlling Paperwork Burdens on the Public

    This proposed rule does not contain any new recordkeeping or 
reporting requirements or other information collection requirements as 
defined in 5 U.S.C. 1320 that are not already required by law or not 
already approved for use. Accordingly, the review provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its 
implementing regulations at 5 CFR part 1320 do not apply.

Energy Effects

    This proposed rule has been reviewed under EO 13211, titled 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use.'' The Agency has determined that this 
proposed rule does not constitute a significant energy action as 
defined in the EO.

Civil Justice Reform

    This proposed rule has been reviewed under EO 12988 on civil 
justice reform. If the proposed rule were to be adopted, (1) all State 
and local laws and regulations that conflict with the proposed rule or 
that would impede its

[[Page 34681]]

full implementation would be preempted; (2) no retroactive effect would 
be given to the proposed rule; and (3) it would not require 
administrative proceedings before parties may file suit in court 
challenging its provisions.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), which the President signed into law on March 22, 
1995, the Agency has assessed the effects of this proposed rule on 
State, local, and Tribal governments and the private sector. This 
proposed rule would not compel the expenditure of $100 million or more 
by any State, local, or Tribal government or anyone in the private 
sector. Therefore, a statement under section 202 of the act is not 
required.

List of Subjects

36 CFR Part 212

    Highways and roads, National forests, Public lands--rights-of-way, 
Transportation.

36 CFR Part 261

    Law enforcement, National forests.

    Therefore, for the reasons set out in the preamble, the Forest 
Service proposes to amend 36 CFR parts 212 and 261 as follows:

PART 212--TRAVEL MANAGEMENT

Subpart A--Administration of the Forest Transportation System

0
1. The authority citation for part 212, subpart A continues to read as 
follows:

    Authority: 16 U.S.C. 551, 23 U.S.C. 205.

0
2. Amend Sec.  212.1 by revising the definition for ``Area'' and adding 
a definition for ``Designation of over-snow vehicle use'' in 
alphabetical order to read as follows:


Sec.  212.1  Definitions.

* * * * *
    Area. A discrete, specifically delineated space that is smaller, 
and, except for over-snow vehicle use, in most cases much smaller, than 
a Ranger District.
* * * * *
    Designation of over-snow vehicle use. Designation of a National 
Forest System road, National Forest System trail, or area on National 
Forest System lands where over-snow vehicle use is allowed, restricted, 
or prohibited pursuant to Sec.  212.81 on an over-snow vehicle use map.
* * * * *
0
3. Revise subpart C to read as follows:

Subpart C--Over-Snow Vehicle Use

Sec.
2.12.80 Purpose, scope, and definitions.
212.81 Over-snow vehicle use.


    Authority:  7 U.S.C. 1011(f), 16 U.S.C. 551, E.O. 11644, 11989 
(42 FR 26959).


Sec.  212.80  Purpose, scope, and definitions.

    (a) Purpose. The purpose of this subpart is to require designation 
of National Forest System roads, National Forest System trails, and 
areas on National Forest System lands where over-snow vehicle use is 
allowed, restricted, or prohibited.
    (b) Scope. The responsible official may incorporate previous 
administrative decisions regarding over-snow vehicle use made under 
other authorities in allowing, restricting, or prohibiting over-snow 
vehicle use on National Forest System roads, on National Forest System 
trails, and in areas on National Forest System lands under this 
subpart.
    (c) Definitions. For definitions of terms used in this subpart, 
refer to Sec.  212.1.


Sec.  212.81  Over-snow vehicle use.

    (a) General. Over-snow vehicle use on National Forest System roads, 
on National Forest System trails, and in areas on National Forest 
System lands shall be designated as allowed, restricted, or prohibited 
by the responsible official on administrative units or Ranger 
Districts, or parts of administrative units or Ranger Districts, of the 
National Forest System where snowfall is adequate for that use to 
occur, provided that the following uses are exempted from these 
decisions:
    (1) Limited administrative use by the Forest Service;
    (2) Use of any fire, military, emergency, or law enforcement 
vehicle for emergency purposes;
    (3) Authorized use of any combat or combat support vehicle for 
national defense purposes;
    (4) Law enforcement response to violations of law, including 
pursuit; and
    (5) Over-snow vehicle use that is specifically authorized under a 
written authorization issued under Federal law or regulations.
    (b) Previous comprehensive over-snow vehicle decisions. Public 
notice with no further public involvement is sufficient if an 
administrative unit or a Ranger District has made previous 
administrative decisions, under other authorities and including public 
involvement, that allow, restrict, or prohibit over-snow vehicle use on 
National Forest System roads, on National Forest System trails, and in 
areas on National Forest System lands over the entire administrative 
unit or Ranger District, or parts of the administrative unit or Ranger 
District, where snowfall is adequate for OSV use to occur and no change 
is proposed to these previous decisions.
    (c) Decision-making process. Except as modified in paragraph (b) 
and this paragraph, the requirements governing designation of National 
Forest System roads, National Forest System trails, and areas on 
National Forest System lands in Sec. Sec.  212.52, 212.53, 212.54, 
212.55, 212.56, and 212.57 shall apply to decisions made under this 
subpart. In making decisions under this subpart, the responsible 
official shall recognize the provisions concerning rights of access in 
sections 811(b) and 1110(a) of the Alaska National Interest Lands 
Conservation Act (16 U.S.C. 3121(b) and 3170(a), respectively). 
National Forest System roads, National Forest System trails, and areas 
on National Forest System lands where over-snow vehicle use is allowed, 
restricted, or prohibited shall be reflected on an over-snow vehicle 
use map.

PART 261--PROHIBITIONS

0
4. The authority citation for part 261 continues to read as follows:

    Authority:  7 U.S.C. 1011(f); 16 U.S.C. 472, 551, 620(f), 
1133(c), (d)(1), 1246(i).

Subpart A--General Prohibitions

0
5. Revise the heading of Sec.  261.14 to read as follows:


Sec.  261.14  Over-snow vehicle use.

* * * * *

    Dated: June 4, 2014.
Thomas L. Tidwell,
Chief, U.S. Forest Service.
[FR Doc. 2014-14273 Filed 6-17-14; 8:45 am]
BILLING CODE 3411-15-P