Off-Road Vehicle Use, 67294-67299 [2020-22108]

Download as PDF 67294 Federal Register / Vol. 85, No. 205 / Thursday, October 22, 2020 / Rules and Regulations Reporting and recordkeeping requirements. SUPPLEMENTARY INFORMATION: Authority: This action is issued under the authority of sections 2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act as amended, 42 U.S.C. 6912(a), 6926, and 6974(b). Dated: October 2, 2020. Kurt Thiede, Regional Administrator, Region 5. [FR Doc. 2020–22323 Filed 10–21–20; 8:45 am] BILLING CODE 6560–50–P DEPARTMENT OF THE INTERIOR Bureau of Reclamation 43 CFR Part 420 [RR85672000, 20XR0680A2, RX.31480001.0040000] RIN 1006–AA57 Off-Road Vehicle Use Bureau of Reclamation, Interior. ACTION: Final rule. AGENCY: The Bureau of Reclamation (Reclamation) is amending its regulations to add a definition for electric bikes (E-bikes) and exclude Ebikes from the regulatory definition of an off-road vehicle where E-bikes are being used on roads and trails where mechanized, non-motorized use is allowed, where E-bikes are not propelled exclusively by a motorized source, and appropriate Reclamation Regional Directors expressly determine through a formal decision that E-bikes should be treated the same as nonmotorized bicycles. This change facilitates increased E-bike use where other types of bicycles are allowed in a manner consistent with existing use of Reclamation land, and increases recreational opportunities for all Americans, especially those with physical limitations. DATES: This rulemaking is effective November 23, 2020. ADDRESSES: This final rule is available on the internet at http:// www.regulations.gov and http:// www.usbr.gov/recreation/. Comments we received, as well as supporting documentation we used in preparing this final rule, are available for public inspection at http:// www.regulations.gov in Docket ID: BOR–2020–0001. FOR FURTHER INFORMATION CONTACT: Ryan Alcorn, Asset Management Division, Bureau of Reclamation, (303) 445–2711; ralcorn@usbr.gov. SUMMARY: VerDate Sep<11>2014 16:23 Oct 21, 2020 Jkt 253001 Background On August 29, 2019, the Secretary of the Interior signed Secretarial Order 3376, Increasing Recreation Opportunities Through the Use of Electric Bikes, that directed Reclamation and other Department of the Interior (DOI) bureaus (Bureau of Land Management, National Park Service, and the U.S. Fish and Wildlife Service) to increase recreation opportunities and expand access on public lands. The Secretarial Order addressed regulatory uncertainty on how bureaus within DOI manage recreational opportunities for Ebikes on trails and paths where traditional bikes are allowed. Uncertainty about the regulatory status of E-bikes had led some of DOI’s land management bureaus to impose restrictive access policies treating Ebikes as motor vehicles, often inconsistent with State and local regulations for adjacent areas. The possibility that in some cases E-bikes can be propelled solely through power provided by the electric motor, a function often used in short duration as an assist, has contributed to confusion about E-bike classification. Further, Federal regulation has not been consistent across DOI and has created ambiguity among recreation area rules regarding trail and road access to Ebikes resulting in limited access to Federally owned lands by E-bike riders. To provide consistency in Federal policy among DOI’s bureaus, the Secretarial Order set forth the policy of DOI that E-bikes should be allowed where other, non-motorized types of bicycles are allowed, and not allowed where other, non-motorized types of bicycles are prohibited. Summary of Final Rule Reclamation was directed by the Secretarial Order to revise 43 CFR part 420 to add a definition of E-bikes and to generally treat E-bikes similarly to traditional, non-motorized bicycles. Continuing, it is further specified that Ebikes should be defined as having two or three wheels and fully operable pedals. The electric motor for an E-bike may not exceed 750 watts (one horsepower) and E-bikes must fall into one of three classes: (a) ‘‘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; (b) ‘‘Class 2 electric bicycle’’ means an electric bicycle equipped with a motor that may be used exclusively to propel PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 the bicycle, and that is not capable of providing assistance when the bicycle reaches the speed of 20 miles per hour; and (c) ‘‘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. The rule therefore amends title 43 of the Code of Federal Regulations (CFR) by revising part 420 as follows: (a) Section 420.5(a) is amended to include E-bikes that satisfy certain criteria in the specified exclusions to the definition of off-road vehicles. (b) Section 420.5(h) is added to define electric bicycles to include the three classes of electric bicycles. Reclamation expects these changes to the rule could facilitate increased E-bike ridership on Reclamation lands in the future. However, the rule would not be self-executing. The rule, in and of itself, does not change existing allowances for E-bike usage on Reclamationadministered public lands. It would neither allow E-bikes on roads and trails that are currently closed to off-road vehicles but open to mechanized, nonmotorized bicycle use, nor affect the use of E-bikes and other motorized vehicles on roads and trails where off-road vehicle use is currently allowed. Furthermore, 43 CFR 420.5(a)(7) would allow Reclamation’s Regional Directors to expressly determine, as part of a landuse planning or implementation-level decision, that E-bikes should be treated the same as non-motorized bicycles. While Reclamation intends for this rule to increase accessibility to public lands, E-bikes would not be given special access beyond what traditional, nonmotorized bicycles are allowed. To address site-specific issues, Reclamation would consider the environmental impacts from the use of E-bikes through subsequent analysis in accordance with applicable legal requirements, including the National Environmental Policy Act of 1969 (NEPA). Summary of and Response to Public Comments Reclamation published a proposed rule in the Federal Register on April 13, 2020 (85 FR 20463) soliciting public comments for a 60-day period. The public comment period ended on June 12, 2020. During the public comment period, Reclamation received 705 comment submissions from members of the public including senior citizens, avid cyclists, hikers, equestrians and equestrian associations, industrial cycling organizations and manufacturers, as well as state and local E:\FR\FM\22OCR1.SGM 22OCR1 Federal Register / Vol. 85, No. 205 / Thursday, October 22, 2020 / Rules and Regulations governments. Each public comment received consideration in the development of the final rule. Comments received that are similar in nature have been categorized by subject, and in some instances have been combined with related comments. The following discussion addresses substantive information provided during the comment period, by topic, and includes comments and responses that were made in the final rule based on comment analysis and other considerations. Comment: Before any existing, nonmotorized trails could be opened to Ebikes, logic suggests a NEPA study should have to be completed. Response: Lands managed by Reclamation vary significantly from region to region (e.g., the environmental variability, potential user conflicts, amounts of visitation) making an overarching NEPA analysis infeasible. Addressing potential environmental and social issues are most meaningful at the site-specific level. Reclamation will consider the suitability of E-bike use on specific trails through subsequent analysis consistent with the requirements of NEPA and other applicable laws. The NEPA process and implementation will be conducted in accordance with 43 CFR 420.5(a)(7) whereby Reclamation’s Regional Directors may expressly determine, as part of a land-use planning or implementation-level decision, that Ebikes should be treated the same as nonmotorized bicycles. Implementation may also include the development of site-specific design features and mitigation strategies to reduce or negate potential adverse impacts. Comment: A public review and comment period of at least 60 days should be provided for each proposed trail or trail system, and that comment period should be in a season when the area is accessible to people who want to examine the routes for themselves before submitting comments. Response: Reclamation began its 60day public comment period on April 13, 2020 and concluded on June 12, 2020. This period gave the public the opportunity to participate in the rulemaking process. Given the quantity of existing trails upon Reclamation lands, creating additional 60-day public comment periods for each proposed trail would be extremely costly and create a large administrative burden. Additionally, as local field and area offices will work with recreation area managing partners to make such determinations, the decision to add additional comment periods, if necessary, will remain at that level and VerDate Sep<11>2014 16:23 Oct 21, 2020 Jkt 253001 at the discretion of the Regional Director. Comment: Reclamation seeks to define relevant classifications of electric bicycles (‘‘E-bikes’’) and exclude E-bikes from DOI’s regulatory definition of ‘‘offroad vehicles,’’ which are forbidden to be used in certain areas that are open to traditional bicyclists. Permitting the use of certain E-bikes in appropriate areas could indeed benefit many Americans who otherwise could not access certain lands. However, instead of clearly describing a widening of the permitted category of ‘‘bicycles,’’ the amendment offers clumsy, incohesive groupings of E-bikes. The proposed amendments may create arbitrary and capricious results. Response: The definition of E-bikes included in this rule establishes a consistent definition for use across all DOI bureaus. The definition and associated classification system are based on industry standards and is the same system that many states are using to regulate E-bikes. DOI chose this system to be as consistent as possible with how E-bikes are being regulated. Comment: The regulation fails to offer any policy rationale, and thus is both arbitrary and capricious and fails to allow commenters to properly respond to the agency’s decision-making. The regulation simply states that ‘‘E-bikes should be allowed where other, nonmotorized types of bicycles are allowed.’’ Response: Federal regulation of Ebikes has not been consistent across DOI. The purpose of this rulemaking is to unify regulation of E-bikes on Federal lands managed by DOI. Secretarial Order 3376 directs the Bureau of Land Management, U. S. Fish and Wildlife Service, National Park Service, and Reclamation to define E-bikes, and directs Reclamation to expressly exclude E-bikes from the definition of Off-Road Vehicles (ORV) in accordance with 43 CFR 420.5(a)(7) whereby Reclamation’s Regional Directors may expressly determine, as part of a landuse planning or implementation-level decision, that E-bikes should be treated the same as non-motorized bicycles. Comment: We support allowing only Class 1 E-bikes on narrow trails to better ensure trail integrity and appropriate speeds for safe interaction with other trail users. Class 2 and Class 3 E-bikes are not appropriate for these narrow non-motorized trails. Response: Reclamation acknowledges comments that request the exclusion of Class 2 and Class 3 E-bikes from nonmotorized trails. The rule provides Regional Directors or their delegates authority to determine whether E-bike use generally, or the use of certain PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 67295 classes of E-bikes, would be appropriate on certain roads or trails. Comment: Omit three-wheeled Ebikes or provide a detailed description of the three-wheeled bikes and specific trail parameters on which they should be allowed. Three-wheeled bikes are closer to all-terrain vehicles and will have specific requirements for the trails unlike a two-wheeled E-bike. Response: Reclamation acknowledges comments pertaining to omitting the use of three-wheeled E-bikes on nonmotorized trails. The rule provides Regional Directors or their delegates the authority to determine whether E-bike use generally, or the use of certain classes of E-bikes, would be appropriate on certain roads or trails. Regional Directors may also determine whether the use of three-wheeled E-bikes are appropriate on certain roads or trails. In addition, keeping in line with industry standards, the term ‘‘low-speed’’ electric bicycles means two- or three-wheeled vehicle. Comment: Reclamation should amend text within the proposed rule to allow all bicycle trails and routes to be open to E-bikes as well as motorized paths with improved surfaces. Response: Reclamation believes that E-bikes would generally be appropriate on roads and trails upon which mechanized, non-motorized use is permitted, however there are certain instances where that may not be possible. Therefore, it is most appropriate to follow 43 CFR 420.5(a)(7) whereby Reclamation’s Regional Director may expressly determine, as part of a land-use planning or implementation-level decision, that Ebikes should be treated the same as nonmotorized bicycles. Additionally, Ebikes are currently allowed on many surfaced roads and motorized paths per state and local level discretion. Comment: As Reclamation will be allowing E-bikes on non-motorized trails and trail systems, the addition of other ORVs should also be permitted. Response: This final rule addresses only Class 1, 2, and 3 E-bikes. Reclamation will continue to manage all types of ORVs in accordance with 43 CFR 420.21, Procedure for Designating Areas for Off-Road Vehicle Use. No other types of ORVs will be eligible for exclusion under this rule. Comment: Reclamation may wish to exclude hoverboards and other standing, electrical motorbikes, because these devices can also have ‘‘pedals’’ that do not engage the motor unless activated. Explicit exclusion of hoverboards and other motorized instruments may be required to avoid an issue. E:\FR\FM\22OCR1.SGM 22OCR1 67296 Federal Register / Vol. 85, No. 205 / Thursday, October 22, 2020 / Rules and Regulations Response: The intent of the rule is to generally allow E-bikes where a traditional bicycle is allowed. E-bikes may have two or three wheels and must have fully operable pedals. The electric motor for an E-bike may not exceed 750 watts (one horsepower). E-bikes must fall into one of three classes, as described in the rule. The definition provided in the rule, including the requirement for fully operational pedals, is sufficient to allow use of E-bikes and does not apply to other electric vehicles such as scooters, skateboards, or hoverboards if they do not fit into the definition established by this rule. Comment: Definitions of Class 1, 2, and 3 E-bikes will need to be reassessed and updated to reflect improvement in technologies as it becomes available. Response: Reclamation acknowledges that future changes in technology may result in some E-bikes not being eligible for exclusion from the definition of ORV as defined in 43 CFR part 420 if they do not fit into the definition established by this rule. Regional Directors may allow the use of certain ORVs on designated routes and trails without any necessary revisions to the regulations as part of 43 CFR 420.21, Procedure for Designation Areas for Off-road Vehicle Use. Comment: Previous grants that put monies into non-motorized trails, will now have spent their money on trails that are no longer non-motorized. Ebikes would also create issues with further Federal trail funding. Response: Reclamation recognizes that funding commitments for trail planning, construction, and maintenance must be considered. The use of funds from grants and other funding sources for past, present, and future trail projects will be a contributing factor in making management determinations. Title 43 CFR part 420 gives Regional Directors authority in making management determinations. Comment: The implementation of the proposed rule will negatively impact natural resources and wildlife. Response: Future implementation of the rule will be subject to the NEPA process on a case-by-case basis depending on the approach at Reclamation’s Regional and Area Office levels. Applying the NEPA process at a site-specific level will allow Reclamation to evaluate detailed information on the potential effects of Ebike use for a particular area and develop site-specific design features and mitigation strategies, if needed. In addition, the rule continues to allow the flexibility in accordance with 43 CFR 420.5(a)(7) whereby Reclamation’s Regional Directors may expressly VerDate Sep<11>2014 16:23 Oct 21, 2020 Jkt 253001 determine, as part of a land-use planning or implementation-level decision, that E-bikes should be treated the same as non-motorized bicycles and to review designated areas and trails periodically for unmitigated resource damage. Comment: The use of E-bikes on nonmotorized trails will create user conflicts and safety concerns for hikers, traditional bikers, and equestrians. Response: Reclamation acknowledges concerns regarding potential user conflicts and safety concerns on trails that have previously been designated for non-motorized use such as hiking and equestrian trails. As such, the rule allows the flexibility in accordance with 43 CFR 420.5(a)(7) whereby Reclamation’s Regional Directors may expressly determine, as part of a landuse planning or implementation-level decision, that E-bikes should be treated the same as non-motorized bicycles and will not create unmitigated user conflicts. Comment: Based on the three categories of E-bikes as defined in the rule, it will be impossible to enforce that E-bikes are not modified beyond these specifications. Response: Illegal modification of Ebikes is beyond the scope of this rulemaking process. Reclamation acknowledges that enforcement of modified vehicles is difficult. However, modifications that result in such vehicles no longer qualifying as a Class 1, 2, or 3 E-bike as defined in the rule, result in that vehicle being subject to the same enforcement as designated in 43 CFR 420.4. Comment: E-bikes have a motor and therefore should not be allowed on nonmotorized trails and roads. Response: Reclamation recognizes the nuance within the comments related to E-bikes having a motor, and therefore should not be allowed on nonmotorized trails and roads. In making its decision Reclamation took into consideration the 1972 Executive Order 11644 and the amended 1977 Executive Order 11989, ‘‘Use of Off-Road Vehicles on the Public Lands’’ which established 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 users. The Executive order, which does not reference E-bikes, 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. Certain vehicles are expressly exempt from this definition and additional PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 exemptions may be made by the respective agency head or as is 43 CFR part 420 by Regional Directors. In addition, although the E-bikes addressed in this rule have a small electric motor, there are multiple reasons why it is reasonable for Regional Directors to maintain the authority to manage Class 1, 2, and 3 Ebikes in the same manner as nonmotorized bicycles. 