General Provisions; Electric Bicycles |
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George Wallace
Department of the Interior
2 November 2020
[Federal Register Volume 85, Number 212 (Monday, November 2, 2020)]
[Rules and Regulations]
[Pages 69175-69188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22129]
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DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Parts 1 and 4
[NPS-WASO-REGS; 30756; GPO Deposit Account 4311H2]
RIN 1024-AE61
General Provisions; Electric Bicycles
AGENCY: National Park Service, Interior.
ACTION: Final rule.
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SUMMARY: The National Park Service promulgates regulations governing
the use of electric bicycles, or e-bikes, within the National Park
System. This rule defines the term ``electric bicycle'' and establishes
rules for how they may be used. This rule implements Secretary of the
Interior Order 3376, ``Increasing Recreational Opportunities through
the use of Electric Bikes,'' on lands administered by the National Park
Service.
DATES: This rule is effective on December 2, 2020.
ADDRESSES: The comments received on the proposed rule and an economic
analysis are available on www.regulations.gov in Docket ID: NPS-2020-
0001.
FOR FURTHER INFORMATION CONTACT: Jay Calhoun, Regulations Program
Manager, National Park Service; (202) 513-7112;
waso_regulations@nps.gov.
SUPPLEMENTARY INFORMATION:
Background
Use and Management of Bicycles
Bicycling is a popular recreational activity in many units of the
National Park System. Cyclists of all skill levels and ages enjoy
riding on roads and designated bicycle trails for scenery, exercise,
and adventure. Visitors bicycle alone, with friends, or with family.
From leisurely rides to challenging alpine climbs, bicycles offer
spectacular opportunities to experience the resources of the National
Park System.
National Park Service (NPS) regulations at 36 CFR 4.30 govern the
use of bicycles on NPS-administered lands. These regulations identify
where bicycles are allowed, manage how bicycles may be used, and allow
superintendents to restrict bicycle use when necessary. Bicycles are
allowed on park roads and parking areas open to public motor vehicles.
Bicycles are also allowed on administrative roads that are closed to
motor vehicle use by the public but open to motor vehicle use by the
NPS for administrative purposes, but only after the superintendent
determines that such bicycle use is consistent with protection of the
park area's natural, scenic and aesthetic values, safety considerations
and management objectives, and will not disturb wildlife or park
resources. The use of bicycles on trails is subject to a thorough
approval and review process. When bicycle use is proposed for a new or
existing trail, the NPS must complete a planning process that evaluates
bicycle use on the specific trail, including impacts to trail surface
and soil conditions, maintenance costs, safety considerations,
potential user conflicts, and methods to protect resources and mitigate
impacts. For both new and existing trails, the NPS must complete NEPA
analysis that concludes that bicycle use on the trail will have no
significant impacts. The superintendent must prepare and the regional
director must approve the same written determination that is required
for allowing bicycles on administrative roads. Each of these documents
must be made available for public review and comment. For new trails
outside of developed areas, the NPS must publish a special regulation
designating the trail for bicycle use, which is subject to a separate
public comment period.
Adherence to the procedures in these regulations helps ensure that
bicycles are allowed only in locations where, in the judgment of the
NPS, their use is appropriate and will not cause unacceptable impacts.
The NPS has completed the process required by these regulations in many
NPS units, including the following that have special regulations
designating trails for bicycle use: Rocky Mountain National Park (36
CFR 7.7), Saguaro National Park (36 CFR 7.11), Cuyahoga Valley National
Park (36 CFR 7.17), Hot Springs National Park (36 CFR 7.18), Grand
Teton National Park (36 CFR 7.22), Mammoth Cave National Park (36 CFR
7.36), Sleeping Bear Dunes National Lakeshore (36 CFR 7.80), New River
Gorge National River (36 CFR 7.89), Chattahoochee River National
Recreation Area (36 CFR 7.90), Bryce Canyon National Park (36 CFR
7.94), Pea Ridge National Military Park (36 CFR 7.95), and Golden Gate
National Recreation Area (36 CFR 7.97).
Introduction of Electric Bicycles
While bicycling has been a decades-long tradition in many park
areas, the appearance of electric bicycles, or e-bikes, is a relatively
new phenomenon. An e-bike is a bicycle with a small electric motor that
provides power to help move the bicycle. As they have become more
popular both on and off NPS-managed lands, the NPS has recognized the
need to address this emerging form of recreation so that it can
exercise clear management authority over e-bikes and provide clarity to
visitors and stakeholders such as visitor service providers.
Similar to traditional bicycles, the NPS believes that, with proper
management, the use of e-bikes may be an appropriate activity in many
park areas. E-bikes advance the NPS's ``Healthy Parks Healthy People''
goals to promote national parks as a health resource.\1\ Specifically,
e-bikes can increase bicycle access to and within parks. E-bikes make
bicycle travel easier and more efficient because they allow bicyclists
to travel farther with less effort. E-bikes can expand the option of
bicycling to more people by providing a new option for those who want
to ride a bicycle but might not otherwise do so because of physical
fitness, age, or convenience, especially at high altitude or in hilly
or strenuous terrain. Also, when used as an alternative to gasoline- or
diesel-powered modes of transportation, e-bikes can reduce greenhouse
gas emissions and fossil fuel consumption, improve air quality, and
support active modes of transportation for park staff and visitors.
Similar to traditional bicycles, e-bikes can decrease traffic
congestion, reduce the demand for vehicle parking spaces, and increase
the number and visibility of cyclists on the road.
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\1\ For more information about how the NPS promotes the health
and well-being of park visitors through the Healthy Parks Healthy
People movement, visit https://www.nps.gov/subjects/healthandsafety/health-benefits-of-parks.htm.
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Policy Direction for Managing E-Bikes
Secretary's Order 3376
On August 29, 2019, Secretary of the Interior Bernhardt signed
Secretary's Order 3376, ``Increasing Recreational Opportunities through
the use of
[[Page 69176]]
Electric Bikes.'' The purpose of this Order is to increase recreational
opportunities for all Americans, especially those with physical
limitations, and to encourage the enjoyment of lands and waters managed
by the Department of the Interior. The Order emphasizes the potential
for e-bikes to reduce the physical demands of operating a bicycle and
therefore expand access to recreational opportunities, particularly for
those with limitations stemming from age, illness, disability or
fitness, and in more challenging environments, such as high altitudes
or hilly terrain. E-bikes have an electric motor yet are operable in a
similar manner to traditional bicycles and in many cases appear
indistinguishable from them. For these reasons, the Order acknowledges
there is regulatory uncertainty regarding whether e-bikes should be
managed similar to other types of bicycles, or, alternatively,
considered motor vehicles. The Order states that this regulatory
uncertainty has led to inconsistent management of e-bikes across the
Department and, in some cases, served to decrease access to Federally
owned lands by users of e-bikes. In order to address these concerns,
the Order directs the NPS and other Department of the Interior agencies
to define e-bikes separately from motor vehicles and to allow them
where other types of bicycles are allowed.
NPS Policy Memorandum 19-01
On August 30, 2019, the Deputy Director of the NPS, Exercising the
Authority of the Director, issued Policy Memorandum 19-01, Electric
Bicycles. This policy satisfies a requirement in the Secretary's Order
that all Department of the Interior agencies adopt policy and provide
appropriate public guidance regarding the use of e-bikes on public
lands that conforms to the policy direction set forth in the Order.
The Memorandum defines an e-bike as ``a two- or three-wheeled cycle
with fully operable pedals and an electric motor of less than 750 watts
that provides propulsion assistance.'' This definition is consistent
with the definition of ``low speed electric bicycle'' in the Consumer
Product Safety Act (15 U.S.C. 2085) and the definition of ``electric
bicycle'' in the laws governing the Federal Aid Highway Program (23
U.S.C. 217(j)(2), except that the definition in the Memorandum does not
include requirements from those statutes that an e-bike may not exceed
100 pounds or reach 20 mph when powered solely by the motor. Instead,
the Memorandum, consistent with the Secretary's Order and many states
that have promulgated regulations for e-bikes, refers to a three-class
system that limits the maximum assisted speed of an e-bike:
Class 1 electric bicycle means an electric bicycle
equipped with a motor that provides assistance only when the rider is
pedaling, and that ceases to provide assistance when the bicycle
reaches the speed of 20 miles per hour.
Class 2 electric bicycle means an electric bicycle
equipped with a motor that may be used exclusively to propel the
bicycle, and that is not capable of providing assistance when the
bicycle reaches the speed of 20 miles per hour.
Class 3 electric bicycle means an electric bicycle
equipped with a motor that provides assistance only when the rider is
pedaling, and that ceases to provide assistance when the bicycle
reaches the speed of 28 miles per hour.
Consistent with the Order, the Memorandum announces a policy that
e-bikes are allowed where traditional bicycles are allowed and that e-
bikes are not allowed where traditional bicycles are prohibited. The
Memorandum refers to regulations for bicycles in paragraphs (f), (g),
and (h) of 36 CFR 4.30 that relate to closures and other use
restrictions, other requirements, and prohibited acts. The Memorandum
requires that these provisions also govern the use of e-bikes so that
the use of e-bikes and bicycles are generally regulated in the same
manner.
Paragraph (f) of section 4.30 allows superintendents to limit or
restrict or impose conditions on bicycle use or close any park road,
trail, or portion thereof to bicycle use after taking into
consideration public health and safety, natural and cultural resource
protection, and other management activities and objectives. The
Memorandum authorizes superintendents to limit or restrict or impose
conditions on e-bike use for the same reasons, provided the public is
notified through one or more methods listed in 36 CFR 1.7. When using
this authority, the Memorandum advises superintendents to understand
state and local rules addressing e-bikes so that the use of e-bikes
within a park area is not restricted more than in adjacent
jurisdictions, to the extent possible.
Paragraph (g) of section 4.30 states that bicycle use is subject to
certain NPS regulations that apply to motor vehicles. Specifically,
bicycle use is subject to regulations in sections 4.12 (Traffic control
devices), 4.13 (Obstructing traffic), 4.20 (Right of way), 4.21 (Speed
limits), 4.22 (Unsafe operation), 4.23 (Operating under the influence
of alcohol or drugs). The Memorandum applies these provisions in the
same manner to e-bikes. Paragraph (g) also states that, unless
specifically addressed by NPS regulations, the use of a bicycle is
governed by state law, which is adopted and made part of section 4.30.
