[Federal Register Volume 70, Number 216 (Wednesday, November 9, 2005)]
[Rules and Regulations]
[Pages 68264-68291]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22024]
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Part IV
Department of Agriculture
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Forest Service
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36 CFR Parts 212, 251, 261, and 295
Travel Management; Designated Routes and Areas for Motor Vehicle Use;
Final Rule
Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 /
Rules and Regulations
[[Page 68264]]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Parts 212, 251, 261, and 295
RIN 0596-AC11
Travel Management; Designated Routes and Areas for Motor Vehicle
Use
AGENCY: Forest Service, USDA.
ACTION: Final rule.
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SUMMARY: The Department of Agriculture is revising regulations
regarding travel management on National Forest System lands to clarify
policy related to motor vehicle use, including the use of off-highway
vehicles. This final rule requires designation of those roads, trails,
and areas that are open to motor vehicle use. Designations will be made
by class of vehicle and, if appropriate, by time of year. The final
rule will prohibit the use of motor vehicles off the designated system,
as well as use of motor vehicles on routes and in areas that is not
consistent with the designations. The clear identification of roads,
trails, and areas for motor vehicle use on each National Forest will
enhance management of National Forest System lands; sustain natural
resource values through more effective management of motor vehicle use;
enhance opportunities for motorized recreation experiences on National
Forest System lands; address needs for access to National Forest System
lands; and preserve areas of opportunity on each National Forest for
nonmotorized travel and experiences. The final rule is consistent with
provisions of Executive Order 11644 and Executive Order 11989 regarding
off-road use of motor vehicles on Federal lands.
EFFECTIVE DATE: This rule is effective December 9, 2005.
ADDRESSES: The rulemaking record for this final rule contains all the
documents pertinent to this rulemaking. These documents are available
for inspection and copying at the office of the Director, Recreation
and Heritage Resources Staff, USDA, Forest Service, 4th Floor Central,
Sidney R. Yates Federal Building, 1400 Independence Avenue, SW.,
Washington, DC, from 8:30 a.m. to 4 p.m., Monday through Friday, except
holidays. Those wishing to inspect or copy these documents are
encouraged to call Jerry Ingersoll, Recreation and Heritage Resources
staff, at (202) 205-0931 beforehand to facilitate access to the
building.
FOR FURTHER INFORMATION CONTACT: Jerry Ingersoll, Recreation and
Heritage Resources Staff, (202) 205-0931.
SUPPLEMENTARY INFORMATION:
Table of Contents
1. Background
Travel Management Program
Need for Revised Rule
2. Public Comments on Proposed Rule and Department Responses
Overview
General Comments
Forest Service Directives
Implementation
Proposed Rule Preamble
Specific Sections by Part
Part 212--Travel Management
Part 251--Land Uses
Part 261--Prohibitions
Part 295--Use of Motor Vehicles Off National Forest System Roads
Regulatory Certifications in the Proposed Rule
3. Regulatory Certifications for Final Rule
Environmental Impact
Regulatory Impact
Regulatory Flexibility Act Analysis
No Takings Implications
Civil Justice Reform
Federalism and Consultation and Coordination with
Indian Tribal Governments
Energy Effects
Unfunded Mandates
Controlling Paperwork Burdens on the Public
4. Text of the Final Rule
Part 212--Travel Management
Part 251--Land Uses
Part 261--Prohibitions
Part 295--Use of Motor Vehicles Off National Forest
System Roads
1. Background
Travel Management Program
Forest Service regulations at 36 CFR part 212 governing
administration of the forest transportation system and regulations at
36 CFR part 295 governing use of motor vehicles off National Forest
System (NFS) roads are combined and clarified in this final rule as
part 212, Travel Management, covering the use of motor vehicles on NFS
lands. These regulations implement Executive Order (E.O.) 11644
(February 8, 1972), ``Use of Off-Road Vehicles on the Public Lands,''
as amended by E.O. 11989 (May 24, 1977). These Executive orders direct
Federal agencies to ensure that the use of off-road vehicles on public
lands will be controlled and directed so as to protect the resources of
those lands, to promote the safety of all users of those lands, and to
minimize conflicts among the various uses of those lands.
Nationally, the Forest Service manages approximately 300,000 miles
of NFS roads open to motor vehicle use, and about 133,000 miles of NFS
trails. Only a portion of the trails are open to motor vehicles. This
transportation system ranges from paved roads designed for passenger
cars to single-track trails used by dirt bikes. Many roads designed for
high-clearance vehicles (such as log trucks and sport utility vehicles)
also allow use by all-terrain vehicles (ATVs) and other off-highway
vehicles (OHVs) not normally found on city streets. Almost all NFS
trails serve nonmotorized users, including hikers, bicyclists, and
equestrians, alone or in combination with motorized users. NFS roads
often accept nonmotorized use as well.
In addition to this managed system of roads and trails, many
National Forests contain user-created roads and trails. These routes
are concentrated in areas where cross-country travel by motor vehicles
has been allowed, and sometimes include dense, braided networks of
criss-crossing trail. There has been no comprehensive national
inventory of user-created routes (and continuing proliferation of such
routes has made a definitive inventory difficult), but they are
estimated to number in the tens of thousands of miles.
Wilderness areas are closed to motor vehicles by statute. On some
National Forests, and portions of others, motor vehicles are restricted
by order to the established system of roads and trails. On other
Forests, cross-country travel is not currently restricted.
Need for Revised Rule
Most National Forest visitors use motor vehicles to access the
National Forests, whether for recreational sightseeing; camping and
hiking; hunting and fishing; commercial purposes such as logging,
mining, and grazing; administration of utilities and other land uses;
outfitting and guiding; or the many other multiple uses of NFS lands.
For many visitors, motor vehicles also represent an integral part of
their recreational experience. People come to National Forests to ride
on roads and trails in pickup trucks, ATVs, motorcycles, and a variety
of other conveyances. Motor vehicles are a legitimate and appropriate
way for people to enjoy their National Forests--in the right places,
and with proper management.
Current regulations at 36 CFR part 295, which provide for allowing,
restricting, or prohibiting motor vehicle travel, were developed when
OHVs were less widely available, less powerful, and less capable of
cross-country travel than today's models. The growing popularity and
capabilities of OHVs demand new regulations, so that
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the Forest Service can continue to provide these opportunities while
sustaining the health of NFS lands and resources.
From 1982 to 2000, the number of people driving motor vehicles off
road in the United States increased over 109 percent (``Outdoor
Recreation for 21st Century America: A Report to the Nation, The
National Survey on Recreation and the Environment,'' p. 37 (H. Cordell,
2004)). Recent decades have seen like advances in the power, range, and
capabilities of OHVs. Whole new classes of vehicles have been
introduced by manufacturers and are growing in popularity. From 1997 to
2001, the number of ATVs in use increased by almost 40 percent
(statement by Dr. Edward J. Heiden at Consumer Products Safety
Commission Field Hearing, June 5, 2003). These advances expand
opportunities for Americans to enjoy Federal lands. However, the
magnitude and intensity of motor vehicle use have increased to the
point that the intent of E.O. 11644 and E.O. 11989 cannot be met while
still allowing unrestricted cross-country travel. Soil erosion, water
quality, and wildlife habitat are affected. Some National Forest
visitors report that their ability to enjoy quiet recreational
experiences is affected by visitors using motor vehicles. A designated
and managed system of roads, trails, and areas for motor vehicle use is
needed.
Current regulations prohibit trail construction (Sec. 261.10(a))
and operation of vehicles in a manner damaging to the land, wildlife,
or vegetation (Sec. 261.13(h)). However, these regulations have not
proven sufficient to control proliferation of routes or environmental
damage. This insufficiency is due in part to the nature of OHV travel.
The first vehicle driving across a particular meadow may not harm the
land. However, by the time 50 vehicles have crossed the same path,
there may be a user-created trail and lasting environmental impacts.
Determining which particular vehicle caused the damage can sometimes
represent a challenge to law enforcement officers.
In addition, the line between highway vehicles and OHVs has
blurred. Vehicles created for specialized off-road use, such as
military vehicles, are now marketed and purchased as family cars. Some
States have recently enacted statutes governing OHV use, including
vehicle registration requirements, limits on operator age, training and
licensing requirements, equipment requirements, sound restrictions, and
safety requirements.
Current agency policy varies from State to State and National
Forest to National Forest. Sometimes one National Forest restricts
motor vehicles to roads and trails, while an adjoining National Forest
allows unrestricted cross-country travel. One State may prohibit ATVs
on public roads, while an adjoining State generally allows such use.
Revised regulations are needed to provide national consistency and
clarity on motor vehicle use within the NFS. At the same time, the
Department believes that designations of roads, trails, and areas for
motor vehicle use should be made locally. The final rule provides a
national framework under which designations are made at the local
level.
Americans cherish the National Forests and National Grasslands for
the values they provide: opportunities for healthy recreation and
exercise, natural scenic beauty, important natural resources,
protection of rare species, wilderness, a connection with their
history, and opportunities for unparalleled outdoor adventure. The
agency must strike an appropriate balance in managing all types of
recreational activities. To this end, a designated system of roads,
trails, and areas for motor vehicle use, established with public
involvement, will enhance public enjoyment of the National Forests
while maintaining other important values and uses on NFS lands.
2. Public Comments on Proposed Rule and Department Responses
Overview
On July 15, 2004, the Forest Service published a proposed rule in
the Federal Register (69 FR 135) seeking public comment in amending
regulations at 36 CFR parts 212, 251, 261, and 295 to clarify policy
related to motor vehicle use on NFS lands, including the use of OHVs.
The proposed regulation would require designation of those roads,
trails, and areas that are open to motor vehicle use. Designations
would be made by class of vehicle and, if appropriate, by time of year.
The proposed rule would prohibit the use of motor vehicles off the
designated system, as well as use of motor vehicles that is not
consistent with the designations.
During the 60-day comment period that ended on September 13, 2004,
the agency received six requests for an extension of the comment
period. Five of these were mailed during the last two business days of
the comment period, and were received after the comment period closed.
Respondents indicated that, due to the complexity of the proposed
regulations, additional time was needed. The Forest Service did not
extend the comment period because the agency does not agree that the
proposed regulation was complex and because of the strong interest
expressed in many other comments to expedite the rulemaking.
The proposed rule was posted electronically on the World Wide Web
at the Federal Register site at http://www.gpoaccess.gov and at the
FirstGov e-rulemaking site at http://www.regulations.gov. The agency
also posted the proposed rule on its World Wide Web site for OHVs at
http://www.fs.fed.us/recreation/programs/ohv. The Forest Service
received 81,563 letters or electronic messages in response to the
proposed rule, of which 9,638 contained original text (the remainder
were form submissions). More than 80 percent of the comments were
submitted electronically. Responses submitting original text represent
the following categories:
Academic........................................................ 2
Business Association............................................ 11
Civic Group..................................................... 1
Consultants/Legal Representatives............................... 3
County Agency/Elected Official.................................. 16
Domestic Livestock Industry/Permit Holders...................... 5
Federal Agency/Elected Official................................. 2
Individual (unaffiliated or unidentifiable)..................... 9,310
Mechanized Recreation Group (bicycling)......................... 2
Mining Industry Association..................................... 2
Motorized Recreation Group...................................... 71
Multiple Use/Land Rights Organization........................... 1
Nonmechanized Recreation Group.................................. 24
Oil, Natural Gas, Coal Industry (leasable)...................... 2
Other or Unidentified Organization.............................. 1
Place-Based Group (homeowners association)...................... 2
Preservation/Conservation Organization.......................... 98
Private Landowner............................................... 2
Recreational/Conservation Organization.......................... 14
Recreation Organization (non-specific).......................... 5
Special Use Permit Holder....................................... 2
State Agency/Elected Official................................... 21
Timber/Wood Products Industry................................... 3
Town/City Agency/Elected Official............................... 2
Tribal Agency/Elected Official.................................. 3
Tribal Member/Nongovernmental Organization...................... 3
Single Responses Signed by Multiple Organizations............... 29
The respondents represented all 50 States, the District of
Columbia, Puerto Rico, seven foreign countries, and two international
U.S. Armed Forces bases. The largest number of responses containing
original text came from California (1,308), Washington (565), and
Oregon (392).
A summary report and searchable database of comments are available
by
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contacting the Forest Service (see: ADDRESSES). The comments also are
available for review in hard copy, but arrangements for viewing them
should be made in advance as they are warehoused off site.
Many comments came from organizations and individuals concerned
about impacts of OHVs on the environment and on nonmotorized uses.
These comments included form letters and standard letters with
additional specific information added by the commenter.
Many comments also came from organizations and individuals
concerned about potential restrictions on OHV use. These comments
included form letters and standard letters with additional information
added.
Federal, tribal, State, and local agencies and elected officials
also submitted comments. The Forest Service received comments from 2
Federal agencies, 21 State governments, 3 Federally recognized tribal
governments, and 18 county, municipal, and local governments,
representing a variety of points of view.
Many respondents offered general comments either supporting or not
supporting the proposed rule, or supporting or opposing OHV use in
general. Most also offered specific comments about sections of the
proposed rule that they would like to see revised. Many respondents
offered suggestions for implementation, funding, and enforcement of the
rule at the local level. A few respondents submitted comments on other
rulemaking efforts or existing Forest Service policy beyond the scope
of this rulemaking.
General Comments
Comment. Many respondents supported multiple uses of NFS lands and
recreational access for OHVs. These respondents believed that closures
harm the public, private landowners, economic interests, and the
environment by limiting and concentrating use. These respondents
suggested that the agency support the public interest, rather than
letting environmental and anti-access groups drive agency policy. These
respondents were concerned that nonmotorized interests have an unfair
advantage in public involvement due to better funding, organization,
and access to decisionmaking.
Many other respondents supported environmental protection and
nonmotorized recreational uses of NFS lands and suggested confining
OHVs to small, geographically isolated areas separated from
nonmotorized users. These respondents believed that OHVs harm the
environment, as well as people looking for quiet, peaceful recreation
experiences. They suggested that the agency support the public
interest, rather than letting manufacturers and user groups drive
agency policy. These respondents were concerned that motorized
interests have an unfair advantage in public involvement due to better
funding, organization, and access to decisionmaking.
Response. The Department believes that National Forests should
provide access for both motorized and nonmotorized users in a manner
that is environmentally sustainable over the long term. The NFS is not
reserved for the exclusive use of any one group, nor must every use be
accommodated on every acre. It is entirely appropriate for different
areas of the National Forests to provide different opportunities for
recreation. The Department believes such choices and evaluations are
best made at the local level, with full involvement of Federal, tribal,
State, and local governments, motorized and nonmotorized users, and
other interested parties, as provided for in this final rule.
Comment. Some respondents stated that OHVs should not be allowed on
National Forests at all. These respondents suggested that National
Forests should be managed primarily for preservation of natural values,
water quality, wildlife habitat, endangered species, biological
diversity, quiet, and spiritual renewal.
Response. The Department disagrees. National Forests are managed by
law for multiple use. They are managed not only for the purposes stated
in these comments, but for timber, grazing, mining, and outdoor
recreation. These uses must be balanced, rather than one given
preference over another.
Comment. Some respondents stated that Americans have an
unrestricted right to unlimited access to National Forests with motor
vehicles and insisted that the Forest Service restore this right.
Response. The Department disagrees with this assertion. National
Forests belong to all Americans, but Americans do not have a right to
unrestricted use of National Forests. Congress established the Forest
Service to provide reasonable regulation of the National Forests so
that future generations can continue to enjoy them.
Comment. Some respondents requested improved Forest Service
accountability, communications, and consistency in implementing rules
governing motor vehicle use.
Response. The final rule is intended to provide a consistent
framework and consistent terminology for travel management decisions
made at the local level. For greater clarity in terminology, the final
rule adds a definition for ``off-highway vehicle'' and changes the term
``use map'' to ``motor vehicle use map.''
Comment. Many respondents asked that decisions on motor vehicle use
be based on high-quality scientific information, including review by
independent scientists, and not on biased data. Some respondents
suggested that motor vehicle use should be allowed only when it can be
clearly proven to be harmless to the environment. Others suggested that
motor vehicle use should be restricted only when it can be clearly
proven to be harmful to the environment.
Response. Designations of roads, trails, and areas for motor
vehicle use should be based on accurate, pertinent, unbiased
information. The Department does not believe that it is necessary to
have independent scientists review proposed designation decisions. The
Department disagrees that motor vehicle use should be allowed only when
it can be clearly proven to be harmless to the environment, and that
motor vehicle use should be restricted only when it can be clearly
proven to be harmful to the environment. Rather, designation decisions
will be made in accordance with the criteria in Sec. 212.55 of the
final rule.
Comment. Some respondents stated that access to private inholdings
must not be restricted by this rule, and that reciprocal rights-of-way
between the Forest Service and private landowners should be allowed.
Response. The final rule requires responsible officials to
recognize rights of access in designating roads, trails, and areas
(Sec. 212.55(d)). Rights of access include valid existing rights and
rights of use of NFS roads and NFS trails under Sec. 212.6(b). This
final rule does not affect reciprocal rights-of-way between the Forest
Service and private landowners.
Comment. Some respondents asked the Forest Service to encourage
private landowners to open OHV trails and accommodate use on private
lands.
Response. Many private landowners allow recreational use of their
lands, including use by OHVs. Some private landowners provide managed
facilities for OHV enthusiasts. In some cases, trails on private land
are part of a network including NFS lands. The Forest Service often
works with private landowners to secure public rights-of-way for trails
providing access to the National Forests. However, the Department
believes that private
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landowners are the best judges of the proper uses for their land.
Comment. Some respondents asked the Forest Service to set aside
nonmotorized ``quiet use areas'' across the NFS.
Response. The final rule requires local agency officials, working
with the public, to designate which roads, trails, and areas are
available for motor vehicle use. The final rule prohibits use off the
designated system. In designating roads, trails, and areas, local
agency officials must consider minimization of conflicts among uses of
NFS lands (Sec. 212.55(a)). In designating trails and areas, local
agency officials must consider compatibility of motor vehicle use with
existing conditions in populated areas, taking into account sound,
emissions, and other factors (Sec. 212.55(b)(5)). A system of quiet
use areas established outside the designation process is unnecessary.
Comment. Some respondents suggested that all routes closed to motor
vehicles should also be closed to horses, bicycles, and all
nonpedestrian access.
Response. The Department disagrees. Some poorly located,
unauthorized routes causing considerable environmental damage may have
to be closed to all uses. However, other routes are better suited to
some uses than others. In some areas of high concentrations of use,
maintaining separate trail networks for different uses may reduce
conflict and enhance public safety and the recreational experience. In
other areas, multiple-use trails work well. The Department believes
these decisions are best made at the local level, with public
participation.
Comment. Some respondents asked the Forest Service to provide
access to groups that maintain and improve roads and trails.
Response. The Department is grateful to the many groups who provide
volunteer assistance in constructing, improving, and maintaining roads
and trails. Without the support of these groups, public access and
recreational opportunities would be more limited. Most of these groups
help maintain trails not to get special privileges, but to provide
better access for everyone. The Department supports the general
principle of equal public access to Federal lands.
Comment. Some respondents suggested limits on timber harvesting and
grazing, and on road construction related to timber harvesting. Other
respondents requested increased fuel treatment to protect communities
from wildfire and construction of additional roads for fuel reduction,
fire suppression, and timber management needs.
Response. These comments are beyond the scope of this rule. Road
construction for timber harvesting, fuel treatment, or other purposes
must be subjected to site-specific environmental analysis, which
establishes road management objectives. Roads constructed as part of
these projects could be added to the system of designated roads,
trails, and areas open to motor vehicles, depending on the results of
these local decisions.
