National Wildlife Refuge System; Use of Electric Bicycles
| Published date | 02 November 2020 |
| Record Number | 2020-22107 |
| Section | Rules and Regulations |
| Court | Fish And Wildlife Service |
Federal Register, Volume 85 Issue 212 (Monday, November 2, 2020)
[Federal Register Volume 85, Number 212 (Monday, November 2, 2020)]
[Rules and Regulations]
[Pages 69223-69235]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22107]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 27
[Docket No. FWS-HQ-NWRS-2019-0109; FXRS12630900000-201-FF09R81000]
RIN 1018-BE68
National Wildlife Refuge System; Use of Electric Bicycles
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service, issue regulations
pertaining to the use of electric bicycles (otherwise known as ``e-
bikes''). These regulations have the potential to facilitate increased
recreational opportunities for all Americans, especially for people
with physical limitations. This rule will provide guidance and controls
for the use of e-bikes in the National Wildlife Refuge System.
DATES: This rule is effective December 2, 2020.
ADDRESSES: The comments received on the proposed rule and the economic
and threshold analysis prepared to inform the rule are available at the
Federal e-rulemaking portal: http://www.regulations.gov in Docket No.
FWS-HQ-NWRS-2019-0109.
FOR FURTHER INFORMATION CONTACT:
Maggie O'Connell, National Wildlife Refuge System--Branch Chief for
Visitor Services, 703-358-1883, [email protected].
Persons who use a telecommunications device for the deaf (TDD) may
call the Federal Relay Service (FRS) at 1-800-877-8330, 24 hours a day,
7 days a week, to leave a message or question with the above
individual. You will receive a reply during normal business hours.
SUPPLEMENTARY INFORMATION:
Background
The National Wildlife Refuge System Administration Act of 1966, as
amended
[[Page 69224]]
by the National Wildlife Refuge System Improvement Act of 1997
(Administration Act) (16 U.S.C. 668dd-668ee), governs the
administration and public use of national wildlife refuges, and the
Refuge Recreation Act of 1962 (16 U.S.C. 460k-460k-4) governs the
administration and public use of national wildlife refuges and national
fish hatcheries.
National wildlife refuges are considered closed to the public until
and unless the Secretary of the Interior (Secretary), acting through
the U.S. Fish and Wildlife Service, opens the area for use. 50 CFR
25.21. The Secretary may open refuge areas to any use, including public
recreation, upon a determination that the use is compatible with the
purposes of the refuge and the National Wildlife Refuge System (NWRS)
mission. 16 U.S.C. 668dd(d). The mission of the NWRS is: ``To
administer a national network of lands and waters for the conservation,
management, and where appropriate, restoration of the fish, wildlife,
and plant resources and their habitats within the United States for the
benefit of present and future generations of Americans.'' 16 U.S.C.
668dd(a)(2). Administration of the NWRS must also be in accordance with
all applicable laws, and consistent with the principles of sound fish
and wildlife management and administration.
The U.S. Fish and Wildlife Service (FWS) administers the NWRS via
regulations contained in title 50 of the Code of Federal Regulations
(CFR). These regulations, found at 50 CFR, chapter I, subchapter C,
serve to protect the natural and cultural resources of refuges, and to
protect visitors and property within those lands, by governing public
use of the NWRS.
National wildlife refuges offer many outdoor recreation activities
such as wildlife observation, fishing, and hunting, and nearly 200
national wildlife refuges allow bicycling on designated roads and
trails. FWS regulations generally prohibit visitors from using
motorized vehicles on refuges other than on designated routes of
travel. See 50 CFR 27.31(a).
Traditional bicycles are allowed on some designated routes of
travel and parking areas open to public motor vehicles. On refuges
where the refuge manager has determined that such use is an appropriate
and compatible use, bicycles are also allowed on certain roads, access
trails, and other trails that are closed to public motor vehicle use
but that may be open to motor vehicle use by the FWS for administrative
purposes.
FWS policy set forth in the FWS Manual outlines a robust process
for determining appropriate use and compatibility, which each refuge
manager must follow when making refuge-specific decisions for allowing
a proposed public use, such as e-biking. See 603 FW 2. This process
must be followed even if other similar uses are already allowed.
This Rulemaking Action
FWS published a proposed rule on April 7, 2020 (85 FR 19418),
pertaining to the use of low-speed e-bikes on NWRS lands in accordance
with Secretary's Order 3376, which directed Department of the Interior
(DOI) bureaus to propose regulations allowing e-bikes where other types
of bicycles are allowed, consistent with other laws and regulations.
The proposed rule put forward new regulations to be added to 50 CFR
part 27, which pertains to prohibited acts on refuge lands. The current
regulations in Sec. 27.31 generally prohibit use of any motorized or
other vehicles, including those used on air, water, ice, or snow, on
national wildlife refuges except on designated routes of travel, as
indicated by the appropriate traffic control signs or signals and in
designated areas posted or delineated on maps by the refuge manager.
The proposed rule specified that the operator of an e-bike may use
the small electric motor (not more than 1 horsepower) only to assist
pedal propulsion. In other words, the proposed rule indicated that the
motor may not be used to propel an e-bike without the rider also
pedaling. However, based on comments received on the proposed rule, FWS
has modified the final rule language to specify that e-bike operators
may not propel an e-bike using the motor exclusively for extended
periods of time. See the proposed rule (85 FR 19418, April 7, 2020) for
further information on the purpose and provisions of the proposed
regulations.
Promulgation of this rule supersedes FWS Director's Order 222,
which was established to implement Secretary's Order 3376.
Comments Received
The proposed rule opened a public comment period, which ended June
8, 2020. We accepted comments on the proposed rule through the mail, by
hand delivery, and through the Federal eRulemaking Portal at
www.regulations.gov. By the close of the comment period, we received
just over 16,000 comments from thousands of individuals and
approximately 62 organizations.
Most (approximately 97%) of the comments we received were form
comments, submitted by unique individuals but including very similar or
identical content. Commenters expressing general support for the
proposed rule most frequently cited the following reasons:
E-bike use on NWRS lands will allow people to access lands
and participate in bicycling when they otherwise could not due to age
or physical limitations.
The proposed rule will enable e-bike users more access to
roads and trails, nature, and the outdoors.
E-bike use can improve health through exercise and
physical exertion.
E-bikes cause no more damage to trails than traditional
bicycles.
The use of e-bikes reduces pollution compared to the use
of other vehicles, and e-bikes are not noisy.
While some commenters stated general support for or opposition to
the rule in whole or in part, the majority of commenters included at
least one, and often multiple, unique and specific remarks about the
proposed rule. In other words, a single commenter often provided more
than one reason that supported or opposed the proposed rule. Many of
the comments we received referenced a general topic, and we have
grouped similar comments together in some instances, particularly if
the response is the same for each of the comments. For example, we
received multiple comments that suggested only certain classes of e-
bikes should be allowed on nonmotorized trails. Some commenters stated
that only Class 1 e-bikes should be allowed, while Class 2 and Class 3
e-bikes should be prohibited. Other commenters requested different
combinations of e-bike classes be allowed or prohibited on national
wildlife refuges. We grouped these class-related comments together. We
also grouped other related comments, such as those addressing
enforcement or visitor safety issues when our response for each would
be the same. Summaries of the pertinent issues raised in the comments
and FWS responses are provided below:
Comment (1): We received comments from several individuals and
organizations that were dissatisfied with some aspect of the public
review process associated with this rulemaking. Specifically,
commenters stated that the length of the public review period was not
sufficient due to the coronavirus pandemic, that the pandemic created
obstacles to public participation, and that it prevented public
meetings. Some commenters stated that due to the pandemic, the
rulemaking should be postponed.
[[Page 69225]]
Our Response: The comment period began on Tuesday, April 7, 2020,
and ended on Monday, June 8, 2020, for a total open period of 62 days,
which is 2 days longer than the standard timeframe for proposed rules
issued by the Department of the Interior. The 60-day public comment
period is the opportunity for participation in the rulemaking process.
During this time period, the public was invited to submit comments via
mail or hand delivery or via the Federal eRulemaking portal (http://www.regulations.gov/). We received more than 16,000 comments during the
public comment period. The large number of comments received suggests
that the 60-day public review period was sufficient for providing
public comment. Therefore, the FWS met the Administrative Procedure Act
(APA; 5 U.S.C. 553) requirement for notice and comment. Public meetings
are not required for informal rulemakings under the APA. Moreover, the
public will have more opportunities to comment because refuge managers
must provide an opportunity for public review and comment during the
compatibility determination process. See 603 FW 2.11(I), 2.12(9).
