[Federal Register Volume 79, Number 117 (Wednesday, June 18, 2014)]
[Proposed Rules]
[Pages 34678-34681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-14273]
[[Page 34678]]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Parts 212 and 261
RIN 0596-AD17
Use by Over-Snow Vehicles (Travel Management Rule)
AGENCY: Forest Service, USDA.
ACTION: Notice of proposed rule; request for public comment.
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SUMMARY: Consistent with a court order on March 29, 2013, the U.S.
Forest Service (Forest Service) is proposing to amend the agency's
travel management rule (TMR) to require designation of National Forest
System (NFS) roads, NFS trails, and areas on NFS lands where over-snow
vehicle (OSV) use is allowed, restricted, or prohibited. Under the
amended subpart C, the responsible official could establish a system of
routes and areas where OSV use is prohibited except where allowed or a
system of routes and areas where OSV use is allowed unless prohibited.
The proposed rule would continue to exempt OSV use from subpart B of
the TMR, which provides for designation of a system of routes and areas
where motor vehicle use is allowed and prohibits motor vehicle use off
the designated system.
DATES: Comments must be received in writing by August 4, 2014.
ADDRESSES: Submit comments electronically by following the instructions
at the Federal eRulemaking portal at http://www.regulations.gov.
Comments also may be submitted by mail to the U.S. Forest Service,
Attn: Joseph Adamson, Recreation, Heritage, and Volunteer Resources
Staff, 1400 Independence Avenue SW., Stop 1125, Washington, DC 20250-
1125. If comments are sent electronically, please do not send duplicate
comments by mail. Please confine comments to issues pertinent to the
proposed rule, explain the reasons for any recommended changes, and,
where possible, reference the specific section and wording being
addressed. All comments, including names and addresses when provided,
will be placed in the record and will be available for public
inspection and copying. The public may inspect comments received on
this proposed rule in the Office of the Director, Recreation, Heritage,
and Volunteer Resources Staff, 5th Floor SW., 1400 Independence Avenue
SW., Washington, DC, on business days between 8:30 a.m. and 4:00 p.m.
Those wishing to inspect comments are encouraged to call ahead at (202)
205-0813 to facilitate entry into the building.
FOR FURTHER INFORMATION CONTACT: Joseph Adamson, (202) 205-0931,
Recreation, Heritage, and Volunteer Resources Staff.
SUPPLEMENTARY INFORMATION:
Background and Need for the Rule
Between 1982 and 2009, the number of people who operated motor
vehicles off road increased by more than 153 percent in the United
States (``Outdoor Recreation Trends and Futures, a Technical Document
Supporting the Forest Service 2010 RPA [Resources Planning Act]
Assessment,'' p. 135 (H. Cordell, 2012)). While both motor vehicle use
and OSV \1\ use are increasing in the National Forests and Grasslands,
so are many other types of recreational activities. From 1982 to 2009,
the number of people in the United States participating in viewing or
photographing birds increased 304.2 percent, the number of people
participating in day hiking increased 228.2 percent, the number of
people participating in backpacking increased 167 percent, the number
of people participating in fishing increased 36 percent, and the number
of people participating in hunting increased 34 percent (id. at 135-
36). Providing for the long-term sustainable use of NFS lands and
resources is essential to maintaining the quality of the recreation
experience in the national forests and grasslands.
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\1\ See 36 CFR 212.1 for the definition of an OSV.
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In 2005, the Forest Service promulgated the TMR to provide more
effective management of public motor vehicle use. Subpart B of the TMR
requires designation of those NFS roads, NFS trails, and areas on NFS
lands where public motor vehicle use is allowed (36 CFR 212.51(a)).
Unless exempted from the designations, public motor vehicle use is
prohibited off designated routes and outside designated areas (36 CFR
261.13). Under subpart B, the responsible official must establish a
system of routes and areas where motor vehicle use is allowed. This
information will be displayed for the public at local district offices.
