AGENCY:

National Park Service, Interior.

ACTION:

Proposed rule.

SUMMARY:

The National Park Service proposes regulations governing the use of electric bicycles, or e-bikes, within the National Park System. This rule would define the term “electric bicycle” and establish rules for how electric bicycles may be used. This rule would implement Secretary of the Interior Order 3376, “Increasing Recreational Opportunities through the use of Electric Bikes,” on lands administered by the National Park Service.

DATES:

Comments on the proposed rule must be received by June 8, 2020.

ADDRESSES:

You may submit comments, identified by Regulation Identifier Number (RIN) 1024-AE61, by either of the following methods:

(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov and search for “1024-AE61”. Follow the instructions for submitting comments.

(2) By hard copy: Mail or hand deliver to: Jay Calhoun, Regulations Program Manager, National Park Service, 1849 C Street NW, MS-2472, Washington, DC 20240.

Instructions: Comments will not be accepted by fax, email, or in any way other than those specified above. All submissions received must include the words “National Park Service” or “NPS” and must include the RIN 1024-AE61 for this rulemaking. Bulk comments in any format (hard copy or electronic) submitted on behalf of others will not be accepted. Comments received may be posted without change to www.regulations.gov, including any personal information provided. The NPS seeks meaningful public input on this rule. The intent of this action is to address an emerging technology in a manner that accommodates visitors and increases opportunities for the public to recreate within and travel through the National Park System, while at the same time protecting the resources and values that draw millions of visitors each year.

Docket: For access to the docket to read background documents or comments received, go to www.regulations.gov and search for “1024-AE61”.

FOR FURTHER INFORMATION CONTACT:

Jay Calhoun, Regulations Program Manager, National Park Service; (202) 513-7112; waso_regulations@nps.gov.

SUPPLEMENTARY INFORMATION:

Background

Use and Management of Bicycles

Bicycling is a popular recreational activity in many units of the National Park System. Cyclists of all skill levels and ages enjoy riding on park roads and designated bicycle trails for scenery, exercise, and adventure. Visitors bicycle alone, with friends, or with family. From leisurely rides to challenging alpine climbs, bicycles offer spectacular opportunities to experience the resources of the National Park System.

National Park Service (NPS) regulations at 36 CFR 4.30 govern the use of bicycles on NPS-administered lands. These regulations identify where bicycles are allowed, manage how bicycles may be used, and allow superintendents to restrict bicycle use when necessary. Bicycles are allowed on park roads and parking areas open to public motor vehicles. Bicycles are also allowed on administrative roads that are closed to motor vehicle use by the public but open to motor vehicle use by the NPS for administrative purposes, but only after the superintendent determines that such bicycle use is consistent with protection of the park area's natural, scenic and aesthetic values, safety considerations and management objectives, and will not disturb wildlife or park resources. The use of bicycles on trails is subject to a thorough approval and review process. When bicycle use is proposed for a new or existing trail, the NPS must complete a planning process that evaluates bicycle use on the specific trail, including impacts to trail surface and soil conditions, maintenance costs, safety considerations, potential user conflicts, and methods to protect resources and mitigate impacts. For both new and existing trails, the NPS must complete an environmental assessment or environmental impact statement that concludes that bicycle use on the trail will have no significant impacts. The superintendent must prepare and the regional director must approve the same written determination that is required for allowing bicycles on administrative roads. Each of these documents must be made available for public review and comment. For new trails outside of developed areas, the NPS must publish a special regulation designating the trail for bicycle use, which is subject to a separate public comment period.

Adherence to the procedures in these regulations helps ensure that bicycles are allowed only in locations where, in the judgment of the NPS, their use is appropriate and will not cause unacceptable impacts. The NPS has completed the process required by these regulations in many NPS units, including the following that have special regulations designating trails for bicycle use: Rocky Mountain National Park, Saguaro National Park, Cuyahoga Valley National Park, Hot Springs National Park, Grand Teton National Park, Mammoth Cave National Park, Sleeping Bear Dunes National Lakeshore, New River Gorge National River, Chattahoochee River National Recreation Area, Bryce Canyon National Park, Pea Ridge National Military Park, and Golden Gate National Recreation Area.

