[Federal Register Volume 80, Number 18 (Wednesday, January 28, 2015)]
[Rules and Regulations]
[Pages 4500-4512]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-01573]
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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: Final rule.
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SUMMARY: The Forest Service manages winter uses to protect National
Forest System (NFS) resources and to provide a range of opportunities
for motorized and non-motorized recreation. In 2005, the agency
regulated winter motorized use as a discretionary activity under its
regulations for Use by Over-Snow Vehicles. Consistent with a court
order dated March 29, 2013, the United States Department of Agriculture
(the Department) amends the Department's travel management rule (TMR)
to require designation of roads, trails, and areas on NFS lands to
provide for over-snow vehicle (OSV) use. An over-snow vehicle is
defined as ``a motor vehicle that is designed for use over snow and
that runs on a track and/or a ski or skis, while in use over snow''.
The Responsible Official will establish a system of routes and areas to
provide for over-snow vehicle use. The regulations will continue to
exempt over-snow vehicle use from the travel management rule, which
provides for designation of a system of routes and areas for other
types of motor vehicle use.
DATES: This rule is effective February 27, 2015.
ADDRESSES: The record for this final rule contains all the documents
pertinent to this rulemaking. These documents are available for
inspection and copying at the Office of the Director, Recreation,
Heritage, and Volunteer Resources Staff, 5th Floor, Sidney R. Yates
Federal Building, 1400 Independence Avenue SW., Washington, DC, on
business days between 8:30 a.m. and 4:00 p.m. Those wishing to inspect
or copy these documents are encouraged to call Jamie Schwartz,
Recreation, Heritage, and Volunteer Resources Staff, at 202-205-1589
beforehand to facilitate access into the building.
FOR FURTHER INFORMATION CONTACT: Jamie Schwartz, 202-205-1589,
Recreation, Heritage, and Volunteer Resources Staff.
SUPPLEMENTARY INFORMATION:
1. 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 [Forest and Rangeland Renewable
Resources Planning Act of 1974] Assessment,'' p. 135 (H. Cordell,
2012)). While both motor vehicle use and OSV 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.
In 2005, the Forest Service (Agency) promulgated the TMR to provide
more effective management of public motor vehicle use. The 2005 TMR
includes subpart B, which 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)), and subpart C, under which 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. Subpart C of the 2005 TMR authorizes but
does not require the Responsible Official to allow, restrict, or
prohibit OSV use on NFS roads, on NFS trails, and in areas on NFS
lands.
On March 29, 2013, the U.S. District Court for the District of
Idaho ruled that subpart C of the TMR violated Executive Order (E.O.)
11644, as amended by E.O. 11989. Winter Wildlands Alliance v. U.S.
Forest Serv., 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. The ruling requires the Agency to designate
routes and areas where OSV use is permitted and routes and areas where
OSV use is not permitted on NFS lands, consistent with E.O. 11644, as
amended by E.O. 11989, sec. 3(a), but does not dictate where and when
OSV use can occur on those lands. The court ordered the Forest Service
to issue a new rule consistent with the E.O.s.
The Department is amending subpart C of the TMR to provide for
management of OSVs on NFS lands consistent with the EOs, the court's
order, and subpart B of the TMR. Specifically, the Department is
amending subpart C of the TMR to
[[Page 4501]]
require the Responsible Official to designate NFS roads, NFS trails,
and areas on NFS lands where OSV use is allowed in administrative units
or Ranger Districts, or parts of administrative units or Ranger
Districts, where snowfall is adequate for OSV use to occur. The
Department is not removing the exemption for OSVs from subpart B.
2. Unique Qualities of OSV Use and Management
The Department believes that a separate subpart for regulation of
OSV use is appropriate because of the difference in management and
impacts of OSV use and other types of motor vehicle use on NFS lands.
The difference between management of OSV use and management of
other types of motor vehicle 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 when sufficient 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.
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 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
nationwide due to different terrain, snow typology and amount,
recreational activities, and transportation needs. OSV use on NFS lands
in the Northeast and Midwest is largely trail-based, while the larger,
wide-open, powder-filled bowls in western mountains can 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 final 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 OSV use and other types of motor vehicle
use. The public's desire for recreational opportunities is different in
the summer and the winter. The public enjoys the National Forests for a
variety of winter activities including snowmobiling, cross country
skiing, snowshoeing, and winter snow play. NVUM data from 2008 to 2012
indicate that 21 percent of public use of the National Forests (152
million visits) occurs during the snow season. Most of this winter use
(69 percent) occurs at alpine ski areas. Nearly 4 million people enjoy
snowmobiling on the National Forests.
In summary, OSV route and area designations will sustain natural
resource values, enhance user experiences, and be consistent with other
types of motor vehicle use designations on NFS lands.
3. Impact on Existing Decisions
Consistent with Sec. 212.50(b) of subpart B of the 2005 TMR,
existing decisions that allow, restrict, or prohibit OSV use on NFS
roads, on NFS trails, or in areas on NFS lands that were made under
prior authorities (part 295 or subpart C) will remain in effect under
the final rule and will not have to be revisited.
Analogous to Sec. 212.52(a) of subpart B of the 2005 TMR, the
final rule provides that public notice with no further public
involvement is sufficient for previous administrative decisions, made
under other authorities and including public involvement, that regulate
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 required to these previous
decisions. In short, units or Districts that have completed OSV use
designations under other authorities and including public involvement
do not have to revisit them.
For clarity, the final rule adds a provision in subpart C regarding
the requirement for an OSV use map to display designations for OSV use,
separate from the requirement in subpart B for a motor vehicle use map
displaying designations for other types of motor vehicle use.
4. Public Comments and Response to Comments
Overview
On June 18, 2014, the Forest Service published a document in the
Federal Register (79 FR 34678) seeking public comment on the proposed
amendments to subpart C of the TMR. The proposed rule was posted
electronically on the Federal Register site at www.gpoaccess.gov and at
the Federal e-rulemaking site at www.regulations.gov. During the 45-day
comment period that ended on August 4, 2014, the Agency received no
requests for an extension of the comment period. The Forest Service
received 20,210 comments on the proposed rule.
The respondents represented 37 States and the District of Columbia.
The following lists the categories of respondents:
Recreation interests, including permit holders;
Government agencies;
Environmental or conservation groups; and
Individuals who did not identify an affiliation.
Comments came from organizations and individuals concerned about
the impacts of OSV use on the environment and on non-motorized uses.
Comments also came from organizations and individuals concerned about
potential restrictions on OSV use.
Respondents offered general comments either supporting or not
supporting the proposed rule or supporting or opposing OSV use in
general on NFS lands. Respondents also offered specific comments about
sections of the proposed rule that they would like to see revised. Many
respondents offered suggestions for implementation, funding, and
enforcement of the proposed rule at the local level and comments on
other rulemaking efforts or existing Forest Service policy, all of
which are beyond the scope of this rulemaking.
General Comments
Comment: Some respondents believed that the Forest Service has
successfully used current subpart C of the TMR for managing OSV use and
that there is no reason to implement the proposed rule.
Response: The March 29, 2013, order requires the Agency to revise
subpart C to require, rather than provide for, designation of routes
and areas where OSV use is permitted and routes and areas where OSV use
is not permitted on NFS lands, consistent with EO 11644, as amended by
EO 11989.
[[Page 4502]]
Comment: Some respondents stated that the Forest Service should
have addressed OSV use in the TMR; that failure to do so has resulted
in use conflicts and resource damage; and that the TMR should be
reviewed and used as a starting point for developing an over-snow rule.
Response: Current subpart C of the TMR addresses OSV use by
providing for but not requiring designation of routes and areas for OSV
use. The Department disagrees that the approach to management of OSV
use in current subpart C has resulted in use conflicts and resource
damage. As stated in the preamble to the proposed and final rules, the
Forest Service is amending subpart C in response to a court order to
require designation of those NFS roads, NFS trails, and areas on NFS
lands that are open to OSV use and to prohibit OSV use that is
inconsistent with those designations.