Motor vehicle use off the designated system is prohibited, unless it is
exempted from the designations. Subpart C of the current TMR authorizes
but does not require the responsible official to allow, restrict, or
prohibit OSV use on NFS roads, NFS trails, and areas on NFS lands.
Under subpart C, the responsible official has the discretion to
determine whether to regulate OSV use and to establish a system of
routes and areas where OSV use is allowed unless prohibited or a system
of routes and areas where OSV use is prohibited unless allowed. The TMR
treats OSVs differently from other types of motor vehicles because an
OSV traveling over snow results in different impacts on natural and
cultural resource values than motor vehicles traveling over the ground.
Consequently, in contrast to motor vehicles, it may be appropriate for
OSVs to travel off route. 69 FR 42386, 42389 (July 15, 2004) (proposed
TMR); 70 FR 68273 (Nov. 9, 2005) (final TMR).
On March 29, 2013, the United States District Court for the
District of Idaho ruled that subpart C of the TMR violated Executive
Order (EO) 11644, as amended by EO 11989, governing use of off-road
vehicles on federal lands in giving the Forest Service discretion to
determine whether to regulate OSV use, and that the agency therefore
improperly denied the plaintiff's petition to amend the TMR. Winter
Wildlands Alliance v. USFS, 2013 WL 1319598, No. 1:11-CV-586-REB (D.
Idaho Mar. 29, 2013). The court did not rule that the Agency lacks the
discretion to determine how to regulate OSV use. To the contrary, the
court held that the Forest Service has the discretion to determine
where and when OSV use can occur on NFS lands. This ruling requires the
Agency to designate routes and areas where motor vehicle use is
permitted and routes and areas where motor vehicle use is not permitted
on NFS lands, consistent with EO 11644, as amended by EO 11989, sec.
3(a)), but does not dictate where and when motor vehicle use can occur
on those lands. The court ordered the Forest Service to issue a new
rule consistent with the EOs.
The Forest Service is proposing to amend subpart C of the TMR to
provide for management of OSVs on NFS lands consistent with the EOs and
the court's order. Specifically, the Forest Service is proposing to
amend subpart C of the TMR to require the responsible official to
designate NFS roads, NFS trails, and areas on NFS lands where OSV use
is allowed, restricted, or prohibited in administrative units or Ranger
Districts, or parts of administrative units or Ranger Districts, where
snowfall is adequate for OSV use to occur. The Forest Service is not
proposing to remove the exemption for OSVs from subpart B because the
Agency wants to preserve the discretion in subpart C to establish a
system of routes and areas where OSV use is allowed unless prohibited
or a system of routes and areas where OSV use is prohibited unless
allowed. In contrast, subpart B
[[Page 34679]]
requires designation of a system of routes and areas where motor
vehicle use is prohibited unless allowed. Regardless of whether a unit
or district establishes a system of routes and areas where OSV use is
allowed unless prohibited or a system or routes and areas where OSV use
is prohibited unless allowed, the decision would be based on an
analysis of the impacts from the proposed designations and anticipated
uses in accordance with subpart B, as modified in subpart C to provide
for consistency in terminology. This information will be displayed for
the public at local district offices.
The difference in management of motor vehicle use and OSV use on
NFS lands stems from differences in their associated settings,
activities, environmental impacts, and public preferences. National
forests and grasslands change when snow blankets the landscape.
Vegetation camouflages, animals burrow, and water transforms into ice.
Recreationists and others accessing snow-covered National Forests and
Grasslands typically trade hiking boots for skis and snowshoes and
motor vehicles with tires for those with tracks and sleds.
Because of snowfall patterns, National Forests and Grasslands vary
significantly in their need to address OSV use. National Visitor Use
Monitoring (NVUM) data from 2008 to 2012 show that approximately 30
percent of NFS lands do not offer OSV recreation opportunities.
OSV use occurs only in the months when snow is present, in contrast
to other types of motor vehicle use, which can occur at any time of the
year. Other types of motor vehicles operating over snow are regulated
under subpart B of the TMR.
