General Provisions; Electric Bicycles

• Published date: 02 November 2020
• Citation: 85 FR 69175
• Record Number: 2020-22129
• Section: Rules and Regulations
• Court: National Park Service

69175

Federal Register / Vol. 85, No. 212 / Monday, November 2, 2020 / Rules and Regulations

1

For more information about how the NPS

promotes the health and well-being of park visitors

through the Healthy Parks Healthy People

movement, visit https://www.nps.gov/subjects/

healthandsafety/health-benefits-of-parks.htm.

718–354–4353. Those in the safety zone

must comply with all lawful orders or

directions given to them by the COTP or

the COTP’s designated representative.

(d) Enforcement period[s]. This

section is effective from October 22

through December 31, 2020 but will

only be enforced when Roosevelt Island

Tidal Energy Project heavy lift

operations are in progress.

Dated: October 20, 2020.

Jason P. Tama,

Captain, U.S. Coast Guard, Captain of the

Port New York.

[FR Doc. 2020–24020 Filed 10–30–20; 8:45 am]

BILLING CODE 9110–04–P

DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Parts 1 and 4

[NPS–WASO–REGS; 30756; GPO Deposit

Account 4311H2]

RIN 1024–AE61

General Provisions; Electric Bicycles

AGENCY

: National Park Service, Interior.

ACTION

: Final rule.

SUMMARY

: The National Park Service

promulgates regulations governing the

use of electric bicycles, or e-bikes,

within the National Park System. This

rule defines the term ‘‘electric bicycle’’

and establishes rules for how they may

be used. This rule implements Secretary

of the Interior Order 3376, ‘‘Increasing

Recreational Opportunities through the

use of Electric Bikes,’’ on lands

administered by the National Park

Service.

DATES

: This rule is effective on

December 2, 2020.

ADDRESSES

: The comments received on

the proposed rule and an economic

analysis are available on

www.regulations.gov in Docket ID: NPS–

2020–0001.

FOR FURTHER INFORMATION CONTACT

: Jay

Calhoun, Regulations Program Manager,

National Park Service; (202) 513–7112;

waso_regulations@nps.gov.

SUPPLEMENTARY INFORMATION

:

Background

Use and Management of Bicycles

Bicycling is a popular recreational

activity in many units of the National

Park System. Cyclists of all skill levels

and ages enjoy riding on roads and

designated bicycle trails for scenery,

exercise, and adventure. Visitors bicycle

alone, with friends, or with family.

From leisurely rides to challenging

alpine climbs, bicycles offer spectacular

opportunities to experience the

resources of the National Park System.

National Park Service (NPS)

regulations at 36 CFR 4.30 govern the

use of bicycles on NPS-administered

lands. These regulations identify where

bicycles are allowed, manage how

bicycles may be used, and allow

superintendents to restrict bicycle use

when necessary. Bicycles are allowed

on park roads and parking areas open to

public motor vehicles. Bicycles are also

allowed on administrative roads that are

closed to motor vehicle use by the

public but open to motor vehicle use by

the NPS for administrative purposes,

but only after the superintendent

determines that such bicycle use is

consistent with protection of the park

area’s natural, scenic and aesthetic

values, safety considerations and

management objectives, and will not

disturb wildlife or park resources. The

use of bicycles on trails is subject to a

thorough approval and review process.

When bicycle use is proposed for a new

or existing trail, the NPS must complete

a planning process that evaluates

bicycle use on the specific trail,

including impacts to trail surface and

soil conditions, maintenance costs,

safety considerations, potential user

conflicts, and methods to protect

resources and mitigate impacts. For both

new and existing trails, the NPS must

complete NEPA analysis that concludes

that bicycle use on the trail will have no

significant impacts. The superintendent

must prepare and the regional director

must approve the same written

determination that is required for

allowing bicycles on administrative

roads. Each of these documents must be

made available for public review and

comment. For new trails outside of

developed areas, the NPS must publish

a special regulation designating the trail

for bicycle use, which is subject to a

separate public comment period.

Adherence to the procedures in these

regulations helps ensure that bicycles

are allowed only in locations where, in

the judgment of the NPS, their use is

appropriate and will not cause

unacceptable impacts. The NPS has

completed the process required by these

regulations in many NPS units,

including the following that have

special regulations designating trails for

bicycle use: Rocky Mountain National

Park (36 CFR 7.7), Saguaro National

Park (36 CFR 7.11), Cuyahoga Valley

National Park (36 CFR 7.17), Hot

Springs National Park (36 CFR 7.18),

Grand Teton National Park (36 CFR

7.22), Mammoth Cave National Park (36

CFR 7.36), Sleeping Bear Dunes

National Lakeshore (36 CFR 7.80), New

River Gorge National River (36 CFR

7.89), Chattahoochee River National

Recreation Area (36 CFR 7.90), Bryce

Canyon National Park (36 CFR 7.94),

Pea Ridge National Military Park (36

CFR 7.95), and Golden Gate National

Recreation Area (36 CFR 7.97).

Introduction of Electric Bicycles

While bicycling has been a decades-

long tradition in many park areas, the

appearance of electric bicycles, or e-

bikes, is a relatively new phenomenon.

An e-bike is a bicycle with a small

electric motor that provides power to

help move the bicycle. As they have

become more popular both on and off

NPS-managed lands, the NPS has

recognized the need to address this

emerging form of recreation so that it

can exercise clear management

authority over e-bikes and provide

clarity to visitors and stakeholders such

as visitor service providers.

Similar to traditional bicycles, the

NPS believes that, with proper

management, the use of e-bikes may be

an appropriate activity in many park

areas. E-bikes advance the NPS’s

‘‘Healthy Parks Healthy People’’ goals to

promote national parks as a health

resource.

1

Specifically, e-bikes can

increase bicycle access to and within

parks. E-bikes make bicycle travel easier

and more efficient because they allow

bicyclists to travel farther with less

effort. E-bikes can expand the option of

bicycling to more people by providing a

new option for those who want to ride

a bicycle but might not otherwise do so

because of physical fitness, age, or

convenience, especially at high altitude

or in hilly or strenuous terrain. Also,

when used as an alternative to gasoline-

or diesel-powered modes of

transportation, e-bikes can reduce

greenhouse gas emissions and fossil fuel

consumption, improve air quality, and

support active modes of transportation

for park staff and visitors. Similar to

traditional bicycles, e-bikes can

decrease traffic congestion, reduce the

demand for vehicle parking spaces, and

increase the number and visibility of

cyclists on the road.

Policy Direction for Managing E-Bikes

Secretary’s Order 3376

On August 29, 2019, Secretary of the

Interior Bernhardt signed Secretary’s

Order 3376, ‘‘Increasing Recreational

Opportunities through the use of

VerDate Sep<11>2014 17:00 Oct 30, 2020 Jkt 253001 PO 00000 Frm 00057 Fmt 4700 Sfmt 4700 E:\FR\FM\02NOR1.SGM 02NOR1

jbell on DSKJLSW7X2PROD with RULES

69176

Federal Register / Vol. 85, No. 212 / Monday, November 2, 2020 / Rules and Regulations

Electric Bikes.’’ The purpose of this

Order is to increase recreational

opportunities for all Americans,

especially those with physical

limitations, and to encourage the

enjoyment of lands and waters managed

by the Department of the Interior. The

Order emphasizes the potential for e-

bikes to reduce the physical demands of

operating a bicycle and therefore

expand access to recreational

opportunities, particularly for those

with limitations stemming from age,

illness, disability or fitness, and in more

challenging environments, such as high

altitudes or hilly terrain. E-bikes have

an electric motor yet are operable in a

similar manner to traditional bicycles

and in many cases appear

indistinguishable from them. For these

reasons, the Order acknowledges there

is regulatory uncertainty regarding

whether e-bikes should be managed

similar to other types of bicycles, or,

alternatively, considered motor

vehicles. The Order states that this

regulatory uncertainty has led to

inconsistent management of e-bikes

across the Department and, in some

cases, served to decrease access to

Federally owned lands by users of e-

bikes. In order to address these

concerns, the Order directs the NPS and

other Department of the Interior

agencies to define e-bikes separately

from motor vehicles and to allow them

where other types of bicycles are

allowed.

NPS Policy Memorandum 19–01

On August 30, 2019, the Deputy

Director of the NPS, Exercising the

Authority of the Director, issued Policy

Memorandum 19–01, Electric Bicycles.

This policy satisfies a requirement in

the Secretary’s Order that all

Department of the Interior agencies

adopt policy and provide appropriate

public guidance regarding the use of e-

bikes on public lands that conforms to

the policy direction set forth in the

Order.

The Memorandum defines an e-bike

as ‘‘a two- or three-wheeled cycle with

fully operable pedals and an electric

motor of less than 750 watts that

provides propulsion assistance.’’ This

definition is consistent with the

definition of ‘‘low speed electric

bicycle’’ in the Consumer Product

Safety Act (15 U.S.C. 2085) and the

definition of ‘‘electric bicycle’’ in the

laws governing the Federal Aid

Highway Program (23 U.S.C. 217(j)(2),

except that the definition in the

Memorandum does not include

requirements from those statutes that an

e-bike may not exceed 100 pounds or

reach 20 mph when powered solely by

the motor. Instead, the Memorandum,

consistent with the Secretary’s Order

and many states that have promulgated

regulations for e-bikes, refers to a three-

class system that limits the maximum

assisted speed of an e-bike:

•Class 1 electric bicycle means an

electric bicycle equipped with a motor

that provides assistance only when the

rider is pedaling, and that ceases to

provide assistance when the bicycle

reaches the speed of 20 miles per hour.

•Class 2 electric bicycle means an

electric bicycle equipped with a motor

that may be used exclusively to propel

the bicycle, and that is not capable of

providing assistance when the bicycle

reaches the speed of 20 miles per hour.

•Class 3 electric bicycle means an

electric bicycle equipped with a motor

that provides assistance only when the

rider is pedaling, and that ceases to

provide assistance when the bicycle

reaches the speed of 28 miles per hour.

Consistent with the Order, the

Memorandum announces a policy that

e-bikes are allowed where traditional

bicycles are allowed and that e-bikes are

not allowed where traditional bicycles

are prohibited. The Memorandum refers

to regulations for bicycles in paragraphs

(f), (g), and (h) of 36 CFR 4.30 that relate

to closures and other use restrictions,

other requirements, and prohibited acts.

The Memorandum requires that these

provisions also govern the use of e-bikes

so that the use of e-bikes and bicycles

are generally regulated in the same

manner.

Paragraph (f) of section 4.30 allows

superintendents to limit or restrict or

impose conditions on bicycle use or

close any park road, trail, or portion

thereof to bicycle use after taking into

consideration public health and safety,

natural and cultural resource protection,

and other management activities and

objectives. The Memorandum

authorizes superintendents to limit or

restrict or impose conditions on e-bike

use for the same reasons, provided the

public is notified through one or more

methods listed in 36 CFR 1.7. When

using this authority, the Memorandum

advises superintendents to understand

state and local rules addressing e-bikes

so that the use of e-bikes within a park

area is not restricted more than in

adjacent jurisdictions, to the extent

possible.

Paragraph (g) of section 4.30 states

that bicycle use is subject to certain NPS

regulations that apply to motor vehicles.

Specifically, bicycle use is subject to

regulations in sections 4.12 (Traffic

control devices), 4.13 (Obstructing

traffic), 4.20 (Right of way), 4.21 (Speed

limits), 4.22 (Unsafe operation), 4.23

(Operating under the influence of

alcohol or drugs). The Memorandum

applies these provisions in the same

manner to e-bikes. Paragraph (g) also

states that, unless specifically addressed

by NPS regulations, the use of a bicycle

is governed by state law, which is

adopted and made part of section 4.30.

