[Federal Register Volume 73, Number 244 (Thursday, December 18, 2008)]
[Proposed Rules]
[Pages 76987-76990]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29892]
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DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 4
RIN 1024-AD72
Vehicles and Traffic Safety
AGENCY: National Park Service, Interior.
ACTION: Proposed Rule.
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SUMMARY: This rule proposes to amend current regulations for
designating bicycle use on National Park Service (NPS) lands. The
proposed rule authorizes park superintendents to open existing trails
to bicycle use within park units in accordance with appropriate park
plans and compliance documents under the National Environmental Policy
Act (NEPA), the National Historic Preservation Act, the NPS Organic
Act, and the park's enabling legislation, and other applicable law. The
proposed rule continues to require promulgation of a special regulation
to build a new trail for bicycle use outside developed areas, or to
open an existing trail to bicycle use if such action triggers one of
the existing regulatory criteria requiring rulemaking in Section 1.5 of
Title 36 of the Code of Federal Regulations.
DATES: Comments must be received by February 17, 2009.
ADDRESSES: You may submit comments, identified by the number 1024-AD72,
by any of the following methods:
--Federal rulemaking portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
--Mail: National Park Service, Attn. Regulations Program Manager, 1849
C St., NW., MS-3122, Washington, DC 20240.
All submissions received must include the agency name and RIN 1024-
AD72. For additional information see ``Public Participation'' under
SUPPLEMENTARY INFORMATION below.
FOR FURTHER INFORMATION CONTACT: Philip Selleck, Regulations Program
Manager, 1849 C St., NW., Washington, DC 20240, (202) 208-4206.
SUPPLEMENTARY INFORMATION:
Background
Current regulations provide for the use of bicycles on park roads,
parking areas and routes designated for bicycle use. A special
regulation, specific to the individual park, must be adopted if
bicycles are to be used in areas outside developed areas and special
use zones. The NPS promulgated the current bicycle use regulation in
1987 and adopted the special regulation
[[Page 76988]]
requirement as a way of ensuring maximum public input on decisions to
allow bicycle use outside developed areas.
Promulgation of special regulations requires various types of
analyses and approval by the NPS Director and the Assistant Secretary
for Fish and Wildlife and Parks, a process that takes more than two
years on average. The proposed rule achieves a primary benefit of the
special regulations process, notice and public comment, while
eliminating the other steps of rulemaking deemed unnecessary in certain
circumstances for designating areas for bicycle use.
For existing trails, the proposed rule provides for public notice
and participation but does not require the promulgation of special
regulations unless the trail designation has the type of significant
effect that triggers rulemaking under the NPS' general regulation
governing public use in units of the National Park System (see 36 CFR
1.5(b)). The NPS would continue to require the promulgation of special
regulations for bicycle trails outside developed areas involving new
trail construction.
As a general matter, the proposed rule provides park
superintendents with a more efficient and effective way to determine
whether opening existing trails to bicycles would be appropriate in the
park unit they manage. The NPS Management Policies emphasize that
``(t)he Service must ensure that [park] uses are appropriate to the
park in which they occur,'' and establish a process for determining
whether a particular use is appropriate in a park unit. See NPS
Management Policies 2006, p. 97 and ] 8.1.2.
Whether or not bicycle use is an appropriate activity in a unit of
the National Park System should be considered through an individual
park planning process that involves environmental compliance and input
from the public. In addition, any particular trail use should be
considered as part of a comprehensive plan for trail use in a park
area. Parks that don't currently address bicycle use in existing
planning documents could accomplish this comprehensive plan as either a
specific plan for bicycle use in the park or as part of another plan,
such as a recreation use plan.
The planning process can help determine, for example, if
opportunities for bicycling will offer the potential to increase
overall visitation, generate new youth interest in parks, or expand
appreciation for our national parks. Proper planning with public
participation also provides the opportunity to consider a range of
alternatives to avoid or minimize impacts on natural, historic and
cultural resources and reduce conflicts with other user groups. No
matter what type of planning is conducted, ``(i)n its role as steward
of park resources, the National Park Service must ensure that park uses
that are allowed would not cause impairment of, or unacceptable impacts
on, park resources and values.'' NPS Management Policies 2006 ] 1.5.
In addition to the park planning activities described above, the
intent of the proposed rule is to take advantage of the public outreach
aspects of the NEPA process. The proposed rule does this by requiring,
at a minimum, preparation of an Environmental Assessment (EA) for any
decision to open existing hiking or horse trails to bicycles. In other
words, the proposed rule precludes use of any applicable ``categorical
exclusions'' from NEPA analysis for opening trails to bicycle use.