The Memorandum requires superintendents to adopt state law in the same
manner for e-bikes. State laws concerning the definition, safety
operation, and licensing of e-bikes vary from state to state. A growing
number of states use the three-class system to differentiate between
the models and top assisted speeds of e-bikes.
Paragraph (h) of section 4.30 prohibits possessing a bicycle in
wilderness and contains safety regulations for the use of bicycles.
Specifically, paragraphs (h)(3)-(5) establish rules relating to
operation during periods of low visibility, abreast of another bicycle,
and with an open container of alcohol. The Memorandum applies these
provisions in the same manner to e-bikes.
The Memorandum directs the superintendents of any NPS unit with e-
bikes present to implement the actions required by the policy using
their regulatory authority in 36 CFR 1.5(a)(2). This authority allows
superintendents to designate areas for a specific use or activity, or
impose conditions or restrictions on a use or activity. As of the date
of this rule, more than 380 units of the National Park System have
implemented the e-bike policy under the authority in 36 CFR 1.5(a)(2)
and have published notice of this action in the park-specific
compilation of management actions required by 36 CFR 1.7(b), referred
to as the superintendent's compendium. This means that for each of
these NPS units, e-bikes are already allowed subject to the rules
governing them that are set out in the compendium and no further action
would be needed to reauthorize continued use of e-bikes under this
regulation.
Final Rule
As explained above, Secretary's Order 3376 directs the NPS to
revise 36 CFR 1.4 and any associated regulations to be consistent with
the Order. The Bureau of Land Management (BLM), U.S. Fish and Wildlife
Service (FWS), and Bureau of Reclamation (Reclamation) are also
revising their regulations for consistency with S.O. 3376.
Specifically, the Order directs the NPS, BLM, FWS, and Reclamation to
add a definition for e-bikes consistent with 15 U.S.C. 2085, and
expressly exempt all e-bikes as defined in the Order from the
definition of motor vehicles.
[[Page 69177]]
This rule accomplishes these directives as related to the NPS, and
once effective, will supersede and replace Policy Memorandum 19-01. The
rule amends 36 CFR 1.4 to add a new definition of ``electric bicycle''
that is the same as the definition used in the Policy Memorandum, with
one minor difference. The definition in the Memorandum refers to the
definition of ``electric bicycle'' in the Consumer Product Safety Act
(15 U.S.C. 2085), which limits the power of the motor to less than 750
watts. Many manufacturers sell e-bikes with motors having exactly 750
watts. In order to avoid the unintended consequence of excluding many
devices from the regulatory definition of an e-bike due to a one-watt
difference in power, the definition of e-bikes in this rule includes
devices of not more than 750 watts.
The rule explicitly excludes e-bikes from the definition of ``motor
vehicle'' found at 36 CFR 1.4. This clarifies that, except as stated in
section 4.30(g), e-bikes are not subject to the regulations in 36 CFR
part 4 that apply to the use of motor vehicles. The NPS does not need
to change the existing definition of ``bicycle'' to distinguish them
from e-bikes because the definition of bicycle includes only those
devices that are ``solely human powered.'' E-bikes are excluded from
this definition because they have an electric motor that helps power
the device.
Consistent with the Secretary's Order and the Policy Memorandum,
this rule states that e-bikes may be allowed on roads, parking areas,
administrative roads and trails that are open to traditional bicycles.
The rule also states that superintendents will designate the areas open
to e-bikes and notify the public pursuant to 36 CFR 1.7. E-bikes are
not allowed in other locations. E-bikes are allowed on administrative
roads and trails where bicycles are allowed without the need to
undertake the procedural steps in paragraphs (b)-(e) of section 4.30
that were required when traditional bicycles were first allowed in
those locations. If a superintendent proposes to designate an
administrative road or trail for e-bike use where traditional bicycles
are not yet allowed, then the superintendent would need to follow the
procedural steps required by paragraphs (b)-(e) in order to designate
those locations for bicycle and e-bike use.
Although bicycles and e-bikes will be defined differently, the rule
applies certain regulations that govern the use of bicycles to the use
of e-bikes in the same manner as the Policy Memorandum. These
regulations are explained in more detail above and include rules of
operation and adoption of state law to the extent not addressed by NPS
regulations. The rule also gives superintendents the authority to limit
or restrict e-bike use after taking into consideration public health
and safety, natural and cultural resource protection, and other
management activities and objectives. If warranted by these criteria,
superintendents may use this authority to manage e-bikes, or particular
classes of e-bikes, differently than traditional bicycles in particular
locations. For example, a superintendent could determine that a trail
open to traditional bicycles should not be open to e-bikes, or should
be open to class 1 e-bikes only. Every restriction or closure that
limits the use of e-bikes must be supported by a written record
explaining the basis for such action. The record will explain why e-
bikes are managed differently than traditional bicycles if that is the
effect of the restriction or closure. All such restrictions and
closures should be listed in the superintendent's compendium (or
written compilation) of discretionary actions referred to in 36 CFR
1.7(b).
Except for administrative actions taken by the NPS in limited
circumstances, the Wilderness Act prohibits mechanical transport in
wilderness areas designated by Congress. 16 U.S.C. 1133(c).
Accordingly, paragraph (h)(2) of section 4.30 prohibits possessing a
bicycle, a form of mechanical transport, in a wilderness area
established by Federal statute. For the same reason, the rule prohibits
the possession of e-bikes in designated wilderness areas, even though
this prohibition already exists under the Wilderness Act.
Except on park roads and other locations where the use of motor
vehicles by the public is allowed, the rule prohibits an operator from
exclusively using the electric motor to move an e-bike without pedaling
for an extended period of time. This restriction is consistent with the
Policy Memorandum and intended to allow the public to use e-bikes for
transportation and recreation in a similar manner to traditional
bicycles. It only affects the use of Class 2 e-bikes, which have a
motor that may be used exclusively to propel the e-bike.
Summary of Public Comments
The NPS published a proposed rule in the Federal Register on April
8, 2020 (85 FR 19711). The NPS accepted comments on the rule through
the mail, by hand delivery, and through the Federal eRulemaking Portal
at www.regulations.gov. The comment period closed on June 8, 2020. The
NPS received more than 17,000 comments on the proposed rule from
individuals and 71 organizations. A summary of the pertinent issues
raised in the comments and NPS responses are provided below. After
considering public comments and after additional review, the NPS made
several minor changes in the final rule which are explained in the
responses to comments below.
1. Comment: One commenter raised concerns about the use of shared
e-bikes within park areas, in particular the impacts from riders
leaving e-bikes in undesirable locations when the rental expires.
NPS Response: Many e-bike rental companies encourage customers to
end their trips responsibly; establish acceptable parking locations
within service areas; require that e-bikes be parked in accordance with
applicable laws and regulations; define prohibited acts--including
locking the e-bike to trees or other structures, as well as blocking
pathways, sidewalks, or ramps; and assess penalties for parking e-bikes
outside of service areas and in violation of the rental agreement. The
NPS expects that these rental agreements and penalties will largely
deter riders from leaving e-bikes within park units in undesirable
locations when the rental expires. The NPS will also work with local
jurisdictions to ensure e-bikes are managed appropriately.
In circumstances where a rental company is engaging in business
within an NPS unit, written authorization from the NPS is required
under 36 CFR 5.3. The NPS will work with companies who seek written
authorization to conduct these businesses to develop terms and
conditions in the permit, contract, or other written authorization that
mitigate against this potential harm.
2. Comment: One commenter asked the NPS to require superintendents
that decide to allow e-bikes in park areas to develop a plan that
educates riders about where e-bikes are allowed and proper trail
etiquette to minimize impacts to other users of the trail.
NPS Response: This rule gives superintendents the discretion to
establish any safety measures deemed necessary to ensure that e-bikes
are used in a manner that maintains a safe and enjoyable experience for
all visitors. Superintendents are encouraged to go beyond what is
stated in the rule and conduct community outreach and education
campaigns to ensure that the proper riding behaviors are adhered to for
the benefit of all NPS visitors. Before visiting an NPS unit, visitors
are encouraged to check the park website to
[[Page 69178]]
find out what areas of the park are accessible, what activities are
available, and which facilities are open. Upon arrival, visitors can
obtain additional information at the Visitor Center or a Ranger
Station. Signage is often used at common access points, such as
trailheads, road crossings, and junctions with other types of trails as
a means of communicating with park visitors. NPS websites, park
brochures, and signage present a variety of information to visitors,
including educational materials that provide guidance on trail
etiquette to mitigate the potential for user conflict and to help
establish user norms. Typical information resources identify the kind
of use allowed, provide route names, trail direction and appropriate
practices for yielding to others, and will be similarly utilized to
educate visitors about e-bike rules and etiquette.
3. Comment: One commenter raised an issue specific to the use of e-
bikes in National Park System units in Alaska. This commenter requested
that the NPS allow the use of e-bikes where traditional bicycles are
currently allowed in Alaska, which are generally allowed throughout NPS
units in Alaska--including off-trail and in wilderness--under the
Alaska National Interest Lands Conservation Act (ANILCA). This
commenter stated that treating e-bikes differently than traditional
bicycles in Alaska would create public confusion from an inconsistent
management framework and reduce opportunities for public access and
recreation.
NPS Response: ANILCA authorizes the use of nonmotorized surface
transportation methods for traditional activities and for travel to and
from villages and homesites within National Park System units in
Alaska. 16 U.S.C. 3170(a). This allowance for special access applies in
Alaska notwithstanding any other law and does not limit nonmotorized
transportation to designated roads or trails. The Department of the
Interior has interpreted this statutory allowance to include the use of
traditional bicycles; however, e-bikes do not fall under this allowance
because they have an electric motor and therefore are not
``nonmotorized.''
Notwithstanding the statutory allowance for traditional bicycles in
Alaska, the NPS is not in favor of creating different rules for e-bikes
in Alaska than it does for e-bikes everywhere else within the National
Park System. The stated purpose of Secretary of the Interior Order 3376
is to simplify and unify the regulations of e-bikes on lands managed by
the Department of the Interior. The NPS shares this goal of a
consistent management framework within the National Park System.
Outside of Alaska, NPS regulations allow the use of bicycles on roads
and trails only. 36 CFR 4.30. Dispersed, overland use is not allowed.