Introduction of Electric Bicycles

While bicycling has been a decades-long tradition in many park areas, the appearance of electric bicycles, or e-bikes, is a relatively new phenomenon. An e-bike is a bicycle with a small electric motor that provides power to help move the bicycle. As they have become more popular both on and off NPS-managed lands, the NPS has recognized the need to address this emerging form of recreation so that it can exercise clear management authority over e-bikes and provide clarity to visitors and stakeholders such as visitor service providers.

Similar to traditional bicycles, the NPS believes that, with proper management, the use of e-bikes may be an appropriate activity in many park areas. E-bikes advance the NPS's “Healthy Parks Healthy People” goals to promote national parks as a health resource.^[1] Specifically, e-bikes can increase bicycle access to and within parks. E-bikes make bicycle travel easier and more efficient because they allow bicyclists to travel farther with less effort. E-bikes can expand the option of bicycling to more people by providing a new option for those who want to ride a bicycle but might not otherwise do so because of physical fitness, age, or convenience, especially at high altitude or in hilly or strenuous terrain. Also, when used as an alternative to gasoline- or diesel-powered modes of transportation, e-bikes can reduce greenhouse gas emissions and fossil fuel consumption, improve air quality, and support active modes of transportation for park staff and visitors. Similar to traditional bicycles, e-bikes can decrease traffic congestion, reduce the demand for vehicle parking spaces, and increase the number and visibility of cyclists on the road.

Policy Direction for Managing E-Bikes

Secretary's Order 3376

On August 29, 2019, Secretary of the Interior Bernhardt signed Secretary's Order 3376, “Increasing Recreational Opportunities through the use of Electric Bikes.” The purpose of this Order is to increase recreational opportunities for all Americans, especially those with physical limitations, and to encourage the enjoyment of lands and waters managed by the Department of the Interior. The Order emphasizes the potential for e-bikes to reduce the physical demands of operating a bicycle and therefore expand access to recreational opportunities, particularly for those with limitations stemming from age, illness, disability or fitness, and in more challenging environments, such as high altitudes or hilly terrain. E-bikes have an electric motor yet are operable in a similar manner to traditional bicycles and in many cases appear indistinguishable from them. For these reasons, the Order acknowledges there is regulatory uncertainty regarding whether e-bikes should be managed similar to other types of bicycles, or, alternatively, considered motor vehicles. The Order states that this regulatory uncertainty has led to inconsistent management of e-bikes across the Department and, in some cases, served to decrease access to Federally owned lands by users of e-bikes. In order to address these concerns, the Order directs the NPS and other Department of the Interior agencies to define e-bikes separately from motor vehicles and to allow them where other types of bicycles are allowed.

NPS Policy Memorandum 19-01

On August 30, 2019, the Deputy Director of the NPS, Exercising the Authority of the Director, issued Policy Memorandum 19-01, Electric Bicycles. This policy satisfies a requirement in the Secretary's Order that all Department of the Interior agencies adopt policy and provide appropriate public guidance regarding the use of e-bikes on public lands that conforms to the policy direction set forth in the Order.

The Memorandum defines an e-bike as “a two- or three-wheeled cycle with fully operable pedals and an electric motor of less than 750 watts that provides propulsion assistance.” This definition is consistent with the definition of “low speed electric bicycle” in the Consumer Product Safety Act (15 U.S.C. 2085), currently the only federal statutory definition of e-bikes, except that the definition in the Memorandum does not include the statutory requirement that an e-bike may not reach 20 mph on a paved level surface, when powered solely by the motor while ridden by an operator who weighs less than 170 pounds. Instead, the Memorandum, consistent with the Secretary's Order and many states that have promulgated regulations for e-bikes, refers to a three-class system that limits the maximum assisted speed of an e-bike:

• Class 1 electric bicycle means an electric bicycle equipped with a motor that provides assistance only when the rider is pedaling, and that ceases to provide assistance when the bicycle reaches the speed of 20 miles per hour.
• Class 2 electric bicycle means an electric bicycle equipped with a motor that may be used exclusively to propel the bicycle, and that is not capable of providing assistance when the bicycle reaches the speed of 20 miles per hour.
• Class 3 electric bicycle means an electric bicycle equipped with a motor that provides assistance only when the rider is pedaling, and that ceases to provide assistance when the bicycle reaches the speed of 28 miles per hour.