Comment (2): We received comments stating the proposed rule
violates the National Wildlife Refuge System Improvement Act of 1997 by
interfering with other priority uses and prevents the FWS from managing
for conservation over all other competing uses in the NWRS.
Our Response: This rule does not mandate the use of e-bikes at any
national wildlife refuge. The rule defines permitted types of e-bikes
and establishes a general framework that can be used by a refuge
manager to allow e-bikes on designated roads and trails where
traditional bicycles are already allowed. The National Wildlife Refuge
System Improvement Act of 1997 states that ``the Secretary shall not
initiate or permit a new use of a refuge or expand, renew, or extend an
existing use of a refuge, unless the Secretary has determined that the
use is a compatible use and that the use is not inconsistent with
public safety.'' In determining if e-biking is appropriate and
compatible, the refuge managers use their sound professional judgment
to consider wildlife and habitat impacts, health and safety, potential
conflicting uses, and available resources to manage the use. The
National Wildlife Refuge System Improvement Act of 1997 provides
guidelines for how managers may or may not implement new uses on
refuges, and this rule does not violate the Act.
Comment (3): We received several comments stating that the FWS does
not need rulemaking to allow e-bike use at national wildlife refuges
because refuge managers can allow e-bikes under existing regulations.
Our Response: Although refuge managers can allow e-bikes under
existing regulations, Secretary's Order 3376 was issued to clarify,
simplify, and unify regulation of e-bikes on Federal lands managed by
DOI, and it directed the FWS to develop the proposed rule. Prior to
this final rule, e-bikes were not defined and e-bike use was not
described in any FWS regulations. The rule defines the type and classes
of e-bikes that a refuge manager may allow and provides a consistent
management framework for the use of e-bikes in the NWRS. This rule does
not authorize e-bike use; rather, such authorization would be based on
subsequent evaluation and determination at the site-specific level. It
provides the public with information about e-biking regulations and
provides guidance to refuge managers to manage e-bike use at refuges.
Comment (4): We received comments about the ability of individual
refuge managers to make decisions on e-bike use at a specific national
wildlife refuge. Some commenters stated that refuge managers should be
able to determine if e-bike use is a compatible use on a refuge. Other
commenters stated that refuge managers should not have the authority to
determine if e-bikes are compatible, and that this decision should be
made for all refuges at a national level. One commenter stated that the
FWS should conduct a general compatibility analysis first. Some
commenters requested that the rule text should be rewritten to include
a uniform set of guidelines, parameters, and criteria for refuge
managers to use when determining if and how e-bike use is allowed.
Our Response: Established laws, regulations, and policies enable
the FWS and the refuge manager to determine if a public use is allowed
on a site-specific basis, as summarized below. The Administration Act
stipulates that certain wildlife-dependent and other recreational uses,
such as traditional bicycle and e-bike use, if found to be appropriate
and compatible, are legitimate public uses of a refuge. FWS policy
outlines a robust process for determining appropriate use and
compatibility, which each refuge manager must follow when making
refuge-specific decisions for a public use such as e-biking. The FWS
has adopted policies and regulations implementing the requirements of
the Administration Act that refuge managers comply with when
considering appropriate and compatible uses on individual refuges.
According to FWS policy (603 FW 1.11), refuge managers base the
finding of appropriateness on the following 10 criteria:
We have jurisdiction over the use.
The use is legal.
The use is consistent with Executive Orders and Department
and Service policies.
The use is consistent with public safety.
The use is consistent with refuge goals and objectives in
an approved management plan.
The use has not been rejected previously, unless
circumstance or conditions have changed or it was not considered in a
refuge planning process.
The use is manageable within available budget and staff.
The use will be manageable in the future within existing
resources.
The use contributes to the public's understanding and
appreciation of the refuge's natural or cultural resources or is
beneficial to the refuge's natural and cultural resources.
The use can be accommodated without impairing existing
wildlife-dependent recreation uses.
If the refuge manager finds e-bike use to be appropriate under the
criteria above, the refuge manager must then determine whether e-bike
use is ``compatible'' with the established purpose(s) of the refuge and
the mission of the NWRS, as required by the Administration Act. Each
refuge is established with unique refuge purposes, and, as such, the
Administration Act requires each refuge to evaluate compatibility on a
refuge-specific level. A compatible use is ``[a] proposed or existing
wildlife-dependent recreational use or any other use of a national
wildlife refuge that, based on sound professional judgment, will not
materially interfere with or detract from the fulfillment of the
National Wildlife Refuge System mission or the purposes of the national
wildlife refuge.'' 603 FW 2.6(B). The refuge manager must issue a
compatibility determination, which is ``a written determination signed
and dated by the refuge manager and Regional Chief signifying that a
proposed or existing use of a national wildlife refuge is a compatible
use or is not a compatible use.'' 603 FW 2.6(A). The compatibility
determination process includes a requirement for public notification
and comment on the proposed use. 603 FW 2.11(I), 2.12(9). The refuge
manager is required to consider the anticipated impacts that a
[[Page 69226]]
new use such as e-bikes would have on public safety, refuge resources,
other uses, and other users. See the complete policy for determining
compatibility of proposed and existing uses of national wildlife
refuges for more information. 603 FW 2.
In addition, opening a refuge to specific public uses requires
compliance with the National Environmental Policy Act (NEPA; 42 U.S.C.
4321 et seq.). Depending on the site and type of use, additional
documentation may be required, such as an evaluation under section 7 of
the Endangered Species Act (16 U.S.C. 1531 et seq.) or section 106 of
the National Historic Preservation Act (16 U.S.C. 470 et seq.). There
are more than 565 national wildlife refuges, and the established
purposes, habitats, public uses, and many other conditions at
individual national wildlife refuges can differ greatly. Local refuge
managers may limit, restrict, or impose conditions on e-bike use where
necessary to manage visitor-use conflicts and ensure visitor safety and
resource protection.
Compatibility determinations are not final, as they require
periodic reevaluation. Except for uses specifically authorized for a
period longer than 10 years (such as rights-of-way), we will reevaluate
compatibility determinations for all existing uses other than wildlife-
dependent recreational uses when conditions under which the use is
permitted change significantly, or if there is significant new
information regarding the effects of the use, or at least every 10
years, whichever is earlier. 603 FW 2.11(H)(2). Moreover, a refuge
manager may always reevaluate the compatibility of a use at any time.
See 50 CFR 25.21(g). When we reevaluate a use for compatibility, we
will take a fresh look at the use and prepare a new compatibility
determination following the procedure outlined in 50 CFR 26.41 and 603
FW 2.
Comment (5): Several commenters stated the rule is inconsistent
with the NWRS mission and the principles of sound fish and wildlife
management. Some commenters stated that the rule does not appear to be
compatible with the purposes of many national wildlife refuges.
Our Response: This rule does not mandate the use of e-bikes in the
NWRS, and the rule itself is not inconsistent with the Refuge System
mission and principles of sound fish and wildlife management. The
Administration Act authorizes the Secretary of the Interior to allow
the use of refuges for any use, including public recreation, if such
use is compatible with the major purposes for which the refuge was
established, among other considerations. 16 U.S.C. 668dd(d). Refuge
managers are responsible for determining whether e-bike use is a
compatible use for each refuge on a case-by-case basis. When completing
compatibility determinations, refuge managers use ``sound professional
judgment'' to determine if a use will materially interfere with or
detract from the fulfillment of the NWRS mission or the purpose(s) of
the refuge. ``Sound professional judgment'' is defined as: ``A finding,
determination, or decision that is consistent with principles of sound
fish and wildlife management and administration, available science and
resources, and adherence to the requirements of the National Wildlife
Refuge System Administration Act of 1966 (16 U.S.C. 668dd-668ee), and
other applicable laws. Included in this finding, determination, or
decision is a refuge manager's field experience and knowledge of the
particular refuge's resources.'' 603 FW 2.6(U). If the refuge manager
determines e-bike use to be an appropriate and compatible use, e-biking
will be managed using principles of sound fish and wildlife management.
For example, wildlife disturbance that is very limited in scope or
duration may not result in interference with fulfilling the NWRS
mission or refuge purposes. However, even unintentional minor
harassment or disturbance during critical biological times, in critical
locations, or repeated over time may exceed the compatibility threshold
(603 FW 2.11(B)). If a refuge manager determines that e-bike use is not
compatible on a particular refuge or in a part of a refuge, then the
refuge manager shall prohibit the use of e-bikes on that refuge/in that
area. Therefore, this rule is consistent with the NWRS mission.