The Memorandum requires

superintendents to adopt state law in

the same manner for e-bikes. State laws

concerning the definition, safety

operation, and licensing of e-bikes vary

from state to state. A growing number of

states use the three-class system to

differentiate between the models and

top assisted speeds of e-bikes.

Paragraph (h) of section 4.30 prohibits

possessing a bicycle in wilderness and

contains safety regulations for the use of

bicycles. Specifically, paragraphs (h)(3)–

(5) establish rules relating to operation

during periods of low visibility, abreast

of another bicycle, and with an open

container of alcohol. The Memorandum

applies these provisions in the same

manner to e-bikes.

The Memorandum directs the

superintendents of any NPS unit with e-

bikes present to implement the actions

required by the policy using their

regulatory authority in 36 CFR 1.5(a)(2).

This authority allows superintendents

to designate areas for a specific use or

activity, or impose conditions or

restrictions on a use or activity. As of

the date of this rule, more than 380

units of the National Park System have

implemented the e-bike policy under

the authority in 36 CFR 1.5(a)(2) and

have published notice of this action in

the park-specific compilation of

management actions required by 36 CFR

1.7(b), referred to as the

superintendent’s compendium. This

means that for each of these NPS units,

e-bikes are already allowed subject to

the rules governing them that are set out

in the compendium and no further

action would be needed to reauthorize

continued use of e-bikes under this

regulation.

Final Rule

As explained above, Secretary’s Order

3376 directs the NPS to revise 36 CFR

1.4 and any associated regulations to be

consistent with the Order. The Bureau

of Land Management (BLM), U.S. Fish

and Wildlife Service (FWS), and Bureau

of Reclamation (Reclamation) are also

revising their regulations for

consistency with S.O. 3376.

Specifically, the Order directs the NPS,

BLM, FWS, and Reclamation to add a

definition for e-bikes consistent with 15

U.S.C. 2085, and expressly exempt all e-

bikes as defined in the Order from the

definition of motor vehicles.

VerDate Sep<11>2014 17:00 Oct 30, 2020 Jkt 253001 PO 00000 Frm 00058 Fmt 4700 Sfmt 4700 E:\FR\FM\02NOR1.SGM 02NOR1

jbell on DSKJLSW7X2PROD with RULES

69177

Federal Register / Vol. 85, No. 212 / Monday, November 2, 2020 / Rules and Regulations

This rule accomplishes these

directives as related to the NPS, and

once effective, will supersede and

replace Policy Memorandum 19–01. The

rule amends 36 CFR 1.4 to add a new

definition of ‘‘electric bicycle’’ that is

the same as the definition used in the

Policy Memorandum, with one minor

difference. The definition in the

Memorandum refers to the definition of

‘‘electric bicycle’’ in the Consumer

Product Safety Act (15 U.S.C. 2085),

which limits the power of the motor to

less than 750 watts. Many

manufacturers sell e-bikes with motors

having exactly 750 watts. In order to

avoid the unintended consequence of

excluding many devices from the

regulatory definition of an e-bike due to

a one-watt difference in power, the

definition of e-bikes in this rule

includes devices of not more than 750

watts.

The rule explicitly excludes e-bikes

from the definition of ‘‘motor vehicle’’

found at 36 CFR 1.4. This clarifies that,

except as stated in section 4.30(g), e-

bikes are not subject to the regulations

in 36 CFR part 4 that apply to the use

of motor vehicles. The NPS does not

need to change the existing definition of

‘‘bicycle’’ to distinguish them from e-

bikes because the definition of bicycle

includes only those devices that are

‘‘solely human powered.’’ E-bikes are

excluded from this definition because

they have an electric motor that helps

power the device.

Consistent with the Secretary’s Order

and the Policy Memorandum, this rule

states that e-bikes may be allowed on

roads, parking areas, administrative

roads and trails that are open to

traditional bicycles. The rule also states

that superintendents will designate the

areas open to e-bikes and notify the

public pursuant to 36 CFR 1.7. E-bikes

are not allowed in other locations. E-

bikes are allowed on administrative

roads and trails where bicycles are

allowed without the need to undertake

the procedural steps in paragraphs (b)–

(e) of section 4.30 that were required

when traditional bicycles were first

allowed in those locations. If a

superintendent proposes to designate an

administrative road or trail for e-bike

use where traditional bicycles are not

yet allowed, then the superintendent

would need to follow the procedural

steps required by paragraphs (b)–(e) in

order to designate those locations for

bicycle and e-bike use.

Although bicycles and e-bikes will be

defined differently, the rule applies

certain regulations that govern the use

of bicycles to the use of e-bikes in the

same manner as the Policy

Memorandum. These regulations are

explained in more detail above and

include rules of operation and adoption

of state law to the extent not addressed

by NPS regulations. The rule also gives

superintendents the authority to limit or

restrict e-bike use after taking into

consideration public health and safety,

natural and cultural resource protection,

and other management activities and

objectives. If warranted by these criteria,

superintendents may use this authority

to manage e-bikes, or particular classes

of e-bikes, differently than traditional

bicycles in particular locations. For

example, a superintendent could

determine that a trail open to traditional

bicycles should not be open to e-bikes,

or should be open to class 1 e-bikes

only. Every restriction or closure that

limits the use of e-bikes must be

supported by a written record

explaining the basis for such action. The

record will explain why e-bikes are

managed differently than traditional

bicycles if that is the effect of the

restriction or closure. All such

restrictions and closures should be

listed in the superintendent’s

compendium (or written compilation) of

discretionary actions referred to in 36

CFR 1.7(b).

Except for administrative actions

taken by the NPS in limited

circumstances, the Wilderness Act

prohibits mechanical transport in

wilderness areas designated by

Congress. 16 U.S.C. 1133(c).

Accordingly, paragraph (h)(2) of section

4.30 prohibits possessing a bicycle, a

form of mechanical transport, in a

wilderness area established by Federal

statute. For the same reason, the rule

prohibits the possession of e-bikes in

designated wilderness areas, even

though this prohibition already exists

under the Wilderness Act.

Except on park roads and other

locations where the use of motor

vehicles by the public is allowed, the

rule prohibits an operator from

exclusively using the electric motor to

move an e-bike without pedaling for an

extended period of time. This restriction

is consistent with the Policy

Memorandum and intended to allow the

public to use e-bikes for transportation

and recreation in a similar manner to

traditional bicycles. It only affects the

use of Class 2 e-bikes, which have a

motor that may be used exclusively to

propel the e-bike.

Summary of Public Comments

The NPS published a proposed rule in

the Federal Register on April 8, 2020

(85 FR 19711). The NPS accepted

comments on the rule through the mail,

by hand delivery, and through the

Federal eRulemaking Portal at

www.regulations.gov. The comment

period closed on June 8, 2020. The NPS

received more than 17,000 comments on

the proposed rule from individuals and

71 organizations. A summary of the

pertinent issues raised in the comments

and NPS responses are provided below.

After considering public comments and

after additional review, the NPS made

several minor changes in the final rule

which are explained in the responses to

comments below.

1. Comment: One commenter raised

concerns about the use of shared e-bikes

within park areas, in particular the

impacts from riders leaving e-bikes in

undesirable locations when the rental

expires.

NPS Response: Many e-bike rental

companies encourage customers to end

their trips responsibly; establish

acceptable parking locations within

service areas; require that e-bikes be

parked in accordance with applicable

laws and regulations; define prohibited

acts—including locking the e-bike to

trees or other structures, as well as

blocking pathways, sidewalks, or ramps;

and assess penalties for parking e-bikes

outside of service areas and in violation

of the rental agreement. The NPS

expects that these rental agreements and

penalties will largely deter riders from

leaving e-bikes within park units in

undesirable locations when the rental

expires. The NPS will also work with

local jurisdictions to ensure e-bikes are

managed appropriately.

In circumstances where a rental

company is engaging in business within

an NPS unit, written authorization from

the NPS is required under 36 CFR 5.3.

The NPS will work with companies who

seek written authorization to conduct

these businesses to develop terms and

conditions in the permit, contract, or

other written authorization that mitigate

against this potential harm.

2. Comment: One commenter asked

the NPS to require superintendents that

decide to allow e-bikes in park areas to

develop a plan that educates riders

about where e-bikes are allowed and

proper trail etiquette to minimize

impacts to other users of the trail.

NPS Response: This rule gives

superintendents the discretion to

establish any safety measures deemed

necessary to ensure that e-bikes are used

in a manner that maintains a safe and

enjoyable experience for all visitors.

Superintendents are encouraged to go

beyond what is stated in the rule and

conduct community outreach and

education campaigns to ensure that the

proper riding behaviors are adhered to

for the benefit of all NPS visitors. Before

visiting an NPS unit, visitors are

encouraged to check the park website to

VerDate Sep<11>2014 17:00 Oct 30, 2020 Jkt 253001 PO 00000 Frm 00059 Fmt 4700 Sfmt 4700 E:\FR\FM\02NOR1.SGM 02NOR1

jbell on DSKJLSW7X2PROD with RULES

69178

Federal Register / Vol. 85, No. 212 / Monday, November 2, 2020 / Rules and Regulations

find out what areas of the park are

accessible, what activities are available,

and which facilities are open. Upon

arrival, visitors can obtain additional

information at the Visitor Center or a

Ranger Station. Signage is often used at

common access points, such as

trailheads, road crossings, and junctions

with other types of trails as a means of

communicating with park visitors. NPS

websites, park brochures, and signage

present a variety of information to

visitors, including educational materials

that provide guidance on trail etiquette

to mitigate the potential for user conflict

and to help establish user norms.

Typical information resources identify

the kind of use allowed, provide route

names, trail direction and appropriate

practices for yielding to others, and will

be similarly utilized to educate visitors

about e-bike rules and etiquette.

3. Comment: One commenter raised

an issue specific to the use of e-bikes in

National Park System units in Alaska.

This commenter requested that the NPS

allow the use of e-bikes where

traditional bicycles are currently

allowed in Alaska, which are generally

allowed throughout NPS units in

Alaska—including off-trail and in

wilderness—under the Alaska National

Interest Lands Conservation Act

(ANILCA). This commenter stated that

treating e-bikes differently than

traditional bicycles in Alaska would

create public confusion from an

inconsistent management framework

and reduce opportunities for public

access and recreation.

NPS Response: ANILCA authorizes

the use of nonmotorized surface

transportation methods for traditional

activities and for travel to and from

villages and homesites within National

Park System units in Alaska. 16 U.S.C.

3170(a). This allowance for special

access applies in Alaska

notwithstanding any other law and does

not limit nonmotorized transportation to

designated roads or trails. The

Department of the Interior has

interpreted this statutory allowance to

include the use of traditional bicycles;

however, e-bikes do not fall under this

allowance because they have an electric

motor and therefore are not

‘‘nonmotorized.’’

Notwithstanding the statutory

allowance for traditional bicycles in

Alaska, the NPS is not in favor of

creating different rules for e-bikes in

Alaska than it does for e-bikes

everywhere else within the National

Park System. The stated purpose of

Secretary of the Interior Order 3376 is

to simplify and unify the regulations of

e-bikes on lands managed by the

Department of the Interior. The NPS

shares this goal of a consistent

management framework within the

National Park System. Outside of

Alaska, NPS regulations allow the use of

bicycles on roads and trails only. 36

CFR 4.30. Dispersed, overland use is not

allowed. In order to manage e-bikes in

a similar manner to traditional bicycles,

the rule allows e-bikes only on roads

and trails otherwise open to bicycle use

and designated by the superintendent.