Comment. Some respondents suggested that the Forest Service retain
a right-of-way for public access in all land exchanges, and deny access
to private landowners who block public access to Federal lands.
Response. This comment is beyond the scope of this final rule. The
Forest Service seeks, wherever possible, to secure or retain public
access to Federal lands by purchasing or exchanging rights-of-way and
reserving rights-of-way in land exchanges.
Comment. Some respondents requested additional scientific studies
of the environmental impacts of motor vehicle use, the social and
economic impacts of restrictions on motor vehicle use, the impacts of
road closures on firefighting and fuel reduction, the numbers of
visitors using motor vehicles, and other related topics.
Response. In addition to the studies mentioned in the preamble to
the proposed rule, ongoing studies by Forest Service researchers and
monitoring by National Forest managers address several of these topics.
The Department believes that these studies support the need for this
final rule. As stated in the preamble to the proposed rule, the results
of monitoring pursuant to Sec. 212.57 of the final rule could provide
the basis for revision or rescission of designations made pursuant to
Sec. 212.51, or for a determination of considerable adverse effects for
purposes of implementing a temporary, emergency closure pursuant to
Sec. 212.52(b)(2).
Comment. One respondent asserted that the Forest Service must
formally consult with the U.S. Fish and Wildlife Service on the effects
of this rule on threatened and endangered species, as required by the
Endangered Species Act (ESA).
Response. The Department has determined that this final rule will
have no effect on threatened or endangered species. The final rule
establishes a procedural framework for local decisionmaking and will
not have any effect until designation of roads, trails, and areas is
complete for a particular administrative unit or Ranger District, with
opportunity for public involvement and coordination with Federal,
State, local, and tribal governments. Designation decisions at the
local level will be accompanied by appropriate consideration of
potential impacts to threatened and endangered species. If such
decisions may affect threatened or endangered species, the Forest
Service will consult with the U.S. Fish and Wildlife Service, as
appropriate, under Section 7 of the ESA.
Forest Service Directives
Comment. Some respondents asked the Forest Service to issue
proposed directives on implementation of the final travel management
rule and requested that the agency seek public comment on these
directives. One respondent stated that the final rule must be
consistent with Forest Service Manual and Forest Service Handbook
direction.
Response. The Forest Service provides internal direction to field
units through its directives system, consisting of the Forest Service
Manual (FSM) and Forest Service Handbooks (FSH). The FSM and FSH assist
field units in implementing programs established by statutes and
regulations. The Forest Service plans to develop proposed directives
implementing this final rule and to publish them in the Federal
Register for public notice and comment.
Comment. Some respondents requested that officials responsible for
implementation of this rule be properly identified, qualified, and free
of conflict of interest. Others asked the agency to ensure that Forest
Service officials do not play an active role in State or local
legislation affecting OHVs.
Response. Section 212.51 of the final rule provides that
designations shall be made by the responsible official on
administrative units or Ranger Districts of the NFS. Delegations of
authority for designation decisions will be included in directives
issued for purposes of implementing this final rule. The Department
expects that designation decisions will generally be made by Forest
Supervisors and District Rangers. Forest Supervisors and District
Rangers are selected for their positions based on Federal civil service
rules. Federal ethics and conduct rules protect the public and agency
personnel from conflicts of interest and limit the roles agency
personnel may play in their official capacities in the State or local
legislative process.
Comment. Some respondents requested standardized, easily available
use maps and interagency signage to ensure consistent communication and
enforcement of route designations.
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Response. The Forest Service plans to develop a standard national
format for motor vehicle use maps issued under this final rule. In the
final rule, the Department is changing the term ``use map'' to ``motor
vehicle use map.'' Motor vehicle use maps will be available at local
Forest Service offices and, as soon as practicable, on Forest Service
web sites. The Forest Service plans to issue additional travel
management guidance in its sign handbook to ensure consistent messages
and use of standard interagency symbols.
Comment. Many respondents submitted suggestions on compliance with
the National Environmental Policy Act (NEPA) in connection with
designation of routes and areas for motor vehicle use. Some suggested
including provisions on this topic in the rule itself. Others suggested
specific direction related to the range of alternatives subject to
consideration, the scope of analysis, the starting point for analysis,
and the various environmental effects to be considered.
Response. Regulations implementing NEPA are issued by the Council
on Environmental Quality and are found at 40 CFR part 1500. Agency
direction on NEPA compliance is found in FSH 1909.15. The Department
believes that the scope, content, and documentation of NEPA analysis
associated with designating routes and areas for motor vehicle use will
ultimately depend on site-specific factors, including the local history
of travel planning, public input, and environmental impacts at the
local level. Therefore, the Department is not addressing NEPA
compliance in this final rule.
Comment. Many respondents addressed the status of user-created
routes in areas currently managed as open to cross-country motor
vehicle use, especially with regard to NEPA compliance (FSH 1909.15).
Some respondents asked the Forest Service to acknowledge all such
routes as legal, legitimate travel ways, and to require specific
documentation and analysis to close them. Other respondents asked the
Forest Service to treat all such routes as illicit and subject to
immediate closure.
Response. The Department rejects both of these approaches. User-
created routes were developed without agency authorization,
environmental analysis, or public involvement and do not have the same
status as NFS roads and trails included in the forest transportation
system.
Some user-created routes are well-sited, provide excellent
opportunities for outdoor recreation by motorized and nonmotorized
users alike, involve less environmental impact than unrestricted cross-
country motor vehicle use, and would enhance the system of designated
routes and areas. Other user-created routes are poorly located and
cause unacceptable environmental impacts.
The Department believes that evaluation of user-created routes is
best handled at the local level by officials with first-hand knowledge
of the particular circumstances, uses, and environmental impacts
involved, working closely with local governments, users, and other
members of the public.
Comment. Some respondents suggested reviewing and inventorying all
roads, trails, and areas, without regard to prior travel management
decisions and travel plans. Other respondents observed that land
management plans, travel plans, and other recent agency documents
already include a variety of decisions related to motor vehicle use and
route designation. These respondents asked the agency to recognize
existing plans and decisions in designating roads, trails, and areas
for motor vehicle use.
Response. The Department believes that reviewing and inventorying
all roads, trails, and areas without regard to prior travel management
decisions and travel plans would be unproductive, inefficient, counter
to the purposes of this final rule, and disrespectful of public
involvement in past decisionmaking. Local responsible officials can and
should take into account past travel management decisions.
Some National Forests have long restricted motor vehicles to
designated routes under E.O. 11644, 36 CFR part 295, and FSM 2355.
Other National Forests have recently issued comprehensive travel
management decisions that restrict motor vehicle use to designated
routes and issued orders that prohibit cross-country motor vehicle use.
All National Forests have a system of NFS roads open to motor vehicle
use, and many also have a system of NFS trails managed for motor
vehicle use.
Nothing in this final rule requires reconsideration of any previous
administrative decisions that allow, restrict, or prohibit motor
vehicle use on NFS roads and NFS trails or in areas on NFS lands and
that were made under other authorities, including decisions made in
land management plans and travel plans. The final rule adds a new
paragraph (b) to Sec. 212.50 to clarify that these decisions may be
incorporated into designations made pursuant to this final rule.
Some National Forests or Ranger Districts have previous
administrative decisions, made under other authorities with public
involvement, which restrict motor vehicle use over an entire Forest or
District to designated routes and areas. In these cases, the
responsible official may, with public notice but no further analysis or
decisionmaking, establish that decision or those decisions as the
designation pursuant to this rule for the National Forest or Ranger
District, effective upon publication of a motor vehicle use map. In
that situation, the only substantive change effected by this final rule
would be enforcement of the restrictions pursuant to the prohibition in
Sec. 261.13, rather than pursuant to an order issued under part 261,
subpart B. The final rule includes additional language in
Sec. 212.52(a) to clarify that no further public involvement is
required in this special case.
Alternatively, responsible officials may choose to reconsider past
decisions, with public involvement, as necessary to achieve the
purposes of the final rule.
The final rule recognizes that designations of roads, trails, and
areas for motor vehicle use are not permanent. Unforeseen environmental
impacts, changes in public demand, route construction, and monitoring
conducted under Sec. 212.57 of the final rule may lead responsible
officials to consider revising designations under Sec. 212.54 of the
final rule.
Designations must be consistent with the applicable land management
plan. If a responsible official proposes a designation that would be
inconsistent with the applicable land management plan, a proposed
amendment to the plan must be included with the proposed designation so
that the designation decision will conform with the land management
plan.
Comment. Some respondents observed that NFS roads that are open to
motor vehicle use are already in effect designated and need not be re-
evaluated. Other respondents asked the agency to ensure that proposed
changes to allowed uses, reconstruction, and changes in maintenance
levels resulting in changes in type or level of use receive appropriate
site-specific consideration.
Response. As recognized in the preamble to the proposed rule, to a
certain degree, NFS roads are in effect already designated for some
classes of motor vehicle use. These roads are included in a forest
transportation atlas, and road management objectives may establish the
appropriate vehicle classes and uses for each road segment. In recent
years, the roads analysis process established under 36 CFR 212.5 and
FSM 7712 has been used to evaluate the
[[Page 68269]]
long-term management objectives for the passenger car road system in
each National Forest.
This final rule does not require responsible officials to
reconsider decisions authorizing motor vehicle use on NFS roads and NFS
trails. After consulting with the public, responsible officials may
choose to reconsider past decisions as necessary to achieve the
purposes of this final rule. In addition, responsible officials may
revise designations under Sec. 212.54 of the final rule. Revisions of
designations, including revisions in the class of vehicle designated
for use, must be made in accordance with the requirements for public
involvement in Sec. 212.52 and the criteria in Sec. 212.55. Road
reconstruction is beyond the scope of the designation provisions in
subpart B of this rule.
Implementation
Comment. Many respondents requested a specific, enforceable
deadline (most suggested two years) for completing route and area
designation and ending cross-country motor vehicle use. Many other
respondents asked the Forest Service not to establish a specific time
frame for completing designations, and to allow enough time to complete
a full and fair evaluation of all potential routes.
Response. The Department shares an interest in completing route and
area designation as quickly as possible. The problems associated with
unmanaged motor vehicle use are important and deserve immediate
attention. The Forest Service will make every effort, within its
available resources, to complete route and area designation as quickly
as possible. However, the Department disagrees with establishing an
enforceable deadline for completion of the process. Imposing an
enforceable deadline for completing designations would subject the
Forest Service to legal challenge if, despite its best efforts (perhaps
due to the controversy involved in the process), the agency is unable
to meet the deadline. The Department believes that cooperative work by
responsible officials with State, tribal, county, and municipal
governments, user groups, and other interested parties offers the best
hope for long-term resolution of issues involving recreational use,
including use of motor vehicles. An inflexible deadline can make
collaborative solutions more difficult.
Comment. Some respondents requested that the Forest Service
complete a full inventory of all existing motor vehicle routes,
regardless of origin, prior to making a designation decision. Many of
these respondents asked the Forest Service to cooperate with user
groups in conducting this inventory, but some also insisted that the
agency take ultimate responsibility for including all user-created
routes.
Response. The Department disagrees that a complete inventory of
user-created routes is required in order to complete the designation
process. As a practical matter, such an inventory may never be fully
complete, as new routes will continue to be created during the
inventory process. A complete inventory would be very time-consuming
and expensive, delaying completion of route designation. Advance
planning based on public involvement, careful design, and site-specific
environmental analysis provide the best hope for a sustainable, managed
system of motor vehicle routes and areas addressing user needs and
safety with a minimum of environmental impacts.
As stated above, some user-created routes would make excellent
additions to the system of designated routes and areas. The Forest
Service is committed to working with user groups and others to identify
such routes and consider them on a site-specific basis.
Comment. Some respondents asked the Forest Service to include
potential future routes in the inventory and designation process, and
to make provision for including additional user-created routes
discovered after designation is complete.
Response. Long-term planning may identify potential corridors
suitable for consideration for future construction. However, the agency
does not intend to designate routes on a motor vehicle use map until
such routes actually exist, have been analyzed and evaluated, and are
available for public use. Section 212.54 of the final rule provides for
revision of designations as needed to meet changing conditions. New
routes may be constructed and added to the system following public
involvement and site-specific environmental analysis. Such revisions
may also include closures or changes in designations.
Comment. Many respondents supported public involvement in the route
designation process. Some requested that local residents and private
landowners receive a greater voice in decisions affecting their use.
Other respondents requested that county governments, State tourism
offices, or other agencies receive formal recognition as participants
in agency decisionmaking. One respondent asked that OHV access be
subject to a public vote.
Response. The proposed and final rules require public involvement
in the designation process (Sec. 212.52), and coordination with
appropriate Federal, State, county, local, and tribal governments in
designating roads, trails, and areas for motor vehicle use (Sec.
212.53). Designation of a system of motor vehicle routes and areas will
be made with public involvement and coordination with Federal, State,
local, and tribal governments. Most NFS roads are intertwined with
networks of State and county roads (often crossing NFS lands), and
cooperative planning among affected agencies is essential. Nothing in
the final rule, however, can relieve the Forest Service of the ultimate
responsibility for decisions regarding management of NFS lands.
Comment. Many respondents requested that the Forest Service
allocate sufficient funds for management of motor vehicle use on
National Forests, particularly for the process of route and area
designation envisioned in the proposed rule. Many asked the agency to
pursue all available sources of funding, including the Recreational
Trails Program and gasoline tax revenues. Some respondents insisted
that inadequate funding not be used as an excuse to close routes and
restrict motor vehicle access. Others stated that the rule was
pointless without adequate funding.
Response. The issue regarding funding is beyond the scope of this
final rule. Forest Service appropriations are authorized by Congress.
The Forest Service is committed to using whatever funds it has
available to accomplish the purposes of this final rule in a targeted,
efficient manner. The agency makes appropriate use of all other sources
of available funding, and has a number of successful cooperative
relationships with State governments. Volunteer agreements with user
groups and others have proven successful in extending agency resources
for trail construction, maintenance, monitoring, and mitigation.
Regardless of the level of funding available, the Department believes
that the final rule provides a better framework for management of motor
vehicle use on National Forests and National Grasslands. While
availability of resources for maintenance and administration must be
considered in designating routes for motor vehicle use (Sec. 212.55),
cooperative relationships and volunteer agreements may be included in
this consideration.
Comment. Some respondents offered specific suggestions for
consideration during route and area designation, including conversion
of low-standard roads to motorized trails, provision of
[[Page 68270]]
parking and trailhead facilities, reopening of closed roads, design of
loop and long-distance trail systems to meet user needs, and
integration of designated routes with roads and trails managed by local
governments, States, and other Federal agencies.
Some respondents suggested consideration of specific environmental
impacts during route and area designation, including introduction of
invasive species, impacts to cultural activities of American Indians,
quality of the user experience, and Recreation Opportunity Spectrum
(ROS) designations in land management plans. Other respondents
suggested specific areas to avoid in route and area designation,
including high alpine areas, wetlands, riparian areas, and roadless
areas.
Response. The Department agrees that many of these considerations
may be important in designating routes and areas at the local level.
Section 212.55 of the final rule enumerates the criteria for
designating roads, trails, and areas pursuant to the final rule.
Specific considerations (such as geography, user demands, and
environmental impacts) will vary from place to place, and even route to
route, across the NFS. Responsible officials, working closely with the
public, should consider local circumstances in applying the criteria
for designating roads, trails, and areas pursuant to the final rule.
Comment. Some respondents suggested a no-net-loss policy for motor
vehicle routes (every route closed must be replaced by a new route of
the same length and character), a specific goal for available routes
(such as four miles of motor vehicle trail per square mile), or a
general policy to develop all access opportunities close to urban
areas.
Response. The Department disagrees with establishing any of these
principles as national policy. Designation decisions are best left to
local managers, working closely with State, tribal, and local
governments, users, and other members of the public and informed by
site-specific evaluation of environmental impacts.
Comment. Some respondents stated that regulations are effective
only if they are enforced, and questioned whether the agency was
capable of enforcing motor vehicle restrictions due to limited numbers
of law enforcement officers.
Response. Forest Service law enforcement personnel play a critical
role in ensuring compliance with laws and regulations, protecting
public safety, and protecting National Forest resources. The Forest
Service also maintains cooperative relationships with many State and
local law enforcement agencies that provide mutual support across
jurisdictional boundaries. Education and cooperative relationships with
users support enforcement efforts by promoting voluntary compliance.
The final rule will not increase the agency's budget or the number of
law enforcement officers. However, the final rule will enhance
enforcement by substituting a regulatory prohibition for closure orders
and providing for a motor vehicle use map supplemented by signage.
Comment. Some respondents questioned the use of contractors and
volunteers to map and maintain trails, and to report violations of
motor vehicle regulations.
Response. The Forest Service utilizes a mix of agency personnel,
contractors, volunteers, and cooperators to accomplish many elements of
its mission. Without the support of cooperators and volunteers and the
services of contractors, the agency would be unable to provide the same
level of service to the public or care for the lands entrusted to it
within its current budget. Like all law enforcement agencies, the
Forest Service depends on citizen reports of violations as a critical
component of its enforcement program.
Comment. Some respondents asked the Forest Service to ensure
representation of OHV enthusiasts and riders among agency staff
responsible for OHV management.
Response. The Forest Service uses competitive civil service
procedures to select the best qualified applicant for each position,
based on the knowledge, skills, and abilities necessary to perform the
job. While ability to use government equipment may be a selective
factor for some positions, the agency does not hire personnel based on
their outside recreational interests. Nevertheless, there are Forest
Service employees who are OHV riders.
Comment. Some respondents asked the Forest Service to ensure
adequate maintenance for motor vehicle trails, rather than closing
them.
Response. The Forest Service maintains NFS roads and NFS trails in
accordance with their management objectives and the availability of
funds. Volunteers and cooperators maintain many trails. The agency
collects fees for use of some developed recreational facilities, most
of which are retained and spent at the site where they are collected.
Unfortunately, resources are still limited, and the Forest Service has
a substantial backlog of maintenance needs, even before adding many
user-created routes to the system. In some cases, an extended lack of
maintenance can lead to deterioration of a road or trail to the point
that it must be closed to address user safety or to prevent severe
environmental damage. The Forest Service actively tries to avoid
closures by encouraging volunteer agreements and cooperative
relationships with user groups.
Comment. Some respondents requested clarification of the rules
applicable to motor vehicle use while designation is pending. Some
asked that current rules remain in effect. Others requested immediate
closure of all user-created routes. Some respondents sought to continue
using and maintaining existing trails while designation is pending.
Response. The final rule's prohibition on motor vehicle use off the
designated system (Sec. 261.13) goes into effect on an administrative
unit or Ranger District once that unit or District has designated those
NFS roads, NFS trails, and areas on NFS lands that are open to motor
vehicle use and published a motor vehicle use map identifying those
roads, trails, and areas (Sec. 212.56). Until designations for a unit
or District are complete and a motor vehicle use map identifying those
designations is published, existing travel management policies,
restrictions, and orders remain in effect. Forest Supervisors may
continue to issue travel management orders pursuant to part 261,
subpart B, and impose temporary, emergency closures based on a
determination of considerable adverse effects pursuant to Sec.
212.52(b)(2) of the final rule. The Department does not believe that
immediate closure of all user-created routes, without local evaluation
and public input, is necessary or appropriate. Use and maintenance of
NFS roads and NFS trails consistent with current travel management
policies and management objectives may continue. Construction and
maintenance of roads or trails without a permit are prohibited by
existing regulations (Sec. 261.10(a)).