Comment: Some respondents stated that the Forest Service should
have more vigorously defended subpart C of the TMR and the Agency's
management of OSV use.
Response: The Federal Government vigorously defended subpart C of
the TMR in the litigation that resulted in the March 29, 2013, order.
This order requires the Agency to revise subpart C to require, rather
than provide for, designation of routes and areas where OSV use is
permitted and routes and areas where OSV use is not permitted on NFS
lands, consistent with EO 11644, as amended by EO 11989.
Comment: Some respondents stated that the proposed rule should not
have been published in the summer, when OSV users are not focused on
winter recreation.
Response: This rulemaking is court-ordered and is subject to a
court deadline. The Agency had to proceed as quickly as possible to
comply with the court order. Moreover, no publication time is ideal for
everyone. For example, in the winter time, OSV users could be
recreating and not focused on rulemaking.
Comment: Some respondents stated that since OSV use is not
adequately regulated, and since few current restrictions on OSV use are
enforced, OSV use should not be expanded. Other respondents noted that
enforcement of restrictions and prohibitions on OSV use is an issue in
the backcountry and that OSVs are encroaching on non-motorized areas in
search of fresh powder and are disregarding signage in the area. Other
respondents stated that the registration fee for OSVs should be raised
to pay for increased enforcement and signage for OSV use designations.
Response: Enforcement of the TMR, including subpart C, is beyond
the scope of this rulemaking. Forest Service law enforcement personnel
play a critical role in ensuring compliance with applicable laws and
regulations, protecting public safety, and protecting NFS resources.
The Forest Service also maintains cooperative relationships with many
State and local law enforcement agencies that provide mutual support
across jurisdictional boundaries. Education and cooperative
relationships with users support enforcement efforts by promoting
voluntary compliance. The final rule will not increase the Agency's
budget or the number of law enforcement officers. However, the final
rule will enhance consistency and clarity in management of OSV use on
NFS lands.
OSV use maps will be available at local Forest Service offices and,
as soon as practicable, on Forest Service Web sites. Once an
administrative unit or a Ranger District issues an OSV use map, OSV use
in that unit or District that is inconsistent with the designations
reflected on the map will be prohibited. The Forest Service plans to
issue additional travel management guidance in its sign handbook to
enhance consistency in content and use of standard interagency symbols
in signs.
Comment: Some respondents stated that the Forest Service should not
establish an artificial, predetermined date by which local units are
required to complete winter travel planning across the NFS. Other
respondents requested that the Forest Service establish a timeline for
issuance of OSV use maps.
Response: The Department shares an interest in completing route and
area designations for OSV use as quickly as possible. The Forest
Service will make every effort, within its available resources, to
complete route and area designations for OSV use as quickly as
possible. However, the Department disagrees with establishing an
enforceable deadline for completion of the process. Imposing an
enforceable deadline for completing OSV use designations would subject
the Forest Service to a legal challenge if, despite its best efforts
(perhaps due to the controversy involved in the process), the Agency is
unable to meet the deadline. The Department believes that appropriate
public input and coordination between the Responsible Official and
Federal, State, Tribal, county, and municipal governments offers the
best hope for long-term resolution of issues involving designations for
motor vehicle use, including OSV use. An inflexible deadline can make
collaborative solutions more difficult.
Comment: Some respondents stated that how the Agency will fund
management of OSV use and enforce restrictions on OSV use should be
considered in OSV designation decisions, and requested that the Agency
consider pursuing alternative management practices in coordination with
the States and organizations like the Interagency Off-Highway Vehicle
(OHV) Working Group established by the State of Montana's Department of
Fish, Wildlife, and Parks.
Response: Recreation management in general and recreation funding
are beyond the scope of this rulemaking, which addresses designation of
routes and areas on NFS lands for OSV use. Forest Service
appropriations are authorized by Congress. The Forest Service is
committed to using whatever funds it has available to accomplish the
purposes of this final rule in a targeted, efficient manner. The Agency
makes appropriate use of all other sources of available funding and has
a number of successful cooperative relationships with State
governments. Volunteer agreements with user groups and others have
proven successful in extending Agency resources for trail construction,
maintenance, monitoring, and mitigation. Regardless of the level of
funding available, the Department believes that the final rule provides
an appropriate procedural framework for management of OSV use on NFS
lands that is consistent with EO 11644, as amended by EO 11989, the
District Court's March 29, 2013, order, and regulation of other types
of motor vehicle use on NFS lands. While availability of resources for
maintenance and administration must be considered in designating routes
for OSV use (Sec. Sec. 212.55(a) and 212.81(d) of the final rule),
cooperative relationships and volunteer agreements may be included in
this consideration.
Comment: Some respondents supported the Forest Service policy for
managing nonconforming uses in recommended wilderness and wilderness
study areas and encouraged the Forest Service to codify this policy
nationally in the final rule. Some respondents believed that
inventoried roadless areas, areas recommended for wilderness in land
management plans, and wilderness study areas should be more protected
under the final rule. Other respondents suggested that the Forest
Service amend 36 CFR 212.55(e) to state that ``National Forest System
roads, National Forest System trails, and areas on National Forest
System lands in wilderness areas, or primitive areas,
[[Page 4503]]
inventoried roadless areas, areas recommended for wilderness in land
and resource management plans, or wilderness study areas shall not be
designated for motor vehicle use pursuant to this section, unless, in
the case of wilderness areas, motor vehicle use is authorized by the
applicable enabling legislation for those areas.''
Response: The issue regarding nonconforming uses in recommended
wilderness and wilderness study areas is beyond the scope of this final
rule. The Department believes that the National Forests and Grasslands
should provide access for both motorized and non-motorized uses in a
manner that is environmentally sustainable over the long term.
Designations for motor vehicle use, including OSV use, are best made at
the local level, in coordination with Federal, State, Tribal, and local
governments and appropriate public involvement, as provided for in this
final rule.
Protection of roadless areas is adequately addressed by the
national and State-specific roadless rules and need not be addressed in
this rulemaking.
Comment: Many respondents commented on the backcountry hut system
in Colorado. Some of these respondents were in favor of allowing OSV
use in the area surrounding these huts, while other respondents were
opposed to OSV use in this area.
Response: Whether OSV use should be allowed in certain areas on NFS
lands is beyond the scope of this final rule. This final rule addresses
the procedural framework for making OSV use designations rather than
OSV use designations themselves. The Department encourages public
participation in local OSV use designations.
Comment: Some respondents stated that fat tire bicycles should be
regulated under the proposed rule. Some respondents stated that the
Forest Service should explicitly incorporate a definition of bicycles
that unambiguously distinguishes them from motor vehicles, including
OSVs, and should provide guidance to ensure that bicycles are managed
as a non-motorized use. Some respondents commented that bicycles should
be managed on their own merits and not as an afterthought to motorized
travel management.
Response: Regulation of non-motorized use, including bicycles
without motors, is beyond the scope of this final rule, which addresses
motorized use, specifically, OSV use. The Forest Service has clearly
defined the term ``bicycle'', which includes new fat tire bicycles, in
Forest Service Handbook 2309.18 as ``a pedal-driven, human-powered
device with two wheels attached to a frame, one behind the other.''
Management of bicycles, including fat tire bicycles in winter, would be
addressed as part of trail management planning for non-motorized uses.
New technologies that merge bicycles and motors, such as e-bikes, are
considered motor vehicles under Sec. 212.1 of the TMR.
Comment: Some respondents stated that the proposed rule should
require Forest Service employees to spend half their time in the field
improving conditions and reducing fuels for fire.
Response: Allocation of employees' time with regard to conditions
on the ground and reducing fuel loads is beyond the scope of this final
rule, which addresses regulation of OSV use.
Comment: Some respondents stated that the term ``Responsible Agency
Official'' should be clearly defined, and that identifying who this
official is might help with potential inconsistency in implementing the
rule.
Response: The Forest Service did not propose any changes pertaining
to identification of the Responsible Official in the current TMR.