In order to manage e-bikes in a similar manner to traditional bicycles,
the rule allows e-bikes only on roads and trails otherwise open to
bicycle use and designated by the superintendent. Although the special
allowance in Alaska for traditional bicycles is not limited to roads
and trails, the NPS declines to extend this special allowance for e-
bikes in Alaska. The NPS has no data on the level of bicycle use on
more than 20 million acres in Alaska that are off-trail and not in
designated wilderness. The lack of data would make it very difficult to
anticipate the impacts of allowing e-bikes in those same, vast
locations--impacts that could include concerns about public safety
associated with remote, cross-country travel, protection of resources
in sensitive biomes such as tundra, and management objectives such as
preserving wilderness character in eligible wilderness.
4. Comment: Several commenters questioned how the NPS's definition
of ``electric bicycle'' in the rule would affect how e-bikes are
treated under other laws that do not adopt the same definition or
management framework for e-bikes established by the NPS in this rule.
For example, one commenter referred to the definition of ``electric
bicycle'' in the laws governing the Federal Aid Highway Program. 23
U.S.C. 217(j)(2). The commenter states that this definition is
different than the NPS definition in the rule and has implications for
the types of uses that are allowed on pedestrian and bicycle trails
funded by the Federal Highway Administration under the Recreational
Trails Program. One commenter suggested that the use of e-bikes could
adversely affect the ability of the NPS or user groups to obtain funds
for trails that come with restrictions on motorized use.
NPS Response: The NPS's definition of ``electric bicycles'' applies
to management of electric bicycles within the National Park System
under the framework established by this rule. It does not modify or
affect other federal laws and regulations in circumstances where they
apply to the use of electric bicycles within the National Park System.
Using the general scenario presented by the commenter, if a trail
within the National Park System is constructed or maintained with
federal highway funds in a manner that restricts the use of e-bikes as
that term is defined under a separate federal law, then the
superintendent would not have the authority to designate e-bikes for
use on that trail in a manner that conflicts with the other applicable
federal law. There could be circumstances where superintendents must
choose between using federal funds for trail construction and limiting
that trail to traditional bicycles or finding an alternative funding
source and allowing e-bikes on the trail. The NPS believes that
superintendents are in the best position to make these judgements and
this rule provides them with the discretion to do so.
5. Comment: One commenter questioned the NPS's authority under the
NPS Organic Act (54 U.S.C. 100101) to create a management framework for
e-bikes that allows superintendents to make decisions about e-bike use
that--in certain cases--could allow e-bikes in more places and with
more associated impacts than are allowed by the state where the park is
located. This commenter stated that allowing the superintendent to
create rules that are different than what is allowed by the state would
create public confusion and an expectation that all three classes of e-
bikes are allowed within the National Park System.
NPS Response: The framework in this rule gives superintendents the
discretion to determine the appropriate level of e-bike use in park
areas, with the important limitation that e-bikes may only be allowed
on roads and trails where traditional bicycles are allowed. All
management decisions made by a superintendent, including a decision
under this rule to allow the use of e-bikes, are subject to NPS
Management Policies that prohibit the superintendent from allowing a
visitor use activity that would cause unacceptable impacts or
impairment of park resources under the NPS Organic Act. This is true no
matter what decision states make about the use of e-bikes in areas
under their jurisdiction. The NPS does not agree that a decision by a
superintendent to allow e-bikes in more places and with more associated
impacts than a state would allow is per se a violation of the
impairment mandate in the NPS Organic Act. One of the purposes of this
rule is to create a consistent management framework for the use of e-
bikes across the National Park System, in part because all NPS units
are subject to the same management standard articulated in the NPS
Organic Act. Adequate public notice and community outreach will
mitigate the potential for confusion in situations where the rules of
e-bikes in park areas are different than the rules in adjacent or
nearby state
[[Page 69179]]
lands. In order to reduce the potential that this will create a
perception that all three classes of e-bikes are allowed in all park
areas, the NPS has revised the regulatory text in 36 CFR 4.30(i)(1) to
clarify that, in some cases, only certain classes may be allowed.
6. Comment: Some commenters stated that allowing e-bikes on trails
is subject to NPS regulations governing the use of off-road motor
vehicles (ORVs) in 36 CFR 4.10 which states that ORV routes and areas
must be designated by special regulation and only in national
recreation areas, national seashores, national lakeshores and national
preserves. One commenter objected to the NPS excluding e-bikes from the
definition of ``motor vehicle'' because e-bikes are inherently
motorized. Another commenter stated that e-bikes should be regulated as
motor vehicles by the NPS because of a recent ruling by the U.S.
Customs and Border Protection (CBP) that e-bikes are to be grouped with
low-powered (less than 1kW) electric motorcycles for purposes of
excluding them from a 25% tariff imposed by the Trump Administration on
products imported from China.
NPS Response: This rule revises 36 CFR 1.4 to make clear that e-
bikes are not regulated as ``motor vehicles'' under NPS regulations,
including the regulations in 36 CFR 4.10 that govern the use of ORVs.
As a result, the use of e-bikes is not subject to the restrictions that
apply to the designation of ORV routes and areas in 36 CFR 4.10. The
fact that e-bikes have a small electric motors does not compel the NPS
to define or regulate them in the same manner as motor vehicles that in
the vast majority of cases are larger, heavier, and powered by internal
combustion engines that output much more than 1 hp. The NPS is free to
exclude e-bikes from the regulatory definition of ``motor vehicles''
and manage them separately as it has previously done with snowmobiles.
The fact that a majority of states have adopted regulatory schemes for
e-bikes that are separate from regulations applying to motor vehicles
supports the NPS making the same distinction in its regulations.
Rulings from the CPB about the imposition of tariffs on foreign
products imported into the United States are not relevant to how the
NPS manages visitor use activities in park areas, including the use of
e-bikes.
7. Comment: Several commenters questioned whether the NPS has the
authority to create an exception to Executive Order 11644 (Use of off-
road vehicles on the public lands) by promulgating this rule, which
authorizes superintendents to allow motorized devices on public lands
without following the requirements set forth in the E.O.
NPS Response: Executive Order 11644 was issued by President Nixon
in 1972 and amended by President Carter in 1977 through Executive Order
11989. The Executive Order establishes policies and procedures that
federal agencies must follow to manage the use of ``off-road vehicles''
on public lands. The stated purpose of the Executive Order is to
protect the resources of the public lands, promote safety of all users
of the lands, and minimize conflicts among those users. The Executive
Order applies to the use of ``off road vehicles,'' which are defined as
motorized vehicles designed for or capable of cross-country travel on
or immediately over land, water, sand, snow, ice, marsh, swampland, or
other natural terrain, with certain exceptions that are not relevant to
this discussion. Although e-bikes are ``motorized'' in the literal
sense because they have a small electric motor, the NPS does not
believe that they were intended to be regulated as ``off-road
vehicles'' under the Executive Order, to the extent they were even
considered for inclusion.
The first sentence of the Executive Order identifies the types of
vehicles that were of concern in 1972--``motorcycles, minibikes, trial
bikes, snowmobiles, dune-buggies, all-terrain vehicles, and others.''
Although this list is not exhaustive, the devices that were named in
almost all cases used internal combustion engines for power, rather
than an electric motor, and none relied on the rider pedaling the
vehicle to provide most of the power to the vehicle. For these reasons,
e-bikes are inherently different than the types of ``off-road
vehicles'' listed under the Executive Order.
Further, e-bikes were not identified anywhere in the Executive
Order and for good reason. Although e-bike prototypes were developed as
far back as the 19th century, the technological advances needed to
popularize them, such as torque motors and power controls, were not
developed until the mid-1990s. In 1979, after the Executive Order was
amended by President Carter, the Council for Environmental Quality
(CEQ) issued a report entitled ``Off-Road Vehicles on Public Land.''
The report discusses the requirements of the Executive Order in great
detail and evaluates efforts undertaken by federal land management
agencies to comply with its requirements. E-bikes are not mentioned
anywhere in the report. The preface of the report acknowledges that the
inclusion of snowmobiles in the definition of ``off-road vehicle'' was
controversial at the time and identifies other types of ``motorized
vehicles'' that were typically understood to be included within the
definition--``motorcycles of various sorts (minibikes, dirt bikes,
enduros, motocross bikes, etc.), four-wheel drive vehicles such as
Jeeps, Land Rovers, or pickups, snowmobiles, dune buggies, and all-
terrain vehicles.'' Just as in the Executive Order, e-bikes are not on
this list. Neither the Executive Order nor the CEQ report suggests that
President Nixon or President Carter intended for the Executive Order to
apply to small, quiet, light vehicles powered by a small electric
motor, such as e-bikes as defined in this regulation. This supports an
interpretation of the Executive Order that the term ``off-road
vehicles'' should not be understood to include e-bikes as defined in
this rule.
In addition to this evidence that the Executive Order was not
intended to apply to e-bikes, the NPS believes that it is appropriate
to exclude e-bikes from the requirements of the Executive Order because
e-bikes do not cause the kinds of impacts that the Executive Order was
intended to mitigate. For example, e-bikes have an electric motor which
at most emits a low steady whine when engaged, rather than an internal
combustion engine capable of generating much louder noise. Therefore,
e-bikes are not likely to cause the sort of sound-related impacts that
would result in harm to wildlife behavioral patterns or create
conflicts with visitors seeking a natural and quiet experience, factors
that the Executive Order requires the agencies to consider when
permitting off-road vehicles. Although the NPS acknowledges that the
effects of noise on wildlife differ across taxonomic groups and that
reactions to sound are different for every visitor, the use of e-bikes
as defined in this rule is not expected to degrade the quietude in an
unacceptable manner above and beyond the use of traditional bicycles.
During the NPS's review of the current literature, the NPS did not find
any studies measuring the decibels generated from e-bike motors or
components. Nevertheless, because the noise produced by an e-bike comes
from either the sound of the tire on the road or trail, or the electric
motor when it is engaged, the sound levels that comes from traditional
and electric bikes are reasonably similar. Also, unlike all the
vehicles listed in the Executive Order, e-bikes do not emit exhaust
that could impact air quality and the health of nearby users.
Also, a review of available models shows that e-bikes are generally
much lighter than even the lightest off-road
[[Page 69180]]
vehicle listed in the Executive Order, which limits their potential
damage to natural resources in the form of soil compaction and erosion.