Although the special allowance in

Alaska for traditional bicycles is not

limited to roads and trails, the NPS

declines to extend this special

allowance for e-bikes in Alaska. The

NPS has no data on the level of bicycle

use on more than 20 million acres in

Alaska that are off-trail and not in

designated wilderness. The lack of data

would make it very difficult to

anticipate the impacts of allowing e-

bikes in those same, vast locations—

impacts that could include concerns

about public safety associated with

remote, cross-country travel, protection

of resources in sensitive biomes such as

tundra, and management objectives

such as preserving wilderness character

in eligible wilderness.

4. Comment: Several commenters

questioned how the NPS’s definition of

‘‘electric bicycle’’ in the rule would

affect how e-bikes are treated under

other laws that do not adopt the same

definition or management framework for

e-bikes established by the NPS in this

rule. For example, one commenter

referred to the definition of ‘‘electric

bicycle’’ in the laws governing the

Federal Aid Highway Program. 23

U.S.C. 217(j)(2). The commenter states

that this definition is different than the

NPS definition in the rule and has

implications for the types of uses that

are allowed on pedestrian and bicycle

trails funded by the Federal Highway

Administration under the Recreational

Trails Program. One commenter

suggested that the use of e-bikes could

adversely affect the ability of the NPS or

user groups to obtain funds for trails

that come with restrictions on

motorized use.

NPS Response: The NPS’s definition

of ‘‘electric bicycles’’ applies to

management of electric bicycles within

the National Park System under the

framework established by this rule. It

does not modify or affect other federal

laws and regulations in circumstances

where they apply to the use of electric

bicycles within the National Park

System. Using the general scenario

presented by the commenter, if a trail

within the National Park System is

constructed or maintained with federal

highway funds in a manner that restricts

the use of e-bikes as that term is defined

under a separate federal law, then the

superintendent would not have the

authority to designate e-bikes for use on

that trail in a manner that conflicts with

the other applicable federal law. There

could be circumstances where

superintendents must choose between

using federal funds for trail construction

and limiting that trail to traditional

bicycles or finding an alternative

funding source and allowing e-bikes on

the trail. The NPS believes that

superintendents are in the best position

to make these judgements and this rule

provides them with the discretion to do

so.

5. Comment: One commenter

questioned the NPS’s authority under

the NPS Organic Act (54 U.S.C. 100101)

to create a management framework for e-

bikes that allows superintendents to

make decisions about e-bike use that—

in certain cases—could allow e-bikes in

more places and with more associated

impacts than are allowed by the state

where the park is located. This

commenter stated that allowing the

superintendent to create rules that are

different than what is allowed by the

state would create public confusion and

an expectation that all three classes of

e-bikes are allowed within the National

Park System.

NPS Response: The framework in this

rule gives superintendents the

discretion to determine the appropriate

level of e-bike use in park areas, with

the important limitation that e-bikes

may only be allowed on roads and trails

where traditional bicycles are allowed.

All management decisions made by a

superintendent, including a decision

under this rule to allow the use of e-

bikes, are subject to NPS Management

Policies that prohibit the superintendent

from allowing a visitor use activity that

would cause unacceptable impacts or

impairment of park resources under the

NPS Organic Act. This is true no matter

what decision states make about the use

of e-bikes in areas under their

jurisdiction. The NPS does not agree

that a decision by a superintendent to

allow e-bikes in more places and with

more associated impacts than a state

would allow is per se a violation of the

impairment mandate in the NPS

Organic Act. One of the purposes of this

rule is to create a consistent

management framework for the use of e-

bikes across the National Park System,

in part because all NPS units are subject

to the same management standard

articulated in the NPS Organic Act.

Adequate public notice and community

outreach will mitigate the potential for

confusion in situations where the rules

of e-bikes in park areas are different

than the rules in adjacent or nearby state

VerDate Sep<11>2014 17:00 Oct 30, 2020 Jkt 253001 PO 00000 Frm 00060 Fmt 4700 Sfmt 4700 E:\FR\FM\02NOR1.SGM 02NOR1

jbell on DSKJLSW7X2PROD with RULES

69179

Federal Register / Vol. 85, No. 212 / Monday, November 2, 2020 / Rules and Regulations

lands. In order to reduce the potential

that this will create a perception that all

three classes of e-bikes are allowed in

all park areas, the NPS has revised the

regulatory text in 36 CFR 4.30(i)(1) to

clarify that, in some cases, only certain

classes may be allowed.

6. Comment: Some commenters stated

that allowing e-bikes on trails is subject

to NPS regulations governing the use of

off-road motor vehicles (ORVs) in 36

CFR 4.10 which states that ORV routes

and areas must be designated by special

regulation and only in national

recreation areas, national seashores,

national lakeshores and national

preserves. One commenter objected to

the NPS excluding e-bikes from the

definition of ‘‘motor vehicle’’ because e-

bikes are inherently motorized. Another

commenter stated that e-bikes should be

regulated as motor vehicles by the NPS

because of a recent ruling by the U.S.

Customs and Border Protection (CBP)

that e-bikes are to be grouped with low-

powered (less than 1kW) electric

motorcycles for purposes of excluding

them from a 25% tariff imposed by the

Trump Administration on products

imported from China.

NPS Response: This rule revises 36

CFR 1.4 to make clear that e-bikes are

not regulated as ‘‘motor vehicles’’ under

NPS regulations, including the

regulations in 36 CFR 4.10 that govern

the use of ORVs. As a result, the use of

e-bikes is not subject to the restrictions

that apply to the designation of ORV

routes and areas in 36 CFR 4.10. The

fact that e-bikes have a small electric

motors does not compel the NPS to

define or regulate them in the same

manner as motor vehicles that in the

vast majority of cases are larger, heavier,

and powered by internal combustion

engines that output much more than 1

hp. The NPS is free to exclude e-bikes

from the regulatory definition of ‘‘motor

vehicles’’ and manage them separately

as it has previously done with

snowmobiles. The fact that a majority of

states have adopted regulatory schemes

for e-bikes that are separate from

regulations applying to motor vehicles

supports the NPS making the same

distinction in its regulations. Rulings

from the CPB about the imposition of

tariffs on foreign products imported into

the United States are not relevant to

how the NPS manages visitor use

activities in park areas, including the

use of e-bikes.

7. Comment: Several commenters

questioned whether the NPS has the

authority to create an exception to

Executive Order 11644 (Use of off-road

vehicles on the public lands) by

promulgating this rule, which

authorizes superintendents to allow

motorized devices on public lands

without following the requirements set

forth in the E.O.

NPS Response: Executive Order 11644

was issued by President Nixon in 1972

and amended by President Carter in

1977 through Executive Order 11989.

The Executive Order establishes policies

and procedures that federal agencies

must follow to manage the use of ‘‘off-

road vehicles’’ on public lands. The

stated purpose of the Executive Order is

to protect the resources of the public

lands, promote safety of all users of the

lands, and minimize conflicts among

those users. The Executive Order

applies to the use of ‘‘off road vehicles,’’

which are defined as motorized vehicles

designed for or capable of cross-country

travel on or immediately over land,

water, sand, snow, ice, marsh,

swampland, or other natural terrain,

with certain exceptions that are not

relevant to this discussion. Although e-

bikes are ‘‘motorized’’ in the literal

sense because they have a small electric

motor, the NPS does not believe that

they were intended to be regulated as

‘‘off-road vehicles’’ under the Executive

Order, to the extent they were even

considered for inclusion.

The first sentence of the Executive

Order identifies the types of vehicles

that were of concern in 1972—

‘‘motorcycles, minibikes, trial bikes,

snowmobiles, dune-buggies, all-terrain

vehicles, and others.’’ Although this list

is not exhaustive, the devices that were

named in almost all cases used internal

combustion engines for power, rather

than an electric motor, and none relied

on the rider pedaling the vehicle to

provide most of the power to the

vehicle. For these reasons, e-bikes are

inherently different than the types of

‘‘off-road vehicles’’ listed under the

Executive Order.

Further, e-bikes were not identified

anywhere in the Executive Order and

for good reason. Although e-bike

prototypes were developed as far back

as the 19th century, the technological

advances needed to popularize them,

such as torque motors and power

controls, were not developed until the

mid-1990s. In 1979, after the Executive

Order was amended by President Carter,

the Council for Environmental Quality

(CEQ) issued a report entitled ‘‘Off-Road

Vehicles on Public Land.’’ The report

discusses the requirements of the

Executive Order in great detail and

evaluates efforts undertaken by federal

land management agencies to comply

with its requirements. E-bikes are not

mentioned anywhere in the report. The

preface of the report acknowledges that

the inclusion of snowmobiles in the

definition of ‘‘off-road vehicle’’ was

controversial at the time and identifies

other types of ‘‘motorized vehicles’’ that

were typically understood to be

included within the definition—

‘‘motorcycles of various sorts

(minibikes, dirt bikes, enduros,

motocross bikes, etc.), four-wheel drive

vehicles such as Jeeps, Land Rovers, or

pickups, snowmobiles, dune buggies,

and all-terrain vehicles.’’ Just as in the

Executive Order, e-bikes are not on this

list. Neither the Executive Order nor the

CEQ report suggests that President

Nixon or President Carter intended for

the Executive Order to apply to small,

quiet, light vehicles powered by a small

electric motor, such as e-bikes as

defined in this regulation. This supports

an interpretation of the Executive Order

that the term ‘‘off-road vehicles’’ should

not be understood to include e-bikes as

defined in this rule.

In addition to this evidence that the

Executive Order was not intended to

apply to e-bikes, the NPS believes that

it is appropriate to exclude e-bikes from

the requirements of the Executive Order

because e-bikes do not cause the kinds

of impacts that the Executive Order was

intended to mitigate. For example, e-

bikes have an electric motor which at

most emits a low steady whine when

engaged, rather than an internal

combustion engine capable of

generating much louder noise.

Therefore, e-bikes are not likely to cause

the sort of sound-related impacts that

would result in harm to wildlife

behavioral patterns or create conflicts

with visitors seeking a natural and quiet

experience, factors that the Executive

Order requires the agencies to consider

when permitting off-road vehicles.

Although the NPS acknowledges that

the effects of noise on wildlife differ

across taxonomic groups and that

reactions to sound are different for every

visitor, the use of e-bikes as defined in

this rule is not expected to degrade the

quietude in an unacceptable manner

above and beyond the use of traditional

bicycles. During the NPS’s review of the

current literature, the NPS did not find

any studies measuring the decibels

generated from e-bike motors or

components. Nevertheless, because the

noise produced by an e-bike comes from

either the sound of the tire on the road

or trail, or the electric motor when it is

engaged, the sound levels that comes

from traditional and electric bikes are

reasonably similar. Also, unlike all the

vehicles listed in the Executive Order, e-

bikes do not emit exhaust that could

impact air quality and the health of

nearby users.

Also, a review of available models

shows that e-bikes are generally much

lighter than even the lightest off-road

VerDate Sep<11>2014 17:00 Oct 30, 2020 Jkt 253001 PO 00000 Frm 00061 Fmt 4700 Sfmt 4700 E:\FR\FM\02NOR1.SGM 02NOR1

jbell on DSKJLSW7X2PROD with RULES

69180

Federal Register / Vol. 85, No. 212 / Monday, November 2, 2020 / Rules and Regulations

vehicle listed in the Executive Order,

which limits their potential damage to

natural resources in the form of soil

compaction and erosion. A typical e-

bike model weighs about 45–50 pounds,

which is only slightly heavier than a

typical traditional bicycle at 30–35

pounds. In comparison, minibikes,

which are the lightest off-road vehicle

listed in the Executive Order, weigh an

average of 115–130 pounds. Typical

trial bikes weigh about 145 pounds and

motorcycles typically weigh 300–400

pounds. A recent study conducted by

the International Mountain Biking

Association measured relative levels of

soil displacement and erosion resulting

from traditional, non-motorized

mountain bikes, e-bikes, and gasoline-

powered dirt bikes and found that soil

displacement and tread disturbance

from e-bikes and traditional, non-

motorized mountain bikes were not

significantly different, and both were

much less than those associated with

gasoline-powered dirt bikes. Although

this study focused on the impacts from

Class 1 e-bikes, the impacts from Class

2 and 3 e-bikes would not be

substantially different, especially given

the prohibition on using the throttle to

power a Class 2 e-bike without pedaling

for an extended period of time and

applicable speed limits on trails.