Therefore, the request to define the term ``Responsible Official'' is
beyond the scope of this final rule. The Department believes the
meaning of this term is clear from the context of the TMR. The
Responsible Official in the context of the TMR is the person who has
responsibility for managing an administrative unit or a Ranger District
and who has delegated authority to make designation decisions under the
TMR for that unit or District.
Comment: Some respondents commented that education regarding
outdoor ethics is paramount for backcountry activities such as OSV use
and should be required in the final rule. These respondents believed
that inexperienced users cause much of the environmental damage and use
conflicts associated with OSV use and that better outdoor ethics
training could prevent a lot of these problems.
Response: Outdoor ethics training is outside the scope of this
rulemaking, which addresses designation of routes and areas for OSV
use. The Department appreciates the valuable and long-standing
contributions of nongovernmental organizations, including user groups,
to promote environmental ethics and responsible behavior on Federal
lands.
Comment: Some respondents commented that implementation of the
proposed rule would have a direct impact on grooming programs and
cooperative agreements for grooming among private organizations,
counties, and the Forest Service.
Response: The Department disagrees. The final rule revises the
procedural framework for designating routes and areas for OSV use
consistent with E.O. 11644, as amended, and the March 29, 2013, court
order and will not have any direct effect on grooming programs or
cooperative agreements for grooming among private organizations,
counties, and the Forest Service.
OSV Exemption in Subpart B
Comment: Some respondents stated that the Forest Service should
remove the OSV exemption in subpart B to provide consistency between
winter and summer travel management. Other respondents stated that OSVs
are motor vehicles and therefore should be subject to the same
regulation as other types of motor vehicles, such as OHVs. Some
respondents stated that the OSV exemption in subpart B is appropriate
given the differences between OSVs and other types of motor vehicles,
including OHVs.
Response: The Department believes that there are enough differences
between OSV use and other types of motor vehicle use to justify
regulation of OSV use in a separate subpart. As stated above, the
difference between management of OSV use and management of other types
of motor vehicle use on NFS lands stems from differences in their
associated settings, activities, environmental impacts, and public
preferences. For example, impacts from wheeled motor vehicles traveling
directly on the soil differ from impacts from motor vehicles with
tracks or skis traveling over snow. Therefore, the Department is
retaining the OSV exemption in subpart B of the TMR.
Biological Resource Management
Comment: Some respondents stated that the Forest Service should
limit OSV use off established trails to minimize damage to habitat for
species like bear, ermine, dusky grouse, lynx, mountain goat, bighorn
sheep, and snowshoe hare and that OSV use on trails should be limited
to areas with no ecological value to ensure these species have adequate
habitat. Other respondents stated that there is no credible evidence
that OSVs cause resource damage or have an impact on wildlife and that
the proposed rule should be rewritten to reflect that fact.
Response: The National Forests and Grasslands are managed by law
for multiple uses, including wildlife, timber, grazing, mining, and
outdoor recreation. These uses must be balanced, rather than given
preference.
[[Page 4504]]
OSV use may have an impact on NFS resources and wildlife. Managers must
apply the so-called ``minimization criteria'' in Sec. 212.55 when
determining which roads, trails and areas to authorize for OSV use in
order to minimize effects on National Forest resources including
wildlife. These criteria do not change with this rule. The Department
believes that National Forests and Grasslands should provide access for
both motorized and non-motorized uses in a manner that is
environmentally sustainable over the long term. The Department believes
that the analysis of effects to wildlife and other NFS resources for
designations for motor vehicle use, including OSV use, are best made at
the local level, in coordination with Federal, State, Tribal, and local
governments and with appropriate public involvement, as provided for in
this final rule.
Comment: Some respondents stated that allowing OSV use everywhere
hurts dedicated lynx and wolverine habitat. Some respondents stated
that a large portion of wolverine habitat in North America is under
Federal ownership and should be protected. These respondents requested
that the final rule fully evaluate and disclose the effects of
dispersed recreation on wolverines and their habitat and, where
necessary, minimize the harm from those activities. These respondents
also stated that the final rule should require the Forest Service to
consult with the U.S. Fish and Wildlife Service to determine best
mitigation practices regarding wolverines. Some respondents stated that
OSV use compact snow, which gives larger predators like the coyote
easier access to areas previously available to only smaller predators
like the lynx and results in increased competition during sensitive
lifecycles. Other respondents stated that there are fewer species in
the winter season than in the summer, but that their protection is
still important. Some respondents stated that Responsible Officials
should be required to use the best available technology (BAT), as
determined by the U.S. Environmental Protection Agency, in assessing
impacts of OSV use in areas with sensitive species or special features.
Some respondents stated that wildlife impacts from OSV use would be
minimal because OSV users tend to favor higher elevations and because
wildlife has typically migrated to lower elevations where conditions
are more favorable.
Response: The impact of OSV use on specific species, including
threatened and endangered species, in specific locations is beyond the
scope of this final rule. This final rule addresses the procedural
framework for making OSV use designations, rather than OSV use
designations themselves. OSV use designations are made at the local
level, with appropriate public input and coordination with Federal,
State, Tribal, and local governments based on the criteria in the final
rule (Sec. Sec. 212.55 and 212.81(d)). The final rule does not provide
for designating routes and areas for OSV use everywhere it may occur.
Rather, the final rule provides for designation of a system of routes
and areas where OSV use is allowed and for prohibition of OSV use that
is inconsistent with the designations.
The final rule will not have any effect on the ground until
designation of roads, trails, and areas for OSV use is complete for a
particular administrative unit or Ranger District, with appropriate
public involvement and coordination with Federal, State, Tribal, and
local governments. Designation decisions at the local level will be
accompanied by appropriate consideration of potential impacts on
threatened and endangered species. In making designations for OSV use,
the Forest Service will consult with the U.S. Fish and Wildlife
Service, as appropriate, under Section 7 of the Endangered Species Act.
BAT is not required for assessing impacts from motor vehicle use. The
Forest Service encourages public participation in local OSV decision
making.
Other Environmental Impacts and Use Conflicts
Comment: Some respondents noted that OSVs are heavy and compact the
snow, leaving deep tracks that make slopes unusable and dangerous for
cross-country skiing. These respondents stated that this impact could
be avoided by separating motorized and non-motorized uses. Some
respondents commented that motorized and non-motorized uses should be
located in separate staging areas, where possible, to limit use
conflicts. Some respondents believed that snow pack from track
compaction decreases snow melt. Other respondents stated that OSVs come
in direct contact with the soil when OSV users search for adequate snow
and that OSVs come in contact with the top of vegetation, which has an
impact on the soil and vegetation. Some respondents stated that
motorized and non-motorized recreational activities are legitimate uses
of Federal land, but they should be separated to ensure safe enjoyment
for all involved. Other respondents believed that OSV use is
incompatible with non-motorized uses and should be excluded from all
NFS lands or should be restricted to trails and subject to a licensing
requirement. Some respondents commented that the Responsible Official
should have to address OSV use in the same manner as other motorized
recreational uses on NFS lands. These respondents reasoned that the
issue of use conflicts between motorized and non-motorized recreation
is the same regardless of the level of snowfall or the season.
Other respondents stated that OSVs are loud and that their noise
carries, in some cases for several miles, which disturbs the quiet
recreational experience of non-motorized users. Some respondents
believed that OSVs compromise air and water quality, the landscape, and
the quiet of the natural forest setting. Some respondents believed that
OSV users leave behind trash and litter that adversely affects other
users. Other respondents stated that the Forest Service should endorse
the minimization of OSV use in the backcountry and that mechanized
travel spoils the wilderness experience.
Some respondents stated that the proposed rule should protect the
quiet use of NFS lands, as this use predates any motorized use. Some
respondents stated that the Forest Service failed to address non-
motorized winter recreational uses like skiing and snowshoeing, which
predate OSV use, and that these non-motorized uses are most likely to
be heavily impacted by OSV use and should be addressed. Some
respondents commented that it is difficult for non-motorized winter
users to reach the backcountry, but when they do and find it overrun
with OSVs, it can detract from their experience. These respondents
believed that motorized winter uses should be limited to certain areas
so that non-motorized winter users can seek solitude and quiet
elsewhere. Other respondents stated that advances in technology have
allowed OSVs to go places they never have before, further decreasing
the areas available for quiet recreation. Some respondents believed
that non-motorized uses should be given priority over motorized uses
when undertaking winter travel management planning.