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 and that the executive branch was interested in regulating. These vehicles include the ‘‘motorcycles, minibikes, trail bikes, snowmobiles, dune-buggies, [and] all-terrain vehicles’’ expressly referenced in Executive Order 11644 and the ‘‘motorcycles of various sorts (minibikes, dirt bikes, enduros, motocross bikes, for example), fourwheel drive vehicles such as Jeeps, Land Rovers, or pickups, snowmobiles, dune buggies, and all-terrain vehicles’’ discussed in a 1979 report by the Council on Environmental Quality (CEQ) that discusses the requirements of the Executive Order in great detail and evaluates efforts undertaken by Federal land management agencies to comply with its requirements. Although these lists were not intended to include every type of vehicle that may fall within the Executive order’s definition of off-road vehicle, it is telling that all of the vehicles identified in Executive Order 11644 and the CEQ report differ markedly from E-bikes that may be excluded from the definition of ORV under this rule. Whereas the vehicles referenced in the Executive order are powered by internal combustion engines that produce more than 1 horsepower, the E-bikes that may be allowed on non-motorized trails under this rule rely on human power and only derive some assistance from a small, electric motor. Whereas the E-bikes that are the subject of this rule have operable pedals, the ORVs expressly referenced in the Executive order do not. As a result of those engineering differences, E-bikes tend to have impacts that are similar to traditional, non-motorized bicycles and unlike those that result from the larger, more powerful vehicles that Executive Order 11644 was intended to mitigate. Lastly, 43 CFR part 420 has always allowed for the inclusion of ORVs where Regional Directors have authorized the use, this rule is not authorizing the opening of all trails and roads to E-bikes. The intended purpose is to meet public demand for E-bike use E:\FR\FM\22OCR1.SGM 22OCR1 Federal Register / Vol. 85, No. 205 / Thursday, October 22, 2020 / Rules and Regulations and creating opportunities for furthering recreation through the use of E-bikes where it is deemed appropriate. Comment: Some commenters stated that E-bikes would be incompatible on non-motorized trail networks that were constructed with grant funding from the Recreational Trails Program and other Federal funding sources. Some commenters stated that E-bike use might impact future trail funding from Federal programs such as the Land and Water Conservation Fund. Response: Class 1, 2, or 3 E-bike use may be inappropriate on certain roads and trails that were constructed or are maintained using funding sources which may prohibit or be inconsistent with motorized use, such as the Recreational Trails Program and other Federal funding sources authorized by Title 23, Chapter 2 of the United States Code. Reclamation has designed the rule to provide Regional Directors with the ability to consider whether E-bike use is consistent with potential funding sources when determining which roads and trails to allow E-bike use. Regional Directors will take these and other types of site-specific consideration into account when making future planning or implementation-level decisions concerning E-bike use. Comment: The opening of trails to Ebikes on Government managed lands will make it easier for people with physical impairments to enjoy trails again. Response: The intention of the Secretarial Order 3376, Increasing Recreational Opportunities through the Use of Electric Bikes, was written for this very reason. Reclamation understands that there are members of the public that may be unable to utilize public trails and roads by means of biking due to physical limitations and impairments. It is important to note that while the purpose is to expand recreational opportunities by allowing E-bikes on trails, 43 CFR part 420 will continue to authorize Regional Directors and their delegates authority to open or close the use of E-bikes on certain trails. This decision will remain at the local level and follow the framework of 43 CFR part 420. Comment: The new rule provides much needed category guidelines for public safety officers as well as a new degree of local level decision making for E-bikes. Response: The current category classes of E-bikes is a widely used model across the United States. While Reclamation did not create the classes, we do recognize the importance of maintaining a clear and consistent message to aid not only public safety VerDate Sep<11>2014 16:23 Oct 21, 2020 Jkt 253001 officers, but also the general public. Additionally, due to the unique characteristics of each recreation area, Reclamation also agrees that maintaining local level decision making is vital in successfully implementing the Secretarial Order. In accordance with 43 CFR 420.5(a)(7), Reclamation’s Regional Directors may expressly determine, as part of a land-use planning or implementation-level decision, that Ebikes should be treated the same as nonmotorized bicycles. Comment: Federal Laws concerning E-bike use on public lands are currently outdated and are confusing for consumers, small businesses and local governments. This proposed rule fixes that. Response: Reclamation’s final rule is not changing any existing Federal Laws but rather aligning with other land management bureaus within DOI and other Federal Agencies. The Secretarial Order has intended to increase recreational opportunities through the use of E-bikes by establishing uniform rules across DOI. Reclamation’s authority to use discretion when opening and closing areas to the use of E-bikes will not be affected by the rule. In accordance with 43 CFR 420.5(a)(7), Reclamation’s Regional Directors may expressly determine, as part of a landuse planning or implementation-level decision, that E-bikes should be treated the same as non-motorized bicycles. Summary of Changes From the Proposed Rule After taking the public comments into consideration and after additional review, Reclamation has made the decision to not revise 43 CFR 420.21, but rather add language to 43 CFR 420.5(a)(7) to allow Reclamation’s Regional Directors to expressly determine, as part of a land-use planning or implementation-level decision, that E-bikes should be treated the same as non-motorized bicycles. Additionally, Reclamation made small, non-substantive stylistic, formatting, and structural changes to better serve the reader. 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. OIRA has determined that this rule is not significant. PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 67297 Executive Order 13563 reaffirms the principles of Executive Order 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. We have developed this rule in a manner consistent with these requirements. This rule is not an Executive Order 13771 regulatory action because it is not significant under Executive Order 12866. Regulatory Flexibility Act DOI certifies that 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.). Small Business Regulatory Enforcement Fairness Act 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. 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 (UMRA) 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. This rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing information required by the UMRA (2 U.S.C. 1531 et seq.) is not required. Takings (Executive Order 12630) This rule does not affect a taking of private property or otherwise have E:\FR\FM\22OCR1.SGM 22OCR1 67298 Federal Register / Vol. 85, No. 205 / Thursday, October 22, 2020 / Rules and Regulations taking implications under Executive Order 12630. This rule is not a Government action capable of interfering with constitutionally protected property rights. A takings implication assessment is not required. 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. It does not have a substantial direct effect on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the levels of government. A federalism summary impact statement is not required. Civil Justice Reform (Executive Order 12988) This rule complies with the requirements of Executive Order 12988. 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. Consultation With Indian Tribes (Executive Order 13175) Under the criteria in Executive Order 13175, we have evaluated this rule and determined that it has no potential effects on federally recognized Indian tribes. This rule does not have tribal implications that impose substantial direct compliance costs on Indian Tribal governments. Paperwork Reduction Act of 1995 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. This rule is categorically excluded from the National Environmental Policy Act of 1969 analysis under DOI categorical exclusion, 43 CFR 46.210(i), which covers 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 16:23 Oct 21, 2020 Jkt 253001 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 is not required. This rule will not have a significant effect on the Nation’s energy supply, distribution, or use. Drafting Information This final rule reflects the collective efforts of Reclamation staff in the Asset Management Division under the Dam Safety and Infrastructure Directorate, and in coordination with staff of the Bureau of Land Management, National Park Service, U. S. Fish and Wildlife Service, as well as with assistance from DOI’s Office of the Solicitor. References National Environmental Policy Act VerDate Sep<11>2014 process, either collectively, or case-bycase. This rule would not change the existing allowances for E-bike usage on Reclamation lands. Rather, it adds a new definition for E-bikes and directs Reclamation to specifically address