Additionally, this rule authorizes e-bike

use only on roads and trails designated

by the superintendent and does not

authorize cross-country use of e-bikes

which thus mitigates the impacts that

the Executive Order was intended to

address regarding direct over-land

travel.

Finally, distinguishing e-bikes from

other motor vehicles is consistent with

the fact that e-bikes are not considered

to be motor vehicles under 49 U.S.C.

30102, are not subject to regulation by

National Highway Traffic Safety

Administration, and are regulated

similar to non-motorized bicycles by the

U.S. Consumer Product Safety

Commission (CPSC). For these reasons,

the NPS does not believe that Executive

Order 11644 was intended to or should

be applied to e-bikes.

8. Comment: One commenter stated

that the rule fails to consider whether

the addition of e-bikes to park areas will

affect visitor carrying capacities that are

required to be established for each NPS

unit under the National Parks and

Recreation Act of 1978 and must be

considered by the superintendent when

evaluating new recreational uses of park

areas under NPS Management Policies,

specifically sections 8.2 (Visitor Use),

8.2.1 (Visitor Carrying Capacity); and

8.2.2.1 (Management of Recreational

Use).

NPS Response: The Act cited by the

commenter is codified at 54 U.S.C.

100502(3) and requires that general

management plans for each unit of the

National Park System include

‘‘identification of and implementation

commitments for visitor carrying

capacities for all areas of the System

unit.’’ NPS Management Policies define

‘‘carrying capacity’’ as the ‘‘use that can

be accommodated while sustaining the

desired resource and visitor experience

conditions in the park.’’ Setting and

staying within carrying capacities can

be a useful tool for superintendents to

help ensure that park uses do not cause

unacceptable impacts to park resources

and values.

This rule does not require

superintendents to allow e-bikes in the

park areas they manage, it simply

authorizes them to do so on roads and

trails where traditional bicycles are also

allowed. The NPS operates under the

assumption that any decision made by

a park superintendent will comply with

applicable laws and policies and be

consistent with applicable general

management plans. The NPS expects

that park superintendents will evaluate

whether the addition of e-bikes would

affect visitor carrying capacities

identified in general management plans

or other planning documents, together

with all other factors that would inform

whether the use of e-bikes is appropriate

or not.

9. Comment: Many commenters raised

concerns about the potential impacts e-

bikes would have on park resources and

the visitor experience. Several

commenters stated that e-bikes would

cause greater cumulative impacts to the

natural environment than are caused by

traditional bicycles due to their ability

to travel longer distances with more gear

into more remote and undisturbed areas.

Commenters cited the potential for

disturbing wildlife, grooving and

erosion of ground surfaces, degradation

of sensitive plant habitats, and negative

impacts on geological features and

cultural and archeological sites. Other

commenters stated that e-bikes would

create safety risks for certain riders who

could travel into more remote areas and

through more challenging terrain than

would be possible with traditional

bicycles. Safety concerns were also

raised about the speed of e-bikes, in

particular on single-track, winding trails

with limited sight lines, and the

increased potential for accidents and

conflicts with other trail users, such as

hikers and horseback riders. According

to some commenters, adding e-bikes to

shared trails would cause overcrowding

and marginalize other forms of

recreation that are compatible with a

quiet and natural environment.

NPS Response: The NPS agrees that

park resources must be protected and

user conflicts should be avoided where

e-bikes are allowed. However, this rule

does not mandate the use of e-bikes in

any park area. This rule establishes a

general framework that can be used by

superintendents to allow e-bikes on

designated roads and trails where

traditional bicycles are already allowed.

Existing NPS regulations require a

robust evaluation of the potential

impacts that traditional bicycles would

have on designated trails before they

can be allowed. See 36 CFR 4.30(d) and

(e). The addition of e-bikes on roads or

any of these trails is subject to the

discretion of the superintendent who is

required by policy to consider the

impacts that a new park use such as e-

bikes would have on park resources and

visitor experience. NPS Management

Policies clearly state that in using

discretionary authority, superintendents

will allow only uses that are appropriate

to the purpose for which the park was

established and can be sustained

without causing unacceptable impacts.

Superintendents may not allow e-bikes

if doing so would impair a park’s

resources, values, or purposes.

Existing studies about the relative

impact between traditional bicycles and

e-bikes demonstrate that impacts from e-

bikes are similar to impacts from

traditional bicycles notwithstanding

some disparities associated with visitor

safety that the NPS believes can be

mitigated if necessary by the

superintendent at the park level. For

example, one study, Comparison of

environmental impacts from MTB-Class

1 eMTB, and motorcycles: soil

displacement and erosion on bike-

optimized trails in a Western Oregon

Forest, IMBA Trail Solutions (2016),

found that impacts from Class 1 eMTBs

were similar to traditional mountain

bicycles, while motorcycles led to much

greater soil displacement and erosion.

The study found that an emerging body

of research suggests that when it comes

to impacts to soils, water quality, and

vegetation, the primary issue is not the

type of user, but the way the trail is

designed and constructed. Therefore,

the NPS does not expect the addition of

e-bikes to cause significant additional

erosion on trails or degradation of plant

habitats.

Additionally, a review of available

literature by Boulder County, Colorado

concluded that all forms of recreation

may have some negative impacts to

wildlife habitat and behavior, but there

is little research to suggest that e-bikes

have greater negative impacts on trails

VerDate Sep<11>2014 17:00 Oct 30, 2020 Jkt 253001 PO 00000 Frm 00062 Fmt 4700 Sfmt 4700 E:\FR\FM\02NOR1.SGM 02NOR1

jbell on DSKJLSW7X2PROD with RULES

69181

Federal Register / Vol. 85, No. 212 / Monday, November 2, 2020 / Rules and Regulations

or wildlife than regular bikes and

mountain bikes. See Boulder County E-

bike Pilot Study Results and Policy

Recommendation, 2019. Another study

of the impacts of motorized and

nonmotorized recreation on elk in

Eastern Oregon, USFS. Seeking ground

less traveled: Elk responses to recreation

(2009), found that all recreation uses

impacted ungulate behavior, but that

ATV use was most disruptive to elk

compared to mountain biking, hiking,

and horseback riding. NPS does not

expect e-bike use to have a significantly

larger impact to wildlife behavior

compared to traditional bicycles.

Regarding visitor safety and user

conflicts, as stated above, e-bikes will

only be authorized on roads and trails

where traditional bicycles are already

allowed. These trails have undergone

rigorous analysis to ensure that hikers

and bicyclists can safely share the trail

without causing visitor conflicts. The

addition of e-bikes would not

significantly alter this analysis. First, all

cyclists must follow applicable speed

limits for trails which negates many of

the concerns about e-bikes’ faster speed

capabilities. In addition, the terrain and

slope of some trails provides a natural

limitation to the speed at which a

cyclist can reasonably move. Further,

although some studies showed average

riding speeds on electric mountain bikes

are slightly faster than conventional

mountain bikes, other studies found

that, perhaps counterintuitively, average

e-bike speeds were less than average

conventional bike speeds which may

reflect the slightly older demographics

of e-bike riders, and that differences in

speed between e-bikes and bicycles are

most pronounced on the uphill segment

of a trip. (Hall et. al. 2019; Langford,

Cherry et al. 2017).

The rule also makes clear that

superintendents have the authority to

modify, restrict, or discontinue e-bike

use if it creates concerns about public

health and safety or the protection of

natural or cultural resources. For these

reasons, the NPS does not believe that

e-bikes will cause unacceptable impacts

in parks.

10. Comment: One commenter raised

a concern about the safety of the

electrical systems used in e-bikes, in

particular the risk that e-bike batteries

could malfunction, combust, and spark

wildfires. This commenter

recommended that the NPS require that

e-bikes be certified to the UL 2849

electric system safety standard in order

to help ensure the safety of e-bikes and

reduce the likelihood of a catastrophic

wildfire resulting from the use of an e-

bike that does not have a properly

managed electrical system.

NPS Response: The CPSC is

responsible for evaluating and making

recommendations about electrical safety

standards for consumer products

manufactured and sold in the United

States. E-bike manufacturers are

required to comply with mandatory

standards set by the CPCS. The NPS

defers to the expertise held by the CPSC

for setting safety standards associated

with the electrical systems used in e-

bikes and for this reason declines to

require the UL 2849 standard for e-bikes

used in park areas. If the use of e-bikes

in park areas results in unforeseen

safety issues or threats to natural

resources, the rule allows

superintendents to restrict or stop the

use of e-bikes until such risks can be

properly addressed. This is consistent

with NPS Management Policies Section

8.1.2 which requires superintendents to

further manage, constrain or

discontinue park uses that cause

unanticipated and unacceptable impacts

revealed through monitoring.

11. Comment: Several commenters

stated that the introduction of e-bikes

will require the NPS to undergo a

substantial revision of existing sign

standards to clearly identify where e-

bikes are allowed, and further which

classes are allowed. One commenter

recommended that the NPS maintain a

trail sign standard with allowable use

demarcations to depict traditional

bicycles and e-bikes independently.

NPS Response: The NPS agrees that

the successful introduction of e-bikes

into park areas depends upon clear and

consistent communication to the public

about where e-bikes are allowed, and

further which classes are allowed. The

NPS is working with the other land

management agencies within the

Department of the Interior to establish

standard signs for e-bikes. E-bikes will

have symbols that are distinct from

those used to depict traditional bicycles.

The goal of this effort is to create a

consistent visual framework indicating

where e-bikes are allowed on public

lands managed by the Department of the

Interior.

12. Comment: Several commenters

questioned whether the NPS has the

financial resources to properly manage

the use of e-bikes under this rule given

the preexisting backlog of deferred

maintenance projects in the National

Park System. Commenters cited costs

associated with: (1) Installing and

maintaining signage to identify where e-

bikes are allowed; (2) improving trail

infrastructure to accommodate e-bikes

(e.g., trail widening, lane marking,

parking facilities); (3) repairing trail

damage from the use from e-bikes; (4)

ensuring an adequate law enforcement

presence; and (5) engaging in and

incurring liability from search and

rescue activities caused by visitors

traveling beyond their ability level into

more remote and challenging terrain.

NPS Response: The NPS

acknowledges that there will be costs

associated with the management of e-

bikes within the National Park System,

including those cited by the

commenters. To help avoid situations

where superintendents do not have the

resources to properly manage e-bikes,

this rule does not mandate the use of e-

bikes anywhere in the National Park

System. It gives superintendents to

discretion to allow them where they are

appropriate. NPS Management Policies

Section 8.1.2 requires superintendents

to consider total costs to the NPS when

evaluating whether a proposed park use

is appropriate. In the event that

accidents or injuries occur as a result of

or in conjunction with e-bike use,

liability, if any, would be determined in

accordance with applicable laws, which

may include the Federal Tort Claims

Act.

13. Comment: Several commenters

questioned whether aspects of the rule

would be difficult to enforce, in

particular the prohibition on using the

throttle to move the e-bike without

pedaling that applies only to Class 2 e-

bikes. Commenters also questioned

whether NPS law enforcement officers

would be able to differentiate between

e-bikes and traditional bicycles, and

classes of e-bikes in circumstances

where a superintendent has prohibited

certain classes of e-bikes in particular

locations. Commenters emphasized that

these enforcement challenges would be

exacerbated by potential violations

occurring at high speeds and in remote

locations.