Some respondents believed that OSVs with two-cycle motors are
obsolete and environmentally wasteful and should be banned in favor of
modern four-cycle motors. These respondents noted that the exhaust from
an OSV not only smells but lingers in the area for several hours.
Other respondents stated that OSVs do not come in direct contact
with the ground and often ride on a cushion of snow several feet thick,
and that when the snow melts, the tracks are washed away. Some
respondents believed that OSVs on NFS roads do little to no harm
[[Page 4505]]
compared to other motor vehicles and therefore should not be
restricted. Other respondents believed that motorized winter use is an
appropriate use of NFS lands and should not be limited in favor of non-
motorized winter uses. Some respondents suggested that winter travel
planning be based on an equitable process that eliminates the perceived
bias that the OSV community has dealt with for many years. These
respondents stated that non-motorized users like cross-country and
backcountry skiers, snowshoe enthusiasts, split boarders, and dog-
sledders have unlimited access to the backcountry, including areas that
they could not realistically reach without the aid of an OSV, while
OSVs are limited to small fractions of the National Forests and
Grasslands. These respondents believed that limiting OSVs to small
areas would result in more use conflicts and greater environmental
impacts.
Response: The site specific potential effects of OSV use on non-
motorized winter recreational use and natural resources and the
designation of certain types of OSVs in specific locations are beyond
the scope of this final rule. This final rule addresses the procedural
framework for making OSV use designations, rather than OSV use
designations themselves. OSV use designations are made at the local
level, with appropriate public input and coordination with Federal,
State, Tribal, and local governments based on the criteria in the final
rule (Sec. Sec. 212.55 and 212.81(d)). The same criteria are applied
to designations for OSV use and designations for other types of motor
vehicle use. Potential effects of OSV use on non-motorized winter
recreational use and natural resources are addressed in the procedural
framework for OSV use designations in the final rule. The criteria for
designation of roads, trails, and areas for OSV use in the final rule
require the Responsible Official to consider, with the objective of
minimizing, effects of OSV use on natural resources and conflicts
between OSV use and existing or proposed recreational uses of NFS
lands, including non-motorized winter recreational uses. In addition,
the criteria for designation of routes and areas for OSV use require
the Responsible Official to consider the compatibility of OSV use with
existing conditions in populated areas, taking into account sound,
emissions, and other factors (Sec. Sec. 212.55(b) and 212.81(d) of the
final rule).
The Department believes that National Forests and Grasslands should
provide access for both motorized and non-motorized uses in a manner
that is environmentally sustainable over the long term. The NFS is not
reserved for the exclusive use of any one group, nor must every use be
accommodated on every acre. It is entirely appropriate for different
areas of the NFS to provide different opportunities for recreation. The
Department believes that designations for motor vehicle use, including
OSV use, are best made at the local level, in coordination with
Federal, State, Tribal, and local governments and with appropriate
public input, as provided for in this final rule. The Forest Service
encourages public involvement in local OSV decisions.
The Department agrees that OSVs have different impacts from other
types of motor vehicles that run on the ground. However, per EO 11644,
as amended, and the court order, the Forest Service must designate
those routes and areas where OSV use is allowed and those routes and
areas where OSV use is prohibited.
Economic Impacts
Comment: Some respondents believe that increased regulation of OSV
use will have a negative impact on small-town economies that depend on
OSV users for income.
Response: The final rule revises the procedural framework for local
decision-making regarding OSV use and will not have any effect until
designation of roads, trails, and areas for OSV use is complete for a
particular administrative unit or Ranger District, with appropriate
public involvement and coordination with Federal, State, Tribal, and
local governments. Even after OSV designations are complete, the final
rule will have no direct impact on small business entities because
designations merely will regulate where OSV use will occur on NFS
roads, on NFS trails, and in areas on NFS lands. The Department has
determined that the final rule will not have a significant economic
impact on a substantial number of small entities because the final rule
will not impose recordkeeping requirements on them, nor will it affect
their competitive position in relation to large entities or their cash
flow, liquidity, or ability to remain in the market.
Comment: Some respondents stated that non-motorized winter users of
NFS lands use staging areas and trails that in many cases have been
plowed or groomed with revenue from OSV users; that non-motorized users
do not pay for plowed trailhead parking or groomed trails but want
increased access to these areas; and that non-motorized users should be
required to share the cost of plowing trailhead parking and grooming
trails by paying for a trail pass or parking pass or paying a use fee.
Some respondents stated that if non-motorized users want a separate
system of trails, they should have to pay a separate fee to fund
maintenance of those trails. Other respondents stated that the
motorized recreation community has many partnerships in place to
maintain and improve existing trails that are used by both motorized
and non-motorized users.
Response: The extent to which the costs of plowing trailhead
parking and grooming trails are borne by users is beyond the scope of
this rulemaking. The Forest Service does not typically plow trailhead
parking or groom trails and does not run programs that generate revenue
to pay for these services. States or private organizations typically
plow trailhead parking and groom trails using revenue derived from the
States' sales tax or the sale of stickers issued by the States. The
final rule revises the procedural framework for local decision-making
regarding OSV use and will not have any effect until designation of
roads, trails, and areas is complete for a particular administrative
unit or Ranger District, with appropriate public involvement and in
coordination with Federal, State, Tribal, and local governments. The
Forest Service's authority to charge and retain fees for use of
recreational facilities and services is contained in the Federal Lands
Recreation Enhancement Act (16 U.S.C. 6801-6814), which is beyond the
scope of this rulemaking. The Department agrees that cooperators make
valuable contributions to maintenance and improvement of NFS trails for
both motorized and non-motorized users.
Demographics of OSV Use
Comment: The demographics used in the proposed rule are outdated
and should be updated to reflect current OSV use.
Response: The demographics for OSV use used in the proposed rule
are provided for background purposes and date from a 2012 Resource
Planning Assessment. These figures are current, as figures in Resource
Planning Assessments conducted under the Forest and Rangeland Renewable
Resources Planning Act of 1974 (RPA) (16 U.S.C. 1600 note, 1600-1614)
are normally updated every 5 to 10 years. The increase in cross-country
skiing between 1992-93 and 1999-2000 is 2.6 million visits, while the
increase in OSV use for those periods is 6.1 million visits.
Comment: The percentages used in the proposed rule to demonstrate
an
[[Page 4506]]
increase in recreational activities like bird-watching and fishing can
be misleading; the Forest Service should replace them with actual
numbers.
Response: This information was provided for background purposes and
came from research data in ``Outdoor Recreation Trends and Futures, a
Technical Document Supporting the Forest Service 2010 RPA Assessment,''
p. 135 (H. Cordell, 2012) at http://www.srs.fs.usda.gov/pubs/gtr/gtr_srs150.pdf.
Recreational Preferences
Comment: Some respondents stated that wilderness areas have
increased steadily over the last 40 years, which has limited all forms
of motorized recreation and given more access to non-motorized uses.
These respondents stated that Federal lands should be open to all
members of the public.
Response: This final rule does not encourage or discourage motor
vehicle use, but rather requires designation of roads, trails, and
areas for OSV use. The Department believes that a well-designed system
of routes and areas designated for OSV use can reduce maintenance needs
and environmental damage while enhancing the recreational experience
for all users, both motorized and non-motorized.
Comment: Some respondents commented that motor vehicle access for
the elderly and persons with disabilities should not be limited.
Response: Under section 504 of the Rehabilitation Act of 1973, no
person with a disability can be denied participation in a Federal
program that is available to all other people solely because of his or
her disability. In conformance with section 504, wheelchairs are
welcome on all NFS lands that are open to foot travel and are
specifically exempted from the definition of a motor vehicle in Sec.