The Department expects that some administrative units or Ranger
Districts will complete route and area designation before others and
that the prohibition on cross-country motor vehicle use in Sec. 261.13
will go into effect on different units and Ranger Districts at
different times. This variation in travel management mirrors the
existing situation, in which some units are open to cross-country motor
vehicle use, while others restrict motor vehicles to designated routes
and areas. Over the next few years, all administrative units and Ranger
Districts will institute a system of designated routes and areas.
[[Page 68271]]
Comment. Some respondents suggested that the Forest Service require
vehicle registration, license plates, noise abatement, and safety
equipment for all motor vehicles using NFS lands. Others suggested
requiring licensing and safety training for all riders.
Response. State traffic laws apply on NFS roads as provided for in
36 CFR 212.5(a)(1). State governments have long taken the lead in
establishing registration, safety, and licensing requirements for motor
vehicles and motor vehicle operators, providing a consistent framework
for users within State boundaries. The Department wholeheartedly
supports this framework. The Department believes a separate
registration or licensing process for operators for the NFS would be
confusing, inefficient, and intrusive.
The Department notes that some States have no requirements
regarding minimum age, safety equipment, and noise levels for OHVs.
Some National Forests have experienced serious injuries and fatal
accidents involving OHVs, some of which involve young children. The
Forest Service will continue to regulate OHV riders to a certain degree
in existing regulations at Sec. 261.13, recodified as Sec. 261.15 in
the final rule (for example, by requiring a headlight and taillight
when riding after dark and by providing for incorporation of State law
pertaining to use of motor vehicles off roads). At this time, however,
the Department is not prepared to issue or enforce new national
standards for operators or equipment on NFS lands. As designations are
completed and management of designated roads, trails, and areas
continues, the Department may consider developing some national safety
standards for OHVs at a later date.
Noise is a particularly important issue affecting OHV use
nationally. The Forest Service anticipates developing a national
standard for OHV noise levels in a future rulemaking.
Comment. Some respondents suggested that the Forest Service charge
a fee for OHV use on NFS lands and retain the funds for route
maintenance and enforcement. Other respondents objected to any fees for
public access to Federal land. One respondent suggested a surcharge on
OHV manufacturers.
Response. These comments are beyond the scope of this final rule,
which governs designation of roads, trails, and areas for motor vehicle
use. Forest Service authority to charge and retain fees for use of
recreational facilities and services is contained in the Federal Lands
Recreation Enhancement Act (16 U.S.C. 6801-6814). The agency has no
authority to tax manufacturers.
Proposed Rule Preamble
Comment. Some respondents disagreed with the Forest Service's
rationale for the proposed rule and urged the agency not to adopt a
final rule. These respondents stated that a prohibition on cross-
country motor vehicle use will harm small businesses, recreation users,
the tourism industry, local governments, local economies, low-income
residents, families with children, and people with disabilities, and
reduce public access to Federal lands. Some respondents stated that any
environmental impacts and other problems associated with cross-country
motor vehicle use result from poor Forest Service management and should
be addressed by better implementation and enforcement of existing
rules, rather than additional regulation. Others contended that natural
forces, such as fire and flood, have far greater environmental impact
than OHVs and that the motor vehicle regulation is not needed.
Response. The Department disagrees with these assertions.
Unregulated cross-country motor vehicle use may have been appropriate
on some National Forests when these vehicles were less numerous, less
powerful, and less capable of cross-country travel. Today, however, the
proliferation of user-created routes is a major challenge on many
National Forests and examples of significant environmental damage,
safety issues, and user conflicts are well established. The Department
believes that a well-planned, well-designed system of designated roads,
trails, and areas, developed in coordination with Federal, State,
local, and tribal governments and with public involvement, offers
better opportunities for sustainable long-term recreational motor
vehicle use and better economic opportunities for local residents and
communities.
Comment. Some respondents stated that the proposed rule will harm
the nonmotorized recreation industry by encouraging OHV use. Other
respondents stated that the proposed rule does not do enough to address
the threat of OHVs, unauthorized routes, and continuing damage to the
environment, and should be strengthened. Some asked the Forest Service
to explain how its maintenance backlog can be reconciled with the
stated goal of enhancing opportunities for motorized recreation.
Response. This final rule does not encourage or discourage motor
vehicle use, but rather requires designation of roads, trails, and
areas for motor vehicle use. The Department believes that a well-
designed system of routes and areas designated for motor vehicle use
can reduce maintenance needs and environmental damage, while enhancing
the recreational experience for all users, both motorized and
nonmotorized.
Comment. Some respondents called for clear and consistent national
standards for motor vehicle use and route and area designation. They
stated that the proposed rule allows too much discretion for local
Forest Service managers to make designation decisions, which may result
in inconsistent and ineffective decisionmaking. Other respondents
stated that the final rule should retain flexibility in local
decisionmaking, rather than establishing a one-size-fits-all national
policy.
Response. The final rule provides a national framework for local
decisionmaking. The rule includes definitions, procedures, and criteria
for designation of NFS roads, NFS trails, and areas on NFS lands for
motor vehicle use, and a prohibition on motor vehicle use that occurs
off the designated system or that is inconsistent with motor vehicle
designations. The Department expects the roughly 300,000 miles of NFS
roads currently open to highway-legal motor vehicle use to be
designated for that purpose. However, the rule retains flexibility at
the local level to determine, with public involvement, appropriate
motor vehicle use on local NFS roads, on NFS trails, and in areas on
NFS lands. The Department believes that decisions about specific routes
and areas are best made by local officials with knowledge of those
routes and areas, the local environment, and site-specific tradeoffs,
with public involvement and in coordination with appropriate Federal,
State, local, and tribal governments.
Comment. Some respondents asked the Forest Service to commit to
designating enough OHV routes to accommodate current and future demand.
Response. Provision of recreational opportunities and access needs
are two of several criteria the responsible official must consider
under Sec. 212.55 of the final rule in designating routes for motor
vehicle use. National Forests are popular with many Americans for many
uses. It is not possible to accommodate all user demands on all
National Forests while also protecting water quality, wildlife habitat,
and other natural resources that people come to enjoy. Forest Service
managers must balance user interests against the other criteria
[[Page 68272]]
for designating routes and areas under the final rule.
Comment. Some respondents stated that local government, not the
Forest Service, should decide where roads and vehicle access are needed
to serve local communities and protect public health and safety.
Response. The Department believes that coordination with local
governments is essential in designating a system of motor vehicle
routes and areas on NFS lands. The final rule requires coordination
with appropriate local governmental entities when designating routes
and areas for motor vehicle use and provides for designation decisions
to be made by Forest Service officers at the local level to ensure that
they take local needs into account. However, the Forest Service retains
ultimate responsibility, as provided by Congress, for management of
uses on the NFS.
Forest Service policy (FSM 7703.3) is to seek to transfer
jurisdiction of NFS roads to public road authorities when (1) more than
half of the use is likely to be non-Forest Service-generated traffic;
(2) the road is necessary and used for mail, school, or other local
government purposes, or (3) the road serves year-long residents within
or adjacent to the National Forests.
Comment. Some respondents stated that the language of the preamble
to the proposed rule, particularly the shift of regulations governing
OHV use from part 295 (Use of Motor Vehicles Off National Forest System
Roads) to part 212 (Administration of the Forest Transportation
System), reflects a change in the agency's perception of motor vehicle
use on NFS lands. These respondents asked the Forest Service to
recognize motor vehicle use as a legitimate recreational pursuit, not
just as a transportation issue.
Response. The Department recognizes this concern. Motor vehicles
serve a variety of functions on National Forests. Motor vehicles are
used in commercial and natural resource management activities,
including maintaining utility corridors, mining, and timber sales.
Motor vehicles on NFS lands provide access to private land, recreation
destinations, and destinations off NFS lands. Motor vehicles are used
in support of other recreational activities, such as hunting and
camping. Motor vehicles are also used as a recreational experience in
their own right, such as for trail riding and driving for pleasure.
These uses overlap and are not always clearly distinguishable. To
create a comprehensive system of travel management, the final rule
consolidates regulations governing motor vehicle use in one part, 212,
entitled ``Travel Management.'' Motor vehicles remain a legitimate
recreational use of NFS lands.
Comment. Some respondents objected to the preamble's use of the
term ``off-road vehicle'' in reference to E.O. 11644 and E.O. 11989,
and asked the agency to use ``off-highway vehicle.'' Other respondents
objected to the latter term and preferred ``off-road vehicle.'' Some
respondents requested that specific classes of vehicles, such as side-
by-sides, sport utility vehicles, and motorcycles, be included or
excluded from the definition of OHV.
Response. The final rule addresses all motor vehicle use on NFS
roads, on NFS trails, and in areas on NFS lands, from passenger cars to
ATVs to motorcycles. The final rule is not limited to OHVs, in part
because OHVs are not always clearly distinguishable from passenger
vehicles (today the family car may be quite capable of off-highway
travel). Local units are responsible for designating routes and areas
for motor vehicle use, including which routes and areas are designated
for which vehicle classes. In response to comments, and because the
agency has used the term extensively in communications, the final rule
has added a definition of ``off-highway vehicle.'' This definition is
consistent with the definition of ``off-road vehicle'' used in E.O.
11644.
Comment. Some respondents asked the Forest Service to include
bicycles and horses within the definition of ``off-highway vehicle''
and regulate these uses like motor vehicles.
Response. OHVs are motor vehicles. Since bicycles and horses are
not motor vehicles, they are not included in the definition of ``off-
highway vehicle.'' Similarly, this rule governs designation of routes
and areas for motor vehicle use and does not apply to nonmotorized
uses, such as bicycles and horses.
At this time, the Department does not see the need for regulations
requiring establishment of a system of routes and areas designated for
nonmotorized uses. Local Forest Service officials may choose to
designate routes and areas for nonmotorized uses and enforce those
designations with an order issued under 36 CFR part 261, subpart B. On
some National Forests, and portions of others, bicycles and/or
equestrians are restricted to designated routes, or even prohibited
altogether. On other National Forests, cross-country use of bicycles
and horses is permitted.
Comment. Some respondents suggested that E.O. 11644 and E.O. 11989
conflict with the Federal Land Policy and Management Act (FLPMA) and
the Multiple Use-Sustained Yield Act (MUSY), are outdated, and do not
reflect changes in use and technology of motor vehicles. These
respondents asked the Forest Service not to rely on the E.O.s in
promulgating regulations governing designation of routes and areas for
motor vehicle use.
Response. The Department disagrees that the E.O.s conflict with
FLPMA and MUSY. Both statutes give the Forest Service broad authority
to manage NFS lands for multiple uses. MUSY defines ``multiple use'' in
part as ``management of all the various * * * resources of the National
Forests so that they are utilized in the combination that will best
meet the needs of the American people * * *.'' MUSY specifically
provides ``that some land will be used for less than all of the
resources'' (16 U.S.C. 531(a)). Neither Act directs that all NFS lands
be open to all uses.
E.O. 11644 and E.O. 11989 broadly direct Federal land management
agencies to regulate OHVs in conformance with certain criteria. As
discussed in the preamble, the environmental concerns that prompted the
E.O.s are more, not less, pressing with changes in OHV use and
technology.
Executive orders issued by the President of the United States
provide policy direction to all Federal agencies. The Department
conforms its policy to executive orders and believes that it is
appropriate to take applicable executive orders, such as E.O. 11644 and
E.O. 11989, into account in promulgating regulations and issuing
directives.
Comment. Some respondents stated that the proposed rule is not
consistent with the letter and spirit of E.O. 11644 and E.O. 11989, and
must not convert their mandatory language to discretionary language.
Response. The Department disagrees with this assertion. Section
3(a) of E.O. 11644 directs the Forest Service to develop and issue
regulations ``to provide for administrative designation of the specific
areas and trails on public lands on which the use of off-road vehicles
may be permitted, and areas in which the use of off-road vehicles may
not be permitted * * * '' Section 9(b) of E.O. 11644 specifically
authorizes the Forest Service to adopt the policy to designate those
areas or trails that are suitable for motor vehicle use and to close
all other areas and trails to that use. Consistent with these
provisions, the final rule requires establishment of a system of routes
and areas designated for motor vehicle use and prohibits motor vehicle
use off the designated system. The provisions in the final rule
governing exemptions from designations, public involvement, criteria
for designations, designations in
[[Page 68273]]
wilderness areas, identification of designated routes and areas,
monitoring, and over-snow use track E.O. 11644 and E.O. 11989. See the
response to comments on Sec. Sec. 212.52 and 212.55 for the
relationship between specific sections of the rule and the Executive
orders.
Comment. Some respondents interpreted the preamble to the proposed
rule to imply that every National Forest must designate areas for motor
vehicle use. Some respondents supported this idea. Others asked the
agency to clarify that there is no such requirement.
Response. The proposed rule was never intended to require each
National Forest to have areas designated for motor vehicle use. To
clarify this point, the summary for the final rule states that it
requires designation of those roads, trails, and areas that are open to
motor vehicle use. Some National Forests do not allow motor vehicle use
off NFS roads. This final rule does not require them to change their
policy.
Comment. Several respondents addressed the preamble's discussion of
use of OHVs on NFS roads managed at various maintenance levels. Some
respondents asked the Forest Service to allow and some asked the agency
to prohibit non-highway-legal vehicles on NFS roads at maintenance
levels 3, 4, and 5.
Response. Road designation decisions will determine road management
objectives and maintenance levels, rather than vice versa. However, in
many cases, existing road management objectives and maintenance levels,
established through travel planning and roads analysis in consultation
with State and local governments, already establish appropriate motor
vehicle use. The Department anticipates the need to mix highway-legal
and non-highway-legal traffic on some NFS roads at maintenance levels
3, 4, and 5. Such designation decisions will be advised by professional
engineering judgment, and will include design features deemed
appropriate by engineering studies.
Comment. Some respondents objected to the agency's rationale for
exempting snowmobiles from designations made under Sec. 212.51 of the
proposed rule, on the grounds that snowmobiles have documented impacts
on wildlife, skiers, and other resource values. Some respondents asked
the agency to include a noise level limit for snowmobiles and other
provisions specific to snowmobiles. Other respondents asked the Forest
Service to remove provisions governing snowmobiles from the rule and
exclude snowmobiles from the definition of ``off-highway vehicle.''
Response. Snowmobiles are ``off-road vehicles'' under E.O. 11644
and subject to the direction ``to provide for administrative
designation of the specific areas and trails on public lands on which
the use of off-road vehicles may be permitted, and areas in which the
use of off-road vehicles may not be permitted'' (E.O. 11644, Sec.
3(a)). Moreover, snowmobiles are ``motor vehicles'' under this final
rule. Since this rule regulates motor vehicle use, the rule must
address snowmobiles.
However, the Department believes that cross-country use of
snowmobiles presents a different set of management issues and
environmental impacts than cross-country use of other types of motor
vehicles.
Therefore, the final rule exempts snowmobiles from the mandatory
designation scheme provided for under Sec. 212.51, but retains a
manager's ability to allow, restrict, or prohibit snowmobile travel, as
appropriate, on a case-by-case basis (Sec. 212.81). Restrictions and
prohibitions on snowmobile use will be enforced under Sec. 261.14,
rather than through issuance of an order under part 261, subpart B.
The definition of ``snowmobile'' in the proposed rule encompassed
large vehicles not commonly referred to as ``snowmobiles,'' but
excluded over-snow vehicles also capable of summer travel. In order to
improve clarity and ensure equitable treatment of over-snow vehicle
use, the final rule replaces the exemption for snowmobiles with an
exemption for ``over-snow vehicles,'' a broader term that includes
snowmobiles, as well as other vehicles designed for over-snow travel.
The final rule adds language to Sec. 212.81(c) to clarify that the
designation process applies to over-snow vehicles only where the local
responsible official proposes to establish restrictions or prohibitions
on use of over-snow vehicles under this subpart.
The Department expects that management of winter recreational use
will continue to be an important issue on many National Forests.
Nothing in this final rule limits the ability of Forest Service
managers to take appropriate action to regulate snowmobile use, or
other winter uses, or precludes the Department from promulgating
regulations on snowmobile use at some point in the future.
Specific Sections by Part
Part 212--Travel Management
Subpart A--Administration of the Forest Transportation System
Section 212.1. This section of the rule includes the definitions
for part 212, which governs administration of the forest transportation
system, designation of roads, trails, and areas for motor vehicle use,
and use by over-snow vehicles.
Definition for ``administrative unit.''
Comment. Respondents suggested clarifying that this definition
embraces all NFS lands, including National Recreation Areas and other
Congressionally designated areas.
Response. National Forests and National Grasslands include many
classifications, including National Recreation Areas and
Congressionally Designated Areas. The purpose of including a definition
for administrative unit was not to delineate the types of areas within
the NFS, but rather to refer to a discrete management unit within the
NFS for purposes of triggering designation of motor vehicle use under
the final rule. To ensure that the definition for ``administrative
unit'' encompasses all NFS lands, the final rule adds purchase units,
land utilization projects, and the Columbia River Gorge National Scenic
Area to the list of administrative units. The final rule also adds ``or
other comparable units of the National Forest System'' to the
definition so that if Congress establishes new administrative units of
the NFS, they will be included within this definition.
Definition for ``all-terrain vehicle,'' ``considerable adverse
effects,'' ``motorcycle,'' and ``off-highway vehicle.''
Comment. Although not included in the proposed rule, respondents
suggested including these definitions in the final rule.
Response. The Department agrees that it would be helpful to add a
definition for ``off-highway vehicle,'' since cross-country travel by
OHVs is a major concern of this final rule. Therefore, the Department
is adding a definition for ``off-highway vehicle'' to the final rule.
The Department is not adding a definition for ``all-terrain vehicle''
and ``motorcycle'' because they are only two of many different types of
OHVs and because the final rule does not distinguish among types of
OHVs. The Department also is not adding a definition for ``considerable
adverse effects'' because a determination of considerable adverse
effects caused by motor vehicle use for purposes of effecting a
temporary, emergency closure under Sec. 212.52(b)(2) of the final rule
depends on specific factual circumstances in certain contexts. Specific
circumstances may include public safety or soil, vegetation, wildlife,
wildlife habitat, or cultural
[[Page 68274]]
resources associated with a particular road, trail, or area.
Definition for ``area.''
Comment. Some respondents stated that the final rule should allow
large areas to be designated for motor vehicle use and should provide
for consideration of all NFS lands as designated areas.
Other respondents stated that the final rule should not allow
designation of areas for motor vehicle use. If such designation is
allowed, these respondents believed that only areas much smaller than a
Ranger District should be designated, after site-specific analysis
demonstrating no environmental impacts, and no Forest should be
required to have a designated area.
Response. Areas designated for motor vehicle use are not intended
to be large or numerous. The Department agrees that the definition in
the proposed rule, ``a discrete, specifically delineated space that is
smaller than a Ranger District,'' is too broad to effectuate this
intent. Therefore, the Department has revised the definition of
``area'' in the final rule to read, ``a discrete, specifically
delineated space that is smaller, and in most cases much smaller, than
a Ranger District.'' Only a few areas currently designated for motor
vehicle use, such as the Oregon Dunes National Recreation Area on the
Siuslaw National Forest, encompass a significant portion of a Ranger
District. Other designated areas are expected to be much smaller.
While areas are not intended to be large or numerous, the
Department believes that it is appropriate to designate some areas for
motor vehicle use. These areas would have natural resource
characteristics that are suitable for motor vehicle use, or would be so
significantly altered by past actions that motor vehicle use might be
appropriate. Routes and areas under the final rule will be designated
at the local level, based upon appropriate environmental analysis.
Federal law does not require the Forest Service to demonstrate that
there are no environmental impacts from designation of areas.
Under the final rule, no administrative unit or Ranger District
will be required to designate an area.
Comment. Some respondents stated that the final rule should not
include a presumption for designation of previously disturbed sites.