Consistent with the Order, the Memorandum announces a policy that e-bikes are allowed where traditional bicycles are allowed and that e-bikes are not allowed where traditional bicycles are prohibited. The Memorandum refers to regulations for bicycles in paragraphs (f), (g), and (h) of 36 CFR 4.30 that relate to closures and other use restrictions, other requirements, and prohibited acts. The Memorandum requires that these provisions also govern the use of e-bikes so that the use of e-bikes and bicycles are generally regulated in the same manner.

Paragraph (f) of section 4.30 allows superintendents to limit or restrict or impose conditions on bicycle use or close any park road, trail, or portion thereof to bicycle use after taking into consideration public health and safety, natural and cultural resource protection, and other management activities and objectives. The Memorandum authorizes superintendents to limit or restrict or impose conditions on e-bike use for the same reasons, provided the public is notified through one or more methods listed in 36 CFR 1.7. When using this authority, the Memorandum advises superintendents to understand state and local rules addressing e-bikes so that the use of e-bikes within a park area is not restricted more than in adjacent jurisdictions, to the extent possible.

Paragraph (g) of section 4.30 states that bicycle use is subject to certain NPS regulations that apply to motor vehicles. Specifically, bicycle use is subject to regulations in sections 4.12 (Traffic control devices), 4.13 (Obstructing traffic), 4.20 (Right of way), 4.21 (Speed limits), 4.22 (Unsafe operation), 4.23 (Operating under the influence of alcohol or drugs). The Memorandum applies these provisions in the same manner to e-bikes. Paragraph (g) also states that, unless specifically addressed by NPS regulations, the use of a bicycle is governed by state law, which is adopted and made part of section 4.30. The Memorandum requires superintendents to adopt state law in the same manner for e-bikes. State laws concerning the definition, safety operation, and licensing of e-bikes vary from state to state. A growing number of states use the three-class system to differentiate between the models and top assisted speeds of e-bikes.

Paragraph (h) of section 4.30 prohibits possessing a bicycle in wilderness and contains safety regulations for the use of bicycles. Specifically, paragraphs (h)(3)-(5) establish rules relating to operation during periods of low visibility, abreast of another bicycle, and with an open container of alcohol. The Memorandum applies these provisions in the same manner to e-bikes.

The Memorandum directs the superintendents of any NPS unit with e-bikes present to implement the actions required by the policy using their regulatory authority in 36 CFR 1.5(a)(2). This authority allows superintendents to designate areas for a specific use or activity, or impose conditions or restrictions on a use or activity. As of the date this proposed rule, more than 380 units of the National Park System have implemented the e-bike policy under the authority in 36 CFR 1.5(a)(2) and have published notice of this action in the park-specific compilation of management actions required by 36 CFR 1.7(b), referred to as the superintendent's compendium. This means that for each of these NPS units, e-bikes are already allowed subject to the rules governing them that are set out in the compendium.

Proposed Rule

As explained above, Secretary's Order 3376 directs the NPS to develop a proposed rule to revise 36 CFR 1.4 and any associated regulations to be consistent with the Order. Specifically, the Order directs the NPS to add a definition for e-bikes consistent with 15 U.S.C. 2085, and expressly exempt all e-bikes as defined in the Order from the definition of motor vehicles.

This rule would accomplish these directives. The rule would amend 36 CFR 1.4 to add a new definition of “electric bicycle” that is the same as the definition used in the Policy Memorandum, with one minor difference. The definition in the Memorandum refers to the definition in the Consumer Product Safety Act (15 U.S.C. 2085) that limits the power of the motor to less than 750 watts. Many manufacturers sell e-bikes with motors having exactly 750 watts. In order to avoid the unintended consequence of excluding many devices from the regulatory definition of an e-bike due to a one watt difference in power, the definition of e-bikes in the proposed rule would include devices of not more than 750 watts.