212.1 of the TMR, even if they are battery-powered. However, there is
no legal requirement to allow people with disabilities to use OSVs on
NFS roads, on NFS trails, and in areas on NFS lands where OSV use is
prohibited because such an exemption could fundamentally alter the
nature of the Forest Service's travel management program (7 CFR
15e.103). Reasonable restrictions on OSV use, applied consistently to
everyone, are not discriminatory.
Comment: Some respondents believed that the Forest Service should
remove references to ``play areas'' from the final rule because all
types of terrain are conducive to OSV travel and recreation.
Response: Like the proposed rule, the final rule does not include a
reference to ``play areas.''
Comments Related to Specific Sections of the Proposed Rule
Part 212--Travel Management
Subpart A--Administration of the Forest Transportation System
212.1--Definitions
Comment: Some respondents commented that designation of areas as
big as a Ranger District would not comply with the language or intent
of EO 11644, as amended. Some respondents commented that the proposed
definition for an area would not resolve use conflicts and would only
exacerbate them. One respondent suggested that designated areas should
be limited to watersheds no larger than those assigned hydrologic unit
code 6 by the U.S. Geological Survey. Other respondents supported the
proposed definition of an area.
Response: E.O. 11644, as amended, does not define the term
``area.'' The amended definition for ``area'' in the proposed and final
rules is based on the characteristics of OSV use, which presents a
distinct suite of issues. An OSV traveling over snow has different
impacts on natural resource values than motor vehicles traveling over
the ground. Unlike other 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. However, OSV use
may have an impact on NFS resources and wildlife. The Department
anticipates that it may be appropriate to designate areas for cross-
country OSV use and that it may be appropriate to designate larger
areas for cross-country OSV use than for cross-country use by other
types of motor vehicles. Accordingly, the definition for an area in the
proposed and final rules exempts OSVs from the statement that in most
cases an area will be much smaller than a Ranger District. The
definition of ``area'' in the proposed and final rules does not provide
that areas designated for OSV use will necessarily be as large as a
Ranger District, but rather that they do not have to be much smaller
than a Ranger District. As with evaluation of areas proposed for other
types of motor vehicle use, proposed OSV areas will be subject to the
minimization criteria in Sec. 212.55(b)(1)-(4), pursuant to Sec.
212.81(d) of the final rule.
Comment: Some respondents commented that the definition of the term
``over-snow vehicle'' needs to be expanded to allow for modified
vehicles, such as snowcats and fat tire bicycles, to be used on the
trail system if permitted by State law.
Response: Regulation of non-motorized uses such as bicycle use is
beyond the scope of this rulemaking. The definition of ``over-snow
vehicle'' is also beyond the scope of this rulemaking, as it was not
proposed for revision. The Department does not believe it is necessary
or appropriate to revise the definition of ``over-snow vehicle'' at
this time.
Subpart C---Over-Snow Vehicle Use
212.81(a)--Over-Snow Vehicle Use, General
Comment: Some respondents believed that local officials should be
given the discretion 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.
Some respondents believed that the Responsible Official should not
have the discretion 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. These respondents stated that
winter travel management planning should be more consistent with travel
management planning in other seasons by producing a system of routes
and areas where OSV use is prohibited unless allowed. These respondents
noted that this approach is easily understood by the public and is more
enforceable. Other respondents stated that where appropriate (for
example, where no natural resource issues are identified), the Forest
Service should be consistent regarding designations for OSV use across
District, Forest, and Regional boundaries. These respondents believed
that District, Forest, and Regional boundaries can be confusing to the
public and that consistent designations for OSV use would improve
public understanding as well as provide consistent opportunities for
OSV use.
Other respondents commented that the proposed rule violates E.O.
11644, as amended, and the March 29, 2013, court decision by continuing
to allow designation of a system that is open unless closed to OSV use,
which circumvents analysis of impacts from OSV use. Other respondents
commented that, to be consistent with the E.O. 11644, as amended, the
Agency must designate trails and areas where OSV use is allowed and
trails and areas where OSV use is not allowed.
Response: In its March 29, 2013, ruling, the Federal District Court
held that under E.O. 11644, as amended, the Forest Service has the
discretion to determine how to regulate OSV use, but
[[Page 4507]]
that the Agency does not have the discretion to determine whether it
will regulate OSV use. The proposed rule is consistent with the court's
ruling in that it requires the Agency to designate routes and areas for
OSV use, but gives the Responsible Official the discretion to determine
whether to designate a system of routes and areas that is open unless
designated closed to OSV use or a system of routes and areas that is
closed unless designated open for OSV use. In either case, 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.
The Department agrees that it would be clearer for the public and
would enhance consistency in travel management planning and decision-
making if the Responsible Official were required to designate a system
of routes and areas where OSV use is prohibited unless allowed.
Accordingly, the Department has revised Sec. 212.81(a) in the final
rule to state that, subject to specified exemptions, OSV use on NFS
roads, on NFS trails, and in areas on NFS lands must be designated by
the Responsible Official on administrative units or Ranger Districts,
or parts of administrative units or Ranger Districts, where snowfall is
adequate for that use to occur and, as appropriate, must be designated
by class of vehicle and time of year. Under Sec. 261.14 of the final
rule, OSV use that is not in accordance with the designations reflected
on an OSV use map is prohibited.
The Department has removed the definition of ``designated road,
trail, or area'' from Sec. 212.1, as with promulgation of this final
rule it is no longer accurate to define designated routes and areas as
those that are designated for motor vehicle use pursuant to Sec.
212.51 on a motor vehicle use map. Under this final rule, routes and
areas will also be designated for OSV use pursuant to Sec. 212.81 on
an OSV use map.
Comment: Most respondents commented that OSV designation decisions
should be made at the local level, not at the national level. Some
respondents commented that the local Forest Service official should
retain the discretion to manage OSV use to address local conditions.
Many respondents stated that whether there is adequate snowfall for
OSV use should be determined at the local level and should not be based
on specific starting and ending dates because of the unpredictability
of snowfall. Some respondents suggested that adequate snowfall be
determined by a minimum depth, rather than a specific timeframe. Other
respondents suggested that OSV use be zoned by timeframe as well as by
location.
Response: The Department agrees that OSV designation decisions,
including adequacy of snowfall for OSV use, should be made at the local
level, as reflected in the final rule. Designation of OSV use in
specific locations, including determination of where snowfall is
adequate for OSV use to occur, is beyond the scope of this rule. The
final rule revises the procedural framework for local decision-making
regarding OSV use, utilizing the criteria for designation of roads,
trails, and areas (Sec. Sec. 212.55 and 212.81(d) of the final rule).
Section 212.81(a) of the proposed rule provides, subject to certain
exceptions, that OSV use on NFS roads, on NFS trails, and in areas on
NFS lands must be designated on administrative units and Ranger
Districts, or parts of those units and Districts, where snowfall is
adequate for that use to occur. The Forest Service intended the phrase,
``where snowfall is adequate for that use to occur,'' to have two
applications. First, the Agency intended the phrase to exempt units
like the National Forests of Florida that never have enough snowfall
for OSV use to occur from the designation requirement in Sec.
212.81(a). Second, where snowfall may occur, but is not consistently
adequate for OSV use to occur, the Agency intended the phrase to
provide for the Responsible Official to determine when snowfall is
adequate in designating OSV use. To clarify these intentions, the
Department has added the phrase, ``and if appropriate, shall be
designated by class of vehicle and time of year,'' after the phrase,
``where snowfall is adequate for that use to occur.'' The Department
has included the phrase, ``class of vehicle,'' to enhance consistency
with subpart B, in accordance with the preceding comment and response,
and to allow Responsible Officials to take into account changing
technology in OSVs. The Department has included the qualifier, ``as
appropriate,'' because it may not always be appropriate or necessary to
designate OSV use by class of vehicle or time of year. The Department
believes that determinations of when snowfall is adequate for OSV to
occur should be based on local conditions, including, as appropriate,
variability in the weather.