Instead, these respondents believed the rule should provide examples of
sites that would not be appropriate.
Response. Neither the proposed nor the final rule establishes a
presumption for designation of previously disturbed sites. Rather, the
preamble to the proposed rule generally discussed possible
characteristics of an area. The characteristics of an area are not
enumerated in the definition of an area to give the agency the
flexibility to designate areas for motor vehicle use as appropriate,
given the variety of natural features, resources, and uses on NFS
lands.
Comment. Some respondents stated that the final rule should expand
the definition of area to encompass specific uses, such as grazing,
hunting, firewood gathering, camping, and religious, customary, and
cultural practices.
Other respondents asked the agency to encourage designation of
areas wherever there is a high density of existing routes, to save time
in conducting an inventory of existing routes.
Response. It is not necessary to expand the definition of area to
encompass specific uses, such as grazing. The final rule provides for
designation of NFS roads, NFS trails, and areas on NFS lands for motor
vehicle use, and prohibits motor vehicle use other than in accordance
with those designations. Motor vehicle use that is specifically
authorized pursuant to a written authorization issued under Federal law
(Sec. 261.13(h) of the final rule) is exempted from this prohibition.
In addition, in making these designations, the responsible official
must recognize valid existing rights (Sec. 212.55(d) of the final
rule).
To address specific local needs for limited cross-country motor
vehicle use for big game retrieval or dispersed camping, the Department
is adding a paragraph to Sec. 212.51 of the final rule. This new
paragraph provides that in designating routes, the responsible official
may include in the designation the limited use of motor vehicles within
a specified distance of certain designated routes, and if appropriate
within specified time periods, solely for the purposes of big game
retrieval or dispersed camping.
Some areas of high route density may be appropriate for designation
as areas. Others will not. The Department believes that designation
decisions should be made at the local level, based on site-specific
evaluation of local conditions and public involvement.
Definition for ``designated road, trail, or area.''
Comment. Some respondents stated that the final rule should not
make a use map a part of the travel management atlas due to confusion
that may result if the atlas is not updated. Respondents further
commented that this requirement is redundant, since the definition of
``use map'' already states that it is part of a travel management
atlas.
Response. The Department disagrees that including a use map in a
travel management atlas will lead to confusion if the atlas is not
updated because in the final rule revisions to designations will be
reflected on a motor vehicle use map (Sec. 251.56).
The Department agrees that it is unnecessary to state in the
definition for designated road, trail, or area that a motor vehicle use
map is contained in a travel management atlas because the definition
for travel management atlas states that it includes the motor vehicle
use map or maps. Therefore, the Department is removing the phrase,
``contained in a travel management atlas'' from the definition for
designated road, trail, or area. For the same reason, the Department is
removing the phrase ``that is part of a travel management atlas'' from
the definition for ``motor vehicle use map.'' Similarly, the Department
is removing the phrase ``that is [or `are'] included in a forest
transportation atlas'' from the definitions for ``forest road or
trail'' and ``forest transportation system'' because the definition for
``forest transportation atlas'' states that it displays the system of
roads, trails, and airfields of an administrative unit.
Comment. Some respondents requested that the final rule address
designation of routes for nonmotorized as well as motorized uses and
stated that the proposed rule text contradicts the preamble in this
regard.
Response. The purpose of this rule is to provide better and more
consistent management of motor vehicle use on National Forests and
National Grasslands. Regulation of nonmotorized use is beyond the scope
of this rulemaking. The Department agrees that discussion of
nonmotorized use in the preamble may have led to some confusion in this
regard. For management and enforcement purposes, it would be better for
the use map to be dedicated to motor vehicle uses. As stated above, in
the final rule, the Department is changing the term ``use map'' to
``motor vehicle use map.'' Only motor vehicle uses will be reflected on
this map.
The Department wishes to clarify that designation of a road, trail,
or area for motor vehicle use does not establish that use as dominant
or exclusive of other uses of that road, trail, or area.
Comment. Some respondents asked the final rule to clarify whether
OHV use on designated roads is permissible.
Response. In the final rule, designation decisions, including
[[Page 68275]]
designations by vehicle class, will be made at the local level. The
Department anticipates the need to mix highway-legal and non-highway-
legal traffic on some NFS roads. These designation decisions will be
advised by engineering judgment or an engineering study, as
appropriate.
Definition for ``forest transportation atlas.''
Comment. Some respondents stated that a forest transportation atlas
should include all open roads and trails, closed roads and trails,
user-created roads and trails, rights-of-way, and public and private
roads.
Response. The final rule is not substantively changing the
definition of a forest transportation atlas. However, the final rule
simplifies the definition by deleting the list of possible forms (such
as geospatial and tabular) the data might take and the reference to the
data's purpose. In the final rule, a forest transportation atlas is
defined as a display of the system of roads, trails, and airfields of
an administrative unit.
Forest roads and forest trails are included in a forest
transportation atlas. Forest roads and forest trails are wholly or
partly within or adjacent to and serving the NFS that the Forest
Service determines are necessary for the protection, administration,
and utilization of the NFS and the use and development of its
resources.
Roads, trails, and areas designated for motor vehicle use under the
final rule will be reflected on a motor vehicle use map. Under the
final rule, motor vehicle use off designated routes and outside
designated areas will be prohibited by Sec. 261.13.
A travel management atlas will contain a forest transportation
atlas and a motor vehicle use map or maps.
Definition for ``motor vehicle.''
Comment. Some respondents stated that the final rule should clarify
that both tracked and wheeled vehicles are included in this definition.
Response. The definition for motor vehicle is broad enough to
include both tracked and wheeled vehicles. The definition excludes only
vehicles operated on rails and wheelchairs and mobility devices that
meet certain criteria.
Definitions for ``new road construction,'' ``road reconstruction,''
and ``forest transportation facility.''
Definitions for ``new road construction'' and ``road
reconstruction'' were not included in the proposed rule. However, the
Department is making a technical change to conform these definitions in
Sec. 212.1 to the definition for ``construction'' in the Federal
Highway Act, 23 U.S.C. 101(a)(3). Consistent with that statute, ``road
construction or reconstruction'' will be defined in Sec. 212.1 as
``supervising, inspecting, actual building, and incurrence of all costs
incidental to the construction or reconstruction of a road.'' This
change is consistent with other technical changes made to definitions
in part 212 to make them conform to 23 U.S.C. 101.
The Department is also making a technical change to conform the
definition for ``forest transportation facility'' to the other
definitions in this final rule by replacing the reference to
``classified roads'' with ``forest roads.'' In addition, the Department
is changing the term ``log transfer facilities'' to ``marine access
facilities'' in this definition because these facilities, which connect
roads to the Pacific Ocean, are used for more than transferring logs.
These facilities are used for marine access generally, including access
for recreational purposes.
Definition for ``road.''
Comment. Some respondents stated that the final rule should include
in the definition for a road the phrase, ``constructed, receiving
regular mechanical maintenance, and suitable for use by a standard
passenger car.'' Other respondents expressed support for the
flexibility to identify and manage a road as a trail.
Response. The definition for a road in part 212 applies to subpart
A, Administration of the Forest Transportation System, subpart B,
Designation of Roads, Trails, and Areas for Motor Vehicle Use, and
subpart C, Use by Over-Snow Vehicles. Given the broad application of
the definition, the Department believes it would be unduly restrictive
and inaccurate to add the phrase, ``constructed, receiving regular
mechanical maintenance, and suitable for use by a standard passenger
car,'' to the definition for a road. Not all roads on NFS lands are
constructed. Not all roads on NFS lands need regular mechanical
maintenance, and not all roads on NFS lands are suitable for use by a
passenger car.
The definitions for roads and trails give the agency the
flexibility to identify and manage as a trail routes that are wider
than 50 inches. Some trails on NFS lands are wider than 50 inches and
may have the physical characteristics of a road. Some trails are open
to some full-sized vehicles. Four-wheel-drive travel ways and trails
originally constructed as roads or railroad grades are all part of the
Forest Service trail system. The current definitions for a road and
trail, which embrace the diverse array of trail opportunities, are
retained in the final rule.
Definition for ``road or trail under Forest Service jurisdiction.''
Comment. Some respondents expressed concern that this definition
would unnecessarily limit Forest Service authority to enforce traffic
laws and regulate use on valid rights-of-way and State and county
roads. Other respondents observed that the Forest Service has the
authority and a duty to protect NFS lands underlying these routes.
Response. The final rule provides for designation of NFS roads, NFS
trails, and areas on NFS lands for motor vehicle use. The Department
wishes to clarify that this final rule does not in any way affect the
Forest Service's jurisdiction to enforce traffic laws, to protect NFS
lands underlying routes, or to regulate use, including use on valid
rights-of-way. To simplify the definitions in the final rule, the
Department has moved the phrase ``other than a road or trail that has
been authorized by a legally documented right-of-way held by a State,
county, or local public road authority'' from the definition for ``road
or trail under Forest Service jurisdiction'' to the definitions for
``National Forest System road'' and ``National Forest System trail,''
and deleted the definition for ``road or trail under Forest Service
jurisdiction.''
Motor vehicle use on State, county, or municipal roads and trails
authorized by a legally documented right-of-way is subject to the
control of that State, county, or local public road authority. These
roads and trails are not subject to designations made under the final
rule, or to the prohibition on motor vehicle use off designated routes
and outside designated areas.
Comment. Some respondents stated that private rights-of-way should
be excluded from the definition of a road or trail under Forest Service
jurisdiction.
Response. Section 212.55(d) of the final rule requires responsible
officials in making designations to recognize valid existing rights,
including valid outstanding or reserved rights-of-way for a road or
trail. The Forest Service may not regulate uses within the scope of
these rights-of-way if the agency has not acquired the right to do so.
However, the agency may regulate use on these rights-of-way if it has
obtained the right to do so. Some private rights-of-way may be forest
roads. Others may not be ``necessary for the protection,
administration, and utilization of the National Forest System,'' and
are not forest roads. Because there are many different local
permutations involving
[[Page 68276]]
different rights, some of which include Forest Service regulation of
some uses, the Department does not believe it would be appropriate to
exclude these rights-of-way from the definition of a NFS road or NFS
trail.
In the definition of ``road'' in the final rule, the Department is
removing the sentence, ``A road may be a forest road, a temporary road,
or an unauthorized or unclassified road,'' and is making a
corresponding change in the definition of ``trail.'' Some private roads
are not forest roads, temporary roads, or unauthorized roads. These
roads may be included in a forest transportation atlas, but are not NFS
roads and will not be subject to designation under this final rule.
Comment. Some respondents objected to proposed language regarding
roads or trails ``which an authorized officer has ascertained, for
administrative purposes and based on available evidence, is within a
public right-of-way for a highway, such as a right-of-way for a highway
pursuant to R.S. 2477.'' These respondents asserted that this language
would violate the Congressional moratorium on rulemaking concerning
recognition of these rights-of-way. Other respondents requested clear
delegation of authority for applying this exclusion, and clarification
of the process and criteria to be used in ascertaining whether such a
right-of-way exists. Some respondents suggested that the final rule
establish that all routes in existence before 1976 are R.S. 2477
rights-of-way.
Response. The exemption for a road or trail ``which an authorized
officer has ascertained, for administrative purposes and based on
available evidence, is within a public right-of-way for a highway, such
as a right-of-way for a highway pursuant to R.S. 2477'' has been
removed from the definition for a road or trail under Forest Service
jurisdiction in the final rule. As stated above, the remaining text in
that definition has been moved to the definitions for ``National Forest
System road'' and ``National Forest System trail'' in the final rule.
The exemption for legally documented rights-of-way held by State,
county, or other local public road authorities covers rights-of-way
under R.S. 2477 that have been adjudicated through the Federal court
system or otherwise formally established. The Department does not want
to give the appearance of establishing the validity of unresolved R.S.
2477 right-of-way claims in determining the applicability of this final
rule.
Comment. Some respondents stated that the final rule should address
routes that cross private property or otherwise change jurisdiction.
These respondents expressed concern that popular, user-created routes
on NFS lands could be closed under the final rule if they are
accessible only from private land.
Response. Many roads and trails on NFS lands originate on or cross
private property. Where the United States holds a right-of-way across
private property providing access to the National Forest, these routes
are NFS roads and NFS trails, and subject to possible designation under
the final rule.
Some user-created roads and trails on NFS lands cross private
property. The agency generally will not consider a road or trail on NFS
lands for designation unless there is legal public access to that road
or trail. Where access to NFS lands from private property is needed,
the Forest Service will seek rights-of-way from willing sellers. If
public access cannot be secured, these routes generally will be closed
to motor vehicles under the final rule.
The Department supports public access to Federal land and supports
the rights of private landowners to control access to their land. A
designated system of motor vehicle routes should be based on legal
public access.
Definition for ``snowmobile.''
Comment. Some respondents suggested that the definition for
snowmobile in the proposed rule be broadened to include other over-snow
vehicles, such as tracked ATVs and grooming machines.
Response. The proposed rule defined snowmobile as ``A motor vehicle
that is designed exclusively for use over snow and that runs on a track
or track and/or a ski or skis.'' This definition encompassed large
vehicles, such as snow cats, not commonly referred to as snowmobiles.
However, the proposed definition excluded vehicles capable of
conversion to over-snow use, such as ATVs with tracks. Since the
proposed definition refers only to the vehicle itself, and not to its
use, the proposed rule could be read to allow use of snowmobiles in the
absence of snow off routes and outside areas designated for motor
vehicle use. The Department believes that over-snow use by tracked
vehicles has similar environmental effects, regardless of whether the
vehicle is designed exclusively for use over snow.
Consequently, the final rule replaces the exemption and definition
for snowmobiles with an exemption and definition for over-snow vehicles
(which would include snowmobiles). The final rule also removes the word
``exclusively'' from the definition, while adding ``while in use over
snow,'' so that the final definition for over-snow vehicle includes
motor vehicles that are designed for use over snow and that run on a
track or track and/or a ski or skis, while in use over snow. Use by
over-snow vehicles may be allowed, restricted, or prohibited under part
212, subpart C.
Definition for ``temporary road or trail.''
Comment. Some respondents stated that roads and trails in this
category must be managed as temporary and removed as soon as their
purpose is served. Otherwise, these respondents believed that they
should be included in the forest transportation atlas. Other
respondents stated that the final rule should clarify use and
designation of temporary routes and explicitly prohibit unauthorized
motor vehicle use.
Response. The Department agrees that temporary roads and trails
must be managed as temporary. In the rule, a temporary road or trail is
defined as a road or trail necessary for emergency operations or
authorized by contract, permit, lease, or other written authorization.
The Forest Service requires that temporary roads and trails be
decommissioned once the emergency that justified them or their written
authorization is no longer in effect.
NFS roads and NFS trails are the only types of routes that will be
designated for motor vehicle use under this final rule. Temporary roads
and trails by definition are not forest roads or trails and therefore
cannot be NFS roads or NFS trails. Therefore, temporary roads and
trails will not be designated under the final rule.
Some motor vehicle use on temporary roads may be exempted from
designations and the corresponding prohibition under the rule, since
Sec. 212.51(a)(5) and (a)(8) and Sec. 261.13(e) and (h) of the final
rule exempt emergency motor vehicle use and motor vehicle use allowed
under a written authorization.
After designations are complete on an administrative unit or a
Ranger District, motor vehicle use on that unit or District that is
inconsistent with the designations will be prohibited under Sec.
261.13 of the final rule.
Definition for ``trail.''
Comment. Some respondents requested that the final rule define
trails as nonmotorized, or at least clarify whether motor vehicle use
is permitted on trails. Other respondents asked that the definition of
trails not exclude use by full-sized vehicles.
Some respondents stated that the final rule should clearly
distinguish between roads and trails and suggested a variety of
criteria for that purpose, including
[[Page 68277]]
setting a 60-inch width for roads to accommodate newer side-by-side
vehicles on trails, or defining trails as having only a single track.
Other respondents stated that the distinction between roads and trails
should not be based on width.
Respondents suggested several new terms to identify designated
routes that are open to motor vehicles, but narrower than a road. These
terms included ``routes,'' ``ways,'' and ``two-track trails'' (as
opposed to single-track trails). Some respondents suggested that the
final rule adopt definitions for categories of trails from the FSM and
FSH.
Response. The Department has retained the proposed definitions of
road and trail in the final rule.
Section 212.51 of the rule explicitly authorizes responsible
officials to designate NFS trails for motor vehicle use. No
clarification on this point is needed. The agency has long managed some
trails as nonmotorized and others as open to a variety of motor
vehicles.
The definitions for part 212 distinguish roads from trails based on
width and management. The Department believes that this distinction is
clear and objective and makes sense in terms of the way the agency
manages roads and trails. There is no need to change the definition of
a trail because the rule already provides the responsible official
discretion to designate roads and trails for appropriate classes of
motor vehicles, depending on the circumstances. Some roads may be
designated for use by non-highway-legal vehicles. Some routes over 50
inches wide are identified and managed as trails and can accommodate
wider vehicles.
The definitions for trails in the rule are keyed to management of
the forest transportation system, designation of routes and areas for
motor vehicle use, and management of use by over-snow vehicles. The
definitions for trails in the FSM and FSH are appropriate for trail
management in the field and are not needed for the broader purposes of
part 212. Definitions based on the types of use on trails, such as
single versus double track or motorized versus nonmotorized, are not
necessary in the rule, since designations based on vehicle class will
be made through implementation of the rule at the local level.
Definition for ``travel management atlas.''
Comment. Some respondents suggested expanding the definition for
travel management atlas to encompass nonmotorized routes in order to
serve a wider number of public and administrative needs.
Response. Under the final rule, the travel management atlas
consists of the forest transportation atlas and the motor vehicle use
map or maps. The forest transportation atlas includes the entire system
of roads, trails, and airfields of an administrative unit. Therefore,
the travel management atlas encompasses all NFS roads and NFS trails,
regardless of whether they are designated for motor vehicle use.
However, only NFS roads and NFS trails designated for motor vehicle use
will appear on the motor vehicle use map. Since motor vehicle use maps
may be developed at the Ranger District level, the final rule
recognizes that the travel management atlas for a National Forest may
include one or more motor vehicle use maps.
Definition for ``unauthorized or unclassified road or trail.''
Comment. Some respondents suggested that these roads and trails be
called ``unauthorized motorized routes'' to ensure they are not given
official status as roads or trails without site-specific analysis.
Respondents also recommended that the reference in the definition to a
forest transportation atlas be removed or explained to eliminate the
implication that a route can be authorized simply by including it in
the atlas. Other respondents stated that the definition should include
penalties for creation and use of unauthorized or unclassified routes.
Response. The Department believes that the term ``unauthorized or
unclassified road or trail'' is cumbersome and that ``unauthorized''
more accurately captures the nature of these routes than
``unclassified.'' Accordingly, in the final rule, the Department is
changing ``unauthorized or unclassified road or trail'' to
``unauthorized road or trail.''
The definition for unauthorized road or trail (a road or trail that
is not a forest road or trail or a temporary road or trail and that is
not included in a forest transportation atlas) makes clear that
unauthorized roads and trails are not part of the forest transportation
system and are not officially recognized by the Forest Service.
Stating that an unauthorized road or trail is not included in a
forest transportation atlas does not imply that it can be authorized
simply by including it in the atlas. As stated in the preamble to the
proposed rule, user-created roads and trails may be identified through
public involvement and considered in the designation process. After
public consideration and appropriate site-specific environmental
analysis, some user-created routes may be designated for motor vehicle
use pursuant to Sec. 212.51 of the final rule. These routes would
become NFS roads or NFS trails and would be included in a forest
transportation atlas and reflected on a motor vehicle use map.