NPS Response: The NPS

acknowledges that the aspects of the

rule cited by the commenters may pose

certain enforcement challenges.

However, those challenges are not

unique. They regularly arise in the

context of enforcing laws that govern

recreational use of park areas. For

example, regulations governing use of

off-road vehicles at 36 CFR 4.10 prohibit

operation of an off-road vehicle in a

manner that causes unreasonable

damage to the surface of a park road or

route. Determining when a violation of

this regulation occurs can be fact-

specific, requiring the exercise of

specialized judgment on the part of law

enforcement officers. Similarly,

determining whether a violation of the

prohibition on extended use of throttle

power without pedaling occurs will

involve the exercise of specialized skill,

training, and judgment by law

VerDate Sep<11>2014 17:00 Oct 30, 2020 Jkt 253001 PO 00000 Frm 00063 Fmt 4700 Sfmt 4700 E:\FR\FM\02NOR1.SGM 02NOR1

jbell on DSKJLSW7X2PROD with RULES

69182

Federal Register / Vol. 85, No. 212 / Monday, November 2, 2020 / Rules and Regulations

enforcement officers. Based on its

experience enforcing other regulations

that condition how the public recreates

on public lands, the NPS believes that

law enforcement officers have the

expertise necessary to properly exercise

their discretion to enforce the

limitations on how Class 2 e-bikes may

be used in a reasonable manner that

ensures protection of public health,

safety, and resources and users of the

public lands. The NPS has also

modified the regulatory text to make

clear that using the throttle on a Class

2 e-bike without pedaling is only

prohibited if it is done for an extended

period of time. This will help law

enforcement officials focus only on the

more egregious cases of users using the

throttle to move Class 2 e-bikes without

pedaling.

With respect to differentiating among

traditional bicycles and e-bikes, and

among classes of e-bikes, the NPS notes

that 28 states require e-bikes to have a

label that displays the class, top assisted

speed, and power outlet of the electric

motor. Some e-bikes can be

differentiated from traditional bicycles

by simple observation. In other cases,

the NPS expects that its law

enforcement officers will use their

specialized skill, training, and judgment

to enforce this requirement even if the

e-bike is not labeled through

observation of riding behaviors,

questioning, or other means of

investigation. Identifying violations of

NPS regulations that occur at speed is

not a novel challenge for NPS law

enforcement officers. These individuals

are tasked on a daily basis with

enforcing speed limits and equipment

and operational requirements for the use

of motor vehicles and vessels used

within remote park areas. See, for

example, 36 CFR parts 3 and 4.

14. Comment: Several commenters

suggested changes to the requirement in

the proposed rule that except where use

of motor vehicles by the public is

allowed, using the electric motor to

move an e-bike without pedaling is

prohibited. One commenter

recommended that the NPS remove this

requirement in order to allow riders to

take advantage of the throttle-only

capabilities of Class 2 e-bikes on e-bike

lanes and paths where such use is

appropriate. Another commenter noted

that Class 2 e-bikes often have a

function that allows the rider to disable

the throttle-only capability and that the

rule should require that this be disabled

as a better regulatory alternative to

prevent throttle-only use.

NPS Response: The NPS

acknowledges that there may be

situations where the use of the throttle-

only power may be appropriate and

useful in limited duration. This could

be the case in particular for park visitors

who use e-bikes as to access and enjoy

park areas in a manner that would not

be possible with traditional bicycles. In

limited duration, the throttle could be

used without pedaling to get started, for

a quick burst of power to climb a hill,

or to move safely through an

intersection. In order to more precisely

tailor this restriction on the use of Class

2 e-bikes, the NPS has revised the final

rule to only prohibit the use of throttle-

only power for an extended period of

time. This change will allow riders of

Class 2 e-bikes to benefit from throttle-

only power for limited durations while

ensuring that e-bike use, where allowed,

will continue to be used in a manner

that is consistent with traditional, non-

motorized bicycles. Due to this change

in the final rule, the NPS declines to

adopt the proposal to require riders of

Class 2 e-bikes to disable the throttle-

only function.

15. Comment: One commenter

suggested that the NPS revise the

definition of ‘‘electric bicycles’’ to

include a requirement that the device

have a seat or saddle for the rider so that

e-bikes are distinguished from other

types of electric mobility devices that

are designed to be stood upon, such as

e-scooters.

NPS Response: The NPS believes that

the requirement in the definition that e-

bikes have ‘‘fully operable pedals’’ is

sufficient to distinguish e-bikes from

other mobility devices with electric

motors.

16. Comment: One commenter

questioned the effectiveness of

requirement in the definition of

‘‘electric bicycle’’ that the electric motor

produce no more than 750 watts of

power. This commenter noted that e-

bike manufacturers are offering multi-

speed transmissions that increase the

efficiency of the motor, which means

that the speed of e-bikes is less a

function of the size of the motor than

the number of gears and gear ratios.

NPS Response: The NPS appreciates

that the technology used in e-bikes is

likely to continue to evolve at a rapid

pace, and that the electric motors and

batteries will become more efficient

over time. The advancements in

transmission described by the

commenter may increase the

acceleration rate of e-bikes but cannot

increase the top assisted speed beyond

20 mph (for Class 1 and 2 e-bikes) or 28

mph (for Class 3 e-bikes) without

transforming the device into a motor

vehicle for purposes of NPS regulations.

The NPS believes that the limitations on

top assisted speed and power output are

sufficient to prevent technological

advancements from allowing devices

that qualify as e-bikes to behave like

motorcycles or other motor vehicles in

a manner that represents a significant

departure from the types of devices that

fall within the NPS definition of an

‘‘electric bicycle’’ today.

17. Comment: Several commenters

asked the NPS to limit the discretion

given to superintendents in this rule to

determine where e-bikes may be used,

and which classes may be used, within

the NPS units they administer. Here are

some of the ways these commenters

proposed to categorically manage the

use of e-bikes:

•Prohibit the use of Class 2 and 3 e-

bikes on non-motorized trails where

traditional bicycles are allowed.

•Allow Class 1 e-bikes on

administrative roads and improved

surface trails, but not single-track trails.

•Allow Class 2 e-bikes only on

administrative roads.

•Allow Class 3 e-bikes only in

locations open to public motor vehicle

traffic.

•Prohibit Class 2 and 3 e-bikes on

natural surface trails.

•Prohibit the use of three-wheeled e-

cycles with a combined tire tread width

wider than 15 inches on trails where

traditional bicycles are allowed.

•Prohibit e-bikes on any trails that

do not already allow motorized use,

which would eliminate all trails from

consideration except for ORV and

snowmobile routes.

•Prohibit e-bikes on trails with

groomed snow that are also used by

over-snow vehicles.

•Allow e-bikes only on paved trails.

•Prohibit Class 2 e-bikes on all

improved surface and shared use trails

open to traditional bicycles due to their

throttle-only capabilities.

•Allow Class 1 e-bikes anywhere

traditional bicycles are allowed without

any requirement that those locations be

designated by the superintendent.

NPS Response: The varied and

diverse approaches suggested by the

commenters demonstrates how difficult

it would be to establish categorical rules

for where e-bikes may be used in park

areas at the national level. The

framework in this rule establishes

sensible sideboards for the use of e-

bikes by: (1) Adopting a commonly used

state-adopted definition of ‘‘electric

bicycle’’ that limits motor size and top

assisted speed; (2) restricting e-bikes to

roads and trails where traditional

bicycles are allowed; and (3) ensuring

that e-bikes are used like traditional

bicycles by prohibiting the extended use

of Class 2 e-bikes with throttle-only

power. Further restricting the discretion

VerDate Sep<11>2014 17:00 Oct 30, 2020 Jkt 253001 PO 00000 Frm 00064 Fmt 4700 Sfmt 4700 E:\FR\FM\02NOR1.SGM 02NOR1

jbell on DSKJLSW7X2PROD with RULES

69183

Federal Register / Vol. 85, No. 212 / Monday, November 2, 2020 / Rules and Regulations

of superintendents to determine

whether e-bikes should be allowed

could prevent visitors from using e-

bikes to access and enjoy park areas

without any opportunity to evaluate

whether such use is appropriate. For

example, categorically prohibiting e-

bikes on trails that are not ORV or

snowmobile routes runs counter to

evidence identified in previous

responses to comments suggesting that

impacts from e-bikes are more like

impacts from traditional bicycles than

motor vehicles.

Superintendents are most familiar

with the natural and cultural resources,

operating budgets, and visitor use

patterns in a park area, and therefore are

in the best position to determine

whether e-bikes, or specific classes of e-

bikes, should be allowed on roads or

trails where traditional bicycles are

allowed. The rule provides

superintendents with the flexibility to

parse and delineate the exact type of e-

bike use, if any, that is most appropriate

in a park area. Taking just some of the

examples raised by the commenters, if

the top assisted speed of Class 3 e-bikes

would cause unacceptable safety

concerns on a particular trail, the

superintendent can prohibit Class 3 e-

bikes on that trail. If a single-track trail

is too narrow to accommodate the width

of three-wheeled e-bikes without

causing unacceptable impacts to natural

resources, the superintendent can

prohibit those types of e-bikes on that

trail. If allowing e-bikes on groomed

trails used by snowmobiles would

create unacceptable safety concerns or

user conflicts, the superintendent can

prohibit that use. If allowing Class 2 e-

bikes on a single-track trail would cause

unacceptable user conflicts or safety

issues due to their throttle-only

capabilities (even when used only for

short durations), then the

superintendent could allow Class 2 e-

bikes only on administrative roads that

are sufficiently wide to accommodate

that type of traffic.

In response to a suggestion from one

commenter, the NPS has clarified in the

final rule that the superintendent may

decide to allow only specific classes of

e-bikes in certain locations. This was

always the intent of the rule and is part

of the reason why the NPS used a

definition of ‘‘electric bicycle’’ that

distinguishes between classes. The NPS

agrees with this commenter that the

type of power activation and top

assisted speed that distinguish the three

classes necessitate a more granular level

of decision making and allowances

based on individual classes. Another

commenter requested that the NPS state

in the rule that e-bikes may be allowed

on paved and unpaved trails. The NPS

does not think this is necessary because

the reference to ‘‘trails’’ in the rule

without any qualifier means either type

of trail.

18. Comment: One commenter

questioned whether the prohibition in

the rule of possessing an electric bicycle

in a wilderness area established by

Federal statute would prevent the

transport of e-bikes mounted on motor

vehicles through wilderness areas.

Another commenter stated that the NPS

should allow e-bikes in wilderness

because they are quieter and otherwise

have less impacts that horses.

NPS Response: The use of motor

vehicles is prohibited in wilderness

areas designated under the Wilderness

Act, whether or not they are

transporting e-bikes. 16 U.S.C. 1133(c).

The Wilderness Act also prohibits other

forms of mechanical transport, a term

that includes e-bikes, leaving the NPS

with no authority to allow e-bikes in

wilderness areas designated under the

Act. 16 U.S.C. 1133(c).

19. Comment: One commenter stated

that e-bikes should only be allowed if

their use will not impede or result in the

elimination of access for traditional

bicycles.

NPS Response: This rule authorizes

superintendents to allow e-bikes only

on roads and trails where traditional

bicycles are allowed. Superintendents

may not designate a road or trail for e-

bike use and then subsequently prohibit

the use of traditional bicycles in that

location.

20. Comment: One commenter asked

the NPS to clarify why certain

regulations in 36 CFR part 4 that apply

to traditional bicycles do not apply to e-

bikes under the rule. In particular, the

commenter asked the NPS to explain

why 36 CFR 4.30(h)(1) does not apply

to e-bikes.