A key difference between OSV use and other types of motor vehicle
use is that, when properly operated and managed, OSVs do not make
direct contact with soil, water, and vegetation, whereas most other
types of motor vehicles operate directly on the ground. Unlike other
types of motor vehicles traveling cross-country, OSVs traveling cross-
country generally do not create a permanent trail or have a direct
impact on soil and ground vegetation. In some areas of the country, OSV
use is therefore not always confined to roads and trails.
The public's OSV preferences and practices on NFS lands vary
nation-wide due to different terrain, snow typology and amount,
recreational activities, and transportation needs. OSV use on NFS lands
in the northeast and mid-west is largely trail-based, while the larger,
wide-open, powder-filled bowls in western mountains support cross-
country OSV use.
Subpart B of the TMR recognizes that cross-country travel by other
types of motor vehicles is generally unacceptable. Subpart C of the TMR
as originally promulgated and in the proposed rule recognizes that
cross-country travel by OSVs may be acceptable in appropriate
circumstances.
Recreational preferences are another factor accounting for the
difference in management of other types of motor vehicle use and OSV
use. The public's desire for recreational opportunities is different in
the summer and the winter. NVUM data from 2008 to 2012 show that most
public use of NFS lands (79 percent) occurs during non-snow seasons.
Per NVUM data from 2008 to 2012, most snow season use on NFS lands (69
percent) occurs at alpine ski areas and generally does not involve
OSVs, back-country skiing, snowshoeing, or any other snow-based
activity.
Consistent with Sec. 212.50(b) of subpart B of the current TMR,
existing decisions that allow, restrict, or prohibit OSV use on NFS
roads, NFS trails, or areas on NFS lands that were made under prior
authorities (part 295 or subpart C) would remain in effect under the
proposed rule and would not have to be revisited.
Analogous to Sec. 212.52(a) of subpart B of the current TMR, the
proposed rule would provide that public notice with no further public
involvement would be sufficient if an administrative unit or a Ranger
District has made previous administrative decisions, under other
authorities and including public involvement, that allow, restrict, or
prohibit OSV use on NFS roads, on NFS trails, and in areas on NFS lands
over the entire administrative unit or Ranger District, or parts of the
administrative unit or Ranger District, where snowfall is adequate for
OSV use to occur and no change is proposed to these previous decisions.
In short, existing OSV use determinations will remain in effect.
In requiring designation of NFS routes and areas on NFS lands where
OSV use is allowed, restricted, or prohibited, the proposed rule would
be consistent with the EOs and the court's order. Equally important,
the resulting system of OSV routes and areas would sustain natural
resource values, enhance user's experiences and provide opportunities
for use on NFS lands.
Section-by-Section Analysis of the Proposed Rule
Part 212, Subpart A
Section 212.1 Definitions
Current Sec. 212.1 of the TMR defines an area as a discrete,
specifically delineated space that is smaller, and in most cases much
smaller, than a Ranger District. The definition for an area in the
proposed rule would recognize that cross-country OSV use may occur
across a broader landscape. As with evaluation of an area for other
types of motor vehicle use using the designation criteria in Sec.
212.55, evaluation of an area for OSV use using the designation
criteria in Sec. 212.55 may be holistic and need not address each
route within the area, as OSVs will be able to travel cross-country
within it.
Current Sec. 212.1 also defines ``designated road, trail, or
area''. To avoid conflict with this terminology in subpart B, the
proposed rule would add a definition for ``designation of over-snow
vehicle use.''
Part 212, New Subpart C--Over-Snow Vehicle Use
Subpart C--Over-Snow Vehicle Use
The title of part 212, subpart C, would be changed from ``Use by
Over-Snow Vehicles'' to ``Over-Snow Vehicle Use.''
Section 212.80 Purpose and Scope
Current Sec. 212.80 states that the purpose of subpart C is to
provide for regulation of OSV use on NFS roads, NFS trails, and areas
on NFS lands. The proposed rule would amend this section to require
designation of NFS roads, NFS trails, and areas on NFS lands where OSV
use is allowed, restricted, or prohibited. Consistent with Sec.