A typical e-bike model weighs about 45-50 pounds, which is only
slightly heavier than a typical traditional bicycle at 30-35 pounds. In
comparison, minibikes, which are the lightest off-road vehicle listed
in the Executive Order, weigh an average of 115-130 pounds. Typical
trial bikes weigh about 145 pounds and motorcycles typically weigh 300-
400 pounds. A recent study conducted by the International Mountain
Biking Association measured relative levels of soil displacement and
erosion resulting from traditional, non-motorized mountain bikes, e-
bikes, and gasoline-powered dirt bikes and found that soil displacement
and tread disturbance from e-bikes and traditional, non-motorized
mountain bikes were not significantly different, and both were much
less than those associated with gasoline-powered dirt bikes. Although
this study focused on the impacts from Class 1 e-bikes, the impacts
from Class 2 and 3 e-bikes would not be substantially different,
especially given the prohibition on using the throttle to power a Class
2 e-bike without pedaling for an extended period of time and applicable
speed limits on trails. Additionally, this rule authorizes e-bike use
only on roads and trails designated by the superintendent and does not
authorize cross-country use of e-bikes which thus mitigates the impacts
that the Executive Order was intended to address regarding direct over-
land travel.
Finally, distinguishing e-bikes from other motor vehicles is
consistent with the fact that e-bikes are not considered to be motor
vehicles under 49 U.S.C. 30102, are not subject to regulation by
National Highway Traffic Safety Administration, and are regulated
similar to non-motorized bicycles by the U.S. Consumer Product Safety
Commission (CPSC). For these reasons, the NPS does not believe that
Executive Order 11644 was intended to or should be applied to e-bikes.
8. Comment: One commenter stated that the rule fails to consider
whether the addition of e-bikes to park areas will affect visitor
carrying capacities that are required to be established for each NPS
unit under the National Parks and Recreation Act of 1978 and must be
considered by the superintendent when evaluating new recreational uses
of park areas under NPS Management Policies, specifically sections 8.2
(Visitor Use), 8.2.1 (Visitor Carrying Capacity); and 8.2.2.1
(Management of Recreational Use).
NPS Response: The Act cited by the commenter is codified at 54
U.S.C. 100502(3) and requires that general management plans for each
unit of the National Park System include ``identification of and
implementation commitments for visitor carrying capacities for all
areas of the System unit.'' NPS Management Policies define ``carrying
capacity'' as the ``use that can be accommodated while sustaining the
desired resource and visitor experience conditions in the park.''
Setting and staying within carrying capacities can be a useful tool for
superintendents to help ensure that park uses do not cause unacceptable
impacts to park resources and values.
This rule does not require superintendents to allow e-bikes in the
park areas they manage, it simply authorizes them to do so on roads and
trails where traditional bicycles are also allowed. The NPS operates
under the assumption that any decision made by a park superintendent
will comply with applicable laws and policies and be consistent with
applicable general management plans. The NPS expects that park
superintendents will evaluate whether the addition of e-bikes would
affect visitor carrying capacities identified in general management
plans or other planning documents, together with all other factors that
would inform whether the use of e-bikes is appropriate or not.
9. Comment: Many commenters raised concerns about the potential
impacts e-bikes would have on park resources and the visitor
experience. Several commenters stated that e-bikes would cause greater
cumulative impacts to the natural environment than are caused by
traditional bicycles due to their ability to travel longer distances
with more gear into more remote and undisturbed areas. Commenters cited
the potential for disturbing wildlife, grooving and erosion of ground
surfaces, degradation of sensitive plant habitats, and negative impacts
on geological features and cultural and archeological sites. Other
commenters stated that e-bikes would create safety risks for certain
riders who could travel into more remote areas and through more
challenging terrain than would be possible with traditional bicycles.
Safety concerns were also raised about the speed of e-bikes, in
particular on single-track, winding trails with limited sight lines,
and the increased potential for accidents and conflicts with other
trail users, such as hikers and horseback riders. According to some
commenters, adding e-bikes to shared trails would cause overcrowding
and marginalize other forms of recreation that are compatible with a
quiet and natural environment.
NPS Response: The NPS agrees that park resources must be protected
and user conflicts should be avoided where e-bikes are allowed.
However, this rule does not mandate the use of e-bikes in any park
area. This rule establishes a general framework that can be used by
superintendents to allow e-bikes on designated roads and trails where
traditional bicycles are already allowed. Existing NPS regulations
require a robust evaluation of the potential impacts that traditional
bicycles would have on designated trails before they can be allowed.
See 36 CFR 4.30(d) and (e). The addition of e-bikes on roads or any of
these trails is subject to the discretion of the superintendent who is
required by policy to consider the impacts that a new park use such as
e-bikes would have on park resources and visitor experience. NPS
Management Policies clearly state that in using discretionary
authority, superintendents will allow only uses that are appropriate to
the purpose for which the park was established and can be sustained
without causing unacceptable impacts. Superintendents may not allow e-
bikes if doing so would impair a park's resources, values, or purposes.
Existing studies about the relative impact between traditional
bicycles and e-bikes demonstrate that impacts from e-bikes are similar
to impacts from traditional bicycles notwithstanding some disparities
associated with visitor safety that the NPS believes can be mitigated
if necessary by the superintendent at the park level. For example, one
study, Comparison of environmental impacts from MTB-Class 1 eMTB, and
motorcycles: soil displacement and erosion on bike-optimized trails in
a Western Oregon Forest, IMBA Trail Solutions (2016), found that
impacts from Class 1 eMTBs were similar to traditional mountain
bicycles, while motorcycles led to much greater soil displacement and
erosion. The study found that an emerging body of research suggests
that when it comes to impacts to soils, water quality, and vegetation,
the primary issue is not the type of user, but the way the trail is
designed and constructed. Therefore, the NPS does not expect the
addition of e-bikes to cause significant additional erosion on trails
or degradation of plant habitats.
Additionally, a review of available literature by Boulder County,
Colorado concluded that all forms of recreation may have some negative
impacts to wildlife habitat and behavior, but there is little research
to suggest that e-bikes have greater negative impacts on trails
[[Page 69181]]
or wildlife than regular bikes and mountain bikes. See Boulder County
E-bike Pilot Study Results and Policy Recommendation, 2019. Another
study of the impacts of motorized and nonmotorized recreation on elk in
Eastern Oregon, USFS. Seeking ground less traveled: Elk responses to
recreation (2009), found that all recreation uses impacted ungulate
behavior, but that ATV use was most disruptive to elk compared to
mountain biking, hiking, and horseback riding. NPS does not expect e-
bike use to have a significantly larger impact to wildlife behavior
compared to traditional bicycles.
Regarding visitor safety and user conflicts, as stated above, e-
bikes will only be authorized on roads and trails where traditional
bicycles are already allowed. These trails have undergone rigorous
analysis to ensure that hikers and bicyclists can safely share the
trail without causing visitor conflicts. The addition of e-bikes would
not significantly alter this analysis. First, all cyclists must follow
applicable speed limits for trails which negates many of the concerns
about e-bikes' faster speed capabilities. In addition, the terrain and
slope of some trails provides a natural limitation to the speed at
which a cyclist can reasonably move. Further, although some studies
showed average riding speeds on electric mountain bikes are slightly
faster than conventional mountain bikes, other studies found that,
perhaps counterintuitively, average e-bike speeds were less than
average conventional bike speeds which may reflect the slightly older
demographics of e-bike riders, and that differences in speed between e-
bikes and bicycles are most pronounced on the uphill segment of a trip.
(Hall et. al. 2019; Langford, Cherry et al. 2017).
The rule also makes clear that superintendents have the authority
to modify, restrict, or discontinue e-bike use if it creates concerns
about public health and safety or the protection of natural or cultural
resources. For these reasons, the NPS does not believe that e-bikes
will cause unacceptable impacts in parks.
10. Comment: One commenter raised a concern about the safety of the
electrical systems used in e-bikes, in particular the risk that e-bike
batteries could malfunction, combust, and spark wildfires. This
commenter recommended that the NPS require that e-bikes be certified to
the UL 2849 electric system safety standard in order to help ensure the
safety of e-bikes and reduce the likelihood of a catastrophic wildfire
resulting from the use of an e-bike that does not have a properly
managed electrical system.
NPS Response: The CPSC is responsible for evaluating and making
recommendations about electrical safety standards for consumer products
manufactured and sold in the United States. E-bike manufacturers are
required to comply with mandatory standards set by the CPCS. The NPS
defers to the expertise held by the CPSC for setting safety standards
associated with the electrical systems used in e-bikes and for this
reason declines to require the UL 2849 standard for e-bikes used in
park areas. If the use of e-bikes in park areas results in unforeseen
safety issues or threats to natural resources, the rule allows
superintendents to restrict or stop the use of e-bikes until such risks
can be properly addressed. This is consistent with NPS Management
Policies Section 8.1.2 which requires superintendents to further
manage, constrain or discontinue park uses that cause unanticipated and
unacceptable impacts revealed through monitoring.
11. Comment: Several commenters stated that the introduction of e-
bikes will require the NPS to undergo a substantial revision of
existing sign standards to clearly identify where e-bikes are allowed,
and further which classes are allowed. One commenter recommended that
the NPS maintain a trail sign standard with allowable use demarcations
to depict traditional bicycles and e-bikes independently.
NPS Response: The NPS agrees that the successful introduction of e-
bikes into park areas depends upon clear and consistent communication
to the public about where e-bikes are allowed, and further which
classes are allowed. The NPS is working with the other land management
agencies within the Department of the Interior to establish standard
signs for e-bikes. E-bikes will have symbols that are distinct from
those used to depict traditional bicycles. The goal of this effort is
to create a consistent visual framework indicating where e-bikes are
allowed on public lands managed by the Department of the Interior.
12. Comment: Several commenters questioned whether the NPS has the
financial resources to properly manage the use of e-bikes under this
rule given the preexisting backlog of deferred maintenance projects in
the National Park System. Commenters cited costs associated with: (1)
Installing and maintaining signage to identify where e-bikes are
allowed; (2) improving trail infrastructure to accommodate e-bikes
(e.g., trail widening, lane marking, parking facilities); (3) repairing
trail damage from the use from e-bikes; (4) ensuring an adequate law
enforcement presence; and (5) engaging in and incurring liability from
search and rescue activities caused by visitors traveling beyond their
ability level into more remote and challenging terrain.
