[Federal Register Volume 73, Number 244 (Thursday, December 18, 2008)]
[Proposed Rules]
[Pages 76987-76990]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29892]



National Park Service

36 CFR Part 4

RIN 1024-AD72

Vehicles and Traffic Safety

AGENCY: National Park Service, Interior.

ACTION: Proposed Rule.


SUMMARY: This rule proposes to amend current regulations for 
designating bicycle use on National Park Service (NPS) lands. The 
proposed rule authorizes park superintendents to open existing trails 
to bicycle use within park units in accordance with appropriate park 
plans and compliance documents under the National Environmental Policy 
Act (NEPA), the National Historic Preservation Act, the NPS Organic 
Act, and the park's enabling legislation, and other applicable law. The 
proposed rule continues to require promulgation of a special regulation 
to build a new trail for bicycle use outside developed areas, or to 
open an existing trail to bicycle use if such action triggers one of 
the existing regulatory criteria requiring rulemaking in Section 1.5 of 
Title 36 of the Code of Federal Regulations.

DATES: Comments must be received by February 17, 2009.

ADDRESSES: You may submit comments, identified by the number 1024-AD72, 
by any of the following methods:

--Federal rulemaking portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
--Mail: National Park Service, Attn. Regulations Program Manager, 1849 
C St., NW., MS-3122, Washington, DC 20240.

All submissions received must include the agency name and RIN 1024-
AD72. For additional information see ``Public Participation'' under 

FOR FURTHER INFORMATION CONTACT: Philip Selleck, Regulations Program 
Manager, 1849 C St., NW., Washington, DC 20240, (202) 208-4206.



    Current regulations provide for the use of bicycles on park roads, 
parking areas and routes designated for bicycle use. A special 
regulation, specific to the individual park, must be adopted if 
bicycles are to be used in areas outside developed areas and special 
use zones. The NPS promulgated the current bicycle use regulation in 
1987 and adopted the special regulation

[[Page 76988]]

requirement as a way of ensuring maximum public input on decisions to 
allow bicycle use outside developed areas.
    Promulgation of special regulations requires various types of 
analyses and approval by the NPS Director and the Assistant Secretary 
for Fish and Wildlife and Parks, a process that takes more than two 
years on average. The proposed rule achieves a primary benefit of the 
special regulations process, notice and public comment, while 
eliminating the other steps of rulemaking deemed unnecessary in certain 
circumstances for designating areas for bicycle use.
    For existing trails, the proposed rule provides for public notice 
and participation but does not require the promulgation of special 
regulations unless the trail designation has the type of significant 
effect that triggers rulemaking under the NPS' general regulation 
governing public use in units of the National Park System (see 36 CFR 
1.5(b)). The NPS would continue to require the promulgation of special 
regulations for bicycle trails outside developed areas involving new 
trail construction.
    As a general matter, the proposed rule provides park 
superintendents with a more efficient and effective way to determine 
whether opening existing trails to bicycles would be appropriate in the 
park unit they manage. The NPS Management Policies emphasize that 
``(t)he Service must ensure that [park] uses are appropriate to the 
park in which they occur,'' and establish a process for determining 
whether a particular use is appropriate in a park unit. See NPS 
Management Policies 2006, p. 97 and ] 8.1.2.
    Whether or not bicycle use is an appropriate activity in a unit of 
the National Park System should be considered through an individual 
park planning process that involves environmental compliance and input 
from the public. In addition, any particular trail use should be 
considered as part of a comprehensive plan for trail use in a park 
area. Parks that don't currently address bicycle use in existing 
planning documents could accomplish this comprehensive plan as either a 
specific plan for bicycle use in the park or as part of another plan, 
such as a recreation use plan.
    The planning process can help determine, for example, if 
opportunities for bicycling will offer the potential to increase 
overall visitation, generate new youth interest in parks, or expand 
appreciation for our national parks. Proper planning with public 
participation also provides the opportunity to consider a range of 
alternatives to avoid or minimize impacts on natural, historic and 
cultural resources and reduce conflicts with other user groups. No 
matter what type of planning is conducted, ``(i)n its role as steward 
of park resources, the National Park Service must ensure that park uses 
that are allowed would not cause impairment of, or unacceptable impacts 
on, park resources and values.'' NPS Management Policies 2006 ] 1.5.
    In addition to the park planning activities described above, the 
intent of the proposed rule is to take advantage of the public outreach 
aspects of the NEPA process. The proposed rule does this by requiring, 
at a minimum, preparation of an Environmental Assessment (EA) for any 
decision to open existing hiking or horse trails to bicycles. In other 
words, the proposed rule precludes use of any applicable ``categorical 
exclusions'' from NEPA analysis for opening trails to bicycle use. 
Further, the proposed rule requires a minimum of 30 days for public 
comment on EAs on bicycle use. The proposed rule also requires that the 
notice requesting public comment be published in the Federal Register, 
in addition to any other manner of notice used by the park, consistent 
with the public participation objectives set out in the Management 
Policies. ``Where there is strong public interest in a particular use, 
opportunities for civic engagement and cooperative conservation should 
be factored into the decision-making process.'' NPS Management Policies 
2006 ] By adopting these requirements, the proposed rule would 
meet the broad public participation objectives of the NPS without the 
requirement for a special regulation.
    In addition, the proposed rule requires Federal Register notice of 
the superintendent's determination that bicycle use is consistent with 
the protection of the park area's natural, scenic and aesthetic values, 
safety considerations and management objectives and will not disturb 
wildlife or park resources. If the determination itself is not 
published in full, then the notice should include information on where 
to view the determination, or how to obtain a copy of the 
determination. This Federal Register notice must provide the public a 
30-day period to give the public an opportunity to consider and comment 
on the determination prior to action by the park to open any trails for 
bicycle use. This comment period would be particularly important when 
there is a period of time between the public comment period for the EA 
or EIS and the decision to designate a trail for bicycle use. It would 
allow for public comment on the decision to implement the earlier 
planning process. However, if there is significant change or new 
information since the completion of the planning and NEPA documents, 
then the NPS will have to consider the need to supplement or revise the 
    An area of particular concern for park managers involves the 
designation of ``new trails'' in park areas. In the 1987 rulemaking on 
bicycle use, NPS decided to limit the authority of the superintendent 
to designate bicycle use without notice and comment rulemaking to 
designations within developed areas of the park, ``which are land 
management and use categories established pursuant to a park area's 
Statement for Management and General Management Plan. Developed areas 
include lands within development and historic zones; these areas are 
generally impacted to a certain degree by structures, facilities or 
other improvements which reflect the fact the primary purpose or 
management objective for the use these lands is other than the 
preservation of their natural resources.'' 52 FR 10670, 10681 (Apr. 2, 
1987). There is a similar definition for developed areas found in the 
NPS general regulations at 36 CFR 1.4.
    In contrast, the 1987 rulemaking described the designation process 
outside of developed areas:

    The NPS has determined that the designation of a bicycle route 
outside of such developed areas, in areas whose primary purpose and 
land uses are related more to the preservation of natural resources 
and values, would have a much greater potential to result in adverse 
resource impacts or visitor use conflicts. This paragraph therefore 
provides for a much more stringent decision-making process for such 
a proposal by requiring a formal rulemaking. Such a process will 
provide for a thorough review of all environmental and visitor use 
considerations and assure the superintendent of having had the 
benefit of public review and comment before making a decision on any 
proposed designation. 52 FR at 10681.

    The proposed rule continues this approach for new trails designated 
outside developed areas in any unit of the National Park System, i.e. 
special regulations would still be required for the construction of new 
bicycle trails outside developed areas.
    The proposed rule would not affect other existing statutory or 
regulatory protections for the preservation and enhancement of park 
resources and visitor experiences. For example, the proposed rule would 
not affect the statutory ban on bicycles in wilderness areas. In 
addition, special regulations would still be required when an action to 
open existing trails to bicycles would

[[Page 76989]]

result in the degree of change or controversy described in 36 CFR 
    A new section has been added to address the issue of bicycle use on 
administrative roads. The proposed rule clarifies that administrative 
roads that are closed to motor vehicle use by park visitors are also 
closed to bicycle use unless designated open by the superintendent. The 
superintendent may find it necessary to impose certain limits or 
restrictions on the use in order to provide for safety considerations, 
to avoid visitor use conflicts, or to protect park resources and 
values. The proposed rule also clarifies that the superintendent has 
authority to close any area designated as open for bicycle use, not 
just park roads and parking areas.
    Finally, the proposed rule eliminates the term ``special use zone'' 
because this term is no longer used in NPS planning documents and as a 
result has created confusion in interpreting its meaning within the 
context of this regulation. For purposes of park planning the term 
``special use zone'' meant ``non-federal lands within the exterior 
boundaries of a park area * * * used for non-park purposes but over 
which the NPS exerts some degree of administrative control.'' 52 FR at 
10681. For example, the NPS has authority to enter into a written 
agreement with a landowner within the boundaries of a park area to 
administer the non-federal lands for public recreation purposes. 
Because the NPS no longer uses the term ``special use zones'' for 
planning purposes, and NPS regulations now make clear to which lands 
its regulations apply (see 36 CFR 1.2), the proposed rule deletes the 
term ``special use zones.''

Compliance With Other Laws

Regulatory Planning and Review (Executive Order 12866)

    This document is not a significant rule and is not subject to 
review by the Office of Management and Budget (OMB) under Executive 
Order 12866.
    (1) This rule would not have an effect of $100 million or more on 
the economy. It would not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
    (2) This rule would not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency.
    (3) This rule does not alter the budgetary effects of entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients.
    (4) This rule does not raise novel legal or policy issues.