Comment (6): One commenter requested that the rule should clarify
e-bike use on national wildlife refuges in Alaska and change the rule
text to align with the directives in Secretary's Order 3376. The
commenter stated that the FWS should delete 50 CFR 27.31(m) as written
in the proposed rule and add language in 50 CFR 25.12 to define e-bikes
and exempt them from the definitions of off-road and motorized
vehicles. In addition, the commenter stated that the proposed rule
failed to adequately describe how the National Wildlife Refuge System
Administration Act affects the management of e-bikes in Alaska and does
not acknowledge that bicycle use in Alaska is managed according to 43
CFR 36.11.
Our Response: The FWS decided to add the definition of e-bikes to
50 CFR 27.31 because that section specifically deals with use of
vehicles on national wildlife refuges. The FWS does not define motor
vehicles or off-road vehicles in 50 CFR 25.12, and the regulation is
more appropriate in 50 CFR 27.31. The Alaska National Interest Lands
Conservation Act (ANILCA), Public Law 96-487, 94 Stat. 23-71,
authorizes the use of nonmotorized surface transportation methods for
traditional activities and for travel to and from villages and home
sites within the NWRS 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. 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, FWS is not willing to create different rules for e-bikes in
Alaska than it does for e-bikes everywhere else within the NWRS. The
stated purpose of Secretary's Order 3376 is to simplify and unify the
regulations of e-bikes on lands managed by the Department of the
Interior. The FWS shares this goal of a consistent management framework
within the NWRS. Outside of Alaska, these regulations allow the use of
bicycles on designated roads and trails only. 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 refuge manager.
Although the special allowance in Alaska for traditional bicycles is
not limited to roads and trails, the FWS declines to extend this
special allowance for e-bikes in Alaska.
Comment (7): Some commenters stated they opposed the rule because
there are already sufficient e-biking opportunities at national
wildlife refuges and on DOI lands on roads or trails open to motorized
vehicle users. One commenter stated that the proposed rule should
require refuge managers to determine if e-bikes are compatible on roads
and trails that already allow e-bikes and if they are compatible on new
roads and trails.
Our Response: As stated in Secretary's Order 3376, the purpose of
this rulemaking is to facilitate increased access to federally owned
lands by e-bike riders and ensure consistency among Department of the
Interior lands. The final rule directs refuge managers, if they find e-
bike use is an appropriate
[[Page 69227]]
and compatible use, to provide e-bike operators (using the permitted
classes in the manner described) with the same rights, privileges, and
responsibilities as nonmotorized bicycle operators on roads and trails.
FWS policy outlines a robust process for determining appropriate
use and compatibility that refuge managers follow when making refuge-
specific decisions for a public use such as e-biking. E-biking will be
a new use on designated routes of travel and nonmotorized roads and
trails. Therefore, refuge managers must determine if e-bike use is an
appropriate and compatible use on refuges on a case-by-case basis,
regardless of whether other types of bicycles or motor vehicles are
allowed.
Comment (8): We received comments opposing the proposed rule
because of potential impacts to threatened and endangered species. One
commenter stated that the rule violates the Endangered Species Act
(ESA).
Our Response: The rule is administrative and procedural in nature.
The rule itself will have no impact on threatened or endangered
species. Opening a refuge to specific public uses requires compliance
with NEPA. Depending on the site and type of use, additional
documentation may be required, such as an evaluation under section 7 of
the ESA or section 106 of the National Historic Preservation Act.
Future implementation will be subject to the NEPA process on a case-by-
case basis in conjunction with the compatibility-determination process.
A use cannot be found appropriate and compatible if it is not legal,
which includes consideration of the ESA. Applying the appropriate use
and compatibility determination processes in conjunction with the NEPA
process at a site-specific level will allow the refuge manager to
evaluate detailed information on the potential impacts of e-bike use to
wildlife, including threatened or endangered species, for a particular
national wildlife refuge.
Comment (9): We received comments requesting the FWS to limit or
restrict e-bike use in the NWRS based on e-bike class type. Some
commenters stated that only certain e-bike classes should be allowed on
roads and trails where traditional bicycles are allowed.
Our Response: It is not appropriate for the FWS to categorically
limit or restrict certain e-bike classes throughout the NWRS for
several reasons. For example, refuge purpose(s) vary widely between
individual units in the NWRS, which we must take into account when
determining if a proposed use is compatible. We must base compatibility
determinations on a refuge-specific analysis of reasonably anticipated
impacts of a particular use on refuge resources. If a refuge manager
determines that one class of e-bike may cause unacceptable impacts to
natural resources or the visitor experience, they may not allow that
class on certain roads or trails. Furthermore, FWS policy in 603 FW 2
requires that we must manage conflicting uses among users of the refuge
and analyze the costs for administering and managing a public use. This
requires a site-specific evaluation, and NWRS-wide restrictions based
on e-bike class or other factors is not possible. While the final rule
provides definitions of a low-speed e-bike and includes three different
classes, this rule enables the refuge manager to determine whether all
or certain e-bike classes will be allowed or prohibited on all or
certain roads or trails where other types of bicycles are allowed. For
example, if the refuge manager determines that public safety impacts of
one or more e-bike classes is unacceptable, this rule and the
Administration Act allow the manager to limit or restrict certain
classes on a site-specific basis.
Comment (10): Many commenters requested that the FWS should limit
or restrict where e-bikes may be used on a national wildlife refuge.
Many commenters stated that e-bikes should be allowed only where motor
vehicles are allowed. Some commenters stated that e-bikes should be
allowed wherever traditional bicycles are allowed. Some commenters
stated that some trails were not appropriate for e-bike use due to
design or topography issues.
Our Response: The rule has been established to facilitate increased
public access on national wildlife refuges and clarify e-bike use for
visitors. Allowing e-bikes on nonmotorized, natural surface, nonpaved,
multiuse, or other types of roads or trails is subject to the
discretion of the refuge manager, who is required to consider the
anticipated impacts that a new use such as e-bikes would have on refuge
resources and visitor experience. For the same reasons mentioned in our
response to Comment (9), it is not appropriate for the FWS to
categorically limit or restrict where e-bikes are allowed on specific
national wildlife refuges or generally in the NWRS. While the final
rule provides the same rights, privileges, and duties to a person
operating an e-bike as the operator of a nonmotorized bicycle on roads
and trails, the refuge manager can determine if and where e-bike use
will be allowed. If the refuge manager determines that e-bike use will
significantly impact public safety on a certain nonmotorized trail
where other types of bicycles are allowed, this rule and the
Administration Act permit the manager to limit or restrict where all or
certain e-bike classes may be allowed on a site-specific basis.
Comment (11): Some commenters stated that the rule or preamble
should clarify whether a refuge manager needs to determine if e-bike
use is compatible on roads or trails where motor vehicles are allowed.
In addition, some commenters stated that the rule should clarify what
the rights and duties are for e-bike users on roads or trails where
motor vehicles are allowed.
Our Response: This rule does not mandate the use of e-bikes in any
national wildlife refuge or FWS-managed area. The rule stipulates that
a refuge manager must determine if e-biking is compatible on roads or
trails. FWS policy (603 FW 2) also states that the refuge manager will
not initiate or permit a new use or expand, renew, or extend an
existing use of a national wildlife refuge unless the refuge manager
has determined that the use is a compatible use. This includes areas
where motor vehicles or other types of bicycles are already allowed.
The FWS has clarified this issue in the Supplementary Information
section of this final rule.
The rights, privileges, and duties of e-bike users are described in
the rule and in 50 CFR, chapter I, subchapter C. Paragraph (m) in the
rule stipulates that if e-biking is allowed on certain roads and
trails, ``any person using an e-bike where the motor is not used
exclusively to propel the rider for an extended period of time, shall
be afforded all the rights and privileges, and be subject to all of the
duties, of the operators of nonmotorized bicycles on roads and
trails.'' In addition to paragraph (m), e-bike and other bicycle users
will be subject to the policy and provisions regarding vehicles found
in 50 CFR 27.31.
Comment (12): Some commenters stated that the FWS should manage e-
bikes separately from traditional bicycles. Some commenters stated that
we should distinguish e-bikes from electric mountain bicycles and
manage them independently.