The final rule contains a prohibition at 36 CFR 261.13 pertaining
to motor vehicle use. Under this provision, after NFS roads, NFS
trails, and areas on NFS lands have been designated pursuant to 36 CFR
212.51 on an administrative unit or a Ranger District, it is prohibited
to possess or operate a motor vehicle on NFS lands in that unit or
District other than in accordance with those designations. At that
point, motor vehicle use off designated routes and outside designated
areas will be prohibited under Sec. 261.13.
Section 212.2(a). This section of the rule governs the travel
management atlas.
Comment. Some respondents suggested that the travel management
atlas be available at Ranger Districts and on the internet.
Response. The current rule provides that the forest transportation
atlas is to be available to the public at the headquarters of each
administrative unit of the Forest Service. Likewise, the final rule
provides that the travel management atlas, consisting of the forest
transportation atlas and the motor vehicle use map or maps, is to be
available to the public at the headquarters of each administrative unit
of the Forest Service. The Department believes it is unnecessary to
require each Ranger District to maintain a complete travel management
atlas (which encompasses all forest roads and trails for the entire
National Forest). The motor vehicle use map will be available at the
corresponding Ranger District. The Forest Service also intends to post
motor vehicle use maps on the internet and gradually to post travel
management atlases (a more complicated job) on the internet. The
Department is adding language in Sec. 212.56 to require that motor
vehicle use maps be made available on appropriate Web sites as soon as
practicable.
Section 212.2(b). This section of the rule governs the forest
transportation atlas.
Comment. Some respondents commented that updating the forest
transportation atlas to reflect new information should be mandatory,
rather than discretionary. Respondents also stated that all long-
standing roads should be shown on a forest transportation atlas. Other
respondents stated that temporary roads should be shown on a forest
transportation atlas while they exist.
[[Page 68278]]
Some respondents stated that the final rule should require National
Forests to create a forest transportation atlas, so that they cannot
close all routes by failing to create the atlas.
Response. Section 212.2(b) of the final rule allows a forest
transportation atlas to be updated, rather than requiring it to be
updated. Under the final rule, forest roads and trails are included in
a forest transportation atlas. Temporary roads and trails are not
forest roads and trails and therefore are not included in a forest
transportation atlas and are not designated for motor vehicle use. It
would be cumbersome to add temporary roads and trails to the atlas and
remove them once they are no longer authorized.
The current rule at Sec. 212.2(a) requires the responsible
official for every administrative unit of the Forest Service to develop
and maintain a forest transportation atlas. Likewise, Sec. 212.2(a) of
the final rule requires the responsible official for every
administrative unit of the Forest Service to develop and maintain a
travel management atlas, which consists of a forest transportation
atlas and a motor vehicle use map or maps.
The Department has removed the citation to Sec. 200.1 after the
reference to the Forest Service's directive system in Sec. 212.2(b) of
the final rule.
Section 212.5(a)(1). This section of the rule governs traffic rules
in general.
Comment. Some respondents stated that the final rule should not
allow preemption of State traffic laws and that the Forest Service
should not allow uses that are illegal on public, State, or county
roads. One respondent maintained that the proposed rule would revoke
water rights for miners. Other respondents asked the Forest Service to
retain the authority to preempt State law.
Response. Under the current rule, traffic on roads is subject to
State traffic laws where applicable, except when in conflict with the
Forest Service's prohibitions at 36 CFR part 261. If there is a
conflict, the agency's prohibitions preempt State traffic laws. To
ensure that the agency's intent with respect to designation of roads,
trails, and areas is fully effectuated, the proposed and final rules
also provide for preemption of State traffic laws when they conflict
with those designations. No other preemption of State laws is
authorized. The final rule does not revoke water rights for miners.
Section 212.5(a)(2)(ii). This section of the rule contains specific
traffic rules.
Comment. Some respondents suggested that the final rule include and
distinguish among varieties of OHVs, including ATVs, motorcycles, and
buggies, and recognize different needs of users of different vehicles.
Respondents also suggested providing national definitions of vehicle
classes. Respondents recommended recognizing ATVs as a specific class
of OHV.
Response. This section of the rule in part 212, subpart A, which
authorizes restricting use of roads by certain classes of vehicles or
types of traffic as provided in 36 CFR part 261, is separate from the
provisions for designation of roads, trails, and areas for motor
vehicle use in part 212, subpart B. Part 212, subpart B, provides for
designation of roads, trails, and areas for motor vehicle use by
vehicle class. Since new classes of vehicles are introduced on a
regular basis and designations will be made at the local level, the
rule does not need to define different types of OHVs at a national
level.
The vehicle classes enumerated in Sec. 212.5(a)(2)(ii) are
illustrative, rather than exhaustive. The Department agrees that ATVs
are a common type of OHV and has added ``all-terrain vehicles'' to the
list of vehicle classes in Sec. 212.5(a)(2)(ii). The Department has
removed ``automobiles'' from the list, since ``passenger cars'' are
already included.
Section 212.7. This section of the rule governs access procurement
by the United States.
There were no comments received on this section of the proposed
rule. However, the Department is changing the heading and text of Sec.
212.7(a) to conform to terminology used elsewhere in part 212 and in
the definitions for ``forest road,'' ``National Forest System road,''
and ``National Forest System trail'' in the final rule.
Section 212.10. This section of the rule governs maximum economy
NFS roads.
No comments were received on this section of the proposed rule. The
Department has not made any changes to this section.
Subpart B--Designation of Roads, Trails, and Areas for Motor Vehicle
Use
Section 212.50. This section governs the purpose and scope of part
212, subpart B.
Comment. Some respondents stated that the final rule should specify
whether current land management plans, closures, and open areas remain
in effect while designation decisions are pending.
Respondents suggested that the purpose and scope section summarize
available information on monitoring and other aspects of management of
motor vehicle use in National Forests.
Some respondents requested clarification that State law governs
motor vehicle use on legally documented rights-of-way held by States,
counties, or local public road authorities.
Response. The prohibition pertaining to motor vehicle use in the
final rule at Sec. 261.13 explicitly states that it is not triggered
until NFS roads, NFS trails, and areas on NFS lands have been
designated pursuant to 36 CFR 212.51 on an administrative unit or a
Ranger District and those designations are identified on a motor
vehicle use map. Until those designations are complete for the entire
administrative unit or Ranger District and identified on a motor
vehicle use map, existing authorities and orders regarding motor
vehicle use remain in effect.
The purpose and scope section of subpart B provides for a system of
NFS roads, NFS trails, and areas on NFS lands that are designated for
motor vehicle use and a prohibition to enforce those designations.
Available information on monitoring and other aspects of management of
motor vehicle use in National Forests is more appropriately addressed
in the preamble to the proposed and final rules.
Designations and prohibitions under this rule do not apply to
legally documented rights-of-way held by States, counties, or other
local public road authorities. Only NFS roads and NFS trails may be
designated for motor vehicle use under the final rule. The definitions
of ``National Forest System road'' and ``National Forest System trail''
exclude legally documented rights-of-way held by States, counties, or
other local public road authorities. In addition, the prohibition
pertaining to motor vehicle use specifically exempts use of a road or
trail that is authorized by a legally documented right-of-way held by a
State, county, or other local public road authority.
As previously described, the final rule includes a new paragraph
(b) in Sec. 212.50 to clarify that previous travel management
decisions may be incorporated in designations.
Section 212.51. This section of the rule governs designation of
roads, trails, and areas for motor vehicle use.
Comment. Some respondents commented that the final rule should
require a designation decision to be consistent with the applicable
land management plan. Other respondents stated that the final rule
should provide for reconsideration of decisions made in land management
plans.
Response. Under the National Forest Management Act, project-level
decisions, including designation of
[[Page 68279]]
routes for motor vehicle use, must be consistent with the applicable
land management plan. If a proposed designation is not consistent with
the land management plan, the responsible official must either change
the proposed designation or propose an amendment to the plan.
Since under some land management plans, large areas of NFS lands
are open to cross-country motor vehicle travel, the Department expects
that some land management plan amendments will be proposed and
considered during implementation of the final rule. However, the
Department does not believe that the final rule should provide for
reconsideration of all travel management decisions made in land
management plans. Reconsideration of all these decisions would waste
public resources, disrespect public participation in development of the
plans, and expand the scope of this travel management rule beyond its
purposes.
Comment. Some respondents stated that the final rule should
encourage designation decisions to be made case by case at the Ranger
District level. Other respondents stated that the final rule should not
allow designation at the Ranger District level to avoid inconsistency,
to promote enforceability, and to ensure that cumulative effects are
evaluated. These respondents believed that designation decisions should
be made only at the National Forest or Regional level.
Response. The Department believes it is appropriate to give Forest
Service field officers the flexibility to designate routes and areas
for an entire administrative unit or for a single Ranger District.
Designation at the Ranger District level may make sense, given the size
of some Ranger Districts, which, at over three million acres, are more
than ten times the size of the smallest administrative units. The
Department believes that local evaluation and consideration of routes,
with public involvement and coordination with Federal, State, local,
and tribal governments, will lead to better decisions and better
compliance with them.
Enforcement at these two scales is feasible because the regulation
specifically authorizes designation at these two levels and triggers
the prohibition pertaining to motor vehicle use once a designation
decision has been made at either of these levels. Administrative units
and Ranger Districts are discrete management and geographic units
within the NFS. The Department believes that Ranger Districts are large
enough to permit adequate effects analysis for designation decisions
and that field officers should be given the flexibility to determine
the appropriate scope for that analysis. The Department believes that
it would be unwieldy to make designation decisions and comply with the
associated legal requirements at a Regional scale.
Section 212.52. This section governs public involvement.
The Department has changed the title of this section from ``Public
involvement in the designation process'' to ``Public involvement,''
since this section addresses public involvement in the designation
process (Sec. 212.52(a)) and the absence of public involvement in the
case of temporary, emergency closures (Sec. 212.52(b)).
Section 212.52(a). This section of the rule governs public
involvement in the designation process.
Comment. Some respondents suggested that the final rule require
consultation with user groups. Other respondents requested that the
final rule include detailed requirements for public involvement in
route and area designation, including publication of a Federal Register
notice, legal notices, 60-to-90-day public comment periods, mailings,
postings on bulletin boards, and postings on internet sites. Some
respondents requested that the final rule provide for public notice and
comment on inventories of routes and areas, as well as on designation
decisions.
Response. Consistent with E.O. 11644, E.O. 11989, and Sec. 212.52
of the proposed rule, the final rule requires public participation
generally rather than consultation with specific parties in the
designation of roads, trails, and areas pursuant to the rule. Also
consistent with the E.O.s and Sec. 212.52 of the proposed rule, the
final rule does not enumerate specific requirements for public
involvement, so as to give field officers flexibility in meeting the
requirement to give advance notice to allow for public comment on
proposed designations and revisions to designations.
The Department believes that public involvement associated with the
NEPA process will often fulfill the requirements of Sec. 212.52(a).
Rather than duplicating existing requirements for public involvement,
the Department is adding language to Sec. 212.52(a) of the final rule
to establish that advance notice and public comment will be consistent
with agency procedures under NEPA.
The Department does not believe it is necessary to provide for
public notice and comment on inventories of routes and areas. NFS roads
and NFS trails are reflected in the forest transportation atlases.
User-created routes on NFS lands that have resulted from cross-country
motor vehicle use may be identified through public involvement and
considered in the designation process under the final rule. These
routes will not necessarily be inventoried. The decision about which
routes and areas to designate, rather than the gathering of information
prior to designation, is the decision point with substantive effects on
users and the environment. Designation decisions will be subject to
public notice and comment as provided in Sec. 212.52(a).
Section 212.52(b)(1). This section of the rule addresses temporary,
emergency closures without advance public notice.
Comment. Some respondents suggested that the final rule allow
cooperative work, volunteer work, or mitigation to address
environmental problems associated with motor vehicle use of routes as
an alternative to temporary, emergency closures.
Response. Section 212.52(b)(1) of the proposed and final rules
restates existing authority in Sec. 295.3 to implement temporary,
emergency closures pursuant to 36 CFR part 261, subpart B. This
authority augments other measures that might be taken to address
resource protection or to protect public health and safety, including
cooperative work, volunteer work, and mitigation.
Section 212.52(b)(2). This section of the rule governs temporary,
emergency closures based on a determination of considerable adverse
effects.
Comment. Some respondents stated that the final rule should restore
``including public input,'' from 36 CFR 295.5, after ``If, based on
monitoring pursuant to Sec. 212.57,'' and before ``the responsible
official determines that motor vehicle use on a National Forest System
road or a National Forest System trail or in an area on National Forest
System lands is causing or will cause considerable adverse effects.''
Response. There is no legal obligation to obtain public input in
connection with monitoring the effects of motor vehicle use, or in
making a determination of considerable adverse effects for purposes of
Sec. 212.52(b)(2). The public is welcome to provide information to the
responsible official regarding motor vehicle use on routes and in areas
and to highlight potential problems associated with motor vehicle use
on particular routes and in particular areas. The Forest Service values
this input as an important adjunct to agency monitoring efforts.
However, the Department believes it is not appropriate, and could be
counter-
[[Page 68280]]
productive, to imply that public input is required in connection with a
determination of considerable adverse effects pursuant to
Sec. 212.52(b)(2).
To track the language of E.O. 11644 more precisely and to clarify
that monitoring pursuant to Sec. 212.57 is not the only potential
source of information about ``considerable adverse effects,'' the
Department is removing ``based on monitoring pursuant to Sec. 212.57''
from the final rule. This section now begins ``If the responsible
official determines that motor vehicle use * * * ''
Comment. Some respondents requested that the word ``mitigated'' be
removed from Sec. 212.52(b) in the final rule, or that the final rule
include a standard for mitigation, such as ``to a level of
insignificance.'' These respondents contended that the addition of
``mitigated'' in Sec. 212.52(b) weakens the strong wording of E.O.
11644 and E.O. 11989 which, according to these respondents, require
such effects to be eliminated. These respondents maintained that the
explanation for the addition of ``mitigated'' in the preamble to the
proposed rule is contradictory.
Response. The Department believes that temporary, emergency
closures based on a determination of considerable adverse effects
should remain in place until the effects have been mitigated or
eliminated. Use of only the term ``eliminated'' could be read to imply
that the closure must stay in place until there is no effect
whatsoever, a practical impossibility in some situations. By
``mitigated,'' the Department means the effects will be reduced to the
point where they are not considerable adverse effects. The Department
believes that the inclusion of both terms, ``mitigated or eliminated,''
better expresses the intent of the E.O.s. Where motor vehicle use
directly causes or will directly cause considerable adverse effects,
use must be stopped until the considerable adverse effects have been
mitigated or eliminated. The final rule further requires that the
closure remain in place until measures have been implemented to prevent
future recurrence.
Comment. Some respondents stated that the final rule should limit
temporary, emergency closures to one year as in Sec. 295.3 of the
current rule and should require documentation of impacts and
consideration of alternatives before closure. Respondents suggested
changing ``considerable adverse effects,'' which they believed is vague
and open to interpretation, to ``irreversible physical harm.''
Response. The Department believes it is appropriate to retain the
flexibility to implement a temporary, emergency closure for a period
that is longer than a year, if warranted by the situation. E.O. 11644,
as amended by E.O. 11989, requires that the closure remain in place
until the considerable adverse effects have been eliminated (mitigated
or eliminated in the final rule). Setting a mandatory expiration date
could conflict with this requirement.
Requiring formal documentation of impacts and consideration of
alternatives also could frustrate the purpose of the E.O.s and this
final rule, which require the responsible official to close a road,
trail, or area immediately when motor vehicle use on that route or in
that area is causing considerable adverse effects. However, the
Department is adding ``directly'' before ``causing'' and ``cause'' in
Sec. 212.52(b)(2) of the final rule to clarify that the motor vehicle
use must directly cause a considerable adverse effect to be subject to
this section. The Department is also including a requirement for public
notice of the closure pursuant to 36 CFR 261.51, including reasons for
the closure and the estimated duration of the closure, as soon as
practicable following the closure.
The Department does not believe that it would be appropriate to
substitute ``irreversible physical harm'' for ``considerable adverse
effects'' as the trigger for a temporary, emergency closure under the
final rule. The E.O.s provide that a determination of considerable
adverse effects will trigger a temporary, emergency closure. In
addition, the E.O.s and this final rule provide for the closure to be
lifted when the considerable adverse effects have been redressed. If
irreversible harm, which is permanent, is the trigger, the closure
could never be lifted.
For consistency with Sec. 212.51, the Department is removing
``Forest Supervisor or other'' before ``responsible official'' in Sec.
212.52(b)(2) of the final rule. The Department is making the same
change in Sec. Sec. 212.53 and 212.57 of the final rule. In addition,
the Department is changing the phrase ``cultural or historic
resources'' in Sec. 212.52(b)(2) to ``cultural resources'' because the
phrase ``cultural resources'' includes historic resources for purposes
of the National Historic Preservation Act.
Section 212.53. This section of the rule governs coordination with
Federal, State, county, and other local governmental entities and
tribal governments.
Comment. Some respondents stated that the final rule should require
consultation with gateway communities and State tourism offices.
Response. Section 212.53 of the final rule requires coordination
with appropriate Federal, State, county, and other local governmental
entities and tribal governments in implementing the final rule. State
governments are organized differently across the country. While the
Department relies on States to identify the appropriate points of
contact, State tourism offices generally would fall into this category.
``Gateway communities'' is a broad term encompassing county and local
governments in the vicinity of a National Forest. The Department
believes that coordination with State, local, and tribal governments is
critical to the success of this final rule. Not only can their programs
be affected by designation of NFS roads, NFS trails, and areas on NFS
lands under the final rule, but they often maintain their own networks
of roads intertwined with the Forest Service's system of roads and
trails.
Section 212.54. This section of the rule governs revision of
designations.
Comment. Some respondents stated that the final rule should make
designations permanent, rather than subject to future review and
reconsideration. Other respondents suggested that the rule provide for
development of new trails, and avoid the implication that the system
designated pursuant to this final rule represents all the routes that
will ever be approved for motor vehicle use. Some respondents stated
that the final rule should allow users to continue to develop new
trails independent of the Forest Service.
Response. The Department believes that field officers need to be
able to revise designations made pursuant to the final rule to meet
changing conditions. This flexibility is consistent with E.O. 11644,
which provides for closure of designated routes based on environmental
impacts. Section 212.54 of the final rule will allow for revisions to
designations to reflect changes in environmental conditions, recreation
demand, and other factors identified through monitoring pursuant to
Sec. 212.57 of the final rule. These revisions may include additions
to the system of designated routes, as well as route closures. New
motor vehicle routes can be planned, constructed, and designated after
appropriate public involvement and environmental analysis. The
Department does not agree that users should construct new routes
without agency approval. Trail construction without a written
authorization from the Forest Service is prohibited by Sec. 261.10(a).
[[Page 68281]]
The Department has added language to Sec. 212.54 of the final rule
to clarify that revision of designations shall include coordination
with Federal, State, county, and other local governmental entities and
tribal governments as provided under Sec. 212.53.
Section 212.55. This section of the rule governs the criteria for
designation of roads, trails, and areas for motor vehicle use.
Comment. Some respondents suggested consolidating Sec. 212.55(a),
(b), and (c) to reduce redundancy and to provide the same standards for
motor vehicle use on roads and trails.
Response. The general criteria of Sec. 212.55(a) and the specific
criteria of Sec. 212.55(b) are taken directly from E.O. 11644. The
E.O. applies only to trails and areas designated for motor vehicle use.
However, the Department believes that the general criteria cited in the
E.O. are of such universal applicability that they should be considered
in designating roads, as well as trails and areas. Therefore,
Sec. 212.55(a) describes criteria to be considered in all designations.
