Off-Road Vehicle Use, 67294-67299 [2020-22108]
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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 https://
www.regulations.gov and https://
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 https://
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:
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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.
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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
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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 https://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:
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Fmt 4700
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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
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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
https://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 https://
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 https://
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
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]]>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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 https://www.regulations.gov and https://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
https://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 https://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