Our Response: One purpose of this rule is to create a consistent
management framework for the use of e-bikes in the NWRS. This rule
allows the refuge manager to determine how best to manage public uses
on a case-by-case basis while following established regulations and
policy, as detailed in our response to Comment (4). When determining
compatibility and how to best manage e-bike use, the refuge
[[Page 69228]]
manager may consider e-biking as an individual use, a specific use
program, or part of a group of related uses. However, whenever
practicable, the refuge manager should concurrently consider related
uses or uses that are likely to have similar effects and associated
facilities, structures, and improvements, in order to facilitate
analysis of cumulative effects and to provide opportunity for effective
public review and comment.
Whether a refuge manager considers e-biking and traditional
bicycling as individual uses, a specific use program, or in conjunction
with a group of related uses, the compatibility process enables the
refuge manager to determine the allowance of e-bike use on a site-
specific basis. E-bike use will be determined to be a compatible use if
it does not materially interfere with or detract from the fulfillment
of the NWRS mission and/or the purposes of the refuge. Otherwise, e-
bike use will be determined to be not compatible. 603 FW 2.12(10).
Through this process, the refuge manager can determine specifically if
and how e-bike use will be allowed.
Comment (13): Some commenters expressed concern that refuge
managers could apply the proposed rule inconsistently, which will lead
to public confusion in the NWRS or across the landscape. Some
commenters stated that the rule text should include parameters for e-
bike use at national wildlife refuges that refuge managers can use to
make their decisions.
Our Response: This rule establishes a definition for e-bikes and
creates a management framework with parameters for the use of e-bikes
in the NWRS. There are more than 565 national wildlife refuges, and the
established purposes, habitats, public use, and many other conditions
at individual national wildlife refuges can differ greatly. This rule
and the Administration Act allow local refuge managers to limit,
restrict, or impose conditions on e-bike use where necessary to manage
visitor-use conflicts and ensure visitor safety and resource
protection. While the FWS agrees that this process and subsequent
allowance of e-bike use on a case-by-case basis may be confusing for
visitors, refuge managers must perform these rigorous evaluations in
order to make appropriate public-use decisions at the sites they
manage. We encourage the public to access the official website before
visiting a particular national wildlife refuge to determine if and how
e-bike or other public uses are allowed, and to call the refuge for
specific information not covered on the website.
Comment (14): Some commenters requested that we should clarify,
change, or eliminate proposed rule text requiring users to pedal while
using the motor to propel an e-bike, because that requirement would be
impractical and difficult to enforce.
Our Response: The FWS agrees that the language in the proposed rule
preamble (``that the motor may not be used to propel an e-bike without
the rider also pedaling'') is impractical and does not align with the
proposed rule language in paragraph (m) (``any person using the
motorized features of an e-bike as an assist to human propulsion''). We
agree there are times during typical use when an e-bike operator may
not be pedaling, and the FWS has changed the language in the final rule
accordingly. The language in paragraph (m) of the final rule states
that ``any person using an e-bike in a manner where the motor is not
used exclusively to propel the rider for an extended period of time
shall be afforded all the rights and privileges, and be subject to all
of the duties, of the operators of nonmotorized bicycles on roads and
trails.'' While the new language applies to all e-bike users and
clarifies that riders can alternately pedal and coast without pedaling
during operation, this change affects Class 2 e-bike operators in
particular because Class 2 e-bikes have a throttle in addition to
pedals, which makes it easier for Class 2 e-bike operators to use the
motor exclusively for extended periods of time.
FWS law enforcement officers will use observation, situational
analysis, and professional judgment to determine if a violation of the
regulations related to the ``use of an e-bike for an extended period of
time using the motor exclusively'' occurs. The change to the final rule
enables law enforcement officers to enforce the limitations on how
Class 2 e-bikes may be used in a reasonable manner that ensures
protection of public health, safety, resources, and uses of the public
lands.
Comment (15): We received comments requesting an addition to the
rule text requiring that e-bikes be equipped with a seat or saddle to
separate them from other types of electric mobility devices.
Our Response: The definition provided in the rule, including the
requirement for fully operable pedals, motor type, motor power
specifications, and permitted number of wheels, is sufficient to allow
use of e-bikes and does not apply to other electric mobility devices
and other electric vehicles such as scooters or skateboards. No changes
were made to the definitions of e-bikes as the result of this comment.
Comment (16): We received comments that the number of wheels on an
e-bike should determine if an e-bike is permitted on certain trails.
One commenter stated that the vehicle axle-width should determine trail
access and if the vehicle has less than three wheels, it should qualify
for single-track access. Another commenter recommended establishing a
threshold of 15 inches as the bike's effective combined tread width to
prevent wide three-wheeled e-bike users to access single-track trails.
Some commenters stated that trail width should determine which type of
e-bike use is allowed.
Our Response: The rule and the Administration Act require that
refuge managers evaluate and determine a proposed use, such as e-
biking, at a site-specific level. For example, if a single-track
bicycle trail is too narrow to accommodate the width of three-wheeled
e-bikes without causing unacceptable erosion or other impacts to
natural resources, the refuge manager must prohibit those types of e-
bikes on that trail. It is not appropriate for the FWS to categorically
allow or prohibit the types or classes of e-bikes, or the types of
roads or trails, for e-bike use in the NWRS because there are more than
565 national wildlife refuges, and the established purposes, habitats,
public uses, topography, infrastructure, and many other conditions at
individual national wildlife refuges can differ greatly. This rule and
the Administration Act allow local refuge managers to limit, restrict,
or impose conditions on e-bike use where necessary to manage visitor-
use conflicts and ensure visitor safety and resource protection.
Comment (17): Many commenters stated concern about future high-
speed e-bike use on national wildlife refuges, or concern about how the
FWS will manage or enforce the rule regarding future technologies,
design standards, features, and capabilities for Class 1, Class 2, and
Class 3, and other types or classes of e-bikes.
Our Response: The FWS acknowledges that advances in technology and
future e-bike specifications may result in some e-bike models, types,
classes, or other specifications falling outside the definition of e-
bikes established in the final rule. As one commenter noted, e-bike
technology is in the early stages of development. The FWS is unable to
predict the performance capabilities for e-bikes in the future and
appreciates that the technology used in e-bikes is likely to continue
to evolve at a rapid pace. However, the FWS concludes that the
definition of e-bikes and three
[[Page 69229]]
classes in the final rule, in combination with a refuge manager's
ability to determine if e-bikes are compatible, are sufficient to
manage national wildlife refuges appropriately in the future.
Comment (18): Some commenters stated that the economic consequences
of the displacement of traditional trail users must be addressed in the
final rule. Some commenters stated that the proposed rule lacks a
``risk and needs assessment'' and that lack must be addressed in the
final rule.
Our Response: The FWS prepared an economic and threshold analysis
for the proposed rule, which concluded that the rule itself would not
adversely affect, in a material way, the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities. However, the economic and threshold analysis and proposed
rule discussed the potential for an increase in conflicts between trail
users following site-specific implementation of the rule, as well as an
increase in the risk of injury or need for rescue. Since we know
current traditional bicycling comprises only two percent of the average
annual recreational visits, we estimate that increasing opportunities
for e-bikes would most likely correspond with a small percentage of
visits and a similar small percentage of displacement for traditional
trail users. Given differences in current use across sites, potential
e-bike use, and visitor preferences, it is not feasible to estimate the
net effect of e-bike use on other trail users across all FWS roads and
trails at this time. This rule and the Administration Act allow local
refuge managers to limit, restrict, or impose conditions on e-bike use
where necessary to manage visitor-use conflicts and ensure visitor
safety and resource protection. This will allow the FWS to evaluate the
effects of e-bike use at a site-specific level, where more detailed
information on potential effects is available.
Comment (19): We received comments stating that e-bikes are
motorized vehicles and should not be allowed in, or adjacent to,
designated wilderness areas in the NWRS. Some commenters stated that
the rule text should include that e-bikes are prohibited in designated
wilderness areas.
Our Response: As with traditional bicycles, e-bikes are not allowed
in designated wilderness areas and may not be appropriate for back-
country trails. We do not agree to change the rule text as the
Wilderness Act (16 U.S.C. 1133(c)) and National Wildlife Refuge System
Wilderness Stewardship Policy (610 FW 1) already prohibit public use of
motor vehicles, motorized equipment, and mechanical transport in
wilderness areas designated by Congress. When a refuge manager makes a
compatibility determination, he/she must consider applicable laws,
including those related to designated wilderness areas. Therefore,
bicycles and e-bikes are already prohibited in all designated
wilderness areas on national wildlife refuges, and a refuge manager
cannot deem e-bike use as an appropriate use in designated wilderness
areas.