Section 212.55(b), on the other hand, reflects the specific
criteria to be used in designating trails and areas under the E.O.
Section 212.55(c) contains specific criteria for designation of roads
drawn from existing Forest Service transportation policy. The
Department believes that consolidating these sections into a single set
of criteria for roads, trails, and areas would not provide the
opportunity to address the different management challenges and
opportunities in different contexts.
Section 212.55(a). This section of the rule contains general
criteria for designation of NFS roads, NFS trails, and areas on NFS
lands.
Comment. Some respondents suggested removing ``minimization of
conflicts among uses of NFS lands'' and other criteria unrelated to
physical and biological impacts. These respondents stated that the
government should not eliminate one use to avoid conflict with another
and asked that the final rule specify that motorized and nonmotorized
use on the same route does not represent a conflict.
Response. The references to use conflicts in this section are taken
from E.O. 11644. In issuing this E.O., President Nixon directed
agencies to take conflicts among uses into account in designating
trails and areas for motor vehicle use. The Department believes that
some trails can accommodate both motorized and nonmotorized uses.
However, the Department also believes that some trails are better
managed for one use or the other, and that providing separate trail
systems can sometimes result in better recreational experiences for all
users.
The Department is changing the phrase ``National Forest System
resources'' in Sec. 212.55(a) to ``National Forest System natural and
cultural resources'' to make it clear that this criterion includes
cultural, as well as natural, resources on NFS lands. To emphasize
consideration of effects through a public process, the Department is
replacing ``protection of'' prior to ``National Forest System
resources'' with ``effects on'' and removing ``promotion of'' before
``public safety'' and ``minimization of'' before ``conflicts among
uses.''
Comment. Some respondents stated that the final rule should ensure
that no routes are designated unless there is funding for maintenance
and enforcement. Other respondents asked field officials to consider
the availability of volunteers and cooperators in evaluating resources
available for maintenance.
Response. The Department agrees that availability of resources
should be a consideration in designating routes for motor vehicle use.
Section 212.55(a) of the proposed and final rules include as a
criterion for designation ``the need for maintenance and administration
of roads, trails, and areas that would arise if the uses under
consideration are designated; and the availability of resources for
that maintenance and administration.'' The Department believes,
however, that this determination involves the exercise of judgment and
discretion on the part of the responsible official. At times, resources
are scarce, and the Department does not believe that this scarcity
should lead to blanket closures of NFS lands to recreational users.
Volunteers and cooperators can supplement agency resources for
maintenance and administration, and their contributions should be
considered in this evaluation.
Section 212.55(b). This section of the rule contains specific
criteria for designation of trails and areas.
Comment. Some respondents suggested rewriting the criteria in this
section to make clear that some level of impacts is acceptable. Other
respondents stated that the final rule should retain what they
characterized as the mandatory language from E.O. 11644 with respect to
application of the specific criteria for trails and areas
(``Designation of these areas and trails shall be in accordance with
the following: areas and trails shall be located to minimize. * * *
''), rather than what they viewed as the discretionary language in the
proposed rule (``In designating National Forest System trails and areas
on National Forest System lands, the responsible official shall
consider effects on the following, with the objective of minimizing. *
* *''
Response. The Department has retained the proposed language, ``the
responsible official shall consider effects on the following, with the
objective of minimizing,'' in the final rule. The retained language is
mandatory with respect to addressing environmental and other impacts
associated with motor vehicle use of trails and areas. The Department
believes this language is consistent with E.O. 11644 and better
expresses its intent. It is the intent of E.O. 11644 that motor vehicle
use of trails and areas on Federal lands be managed to address
environmental and other impacts, but that motor vehicle use on Federal
lands continue in appropriate locations. An extreme interpretation of
``minimize'' would preclude any use at all, since impacts always can be
reduced further by preventing them altogether. Such an interpretation
would not reflect the full context of E.O. 11644 or other laws and
policies related to multiple use of NFS lands. Neither E.O. 11644, nor
these other laws and policies, establish the primacy of any particular
use of trails and areas over any other. The Department believes ``shall
consider * * * with the objective of minimizing * * *'' will assure
that environmental impacts are properly taken into account, without
categorically precluding motor vehicle use.
Section 212.55(c). This section of the rule contains specific
criteria for designation of roads.
Comment. Some respondents stated that the final rule should clarify
the application of the criteria in Sec. 212.55(c) to user-created and
temporary roads. Other respondents suggested that the final rule make
road management objectives dependent on designation rather than
designation dependent on road management objectives.
Response. Only NFS roads, NFS trails, and areas on NFS lands will
be designated for motor vehicle use under the final rule. Temporary
roads are not NFS roads and may not be designated. Temporary roads are
used for emergency purposes or under a written authorization for a
particular time frame and then decommissioned. Motor vehicle use on a
temporary road is exempted from designations under Sec. 212.51(a)(5)
and (a)(8). User-created roads may be considered for designation under
the criteria in Sec. 212.55 of the final rule. Those that are not
designated will
[[Page 68282]]
be closed to motor vehicle use by operation of the final rule.
The Department does not expect road and trail management objectives
to remain static over time. Road and trail management objectives
document prior decisions regarding the role of roads and trails in
providing access to implement land management plans. This information
about the intent and purpose of roads and trails should be considered
when making designation decisions under the final rule. However, road
and trail management objectives must be revised when designations under
the final rule change motor vehicle use on roads and trails.
Consequently, the Department has deleted ``consistency with road
management objectives'' from Sec. 212.55(c) of the final rule.
Likewise, the Department has deleted ``consistency with trail
management objectives'' from Sec. 212.55(b) of the final rule. In
addition, the Department has added compatibility of vehicle class with
road geometry and road surfacing as a specific criterion for
designation of roads because this criterion is an important factor in
assessing public safety in designating roads for motor vehicle use.
Section 212.55(d). This section of the rule addresses rights of
access in the context of the designation process.
Comment. Some respondents stated that the final rule should provide
clear protection of tribal treaty rights. Other respondents stated that
the final rule must not revoke valid existing rights-of-way held by
miners.
Some respondents stated that the final rule must not interfere with
rights of access to private property and should recognize private use
by right for inholders, rather than requiring private use by inholders
to be authorized by a permit.
One respondent requested that the proposed rule be revised to
reflect other provisions of the Alaska National Interest Lands
Conservation Act (ANILCA) besides sections 811 and 1110(a).
Response. Nothing in the final rule revokes any rights-of-way held
by miners or others or alters or is inconsistent with any treaty rights
held by tribal governments. In the final rule, the Department clarifies
this intent by substituting ``recognize'' for ``take into account''
with regard to rights of access. Responsible officials will consult
with affected tribal governments when designating NFS roads, NFS
trails, and areas on NFS lands, pursuant to FSM 1563.11.
Section 212.55(d) of the final rule requires responsible officials
in designating roads, trails, and areas to recognize valid existing
rights, including valid outstanding or reserved rights-of-way for a
road or trail. Examples include a valid outstanding or reserved right-
of-way for a road or trail in existence at the time title to the
underlying land was acquired by the United States, and a right-of-way
for a road or trail acquired by the United States where the owner of
the underlying land may have retained control of the right-of-way and
may have reserved the right to allow others to use it. The Forest
Service may not regulate uses within the scope of these rights-of-way
if the agency has not acquired the right to do so. However, the agency
may regulate use on these rights-of-way if the agency has obtained the
right to do so.
Section 1323(a) of ANILCA provides property owners within the
boundaries of the NFS certain rights of access across NFS lands.
According to the terms of ANILCA, such access shall be ``subject to
such terms and conditions as the Secretary of Agriculture may
prescribe,'' and ``as the Secretary deems adequate to secure to the
owner the reasonable use and enjoyment thereof: Provided, That such
owner comply with rules and regulations applicable to ingress and
egress to or from the National Forest System'' (16 U.S.C. 3210(a)).
While ANILCA provides certain rights to property owners, those rights
are subject to such reasonable terms and conditions as the Forest
Service may prescribe in a written authorization.
Some property owners also may possess reserved or outstanding
rights-of-way or other rights providing access across NFS lands, which
may or may not require a written authorization from the Forest Service.
Those rights must be recognized under Sec. 212.55(d). The Department
believes that questions of valid existing rights are best examined at
the local level, where they can be individually evaluated.
The Department is moving the requirement in Sec. 212.55(d)(2) of
the proposed rule to take into account the provisions concerning rights
of access in sections 811 and 1110(a) of ANILCA to Sec. 212.81(c) of
the final rule, governing establishment of restrictions and
prohibitions on use by over-snow vehicles, because these sections of
ANILCA specifically refer to snowmobile use. In addition, the
Department is changing ``take into account'' to ``recognize'' in Sec.
212.81(c) of the final rule. In the final rule, the Department is
citing section 811(b), rather than section 811, because section 811(b)
contains the reference to snowmobile use. To the extent other
provisions of ANILCA may address rights for motor vehicle access, they
are covered by Sec. 212.55(d)(1), which requires that the responsible
official recognize valid existing rights in making designations under
the final rule. It is not feasible for the Department to list every
right that may be implicated in any given situation in designating
roads, trails, and areas for motor vehicle use under the final rule.
Section 212.55(e). This section of the rule addresses wilderness
areas and primitive areas in the context of the designation process.
Comment. Some respondents commented that the final rule should
retain the more comprehensive ban on motor vehicle use in wilderness
areas contained in the current rule, and drop the exception for motor
vehicle use authorized in enabling legislation for wilderness areas.
Response. Mechanical transport and motor vehicles are prohibited in
wilderness areas unless they are necessary to meet minimum requirements
for administration of the areas or they are expressly authorized under
individual statutes designating wilderness areas. The language in Sec.
212.55(e) proscribing designation of roads, trails, and areas for motor
vehicle use in wilderness areas, unless motor vehicle use is authorized
by the applicable enabling legislation for those areas, is required for
consistency with those statutes.
To avoid confusion with designated roads, trails, and areas, the
Department has removed ``Congressionally designated'' before the phrase
``wilderness areas'' in Sec. 212.55(e) of the final rule.
Comment. Some respondents requested specific direction on
protection of wilderness study areas and inventoried roadless areas to
preserve their roadless, nonmotorized character. Respondents also
suggested prohibiting motor vehicle use within a buffer zone
surrounding wilderness areas.
Response. Management of wilderness study areas established by
Congress is generally governed by their authorizing legislation.
Management of inventoried roadless areas is governed by the applicable
land management plan and Forest Service policy. The Department does not
believe that additional direction for management of these areas is
necessary or required in this final rule. Nor does the Department
believe that it would be appropriate to prohibit motor vehicle use
within a buffer zone surrounding wilderness areas. Responsible
officials will consider impacts to nearby wilderness areas, wilderness
study areas, and inventoried
[[Page 68283]]
roadless areas during the designation process.
Section 212.56. This section of the rule governs identification of
designated roads, trails, and areas.
The Department is making a technical change in the final rule to
clarify that motor vehicle use maps will be available at Ranger
District headquarters and as soon as practicable on appropriate Web
sites, as well as at administrative unit headquarters.
Section 212.57. This section of the rule governs monitoring of
effects of motor vehicle use on designated roads and trails and in
designated areas.
Comment. Some respondents recommended reinstating the requirement
for annual review of OHV management from Sec. 295.6 of the current
rule and including public participation in these reviews to allow for
adaptive management. Other respondents suggested requiring regular
updates of motor vehicle use maps and signs marking designated roads,
trails, and areas.
Response. The Department supports the concept of adaptive
management and agrees that monitoring and, if needed, revision of motor
vehicle designations will be an ongoing part of travel management.
Since the system of designated routes and areas will change over time,
the Department anticipates that local units will publish new motor
vehicle use maps annually and update signs as necessary or appropriate.
The Department does not believe that a regulatory requirement for
annual review of OHV management, having no basis in law or the E.O.,
should be imposed. Local review of designations should be conducted as
needed, and the Department favors providing local officials with
discretion in determining how often they are conducted.
The Department is adding ``consistent with the applicable land
management plan, as appropriate and feasible'' to Sec. 212.57 of the
final rule to clarify that monitoring should be incorporated into land
management plans under 36 CFR 219.11 to the extent possible to avoid
redundant monitoring requirements.
Subpart C--Snowmobile Use
Comments on snowmobile use are addressed in the response to
comments on Sec. 261.13 of the proposed rule and the corresponding
discussion in the preamble to the proposed rule. No specific comments
were received on this subpart.
Section 212.81. This section covers over-snow vehicle use.
The Department has added ``If the responsible official proposes
restrictions or prohibitions on use by over-snow vehicles under this
subpart'' to the beginning of Sec. 212.81(c) in the final rule to
stress that the requirements governing the designation process apply to
over-snow vehicles only if the responsible official proposes to
establish restrictions or prohibitions on over-snow vehicle use.
Part 251--Land Uses
The Department is making a technical change to conform the
definitions for ``National Forest System road'' and ``National Forest
System trail'' in part 251 with corresponding definitions in part 212
of this final rule.
Part 261--Prohibitions
Section 261.2. This section contains the definitions for part 261.
In addition to the revised definition for ``motor vehicle,'' Sec.
261.2 of the final rule contains new definitions for ``administrative
unit'' and ``area'' and revised definitions for ``National Forest
System road'' and ``National Forest System trail'' to match the
definitions added to Sec. 212.1. Comments associated with these
definitions are addressed under Sec. 212.1. No specific comments were
received on this section of the proposed rule.
Section 261.13. This section of the rule prohibits use of motor
vehicles not in accordance with designations and provides for
exemptions.
Comment. Some respondents suggested that bicycles should be
included in the prohibition on use of motor vehicles off designated
roads and trails and outside designated areas.
Response. The Department disagrees that bicycles should be
regulated under the same provisions as motor vehicle use. The
Department believes that bicycles are distinct from motor vehicles and
should be managed separately from them and that a nation-wide
prohibition on cross-country bicycle use is unwarranted at this time.
Noise (and its impacts on wildlife and other users) is a critical
distinction between bicycles and motor vehicles. Other differences can
(depending on the vehicle) include speed, power, weight, and tread
width.
Like all uses, including hiking, horseback riding, and motor
vehicle use, bicycling has environmental impacts and can affect the
experience of other users. Local Forest Service officials retain
authority to regulate bicycle use according to their local situation
and needs. Some National Forests, through travel plans and orders,
restrict bicycles to particular roads and trails. Others allow cross-
country bicycling.
Comment. Some respondents suggested that the rule specify penalties
for violations of Sec. 261.13 and that fines for violations be
substantially increased.
Response. Penalties for violations of Sec. 261.13 are beyond the
scope of this rulemaking and are established by Federal statute.
Violations of prohibitions in part 261 are Class B misdemeanors, which
are punishable by a prison term of up to six months (18 U.S.C.
3559(a)(7); 36 CFR 261.1b). Pursuant to 18 U.S.C. 3571(e), the $500
maximum fine specified in Sec. 261.1b is superseded by the $5000
maximum fine established for Class B misdemeanors in 18 U.S.C.
3571(b)(6). However, the maximum penalties are rarely imposed for
violations of the Forest Service's criminal regulations.
Each Federal judicial district implements a schedule of collateral
forfeiture amounts for violation of each Federal agency's criminal
regulations. The applicable collateral forfeiture amount is normally
entered on a citation issued to violators of Forest Service criminal
regulations. The applicable collateral forfeiture amount may be paid by
the violator to end the case without appearing in court. Except for
serious offenses or those for which a court appearance is mandatory,
these collateral forfeiture amounts generally are less than $1,000, and
most are less than $100.
Restitution also may be required for criminal violations involving
environmental damage (18 U.S.C. 3663A).
Comment. Some respondents observed that the rule's prohibition does
not require signage to take effect and that users are responsible for
using motor vehicles in accordance with designations reflected on a
motor vehicle use map. These respondents asked the Forest Service to
amend the rule to require signage of roads, trails, and areas closed to
motor vehicle use.
Response. The Department disagrees with this suggestion. The Forest
Service will continue to use signs widely to provide information and
inform users on a variety of topics, including regulations and
prohibitions. However, the agency has found that posting routes as open
or closed to particular uses has not always been effective in
controlling use. One of the reasons is that new unauthorized routes
continue to proliferate, even in areas closed to cross-country motor
vehicle use. Requiring each undesignated route and area to be posted as
closed would be an unreasonable and unnecessary burden on agency
resources and would tend to defeat the purpose of the final rule. Signs
have also proven difficult to maintain and subject to vandalism. The
final rule places more responsibility on
[[Page 68284]]
users to get motor vehicle use maps from Forest Service offices or
websites and to remain on routes and in areas designated for motor
vehicle use.
The Department has added language to the final rule clarifying that
the prohibition on motor vehicle use other than in accordance with
designations does not go into effect until designations have been
identified on a motor vehicle use map.
Comment. Some respondents suggested replacing the prohibition in
Sec. 261.13 with a provision restricting motor vehicle use in certain
areas to people with specific training and endorsement from
organizations promoting environmental ethics, such as Tread Lightly! or
the National Off-Highway Vehicle Conservation Council.
Response. The Department appreciates the long-standing work of
nongovernmental organizations, including user groups, to promote
environmental ethics and responsible behavior on the part of motor
vehicle users. These groups make vital contributions to sustainable
motor vehicle recreation. Nevertheless, the Department declines to
adopt this suggestion, which would make these nongovernmental
organizations gatekeepers for Federal lands and resources. Moreover,
the prohibition in Sec. 261.13 is needed because in many situations
cross-country motor vehicle use, and in some situations motor vehicle
use on routes, can cause unacceptable impacts, regardless of driver
training and endorsement of the driver by organizations promoting
environmental ethics.
Comment. Some respondents asked that motorcycles be exempted from
the prohibition regarding motor vehicle use in Sec. 261.13.
Response. The Department disagrees with this suggestion.
Motorcycles are motor vehicles under E.O. 11644 and Sec. 212.1 of this
final rule. Noise and other impacts of motorcycles can be similar to
those of other motor vehicles. The final rule seeks to establish a
common regulatory framework for management of all motor vehicles to
increase consistency and reduce confusion and lack of compliance. At
the same time, the Department recognizes that user demands and
environmental impacts vary by class of vehicle. Many motorcyclists
prefer to ride on single-track trails too narrow for ATVs and larger
vehicles. Similarly, some ATV riders prefer to ride on trails not used
by larger sport utility vehicles. Local Forest Service managers, with
input from the public, will take these differences into account when
designating roads, trails, and areas for motor vehicle use. The
Department anticipates that many National Forests will designate some
single-track trails for motorcycles, but not for other motor vehicles.
Comment. Some respondents asked the Forest Service to remove the
exemption for snowmobiles from the prohibition regarding motor vehicle
use in Sec. 261.13 and consolidate Sec. Sec. 261.13 and 261.14.
Others suggested making the exemption seasonal or limiting it to
specific dates or snow conditions.
Response. Use by over-snow vehicles, including snowmobiles,
presents a distinct suite of issues. A snowmobile traveling over snow
results in different impacts to natural resource values than motor
vehicles traveling over the ground. Unlike other motor vehicles
traveling cross-country, over-snow vehicles traveling cross-country
generally do not create a permanent trail or have a direct impact on
soil and ground vegetation. Therefore, the Department believes that use
by over-snow vehicles should be addressed in separate regulatory
provisions and that mandatory designation of use by over-snow vehicles
is not appropriate.