NPS Response: 36 CFR 4.30(h)(1)

prohibits riding a traditional bicycle off

park roads and parking areas, except on

administrative roads and trails that have

been authorized for bicycle use. This

rule contains its own provisions about

where e-bikes may be used. Applying

paragraph 4.30(h)(1) to the use of e-

bikes would suggest that e-bikes are

allowed everywhere traditional bicycles

are allowed. This would not be accurate

under this rule, which requires

superintendents to take an

administrative action to designate roads

and trails where traditional bicycles are

allowed for e-bike use, before e-bikes are

allowed in those locations. Similar

explanations exist for why other

provisions in part 4 apply to traditional

bicycles but not to e-bikes—namely, that

this rule contains its own provisions for

e-bike use that make referencing

regulations elsewhere in part 4

unnecessary. For example, paragraph

(i)(6) of this rule adopts and applies

non-conflicting state law to the use of e-

bikes which makes applying section 4.2

(State law applicable) or paragraphs

4.30(g)(2) and (h)(6) unnecessary.

Another example is paragraph (i)(4) of

this rule which prohibits possessing an

electric bicycle in a wilderness area.

This makes applying paragraph

4.30(h)(2) to the use of e-bikes

unnecessary.

21. Comment: One commenter

addressed the topic of adopting non-

conflicting state law. This commenter

recommended that the NPS adopt non-

conflicting state law in order to avoid

confusing the public by a situation

where the NPS would allow more

liberal (i.e., less restrictive) use of e-

bikes in park areas than would

otherwise be allowed by the state. This

commenter also suggested a minor edit

to paragraph (i)(6) that would refer to

the regulations in 36 CFR chapter I as

controlling over state law, instead of the

current reference to the regulations in

section 4.30. This would ensure that the

NPS definitions of ‘‘electric bicycle’’

and ‘‘motor vehicle’’, which appear in

36 CFR 1, control in the event of

conflicting state definitions.

NPS Response: Paragraph (i)(6) of the

rule adopts non-conflicting state law

and applies it to the use of e-bikes in

park areas. This means that to the extent

the superintendent has designated

locations for e-bike use that conflict

with what the state allows, the

superintendent’s designations would

control. Regardless of which authority

(NPS or state) is more liberal about the

use of e-bikes, the NPS rule will control

in park areas. In an opposite example to

the one raised by the commenter, if the

state allows e-bikes on unpaved trails,

but the superintendent has not

designated unpaved trails in the park for

e-bike use, then e-bikes would not be

allowed on unpaved trails in the park.

Visitor use of park areas should not be

determined by the state. That is why

where state law is adopted elsewhere in

NPS regulations, it applies only to the

extent there is no conflict with NPS

regulations. The NPS declines to adopt

a regulatory framework where it would

defer entirely to the state on matters of

visitor use, even if that deference would

only occur if visitor use is more

restricted by the state. This would be an

abdication of the NPS’s legal

responsibility to manage visitor use and

enjoyment of the National Park System.

The NPS appreciates the suggestion

by the commenter to refer to ‘‘this

chapter’’ in paragraph (i)(6) for the

VerDate Sep<11>2014 17:00 Oct 30, 2020 Jkt 253001 PO 00000 Frm 00065 Fmt 4700 Sfmt 4700 E:\FR\FM\02NOR1.SGM 02NOR1

jbell on DSKJLSW7X2PROD with RULES

69184

Federal Register / Vol. 85, No. 212 / Monday, November 2, 2020 / Rules and Regulations

reasons stated by the commenter and

has made this change in the final rule.

22. Comment: One commenter

suggested that the rule should allow e-

bikes anywhere traditional bicycles are

allowed unless the superintendent

closes a location to the use of e-bikes.

NPS Response: The ‘‘open unless

closed’’ regulatory framework suggested

by the commenter would allow e-bikes

on roads and trails across the National

Park System without any opportunity

for superintendents to evaluate whether

they are an appropriate use of park

areas. This would place a substantial

burden on superintendents to close

roads and trails to the use of e-bikes in

order to stop unacceptable impacts to

resources and visitor experience that

would begin to occur immediately upon

the effective date of this rule. It would

also require the NPS on a national level

to try and evaluate the potential impacts

from e-bike use across the National Park

System under applicable policy and law

prior to the rule becoming effective.

With more than 400 units making up the

National Park System, each containing

unique and dynamic administrative

capabilities, values, resources, and

visitor use patterns, a programmatic

evaluation of these impacts would be

impracticable. The NPS prefers the

‘‘closed unless open’’ approach in this

rule that requires superintendents to

take an affirmative action by designating

a road or trail for e-bike use before they

are allowed. This approach will allow

superintendents to evaluate whether a

location is appropriate for e-bike use in

accordance with the policy guidance

discussed above and the legal

requirements (e.g. National

Environmental Policy Act) discussed

below.

23. Comment: One commenter asked

why the rule does not prohibit devices

with electric motors that output more

than 750 watts of power.

NPS Response: A device with an

electric motor that outputs more than

750 watts of power will not qualify as

an e-bike under the definition of

‘‘electric bicycle’’ in this rule. As a

result, the superintendent will lack to

authority to allow those types of devices

on roads and trails open to traditional

bicycles under this rule. Such devices

will fall under the definition of ‘‘motor

vehicle’’ and be regulated as such. As a

result, it would not be appropriate to

ban them as the commenter suggests.

This analysis is true of any device that

fails to meet the criteria in the definition

of ‘‘electric bicycle’’—including devices

with a top assisted speed greater than 28

mph or without operable pedals.

24. Comment: One commenter

suggested that the rule should allow

seniors to use all classes of e-bikes on

roads and trails open to traditional

bicycles.

NPS Response: The NPS appreciates

that the propulsion assistance offered by

e-bikes can provide particular benefits

to park visitors with physical

limitations, including seniors. The NPS

expects that superintendents will

consider all potential benefits and costs

when they evaluate whether to allow e-

bikes in a park area under this rule. It

would not be prudent, however, to

require superintendents to allow seniors

to use all classes of e-bikes in all

locations open to traditional bicycles,

without any opportunity to first

evaluate whether that would cause

unacceptable impacts, visitor conflicts,

or safety concerns—for both the senior

riders and other park visitors.

25. Comment: Several commenters

suggested that the NPS establish annual

registration, licensing, and insurance

requirements for the use of e-bikes in

park areas.

NPS Response: The NPS believes that

rules about registration, licensing, and

insurance should be determined by the

states, which are more experienced and

equipped to implement such

requirements. Creating a separate set of

federal requirements would be overly

burdensome and create potential

confusion with the visiting public. The

rule allows the NPS to enforce whatever

requirements are established by the state

under paragraph (i)(6) which adopts

non-conflicting state law and applies it

to the use of e-bikes in park areas.

26. Comment: One commenter

suggested the NPS undertake a

systematic inventory and evaluation of

all existing bicycle trail assets within

the National Park System to ensure they

are designed to safely accommodate the

use of e-bikes. The commenter refers the

NPS to the American Association of

State Highway Transportation Officials

(AASHTO) Guide for the Development

of Bicycle Facilities and the American

Trails Shared Use Path Design

guidelines, both of which recommend

that the paved tread on shared use paths

should be at least 10 ft wide, with a

graded shoulder at least 2 ft wide on

either side of the path. On shared use

paths with heavy volumes of users, the

commenter states that tread width

should be between 12 ft to 14 ft and

that, in all cases, shared use paths

should not exceed a grade of 5%.

NPS Response: The NPS agrees that

superintendents should carefully

consider the context and characteristics

of existing bicycle trails that are being

considered for e-bike use. Many NPS

multiuse trails are significant to the

historical, cultural, or environmental

context of the park and were designed

prior to modern design guidelines and

standards. If trail widening is not

possible or is not an immediate

solution, there are other options

superintendents can implement to help

alleviate potential trail conflicts,

crowding, or resource and visitor

impacts. In 2018, the NPS published an

Active Transportation Guidebook to

support walking and bicycling in park

areas. This Guidebook provides

references to national design standards

and guidelines for multi-use trail

widths, which is consistent with the

guidelines cited by the commenter. The

Active Transportation Guidebook also

states that superintendents should

assess routes, on a trail-by-trail basis, to

determine whether e-bikes are

appropriate by considering speed and

safety, trail width and use-volume for

accommodation of additional users, trail

surface, and soil conditions. The NPS

appreciates the documents cited by the

commenter and will include them in a

working inventory of resources that

superintendents can use to evaluate the

appropriateness of e-bikes on particular

trails. At this time, the NPS does not

have the resources available to

undertake a systematic inventory and

evaluation of all trails across the

National Park System. The NPS believes

a more prudent approach is to allow

superintendents to make those

suitability determinations on a trail-by-

trail basis at the park level when the

need arises.

27. Comment: One commenter asked

the NPS to address whether e-bikes can

or should be given a special

accommodation as an ‘‘other power-

driven mobility device’’ (OPDMD)

under U.S. Department of Justice (DOJ)

regulations implementing the

Americans with Disabilities Act of 1990.

In particular, the commenter asked the

NPS to address a scenario where a rider

provides credible assurance that an e-

bike is used because of a disability,

which is the standard established by

DOJ Guidance on ‘‘Wheelchairs,

Mobility Aids, and Other Power-Driven

Mobility Devices’’ for whether a

particular type of OPDMD can be

accommodated.

NPS Response: This rule does not

address whether persons with

disabilities may use e-bikes as a

reasonable accommodation on NPS

facilities, including paths, trails, and

roadways. Determining if a person with

a disability can use an e-bike as an

OPDMD requires the same analysis as

any other OPDMD. Credible assurance is

not the only factor used in this analysis.

The DOJ guidance cited by the

commenter requires a series of factors to

VerDate Sep<11>2014 17:00 Oct 30, 2020 Jkt 253001 PO 00000 Frm 00066 Fmt 4700 Sfmt 4700 E:\FR\FM\02NOR1.SGM 02NOR1

jbell on DSKJLSW7X2PROD with RULES

69185

Federal Register / Vol. 85, No. 212 / Monday, November 2, 2020 / Rules and Regulations

be considered. These factors include,

but are not limited to, the type and

speed of the device, the facility’s

volume of pedestrian traffic, the

facility’s design and operational

characteristics, whether safe operation

of the device is feasible, and whether

the use of the device creates a

substantial risk of serious harm to the

immediate environment or natural or

cultural resources. Park superintendents

or their designees with assistance from

the NPS Accessibility Program will

make these determinations on a case-by-

case basis. The NPS Accessibility

Program can be reached via email at

accessibility@nps.gov.

28. Comment: Several commenters

suggested changes to the process for

designating bicycle trails for e-bike use.

One commenter recommended the NPS

require notice-and-comment rulemaking

prior to allowing e-bikes outside of

developed areas in order to ensure there

is a full opportunity for public

participation and review of such

decisions. Another commenter

suggested that e-bikes be allowed on

non-motorized bicycle trails only after

the NPS undergoes the same planning

and decision-making process that was

required by NPS regulations before

allowing traditional bicycles on those

trails. Another commenter suggested

that e-bikes be allowed only for those

who need motorized assistance and then

only by permit.

NPS Response: NPS regulations

promulgated in 1987 required the NPS

to issue a special regulation, specific to

the individual NPS unit, if bicycles

were to be used outside of developed

areas. The NPS adopted this special

regulation requirement to ensure

maximum public input on decisions to

allow traditional bicycles outside of

developed areas. In 2012, the NPS

revised the process for allowing bicycles

to focus on park planning and

environmental compliance under the

National Environmental Policy Act

(NEPA), rather than the special

rulemaking process. See 77 FR 39927.