Comment (20): Several commenters questioned how the FWS'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. One comment stated that the final rule text
should state that e-bikes are not allowed on National Scenic Trails
that exist within units of the NWRS per the provisions of the National
Trails System Act. One comment stated that e-bikes should be prohibited
on the Appalachian Trail where other bicycles are prohibited. One
comment stated that FWS should prohibit e-bikes on trails funded by the
Recreational Trails Program, which are for nonmotorized use only.
Our Response: The FWS's definition of ``electric bicycles'' applies
to management of electric bicycles within the NWRS 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 NWRS. For example, if a trail within the
NWRS is constructed or maintained using funding sources which may
prohibit or be inconsistent with e-bike use, such as the Recreational
Trails Program and other Federal funding sources authorized by Title
23, Chapter 2 of the United States Code, then the refuge manager 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.
Similarly, the FWS and refuge managers will manage the National Scenic
Trails, including the Appalachian National Scenic Trail, that exist
within the NWRS in accordance with the National Trails System Act.
Comment (21): Several commenters stated that the FWS must adhere to
all existing State and Federal conservation easements and resource-
management plans when determining if e-bike use should be allowed.
Our Response: E-biking implementation will be consistent with
governing laws and regulations, including existing State and Federal
conservation easements and other existing legal agreements. While
easements do not usually include public use, refuge managers will have
to take easements with public use, if any, into account when planning
and making compatibility determinations. Under the Administration Act
and FWS policy (602 FW 3), the NWRS manages national wildlife refuges
according to an approved Comprehensive Conservation Plan (CCP), which
describes the desired future conditions of the refuge and provides
long-range guidance and management direction to achieve refuge
purposes, including management guidance and direction on public uses.
Any changes to public use on refuges need to be consistent with the
refuge's CCP.
Comment (22): We received a comment stating that the rule should
require that e-bikes operated within the NWRS be certified by an
accredited, independent third-party certification body that examines
electrical systems to achieve electrical and fire safety certification.
Several commenters stated that e-bike batteries could overheat, burn,
and cause fire danger.
Our Response: The U.S. Consumer Products Safety Commission (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 CPSC. Product certification and safety
requirements are not established or mandated by the FWS. A refuge
manager may make a determination at any time to manage an existing
public use with regard to public safety, resource protection, and
visitor protections.
Comment (23): Some commenters stated that the FWS must maintain a
sign standard and post areas, trails, and roads open to e-bikes with
signs that clearly indicate allowed uses and types or classes of e-
bikes.
Our Response: The FWS will work with the other land-management
agencies within the Department of the Interior to design and post
signs, to the extent possible. The goal of this effort is to create a
consistent approach for signs when possible indicating where e-bikes
are allowed on national wildlife refuges and other public lands managed
by the Department of the Interior. As with all existing and new public
uses allowed on a national wildlife refuge, refuge managers have the
discretion to establish any safety, communication, outreach, and
education measures deemed necessary to ensure that e-bikes
[[Page 69230]]
are used in a manner that maintains a safe and enjoyable experience for
all visitors.
Comment (24): Some commenters stated that the FWS has not
sufficiently analyzed the economic implications of the rule. Other
commenters stated that the FWS does not have the financial resources or
employees to adequately manage e-bike use. Commenters stated that the
proposed rule and e-bike use on nonmotorized trails would result in
increased operations costs associated with: Trail maintenance; trail
monitoring and repairs; cultural resources damage; additional search-
and-rescue operations; sign acquisition and installation; personal
injury and liability claims; law-enforcement efforts; fish, wildlife,
and plant management and administration; and other management and
monitoring activities.
Our Response: As with many public uses in the NWRS, there are
financial and staffing costs to operate public-use programs. This rule
does not mandate the use of e-bikes anywhere in the NWRS. To help avoid
situations where refuge managers do not have the resources to properly
manage e-bikes, this rule and the Administration Act give refuge
managers the discretion to allow e-bike use where it is an appropriate
and compatible use (see our response to Comment (4)). When determining
if a new or existing public use is compatible, FWS regulations require
refuge managers to evaluate reasonably anticipated impacts of a
particular use on refuge resources, and if ``adequate resources
(including financial, personnel, facilities, and other infrastructure)
exist or can be provided by the FWS or a partner to properly develop,
operate, and maintain the use in a way that will not materially
interfere with or detract from fulfillment of the refuge purpose(s) and
the NWRS mission.'' 603 FW 2.12(A)(7). This process enables the refuge
manager to determine the allowance of e-bike use on a site-specific
basis--the refuge manager may determine that it is a compatible use, or
that it is not a compatible use. The refuge manager should not allow e-
bikes if there would be insufficient funds or personnel to properly
manage this use. The refuge manager will consider potential user
conflicts and other public health and safety concerns in accordance
with NEPA and other applicable laws as part of a site-specific
analysis. Liability, if any, in the event that accidents or injuries
were to occur as a result of or in conjunction with e-bike use would be
determined in accordance with applicable laws, which may include the
Federal Tort Claims Act.
Comment (25): Some commenters stated the rule disregards research
demonstrating adverse impacts from e-bikes and has not analyzed e-bike
compatibility.
Our Response: This rule does not mandate e-bike use throughout the
NWRS. This rule and the Administration Act give refuge managers the
discretion to allow e-biking if it is found to be an appropriate and
compatible use. The FWS 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. Potential impacts
for a proposed use are evaluated on a case-by-case basis and not as
part of this rulemaking process.
Refuge managers base compatibility determinations on a refuge-
specific analysis of reasonably anticipated impacts of e-biking on
refuge resources. The refuge manager should base the analysis on
readily available information, including local experience and
understanding of the refuge and other information provided by the
State, Tribes, proponent(s) or opponent(s) of e-biking, or through the
compatibility-determination public review and comment period. 603 FW
2.11(E). The FWS received the studies and reports that were submitted
as part of the comments on the proposed rule. All relevant studies and
reports will be considered by the refuge manager in the compatibility-
determination process.
Comment (26): Some commenters asserted that the rule cannot be
categorically excluded under 43 CFR 46.210(i) because it is not ``of an
administrative, financial, legal, technical, or procedural nature.''
Our Response: This rule is administrative and procedural in nature
and satisfies the first prong of the categorical exclusion at 43 CFR
46.210(i). The rule is not self-executing and does not authorize the
use of any e-bikes. The rule merely establishes a definition of e-bikes
and creates a process for refuge managers to consider whether to
authorize e-bike use on public lands. Under that process, refuge
managers will evaluate whether to allow for e-bike use on roads and
trails, in consideration of specific criteria. The rule maintains the
public's ability to participate in any such FWS decision-making process
while preserving refuge managers' discretion to approve or deny e-bike
use on roads and trails--and to impose limitations or restrictions on
authorized e-bike use to minimize impacts on resources and conflicts
with other recreational uses. Because the future decision-making
processes through which refuge managers could allow e-bikes must comply
with NEPA and other laws providing for public participation, the public
will continue to have an opportunity to provide input. Moreover,
because the rule provides refuge managers with complete discretion to
determine whether e-bikes--or only certain classes of e-bikes--are
appropriate on a specific road or trail, it preserves the FWS's ability
to minimize the impacts that e-bikes could have on resources or other
users of the public lands. The rule, because it is administrative and
procedural in nature and would not result in any on-the-ground changes
or other environmental effects, therefore satisfies the first prong of
the categorical exclusion at 43 CFR 46.210(i).
Comment (27): Some commenters requested an environmental analysis,
environmental impact statement (EIS), or programmatic EIS to analyze
the rulemaking and e-bike impacts. These commenters stated that the
rule cannot be categorically excluded under 43 CFR 46.210(i) because
the environmental effects are not ``too broad, speculative, or
conjectural to lend themselves to meaningful analysis.''
Our Response: This rule is administrative and procedural in nature
and satisfies the second prong of the categorical exclusion at 43 CFR
46.210(i). There are more than 565 national wildlife refuges, and the
established purposes, wildlife and plants, habitats, public uses,
number of visitors, and many other conditions at individual national
wildlife refuges can differ greatly, making nationwide NEPA analysis
for the rule infeasible. This rule and the Administration Act give
refuge managers the discretion to allow e-bike use where it is an
appropriate and compatible use. We will address potential environmental
impacts and social issues at the site-specific level. The FWS 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. The environmental effects will vary from
refuge to refuge, and, as such, are too broad, speculative, or
conjectural at this stage to lend themselves to meaningful analysis.
The FWS concludes that site-specific NEPA analysis is required in order
to obtain meaningful analysis regarding environmental effects.