Nevertheless, since there are impacts associated with use by over-
snow vehicles, and since they are included in the definition of off-
road vehicle in E.O. 11644 and E.O. 11989, the Department is preserving
the authority currently in part 295 to allow, restrict, or prohibit use
by over-snow vehicles, including snowmobiles, on a discretionary basis
in part 212, subpart C. Local Forest Service officials retain authority
to manage use by over-snow vehicles to address local situations and
concerns and may establish restrictions based on the season of use or
local snow conditions that might not make sense nationally. In
addition, the final rule establishes a prohibition regarding use by
over-snow vehicles in Sec. 261.14 that is very similar to the
prohibition regarding motor vehicle use in Sec. 261.13.
The final rule clarifies that over-snow vehicles qualify as such
only while in use over snow.
Comment. Some respondents asked the Forest Service to continue to
allow motor vehicle use, where appropriate, for activities authorized
under a written authorization, such as livestock operations, mining,
logging, firewood collection, and maintenance of pipelines and utility
corridors.
Response. The Department agrees that motor vehicle use that is
specifically authorized under a written authorization issued under
Federal law or regulations should be exempted from designations made
under Sec. 212.51 and restrictions and prohibitions established under
Sec. 212.81, as well as from the prohibitions in Sec. Sec. 261.13 and
261.14 of the rule. To clarify this intent, the Department is changing
the exemption from designations in Sec. 212.51(a)(8) and the
corresponding prohibition in Sec. 261.13(h) from ``use and occupancy
of National Forest System lands and resources pursuant to a written
authorization issued under Federal law or regulations'' to ``motor
vehicle use that is specifically authorized under a written
authorization issued under Federal law or regulations.'' Likewise, the
Department is changing the exemption from restrictions and prohibitions
in Sec. 212.81(b)(5) and the corresponding prohibition in Sec.
261.14(e) from ``use and occupancy of National Forest System lands and
resources pursuant to a written authorization issued under Federal law
or regulations'' to ``use by over-snow vehicles that is specifically
authorized under a written authorization issued under Federal law or
regulations.''
If a written authorization for such activities as livestock
operations, mining, logging, firewood collection, and maintenance of
pipelines and utility corridors specifically provides for motor vehicle
use, that use is exempted from designations and the prohibition
regarding motor vehicle use and may continue. Local Forest Service
officials retain the authority to regulate uses under a written
authorization and to determine whether and under what conditions to
authorize motor vehicle use on routes and in areas not generally open
to motor vehicle use.
The Forest Service expects to provide additional guidance on
application of these exemptions, including the exemption for ``limited
administrative use by the Forest Service,'' in agency directives which
will be published for public notice and comment.
Comment. Some respondents asked the Forest Service to provide for
limited cross-country travel by motor vehicles for dispersed camping
and big game retrieval.
Response. The Department believes that some discretion should be
provided to local agency officials to consider limited use of motor
vehicles within a specified distance of certain designated routes for
these specific purposes. Consequently, the final rule includes a new
provision in Sec. 212.51(b), which allows the responsible official to
include in the designation of a road or trail the limited use of motor
vehicles within a specified distance of certain designated routes
solely for the purposes of big game retrieval or dispersed camping.
[[Page 68285]]
The Department expects the Forest Service to apply this provision
sparingly, on a local or State-wide basis, to avoid undermining the
purposes of the final rule and to promote consistency in
implementation. Provision for cross-country travel for big game
retrieval and dispersed camping will be at the discretion of the
responsible official. Nothing in this final rule requires inclusion of
either activity in a designation, or reconsideration of any decision
prohibiting motor vehicle use while engaging in these activities.
On some units, it may be possible to administer motor vehicle use
associated with dispersed camping or big game retrieval through a
permit system, rather than as a component of a designation. Motor
vehicle use specifically authorized under a permit is exempt under
Sec. 261.13(h) from the prohibition on motor vehicle use other than in
accordance with designations.
Comment. Some respondents asked the Forest Service to provide for
permits or exemptions for cross-country motor vehicle use by people
with disabilities. Some respondents stated that denying access to
people with disabilities constitutes discrimination.
Response. Under section 504 of the Rehabilitation Act of 1973, no
person with a disability can be denied participation in a Federal
program that is available to all other people solely because of his or
her disability. In conformance with section 504, wheelchairs are
welcome on all NFS lands that are open to foot travel and are
specifically exempted from the definition of motor vehicle in Sec.
212.1 of the final rule, even if they are battery-powered. However,
there is no legal requirement to allow people with disabilities to use
OHVs or other motor vehicles on roads, trails, and areas closed to
motor vehicle use because such an exemption could fundamentally alter
the nature of the Forest Service's travel management program (7 CFR
15e.103). Reasonable restrictions on motor vehicle use, applied
consistently to everyone, are not discriminatory.
Comment. Some respondents observed that under Sec. 261.13(h), the
responsible official could still issue permits for competitive cross-
country motor vehicle events, including motorcycle observed trials (an
event in which a rider, under observation, has to navigate natural
obstacles without putting a foot down). These respondents requested a
specific prohibition of such events on the grounds that they violate
the purposes of the rule.
Other respondents sought specific recognition for motorcycle
observed trials and other organized events as a legitimate cross-
country use that is not subject to the prohibitions of the rule. These
respondents requested provisions in the rule authorizing creation of
temporary trails for a single event.
Response. The Department declines to establish either a blanket
prohibition or a blanket allowance for motor vehicle events. The
Department believes that such decisions are best made at the local
level, based on public involvement and appropriate environmental
analysis. The exemption in Sec. 261.13(h) of the final rule provides
local Forest Service officials the discretion to continue to consider
requests for permits involving motor vehicle use on a site-specific
basis.
Section 261.14. This section of the rule prohibits use of
snowmobiles in violation of restrictions or prohibitions established
under part 212, subpart C.
Comments related to the prohibition on snowmobile use are addressed
in the response to comments on Sec. 261.13 of the proposed rule and in
response to comments on the corresponding discussion in the preamble to
the proposed rule. No specific comments were received on this section.
Section 261.55. This section of the rule governs NFS trails.
This section was not included in the proposed rule. However, the
Department is making technical changes to this section to conform the
terminology in the title and introductory text to terminology used
elsewhere in the Forest Service's regulations. Specifically, the
Department is changing ``forest development trails'' to ``National
Forest System trails.''
Part 295--Use of Motor Vehicles Off National Forest System Roads
The proposed rule removed part 295 and integrated its requirements,
except for the annual review under Sec. 295.6, into part 212. Comments
and responses related to specific changes in the existing rule's
language are addressed in this preamble under the corresponding
sections of part 212.
Regulatory Certifications in the Proposed Rule
Environmental Impact
Comment. Some respondents asserted that this rulemaking is a major
Federal action with significant effects on the human environment that
requires preparation of an environmental impact statement.
Response. The Department has determined that this final rule falls
within the category of actions excluded from documentation in an
environmental assessment or environmental impact statement under FSH
1909.15, section 31.1b. This provision excludes from documentation in
an environmental assessment or environmental impact statement rules,
regulations, or policies to establish Service-wide administrative
procedures, program processes, or instructions. No extraordinary
circumstances enumerated in the Forest Service NEPA procedures exist
that would preclude reliance on this categorical exclusion. The final
rule would have no effect on users or on the environment until
designation of roads, trails, and areas is complete for a particular
administrative unit or Ranger District, with opportunity for public
involvement. Specific decisions associated with designation of routes
and areas at the local level may trigger the need for documentation of
environmental analysis on a case-by-case basis under NEPA.
Regulatory Impact
Comment. Some respondents asserted that the proposed rule would
have an annual economic impact of over $100 million on private
landowners, local communities, the recreation industry, small
businesses, and State and local governments and therefore should be
considered a significant regulatory action under E.O. 12866.
Respondents cited statistics on the overall size of the OHV industry in
support of this statement.
Response. In light of the substantial interest expressed in the
proposed rule, the Office of Management and Budget (OMB) has determined
that the final rule is significant under E.O. 12866. Accordingly, the
Department has prepared a cost-benefit analysis for the final rule.
This documentation is available in the rulemaking record.
The Department disagrees that the final rule will have annual
economic impacts of over $100 million. The final rule requires National
Forests to designate which roads, trails, and areas are open to motor
vehicle use. Once designation is complete, the rule will restrict motor
vehicle use to designated roads, trails, and areas and prohibit motor
vehicle use on those routes and in those areas that is inconsistent
with the designations. Until designation is complete for a particular
administrative unit or Ranger District, the rule will have no impact on
motor vehicle use on NFS lands. Even after designations are complete,
the rule will have no direct economic impact because designations
merely will regulate where and, if appropriate, when motor vehicle use
will occur on NFS roads, on NFS trails, and in areas on NFS lands.
[[Page 68286]]
The Department expects that some user-created routes will become
designated roads and trails, after site-specific evaluation. The
overall network of routes designated for motor vehicle use would then
expand. These designated routes will form a more stable base for long-
term management and will receive increased maintenance, through agency
resources and cooperative relationships, thereby expanding
opportunities for motor vehicle users.
At the same time, unregulated cross-country motor vehicle use will
no longer be permitted. Unauthorized routes that are not designated
will be closed to motor vehicle use, which would limit opportunities
for motor vehicle users but might expand opportunities for other
recreational visitors seeking a nonmotorized experience.
The Department does not question respondents' assertion that the
OHV industry as a whole has an annual impact of over $100 million on
the national economy. However, only a fraction of this economic
activity is associated with use on National Forests and National
Grasslands. Moreover, only a fraction of that use represents cross-
country motor vehicle travel. Over the long-term, the rule will result
in a shift from unregulated, cross-country OHV use to OHV use on a
system of designated routes and areas. This shift might have minor
impacts on local users and economies, but the national economic impact
will be far less than $100 million annually.
Regulatory Flexibility Act
Comment. Some respondents asserted that the proposed rule would
have a significant economic impact on a substantial number of small
entities, including OHV dealerships and livestock operations, pursuant
to the Regulatory Flexibility Act.
Response. The final rule establishes a procedural framework for
local decisionmaking and will not have any effect until designation of
roads, trails, and areas is complete for a particular administrative
unit or Ranger District, with opportunity for public involvement. Even
after designations are complete, the rule will have no direct impact on
small entities because designations merely will regulate where and, if
appropriate, when motor vehicle use will occur on NFS roads, on NFS
trails, and in areas on NFS lands. The Department has determined that
the final rule will not have a significant economic effect on a
substantial number of small entities because the final rule will not
impose recordkeeping requirements on them, nor will it affect their
competitive position in relation to large entities or their cash flow,
liquidity, or ability to remain in the market.
No Takings Implications
Comment. One respondent stated that the proposed rule could cause
takings of private property when areas closed to motor vehicle use are
then established as wilderness areas. Another respondent asserted that
the rule revokes or modifies rights-of-way held by miners, inholders,
and others, thereby effecting a taking of private property.
Response. There is no taking of private property from
implementation of this final rule. The final rule applies only to NFS
roads, NFS trails, and areas on NFS lands. Any NFS lands that will be
closed to motor vehicle use will be Federal lands. Nothing in this rule
creates wilderness areas, which can be established only by Congress.
Nothing in the final rule revokes or alters any rights-of-way held
by miners, inholders, or others. The final rule merely requires
responsible officials to designate which NFS roads, NFS trails, and
areas on NFS lands are open to motor vehicle use. In making
designations, responsible officials must recognize valid existing
rights, including valid reserved and outstanding rights-of-way for a
road or trail (Sec. 212.55(d)).
Civil Justice Reform
No comments were received on this section of the proposed rule.
Federalism and Consultation and Coordination With Indian Tribal
Governments
Comment. One respondent asserted that the proposed rule has tribal
implications and may pose a taking of treaty rights guaranteeing access
to certain lands.
Response. The proposed rule does not have tribal implications
pursuant to E.O. 13175. Nothing in the final rule alters or is
inconsistent with any treaty rights held by tribal governments.
Energy Effects
No comments were received on this section of the proposed rule.
Unfunded Mandates
No comments were received on this section of the proposed rule.
Controlling Paperwork Burdens on the Public
No comments were received on this section of the proposed rule.
3. Regulatory Certifications for the Final Rule
Environmental Impact
The final rule requires designation at the field level, with public
input, of those NFS roads, NFS trails, and areas on NFS lands that are
open to motor vehicle use. The final rule would have no effect on users
or on the environment until designation of roads, trails, and areas is
complete for a particular administrative unit or Ranger District, with
opportunity for public involvement. Section 31.1b of FSH 1909.15 (57 FR
43180, September 18, 1992) excludes from documentation in an
environmental assessment or environmental impact statement ``rules,
regulations, or policies to establish Service-wide administrative
procedures, program processes, or instructions.'' The Department's
conclusion is that this final rule falls within this category of
actions and that no extraordinary circumstances exist that would
require preparation of an environmental assessment or environmental
impact statement.
This final rule is essentially procedural. It has no direct
environmental effects, and consideration of extraordinary circumstances
would be meaningless at this level. This rule will be implemented
through travel management decisions at the administrative unit or
Ranger District level, which may have environmental impacts. These
site-specific decisions will involve appropriate environmental analysis
and documentation.
Regulatory Impact
This final rule has been reviewed under USDA procedures and E.O.
12866 on regulatory planning and review. It has been determined that
this is not an economically significant rule. This final rule will not
have an annual effect of $100 million or more on the economy, nor will
it adversely affect productivity, competition, jobs, the environment,
public health and safety, or State or local governments. This final
rule will not interfere with an action taken or planned by another
agency, nor will it alter the budgetary impact of entitlement, grant,
user fee, or loan programs or the rights and obligations of
beneficiaries of such programs.
However, in light of the substantial interest expressed in the
proposed rule and the important policy issues involved, OMB has
determined that the final rule is significant under E.O. 12866.
Accordingly, the Department has prepared a cost-benefit analysis for
the
[[Page 68287]]
final rule. This documentation is available in the rulemaking record.
Regulatory Flexibility Act
This final rule has been considered in light of the Regulatory
Flexibility Act (5 U.S.C. 602 et seq.). The final rule requires
designation at the field level, with public input, of those NFS roads,
NFS trails, and areas on NFS lands that are open to motor vehicle use.
This final rule will not have a significant economic impact on a
substantial number of small entities as defined by the act because the
final rule will not impose recordkeeping requirements on them; it will
not affect their competitive position in relation to large entities;
and it will not affect their cash flow, liquidity, or ability to remain
in the market.
No Takings Implications
This final rule has been analyzed in accordance with the principles
and criteria contained in E.O. 12630. It has been determined that the
final rule will not pose the risk of a taking of private property.
Civil Justice Reform
This final rule has been reviewed under E.O. 12988 on civil justice
reform. After adoption of this final rule, (1) all State and local laws
and regulations that conflict with this rule or that impede its full
implementation will be preempted; (2) no retroactive effect will be
given to this final rule; and (3) it will not require administrative
proceedings before parties may file suit in court challenging its
provisions.
Federalism and Consultation and Coordination With Indian Tribal
Governments
The Department has considered this final rule under the
requirements of E.O. 13132 on federalism, and has determined that the
final rule conforms with the federalism principles set out in this
E.O.; will not impose any compliance costs on the States; and will not
have substantial direct effects on the States, the relationship between
the Federal government and the States, or the distribution of power and
responsibilities among the various levels of government. Therefore, the
Department has determined that no further assessment of federalism
implications is necessary.
Moreover, this final rule does not have tribal implications as
defined by E.O. 13175, Consultation and Coordination With Indian Tribal
Governments, and therefore advance consultation with tribes is not
required.
Energy Effects
This final rule has been reviewed under E.O. 13211 of May 18, 2001,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. It has been determined that this final rule does
not constitute a significant energy action as defined in the E.O.
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), which the President signed into law on March 22,
1995, the Department has assessed the effects of this final rule on
State, local, and tribal governments and the private sector. This final
rule will not compel the expenditure of $100 million or more by any
State, local, or tribal government or anyone in the private sector.
Therefore, a statement under section 202 of the act is not required.
Controlling Paperwork Burdens on the Public
This final rule does not contain any recordkeeping or reporting
requirements or other information collection requirements as defined in
5 CFR part 1320 that are not already required by law or not already
approved for use. Accordingly, the review provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its implementing
regulations at 5 CFR part 1320 do not apply.
4. Text of the Final Rule
List of Subjects
36 CFR Part 212
Highways and roads, National Forests, Public lands--rights-of-way,
and Transportation.
36 CFR Part 251
Administrative practice and procedure, Electric power, National
Forests, Public lands rights-of-way, Reporting and recordkeeping
requirements, Water resources.
36 CFR Part 261
Law enforcement, National Forests.
36 CFR Part 295
National Forests, Traffic regulations.
0
Therefore, for the reasons set out in the preamble, amend part 212,
subpart B of part 251, and subpart A of part 261, and remove part 295
of title 36 of the Code of Federal Regulations as follows:
PART 212--TRAVEL MANAGEMENT
0
1. Amend part 212 by revising the part heading to read as set forth
above.
0
1a. Remove the authority citation for part 212.
0
2. Designate Sec. Sec. 212.1 through 212.21 as subpart A to read as
set forth below:
Subpart A--Administration of the Forest Transportation System
0
2a. Add an authority citation for new subpart A to read as set forth
below:
Authority: 16 U.S.C. 551, 23 U.S.C. 205.
0
3. Amend Sec. 212.1 as follows:
0
a. In alphabetical order, add the following definitions: administrative
unit; area; designated road, trail, or area; forest road or trail;
forest transportation system; motor vehicle; motor vehicle use map;
National Forest System road; National Forest System trail; off-highway
vehicle; over-snow vehicle; road construction or reconstruction;
temporary road or trail; trail; travel management atlas; and
unauthorized road or trail; and
0
b. Revise the definitions for forest transportation atlas, forest
transportation facility, and road; and
0
c. Remove the definitions for classified road, new road construction,
road reconstruction, temporary road, and unclassified road.
Sec. 212.1 Definitions.
Administrative unit. A National Forest, a National Grassland, a
purchase unit, a land utilization project, Columbia River Gorge
National Scenic Area, Land Between the Lakes, Lake Tahoe Basin
Management Unit, Midewin National Tallgrass Prairie, or other
comparable unit of the National Forest System.
Area. A discrete, specifically delineated space that is smaller,
and in most cases much smaller, than a Ranger District.
* * * * *
Designated road, trail, or area. A National Forest System road, a
National Forest System trail, or an area on National Forest System
lands that is designated for motor vehicle use pursuant to Sec. 212.51
on a motor vehicle use map.
* * * * *
Forest road or trail. A road or trail wholly or partly within or
adjacent to and serving the National Forest System that the Forest
Service determines is necessary for the protection, administration, and
utilization of the National Forest System and the use and development
of its resources.
Forest transportation atlas. A display of the system of roads,
trails, and airfields of an administrative unit.
Forest transportation facility. A forest road or trail or an
airfield that is
[[Page 68288]]
displayed in a forest transportation atlas, including bridges,
culverts, parking lots, marine access facilities, safety devices, and
other improvements appurtenant to the forest transportation system.
Forest transportation system. The system of National Forest System
roads, National Forest System trails, and airfields on National Forest
System lands.
* * * * *
Motor vehicle. Any vehicle which is self-propelled, other than:
(1) A vehicle operated on rails; and
(2) Any wheelchair or mobility device, including one that is
battery-powered, that is designed solely for use by a mobility-impaired
person for locomotion, and that is suitable for use in an indoor
pedestrian area.
Motor vehicle use map. A map reflecting designated roads, trails,
and areas on an administrative unit or a Ranger District of the
National Forest System.
* * * * *
National Forest System road. A forest road other than a road which
has been authorized by a legally documented right-of-way held by a
State, county, or other local public road authority.
National Forest System trail. A forest trail other than a trail
which has been authorized by a legally documented right-of-way held by
a State, county, or other local public road authority.