NPS Response: The NPS acknowledges that there will be costs
associated with the management of e-bikes within the National Park
System, including those cited by the commenters. To help avoid
situations where superintendents do not have the resources to properly
manage e-bikes, this rule does not mandate the use of e-bikes anywhere
in the National Park System. It gives superintendents to discretion to
allow them where they are appropriate. NPS Management Policies Section
8.1.2 requires superintendents to consider total costs to the NPS when
evaluating whether a proposed park use is appropriate. In the event
that accidents or injuries occur as a result of or in conjunction with
e-bike use, liability, if any, would be determined in accordance with
applicable laws, which may include the Federal Tort Claims Act.
13. Comment: Several commenters questioned whether aspects of the
rule would be difficult to enforce, in particular the prohibition on
using the throttle to move the e-bike without pedaling that applies
only to Class 2 e-bikes. Commenters also questioned whether NPS law
enforcement officers would be able to differentiate between e-bikes and
traditional bicycles, and classes of e-bikes in circumstances where a
superintendent has prohibited certain classes of e-bikes in particular
locations. Commenters emphasized that these enforcement challenges
would be exacerbated by potential violations occurring at high speeds
and in remote locations.
NPS Response: The NPS acknowledges that the aspects of the rule
cited by the commenters may pose certain enforcement challenges.
However, those challenges are not unique. They regularly arise in the
context of enforcing laws that govern recreational use of park areas.
For example, regulations governing use of off-road vehicles at 36 CFR
4.10 prohibit operation of an off-road vehicle in a manner that causes
unreasonable damage to the surface of a park road or route. Determining
when a violation of this regulation occurs can be fact-specific,
requiring the exercise of specialized judgment on the part of law
enforcement officers. Similarly, determining whether a violation of the
prohibition on extended use of throttle power without pedaling occurs
will involve the exercise of specialized skill, training, and judgment
by law
[[Page 69182]]
enforcement officers. Based on its experience enforcing other
regulations that condition how the public recreates on public lands,
the NPS believes that law enforcement officers have the expertise
necessary to properly exercise their discretion to enforce the
limitations on how Class 2 e-bikes may be used in a reasonable manner
that ensures protection of public health, safety, and resources and
users of the public lands. The NPS has also modified the regulatory
text to make clear that using the throttle on a Class 2 e-bike without
pedaling is only prohibited if it is done for an extended period of
time. This will help law enforcement officials focus only on the more
egregious cases of users using the throttle to move Class 2 e-bikes
without pedaling.
With respect to differentiating among traditional bicycles and e-
bikes, and among classes of e-bikes, the NPS notes that 28 states
require e-bikes to have a label that displays the class, top assisted
speed, and power outlet of the electric motor. Some e-bikes can be
differentiated from traditional bicycles by simple observation. In
other cases, the NPS expects that its law enforcement officers will use
their specialized skill, training, and judgment to enforce this
requirement even if the e-bike is not labeled through observation of
riding behaviors, questioning, or other means of investigation.
Identifying violations of NPS regulations that occur at speed is not a
novel challenge for NPS law enforcement officers. These individuals are
tasked on a daily basis with enforcing speed limits and equipment and
operational requirements for the use of motor vehicles and vessels used
within remote park areas. See, for example, 36 CFR parts 3 and 4.
14. Comment: Several commenters suggested changes to the
requirement in the proposed rule that except where use of motor
vehicles by the public is allowed, using the electric motor to move an
e-bike without pedaling is prohibited. One commenter recommended that
the NPS remove this requirement in order to allow riders to take
advantage of the throttle-only capabilities of Class 2 e-bikes on e-
bike lanes and paths where such use is appropriate. Another commenter
noted that Class 2 e-bikes often have a function that allows the rider
to disable the throttle-only capability and that the rule should
require that this be disabled as a better regulatory alternative to
prevent throttle-only use.
NPS Response: The NPS acknowledges that there may be situations
where the use of the throttle-only power may be appropriate and useful
in limited duration. This could be the case in particular for park
visitors who use e-bikes as to access and enjoy park areas in a manner
that would not be possible with traditional bicycles. In limited
duration, the throttle could be used without pedaling to get started,
for a quick burst of power to climb a hill, or to move safely through
an intersection. In order to more precisely tailor this restriction on
the use of Class 2 e-bikes, the NPS has revised the final rule to only
prohibit the use of throttle-only power for an extended period of time.
This change will allow riders of Class 2 e-bikes to benefit from
throttle-only power for limited durations while ensuring that e-bike
use, where allowed, will continue to be used in a manner that is
consistent with traditional, non-motorized bicycles. Due to this change
in the final rule, the NPS declines to adopt the proposal to require
riders of Class 2 e-bikes to disable the throttle-only function.
15. Comment: One commenter suggested that the NPS revise the
definition of ``electric bicycles'' to include a requirement that the
device have a seat or saddle for the rider so that e-bikes are
distinguished from other types of electric mobility devices that are
designed to be stood upon, such as e-scooters.
NPS Response: The NPS believes that the requirement in the
definition that e-bikes have ``fully operable pedals'' is sufficient to
distinguish e-bikes from other mobility devices with electric motors.
16. Comment: One commenter questioned the effectiveness of
requirement in the definition of ``electric bicycle'' that the electric
motor produce no more than 750 watts of power. This commenter noted
that e-bike manufacturers are offering multi-speed transmissions that
increase the efficiency of the motor, which means that the speed of e-
bikes is less a function of the size of the motor than the number of
gears and gear ratios.
NPS Response: The NPS appreciates that the technology used in e-
bikes is likely to continue to evolve at a rapid pace, and that the
electric motors and batteries will become more efficient over time. The
advancements in transmission described by the commenter may increase
the acceleration rate of e-bikes but cannot increase the top assisted
speed beyond 20 mph (for Class 1 and 2 e-bikes) or 28 mph (for Class 3
e-bikes) without transforming the device into a motor vehicle for
purposes of NPS regulations. The NPS believes that the limitations on
top assisted speed and power output are sufficient to prevent
technological advancements from allowing devices that qualify as e-
bikes to behave like motorcycles or other motor vehicles in a manner
that represents a significant departure from the types of devices that
fall within the NPS definition of an ``electric bicycle'' today.
17. Comment: Several commenters asked the NPS to limit the
discretion given to superintendents in this rule to determine where e-
bikes may be used, and which classes may be used, within the NPS units
they administer. Here are some of the ways these commenters proposed to
categorically manage the use of e-bikes:
Prohibit the use of Class 2 and 3 e-bikes on non-motorized
trails where traditional bicycles are allowed.
Allow Class 1 e-bikes on administrative roads and improved
surface trails, but not single-track trails.
Allow Class 2 e-bikes only on administrative roads.
Allow Class 3 e-bikes only in locations open to public
motor vehicle traffic.
Prohibit Class 2 and 3 e-bikes on natural surface trails.
Prohibit the use of three-wheeled e-cycles with a combined
tire tread width wider than 15 inches on trails where traditional
bicycles are allowed.
Prohibit e-bikes on any trails that do not already allow
motorized use, which would eliminate all trails from consideration
except for ORV and snowmobile routes.
Prohibit e-bikes on trails with groomed snow that are also
used by over-snow vehicles.
Allow e-bikes only on paved trails.
Prohibit Class 2 e-bikes on all improved surface and
shared use trails open to traditional bicycles due to their throttle-
only capabilities.
Allow Class 1 e-bikes anywhere traditional bicycles are
allowed without any requirement that those locations be designated by
the superintendent.
NPS Response: The varied and diverse approaches suggested by the
commenters demonstrates how difficult it would be to establish
categorical rules for where e-bikes may be used in park areas at the
national level. The framework in this rule establishes sensible
sideboards for the use of e-bikes by: (1) Adopting a commonly used
state-adopted definition of ``electric bicycle'' that limits motor size
and top assisted speed; (2) restricting e-bikes to roads and trails
where traditional bicycles are allowed; and (3) ensuring that e-bikes
are used like traditional bicycles by prohibiting the extended use of
Class 2 e-bikes with throttle-only power. Further restricting the
discretion
[[Page 69183]]
of superintendents to determine whether e-bikes should be allowed could
prevent visitors from using e-bikes to access and enjoy park areas
without any opportunity to evaluate whether such use is appropriate.
For example, categorically prohibiting e-bikes on trails that are not
ORV or snowmobile routes runs counter to evidence identified in
previous responses to comments suggesting that impacts from e-bikes are
more like impacts from traditional bicycles than motor vehicles.
Superintendents are most familiar with the natural and cultural
resources, operating budgets, and visitor use patterns in a park area,
and therefore are in the best position to determine whether e-bikes, or
specific classes of e-bikes, should be allowed on roads or trails where
traditional bicycles are allowed. The rule provides superintendents
with the flexibility to parse and delineate the exact type of e-bike
use, if any, that is most appropriate in a park area. Taking just some
of the examples raised by the commenters, if the top assisted speed of
Class 3 e-bikes would cause unacceptable safety concerns on a
particular trail, the superintendent can prohibit Class 3 e-bikes on
that trail. If a single-track trail is too narrow to accommodate the
width of three-wheeled e-bikes without causing unacceptable impacts to
natural resources, the superintendent can prohibit those types of e-
bikes on that trail. If allowing e-bikes on groomed trails used by
snowmobiles would create unacceptable safety concerns or user
conflicts, the superintendent can prohibit that use. If allowing Class
2 e-bikes on a single-track trail would cause unacceptable user
conflicts or safety issues due to their throttle-only capabilities
(even when used only for short durations), then the superintendent
could allow Class 2 e-bikes only on administrative roads that are
sufficiently wide to accommodate that type of traffic.
In response to a suggestion from one commenter, the NPS has
clarified in the final rule that the superintendent may decide to allow
only specific classes of e-bikes in certain locations. This was always
the intent of the rule and is part of the reason why the NPS used a
definition of ``electric bicycle'' that distinguishes between classes.
The NPS agrees with this commenter that the type of power activation
and top assisted speed that distinguish the three classes necessitate a
more granular level of decision making and allowances based on
individual classes. Another commenter requested that the NPS state in
the rule that e-bikes may be allowed on paved and unpaved trails. The
NPS does not think this is necessary because the reference to
``trails'' in the rule without any qualifier means either type of
trail.
18. Comment: One commenter questioned whether the prohibition in
the rule of possessing an electric bicycle in a wilderness area
established by Federal statute would prevent the transport of e-bikes
mounted on motor vehicles through wilderness areas. Another commenter
stated that the NPS should allow e-bikes in wilderness because they are
quieter and otherwise have less impacts that horses.