Comment (28): Some commenters stated that the FWS must analyze the
impacts the rule would have on the landscape, natural resources, and
other visitors. One commenter stated that the FWS must analyze such
impacts before
[[Page 69231]]
opening up all nonmotorized trails to motors.
Our Response: This rule does not mandate the use of e-bikes at any
national wildlife refuge. The rule is administrative and procedural in
nature and the rule itself will have no impacts on safety, the visitor
experience, or refuge natural and cultural resources. The rule defines
permitted types of e-bikes and establishes a general framework that can
be used by a refuge manager to allow e-bikes on designated roads and
trails. E-bike implementation decisions for each national wildlife
refuge must be based on local conditions, potential impacts, resource
data, and relevant studies. The rule and the Administration Act enable
the refuge manager to determine if e-biking is an appropriate and
compatible use on a site-specific basis, and the rule does not mandate
opening all nonmotorized trails to motors.
Applying the NEPA process at a site-specific level allows the FWS
to evaluate the potential effects of e-bike use for a particular
national wildlife refuge and to consult with the appropriate Federal,
State, and local resources agencies regarding potential resource
impacts. For example, regarding potential wildlife impacts, it would be
shortsighted for a rule of this nature to prescribe disturbance
thresholds for wildlife at all national wildlife refuges, as local
conditions vary significantly at the more than 565 units in the NWRS
throughout the country. Analyzing e-bike use on a case-by-case basis
allows for site and specific species information concerning disturbance
thresholds to be incorporated into that decision process. Furthermore,
as mentioned in our response to Comment (4), the refuge manager can
reevaluate the compatibility of a use at any time if conditions change
or new information becomes available.
Comment (29): One commenter stated that impacts must be analyzed in
the rulemaking process and the rule cannot be categorically excluded
under 43 CFR 46.210(i). Some commenters stated that extraordinary
circumstances under 43 CFR 46.215 are applicable to this rulemaking,
making it ineligible for a categorical exclusion.
Our Response: As noted in the NEPA section in the preamble to this
rule, we determined that this rule falls under the class of actions
listed in 43 CFR 46.210(i). A refuge manager will determine if e-biking
is a compatible use before allowing it on a national wildlife refuge.
This determination must be made on a case-by-case basis. E-bike use on
a refuge will not be allowed, per the rule, without a compatible-use
determination and appropriate NEPA analysis specific to the particular
refuge. Potential impacts are not ripe for analysis until or unless the
use of e-bikes is proposed on one of the more than 565 national
wildlife refuges where the specific context is known and the intensity
of impacts can be evaluated. The FWS 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, as outlined
individually below. Commenters cited the following extraordinary
circumstances under 43 CFR 46.215:
(a) Significant impacts on public health and safety.
Comment (29)(a): Commenters state that they provide documentation
of significant safety impacts of e-bikes within their comment,
including citations to numerous supporting studies.
Our Response: The FWS acknowledges there are potential safety
concerns with e-bike use or any proposed use. The refuge manager will
analyze public health and safety impacts on a site-specific basis as
required when determining compatibility for e-bike use. Potential
safety issues regarding e-bike use on specific roads and trails will be
considered by the refuge manager when making the determination as to
whether e-bikes will be allowed on those trails. In analyzing the
potential impacts of e-biking, refuge managers will use and cite
available sources of information from available research and studies.
Therefore, public health and safety will not be affected by the rule.
(b) Significant impacts on natural resources and unique geographic
characteristics, refuge and recreation lands, migratory birds, and
other resources.
Comment (29)(b): Commenters state that the rule will have
significant impacts on national wildlife refuge resources cited in 43
CFR 46.215(b).
Our Response: The rule does not change current allowed refuge uses
and therefore has no significant impacts to vulnerable categories
identified in 43 CFR 46.215(b). If e-bike use is proposed in one of
these vulnerable categories on a national wildlife refuge, then the
significance of impacts would be a factor in determining the level of
NEPA analysis required for the proposed use.
(c) Highly controversial environmental effects or unresolved
conflicts concerning alternative uses of available resources.
Comment (29)(c): Commenters stated that the comments submitted by
key stakeholders who expressed passionate, substantial, and varied
viewpoints in support of or in opposition to the rule fit the
definition of highly controversial in 43 CFR 46.215(c).
Our Response: The language in 43 CFR 46.215(c) pertains to whether
the environmental effects are highly controversial (i.e., there is
significant scientific disagreement about whether a specific action
will impact the environment, and how), as opposed to whether a general
topic, such as e-bike use on public lands, is controversial. Paragraph
(c) does not apply to this rule because the rule does not have any
direct impacts but may apply to future site-specific determinations a
refuge manager may make when determining if e-bike use is compatible on
roads or trails.
(d) Highly uncertain and potentially significant environmental
effects or involve unique and unknown environmental risk.
Comment (29)(d): Commenters state that the categorical exclusion
should not apply due to unique risks that e-bikes present, as a result
of fast speeds and as the first and only motorized use in back-country
areas.
Our Response: The rule does not determine where e-bikes will be
used. The potential impacts of e-bike use are dependent on where such
use is proposed. Any environmental effects associated with future
decisions will be subject to the NEPA process, and potential impacts
will be analyzed at the refuge-specific level. In response to speed
concerns for e-bike use, a refuge manager may ``describe any
stipulations (terms or conditions) necessary to ensure compatibility.''
603 FW 2.11. Stipulations may include limiting speed or locations so
that the use could be safely conducted.
(e) Establish a precedent for future action or represent a decision
in principle about future actions with potentially significant
environmental effects.
Comment (29)(e): Commenters stated that the rule establishes a
precedent for future actions and opens the floodgates for numerous
similar technological impacts.
Our Response: The rule is necessary in order to allow effective
management of this evolving technology and address the rapidly
expanding use of e-bikes on public land. As discussed in our response
to Comment (15), the FWS concludes that the definition provided in the
rule, including the requirement for fully operable pedals, motor type,
motor power specifications, and permitted number of wheels, is
sufficient to allow use of e-bikes and does not apply to similar
technological
[[Page 69232]]
impacts, other electric mobility devices, and other electric vehicles
or uses such as scooters or skateboards.
(f) Direct relationship to other actions with individually
insignificant but cumulatively significant environmental effects.
Comment (29)(f): Commenters state that cumulative impacts of
hundreds of units approving e-bikes will be significant when considered
nationwide.
Our Response: The categorical exclusion for the rule change makes
no assertion as to the level of NEPA analysis required for any proposed
use area for e-bikes. A proposed use area for e-bikes is independent of
any other proposed use area. The level of NEPA analysis required would
be determined by the nature of the proposed action.
(g) Significant impacts on properties listed, or eligible for
listing, on the National Register of Historic Places.
Comment (29)(g): Commenters stated that many FWS units contain
current or potentially listed historic places and some were established
specifically to protect such places, so in light of their special
national importance, the rule for system-wide approval is improper.
Our Response: The rule does not change current uses; therefore, the
rule change does not impact historic properties. If e-bike use is
proposed on roads or trails, then potential impacts on historic
properties would be a factor in determining the level of NEPA analysis
required for the proposed use.
(h) Significant impacts on species listed, or proposed to be
listed, on the List of Endangered or Threatened Species, or have
significant impacts on designated critical habitat.
Comment (29)(h): The proposed rule violates the Endangered Species
Act.
Our Response: The rule is administrative and procedural in nature.
The rule itself will have no impact on threatened or endangered
species. We address this comment specifically in our response to
Comment (8).
Comment (30): Commenters stated that a categorical exclusion cannot
be applied to justify post-hoc decision-making since Secretary's Order
3376 directed that ``e-bikes shall be allowed where other types of
bicycles are allowed.'' The commenters stated that to apply a
categorical exclusion to justify post-hoc decision-making is arbitrary
and capricious and directs predetermined outcomes.
Our Response: The rule does not mandate that e-bike use is allowed
in the NWRS, and the FWS is not applying a categorical exclusion to
allow predetermined outcomes. The rule and the Administration Act give
refuge managers the discretion to allow e-bike use if and where it is
an appropriate and compatible use (see our response to Comment (4)).
Secretary's Order 3376 and the rule do not require refuge managers to
always allow e-bike use. Since the NEPA determinations must be made at
a site-specific level, the invocation of the categorical exclusion is
contemporaneous with the decision-making, not post hoc.