Further, the proposed rule requires a minimum of 30 days for public
comment on EAs on bicycle use. The proposed rule also requires that the
notice requesting public comment be published in the Federal Register,
in addition to any other manner of notice used by the park, consistent
with the public participation objectives set out in the Management
Policies. ``Where there is strong public interest in a particular use,
opportunities for civic engagement and cooperative conservation should
be factored into the decision-making process.'' NPS Management Policies
2006 ] 1.4.3.1. By adopting these requirements, the proposed rule would
meet the broad public participation objectives of the NPS without the
requirement for a special regulation.
In addition, the proposed rule requires Federal Register notice of
the superintendent's determination that bicycle use is consistent with
the protection of the park area's natural, scenic and aesthetic values,
safety considerations and management objectives and will not disturb
wildlife or park resources. If the determination itself is not
published in full, then the notice should include information on where
to view the determination, or how to obtain a copy of the
determination. This Federal Register notice must provide the public a
30-day period to give the public an opportunity to consider and comment
on the determination prior to action by the park to open any trails for
bicycle use. This comment period would be particularly important when
there is a period of time between the public comment period for the EA
or EIS and the decision to designate a trail for bicycle use. It would
allow for public comment on the decision to implement the earlier
planning process. However, if there is significant change or new
information since the completion of the planning and NEPA documents,
then the NPS will have to consider the need to supplement or revise the
documents.
An area of particular concern for park managers involves the
designation of ``new trails'' in park areas. In the 1987 rulemaking on
bicycle use, NPS decided to limit the authority of the superintendent
to designate bicycle use without notice and comment rulemaking to
designations within developed areas of the park, ``which are land
management and use categories established pursuant to a park area's
Statement for Management and General Management Plan. Developed areas
include lands within development and historic zones; these areas are
generally impacted to a certain degree by structures, facilities or
other improvements which reflect the fact the primary purpose or
management objective for the use these lands is other than the
preservation of their natural resources.'' 52 FR 10670, 10681 (Apr. 2,
1987). There is a similar definition for developed areas found in the
NPS general regulations at 36 CFR 1.4.
In contrast, the 1987 rulemaking described the designation process
outside of developed areas:
The NPS has determined that the designation of a bicycle route
outside of such developed areas, in areas whose primary purpose and
land uses are related more to the preservation of natural resources
and values, would have a much greater potential to result in adverse
resource impacts or visitor use conflicts. This paragraph therefore
provides for a much more stringent decision-making process for such
a proposal by requiring a formal rulemaking. Such a process will
provide for a thorough review of all environmental and visitor use
considerations and assure the superintendent of having had the
benefit of public review and comment before making a decision on any
proposed designation. 52 FR at 10681.
The proposed rule continues this approach for new trails designated
outside developed areas in any unit of the National Park System, i.e.
special regulations would still be required for the construction of new
bicycle trails outside developed areas.
The proposed rule would not affect other existing statutory or
regulatory protections for the preservation and enhancement of park
resources and visitor experiences. For example, the proposed rule would
not affect the statutory ban on bicycles in wilderness areas. In
addition, special regulations would still be required when an action to
open existing trails to bicycles would
[[Page 76989]]
result in the degree of change or controversy described in 36 CFR
1.5(b).
A new section has been added to address the issue of bicycle use on
administrative roads. The proposed rule clarifies that administrative
roads that are closed to motor vehicle use by park visitors are also
closed to bicycle use unless designated open by the superintendent. The
superintendent may find it necessary to impose certain limits or
restrictions on the use in order to provide for safety considerations,
to avoid visitor use conflicts, or to protect park resources and
values. The proposed rule also clarifies that the superintendent has
authority to close any area designated as open for bicycle use, not
just park roads and parking areas.
Finally, the proposed rule eliminates the term ``special use zone''
because this term is no longer used in NPS planning documents and as a
result has created confusion in interpreting its meaning within the
context of this regulation. For purposes of park planning the term
``special use zone'' meant ``non-federal lands within the exterior
boundaries of a park area * * * used for non-park purposes but over
which the NPS exerts some degree of administrative control.'' 52 FR at
10681. For example, the NPS has authority to enter into a written
agreement with a landowner within the boundaries of a park area to
administer the non-federal lands for public recreation purposes.
Because the NPS no longer uses the term ``special use zones'' for
planning purposes, and NPS regulations now make clear to which lands
its regulations apply (see 36 CFR 1.2), the proposed rule deletes the
term ``special use zones.''
Compliance With Other Laws
Regulatory Planning and Review (Executive Order 12866)
This document is not a significant rule and is not subject to
review by the Office of Management and Budget (OMB) under Executive
Order 12866.
(1) This rule would not have an effect of $100 million or more on
the economy. It would not adversely affect in a material way the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities.
(2) This rule would not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency.
(3) This rule does not alter the budgetary effects of entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients.