Ebike usage in future recreation and landuse decisions. The categorical exclusion is appropriate and applicable because the rule is for an administrative change and the environmental effects of the rule in future land use and implementationlevel decisions to open or close lands are too speculative to lend themselves to meaningful analysis in this rulemaking. The environmental consequences of these decisions will be subject to the NEPA process before a land use decision is made to ensure the appropriate management of resources on a case-by-case basis. Pursuant to 43 CFR 46.205(c), Reclamation has reviewed its reliance upon this categorical exclusion against the list of extraordinary circumstances, at 43 CFR 46.215, and has found that none are applicable for this rule. Therefore, neither an environmental assessment nor an environmental impact statement is required for this rulemaking. A complete list of all resources reviewed and considered during the development of this rulemaking is available at http://www.regulations.gov at Docket No. BOR–2020–0001. List of Subjects in 43 CFR Part 420 E-bikes, Recreation. For the reasons stated in the preamble, Reclamation is amending part 420 of title 43 of the Code of Federal Regulations as follows: PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 PART 420—OFF-ROAD VEHICLE USE 1. The authority citation for part 420 continues to read as follows: ■ Authority: 32 Stat. 388 (43 U.S.C. 391 et seq.) and acts amendatory thereof and supplementary thereto; E.O. 11644 (37 FR 2877). 2. Amend § 420.5 by revising paragraph (a) and adding paragraph (h) to read as follows: ■ § 420.5 Definitions. * * * * * (a) Off-road vehicle means any motorized vehicle (including standard automobile) designed for or capable of cross-country travel on or immediately over land, water, sand, snow, ice, marsh, swampland, or natural terrain. The term includes: (1) Nonamphibious registered motorboats; (2) Military, fire, emergency, or law enforcement vehicles when used for emergency purpose; (3) Self-propelled lawnmowers, snowblowers, garden or lawn tractors, and golf carts while being used for their designed purpose; (4) Agricultural, timbering, construction, exploratory, and development equipment and vehicles while being used exclusively as authorized by permit, lease, license, agreement, or contract with the Bureau; (5) Any combat or combat support vehicle when used in times of national defense emergencies; (6) ‘‘Official use’’ vehicles; and (7) Electric bikes as defined by paragraph (h) of this section: While being used on roads and trails upon which mechanized, non-motorized use is allowed, that are not being used in a manner where the motor is being used exclusively to propel the E-bike for an extended period of time, and where the Regional Director has expressly determined, as part of a land-use planning or implementation-level decision, that E-bikes should be treated the same as non-motorized bicycles. * * * * * (h) Electric bicycle (also known as an E-bike) means a two- or three-wheeled cycle with fully operable pedals and an electric motor of not more than 750 watts (1 horsepower) that meets the requirements of one of the following three classes: (1) 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. (2) Class 2 electric bicycle means an electric bicycle equipped with a motor E:\FR\FM\22OCR1.SGM 22OCR1 Federal Register / Vol. 85, No. 205 / Thursday, October 22, 2020 / Rules and Regulations that may be used exclusively to propel the bicycle, and that is not capable of providing assistance when the bicycle reaches the speed of 20 miles per hour. (3) Class 3 electric bicycle 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. Timothy R. Petty, Assistant Secretary—Water and Science. [FR Doc. 2020–22108 Filed 10–21–20; 8:45 am] BILLING CODE 4332–90–P DEPARTMENT OF TRANSPORTATION Maritime Administration 46 CFR Part 310 [Docket No. MARAD–2020–0142] RIN 2133–AB92 Admission and Training of Midshipmen at the United States Merchant Marine Academy; Amendment Providing an Emergency Waiver for Scholastic Requirements Maritime Administration, Department of Transportation. ACTION: Interim final rule; request for comments. AGENCY: This interim final rule amends Maritime Administration (MARAD) regulations governing admission to the United States Merchant Marine Academy (USMMA). These amendments allow the MARAD Administrator to waive the requirement for USMMA applicants to have taken the College Board’s Scholastic Aptitude Test (SAT) or the American College Testing Program (ACT) examination in the event of a State or national emergency. The ability to waive SAT and ACT requirements for prospective students is necessary to address testing disruptions caused by the coronavirus disease 2019 (COVID–19) public health emergency. DATES: This interim final rule is effective October 22, 2020. Comments on this interim final rule must be received on or before November 23, 2020. SUMMARY: You may submit comments to the docket number identified in the heading of this document by any of the following methods: • Federal eRulemaking Portal: Go to http://www.regulations.gov. Search using docket number MARAD–2020– 0142. Follow the online instructions for submitting comments. ADDRESSES: VerDate Sep<11>2014 16:23 Oct 21, 2020 Jkt 253001 • Mail: U.S. Department of Transportation, 1200 New Jersey Avenue SE, Docket Management Facility, West Building Ground Floor, Room W12–140, Washington, DC 20590–0001. • Hand Delivery or Courier: 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12–140, between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366–9322 before coming. Regardless of how you submit your comments, please be sure to identify your submission by including the docket number. Instructions: For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Participation section below. Note: All comments received will be posted without change to http:// www.regulations.gov, including any personal information provided. Please see the Privacy Act heading under Rulemaking Notices and Analyses regarding documents submitted to the Agency’s dockets. Docket: For access to the online docket to read background documents or comments received, go to http:// www.regulations.gov and search ‘‘MARAD–2020–0142.’’ FOR FURTHER INFORMATION CONTACT: Mitch Hudson, Office of the Chief Counsel, at (202) 366–9373 or Mitch.Hudson@dot.gov. The mailing address for the Maritime Administration, Office of the Chief Counsel is 1200 New Jersey Avenue SW, Washington, DC 20590. SUPPLEMENTARY INFORMATION: Table of Contents I. Executive Summary II. Background III. United States Merchant Marine Academy Request IV. Agency’s Response a. Exemption to Admission Requirements V. Comments and Immediate Effective Date VI. Regulatory Analyses and Notices VII. Public Participation I. Executive Summary Institutions of higher education across the Nation have been severely impacted by the coronavirus disease 2019 (COVID–19) public health emergency, which has not only required them to adapt teaching methods and practices, but also admissions processes and criteria. USMMA is only one institution among the many faced with the dilemma of how to ensure the selection of qualified candidates given the current situation. The USMMA admissions PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 67299 policy is currently governed by 46 CFR 310.55—Scholastic requirements, which provides in subsection (b)(1) that ‘‘[a]pplicants shall qualify in either the College Board’s Scholastic Aptitude Tests (SAT) or the American College Testing Program (ACT) examinations, administered nationally on scheduled dates at convenient testing centers.’’ Subsection (d) further provides that ‘‘[n]o waivers of scholastic requirements will be granted.’’ Due to the COVID–19 public health emergency, student access to test centers and the opportunity to take the SAT and ACT have been greatly reduced in the United States. Requiring SAT or ACT test scores from students in this admissions cycle by strictly adhering to the regulation as currently written will significantly affect the application process, selection, and appointment of prospective candidates, and may negatively impact enrollment numbers for the Class of 2025 at USMMA. This interim final rule responds to an emergency waiver request submitted by USMMA seeking a revision to its governing regulations that would provide for a waiver of the scholastic requirements in an emergency situation. After considering the issues raised in the USMMA request, the Agency agrees that the unprecedented disruptions caused by the public health emergency make compliance by prospective candidates with the regulations as presently styled impracticable and warrant appropriate regulatory relief. Accordingly, MARAD is revising the regulations to give the MARAD Administrator the ability to issue a waiver of the scholastic requirements in the event of a State or national emergency that significantly limits the ability of applicants to take either the SAT or ACT. To ensure the proper implementation of this revision, MARAD is seeking comments on the USMMA request and the Agency’s Interim Final Rule. II. Background USMMA operates on a rolling admissions cycle. The cycle for the future Class of 2025 began on May 1, 2020 when applications were first accepted. Each candidate must first obtain a Congressional nomination to receive an appointment to the Academy. The nomination process is independent from the application process; each member of Congress decides what requirements they deem appropriate. However, many members of Congress take into consideration a candidate’s standardized test scores. Therefore, the lack of ACT/SAT standardized testing E:\FR\FM\22OCR1.SGM 22OCR1