Comment (31): Many commenters expressed concern about enforcement
of the rule or potential actions and impacts that could occur if e-bike
users are allowed where traditional bicycles are allowed, especially on
nonmotorized trails. Some commenters stated that the rule may
facilitate illegal trail creation or trail access by e-bike users or
other vehicle users, and that such illegal use would be difficult to
enforce. Some commenters stated that e-bikes could be modified to
exceed allowable horsepower and speed limits, which would be difficult
to detect and enforce. Commenters also stated that it would be
difficult to distinguish some e-bikes from traditional bicycles, or
between classes of e-bikes defined in the final rule. Commenters
emphasized that these enforcement challenges would be exacerbated by
potential violations occurring at high speeds and in remote locations.
Our Response: The FWS acknowledges that implementation of the rule
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 public lands. With their experience
enforcing other regulations that condition how the public recreates on
public lands, law enforcement officers have the expertise necessary to
properly exercise their discretion to enforce the rule that ensures
protection of public health, safety, and resources and users of the
public lands. Moreover, the enforcement challenges posed by this
requirement are warranted given the requirement's potential benefits to
affected public land resources and users. For example, determining when
a potential violation of the requirement that Class 2 e-bikes be used
in a manner where the motor is not used exclusively to propel the rider
for an extended period of time will involve the use of specialized
skill, training, and judgment by law enforcement officers. With respect
to differentiating among traditional bicycles and e-bikes, and among
classes of e-bikes, the FWS notes that most 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 FWS
expects that its law enforcement officers will involve the use of their
specialized skills, 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. FWS law
enforcement officers are tasked on a daily basis with enforcing speed
limits and equipment and operational requirements for the use of motor
vehicles used within the NWRS.
Comment (32): We received many comments opposing the proposed rule
due to concerns about the potential impacts e-bikes would have on
natural resources, safety, 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 into more remote areas.
Many commenters noted the potential for disturbing wildlife, plants,
and their habitats, watersheds, ecosystems, 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 if
riders travel farther, 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 narrow and 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.
Our Response: This rule does not mandate the use of e-bikes in the
NWRS. The rule is administrative and procedural in nature and the rule
itself will have no impacts on safety, the visitor experience, or
national wildlife refuge natural and cultural resources. This rule
establishes a general framework that can be used by refuge managers if
they allow e-bikes on certain roads and trails where traditional
bicycles are already allowed. As discussed in the response to Comment
(4) above, the allowance of e-bikes on roads or trails is subject to
the discretion of the refuge manager who must complete a rigorous
compatibility-determination process to consider the impacts that e-bike
use would have,
[[Page 69233]]
including impacts on refuge resources and visitor experience. Refuge
managers will allow only uses that they determine to be appropriate and
compatible to the purpose for which the refuge was established and can
be sustained without causing unacceptable impacts to public safety,
natural and cultural resources, and other public uses. These required
evaluations and determinations are not modified or changed by this
rule.
E-bike implementation decisions for each national wildlife refuge
must be based on local conditions, potential impacts, resource data,
and relevant studies. Applying the NEPA process at a site-specific
level will allow the FWS to evaluate the potential effects of e-bike
use for a particular national wildlife refuge and to consult with the
appropriate Federal, State, and local resource agencies regarding
potential resource impacts. E-biking or any proposed use could impact
visitors and resources in similar or different ways at the more than
565 units in the NWRS. Analyzing and describing the reasonably
anticipated impacts of e-bike use on a case-by-case basis is an
important factor that we consider when allowing or not allowing a
refuge use.
Comment (33): One commenter stated that the rule would be
inconsistent with the direction in Executive Order 11644, ``Use of Off-
Road Vehicles on the Public Lands,'' (amended by Executive Order
11989), noting that there is no exception for low-power vehicles.
Our Response: Executive Order 11644 was issued by President Nixon
in 1972 and amended by President Carter in 1977 through Executive Order
11989. It establishes policies and procedures for managing the use of
``off-road vehicles'' 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 defines ``off-road vehicles'' as any
motorized vehicle designed for or capable of cross-country travel on or
immediately over land, water, sand, snow, ice, marsh, swampland, or
other natural terrain. The FWS concludes that e-bikes should not be
regulated as ``off-road vehicles'' under the Executive Order for the
reasons discussed below.
The Class 1, 2, and 3 e-bikes that are the subject of this rule
differ significantly in their engineering from the types of motorized
vehicles that are expressly referenced in Executive Order 11644. Almost
all of the off-road vehicles listed in the Executive Order:
``motorcycles, minibikes, trial bikes, snowmobiles, dune-buggies, [and]
all-terrain vehicles'' use internal combustion engines for power rather
than an electric motor, and none rely on the rider pedaling the vehicle
to provide most of the power to the vehicle as this rule requires.
Moreover, the off- road vehicles to which the Executive Order was
clearly intended to apply are uniformly larger, louder, and capable of
achieving greater speeds than Class 1, 2, and 3 e-bikes. For these
reasons, e-bikes are inherently different than the types of ``off-road
vehicles'' listed under the Executive Order. There is no indication in
any materials contemporaneous to its issuance that suggest that
Executive Order 11644 was intended to apply to e-bikes. That is not
surprising, given that the technological advances needed to popularize
them, such as torque motors and power controls, were not developed
until the mid-1990s.
As a result of those engineering differences, e-bikes tend to have
impacts that are like traditional, nonmotorized bicycles and unlike
those that result from the larger, more powerful off-road vehicles that
Executive Order 11644 was intended to mitigate. These differences will
inherently limit the resource impacts and user conflicts that the
minimization criteria in Executive Order 11644 was designed to address.
For example, the off-road vehicles referenced in Executive Order 11644
are powered by internal combustion engines that generate loud noises
(i.e., anywhere from 90-110 decibels, depending on the type of vehicle)
that can carry over long distances. By comparison, the noise associated
with e-bikes includes the sound of their tires rolling over a road or
trail and, at most, a low steady whine that may be emitted when the
electric motor is engaged. While the effects of noise on wildlife
differ across taxonomic groups and reactions to sound are different for
every visitor, the impacts on quietude, wildlife behavioral patterns,
and other recreational uses caused by e-bikes are expected to be
similar to those caused by traditional, nonmotorized bicycles and
substantially less than those resulting from typical off-road vehicle
use. 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.
A review of available models shows that Class 1, 2, and 3 e-bikes
are generally much lighter than even the lightest off-road vehicle
listed in the Executive Order. A typical e-bike weighs approximately
45-50 pounds, which is only slightly heavier than a typical
traditional, nonmotorized bicycle's weight of 30-35 pounds. In
comparison, minibikes, which are the lightest off-road vehicle listed
in Executive Order 11644, weigh an average of 115-130 pounds, typical
trial bikes can weigh 145 pounds, and motorcycles can weigh
approximately 300-400 pounds. The significantly lower weight of e-
bikes, combined with the lower levels of torque that they are capable
of generating and lower speeds that they can reach, limits their
potential to damage soil through compaction and erosion. Finally,
managing Class 1, 2, and 3 e-bikes similarly to traditional,
nonmotorized bicycles and distinguishing them from other motor vehicles
is consistent with how other Federal agencies regulate e-bikes. Defined
by Congress in the Consumer Product Safety Act (Pub. L. 107-319, Dec.
4, 2002; codified at 15 U.S.C. 2085) as low-speed electric bicycles, e-
bikes are not considered to be motor vehicles under 49 U.S.C. 30102
and, therefore, are not subject to regulation by the National Highway
Traffic Safety Administration. Instead, e-bikes are regulated similar
to nonmotorized bicycles and considered consumer products regulated by
the Consumer Product Safety Commission.
Changes From the Proposed Rule
We received comments that asked us to clarify or eliminate the
requirement in the proposed rule that a person must be using the
motorized features of an e-bike as an assist to human propulsion. Many
commenters stated that this requirement was impractical and
unenforceable. In response, we are revising the proposed rule as
follows: (m) If the refuge manager determines that electric bicycle
(also known as e-bike) use is a compatible use on roads or trails, any
person using an e-bike in a manner where the motor is not used
exclusively to propel the rider for an extended period of time, shall
be afforded all the rights and privileges, and be subject to all of the
duties, of the operators of nonmotorized bicycles on roads and trails.
We agree there are times during a ride when an e-bike user may not
be pedaling, just as there are times when a traditional bicycle user
may not be pedaling. We agree that the proposed rule language could
cause difficulty for a person to operate an e-bike in a similar manner
to traditional bicycles, and that the proposed rule would be difficult
to enforce.