(4) This rule does not raise novel legal or policy issues.
Regulatory Flexibility Act
The Department of the Interior certifies that this document would
not have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
This certification is based on information contained in the report
titled, ``Benefit-Cost/Unfunded Mandates Act Analysis Small business
and Regulatory Flexibility Act Analysis'' (U.S. Department of the
Interior, Office of Policy Analysis, Office of the Secretary).
Small Business Regulatory Enforcement Fairness Act (SBREFA)
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million or
more.
b. Would not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or tribal governments or the private sector.
Takings (Executive Order 12630)
In accordance with Executive Order 12630, the rule does not have
significant takings implications.
Federalism (Executive Order 13132)
In accordance with Executive Order 13132, the rule does not require
the preparation of a federalism assessment.
Civil Justice Reform (Executive Order 12988)
This regulation meets the applicable standards set forth in
Sections 3(a) and 3(b)(2) of Executive Order 12988 Civil Justice
Reform.
Paperwork Reduction Act
This regulation does not require an information collection under
the Paperwork Reduction Act.
National Environmental Policy Act
The NPS is performing the NEPA analysis for this rule concurrently
with the process of accepting comments
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government to Government Relations with Native American Tribal
Governments'' (59 FR 22951) and 512 DM 2, we have evaluated potential
effects on federally recognized Indian tribes and have determined that
there are no potential effects.
Clarity of This Regulation
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.
Public Participation
You may submit comments online at: http://www.regulations.gov.
Follow the instructions for submitting comments. You may also mail or
hand deliver comments to: Mail: National Park Service, Attn.
Regulations Program Manager, 1849 C St., NW., MS-3122, Washington, DC
20240.
Public Availability of Comments
Before including your address, phone number, e-mail address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
[[Page 76990]]
List of Subjects in 36 CFR Part 4
National Parks.
For the reasons stated in the preamble we propose to amend 36 CFR
Part 4 as follows:
PART 4--VEHICLES AND TRAFFIC SAFETY
1. The authority for part 4 continues to read as follows:
Authority: 16 U.S.C. 1, 3, 9a, 460(q), 462(k); Sec. 7.96 also
issued under D.C. Code 8-137 (1981) and D.C. Code 40-721 (1981).
2. Section 4.30 is revised to read as follows:
Sec. 4.30 Bicycles
(a) Park roads. The use of a bicycle is permitted on park roads and
in parking areas that are otherwise open for motor vehicle use by the
general public.
(b) Existing trails. Except when rulemaking publication in the
Federal Register is required by Sec. 1.5(b) of this Chapter, a hiking
or horse trail that currently exists on the ground and does not require
any construction or significant modification to accommodate bicycles
may be designated for bicycle use only if:
(1) The park has or will complete a park planning document
addressing bicycle use on existing trails in the park; and
(2) The park has completed either an environmental assessment (EA)
or an environmental impact statement (EIS) evaluating bicycle use. In
addition to the requirements otherwise applicable to the preparation of
an EA or EIS, the park will publish a notice in the Federal Register
providing the public at least thirty (30) days for review and comment
on an EA issued under this section; and
(3) A written determination is signed by the superintendent stating
that the addition of bicycle use on existing hiking or horse trails is
consistent with the protection of the park area's natural, scenic and
aesthetic values, safety considerations and management objectives and
will not disturb wildlife or park resources. The park will publish in
the Federal Register a notice of the determination and provide at least
thirty (30) days for public review and comment before implementing that
decision for bicycle use.
(c) New Trails. Trails that do not exist on the ground, and
therefore would require trail construction activities (such as clearing
brush, cutting trees, excavation, or surface treatment), may be
developed and designated for bicycle use only after:
(1) The park has completed the requirements set forth in paragraphs
(b)(1) and (2) of this section; and
(2)(i) For new trails located outside of a park's developed areas,
as identified in the relevant park plan, the park has promulgated a
special regulation authorizing bicycle use; or
(ii) For new trails located within a park's developed areas, as
identified in the relevant park plan, the park has completed the
requirements set forth in paragraph (b)(3) of this section.
(d) Administrative roads. Administrative roads closed to motor
vehicle use by the public, but open to motor vehicles use for
administrative purposes, may be designated for bicycle use by the
superintendent pursuant to the criteria and procedures of Sec. Sec.
1.5 and 1.7 of this chapter.
(e) Closures. A superintendent may close any park roads, parking
areas, administrative roads, existing trails, or new trails to bicycle
use pursuant to the criteria and procedures of Sec. Sec. 1.5 and 1.7
of this chapter.
Dated: December 9, 2008.
Lyle Laverty,
Assistant Secretary, Fish and Wildlife and Parks.
[FR Doc. E8-29892 Filed 12-17-08; 8:45 am]
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