Agencies

[Federal Register Volume 85, Number 205 (Thursday, October 22, 2020)]
[Rules and Regulations]
[Pages 67294-67299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22108]


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DEPARTMENT OF THE INTERIOR

Bureau of Reclamation

43 CFR Part 420

[RR85672000, 20XR0680A2, RX.31480001.0040000]
RIN 1006-AA57


Off-Road Vehicle Use

AGENCY: Bureau of Reclamation, Interior.

ACTION: Final rule.

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SUMMARY: The Bureau of Reclamation (Reclamation) is amending its 
regulations to add a definition for electric bikes (E-bikes) and 
exclude E-bikes from the regulatory definition of an off-road vehicle 
where E-bikes are being used on roads and trails where mechanized, non-
motorized use is allowed, where E-bikes are not propelled exclusively 
by a motorized source, and appropriate Reclamation Regional Directors 
expressly determine through a formal decision that E-bikes should be 
treated the same as non-motorized bicycles. This change facilitates 
increased E-bike use where other types of bicycles are allowed in a 
manner consistent with existing use of Reclamation land, and increases 
recreational opportunities for all Americans, especially those with 
physical limitations.

DATES: This rulemaking is effective November 23, 2020.

ADDRESSES: This final rule is available on the internet at http://www.regulations.gov and http://www.usbr.gov/recreation/. 
Comments we received, as well as supporting documentation we used in 
preparing this final rule, are available for public inspection at 
http://www.regulations.gov in Docket ID: BOR-2020-0001.

FOR FURTHER INFORMATION CONTACT: Ryan Alcorn, Asset Management 
Division, Bureau of Reclamation, (303) 445-2711; [email protected].

SUPPLEMENTARY INFORMATION:

Background

    On August 29, 2019, the Secretary of the Interior signed 
Secretarial Order 3376, Increasing Recreation Opportunities Through the 
Use of Electric Bikes, that directed Reclamation and other Department 
of the Interior (DOI) bureaus (Bureau of Land Management, National Park 
Service, and the U.S. Fish and Wildlife Service) to increase recreation 
opportunities and expand access on public lands. The Secretarial Order 
addressed regulatory uncertainty on how bureaus within DOI manage 
recreational opportunities for E-bikes on trails and paths where 
traditional bikes are allowed.
    Uncertainty about the regulatory status of E-bikes had led some of 
DOI's land management bureaus to impose restrictive access policies 
treating E-bikes as motor vehicles, often inconsistent with State and 
local regulations for adjacent areas. The possibility that in some 
cases E-bikes can be propelled solely through power provided by the 
electric motor, a function often used in short duration as an assist, 
has contributed to confusion about E-bike classification. Further, 
Federal regulation has not been consistent across DOI and has created 
ambiguity among recreation area rules regarding trail and road access 
to E-bikes resulting in limited access to Federally owned lands by E-
bike riders.
    To provide consistency in Federal policy among DOI's bureaus, the 
Secretarial Order set forth the policy of DOI that E-bikes should be 
allowed where other, non-motorized types of bicycles are allowed, and 
not allowed where other, non-motorized types of bicycles are 
prohibited.

Summary of Final Rule

    Reclamation was directed by the Secretarial Order to revise 43 CFR 
part 420 to add a definition of E-bikes and to generally treat E-bikes 
similarly to traditional, non-motorized bicycles. Continuing, it is 
further specified that E-bikes should be defined as having two or three 
wheels and fully operable pedals. The electric motor for an E-bike may 
not exceed 750 watts (one horsepower) and E-bikes must fall into one of 
three classes:
    (a) ``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;
    (b) ``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; and
    (c) ``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.
    The rule therefore amends title 43 of the Code of Federal 
Regulations (CFR) by revising part 420 as follows:
    (a) Section 420.5(a) is amended to include E-bikes that satisfy 
certain criteria in the specified exclusions to the definition of off-
road vehicles.
    (b) Section 420.5(h) is added to define electric bicycles to 
include the three classes of electric bicycles.
    Reclamation expects these changes to the rule could facilitate 
increased E-bike ridership on Reclamation lands in the future. However, 
the rule would not be self-executing. The rule, in and of itself, does 
not change existing allowances for E-bike usage on Reclamation-
administered public lands. It would neither allow E-bikes on roads and 
trails that are currently closed to off-road vehicles but open to 
mechanized, non-motorized bicycle use, nor affect the use of E-bikes 
and other motorized vehicles on roads and trails where off-road vehicle 
use is currently allowed. Furthermore, 43 CFR 420.5(a)(7) would allow 
Reclamation's Regional Directors to expressly determine, as part of a 
land-use planning or implementation-level decision, that E-bikes should 
be treated the same as non-motorized bicycles. While Reclamation 
intends for this rule to increase accessibility to public lands, E-
bikes would not be given special access beyond what traditional, non-
motorized bicycles are allowed. To address site-specific issues, 
Reclamation would consider the environmental impacts from the use of E-
bikes through subsequent analysis in accordance with applicable legal 
requirements, including the National Environmental Policy Act of 1969 
(NEPA).