The FWS changed the language in the final rule in paragraph (m) to
better reflect its intent that e-bike motors, via throttle-only
operation, may be used for limited durations, but should not be used to
propel the rider for extended periods of time. The new language
clarifies for users and law enforcement officers that e-bikes can be
operated in
[[Page 69234]]
a similar manner as traditional bicycles. Law enforcement officers will
use observation, situational analysis, and professional judgment to
determine if a potential violation of the regulation occurs.
Compliance With 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 (OMB)
will review all significant rules. The OIRA has determined that this
rule is not a significant regulatory action as defined by Executive
Order 12866.
Executive Order (E.O.) 13563 reaffirms the principles of E.O. 12866
while calling for improvements in the nation's regulatory system to
promote predictability, to reduce uncertainty, and to use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. The Executive Order directs agencies to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public where these approaches are relevant, feasible,
and consistent with regulatory objectives. E.O. 13563 emphasizes
further that regulations must be based on the best available science
and that the rulemaking process must allow for public participation and
an open exchange of ideas. We have developed this rule in a manner
consistent with these requirements.
Executive Order 13771--Reducing Regulation and Controlling Regulatory
Costs
This rule is an Executive Order (E.O.) 13771 (82 FR 9339, February
3, 2017) deregulatory action. This rule addresses regulatory
uncertainty regarding the use of e-bikes in the NWRS by defining e-
bikes and clarifying that any person using an e-bike shall be afforded
all of the rights and privileges, and be subject to all of the duties,
of the operators of nonmotorized bicycles on roads and trails, when
such use is deemed appropriate and compatible.
This rule is not self-executing. The rule, in and of itself, does
not change existing allowances for e-bike usage on national wildlife
refuges. It neither allows e-bikes on roads and trails that are
currently closed to off-road vehicles but open to mechanized,
nonmotorized bicycle use, nor affects the use of e-bikes and other
motorized vehicles on roads and trails where off-road vehicle use is
currently allowed.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act [SBREFA] of 1996) (5
U.S.C. 601 et seq.), whenever a Federal agency is required to publish a
notice of rulemaking for any proposed or final rule, it must prepare
and make available for public comment a regulatory flexibility analysis
that describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies that the rule will not have a significant economic
impact on a substantial number of small entities. Thus, for a
regulatory flexibility analysis to be required, impacts must exceed a
threshold for ``significant impact'' and a threshold for a
``substantial number of small entities.'' See 5 U.S.C. 605(b). SBREFA
amended the Regulatory Flexibility Act to require Federal agencies to
provide a statement of the factual basis for certifying that a rule
will not have a significant economic impact on a substantial number of
small entities.
The rule is administrative in nature and will not, in and of
itself, result in any foreseeable impacts because this rule only
establishes a general framework that can be used by refuge managers if
they allow e-bikes on certain roads and trails where traditional
bicycles are already allowed. However, for transparency, we discuss
current traditional bicycle use on refuges and potential changes in
recreation use if refuge managers determine that e-bikes are
appropriate and compatible to the purpose for which the refuge was
established.
In 2019, there were approximately 1.4 million bicycle visits on 197
refuges (34.6 percent of all refuges). Of these 197 refuges, 136
refuges had fewer than 1,000 bicycle visits. These visits comprised
approximately 2 percent (=2.34%) of total recreational visits for the
Refuge System. Under this rule, recreational activities on refuges
could be expanded by allowing e-bikes where determined appropriate and
compatible by the refuge manager. As a result, recreational visitation
at these refuges may change. The extent of any increase would likely be
dependent upon factors such as whether current bicyclists change from
using traditional bicycles to e-bikes, whether walking/hiking visits
change to e-bike visits, or whether other recreational visitors
decrease visits due to increased conflicts. The impact of these
potential factors is uncertain. However, we estimate that increasing
opportunities for e-bikes would correspond with less than 2 percent of
the average recreational visits due to the small percentage of current
bicycling visits.
Small businesses within the retail trade industry (such as hotels,
gas stations, sporting equipment stores, and similar businesses) may be
affected by some increased or decreased station visitation due to this
rule. A large percentage of these retail trade establishments in the
local communities near national wildlife refuges and national fish
hatcheries qualify as small businesses. We expect that the incremental
recreational changes will be scattered, and so we do not expect that
the rule would have a significant economic effect on a substantial
number of small entities in any region or nationally.
Therefore, we certify that this rule will not have a significant
economic effect on a substantial number of small entities as defined
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). A
regulatory flexibility analysis is not required. Accordingly, a small
entity compliance guide is not required.
Small Business Regulatory Enforcement Fairness Act (SBREFA)
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
a. Will 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. Will 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 will not impose an unfunded mandate on State, local, or
Tribal governments or the private sector of more than $100 million per
year. The rule will not have a significant or unique effect on State,
local, or Tribal governments or the private sector. 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)
In accordance with Executive Order 12630, this rule does not have
significant takings implications. This rule would affect only visitors
at
[[Page 69235]]
national wildlife refuges, which are not private property.
Federalism (Executive Order 13132)
Under the criteria in section 1 of Executive Order 13132, this rule
does not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement. This rule will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.
The FWS will coordinate with State and local governments, as
appropriate, when making future planning and implementation level
decisions under this rule regarding the use of e-bikes on public lands.
A federalism summary impact statement is not required.
Civil Justice Reform (Executive Order 12988)
In accordance with E.O. 12988, the Department of the Interior has
determined that this rule will not unduly burden the judicial system
and that it meets the requirements of sections 3(a) and 3(b)(2) of the
Order. Specifically, this rule:
(a) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
Paperwork Reduction Act
This rule does not contain information collection requirements, and
a submission to OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.) is not required. We 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
We are required under the National Environmental Policy Act (NEPA;
42 U.S.C. 4321 et seq.) to assess the impact of any Federal action
significantly affecting the quality of the human environment, health,
and safety. 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. We have determined that this rule
falls under the class of actions covered by the following Department of
the Interior categorical exclusion: ``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.'' 43 CFR 46.210(i)).
Under the rule, a refuge manager must first make a determination
that e-bike use is a compatible use before allowing e-bike use on a
national wildlife refuge. This determination must be made on a case-by-
case basis. E-bike use on a refuge will not be allowed under the rule
without a compatible-use determination and appropriate NEPA compliance
specific to the action with respect to a particular refuge. Potential
impacts are not ripe for analysis until or unless the use of e-bikes is
proposed on a specific national wildlife refuge where the context is
known and the intensity of impacts can be evaluated. The FWS 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.
Government-to-Government Relationship With Tribes
We have evaluated this rule under the Department's consultation
policy and under the criteria in Executive Order 13175 and have
determined that it has no substantial direct effects on federally
recognized Indian Tribes and that consultation under the Department's
Tribal consultation policy is not required. This rulemaking is an
administrative change that directs the FWS to address e-bike use in
future compatibility determinations. The rule does not change existing
allowances for e-bike use on FWS-administered public lands. The
rulemaking does not commit the agency to undertake any specific action,
and the FWS retains the discretion to authorize e-bike use where
appropriate. We are committed to consulting with federally recognized
Indian Tribes when appropriate on a site-specific basis as potential e-
bike use is considered by the FWS.
List of Subjects in 50 CFR Part 27
Wildlife refuges.
Regulation Promulgation
In consideration of the foregoing, we hereby amend part 27,
subchapter C of chapter I, title 50 of the Code of Federal Regulations
as follows:
PART 27--PROHIBITED ACTS
0
1. The authority citation for part 27 continues to read as follows:
Authority: 5 U.S.C. 685, 752, 690d; 16 U.S.C. 460k, 460l-6d,
664, 668dd, 685, 690d, 715i, 715s, 725; 43 U.S.C. 315a.
Subpart C--Disturbing Violations: With Vehicles
0
2. Amend Sec. 27.31 by redesignating paragraph (m) as paragraph (n)
and adding a new paragraph (m) to read as follows:
Sec. 27.31 General provisions regarding vehicles.
* * * * *
(m) If the refuge manager determines that electric bicycle (also
known as e-bike) use is a compatible use on roads or trails, any person
using an e-bike where the motor is not used exclusively to propel the
rider for an extended period of time shall be afforded all of the
rights and privileges, and be subject to all of the duties, of the
operators of nonmotorized bicycles on roads and trails. An e-bike is a
two- or three-wheeled electric bicycle with fully operable pedals and
an electric motor of not more than 750 watts (1 h.p.) that meets the
requirements of one of the following three classes:
(1) Class 1 e-bike 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 e-bike 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 e-bike 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.
* * * * *
George Wallace,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2020-22107 Filed 10-30-20; 8:45 am]
BILLING CODE 4333-15-P