NPS regulations still require notice-and-

comment rulemaking to allow bicycles

on new trails outside of developed

areas. As discussed above, the thorough

process in today’s bicycle regulations at

36 CFR 4.30 ensure that traditional

bicycles are allowed in park areas only

where the impacts of such use have

been thoroughly considered. Based on

the available studies, the NPS believes

that incremental impacts from e-bike

use in a particular location would not be

substantially different than already

occurring impacts from traditional

bicycles. For this reason, the NPS does

not find it necessary to require in every

instance notice-and-comment

rulemaking or the specific planning

processes and environmental

compliance measures that may have

been required when traditional bicycles

were allowed in the first place.

Superintendents are required by NEPA

to evaluate the impacts of any decision

to allow e-bikes and the pathway of

compliance will be tailored to the

circumstances of each decision.

Superintendents are encouraged to

engage with the public prior to allowing

e-bikes so that they can better

understand potential impacts to

resources and visitors, support for, and

controversy associated with, allowing e-

bikes.

The use of e-bikes is not the type of

visitor use that would justify the

regulatory and administrative burdens

associated with a permit requirement.

As long as the superintendent has

determined that a location is

appropriate for e-bike use, visitors will

be free to use e-bikes in that location

subject to the prescriptions in this rule.

29. Commenter: One commenter

stated that decisions to close a location

or otherwise restrict the use of e-bikes

under the superintendent’s

discretionary authority in paragraph

(i)(7) of the rule should be subject to

compliance with NEPA and the rule

should state that as an affirmative

requirement.

NPS Response: The NPS requires that

superintendents act in accordance with

applicable law and policy. This is true

in every case whether or not this

requirement is stated explicitly. If a

decision to close or otherwise restrict

the use of e-bikes warrants a compliance

measure be taken under NEPA or under

any other applicable law or policy, the

superintendent must take that measure.

This does not need to be affirmatively

stated in the rule for it to be required.

Compliance With Other Laws,

Executive Orders and Department

Policy

Regulatory Planning and Review

(Executive Orders 12866 and 13563)

Executive Order 12866 provides that

the Office of Information and Regulatory

Affairs (OIRA) in the Office of

Management and Budget will review all

significant rules. The OIRA has

determined that the final rule is not a

significant regulatory action as defined

by Executive Order 12866.

Executive Order 13563 reaffirms the

principles of E.O. 12866 while calling

for improvements in the nation’s

regulatory system to promote

predictability, to reduce uncertainty,

and to use the best, most innovative,

and least burdensome tools for

achieving regulatory ends. The

executive order directs agencies to

consider regulatory approaches that

reduce burdens and maintain flexibility

and freedom of choice for the public

where these approaches are relevant,

feasible, and consistent with regulatory

objectives. Executive Order 13563

emphasizes further that regulations

must be based on the best available

science and that the rulemaking process

must allow for public participation and

an open exchange of ideas. The NPS has

developed this rule in a manner

consistent with these requirements.

Reducing Regulation and Controlling

Regulatory Costs (Executive Order

13771).

Enabling regulations are considered

deregulatory under guidance

implementing E.O. 13771 (M–17–21).

This rule addresses regulatory

uncertainty regarding the use of electric

bicycles in the National Park System by

clearly stating that they may be used

where traditional bicycles are allowed

when designated by the superintendent.

Regulatory Flexibility Act

This rule will not have a significant

economic effect on a substantial number

of small entities under the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.).

This certification is based on

information contained in the economic

analyses found in the report entitled

‘‘Draft Cost-Benefit and Regulatory

Flexibility Threshold Analyses:

Proposed Regulations Addressing the

Designation of Electric Bicycle Use in

Units of the National Park System’’. The

report is available on

www.regulations.gov in Docket ID: NPS–

2020–0001.

Small Business Regulatory Enforcement

Fairness Act

This rule is not a major rule under 5

U.S.C. 804(2). This rule:

(a) Does not have an annual effect on

the economy of $100 million or more.

(b) Will not cause a major increase in

costs or prices for consumers,

individual industries, Federal, State, or

local government agencies, or

geographic regions.

(c) Does not have significant adverse

effects on competition, employment,

investment, productivity, innovation, or

the ability of U.S.-based enterprises to

compete with foreign-based enterprises.

Unfunded Mandates Reform Act

This rule does not impose an

unfunded mandate on State, local, or

tribal governments or the private sector

of more than $100 million per year. The

VerDate Sep<11>2014 17:00 Oct 30, 2020 Jkt 253001 PO 00000 Frm 00067 Fmt 4700 Sfmt 4700 E:\FR\FM\02NOR1.SGM 02NOR1

jbell on DSKJLSW7X2PROD with RULES

69186

Federal Register / Vol. 85, No. 212 / Monday, November 2, 2020 / Rules and Regulations

rule does not have a significant or

unique effect on State, local or tribal

governments or the private sector. It

addresses public use of national park

lands, and imposes no requirements on

other agencies or governments. A

statement containing the information

required by the Unfunded Mandates

Reform Act (2 U.S.C. 1531 et seq.) is not

required.

Takings (Executive Order 12630)

This rule does not effect a taking of

private property or otherwise have

takings implications under Executive

Order 12630. A takings implication

assessment is not required.

Federalism (Executive Order 13132)

Under the criteria in section 1 of

Executive Order 13132, the rule does

not have sufficient federalism

implications to warrant the preparation

of a federalism summary impact

statement. This rule only affects the use

of electric bicycles on federally-

administered lands. It has no outside

effects on other areas. A federalism

summary impact statement is not

required.

Civil Justice Reform (Executive Order

12988)

This rule complies with the

requirements of Executive Order 12988.

This rule:

(a) Meets the criteria of section 3(a)

requiring that all regulations be

reviewed to eliminate errors and

ambiguity and be written to minimize

litigation; and

(b) Meets the criteria of section 3(b)(2)

requiring that all regulations be written

in clear language and contain clear legal

standards.

Consultation With Indian Tribes

(Executive Order 13175 and

Department Policy)

The Department of the Interior strives

to strengthen its government-to-

government relationship with Indian

Tribes through a commitment to

consultation with Indian tribes and

recognition of their right to self-

governance and tribal sovereignty. The

NPS has evaluated this rule under the

criteria in Executive Order 13175 and

under the Department’s tribal

consultation policy and have

determined that tribal consultation is

not required because the rule will have

no substantial direct effect on federally

recognized Indian tribes.

Paperwork Reduction Act

This rule does not contain

information collection requirements,

and a submission to the Office of

Management and Budget under the

Paperwork Reduction Act is not

required. The NPS may not conduct or

sponsor and you are not required to

respond to a collection of information

unless it displays a currently valid OMB

control number.

National Environmental Policy Act of

1969

Categorical Exclusion Applies

This rule does not constitute a major

Federal action significantly affecting the

quality of the human environment. A

detailed statement under NEPA is not

required because the rule is covered by

a categorical exclusion. The NPS has

determined the rule is categorically

excluded under 43 CFR 46.210(i) which

applies to ‘‘policies, directives,

regulations, and guidelines: That are of

an administrative, financial, legal,

technical, or procedural nature; or

whose environmental effects are too

broad, speculative, or conjectural to

lend themselves to meaningful analysis

and will later be subject to the NEPA

process, either collectively or case-by-

case.’’

This regulation meets both prongs of

this categorical exclusion. First, the rule

is administrative, legal, and procedural

in nature because it simply clarifies and

codifies in regulation that

superintendents have the authority to

allow e-bikes in their units but does not

itself take any action or require

superintendents to take any action in

their park units. Further, the regulation

simply clarifies and resolves existing

ambiguity regarding superintendents’

discretion to allow e-bikes in parks,

rather than explicitly transitioning e-

bikes from a stricter management regime

to a more relaxed one. Prior to this

regulation, NPS regulations were

unclear as to how e-bikes were regulated

as neither the regulatory definition of

‘‘motor vehicles’’ nor ‘‘bicycles’’

explicitly included e-bikes. Due in part

to this ambiguity, most park

compendiums did not specifically

address e-bikes until the NPS recently

determined in Policy Memorandum 19–

01 that e-bikes should be treated in a

similar manner to traditional bicycles.

This regulation simply resolves this

ambiguity in the NPS’s regulations and

codifies the decision made in the policy

memorandum but does not change the

regulatory treatment of e-bikes from one

established management regime to

another in a way that would result in an

expanded range of potential

environmental impacts.

Second, this regulation’s

environmental effects are too broad,

speculative, or conjectural to lend

themselves to meaningful analysis and

the environmental effects of allowing e-

bikes in specific parks will be or have

already been subject to NEPA analysis

on a park-by-park basis. Each park unit

has its own enabling legislation, unique

resources that must be protected, and

specific circumstances related to visitor

use, trails, and bicycles use that must be

considered prior to determining

whether e-bike use should be allowed.

Also, the regulation allows park

superintendents to designate the

specific roads and trails that e-bikes

may be allowed on, and authorizes them

to set restrictions on the classes, speed,

and other aspects of e-bikes use where

they are authorized. Given the wide

variety of resources, terrains, and visitor

use patterns in parks across the country,

as well as the broad discretion to

determine the scope of e-bike use at the

park level, conducting NEPA analysis at

the National Park System level would be

too speculative and imprecise to make

definitive statements about the level of

impacts. For this reason, an evaluation

of environmental impacts under NEPA

would therefore be ineffective at the

System level.

Many units of the National Park

System already allow the use of e-bikes

where traditional bicycles are allowed

under the direction of the Policy

Memorandum. The Policy

Memorandum required those units to

evaluate the environmental impacts of

allowing e-bikes under NEPA. Because

traditional bicycles were already an

established presence in areas where e-

bikes were recently allowed, traditional

bicycles were part of the baseline of

existing conditions from which the

environmental impacts of e-bikes were

measured. Therefore, the impacts

potentially caused by the

implementation of the Policy

Memorandum were limited only to

those impacts from e-bikes that differ

from the existing impacts of traditional

bicycles. As a result, for most units a

categorical exclusion has applied.

In some units of the National Park

System, the superintendent may have

not yet opened bicycle trails to e-bikes,

or may have closed a location to the use

of e-bikes or otherwise restricted their

use. In these units, any future decision

to allow e-bikes in a new location or

manner will be subject to an evaluation

of the environmental impacts of that

decision at that time. This will also be

true for locations where, in the future,

traditional bicycles and e-bikes are

introduced for the first time. If a

superintendent proposes to designate an

administrative road or trail for e-bike

use where traditional bicycles are not

yet allowed, the superintendent will

VerDate Sep<11>2014 17:00 Oct 30, 2020 Jkt 253001 PO 00000 Frm 00068 Fmt 4700 Sfmt 4700 E:\FR\FM\02NOR1.SGM 02NOR1

jbell on DSKJLSW7X2PROD with RULES

69187

Federal Register / Vol. 85, No. 212 / Monday, November 2, 2020 / Rules and Regulations

need to follow the same procedural

steps in order to designate those

locations for bicycle and e-bike use. In

both circumstances described above, the

environmental effects of this rule are too

broad to be analyzed at the National

Park System level and environmental

analysis under NEPA is best conducted

at the park level.

The NPS has also determined that the

rule does not involve any of the

extraordinary circumstances listed in 43

CFR 46.215 that would require further

analysis under NEPA.

Response to NEPA Comments

Several commenters asserted that the

NPS has failed to conduct a proper

analysis of the foreseeable impacts of

this rule and that the preparation of an

environmental assessment or

environmental impact statement is

required. The NPS disagrees with this

interpretation of NEPA and believes the

categorical exclusion cited above is

appropriate for this rule. Further, some

commenters have requested that the

NPS conduct a programmatic NEPA

review. CEQ has stated that agencies

have discretion to determine whether a

programmatic approach is appropriate.