Summary of and Response to Public Comments

    Reclamation published a proposed rule in the Federal Register on 
April 13, 2020 (85 FR 20463) soliciting public comments for a 60-day 
period. The public comment period ended on June 12, 2020. During the 
public comment period, Reclamation received 705 comment submissions 
from members of the public including senior citizens, avid cyclists, 
hikers, equestrians and equestrian associations, industrial cycling 
organizations and manufacturers, as well as state and local

[[Page 67295]]

governments. Each public comment received consideration in the 
development of the final rule.
    Comments received that are similar in nature have been categorized 
by subject, and in some instances have been combined with related 
comments. The following discussion addresses substantive information 
provided during the comment period, by topic, and includes comments and 
responses that were made in the final rule based on comment analysis 
and other considerations.
    Comment: Before any existing, non-motorized trails could be opened 
to E-bikes, logic suggests a NEPA study should have to be completed.
    Response: Lands managed by Reclamation vary significantly from 
region to region (e.g., the environmental variability, potential user 
conflicts, amounts of visitation) making an overarching NEPA analysis 
infeasible. Addressing potential environmental and social issues are 
most meaningful at the site-specific level. Reclamation will consider 
the suitability of E-bike use on specific trails through subsequent 
analysis consistent with the requirements of NEPA and other applicable 
laws. The NEPA process and implementation will be conducted in 
accordance with 43 CFR 420.5(a)(7) whereby Reclamation's Regional 
Directors may expressly determine, as part of a land-use planning or 
implementation-level decision, that E-bikes should be treated the same 
as non-motorized bicycles. Implementation may also include the 
development of site-specific design features and mitigation strategies 
to reduce or negate potential adverse impacts.
    Comment: A public review and comment period of at least 60 days 
should be provided for each proposed trail or trail system, and that 
comment period should be in a season when the area is accessible to 
people who want to examine the routes for themselves before submitting 
comments.
    Response: Reclamation began its 60-day public comment period on 
April 13, 2020 and concluded on June 12, 2020. This period gave the 
public the opportunity to participate in the rulemaking process. Given 
the quantity of existing trails upon Reclamation lands, creating 
additional 60-day public comment periods for each proposed trail would 
be extremely costly and create a large administrative burden. 
Additionally, as local field and area offices will work with recreation 
area managing partners to make such determinations, the decision to add 
additional comment periods, if necessary, will remain at that level and 
at the discretion of the Regional Director.
    Comment: Reclamation seeks to define relevant classifications of 
electric bicycles (``E-bikes'') and exclude E-bikes from DOI's 
regulatory definition of ``off-road vehicles,'' which are forbidden to 
be used in certain areas that are open to traditional bicyclists. 
Permitting the use of certain E-bikes in appropriate areas could indeed 
benefit many Americans who otherwise could not access certain lands. 
However, instead of clearly describing a widening of the permitted 
category of ``bicycles,'' the amendment offers clumsy, incohesive 
groupings of E-bikes. The proposed amendments may create arbitrary and 
capricious results.
    Response: The definition of E-bikes included in this rule 
establishes a consistent definition for use across all DOI bureaus. The 
definition and associated classification system are based on industry 
standards and is the same system that many states are using to regulate 
E-bikes. DOI chose this system to be as consistent as possible with how 
E-bikes are being regulated.
    Comment: The regulation fails to offer any policy rationale, and 
thus is both arbitrary and capricious and fails to allow commenters to 
properly respond to the agency's decision-making. The regulation simply 
states that ``E-bikes should be allowed where other, non-motorized 
types of bicycles are allowed.''
    Response: Federal regulation of E-bikes has not been consistent 
across DOI. The purpose of this rulemaking is to unify regulation of E-
bikes on Federal lands managed by DOI. Secretarial Order 3376 directs 
the Bureau of Land Management, U. S. Fish and Wildlife Service, 
National Park Service, and Reclamation to define E-bikes, and directs 
Reclamation to expressly exclude E-bikes from the definition of Off-
Road Vehicles (ORV) in accordance with 43 CFR 420.5(a)(7) whereby 
Reclamation's Regional Directors may expressly determine, as part of a 
land-use planning or implementation-level decision, that E-bikes should 
be treated the same as non-motorized bicycles.
    Comment: We support allowing only Class 1 E-bikes on narrow trails 
to better ensure trail integrity and appropriate speeds for safe 
interaction with other trail users. Class 2 and Class 3 E-bikes are not 
appropriate for these narrow non-motorized trails.
    Response: Reclamation acknowledges comments that request the 
exclusion of Class 2 and Class 3 E-bikes from non-motorized trails. The 
rule provides Regional Directors or their delegates authority to 
determine whether E-bike use generally, or the use of certain classes 
of E-bikes, would be appropriate on certain roads or trails.
    Comment: Omit three-wheeled E-bikes or provide a detailed 
description of the three-wheeled bikes and specific trail parameters on 
which they should be allowed. Three-wheeled bikes are closer to all-
terrain vehicles and will have specific requirements for the trails 
unlike a two-wheeled E-bike.
    Response: Reclamation acknowledges comments pertaining to omitting 
the use of three-wheeled E-bikes on non-motorized trails. The rule 
provides Regional Directors or their delegates the authority to 
determine whether E-bike use generally, or the use of certain classes 
of E-bikes, would be appropriate on certain roads or trails. Regional 
Directors may also determine whether the use of three-wheeled E-bikes 
are appropriate on certain roads or trails. In addition, keeping in 
line with industry standards, the term ``low-speed'' electric bicycles 
means two- or three-wheeled vehicle.
    Comment: Reclamation should amend text within the proposed rule to 
allow all bicycle trails and routes to be open to E-bikes as well as 
motorized paths with improved surfaces.
    Response: Reclamation believes that E-bikes would generally be 
appropriate on roads and trails upon which mechanized, non-motorized 
use is permitted, however there are certain instances where that may 
not be possible. Therefore, it is most appropriate to follow 43 CFR 
420.5(a)(7) whereby Reclamation's Regional Director may expressly 
determine, as part of a land-use planning or implementation-level 
decision, that E-bikes should be treated the same as non-motorized 
bicycles. Additionally, E-bikes are currently allowed on many surfaced 
roads and motorized paths per state and local level discretion.
    Comment: As Reclamation will be allowing E-bikes on non-motorized 
trails and trail systems, the addition of other ORVs should also be 
permitted.
    Response: This final rule addresses only Class 1, 2, and 3 E-bikes. 
Reclamation will continue to manage all types of ORVs in accordance 
with 43 CFR 420.21, Procedure for Designating Areas for Off-Road 
Vehicle Use. No other types of ORVs will be eligible for exclusion 
under this rule.
    Comment: Reclamation may wish to exclude hoverboards and other 
standing, electrical motorbikes, because these devices can also have 
``pedals'' that do not engage the motor unless activated. Explicit 
exclusion of hoverboards and other motorized instruments may be 
required to avoid an issue.