Comment: Many respondents commented that the proposed rule
recognizes the difference between OSV use in the East and OSV use in
the Midwest and West. These respondents stated that cross-country
travel is the preferred method of OSV use in the Midwest and West and
should be allowed to continue under the final rule. Other respondents
believed that OSV use in the West should not be limited to designated
trails and that experienced riders would not ride off route in an area
that is not conducive to OSV use because they are aware that riding in
this type of area would damage the expensive tracks on OSVs. Some
respondents stated that OSVs should be given the same opportunity to
travel cross-country as skiers and snowshoers. Some respondents
suggested that the ability to travel cross-country on an OSV is what
brings people to snow-covered areas and that by limiting OSV use to
routes, the Forest Service would decrease the number of people who will
visit these areas. Some respondents believed that the proposed rule
recognizes that OSV use is a legitimate use on NFS lands and that OSV
use should not be limited to designated trails and roads, but should
also be allowed to occur in open areas. These respondents stated that
the proposed rule should be implemented as written.
Other respondents believed that cross-country OSV use should not be
allowed because OSV users can quickly become lost and end up in a non-
motorized area. Some respondents suggested that areas 3 to 5 square
miles beyond trailheads and parking lots should be closed to cross-
country OSV use during the snow months. These respondents believed that
this approach would allow OSVs to access the backcountry while leaving
the more accessible areas to snowshoers and cross-country skiers.
Response: The Department agrees that OSV use presents a distinct
suite of issues. An OSV traveling over snow has different impacts on
natural resource values than motor vehicles traveling over the ground.
Unlike other 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. Therefore, the Department
anticipates that it may be appropriate to designate areas for cross-
country OSV use and that it may be appropriate to designate larger
areas for cross-country OSV use than for cross-country use by other
types of motor vehicles. Accordingly, the definition for an area in the
proposed and final rules exempts OSVs from the statement that in most
cases an area will be much smaller than a Ranger District. Whether
specific areas should be designated for OSV use is beyond the scope of
this final rule. This final rule addresses the procedural framework for
making OSV use designations, rather than OSV use designations
themselves. OSV use designations are made at the
[[Page 4508]]
local level, with appropriate public input and coordination with
Federal, State, Tribal, and local governments, based on the criteria in
the final rule (Sec. Sec. 212.55 and 212.81(d)).
Comment: Some respondents commented that the proposed rule should
restrict OSV use to designated routes and prohibit cross-country OSV
use near wilderness and that the routes should be designated so as to
minimize impacts on wilderness and wildlife and to avoid impairment of
the visitor experience in wilderness.
Response: The Department does not believe it would be appropriate
for this rule to restrict OSV use to designated routes and prohibit
cross-country OSV use near wilderness. Responsible officials will
consider impacts of OSV use on nearby wilderness and wildlife during
the designation process by applying the minimization criteria of 212.55
to minimize effects to National Forest resources and to other users.
Comment: Some respondents commented that Forest Service units will
need to conduct site-specific analysis for all resources within an area
to be designated for OSV use, which would require a ``hard look'' under
the National Environmental Policy Act (NEPA). These respondents
believed that the NEPA process for designating an area for OSV use
could be onerous. Other respondents commented that NEPA documentation
for winter travel management decisions does not adequately reflect how
the Forest Service applied the minimization criteria in the TMR in
those decisions and is inconsistent with the TMR.
Response: Regulations implementing NEPA are issued by the Council
on Environmental Quality and are found at 40 CFR part 1500. Agency
direction on NEPA compliance is found in 36 CFR part 220 and FSH
1909.15. The Department believes that the scope, content, and
documentation of NEPA analysis associated with designating routes and
areas for OSV use will ultimately depend on site-specific factors,
including the local history of travel planning, public input, and
environmental impacts at the local level. Therefore, the Department is
not addressing NEPA compliance in this final rule. The Responsible
Official will address application of the minimization criteria pursuant
to Sec. Sec. 212.55(b)(1)-(4) and 212.81(d) of the final rule in
documentation for OSV designation decisions.
Comment: Some respondents stated that the Forest Service should
clarify in the final rule the need to apply the minimization criteria
in the TMR to trails within areas that are proposed for designation for
OSV use. Other respondents commented that by failing to provide for
analysis of trails within areas, the proposed rule does not address the
requirement to show that OSV use on those routes will not have a
negative impact on the environment or other uses.
Response: The Department believes that if an area is analyzed
appropriately under NEPA for OSV use utilizing the criteria established
in the final rule (Sec. Sec. 212.55 and 212.81(d)), there is no need
for additional analysis to evaluate effects of OSV use on specific
trails in that area, which are typically covered by snow. As units
analyze an area, impacts on the environment and other users will be
minimized within that area as specified in Sec. 212.55(b)(1)-(4).
Consistent with the EOs, the proposed and final rules do not require
the Forest Service to show the absence of any adverse impacts from OSV
use on the environment or other uses. Rather, the proposed and final
rules require the Agency to consider, with the objective of minimizing,
certain environmental impacts and use conflicts (Sec. 212.55(b)(1)-
(4)).
Comment: Some respondents commented that there is a master
memorandum of understanding between the Forest Service's Alaska Region
and the Alaska Department of Fish and Game (ADF&G) and that ADF&G has
authority to regulate fish and wildlife populations on NFS lands,
except to the extent that authority is superseded by Federal law. These
respondents also noted that, with regard to designated wilderness in
Alaska, administrative use of OSVs by governmental agencies is allowed
pursuant to the Alaska National Interest Lands Conservation Act
(ANILCA) and Forest Service Manual Supplement no. R-10 2300-2003-2,
2326.1, Conditions Under Which Use May Be Approved. These respondents
suggested amending the exemption from OSV designations in proposed
Sec. 212.81(a)(1) for limited administrative use by the Forest Service
to add administrative use by State fish and wildlife management
agencies. These respondents believed that an exemption should be
granted for all administrative use because the qualifier ``limited'' is
not defined and is redundant, since Agency administrative field work
and travel are presumably necessary rather than superfluous.
Response: The Department disagrees that the exemption from OSV
designations in Sec. 212.81(a)(1) of the proposed rule and from the
prohibition in Sec. 261.14(a) of the TMR for limited administrative
use by the Forest Service should be revised to add limited
administrative use by State fish and wildlife management agencies. The
Department has retained the qualifier ``limited administrative use'' in
the exemption. A broad exemption from OSV designations could undercut
the purposes of the final rule. The Department is not making the
requested revision so as to stay consistent with the corresponding
exemption in Sec. Sec. 212.51(a)(4) and 261.13(d) of the TMR. The
Forest Service has the ability to authorize OSV use by State fish and
wildlife management agencies on a case-by-case basis.
Comment: Some respondents stated that there should be a process for
administrative review of OSV designation decisions prior to their
enforcement.
Response: OSV designation decisions that are documented with a
decision notice or record of decision associated with an environmental
assessment or environmental impact statement are subject to the
predecisional objection process in 36 CFR part 218.
212.81(b)--Previous Comprehensive Over-Snow Vehicle Decisions
Comment: Some respondents believed that all areas on NFS lands that
are open to OSV use should remain that way.
Other respondents stated that the final rule should allow areas and
routes to be designated for OSV use only after comprehensive analysis
has been made available for public review and comment.
Response: The final rule's prohibition on OSV use off the
designated system (Sec. 261.14) goes into effect on an administrative
unit or a Ranger District once that unit or District has designated
those NFS roads, NFS trails, and areas on NFS lands that are open to
OSV use and published an OSV use map identifying those roads, trails,
and areas (Sec. 212.81(c) of the final rule). Until designations for a
unit or District are complete and an OSV use map identifying those
designations is published, existing OSV travel management policies,
restrictions, and orders remain in effect. Use of NFS roads, NFS
trails, and areas on NFS lands consistent with current OSV travel
management decisions and management objectives may continue. Forest
Supervisors may continue to issue travel management orders pursuant to
part 261, subpart B, and impose temporary, emergency closures based on
a determination of considerable adverse effects pursuant to Sec. Sec.