NPS Response: The use of motor vehicles is prohibited in wilderness
areas designated under the Wilderness Act, whether or not they are
transporting e-bikes. 16 U.S.C. 1133(c). The Wilderness Act also
prohibits other forms of mechanical transport, a term that includes e-
bikes, leaving the NPS with no authority to allow e-bikes in wilderness
areas designated under the Act. 16 U.S.C. 1133(c).
19. Comment: One commenter stated that e-bikes should only be
allowed if their use will not impede or result in the elimination of
access for traditional bicycles.
NPS Response: This rule authorizes superintendents to allow e-bikes
only on roads and trails where traditional bicycles are allowed.
Superintendents may not designate a road or trail for e-bike use and
then subsequently prohibit the use of traditional bicycles in that
location.
20. Comment: One commenter asked the NPS to clarify why certain
regulations in 36 CFR part 4 that apply to traditional bicycles do not
apply to e-bikes under the rule. In particular, the commenter asked the
NPS to explain why 36 CFR 4.30(h)(1) does not apply to e-bikes.
NPS Response: 36 CFR 4.30(h)(1) prohibits riding a traditional
bicycle off park roads and parking areas, except on administrative
roads and trails that have been authorized for bicycle use. This rule
contains its own provisions about where e-bikes may be used. Applying
paragraph 4.30(h)(1) to the use of e-bikes would suggest that e-bikes
are allowed everywhere traditional bicycles are allowed. This would not
be accurate under this rule, which requires superintendents to take an
administrative action to designate roads and trails where traditional
bicycles are allowed for e-bike use, before e-bikes are allowed in
those locations. Similar explanations exist for why other provisions in
part 4 apply to traditional bicycles but not to e-bikes--namely, that
this rule contains its own provisions for e-bike use that make
referencing regulations elsewhere in part 4 unnecessary. For example,
paragraph (i)(6) of this rule adopts and applies non-conflicting state
law to the use of e-bikes which makes applying section 4.2 (State law
applicable) or paragraphs 4.30(g)(2) and (h)(6) unnecessary. Another
example is paragraph (i)(4) of this rule which prohibits possessing an
electric bicycle in a wilderness area. This makes applying paragraph
4.30(h)(2) to the use of e-bikes unnecessary.
21. Comment: One commenter addressed the topic of adopting non-
conflicting state law. This commenter recommended that the NPS adopt
non-conflicting state law in order to avoid confusing the public by a
situation where the NPS would allow more liberal (i.e., less
restrictive) use of e-bikes in park areas than would otherwise be
allowed by the state. This commenter also suggested a minor edit to
paragraph (i)(6) that would refer to the regulations in 36 CFR chapter
I as controlling over state law, instead of the current reference to
the regulations in section 4.30. This would ensure that the NPS
definitions of ``electric bicycle'' and ``motor vehicle'', which appear
in 36 CFR 1, control in the event of conflicting state definitions.
NPS Response: Paragraph (i)(6) of the rule adopts non-conflicting
state law and applies it to the use of e-bikes in park areas. This
means that to the extent the superintendent has designated locations
for e-bike use that conflict with what the state allows, the
superintendent's designations would control. Regardless of which
authority (NPS or state) is more liberal about the use of e-bikes, the
NPS rule will control in park areas. In an opposite example to the one
raised by the commenter, if the state allows e-bikes on unpaved trails,
but the superintendent has not designated unpaved trails in the park
for e-bike use, then e-bikes would not be allowed on unpaved trails in
the park. Visitor use of park areas should not be determined by the
state. That is why where state law is adopted elsewhere in NPS
regulations, it applies only to the extent there is no conflict with
NPS regulations. The NPS declines to adopt a regulatory framework where
it would defer entirely to the state on matters of visitor use, even if
that deference would only occur if visitor use is more restricted by
the state. This would be an abdication of the NPS's legal
responsibility to manage visitor use and enjoyment of the National Park
System.
The NPS appreciates the suggestion by the commenter to refer to
``this chapter'' in paragraph (i)(6) for the
[[Page 69184]]
reasons stated by the commenter and has made this change in the final
rule.
22. Comment: One commenter suggested that the rule should allow e-
bikes anywhere traditional bicycles are allowed unless the
superintendent closes a location to the use of e-bikes.
NPS Response: The ``open unless closed'' regulatory framework
suggested by the commenter would allow e-bikes on roads and trails
across the National Park System without any opportunity for
superintendents to evaluate whether they are an appropriate use of park
areas. This would place a substantial burden on superintendents to
close roads and trails to the use of e-bikes in order to stop
unacceptable impacts to resources and visitor experience that would
begin to occur immediately upon the effective date of this rule. It
would also require the NPS on a national level to try and evaluate the
potential impacts from e-bike use across the National Park System under
applicable policy and law prior to the rule becoming effective. With
more than 400 units making up the National Park System, each containing
unique and dynamic administrative capabilities, values, resources, and
visitor use patterns, a programmatic evaluation of these impacts would
be impracticable. The NPS prefers the ``closed unless open'' approach
in this rule that requires superintendents to take an affirmative
action by designating a road or trail for e-bike use before they are
allowed. This approach will allow superintendents to evaluate whether a
location is appropriate for e-bike use in accordance with the policy
guidance discussed above and the legal requirements (e.g. National
Environmental Policy Act) discussed below.
23. Comment: One commenter asked why the rule does not prohibit
devices with electric motors that output more than 750 watts of power.
NPS Response: A device with an electric motor that outputs more
than 750 watts of power will not qualify as an e-bike under the
definition of ``electric bicycle'' in this rule. As a result, the
superintendent will lack to authority to allow those types of devices
on roads and trails open to traditional bicycles under this rule. Such
devices will fall under the definition of ``motor vehicle'' and be
regulated as such. As a result, it would not be appropriate to ban them
as the commenter suggests. This analysis is true of any device that
fails to meet the criteria in the definition of ``electric bicycle''--
including devices with a top assisted speed greater than 28 mph or
without operable pedals.
24. Comment: One commenter suggested that the rule should allow
seniors to use all classes of e-bikes on roads and trails open to
traditional bicycles.
NPS Response: The NPS appreciates that the propulsion assistance
offered by e-bikes can provide particular benefits to park visitors
with physical limitations, including seniors. The NPS expects that
superintendents will consider all potential benefits and costs when
they evaluate whether to allow e-bikes in a park area under this rule.
It would not be prudent, however, to require superintendents to allow
seniors to use all classes of e-bikes in all locations open to
traditional bicycles, without any opportunity to first evaluate whether
that would cause unacceptable impacts, visitor conflicts, or safety
concerns--for both the senior riders and other park visitors.
25. Comment: Several commenters suggested that the NPS establish
annual registration, licensing, and insurance requirements for the use
of e-bikes in park areas.
NPS Response: The NPS believes that rules about registration,
licensing, and insurance should be determined by the states, which are
more experienced and equipped to implement such requirements. Creating
a separate set of federal requirements would be overly burdensome and
create potential confusion with the visiting public. The rule allows
the NPS to enforce whatever requirements are established by the state
under paragraph (i)(6) which adopts non-conflicting state law and
applies it to the use of e-bikes in park areas.
26. Comment: One commenter suggested the NPS undertake a systematic
inventory and evaluation of all existing bicycle trail assets within
the National Park System to ensure they are designed to safely
accommodate the use of e-bikes. The commenter refers the NPS to the
American Association of State Highway Transportation Officials (AASHTO)
Guide for the Development of Bicycle Facilities and the American Trails
Shared Use Path Design guidelines, both of which recommend that the
paved tread on shared use paths should be at least 10 ft wide, with a
graded shoulder at least 2 ft wide on either side of the path. On
shared use paths with heavy volumes of users, the commenter states that
tread width should be between 12 ft to 14 ft and that, in all cases,
shared use paths should not exceed a grade of 5%.
NPS Response: The NPS agrees that superintendents should carefully
consider the context and characteristics of existing bicycle trails
that are being considered for e-bike use. Many NPS multiuse trails are
significant to the historical, cultural, or environmental context of
the park and were designed prior to modern design guidelines and
standards. If trail widening is not possible or is not an immediate
solution, there are other options superintendents can implement to help
alleviate potential trail conflicts, crowding, or resource and visitor
impacts. In 2018, the NPS published an Active Transportation Guidebook
to support walking and bicycling in park areas. This Guidebook provides
references to national design standards and guidelines for multi-use
trail widths, which is consistent with the guidelines cited by the
commenter. The Active Transportation Guidebook also states that
superintendents should assess routes, on a trail-by-trail basis, to
determine whether e-bikes are appropriate by considering speed and
safety, trail width and use-volume for accommodation of additional
users, trail surface, and soil conditions. The NPS appreciates the
documents cited by the commenter and will include them in a working
inventory of resources that superintendents can use to evaluate the
appropriateness of e-bikes on particular trails. At this time, the NPS
does not have the resources available to undertake a systematic
inventory and evaluation of all trails across the National Park System.
The NPS believes a more prudent approach is to allow superintendents to
make those suitability determinations on a trail-by-trail basis at the
park level when the need arises.
27. Comment: One commenter asked the NPS to address whether e-bikes
can or should be given a special accommodation as an ``other power-
driven mobility device'' (OPDMD) under U.S. Department of Justice (DOJ)
regulations implementing the Americans with Disabilities Act of 1990.
In particular, the commenter asked the NPS to address a scenario where
a rider provides credible assurance that an e-bike is used because of a
disability, which is the standard established by DOJ Guidance on
``Wheelchairs, Mobility Aids, and Other Power-Driven Mobility Devices''
for whether a particular type of OPDMD can be accommodated.
NPS Response: This rule does not address whether persons with
disabilities may use e-bikes as a reasonable accommodation on NPS
facilities, including paths, trails, and roadways. Determining if a
person with a disability can use an e-bike as an OPDMD requires the
same analysis as any other OPDMD. Credible assurance is not the only
factor used in this analysis. The DOJ guidance cited by the commenter
requires a series of factors to
[[Page 69185]]
be considered. These factors include, but are not limited to, the type
and speed of the device, the facility's volume of pedestrian traffic,
the facility's design and operational characteristics, whether safe
operation of the device is feasible, and whether the use of the device
creates a substantial risk of serious harm to the immediate environment
or natural or cultural resources. Park superintendents or their
designees with assistance from the NPS Accessibility Program will make
these determinations on a case-by-case basis. The NPS Accessibility
Program can be reached via email at accessibility@nps.gov.