[[Page 67296]]

    Response: The intent of the rule is to generally allow E-bikes 
where a traditional bicycle is allowed. E-bikes may have two or three 
wheels and must have fully operable pedals. The electric motor for an 
E-bike may not exceed 750 watts (one horsepower). E-bikes must fall 
into one of three classes, as described in the rule. The definition 
provided in the rule, including the requirement for fully operational 
pedals, is sufficient to allow use of E-bikes and does not apply to 
other electric vehicles such as scooters, skateboards, or hoverboards 
if they do not fit into the definition established by this rule.
    Comment: Definitions of Class 1, 2, and 3 E-bikes will need to be 
reassessed and updated to reflect improvement in technologies as it 
becomes available.
    Response: Reclamation acknowledges that future changes in 
technology may result in some E-bikes not being eligible for exclusion 
from the definition of ORV as defined in 43 CFR part 420 if they do not 
fit into the definition established by this rule. Regional Directors 
may allow the use of certain ORVs on designated routes and trails 
without any necessary revisions to the regulations as part of 43 CFR 
420.21, Procedure for Designation Areas for Off-road Vehicle Use.
    Comment: Previous grants that put monies into non-motorized trails, 
will now have spent their money on trails that are no longer non-
motorized. E-bikes would also create issues with further Federal trail 
funding.
    Response: Reclamation recognizes that funding commitments for trail 
planning, construction, and maintenance must be considered. The use of 
funds from grants and other funding sources for past, present, and 
future trail projects will be a contributing factor in making 
management determinations. Title 43 CFR part 420 gives Regional 
Directors authority in making management determinations.
    Comment: The implementation of the proposed rule will negatively 
impact natural resources and wildlife.
    Response: Future implementation of the rule will be subject to the 
NEPA process on a case-by-case basis depending on the approach at 
Reclamation's Regional and Area Office levels. Applying the NEPA 
process at a site-specific level will allow Reclamation to evaluate 
detailed information on the potential effects of E-bike use for a 
particular area and develop site-specific design features and 
mitigation strategies, if needed. In addition, the rule continues to 
allow the flexibility in accordance with 43 CFR 420.5(a)(7) whereby 
Reclamation's Regional Directors may expressly determine, as part of a 
land-use planning or implementation-level decision, that E-bikes should 
be treated the same as non-motorized bicycles and to review designated 
areas and trails periodically for unmitigated resource damage.
    Comment: The use of E-bikes on non-motorized trails will create 
user conflicts and safety concerns for hikers, traditional bikers, and 
equestrians.
    Response: Reclamation acknowledges concerns regarding potential 
user conflicts and safety concerns on trails that have previously been 
designated for non-motorized use such as hiking and equestrian trails. 
As such, the rule allows the flexibility in accordance with 43 CFR 
420.5(a)(7) whereby Reclamation's Regional Directors may expressly 
determine, as part of a land-use planning or implementation-level 
decision, that E-bikes should be treated the same as non-motorized 
bicycles and will not create unmitigated user conflicts.
    Comment: Based on the three categories of E-bikes as defined in the 
rule, it will be impossible to enforce that E-bikes are not modified 
beyond these specifications.
    Response: Illegal modification of E-bikes is beyond the scope of 
this rulemaking process. Reclamation acknowledges that enforcement of 
modified vehicles is difficult. However, modifications that result in 
such vehicles no longer qualifying as a Class 1, 2, or 3 E-bike as 
defined in the rule, result in that vehicle being subject to the same 
enforcement as designated in 43 CFR 420.4.
    Comment: E-bikes have a motor and therefore should not be allowed 
on non-motorized trails and roads.
    Response: Reclamation recognizes the nuance within the comments 
related to E-bikes having a motor, and therefore should not be allowed 
on non-motorized trails and roads. In making its decision Reclamation 
took into consideration the 1972 Executive Order 11644 and the amended 
1977 Executive Order 11989, ``Use of Off-Road Vehicles on the Public 
Lands'' which established 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 
users. The Executive order, which does not reference E-bikes, 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. Certain vehicles are 
expressly exempt from this definition and additional exemptions may be 
made by the respective agency head or as is 43 CFR part 420 by Regional 
Directors.
    In addition, although the E-bikes addressed in this rule have a 
small electric motor, there are multiple reasons why it is reasonable 
for Regional Directors to maintain the authority to manage Class 1, 2, 
and 3 E-bikes in the same manner as non-motorized bicycles.
    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 and that the 
executive branch was interested in regulating. These vehicles include 
the ``motorcycles, minibikes, trail bikes, snowmobiles, dune-buggies, 
[and] all-terrain vehicles'' expressly referenced in Executive Order 
11644 and the ``motorcycles of various sorts (minibikes, dirt bikes, 
enduros, motocross bikes, for example), four-wheel drive vehicles such 
as Jeeps, Land Rovers, or pickups, snowmobiles, dune buggies, and all-
terrain vehicles'' discussed in a 1979 report by the Council on 
Environmental Quality (CEQ) that discusses the requirements of the 
Executive Order in great detail and evaluates efforts undertaken by 
Federal land management agencies to comply with its requirements. 
Although these lists were not intended to include every type of vehicle 
that may fall within the Executive order's definition of off-road 
vehicle, it is telling that all of the vehicles identified in Executive 
Order 11644 and the CEQ report differ markedly from E-bikes that may be 
excluded from the definition of ORV under this rule. Whereas the 
vehicles referenced in the Executive order are powered by internal 
combustion engines that produce more than 1 horsepower, the E-bikes 
that may be allowed on non-motorized trails under this rule rely on 
human power and only derive some assistance from a small, electric 
motor. Whereas the E-bikes that are the subject of this rule have 
operable pedals, the ORVs expressly referenced in the Executive order 
do not.
    As a result of those engineering differences, E-bikes tend to have 
impacts that are similar to traditional, non-motorized bicycles and 
unlike those that result from the larger, more powerful vehicles that 
Executive Order 11644 was intended to mitigate.
    Lastly, 43 CFR part 420 has always allowed for the inclusion of 
ORVs where Regional Directors have authorized the use, this rule is not 
authorizing the opening of all trails and roads to E-bikes. The 
intended purpose is to meet public demand for E-bike use

[[Page 67297]]

and creating opportunities for furthering recreation through the use of 
E-bikes where it is deemed appropriate.
    Comment: Some commenters stated that E-bikes would be incompatible 
on non-motorized trail networks that were constructed with grant 
funding from the Recreational Trails Program and other Federal funding 
sources. Some commenters stated that E-bike use might impact future 
trail funding from Federal programs such as the Land and Water 
Conservation Fund.
    Response: Class 1, 2, or 3 E-bike use may be inappropriate on 
certain roads and trails that were constructed or are maintained using 
funding sources which may prohibit or be inconsistent with motorized 
use, such as the Recreational Trails Program and other Federal funding 
sources authorized by Title 23, Chapter 2 of the United States Code. 
Reclamation has designed the rule to provide Regional Directors with 
the ability to consider whether E-bike use is consistent with potential 
funding sources when determining which roads and trails to allow E-bike 
use. Regional Directors will take these and other types of site-
specific consideration into account when making future planning or 
implementation-level decisions concerning E-bike use.
    Comment: The opening of trails to E-bikes on Government managed 
lands will make it easier for people with physical impairments to enjoy 
trails again.
    Response: The intention of the Secretarial Order 3376, Increasing 
Recreational Opportunities through the Use of Electric Bikes, was 
written for this very reason. Reclamation understands that there are 
members of the public that may be unable to utilize public trails and 
roads by means of biking due to physical limitations and impairments. 
It is important to note that while the purpose is to expand 
recreational opportunities by allowing E-bikes on trails, 43 CFR part 
420 will continue to authorize Regional Directors and their delegates 
authority to open or close the use of E-bikes on certain trails. This 
decision will remain at the local level and follow the framework of 43 
CFR part 420.
    Comment: The new rule provides much needed category guidelines for 
public safety officers as well as a new degree of local level decision 
making for E-bikes.
    Response: The current category classes of E-bikes is a widely used 
model across the United States. While Reclamation did not create the 
classes, we do recognize the importance of maintaining a clear and 
consistent message to aid not only public safety officers, but also the 
general public. Additionally, due to the unique characteristics of each 
recreation area, Reclamation also agrees that maintaining local level 
decision making is vital in successfully implementing the Secretarial 
Order. In accordance with 43 CFR 420.5(a)(7), Reclamation's Regional 
Directors may expressly determine, as part of a land-use planning or 
implementation-level decision, that E-bikes should be treated the same 
as non-motorized bicycles.
    Comment: Federal Laws concerning E-bike use on public lands are 
currently outdated and are confusing for consumers, small businesses 
and local governments. This proposed rule fixes that.
    Response: Reclamation's final rule is not changing any existing 
Federal Laws but rather aligning with other land management bureaus 
within DOI and other Federal Agencies. The Secretarial Order has 
intended to increase recreational opportunities through the use of E-
bikes by establishing uniform rules across DOI. Reclamation's authority 
to use discretion when opening and closing areas to the use of E-bikes 
will not be affected by the rule. In accordance with 43 CFR 
420.5(a)(7), Reclamation's Regional Directors may expressly determine, 
as part of a land-use planning or implementation-level decision, that 
E-bikes should be treated the same as non-motorized bicycles.