212.52(b)(2) and 212.81(d) of the final rule. Under Sec. Sec.
212.80(b) and 212.81(b) of the final rule, previous administrative
decisions that allow, restrict, or prohibit
[[Page 4509]]
OSV use on NFS roads and NFS trails or in areas on NFS lands and that
were made under other authorities may remain in effect.
As stated above, units or Districts that have completed OSV use
designations under other authorities and including public involvement
do not have to revisit them and may, with public notice but no further
analysis or decision-making, establish those decisions as the
designation pursuant to this final rule for the unit or District,
effective upon publication of an OSV use map.
In that situation, the only substantive change effected by this
final rule will be enforcement of the restrictions pursuant to the
prohibition in Sec. 261.14, rather than pursuant to an order issued
under part 261, subpart B. Section 212.81(b) of the final rule provides
that no further public involvement is required in this special case.
Alternatively, Responsible Officials may revise OSV designations under
Sec. Sec. 212.54 and 212.81(d) of the final rule.
New OSV designation decisions will be subject to the procedural
requirements in the final rule, including appropriate public
involvement (Sec. Sec. 212.52(a) and 212.81(d) of the final rule).
Nothing in this final rule requires reconsideration of any previous
administrative decisions that allow, restrict, or prohibit OSV use on
NFS roads and NFS trails or in areas on NFS lands and that were made
under other authorities, including decisions made in land management
plans and travel plans. Section 212.80(b) of the final rule provides
that these decisions may be incorporated into OSV designations made
pursuant to this final rule.
Comment: Some respondents suggested that the Forest Service
establish an expiration date for all previous OSV use decisions to
ensure that an administrative unit or a Ranger District is not relying
on OSV use decisions or winter travel plans that are woefully out of
date. Other respondents stated that previous OSV use decisions should
not be given undue weight, and that just because they were made under
previous authorities does not mean that they should not be reviewed.
Some respondents suggested that all existing OSV use decisions be
reviewed for compliance with the minimization criteria in the TMR and
E.O. 11644, as amended. Other respondents believed that if previous OSV
use decisions addressed the minimization criteria in E.O. 11644, as
amended, and were made with public involvement, they should not have to
be reviewed, but that previous OSV use decisions that do not meet these
criteria should have to be reviewed under the proposed rule. Some
respondents suggested that the Forest Service retain only previous OSV
use decisions that were based on application of the minimization
criteria, as required by E.O. 11644, and that all other previous OSV
use decisions are deemed invalid.
Some respondents believed that previous OSV use decisions should
not have to be reviewed, as they were made in accordance with the legal
authorities in effect at that time, and as the Forest Service does not
have the budget or personnel to review all previous OSV use decisions
while making new OSV use decisions. These respondents believed that
requiring review of all previous OSV use decisions would result in a
backlog that would negatively affect all winter recreationists.
Response: The Department does not believe that previous OSV use
decisions made under other authorities should be subject to an
expiration date or a requirement for review. As with prior
administrative decisions governing other types of motor vehicle use,
nothing in this final rule requires reconsideration of any previous
administrative decisions that allow, restrict, or prohibit OSV use on
NFS roads and NFS trails or in areas on NFS lands and that were made
under other authorities, including decisions made in land management
plans and travel plans. To the contrary, Sec. Sec. 212.80(b) and
212.81(b) of the final rule provide for these decisions to be given
effect. The Department believes that previous OSV use decisions made
under other authorities are valid and that requiring review of previous
OSV use decisions would be inefficient and disrespectful of public
involvement in past OSV use decision-making. The final rule recognizes
that designations of roads, trails, and areas for OSV use are not
permanent. Unforeseen environmental impacts, changes in public demand,
route construction, and monitoring conducted under Sec. Sec. 212.57
and 212.81(d) of the final rule may lead Responsible Officials to
consider revising OSV designations under Sec. Sec. 212.54 and
212.81(d) of the final rule.
212.81(c)--Decision-Making Process
Comment: Some respondents stated that the specific requirements for
management of OSV use in E.O. 11644, as amended, as reinforced by the
March 29, 2013, court ruling, should be incorporated into the proposed
rule.
Response: The Department agrees and believes that the final rule is
consistent with E.O. 11644, as amended, and the March 29, 2013, court
ruling in requiring the Responsible Official to designate those routes
and areas where OSV use is allowed and in prohibiting OSV use off the
designated system.
Comment: Some respondents suggested expanding the criterion to
consider conflicts between motorized and non-motorized uses under Sec.
212.55(b)(3) in making OSV designations to state that (1) remote lands
that are not readily reachable by non-motorized winter recreationists
but are readily reachable by OSV users should not be counted against
OSV users; (2) OSV users should be credited for maintaining restrooms,
parking facilities, and trails that benefit non-motorized
recreationists; and (3) lands that are open to OSV use generally remain
open to non-motorized winter recreation and so provide value to non-
motorized recreationists.
Response: The Department does not believe that it would be
appropriate to make this revision. Section 212.55(b)(3) of the TMR
applies to all types of motor vehicle use, including OSV use, and
tracks the corresponding wording in Section 3(a)(3) of E.O. 11644, as
amended. Decisions regarding where OSV use may occur are best made at
the local level based on site-specific conditions and with appropriate
public involvement, including input from motorized and non-motorized
users and other interested parties.
Comment: Some respondents commented that the final rule should
require the Responsible Official to coordinate with State and local
officials before making any preliminary or final OSV designation
decision.
Response: The Department agrees that travel management decisions
should be coordinated with appropriate Federal, State, Tribal, county,
and other local governments, as provided for in Sec. Sec. 212.53 and
212.81(d) of the final rule.
Comment: Some respondents commented that the proposed rule
appropriately requires the Responsible Official to recognize Sections
811(b) and 1110(a) of ANILCA when implementing the rule in Alaska and
that the proposed rule should reference OSV use authorized under other
applicable provisions of ANILCA.
Response: The Department declines to make this change, as sections
811(b) and 1110(a) are the only provisions in ANILCA that directly
address OSV use.
Comment: Some respondents stated that the OSV use map, a
requirement under the proposed rule, must have sufficient detail in
order to be useful, and that the final rule should identify more
clearly what should be included on an OSV use map.
Response: The Forest Service plans to develop a standard national
format for
[[Page 4510]]
OSV use maps issued under this final rule. The Forest Service also
plans to issue additional travel management guidance in its sign
handbook to enhance consistency in content and use of standard
interagency symbols in signs. In addition, the Department has added a
definition for ``over-snow vehicle use map'' to 36 CFR 212.1 and has
moved the requirement for an OSV use map in subpart C to a separate
section, Sec. 212.81(c) of the final rule, to underscore that this
requirement is separate from the requirement for a motor vehicle use
map under subpart B. Consistent with Sec. 212.81(a) of the final rule,
Sec. 212.81(c) of the final rule provides for an OSV use map to
display the classes of vehicles and the time of year designated for OSV
use, if applicable.
Comment: Some respondents stated that NFS roads, NFS trails, and
areas on NFS lands designated for OSV use should be clearly marked.
Other respondents believed that restrictions on OSV use should be more
clearly relayed to the public so incidents of OSV use off the
designated system could be reported to the proper authorities. These
respondents recommended increasing signage around areas designated for
OSV use to increase awareness of these designations by both motorized
and non-motorized users.
Response: The Department declines to adopt this suggestion. The
Forest Service has found that posting routes as open or closed to
particular uses has not always been effective in controlling use,
partly because new unauthorized routes continue to appear even in areas
that are closed to motor vehicle use. Requiring each undesignated route
and area to be posted as closed would be an unreasonable and
unnecessary burden on Agency resources and would tend to defeat the
purpose of the final rule. Signs have also proven to be difficult to
maintain and subject to vandalism. The final rule places more
responsibility on users to get OSV use maps from Forest Service offices
or Web sites and to remain on routes and in areas designated for OSV
use. This approach is consistent with subpart B of the TMR.