Off-highway vehicle. Any motor vehicle designed for or capable of
cross-country travel on or immediately over land, water, sand, snow,
ice, marsh, swampland, or other natural terrain.
Over-snow vehicle. A motor vehicle that is designed for use over
snow and that runs on a track or tracks and/or a ski or skis, while in
use over snow.
* * * * *
Road. A motor vehicle route over 50 inches wide, unless identified
and managed as a trail.
* * * * *
Road construction or reconstruction. Supervising, inspecting,
actual building, and incurrence of all costs incidental to the
construction or reconstruction of a road.
* * * * *
Temporary road or trail. A road or trail necessary for emergency
operations or authorized by contract, permit, lease, or other written
authorization that is not a forest road or trail and that is not
included in a forest transportation atlas.
Trail. A route 50 inches or less in width or a route over 50 inches
wide that is identified and managed as a trail.
Travel management atlas. An atlas that consists of a forest
transportation atlas and a motor vehicle use map or maps.
Unauthorized road or trail. A road or trail that is not a forest
road or trail or a temporary road or trail and that is not included in
a forest transportation atlas.
0
4. Amend Sec. 212.2 by redesignating paragraphs (b) as (d), revising
paragraph (a), and adding new paragraphs (b) and (c) to read as
follows:
Sec. 212.2 Forest transportation program.
(a) Travel management atlas. For each administrative unit of the
National Forest System, the responsible official must develop and
maintain a travel management atlas, which is to be available to the
public at the headquarters of that administrative unit.
(b) Forest transportation atlas. A forest transportation atlas may
be updated to reflect new information on the existence and condition of
roads, trails, and airfields of the administrative unit. A forest
transportation atlas does not contain inventories of temporary roads,
which are tracked by the project or activity authorizing the temporary
road. The content and maintenance requirements for a forest
transportation atlas are identified in the Forest Service directives
system.
(c) Program of work for the forest transportation system. A program
of work for the forest transportation system shall be developed each
fiscal year in accordance with procedures prescribed by the Chief.
* * * * *
0
5. Amend Sec. 212.5 as follows:
0
a. Revise paragraphs (a)(1) and (a)(2)(ii);
0
b. Revise the heading for paragraph (c) introductory text to read as
set forth below:
0
c. Revise the heading for paragraph (d) introductory text to read as
set forth below:
Sec. 212.5 Road system management.
(a) Traffic rules. * * *
(1) General. Traffic on roads is subject to State traffic laws
where applicable except when in conflict with designations established
under subpart B of this part or with the rules at 36 CFR part 261.
(2) Specific. * * *
(ii) Roads, or segments thereof, may be restricted to use by
certain classes of vehicles or types of traffic as provided in 36 CFR
part 261. Classes of vehicles may include but are not limited to
distinguishable groupings such as passenger cars, buses, trucks,
motorcycles, all-terrain vehicles, 4-wheel drive vehicles, off-highway
vehicles, and trailers. Types of traffic may include but are not
limited to groupings such as commercial hauling, recreation, and
administrative.
* * * * *
(c) Cost recovery on National Forest System roads. * * *
(d) Maintenance and reconstruction of National Forest System roads
by users.
* * * * *
0
6. Amend Sec. 212.7 by revising the paragraph heading and text of
paragraph (a) to read as follows:
Sec. 212.7 Access procurement by the United States.
(a) Existing or proposed forest roads that are or will be part of a
transportation system of a State, county, or other local public road
authority. Forest roads that are or will be part of a transportation
system of a State, county, or other local public road authority and are
on rights-of-way held by a State, county, or other local public road
authority may be constructed, reconstructed, improved, or maintained by
the Forest Service when there is an appropriate agreement with the
State, county, or other local public road authority under 23 U.S.C. 205
and the construction, reconstruction, improvement, or maintenance is
essential to provide safe and economical access to National Forest
System lands.
* * * * *
0
7. Amend Sec. 212.10 by revising paragraph (d) to read as follows:
Sec. 212.10 Maximum economy National Forest System roads.
* * * * *
(d) By a combination of these methods, provided that where roads
are to be constructed at a higher standard than the standard--
consistent with applicable environmental laws and regulations--that is
sufficient for harvesting and removal of National Forest timber and
other products covered by a particular sale, the purchaser of the
timber and other products shall not be required to bear the part of the
cost necessary to meet the higher standard, and the Chief may make such
arrangements to achieve this end as may be appropriate.
* * * * *
Sec. 212.20 [Removed and reserved]
0
8. Remove and reserve Sec. 212.20.
0
9. Add a new subpart B to read as follows:
Subpart B--Designation of Roads, Trails, and Areas for Motor Vehicle
Use
Sec.
212.50 Purpose, scope, and definitions.
212.51 Designation of roads, trails, and areas.
[[Page 68289]]
212.52 Public involvement.
212.53 Coordination with Federal, State, county, and other local
governmental entities and tribal governments.
212.54 Revision of designations.
212.55 Criteria for designation of roads, trails, and areas.
212.56 Identification of designated roads, trails, and areas.
212.57 Monitoring of effects of motor vehicle use on designated
roads and trails and in designated areas.
Authority: 7 U.S.C. 1011(f), 16 U.S.C. 551, E.O. 11644, 11989
(42 FR 26959).
Sec. 212.50 Purpose, scope, and definitions.
(a) Purpose. This subpart provides for a system of National Forest
System roads, National Forest System trails, and areas on National
Forest System lands that are designated for motor vehicle use. After
these roads, trails, and areas are designated, motor vehicle use,
including the class of vehicle and time of year, not in accordance with
these designations is prohibited by 36 CFR 261.13. Motor vehicle use
off designated roads and trails and outside designated areas is
prohibited by 36 CFR 261.13.
(b) Scope. The responsible official may incorporate previous
administrative decisions regarding travel management made under other
authorities, including designations and prohibitions of motor vehicle
use, in designating National Forest System roads, National Forest
System trails, and areas on National Forest System lands for motor
vehicle use under this subpart.
(c) For definitions of terms used in this subpart, refer to Sec.
212.1 in subpart A of this part.
Sec. 212.51 Designation of roads, trails, and areas.
(a) General. Motor vehicle use on National Forest System roads, on
National Forest System trails, and in areas on National Forest System
lands shall be designated by vehicle class and, if appropriate, by time
of year by the responsible official on administrative units or Ranger
Districts of the National Forest System, provided that the following
vehicles and uses are exempted from these designations:
(1) Aircraft;
(2) Watercraft;
(3) Over-snow vehicles (see Sec. 212.81);
(4) Limited administrative use by the Forest Service;
(5) Use of any fire, military, emergency, or law enforcement
vehicle for emergency purposes;
(6) Authorized use of any combat or combat support vehicle for
national defense purposes;
(7) Law enforcement response to violations of law, including
pursuit; and
(8) Motor vehicle use that is specifically authorized under a
written authorization issued under Federal law or regulations.
(b) Motor vehicle use for dispersed camping or big game retrieval.
In designating routes, the responsible official may include in the
designation the limited use of motor vehicles within a specified
distance of certain designated routes, and if appropriate within
specified time periods, solely for the purposes of dispersed camping or
retrieval of a downed big game animal by an individual who has legally
taken that animal.
Sec. 212.52 Public involvement.
(a) General. The public shall be allowed to participate in the
designation of National Forest System roads, National Forest System
trails, and areas on National Forest System lands and revising those
designations pursuant to this subpart. Advance notice shall be given to
allow for public comment, consistent with agency procedures under the
National Environmental Policy Act, on proposed designations and
revisions. Public notice with no further public involvement is
sufficient if a National Forest or Ranger District has made previous
administrative decisions, under other authorities and including public
involvement, which restrict motor vehicle use over the entire National
Forest or Ranger District to designated routes and areas, and no change
is proposed to these previous decisions and designations.
(b) Absence of public involvement in temporary, emergency closures.
(1) General. Nothing in this section shall alter or limit the authority
to implement temporary, emergency closures pursuant to 36 CFR part 261,
subpart B, without advance public notice to provide short-term resource
protection or to protect public health and safety.
(2) Temporary, emergency closures based on a determination of
considerable adverse effects. If the responsible official determines
that motor vehicle use on a National Forest System road or National
Forest System trail or in an area on National Forest System lands is
directly causing or will directly cause considerable adverse effects on
public safety or soil, vegetation, wildlife, wildlife habitat, or
cultural resources associated with that road, trail, or area, the
responsible official shall immediately close that road, trail, or area
to motor vehicle use until the official determines that such adverse
effects have been mitigated or eliminated and that measures have been
implemented to prevent future recurrence. The responsible official
shall provide public notice of the closure pursuant to 36 CFR 261.51,
including reasons for the closure and the estimated duration of the
closure, as soon as practicable following the closure.
Sec. 212.53 Coordination with Federal, State, county, and other local
governmental entities and tribal governments.
The responsible official shall coordinate with appropriate Federal,
State, county, and other local governmental entities and tribal
governments when designating National Forest System roads, National
Forest System trails, and areas on National Forest System lands
pursuant to this subpart.
Sec. 212.54 Revision of designations.
Designations of National Forest System roads, National Forest
System trails, and areas on National Forest System lands pursuant to
Sec. 212.51 may be revised as needed to meet changing conditions.
Revisions of designations shall be made in accordance with the
requirements for public involvement in Sec. 212.52, the requirements
for coordination with governmental entities in Sec. 212.53, and the
criteria in Sec. 212.55, and shall be reflected on a motor vehicle use
map pursuant to Sec. 212.56.
Sec. 212.55 Criteria for designation of roads, trails, and areas.
(a) General criteria for designation of National Forest System
roads, National Forest System trails, and areas on National Forest
System lands. In designating National Forest System roads, National
Forest System trails, and areas on National Forest System lands for
motor vehicle use, the responsible official shall consider effects on
National Forest System natural and cultural resources, public safety,
provision of recreational opportunities, access needs, conflicts among
uses of National Forest System lands, the need for maintenance and
administration of roads, trails, and areas that would arise if the uses
under consideration are designated; and the availability of resources
for that maintenance and administration.
(b) Specific criteria for designation of trails and areas. In
addition to the criteria in paragraph (a) of this section, in
designating National Forest System trails and areas on National Forest
System lands, the responsible official shall consider effects on the
following, with the objective of minimizing:
(1) Damage to soil, watershed, vegetation, and other forest
resources;
(2) Harassment of wildlife and significant disruption of wildlife
habitats;
[[Page 68290]]
(3) Conflicts between motor vehicle use and existing or proposed
recreational uses of National Forest System lands or neighboring
Federal lands; and
(4) Conflicts among different classes of motor vehicle uses of
National Forest System lands or neighboring Federal lands.
In addition, the responsible official shall consider:
(5) Compatibility of motor vehicle use with existing conditions in
populated areas, taking into account sound, emissions, and other
factors.
(c) Specific criteria for designation of roads. In addition to the
criteria in paragraph (a) of this section, in designating National
Forest System roads, the responsible official shall consider:
(1) Speed, volume, composition, and distribution of traffic on
roads; and
(2) Compatibility of vehicle class with road geometry and road
surfacing.
(d) Rights of access. In making designations pursuant to this
subpart, the responsible official shall recognize:
(1) Valid existing rights; and
(2) The rights of use of National Forest System roads and National
Forest System trails under Sec. 212.6(b).
(e) Wilderness areas and primitive areas. National Forest System
roads, National Forest System trails, and areas on National Forest
System lands in wilderness areas or primitive areas shall not be
designated for motor vehicle use pursuant to this section, unless, in
the case of wilderness areas, motor vehicle use is authorized by the
applicable enabling legislation for those areas.
Sec. 212.56 Identification of designated roads, trails, and areas.
Designated roads, trails, and areas shall be identified on a motor
vehicle use map. Motor vehicle use maps shall be made available to the
public at the headquarters of corresponding administrative units and
Ranger Districts of the National Forest System and, as soon as
practicable, on the website of corresponding administrative units and
Ranger Districts. The motor vehicle use maps shall specify the classes
of vehicles and, if appropriate, the times of year for which use is
designated.
Sec. 212.57 Monitoring of effects of motor vehicle use on designated
roads and trails and in designated areas.
For each administrative unit of the National Forest System, the
responsible official shall monitor the effects of motor vehicle use on
designated roads and trails and in designated areas under the
jurisdiction of that responsible official, consistent with the
applicable land management plan, as appropriate and feasible.
0
10. Add a new subpart C to read as follows:
Subpart C--Use by Over-Snow Vehicles
Sec.
212.80 Purpose, scope, and definitions.
212.81 Use by over-snow vehicles.
Authority: 7 U.S.C. 1011(f), 16 U.S.C. 551, E.O. 11644, 11989
(42 FR 26959).
Sec. 212.80 Purpose, scope, and definitions.
The purpose of this subpart is to provide for regulation of use by
over-snow vehicles on National Forest System roads and National Forest
System trails and in areas on National Forest System lands. For
definitions of terms used in this subpart, refer to Sec. 212.1 in
subpart A of this part.
Sec. 212.81 Use by over-snow vehicles.
(a) General. Use by over-snow vehicles on National Forest System
roads and National Forest System trails and in areas on National Forest
System lands may be allowed, restricted, or prohibited.
(b) Exemptions from restrictions and prohibitions. The following
uses are exempted from restrictions and prohibitions on use by over-
snow vehicles:
(1) Limited administrative use by the Forest Service;
(2) Use of any fire, military, emergency, or law enforcement
vehicle for emergency purposes;
(3) Authorized use of any combat or combat support vehicle for
national defense purposes;
(4) Law enforcement response to violations of law, including
pursuit; and
(5) Use by over-snow vehicles that is specifically authorized under
a written authorization issued under Federal law or regulations.
(c) Establishment of restrictions and prohibitions. If the
responsible official proposes restrictions or prohibitions on use by
over-snow vehicles under this subpart, the requirements governing
designation of National Forest System roads, National Forest System
trails, and areas on National Forest System lands in Sec. Sec. 212.52,
212.53, 212.54, 212.55, 212.56, and 212.57 shall apply to establishment
of those restrictions or prohibitions. In establishing restrictions or
prohibitions on use by over-snow vehicles, the responsible official
shall recognize the provisions concerning rights of access in sections
811(b) and 1110(a) of the Alaska National Interest Lands Conservation
Act (16 U.S.C. 3121(b) and 3170(a), respectively).
PART 251--LAND USES
Subpart B--Special Uses
0
11. Revise the authority citation for part 251, subpart B, to read as
follows:
Authority: 7 U.S.C. 1011(f); 16 U.S.C. 460l-6a, 460l-6d, 472,
497b, 497c, 551, 580d, 1134, 3210; 30 U.S.C. 185; 43 U.S.C. 1740,
1761-1771.
0
12. Amend Sec. 251.51 by revising the definitions for ``forest road or
trail'' and ``National Forest System road'' to read as follows:
Sec. 251.51 Definitions.
* * * * *
Forest road or trail. A road or trail wholly or partly within or
adjacent to and serving the National Forest System that the Forest
Service determines is necessary for the protection, administration, and
utilization of the National Forest System and the use and development
of its resources.
* * * * *
National Forest System road. A forest road other than a road which
has been authorized by a legally documented right-of-way held by a
State, county, or other local public road authority.
* * * * *
PART 261--PROHIBITIONS
0
13. The authority citation for part 261 continues to read as follows:
Authority: 7 U.S.C. 1011(f); 16 U.S.C. 460l-6d, 472, 551,
620(f), 1133(c)-(d)(1), 1246(i).
0
14. Amend Sec. 261.2 to revise the definitions for ``motor vehicle,''
``forest road or trail,'' ``National Forest System road,'' and
``National Forest System trail,'' and add definitions in alphabetical
order for ``administrative unit'' and ``area,'' to read as follows:
Subpart A--General Prohibitions
* * * * *
Sec. 261.2 Definitions.
* * * * *
Administrative unit. A National Forest, a National Grassland, a
purchase unit, a land utilization project, Columbia River Gorge
National Scenic Area, Land Between the Lakes, Lake Tahoe Basin
Management Unit, Midewin National Tallgrass Prairie, or other
comparable unit of the National Forest System.
* * * * *
Area. A discrete, specifically delineated space that is smaller,
and in most cases much smaller, than a Ranger District.
* * * * *
[[Page 68291]]
Forest road or trail. A road or trail wholly or partly within or
adjacent to and serving the National Forest System that the Forest
Service determines is necessary for the protection, administration, and
utilization of the National Forest System and the use and development
of its resources.
* * * * *
Motor vehicle means any vehicle which is self-propelled, other
than:
(1) A vehicle operated on rails; and
(2) Any wheelchair or mobility device, including one that is
battery-powered, that is designed solely for use by a mobility-impaired
person for locomotion and that is suitable for use in an indoor
pedestrian area.
* * * * *
National Forest System road. A forest road other than a road which
has been authorized by a legally documented right-of-way held by a
State, county, or other local public road authority.
National Forest System trail. A forest trail other than a trail
which has been authorized by a legally documented right-of-way held by
a State, county, or other local public road authority.
* * * * *
Sec. Sec. 261.13 through 261.21 [Redesignated as Sec. Sec. 261.15
through 261.23]
0
15. Redesignate Sec. Sec. 261.13 through 261.21 as Sec. Sec. 261.15
through 261.23.
0
15a. Add new Sec. 261.13 and Sec. 261.14 to read as follows:
Sec. 261.13 Motor vehicle use.
After National Forest System roads, National Forest System trails,
and areas on National Forest System lands have been designated pursuant
to 36 CFR 212.51 on an administrative unit or a Ranger District of the
National Forest System, and these designations have been identified on
a motor vehicle use map, it is prohibited to possess or operate a motor
vehicle on National Forest System lands in that administrative unit or
Ranger District other than in accordance with those designations,
provided that the following vehicles and uses are exempted from this
prohibition:
(a) Aircraft;
(b) Watercraft;
(c) Over-snow vehicles;
(d) Limited administrative use by the Forest Service;
(e) Use of any fire, military, emergency, or law enforcement
vehicle for emergency purposes;
(f) Authorized use of any combat or combat support vehicle for
national defense purposes;
(g) Law enforcement response to violations of law, including
pursuit;
(h) Motor vehicle use that is specifically authorized under a
written authorization issued under Federal law or regulations; and
(i) Use of a road or trail that is authorized by a legally
documented right-of-way held by a State, county, or other local public
road authority.
Sec. 261.14 Use by over-snow vehicles.
It is prohibited to possess or operate an over-snow vehicle on
National Forest System lands in violation of a restriction or
prohibition established pursuant to 36 CFR part 212, subpart C,
provided that the following uses are exempted from this section:
(a) Limited administrative use by the Forest Service;
(b) Use of any fire, military, emergency, or law enforcement
vehicle for emergency purposes;
(c) Authorized use of any combat or combat support vehicle for
national defense purposes;
(d) Law enforcement response to violations of law, including
pursuit;
(e) Use by over-snow vehicles that is specifically authorized under
a written authorization issued under Federal law or regulations; and
(f) Use of a road or trail that is authorized by a legally
documented right-of-way held by a State, county, or other local public
road authority.
0
16. Amend Sec. 261.55 by revising the introductory text to read as
follows:
Sec. 261.55 National Forest System trails.
When provided by an order issued in accordance with Sec. 261.50 of
this subpart, the following are prohibited on a National Forest System
trail:
* * * * *
PART 295--USE OF MOTOR VEHICLES OFF NATIONAL FOREST SYSTEM ROADS
[REMOVED]
0
17. Remove the entire part 295.
Dated: October 19, 2005.
Mark Rey,
Undersecretary of Agriculture for Natural Resources and Environment.
[FR Doc. 05-22024 Filed 11-8-05; 8:45 am]
BILLING CODE 3410-11-P