212.50(b) in subpart B of the current TMR, the proposed rule would
include a provision authorizing the responsible official to incorporate
previous administrative decisions regarding OSV use made under other
authorities in allowing, restricting, or prohibiting OSV use on NFS
roads, on NFS trails, and in areas on NFS lands.
Section 212.81 Over-Snow Vehicle Use
The proposed rule would amend Sec. 212.81 to require designation
of NFS roads, NFS trails, and areas on NFS lands where OSV use is
allowed, restricted, or prohibited on administrative units or Ranger
Districts, or parts of administrative units or Ranger Districts, of the
NFS where snowfall is adequate for that use to occur, subject to the
exemptions currently enumerated in Sec. 212.81(b).
[[Page 34680]]
In contrast to subpart B and its corresponding prohibition at 36
CFR 261.13, which requires designation of a system of routes and areas
that are open to motor vehicle use and prohibits motor vehicle use off
the designated system, proposed subpart C would continue to allow the
responsible official to designate a system of routes and areas where
OSV use is allowed unless prohibited or a system of routes and areas
where OSV use is prohibited unless allowed. An OSV use map could look
like a motor vehicle use map, i.e., a map that identifies only the
routes and areas where OSV use is allowed, or the opposite, i.e., a map
that identifies only the routes and areas where OSV use is prohibited.
In addition, local Forest Service officials would retain the discretion
to manage OSV use to address local conditions and to establish
restrictions, as appropriate, based on the season of use and other
local factors. Decisions to designate OSV use may be made concurrently
or separately from decisions to designate other types of motor vehicle
use.
Consistent with Sec. 212.52(a) of subpart B of the current TMR,
Sec. 212.81(b) of the proposed rule would provide that public notice
with no further public involvement is sufficient if an administrative
unit or Ranger District has made previous administrative decisions,
under other authorities and including public involvement, that allow,
restrict, or prohibit OSV use on NFS roads, on NFS trails, and in areas
on NFS lands over the entire administrative unit or Ranger District, or
parts of the administrative unit or Ranger District, where snowfall is
adequate for OSV use to occur and no change is proposed to these
previous decisions.
Except as modified by proposed Sec. 212.81(b) governing prior
comprehensive OSV decisions and proposed Sec. 212.81(c) with respect
to reference to the map displaying routes and areas where OSV use is
allowed, restricted, or prohibited, Sec. 212.81(c) of the proposed
rule would apply the requirements governing designation of NFS roads,
NFS trails, and areas on NFS lands in Sec. Sec. 212.52 (public
involvement); 212.53 (coordination with other governmental entities);
212.54 (revision of designations); 212.55 (criteria for designation of
roads, trails, and areas); 212.56 (identification of designated roads,
trails, and areas); and 212.57 (monitoring of effects of motor vehicle
use) to designation of NFS roads, NFS trails, and areas on NFS lands
where OSV use is allowed, restricted, or prohibited.
Part 261, Subpart A--General Prohibitions
Subpart A--General Prohibitions
The title of Sec. 261.14 would be changed from ``Use by over-snow
vehicles'' to ``Over-snow vehicle use.''
Regulatory Certifications
Regulatory Impact
This proposed rule has been reviewed under USDA procedures and EO
12866 on regulatory planning and review. The Office of Management and
Budget (OMB) has determined that this proposed rule is significant and
is therefore subject to OMB review under E.O. 12866.
Environmental Impact
This proposed rule would require designation at the field level,
with public input, of NFS roads, NFS trails, and areas on NFS lands
where OSV use is allowed, restricted, or prohibited. This proposed rule
would have no effect on the ground until designation of NFS roads, NFS
trails, and areas on NFS lands for OSV use is completed at the field
level, with opportunity for public involvement. Forest Service
regulations at 36 CFR 220.6(d)(2) exclude from documentation in an
environmental assessment or environmental impact statement ``rules,
regulations, or policies to establish service-wide administrative
procedures, program processes, or instructions.'' The Agency has
concluded that this proposed rule falls within this category of actions
and that no extraordinary circumstances exist which would require
preparation of an environmental assessment or environmental impact
statement.