Regulatory Flexibility Act

    The Department of the Interior certifies that this document would 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
This certification is based on information contained in the report 
titled, ``Benefit-Cost/Unfunded Mandates Act Analysis Small business 
and Regulatory Flexibility Act Analysis'' (U.S. Department of the 
Interior, Office of Policy Analysis, Office of the Secretary).

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million or 
    b. Would 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 rule does not have a significant or unique effect on State, 
local, or tribal governments or the private sector.

Takings (Executive Order 12630)

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications.

Federalism (Executive Order 13132)

    In accordance with Executive Order 13132, the rule does not require 
the preparation of a federalism assessment.

Civil Justice Reform (Executive Order 12988)

    This regulation meets the applicable standards set forth in 
Sections 3(a) and 3(b)(2) of Executive Order 12988 Civil Justice 

Paperwork Reduction Act

    This regulation does not require an information collection under 
the Paperwork Reduction Act.

National Environmental Policy Act

    The NPS is performing the NEPA analysis for this rule concurrently 
with the process of accepting comments

 Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government to Government Relations with Native American Tribal 
Governments'' (59 FR 22951) and 512 DM 2, we have evaluated potential 
effects on federally recognized Indian tribes and have determined that 
there are no potential effects.

Clarity of This Regulation

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

Public Participation

    You may submit comments online at: http://www.regulations.gov. 
Follow the instructions for submitting comments. You may also mail or 
hand deliver comments to: Mail: National Park Service, Attn. 
Regulations Program Manager, 1849 C St., NW., MS-3122, Washington, DC 

Public Availability of Comments

    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

[[Page 76990]]

List of Subjects in 36 CFR Part 4

    National Parks.

    For the reasons stated in the preamble we propose to amend 36 CFR 
Part 4 as follows:


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

    Authority: 16 U.S.C. 1, 3, 9a, 460(q), 462(k); Sec. 7.96 also 
issued under D.C. Code 8-137 (1981) and D.C. Code 40-721 (1981).

    2. Section 4.30 is revised to read as follows:

Sec.  4.30  Bicycles

    (a) Park roads. The use of a bicycle is permitted on park roads and 
in parking areas that are otherwise open for motor vehicle use by the 
general public.
    (b) Existing trails. Except when rulemaking publication in the 
Federal Register is required by Sec.  1.5(b) of this Chapter, a hiking 
or horse trail that currently exists on the ground and does not require 
any construction or significant modification to accommodate bicycles 
may be designated for bicycle use only if:
    (1) The park has or will complete a park planning document 
addressing bicycle use on existing trails in the park; and
    (2) The park has completed either an environmental assessment (EA) 
or an environmental impact statement (EIS) evaluating bicycle use. In 
addition to the requirements otherwise applicable to the preparation of 
an EA or EIS, the park will publish a notice in the Federal Register 
providing the public at least thirty (30) days for review and comment 
on an EA issued under this section; and
    (3) A written determination is signed by the superintendent stating 
that the addition of bicycle use on existing hiking or horse trails is 
consistent with the protection of the park area's natural, scenic and 
aesthetic values, safety considerations and management objectives and 
will not disturb wildlife or park resources. The park will publish in 
the Federal Register a notice of the determination and provide at least 
thirty (30) days for public review and comment before implementing that 
decision for bicycle use.
    (c) New Trails. Trails that do not exist on the ground, and 
therefore would require trail construction activities (such as clearing 
brush, cutting trees, excavation, or surface treatment), may be 
developed and designated for bicycle use only after:
    (1) The park has completed the requirements set forth in paragraphs 
(b)(1) and (2) of this section; and
    (2)(i) For new trails located outside of a park's developed areas, 
as identified in the relevant park plan, the park has promulgated a 
special regulation authorizing bicycle use; or
    (ii) For new trails located within a park's developed areas, as 
identified in the relevant park plan, the park has completed the 
requirements set forth in paragraph (b)(3) of this section.
    (d) Administrative roads. Administrative roads closed to motor 
vehicle use by the public, but open to motor vehicles use for 
administrative purposes, may be designated for bicycle use by the 
superintendent pursuant to the criteria and procedures of Sec. Sec.  
1.5 and 1.7 of this chapter.
    (e) Closures. A superintendent may close any park roads, parking 
areas, administrative roads, existing trails, or new trails to bicycle 
use pursuant to the criteria and procedures of Sec. Sec.  1.5 and 1.7 
of this chapter.

    Dated: December 9, 2008.
Lyle Laverty,
Assistant Secretary, Fish and Wildlife and Parks.
[FR Doc. E8-29892 Filed 12-17-08; 8:45 am]