Part 261--Prohibitions
Subpart A--General Prohibitions
261.14--Over-Snow Vehicle Use
Comment: Some respondents suggested that the Forest Service require
a special use permit for or prohibit activities and events involving
OSV use on NFS lands. Other respondents commented that day use permits
should be required for OSV use to limit impacts on natural resources
and non-motorized users.
Response: Regulation of activities and events involving OSV use on
NFS lands is beyond the scope of this rulemaking, which involves
designation of routes and areas for OSV use. OSV use designations are
made at the local level, with appropriate public input and coordination
with Federal, State, Tribal, and local governments based on the
criteria in the final rule (Sec. Sec. 212.55 and 212.81(d)). The
Department does not believe it would be appropriate to establish a
prohibition on activities and events involving OSV use, which is a
legitimate use of NFS lands. Permit requirements for OSV use are
governed by the Federal Lands Recreation Enhancement Act (16 U.S.C.
6802(h)).
5. Regulatory Certifications for the Final Rule
Regulatory Impact
This final rule has been reviewed under USDA procedures and E.O.
12866 on regulatory planning and review. The Office of Management and
Budget (OMB) has determined that this final rule is nonsignificant and
is therefore not subject to OMB review under E.O. 12866.
Environmental Impact
This final rule requires designation at the field level, with
appropriate public input, of those NFS roads, NFS trails, and areas on
NFS lands that are open to OSV use. This final rule will have no effect
on users or on the environment until designation of NFS roads, NFS
trails, and areas on NFS lands for OSV use is complete for a particular
administrative unit or Ranger District, with appropriate 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 Department has concluded that this final 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
The Department has considered this final rule in light of the
Regulatory Flexibility Act (5 U.S.C. 602 et seq.). This final rule will
not directly affect small businesses, small organizations, and small
governmental entities. The Department has determined that this final
rule will not have a significant economic impact on a substantial
number of small entities pursuant to the Regulatory Flexibility Act
because it will not impose recordkeeping requirements on them; it will
not affect their competitive position in relation to large entities;
and it will not affect their cash flow, liquidity, or ability to remain
in the market.
Federalism and Consultation and Coordination With Indian Tribal
Governments
The Department has considered this final rule under the
requirements of E.O. 13132 on federalism and has determined that the
final rule conforms with the federalism principles set out in this E.O.
The final rule will not impose any compliance costs on the States and
will 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 Department has determined that no further
assessment of federalism implications is necessary at this time.
Moreover, this final rule does not have Tribal implications as
defined by E.O. 13175, entitled ``Consultation and Coordination with
Indian Tribal Governments,'' and therefore advance consultation with
Tribes is not required.
No Takings Implications
The Department has analyzed this final rule in accordance with the
principles and criteria contained in E.O. 12630. The Department has
determined that this final rule will not pose the risk of a taking of
private property.
Controlling Paperwork Burdens on the Public
This final rule does not contain any 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
The Department has reviewed this final rule under E.O. 13211,
entitled ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use.'' The Department has determined
that this final rule does not constitute a significant energy action as
defined in the E.O.
[[Page 4511]]
Civil Justice Reform
The Department has reviewed this final rule under E.O. 12988 on
civil justice reform. After adaptation of this final rule, (1) all
State and local laws and regulations that conflict with this final rule
or that impede its full implementation will be preempted; (2) no
retroactive effect will be given to this final rule; and (3) it will
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 Department has assessed the effects of this final rule on
State, Tribal, and local governments and the private sector. This final
rule will not compel the expenditure of $100 million or more by any
State, Tribal, or local 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,
and Transportation.
36 CFR Part 261
Law enforcement, National forests.
Therefore, for the reasons set out in the preamble, the Forest
Service amends parts 212 and 261 of title 36 of the Code of Federal
Regulations as follows:
PART 212--TRAVEL MANAGEMENT
Subpart A--Administration of the Forest Transportation System
0
1. The authority citation for 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,'' adding
definitions for ``designation of over-snow vehicle use'' and ``over-
snow vehicle use map'' in alphabetical order, and removing the
definition for ``designated road, trail, or area'' 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, a National Forest System trail, or an area on
National Forest System lands where over-snow vehicle use is allowed
pursuant to Sec. 212.81.
* * * * *
Over-snow vehicle use map. A map reflecting roads, trails, and
areas designated for over-snow vehicle use on an administrative unit or
a Ranger District of the National Forest System.
* * * * *
Subpart C--Over-Snow Vehicle Use
0
3. Revise the heading of subpart C to read as set forth above.
0
4. The authority citation for subpart C continues to read as follows:
Authority: 7 U.S.C. 1011(f), 16 U.S.C. 551, E.O. 11644, 11989
(42 FR 26959).
0
5. Revise Sec. 212.80 to read as follows:
Sec. 212.80 Purpose, scope, and definitions.
(a) Purpose. This subpart provides for a system of National Forest
System roads, National Forest System trails, and areas on National
Forest System lands that are designated for over-snow vehicle use.
After these roads, trails, and areas are designated, over-snow vehicle
use not in accordance with these designations is prohibited by 36 CFR
261.14. Over-snow vehicle use off designated roads and trails and
outside designated areas is prohibited by 36 CFR 261.14.
(b) Scope. The Responsible Official may incorporate previous
administrative decisions regarding over-snow vehicle use made under
other authorities in designating National Forest System roads, National
Forest System trails, and areas on National Forest System lands for
over-snow vehicle use under this subpart.
(c) Definitions. For definitions of terms used in this subpart,
refer to Sec. 212.1.
0
6. Revise Sec. 212.81 to read as follows:
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 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, and, if appropriate, shall be
designated by class of vehicle and time of year, 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 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, which restrict over-snow
vehicle use to designated routes and areas 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) Identification of roads, trails, and areas for over-snow
vehicle use. Designation of National Forest System roads, National
Forest System trails, and areas on National Forest System lands for
over-snow vehicle use shall be reflected on an over-snow vehicle use
map. Over-snow vehicle use maps shall be made available to the public
at headquarters of corresponding administrative units and Ranger
Districts of the National Forest System and, as soon as practicable, on
the Web site of the corresponding administrative units and Ranger
Districts. Over-snow vehicle use maps shall specify the classes of
vehicles and the time of year for which use is designated, if
applicable.
(d) Decision-making process. Except as modified in paragraph (b) of
this section, 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 (public involvement), 212.53
(coordination), 212.54 (revision), 212.55 (designation criteria
(including minimization)), and 212.57 (monitoring), 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).
[[Page 4512]]
PART 261--PROHIBITIONS
0
7. 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
8. Revise the definition for ``area'' in Sec. 261.2 to read as
follows:
Sec. 261.2 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.
* * * * *
0
9. Revise Sec. 261.14 to read as follows:
Sec. 261.14 Over-snow vehicle use.
After National Forest System roads, National Forest System trails,
and areas on National Forest System lands have been designated for
over-snow vehicle use pursuant to 36 CFR 212.81 on an administrative
unit or a Ranger District of the National Forest System, and these
designations have been identified on an over-snow vehicle use map, it
is prohibited to possess or operate an over-snow vehicle on National
Forest System lands in that administrative unit or Ranger District
other than in accordance with those designations, provided that the
following vehicles and uses are exempted from this prohibition:
(a) Limited administrative use by the Forest Service;
(b) Use of any fire, military, emergency, or law enforcement
vehicle for emergency purposes;
(c) Authorized use of any combat or combat support vehicle for
national defense purposes;
(d) Law enforcement response to violations of law, including
pursuit;
(e) Over-snow vehicle use that is specifically authorized under a
written authorization issued under Federal law or regulations; and
(f) Use of a road or trail that is authorized by a legally
documented right-of-way held by a State, county, or other local public
road authority.
Dated: January 20, 2015.
Robert Bonnie,
Under Secretary, NRE.
[FR Doc. 2015-01573 Filed 1-27-15; 8:45 am]
BILLING CODE 3411-15-P