Regulatory Flexibility Act Analysis
This proposed rule has been considered in light of the Regulatory
Flexibility Act (5 U.S.C. 602 et seq.). This proposed rule would not
have any effect on small entities as defined by the Regulatory
Flexibility Act. The proposed rule would require designation at the
field level, with public input, of NFS roads, NFS trails, and areas on
NFS lands where OSV use is allowed, restricted, or prohibited. The
proposed rule would not directly affect small businesses, small
organizations, and small governmental jurisdictions. The Forest Service
has determined that this proposed rule would not have a significant
economic impact on a substantial number of small entities pursuant to
the Regulatory Flexibility Act because it would not impose
recordkeeping requirements on them; it would not affect their
competitive position in relation to large entities; and it would not
affect their cash flow, liquidity, or ability to remain in the market.
Federalism and Consultation and Coordination With Indian Tribal
Governments
The Agency has considered this proposed rule under the requirements
of EO 13132 on federalism and has concluded that the proposed rule
conforms with the federalism principles set out in this EO; would not
impose any compliance costs on the States; and would not have
substantial direct effects on the States, the relationship between the
Federal Government and the States, or the distribution of power and
responsibilities among the various levels of government. Therefore, the
Agency has determined that no further assessment of federalism
implications is necessary at this time. Moreover, this proposed rule
does not have tribal implications as defined by EO 13175, entitled
``Consultation and Coordination with Indian Tribal Governments,'' and
therefore advance consultation with Tribes is not required.
No Takings Implications
This proposed rule has been analyzed in accordance with the
principles and criteria contained in EO 12630. The Agency has
determined that the proposed rule would not pose the risk of a taking
of private property.
Controlling Paperwork Burdens on the Public
This proposed rule does not contain any new recordkeeping or
reporting requirements or other information collection requirements as
defined in 5 U.S.C. 1320 that are not already required by law or not
already approved for use. Accordingly, the review provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its
implementing regulations at 5 CFR part 1320 do not apply.
Energy Effects
This proposed rule has been reviewed under EO 13211, titled
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use.'' The Agency has determined that this
proposed rule does not constitute a significant energy action as
defined in the EO.
Civil Justice Reform
This proposed rule has been reviewed under EO 12988 on civil
justice reform. If the proposed rule were to be adopted, (1) all State
and local laws and regulations that conflict with the proposed rule or
that would impede its
[[Page 34681]]
full implementation would be preempted; (2) no retroactive effect would
be given to the proposed rule; and (3) it would not require
administrative proceedings before parties may file suit in court
challenging its provisions.
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), which the President signed into law on March 22,
1995, the Agency has assessed the effects of this proposed rule on
State, local, and Tribal governments and the private sector. This
proposed rule would not compel the expenditure of $100 million or more
by any State, local, or Tribal government or anyone in the private
sector. Therefore, a statement under section 202 of the act is not
required.
List of Subjects
36 CFR Part 212
Highways and roads, National forests, Public lands--rights-of-way,
Transportation.
36 CFR Part 261
Law enforcement, National forests.
Therefore, for the reasons set out in the preamble, the Forest
Service proposes to amend 36 CFR parts 212 and 261 as follows:
PART 212--TRAVEL MANAGEMENT
Subpart A--Administration of the Forest Transportation System
0
1. The authority citation for part 212, subpart A continues to read as
follows:
Authority: 16 U.S.C. 551, 23 U.S.C. 205.
0
2. Amend Sec. 212.1 by revising the definition for ``Area'' and adding
a definition for ``Designation of over-snow vehicle use'' in
alphabetical order to read as follows:
Sec. 212.1 Definitions.
* * * * *
Area. A discrete, specifically delineated space that is smaller,
and, except for over-snow vehicle use, in most cases much smaller, than
a Ranger District.