28. Comment: Several commenters suggested changes to the process
for designating bicycle trails for e-bike use. One commenter
recommended the NPS require notice-and-comment rulemaking prior to
allowing e-bikes outside of developed areas in order to ensure there is
a full opportunity for public participation and review of such
decisions. Another commenter suggested that e-bikes be allowed on non-
motorized bicycle trails only after the NPS undergoes the same planning
and decision-making process that was required by NPS regulations before
allowing traditional bicycles on those trails. Another commenter
suggested that e-bikes be allowed only for those who need motorized
assistance and then only by permit.
NPS Response: NPS regulations promulgated in 1987 required the NPS
to issue a special regulation, specific to the individual NPS unit, if
bicycles were to be used outside of developed areas. The NPS adopted
this special regulation requirement to ensure maximum public input on
decisions to allow traditional bicycles outside of developed areas. In
2012, the NPS revised the process for allowing bicycles to focus on
park planning and environmental compliance under the National
Environmental Policy Act (NEPA), rather than the special rulemaking
process. See 77 FR 39927. NPS regulations still require notice-and-
comment rulemaking to allow bicycles on new trails outside of developed
areas. As discussed above, the thorough process in today's bicycle
regulations at 36 CFR 4.30 ensure that traditional bicycles are allowed
in park areas only where the impacts of such use have been thoroughly
considered. Based on the available studies, the NPS believes that
incremental impacts from e-bike use in a particular location would not
be substantially different than already occurring impacts from
traditional bicycles. For this reason, the NPS does not find it
necessary to require in every instance notice-and-comment rulemaking or
the specific planning processes and environmental compliance measures
that may have been required when traditional bicycles were allowed in
the first place. Superintendents are required by NEPA to evaluate the
impacts of any decision to allow e-bikes and the pathway of compliance
will be tailored to the circumstances of each decision. Superintendents
are encouraged to engage with the public prior to allowing e-bikes so
that they can better understand potential impacts to resources and
visitors, support for, and controversy associated with, allowing e-
bikes.
The use of e-bikes is not the type of visitor use that would
justify the regulatory and administrative burdens associated with a
permit requirement. As long as the superintendent has determined that a
location is appropriate for e-bike use, visitors will be free to use e-
bikes in that location subject to the prescriptions in this rule.
29. Commenter: One commenter stated that decisions to close a
location or otherwise restrict the use of e-bikes under the
superintendent's discretionary authority in paragraph (i)(7) of the
rule should be subject to compliance with NEPA and the rule should
state that as an affirmative requirement.
NPS Response: The NPS requires that superintendents act in
accordance with applicable law and policy. This is true in every case
whether or not this requirement is stated explicitly. If a decision to
close or otherwise restrict the use of e-bikes warrants a compliance
measure be taken under NEPA or under any other applicable law or
policy, the superintendent must take that measure. This does not need
to be affirmatively stated in the rule for it to be required.
Compliance With Other Laws, Executive Orders and Department Policy
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. The OIRA has determined that the final
rule is not a significant regulatory action as defined by Executive
Order 12866.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. Executive Order 13563 emphasizes
further that regulations must be based on the best available science
and that the rulemaking process must allow for public participation and
an open exchange of ideas. The NPS has developed this rule in a manner
consistent with these requirements.
Reducing Regulation and Controlling Regulatory Costs (Executive Order
13771).
Enabling regulations are considered deregulatory under guidance
implementing E.O. 13771 (M-17-21). This rule addresses regulatory
uncertainty regarding the use of electric bicycles in the National Park
System by clearly stating that they may be used where traditional
bicycles are allowed when designated by the superintendent.
Regulatory Flexibility Act
This rule will not have a significant economic effect on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). This certification is based on information
contained in the economic analyses found in the report entitled ``Draft
Cost-Benefit and Regulatory Flexibility Threshold Analyses: Proposed
Regulations Addressing the Designation of Electric Bicycle Use in Units
of the National Park System''. The report is available on
www.regulations.gov in Docket ID: NPS-2020-0001.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2). This rule:
(a) Does not have an annual effect on the economy of $100 million
or more.
(b) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
(c) Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
tribal governments or the private sector of more than $100 million per
year. The
[[Page 69186]]
rule does not have a significant or unique effect on State, local or
tribal governments or the private sector. It addresses public use of
national park lands, and imposes no requirements on other agencies or
governments. A statement containing the information required by the
Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.
Takings (Executive Order 12630)
This rule does not effect a taking of private property or otherwise
have takings implications under Executive Order 12630. A takings
implication assessment is not required.
Federalism (Executive Order 13132)
Under the criteria in section 1 of Executive Order 13132, the rule
does not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement. This rule only
affects the use of electric bicycles on federally-administered lands.
It has no outside effects on other areas. A federalism summary impact
statement is not required.
Civil Justice Reform (Executive Order 12988)
This rule complies with the requirements of Executive Order 12988.
This rule:
(a) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
Consultation With Indian Tribes (Executive Order 13175 and Department
Policy)
The Department of the Interior strives to strengthen its
government-to-government relationship with Indian Tribes through a
commitment to consultation with Indian tribes and recognition of their
right to self-governance and tribal sovereignty. The NPS has evaluated
this rule under the criteria in Executive Order 13175 and under the
Department's tribal consultation policy and have determined that tribal
consultation is not required because the rule will have no substantial
direct effect on federally recognized Indian tribes.
Paperwork Reduction Act
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget under the Paperwork
Reduction Act is not required. The NPS may not conduct or sponsor and
you are not required to respond to a collection of information unless
it displays a currently valid OMB control number.
National Environmental Policy Act of 1969
Categorical Exclusion Applies
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under NEPA is not required because the rule is covered by a categorical
exclusion. The NPS has determined the rule is categorically excluded
under 43 CFR 46.210(i) which applies to ``policies, directives,
regulations, and guidelines: That are of an administrative, financial,
legal, technical, or procedural nature; or whose environmental effects
are too broad, speculative, or conjectural to lend themselves to
meaningful analysis and will later be subject to the NEPA process,
either collectively or case-by-case.''
This regulation meets both prongs of this categorical exclusion.
First, the rule is administrative, legal, and procedural in nature
because it simply clarifies and codifies in regulation that
superintendents have the authority to allow e-bikes in their units but
does not itself take any action or require superintendents to take any
action in their park units. Further, the regulation simply clarifies
and resolves existing ambiguity regarding superintendents' discretion
to allow e-bikes in parks, rather than explicitly transitioning e-bikes
from a stricter management regime to a more relaxed one. Prior to this
regulation, NPS regulations were unclear as to how e-bikes were
regulated as neither the regulatory definition of ``motor vehicles''
nor ``bicycles'' explicitly included e-bikes. Due in part to this
ambiguity, most park compendiums did not specifically address e-bikes
until the NPS recently determined in Policy Memorandum 19-01 that e-
bikes should be treated in a similar manner to traditional bicycles.
This regulation simply resolves this ambiguity in the NPS's regulations
and codifies the decision made in the policy memorandum but does not
change the regulatory treatment of e-bikes from one established
management regime to another in a way that would result in an expanded
range of potential environmental impacts.
Second, this regulation's environmental effects are too broad,
speculative, or conjectural to lend themselves to meaningful analysis
and the environmental effects of allowing e-bikes in specific parks
will be or have already been subject to NEPA analysis on a park-by-park
basis. Each park unit has its own enabling legislation, unique
resources that must be protected, and specific circumstances related to
visitor use, trails, and bicycles use that must be considered prior to
determining whether e-bike use should be allowed. Also, the regulation
allows park superintendents to designate the specific roads and trails
that e-bikes may be allowed on, and authorizes them to set restrictions
on the classes, speed, and other aspects of e-bikes use where they are
authorized. Given the wide variety of resources, terrains, and visitor
use patterns in parks across the country, as well as the broad
discretion to determine the scope of e-bike use at the park level,
conducting NEPA analysis at the National Park System level would be too
speculative and imprecise to make definitive statements about the level
of impacts. For this reason, an evaluation of environmental impacts
under NEPA would therefore be ineffective at the System level.
Many units of the National Park System already allow the use of e-
bikes where traditional bicycles are allowed under the direction of the
Policy Memorandum. The Policy Memorandum required those units to
evaluate the environmental impacts of allowing e-bikes under NEPA.
Because traditional bicycles were already an established presence in
areas where e-bikes were recently allowed, traditional bicycles were
part of the baseline of existing conditions from which the
environmental impacts of e-bikes were measured. Therefore, the impacts
potentially caused by the implementation of the Policy Memorandum were
limited only to those impacts from e-bikes that differ from the
existing impacts of traditional bicycles. As a result, for most units a
categorical exclusion has applied.
In some units of the National Park System, the superintendent may
have not yet opened bicycle trails to e-bikes, or may have closed a
location to the use of e-bikes or otherwise restricted their use. In
these units, any future decision to allow e-bikes in a new location or
manner will be subject to an evaluation of the environmental impacts of
that decision at that time. This will also be true for locations where,
in the future, traditional bicycles and e-bikes are introduced for the
first time. If a superintendent proposes to designate an administrative
road or trail for e-bike use where traditional bicycles are not yet
allowed, the superintendent will
[[Page 69187]]
need to follow the same procedural steps in order to designate those
locations for bicycle and e-bike use. In both circumstances described
above, the environmental effects of this rule are too broad to be
analyzed at the National Park System level and environmental analysis
under NEPA is best conducted at the park level.
The NPS has also determined that the rule does not involve any of
the extraordinary circumstances listed in 43 CFR 46.215 that would
require further analysis under NEPA.
Response to NEPA Comments
Several commenters asserted that the NPS has failed to conduct a
proper analysis of the foreseeable impacts of this rule and that the
preparation of an environmental assessment or environmental impact
statement is required. The NPS disagrees with this interpretation of
NEPA and believes the categorical exclusion cited above is appropriate
for this rule. Further, some commenters have requested that the NPS
conduct a programmatic NEPA review. CEQ has stated that agencies have
discretion to determine whether a programmatic approach is appropriate.
In this case, for reasons discussed below, and in light of the fact
that the categorical exclusion cited above requires a case-by-case NEPA
review at the park level before e-bike use could be authorized at any
specific park unit, the NPS does not believe a programmatic approach is
appropriate.