Summary of Changes From the Proposed Rule

    After taking the public comments into consideration and after 
additional review, Reclamation has made the decision to not revise 43 
CFR 420.21, but rather add language to 43 CFR 420.5(a)(7) to allow 
Reclamation's Regional Directors to expressly determine, as part of a 
land-use planning or implementation-level decision, that E-bikes should 
be treated the same as non-motorized bicycles. Additionally, 
Reclamation made small, non-substantive stylistic, formatting, and 
structural changes to better serve the reader.

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. OIRA has determined that this rule is not 
significant.
    Executive Order 13563 reaffirms the principles of Executive Order 
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. We have developed this 
rule in a manner consistent with these requirements.
    This rule is not an Executive Order 13771 regulatory action because 
it is not significant under Executive Order 12866.

Regulatory Flexibility Act

    DOI certifies that 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.).

Small Business Regulatory Enforcement Fairness Act

    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. 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 (UMRA)

    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. This rule does not have a significant or unique effect on State, 
local, or tribal governments or the private sector. A statement 
containing information required by the UMRA (2 U.S.C. 1531 et seq.) is 
not required.

Takings (Executive Order 12630)

    This rule does not affect a taking of private property or otherwise 
have

[[Page 67298]]

taking implications under Executive Order 12630. This rule is not a 
Government action capable of interfering with constitutionally 
protected property rights. A takings implication assessment is not 
required.

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. It does not have 
a substantial direct effect on the States, on the relationship between 
the Federal Government and the States, or on the distribution of power 
and responsibilities among the levels of government. A federalism 
summary impact statement is not required.

Civil Justice Reform (Executive Order 12988)

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

Consultation With Indian Tribes (Executive Order 13175)

    Under the criteria in Executive Order 13175, we have evaluated this 
rule and determined that it has no potential effects on federally 
recognized Indian tribes. This rule does not have tribal implications 
that impose substantial direct compliance costs on Indian Tribal 
governments.

Paperwork Reduction Act of 1995

    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.

National Environmental Policy Act

    This rule is categorically excluded from the National Environmental 
Policy Act of 1969 analysis under DOI categorical exclusion, 43 CFR 
46.210(i), which covers policies, directives, regulations, and 
guidelines: That are of an administrative, financial, legal, technical, 
or procedural nature; or whose environmental effects are too broad, 
speculative, or conjectural to lend themselves to meaningful analysis 
and will later be subject to the NEPA process, either collectively, or 
case-by-case. This rule would not change the existing allowances for E-
bike usage on Reclamation lands. Rather, it adds a new definition for 
E-bikes and directs Reclamation to specifically address E-bike usage in 
future recreation and land-use decisions. The categorical exclusion is 
appropriate and applicable because the rule is for an administrative 
change and the environmental effects of the rule in future land use and 
implementation-level decisions to open or close lands are too 
speculative to lend themselves to meaningful analysis in this 
rulemaking. The environmental consequences of these decisions will be 
subject to the NEPA process before a land use decision is made to 
ensure the appropriate management of resources on a case-by-case basis.
    Pursuant to 43 CFR 46.205(c), Reclamation has reviewed its reliance 
upon this categorical exclusion against the list of extraordinary 
circumstances, at 43 CFR 46.215, and has found that none are applicable 
for this rule. Therefore, neither an environmental assessment nor an 
environmental impact statement is required for this rulemaking.

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 is not 
required. This rule will not have a significant effect on the Nation's 
energy supply, distribution, or use.

Drafting Information

    This final rule reflects the collective efforts of Reclamation 
staff in the Asset Management Division under the Dam Safety and 
Infrastructure Directorate, and in coordination with staff of the 
Bureau of Land Management, National Park Service, U. S. Fish and 
Wildlife Service, as well as with assistance from DOI's Office of the 
Solicitor.

References

    A complete list of all resources reviewed and considered during the 
development of this rulemaking is available at http://www.regulations.gov at Docket No. BOR-2020-0001.

List of Subjects in 43 CFR Part 420

    E-bikes, Recreation.

    For the reasons stated in the preamble, Reclamation is amending 
part 420 of title 43 of the Code of Federal Regulations as follows:

PART 420--OFF-ROAD VEHICLE USE

0
1. The authority citation for part 420 continues to read as follows:

    Authority: 32 Stat. 388 (43 U.S.C. 391 et seq.) and acts 
amendatory thereof and supplementary thereto; E.O. 11644 (37 FR 
2877).


0
2. Amend Sec.  420.5 by revising paragraph (a) and adding paragraph (h) 
to read as follows:


Sec.  420.5  Definitions.

* * * * *
    (a) Off-road vehicle means any motorized vehicle (including 
standard automobile) designed for or capable of cross-country travel on 
or immediately over land, water, sand, snow, ice, marsh, swampland, or 
natural terrain. The term includes:
    (1) Nonamphibious registered motorboats;
    (2) Military, fire, emergency, or law enforcement vehicles when 
used for emergency purpose;
    (3) Self-propelled lawnmowers, snowblowers, garden or lawn 
tractors, and golf carts while being used for their designed purpose;
    (4) Agricultural, timbering, construction, exploratory, and 
development equipment and vehicles while being used exclusively as 
authorized by permit, lease, license, agreement, or contract with the 
Bureau;
    (5) Any combat or combat support vehicle when used in times of 
national defense emergencies;
    (6) ``Official use'' vehicles; and
    (7) Electric bikes as defined by paragraph (h) of this section: 
While being used on roads and trails upon which mechanized, non-
motorized use is allowed, that are not being used in a manner where the 
motor is being used exclusively to propel the E-bike for an extended 
period of time, and where the Regional Director has expressly 
determined, as part of a land-use planning or implementation-level 
decision, that E-bikes should be treated the same as non-motorized 
bicycles.
* * * * *
    (h) Electric bicycle (also known as an E-bike) means a two- or 
three-wheeled cycle with fully operable pedals and an electric motor of 
not more than 750 watts (1 horsepower) that meets the requirements of 
one of the following three classes:
    (1) 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.
    (2) Class 2 electric bicycle means an electric bicycle equipped 
with a motor

[[Page 67299]]

that may be used exclusively to propel the bicycle, and that is not 
capable of providing assistance when the bicycle reaches the speed of 
20 miles per hour.
    (3) Class 3 electric bicycle 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.

Timothy R. Petty,
Assistant Secretary--Water and Science.
[FR Doc. 2020-22108 Filed 10-21-20; 8:45 am]
BILLING CODE 4332-90-P