In this case, for reasons discussed

below, and in light of the fact that the

categorical exclusion cited above

requires a case-by-case NEPA review at

the park level before e-bike use could be

authorized at any specific park unit, the

NPS does not believe a programmatic

approach is appropriate.

The framework established by this

rule provides superintendents with an

opportunity to evaluate the effects of e-

bike use at the park level, where more

detailed information about potential

effects is available, prior to allowing

such use. Superintendents who decide

to allow e-bikes in a park area must base

that decision on reasonably obtainable

scientific, technical, and economic data,

and other information. Research and

data on impacts and compatibility of e-

bikes is still being developed. Available

research, some of which was

highlighted by commenters, indicates

that certain classes of e-bikes have

similar impacts to trails and other trail

users as traditional bicycles. When e-

bikes are considered at the park level,

user conflicts, resource impacts, and

other issues specific to each park unit

could influence a superintendent’s

decision to allow them or not.

This rule does not require that e-bikes

be allowed anywhere in the National

Park System. As noted above, units of

the National Park System vary

significantly in terms of the criteria that

would influence the decision to allow e-

bikes. Further, each park unit has its

own enabling legislation, unique

resources that must be protected, and

specific circumstances related to visitor

use, trails, and bicycles use that must be

considered prior to determining

whether e-bike use should be allowed.

This would make a comprehensive

NEPA analysis too broad, speculative, or

conjectural to lend itself to a meaningful

analysis, rendering such an analysis

ineffective. Addressing potential

environmental and social impacts are

most meaningful at the park level.

Superintendents will consider the

suitability of e-bike use on specific

roads and trails through subsequent

analysis consistent with the

requirements of NEPA and other

applicable laws (e.g., Endangered

Species Act, Clean Water Act, National

Historic Preservation Act) and policies.

The regulatory framework established

by this rule will allow superintendents

to develop site-specific design features

and mitigation strategies to reduce or

negate potential adverse impacts, as

needed.

Some commenters disagreed that

none of the extraordinary circumstances

listed under 43 CFR 46.215 apply to this

rule. These commenters stated that this

rule will have significant impacts on (1)

public health and safety; (2) natural and

cultural resources; (3) properties eligible

for listing on the National Register of

Historic Places; and (4) species and

designated critical habitat for species

listed, or proposed to be listed, under

the Endangered Species Act (ESA). As

stated above, this rule is not self-

executing in the sense that it does not

mandate the use of e-bikes anywhere in

the National Park System. For this

reason, the rule itself would not result

in any physical impacts to park

resources let alone significant impacts

on any of the items identified in 43 CFR

46.215. Decisions to allow e-bikes in

park areas will be subject to the NEPA

process at the park level just like all

other decisions that could have an effect

on the human environment. Applying

the NEPA process at a park-specific

level will allow the NPS to evaluate

detailed information on the potential

effects of e-bike use in a particular park,

consult with the U.S. Fish and Wildlife

Service regarding impacts to endangered

species, and develop site-specific

project design features and mitigation

strategies, if needed.

In addition to the extraordinary

circumstances in 43 CFR 46.215 that are

tied to impacts, commenters also stated

that this rule will have highly

controversial environmental effects or

involve unresolved conflicts concerning

alternative uses of available resources;

and have highly uncertain and

potentially significant environmental

effects or involve unique or unknown

environmental risks. Commenters also

stated that the rule will establish a

precedent for future action or represent

a decision in principle about future

actions with potentially significant

environmental effects; and have a direct

relationship to other actions with

individually insignificant but

cumulatively significant environmental

effects.

With regard to controversy, 43 CFR

46.215(c) pertains to whether the

environmental effects are highly

controversial. As stated in the

Department of the Interior NEPA

regulations, ‘‘[c]ontroversial refers to

circumstances where a substantial

dispute exists as to the environmental

consequences of the proposed action

and does not refer to the existence of

opposition to a proposed action, the

effect of which is relatively

undisputed.’’ 43 CFR 46.30. While e-

bikes are still relatively new, there are

a growing number of studies

investigating e-bike use. The NPS’s

review of the current research shows

that there does not appear to be any

substantial disagreement or differing

assumptions among scientists that affect

the interpretation of evidence in this

emerging body of literature. Overall, e-

bikes are more like traditional bicycles

than motor vehicles, and generally

cause the same types and levels of

impacts as traditional bikes.

Furthermore, the rule would not result

in unresolved conflicts concerning

alternative uses of available resources.

While the rule clarifies that e-bikes

should be treated in a similar manner to

traditional bicycles, it does not

authorize any consumptive or exclusive

use of park resources. It merely allows

a new type of use on bicycle trails that

is substantively similar to bicycles but

does not prohibit or restrict any other

user group.

This rule would not have highly

uncertain, and potentially significant

environmental effects, or involve unique

or unknown environmental risks. First,

as stated above, the rule itself does not

authorize nor mandate e-bike use at any

park unit and therefore without

additional action at the park level, no

impacts would occur. In addition, as

stated above, a review of available

information indicates the impacts of e-

bikes are generally similar to impacts

from bicycle use and there is no

information indicating that the

additional impacts from e-bikes may be

significant. This is reinforced by the fact

that most NPS units that have allowed

e-bikes and have completed a site-

specific NEPA review have applied a

VerDate Sep<11>2014 17:00 Oct 30, 2020 Jkt 253001 PO 00000 Frm 00069 Fmt 4700 Sfmt 4700 E:\FR\FM\02NOR1.SGM 02NOR1

jbell on DSKJLSW7X2PROD with RULES

69188

Federal Register / Vol. 85, No. 212 / Monday, November 2, 2020 / Rules and Regulations

categorical exclusion. While the use of

e-bikes is relatively new, the available

literature demonstrates a consensus

regarding what potential impacts may

be, and there is nothing to indicate that

the impacts of e-bike use would be

highly uncertain.

This rule does not establish a

precedent for future action or represent

a decision in principle about future

actions with potentially significant

environmental effects. The

extraordinary circumstance listed at 43

CFR 46.215(e) requires both a precedent

or decision in principle for future action

and for the precedent or decision in

principle to have potentially significant

environmental effects. Neither criteria

apply. This rule does not establish a

precedent for future action nor make

any decisions about future actions. As

discussed above, it is not self-executing

in the sense that it does not mandate the

use of e-bikes anywhere in the National

Park System; it merely authorizes

superintendents to allow them where

traditional bicycles are allowed. The

Superintendent at each park unit will

have the discretion to allow e-bike use—

or not—on a case-by-case basis. The

discussion above addresses why this

rule would be not result in any

significant impacts.

The NPS also disagrees with the

comment that the rule would have a

direct relationship to other actions with

individually insignificant but

cumulatively significant environmental

effects. Impacts to resources and visitors

would not occur on a national scale;

rather, impacts would be experienced

by visitors at each park unit at the time

of their visit and resources affected

would be at the park level, not at a

national scale. Therefore, there would

not be any meaningful ‘‘cumulative

impacts’’ at a national scale, that are

greater than the sum of the individual

park-level impacts. Furthermore, as

discussed above, due to the specific

circumstances at each park unit, the

NPS does not believe a programmatic

NEPA review is warranted.

Effects on the Energy Supply (Executive

Order 13211)

This rule is not a significant energy

action under the definition in Executive

Order 13211. A Statement of Energy

Effects in not required.

References

A complete list of all resources

reviewed and considered during the

development of this rulemaking is

available at http://www.regulations.gov

at Docket No. NPS–2020–0001.

List of Subjects

36 CFR Part 1

National parks, Penalties, Reporting

and recordkeeping requirements, Signs

and symbols.

36 CFR Part 4

National parks, Traffic regulations.

In consideration of the foregoing, the

National Park Service amends 36 CFR

parts 1 and 4 as set forth below:

PART 1—GENERAL PROVISIONS

■1. The authority citation for part 1

continues to read as follows:

Authority: 54 U.S.C. 100101, 100751,

320102.

■2. In § 1.4 amend paragraph (a) by

adding, in alphabetical order, the

definition for ‘‘Electric bicycle’’ and

revising the definition for ‘‘Motor

vehicle’’ to read as follows:

§ 1.4 What terms do I need to know?

(a) * * *

* * * * *

Electric bicycle means a two- or three-

wheeled cycle with fully operable

pedals and an electric motor of not more

than 750 watts that meets the

requirements of one of the following

three classes:

(1) ‘‘Class 1 electric bicycle’’ shall

mean an electric bicycle equipped with

a motor that provides assistance only

when the rider is pedaling, and that

ceases to provide assistance when the

bicycle reaches the speed of 20 miles

per hour.

(2) ‘‘Class 2 electric bicycle’’ shall

mean an electric bicycle equipped with

a motor that may be used exclusively to

propel the bicycle, and that is not

capable of providing assistance when

the bicycle reaches the speed of 20

miles per hour.

(3) ‘‘Class 3 electric bicycle’’ shall

mean an electric bicycle equipped with

a motor that provides assistance only

when the rider is pedaling, and that

ceases to provide assistance when the

bicycle reaches the speed of 28 miles

per hour.

* * * * *

Motor vehicle means every vehicle

that is self-propelled and every vehicle

that is propelled by electric power, but

not operated on rails or water, except an

electric bicycle, a snowmobile, and a

motorized wheelchair.

* * * * *

PART 4—VEHICLES AND TRAFFIC

SAFETY

■3. The authority citation for part 4

continues to read as follows:

Authority: 54 U.S.C. 100101, 100751,

320102.

■4. Amend § 4.30 by adding paragraph

(i) to read as follows:

§ 4.30 Bicycles

* * * * *

(i) Electric bicycles. (1) The use of an

electric bicycle may be allowed on park

roads, parking areas, and administrative

roads and trails that are otherwise open

to bicycles. The Superintendent will

designate the areas open to electric

bicycles, or specific classes of electric

bicycles, and notify the public pursuant

to 36 CFR 1.7.

(2) The use of an electric bicycle is

prohibited in locations not designated

by the Superintendent under paragraph

(i)(1) of this section.

(3) Except where use of motor

vehicles by the public is allowed, using

the electric motor exclusively to move

an electric bicycle for an extended

period of time without pedaling is

prohibited.

(4) Possessing an electric bicycle in a

wilderness area established by Federal

statute is prohibited.

(5) A person operating or possessing

an electric bicycle is subject to the

following sections of this part that apply

to bicycles: §§ 4.12, 4.13, 4.20, 4.21,

4.22, 4.23, and 4.30(h)(3)–(5).

(6) Except as specified in this chapter,

the use of an electric bicycle is governed

by State law, which is adopted and

made a part of this section. Any act in

violation of State law adopted by this

paragraph is prohibited.

(7) Superintendents may limit or

restrict or impose conditions on electric

bicycle use, or may close any park road,

parking area, administrative road, trail,

or portion thereof to such electric

bicycle use, or terminate such

condition, closure, limit or restriction

after:

(i) Taking into consideration public

health and safety, natural and cultural

resource protection, and other

management activities and objectives;

and

(ii) Notifying the public through one

or more methods listed in 36 CFR 1.7,

including in the superintendent’s

compendium (or written compilation) of

discretionary actions referred to in 36

CFR 1.7(b).

George Wallace,

Assistant Secretary for Fish and Wildlife and

Parks.

[FR Doc. 2020–22129 Filed 10–30–20; 8:45 am]

BILLING CODE 4312–52–P

VerDate Sep<11>2014 17:00 Oct 30, 2020 Jkt 253001 PO 00000 Frm 00070 Fmt 4700 Sfmt 9990 E:\FR\FM\02NOR1.SGM 02NOR1

jbell on DSKJLSW7X2PROD with RULES