The rule would explicitly exclude e-bikes from the definition of “motor vehicle” found at 36 CFR 1.4. This would make it clear that, except as stated in section 4.30(g), e-bikes are not subject to the regulations in 36 CFR part 4 that apply to the use of motor vehicles. The NPS does not need to change the existing definition of “bicycle” to distinguish them from e-bikes because the definition of bicycle includes only those devices that are “solely human powered.” E-bikes are excluded from this definition because they have an electric motor that helps power the device.

Consistent with the Secretary's Order and the Policy Memorandum, the proposed rule would state that e-bikes may be allowed on roads, parking areas, administrative roads and trails that are open to traditional bicycles. The rule would also state that superintendents will designate the areas open to e-bikes and notify the public pursuant to 36 CFR 1.7. E-bikes would not be allowed in other locations. E-bikes would be allowed on administrative roads and trails where bicycles are allowed without the need to undertake the procedural steps in paragraphs (b)-(e) of section 4.30 that were required when traditional bicycles were first allowed in those locations. If a park superintendent proposes to designate an administrative road or trail for e-bike use where traditional bicycles are not yet allowed, the superintendent would need to follow the procedural steps required by paragraphs (b)-(e) in order to designate those locations for bicycle and e-bike use.

Although they will be defined differently, the proposed rule would apply certain regulations that govern the use of bicycles to the use of e-bikes in the same manner as the Policy Memorandum. These regulations are explained in more detail above and include rules of operation and adoption of state law to the extent not addressed by NPS regulations. The rule would also give superintendents the authority to limit or restrict e-bike use after taking into consideration public health and safety, natural and cultural resource protection, and other management activities and objectives. If warranted by these criteria, superintendents may use this authority to manage e-bikes, or particular classes of e-bikes, differently than traditional bicycles in particular locations. For example, a superintendent could determine that a trail open to traditional bicycles should not be open to e-bikes, or should be open to class 1 e-bikes only. Every restriction or closure that limits the use of e-bikes will be supported by a written record explaining the basis for such action. The record will explain why e-bikes are managed differently than traditional bicycles if that is the effect of the restriction or closure. All such restrictions and closures should be listed in the superintendent's compendium (or written compilation) of discretionary actions referred to in 36 CFR 1.7(b).

Except for administrative actions taken by the NPS in limited circumstances, the Wilderness Act prohibits mechanical transport in wilderness areas designated by Congress. 16 U.S.C. 1133(c). Accordingly, paragraph (h)(2) of section 4.30 prohibits possessing a bicycle, a form of mechanical transport, in a wilderness area established by Federal statute. For the same reason, the rule would prohibit the possession of e-bikes in designated wilderness areas, even though this prohibition already exists under the Wilderness Act.

Except on park roads and other locations where the use of motor vehicles by the public is allowed, the rule would prohibit an operator from using the electric motor to move an e-bike without pedaling. This restriction is consistent with the Policy Memorandum and intended to allow the public to use e-bikes for transportation and recreation in a similar manner to traditional bicycles. It would only affect the use of class 2 e-bikes, which have a motor that may be used exclusively to propel the e-bike. The NPS specifically requests comment on whether this restriction is appropriate or workable. Alternatively, the NPS could allow superintendents to implement this restriction at the park level if necessary in specific locations.

Compliance With Other Laws, Executive Orders and Department Policy

Regulatory Planning and Review (Executive Orders 12866 and 13563)

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. The OIRA has waived review of this proposed rule and, at the final rule stage, will make a separate decision as to whether the rule is a significant regulatory action as defined by Executive Order 12866.

Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. The NPS has developed this rule in a manner consistent with these requirements.

Reducing Regulation and Controlling Regulatory Costs (Executive Order 13771)

Enabling regulations are considered deregulatory under guidance implementing E.O. 13771 (M-17-21). This rule would address regulatory uncertainty regarding the use of electric bicycles in the National Park System by clearly stating that they may be used where traditional bicycles are allowed.