The framework established by this rule provides superintendents
with an opportunity to evaluate the effects of e-bike use at the park
level, where more detailed information about potential effects is
available, prior to allowing such use. Superintendents who decide to
allow e-bikes in a park area must base that decision on reasonably
obtainable scientific, technical, and economic data, and other
information. Research and data on impacts and compatibility of e-bikes
is still being developed. Available research, some of which was
highlighted by commenters, indicates that certain classes of e-bikes
have similar impacts to trails and other trail users as traditional
bicycles. When e-bikes are considered at the park level, user
conflicts, resource impacts, and other issues specific to each park
unit could influence a superintendent's decision to allow them or not.
This rule does not require that e-bikes be allowed anywhere in the
National Park System. As noted above, units of the National Park System
vary significantly in terms of the criteria that would influence the
decision to allow e-bikes. Further, each park unit has its own enabling
legislation, unique resources that must be protected, and specific
circumstances related to visitor use, trails, and bicycles use that
must be considered prior to determining whether e-bike use should be
allowed. This would make a comprehensive NEPA analysis too broad,
speculative, or conjectural to lend itself to a meaningful analysis,
rendering such an analysis ineffective. Addressing potential
environmental and social impacts are most meaningful at the park level.
Superintendents will consider the suitability of e-bike use on specific
roads and trails through subsequent analysis consistent with the
requirements of NEPA and other applicable laws (e.g., Endangered
Species Act, Clean Water Act, National Historic Preservation Act) and
policies. The regulatory framework established by this rule will allow
superintendents to develop site-specific design features and mitigation
strategies to reduce or negate potential adverse impacts, as needed.
Some commenters disagreed that none of the extraordinary
circumstances listed under 43 CFR 46.215 apply to this rule. These
commenters stated that this rule will have significant impacts on (1)
public health and safety; (2) natural and cultural resources; (3)
properties eligible for listing on the National Register of Historic
Places; and (4) species and designated critical habitat for species
listed, or proposed to be listed, under the Endangered Species Act
(ESA). As stated above, this rule is not self-executing in the sense
that it does not mandate the use of e-bikes anywhere in the National
Park System. For this reason, the rule itself would not result in any
physical impacts to park resources let alone significant impacts on any
of the items identified in 43 CFR 46.215. Decisions to allow e-bikes in
park areas will be subject to the NEPA process at the park level just
like all other decisions that could have an effect on the human
environment. Applying the NEPA process at a park-specific level will
allow the NPS to evaluate detailed information on the potential effects
of e-bike use in a particular park, consult with the U.S. Fish and
Wildlife Service regarding impacts to endangered species, and develop
site-specific project design features and mitigation strategies, if
needed.
In addition to the extraordinary circumstances in 43 CFR 46.215
that are tied to impacts, commenters also stated that this rule will
have highly controversial environmental effects or involve unresolved
conflicts concerning alternative uses of available resources; and have
highly uncertain and potentially significant environmental effects or
involve unique or unknown environmental risks. Commenters also stated
that the rule will establish a precedent for future action or represent
a decision in principle about future actions with potentially
significant environmental effects; and have a direct relationship to
other actions with individually insignificant but cumulatively
significant environmental effects.
With regard to controversy, 43 CFR 46.215(c) pertains to whether
the environmental effects are highly controversial. As stated in the
Department of the Interior NEPA regulations, ``[c]ontroversial refers
to circumstances where a substantial dispute exists as to the
environmental consequences of the proposed action and does not refer to
the existence of opposition to a proposed action, the effect of which
is relatively undisputed.'' 43 CFR 46.30. While e-bikes are still
relatively new, there are a growing number of studies investigating e-
bike use. The NPS's review of the current research shows that there
does not appear to be any substantial disagreement or differing
assumptions among scientists that affect the interpretation of evidence
in this emerging body of literature. Overall, e-bikes are more like
traditional bicycles than motor vehicles, and generally cause the same
types and levels of impacts as traditional bikes. Furthermore, the rule
would not result in unresolved conflicts concerning alternative uses of
available resources. While the rule clarifies that e-bikes should be
treated in a similar manner to traditional bicycles, it does not
authorize any consumptive or exclusive use of park resources. It merely
allows a new type of use on bicycle trails that is substantively
similar to bicycles but does not prohibit or restrict any other user
group.
This rule would not have highly uncertain, and potentially
significant environmental effects, or involve unique or unknown
environmental risks. First, as stated above, the rule itself does not
authorize nor mandate e-bike use at any park unit and therefore without
additional action at the park level, no impacts would occur. In
addition, as stated above, a review of available information indicates
the impacts of e-bikes are generally similar to impacts from bicycle
use and there is no information indicating that the additional impacts
from e-bikes may be significant. This is reinforced by the fact that
most NPS units that have allowed e-bikes and have completed a site-
specific NEPA review have applied a
[[Page 69188]]
categorical exclusion. While the use of e-bikes is relatively new, the
available literature demonstrates a consensus regarding what potential
impacts may be, and there is nothing to indicate that the impacts of e-
bike use would be highly uncertain.
This rule does not establish a precedent for future action or
represent a decision in principle about future actions with potentially
significant environmental effects. The extraordinary circumstance
listed at 43 CFR 46.215(e) requires both a precedent or decision in
principle for future action and for the precedent or decision in
principle to have potentially significant environmental effects.
Neither criteria apply. This rule does not establish a precedent for
future action nor make any decisions about future actions. As discussed
above, it is not self-executing in the sense that it does not mandate
the use of e-bikes anywhere in the National Park System; it merely
authorizes superintendents to allow them where traditional bicycles are
allowed. The Superintendent at each park unit will have the discretion
to allow e-bike use--or not--on a case-by-case basis. The discussion
above addresses why this rule would be not result in any significant
impacts.
The NPS also disagrees with the comment that the rule would have a
direct relationship to other actions with individually insignificant
but cumulatively significant environmental effects. Impacts to
resources and visitors would not occur on a national scale; rather,
impacts would be experienced by visitors at each park unit at the time
of their visit and resources affected would be at the park level, not
at a national scale. Therefore, there would not be any meaningful
``cumulative impacts'' at a national scale, that are greater than the
sum of the individual park-level impacts. Furthermore, as discussed
above, due to the specific circumstances at each park unit, the NPS
does not believe a programmatic NEPA review is warranted.
Effects on the Energy Supply (Executive Order 13211)
This rule is not a significant energy action under the definition
in Executive Order 13211. A Statement of Energy Effects in not
required.
References
A complete list of all resources reviewed and considered during the
development of this rulemaking is available at http://www.regulations.gov at Docket No. NPS-2020-0001.
List of Subjects
36 CFR Part 1
National parks, Penalties, Reporting and recordkeeping
requirements, Signs and symbols.
36 CFR Part 4
National parks, Traffic regulations.
In consideration of the foregoing, the National Park Service amends
36 CFR parts 1 and 4 as set forth below:
PART 1--GENERAL PROVISIONS
0
1. The authority citation for part 1 continues to read as follows:
Authority: 54 U.S.C. 100101, 100751, 320102.
0
2. In Sec. 1.4 amend paragraph (a) by adding, in alphabetical order,
the definition for ``Electric bicycle'' and revising the definition for
``Motor vehicle'' to read as follows:
Sec. 1.4 What terms do I need to know?
(a) * * *
* * * * *
Electric bicycle means a two- or three-wheeled cycle with fully
operable pedals and an electric motor of not more than 750 watts that
meets the requirements of one of the following three classes:
(1) ``Class 1 electric bicycle'' shall mean an electric bicycle
equipped with a motor that provides assistance only when the rider is
pedaling, and that ceases to provide assistance when the bicycle
reaches the speed of 20 miles per hour.
(2) ``Class 2 electric bicycle'' shall mean an electric bicycle
equipped with a motor that may be used exclusively to propel the
bicycle, and that is not capable of providing assistance when the
bicycle reaches the speed of 20 miles per hour.
(3) ``Class 3 electric bicycle'' shall mean an electric bicycle
equipped with a motor that provides assistance only when the rider is
pedaling, and that ceases to provide assistance when the bicycle
reaches the speed of 28 miles per hour.
* * * * *
Motor vehicle means every vehicle that is self-propelled and every
vehicle that is propelled by electric power, but not operated on rails
or water, except an electric bicycle, a snowmobile, and a motorized
wheelchair.
* * * * *
PART 4--VEHICLES AND TRAFFIC SAFETY
0
3. The authority citation for part 4 continues to read as follows:
Authority: 54 U.S.C. 100101, 100751, 320102.
0
4. Amend Sec. 4.30 by adding paragraph (i) to read as follows:
Sec. 4.30 Bicycles
* * * * *
(i) Electric bicycles. (1) The use of an electric bicycle may be
allowed on park roads, parking areas, and administrative roads and
trails that are otherwise open to bicycles. The Superintendent will
designate the areas open to electric bicycles, or specific classes of
electric bicycles, and notify the public pursuant to 36 CFR 1.7.
(2) The use of an electric bicycle is prohibited in locations not
designated by the Superintendent under paragraph (i)(1) of this
section.
(3) Except where use of motor vehicles by the public is allowed,
using the electric motor exclusively to move an electric bicycle for an
extended period of time without pedaling is prohibited.
(4) Possessing an electric bicycle in a wilderness area established
by Federal statute is prohibited.
(5) A person operating or possessing an electric bicycle is subject
to the following sections of this part that apply to bicycles:
Sec. Sec. 4.12, 4.13, 4.20, 4.21, 4.22, 4.23, and 4.30(h)(3)-(5).
(6) Except as specified in this chapter, the use of an electric
bicycle is governed by State law, which is adopted and made a part of
this section. Any act in violation of State law adopted by this
paragraph is prohibited.
(7) Superintendents may limit or restrict or impose conditions on
electric bicycle use, or may close any park road, parking area,
administrative road, trail, or portion thereof to such electric bicycle
use, or terminate such condition, closure, limit or restriction after:
(i) Taking into consideration public health and safety, natural and
cultural resource protection, and other management activities and
objectives; and
(ii) Notifying the public through one or more methods listed in 36
CFR 1.7, including in the superintendent's compendium (or written
compilation) of discretionary actions referred to in 36 CFR 1.7(b).
George Wallace,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2020-22129 Filed 10-30-20; 8:45 am]
BILLING CODE 4312-52-P