* * * * *
Designation of over-snow vehicle use. Designation of a National
Forest System road, National Forest System trail, or area on National
Forest System lands where over-snow vehicle use is allowed, restricted,
or prohibited pursuant to Sec. 212.81 on an over-snow vehicle use map.
* * * * *
0
3. Revise subpart C to read as follows:
Subpart C--Over-Snow Vehicle Use
Sec.
2.12.80 Purpose, scope, and definitions.
212.81 Over-snow vehicle use.
Authority: 7 U.S.C. 1011(f), 16 U.S.C. 551, E.O. 11644, 11989
(42 FR 26959).
Sec. 212.80 Purpose, scope, and definitions.
(a) Purpose. The purpose of this subpart is to require designation
of National Forest System roads, National Forest System trails, and
areas on National Forest System lands where over-snow vehicle use is
allowed, restricted, or prohibited.
(b) Scope. The responsible official may incorporate previous
administrative decisions regarding over-snow vehicle use made under
other authorities in allowing, restricting, or prohibiting over-snow
vehicle use on National Forest System roads, on National Forest System
trails, and in areas on National Forest System lands under this
subpart.
(c) Definitions. For definitions of terms used in this subpart,
refer to Sec. 212.1.
Sec. 212.81 Over-snow vehicle use.
(a) General. Over-snow vehicle use on National Forest System roads,
on National Forest System trails, and in areas on National Forest
System lands shall be designated as allowed, restricted, or prohibited
by the responsible official on administrative units or Ranger
Districts, or parts of administrative units or Ranger Districts, of the
National Forest System where snowfall is adequate for that use to
occur, provided that the following uses are exempted from these
decisions:
(1) Limited administrative use by the Forest Service;
(2) Use of any fire, military, emergency, or law enforcement
vehicle for emergency purposes;
(3) Authorized use of any combat or combat support vehicle for
national defense purposes;
(4) Law enforcement response to violations of law, including
pursuit; and
(5) Over-snow vehicle use that is specifically authorized under a
written authorization issued under Federal law or regulations.
(b) Previous comprehensive over-snow vehicle decisions. Public
notice with no further public involvement is sufficient if an
administrative unit or a Ranger District has made previous
administrative decisions, under other authorities and including public
involvement, that allow, restrict, or prohibit over-snow vehicle use on
National Forest System roads, on National Forest System trails, and in
areas on National Forest System lands over the entire administrative
unit or Ranger District, or parts of the administrative unit or Ranger
District, where snowfall is adequate for OSV use to occur and no change
is proposed to these previous decisions.
(c) Decision-making process. Except as modified in paragraph (b)
and this paragraph, the requirements governing designation of National
Forest System roads, National Forest System trails, and areas on
National Forest System lands in Sec. Sec. 212.52, 212.53, 212.54,
212.55, 212.56, and 212.57 shall apply to decisions made under this
subpart. In making decisions under this subpart, the responsible
official shall recognize the provisions concerning rights of access in
sections 811(b) and 1110(a) of the Alaska National Interest Lands
Conservation Act (16 U.S.C. 3121(b) and 3170(a), respectively).
National Forest System roads, National Forest System trails, and areas
on National Forest System lands where over-snow vehicle use is allowed,
restricted, or prohibited shall be reflected on an over-snow vehicle
use map.
PART 261--PROHIBITIONS
0
4. The authority citation for part 261 continues to read as follows:
Authority: 7 U.S.C. 1011(f); 16 U.S.C. 472, 551, 620(f),
1133(c), (d)(1), 1246(i).
Subpart A--General Prohibitions
0
5. Revise the heading of Sec. 261.14 to read as follows:
Sec. 261.14 Over-snow vehicle use.
* * * * *
Dated: June 4, 2014.
Thomas L. Tidwell,
Chief, U.S. Forest Service.
[FR Doc. 2014-14273 Filed 6-17-14; 8:45 am]
BILLING CODE 3411-15-P