Regulatory Flexibility Act

This rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This certification is based on information contained in the economic analyses found in the report entitled “Draft Cost-Benefit and Regulatory Flexibility Threshold Analyses: Proposed Regulations Addressing the Designation of Electric Bicycle Use in Units of the National Park System”. The report may be viewed online at www.regulations.gov by searching for “1024-AE61”.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2). This rule:

(a) Does not have an annual effect on the economy of $100 million or more.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector. It addresses public use of national park lands, and imposes no requirements on other agencies or governments. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

Takings (Executive Order 12630)

This rule does not effect a taking of private property or otherwise have takings implications under Executive Order 12630. A takings implication assessment is not required.

Federalism (Executive Order 13132)

Under the criteria in section 1 of Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. This rule only affects the use of electric bicycles on federally-administered lands. It has no outside effects on other areas. A federalism summary impact statement is not required.

Civil Justice Reform (Executive Order 12988)

This rule complies with the requirements of Executive Order 12988. This rule:

(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

Consultation With Indian Tribes (Executive Order 13175 and Department Policy)

The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. The NPS has evaluated this rule under the criteria in Executive Order 13175 and under the Department's tribal consultation policy and have determined that tribal consultation is not required because the rule will have no substantial direct effect on federally recognized Indian tribes.

Paperwork Reduction Act

This rule does not contain information collection requirements, and a submission to the Office of Management and Budget under the Paperwork Reduction Act is not required. The NPS may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

National Environmental Policy Act

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because the rule is covered by a categorical exclusion. The NPS has determined the rule is categorically excluded under 43 CFR 46.210(i) which applies to “policies, directives, regulations, and guidelines: that are of an administrative, financial, legal, technical, or procedural nature; or whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA process, either collectively or case-by-case.”

Many units of the National Park System already allow the use of e-bikes where traditional bicycles are allowed under the direction of the Policy Memorandum. The Policy Memorandum required those units to evaluate the environmental impacts of allowing e-bikes under NEPA. Because traditional bicycles were already an established presence in areas where e-bikes were recently allowed, traditional bicycles were part of the baseline of existing conditions from which the environmental impacts of e-bikes were measured. Therefore, the impacts potentially caused by the implementation of the Policy Memorandum were limited only to those impacts from e-bikes that differ from the existing impacts of traditional bicycles. As a result, for most units a categorical exclusion has applied.

For those units that have already allowed e-bikes under the Policy Memorandum, this rule is administrative and legal in nature because it would simply clarify that superintendents have the authority to allow e-bikes in units, but does not change the management of e-bikes or require any action because the general statements in park compendiums that e-bikes are allowed wherever traditional bicycles are allowed would constitute a designation under this rule.

In some units of the National Park System, the superintendent may have not yet opened bicycle trails to e-bikes, or may have closed a location to the use of e-bikes or otherwise restricted their use. In these units, any future decision to allow e-bikes in a new location or manner will be subject to an evaluation of the environmental impacts of that decision at that time. This will also be true for locations where, in the future, traditional bicycles and e-bikes are introduced for the first time. If a park superintendent proposes to designate an administrative road or trail for e-bike use where traditional bicycles are not yet allowed, the superintendent will need to follow the same procedural steps in order to designate those locations for bicycle and e-bike use. In both of the circumstances described above, the environmental effects of this rule are too speculative or conjectural at this time to lend themselves to meaningful analysis, and those later designations will be subject to the NEPA process.

The NPS has also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

Effects on the Energy Supply (Executive Order 13211)

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

List of Subjects

36 CFR Part 1

• National parks
• Penalties
• Reporting and recordkeeping requirements
• Signs and symbols

36 CFR Part 4

• National Parks
• Traffic Regulations

In consideration of the foregoing, the National Park Service proposes to amend 36 CFR parts 1 and 4 as set forth below:

PART 1—GENERAL PROVISIONS

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

Authority: 54 U.S.C. 100101, 100751, 320102.

2. Amend § 1.4 by adding, in alphabetical order, a definition for “Electric bicycle” and revising the definition for “Motor vehicle” to read as follows:

PART 4—VEHICLES AND TRAFFIC SAFETY

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

Authority: 54 U.S.C. 100101, 100751, 320102.

4. Amend § 4.30 by adding paragraph (i) to read as follows:

Footnotes