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


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 4

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


Vehicles and Traffic Safety--Bicycles

AGENCY: National Park Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

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

DATES: The rule is effective August 6, 2012.

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

SUPPLEMENTARY INFORMATION:

Background

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

The Final Rule

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

[[Page 39928]]

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

[[Page 39929]]

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

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

52 FR 10675, April 2, 1987.

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

Planning Topics

Trail Sustainability

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

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

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

[[Page 39930]]

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

Safety--Bicycle Helmet Use in National Parks

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

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

NPS Management Policies 2006, 8.2.5.1.

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

Other Planning Considerations

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

Summary of and Responses to Public Comments

    The NPS published the proposed rule at 73 FR 76987 (December 18, 
2008) and a correction was made in 73 FR 78680 (December 23, 2008). We 
accepted comments through the mail, hand delivery, and through the 
Federal eRulemaking Portal at http://www.regulations.gov. Comments were 
accepted through February 17, 2009, and a total of 6,576 comment 
documents were received. A summary of comments and NPS responses is 
provided below, followed by a table that sets out, section-by-section, 
the changes we have made from the proposed rule to the final rule based 
on the analysis of the comments.

Impacts to Natural Resources

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

[[Page 39931]]

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

Impacts to Visitor Use and Experience

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

[[Page 39932]]

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

Policy and Compliance Issues

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

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

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

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

[[Page 39933]]

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

Park Planning and Management of Bicycle Use

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

[[Page 39934]]

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

Structure and Clarity of Proposed Rule

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

[[Page 39935]]

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

Socioeconomic Impacts

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

[[Page 39936]]

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

Changes From the Proposed Rule

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

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

Compliance With Other Laws and Executive Orders

Regulatory Planning and Review (Executive Orders 12866 and 13563)

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

Regulatory Flexibility Act (RFA)

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

Small Business Regulatory Enforcement Fairness Act (SBREFA)

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

[[Page 39937]]

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

Unfunded Mandates Reform Act (UMRA)

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

Takings (Executive Order 12630)

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

Federalism (Executive Order 13132)

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

Civil Justice Reform (Executive Order 12988)

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

Consultation With Indian Tribes (Executive Order 13175)

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

Paperwork Reduction Act (PRA)

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

National Environmental Policy Act (NEPA)

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

Effects on the Energy Supply (Executive Order 13211)

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

Drafting Information

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

List of Subjects in 36 CFR Part 4

    National parks, Traffic regulations.

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

PART 4--VEHICLES AND TRAFFIC SAFETY

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

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


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


Sec.  4.30  Bicycles.

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

[[Page 39938]]

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

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