federal register november 9 2005

8/4/2019 Federal Register November 9 2005

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Wednesday,

November 9, 2005

Part IV

Department ofAgricultureForest Service

36 CFR Parts 212, 251, 261, and 295

Travel Management; Designated Routesand Areas for Motor Vehicle Use; FinalRule

VerDate Aug2005 17:00 Nov 08, 2005 Jkt 208001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\09NOR4.SGM 09NOR4


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68264 Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations

DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Parts 212, 251, 261, and 295

RIN 0596AC11

Travel Management; Designated

Routes and Areas for Motor VehicleUse

AGENCY: Forest Service, USDA.

ACTION: Final rule.

SUMMARY: The Department ofAgriculture is revising regulationsregarding travel management onNational Forest System lands to clarifypolicy related to motor vehicle use,including the use of off-highwayvehicles. This final rule requiresdesignation of those roads, trails, andareas that are open to motor vehicle use.

Designations will be made by class ofvehicle and, if appropriate, by time ofyear. The final rule will prohibit the useof motor vehicles off the designatedsystem, as well as use of motor vehicleson routes and in areas that is notconsistent with the designations. Theclear identification of roads, trails, andareas for motor vehicle use on eachNational Forest will enhancemanagement of National Forest Systemlands; sustain natural resource valuesthrough more effective management ofmotor vehicle use; enhanceopportunities for motorized recreationexperiences on National Forest System

lands; address needs for access toNational Forest System lands; andpreserve areas of opportunity on eachNational Forest for nonmotorized traveland experiences. The final rule isconsistent with provisions of ExecutiveOrder 11644 and Executive Order 11989regarding off-road use of motor vehicleson Federal lands.

EFFECTIVE DATE: This rule is effectiveDecember 9, 2005.

ADDRESSES: The rulemaking record forthis final rule contains all thedocuments pertinent to this rulemaking.

These documents are available forinspection and copying at the office ofthe Director, Recreation and HeritageResources Staff, USDA, Forest Service,4th Floor Central, Sidney R. YatesFederal Building, 1400 IndependenceAvenue, SW., Washington, DC, from8:30 a.m. to 4 p.m., Monday throughFriday, except holidays. Those wishingto inspect or copy these documents areencouraged to call Jerry Ingersoll,Recreation and Heritage Resources staff,at (202) 2050931 beforehand tofacilitate access to the building.

FOR FURTHER INFORMATION CONTACT:JerryIngersoll, Recreation and HeritageResources Staff, (202) 2050931.SUPPLEMENTARY INFORMATION:

Table of Contents

1. Background Travel Management Program Need for Revised Rule

2. Public Comments on Proposed Rule andDepartment Responses

Overview General Comments Forest Service Directives Implementation Proposed Rule Preamble Specific Sections by PartPart 212Travel ManagementPart 251Land UsesPart 261ProhibitionsPart 295Use of Motor Vehicles Off

National Forest System Roads Regulatory Certifications in the Proposed

Rule3. 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 TribalGovernments

Energy Effects Unfunded Mandates Controlling Paperwork Burdens on the

Public4. Text of the Final Rule

Part 212Travel Management Part 251Land Uses Part 261Prohibitions Part 295Use of Motor Vehicles Off

National Forest System Roads

1. Background

Travel Management Program

Forest Service regulations at 36 CFRpart 212 governing administration of theforest transportation system andregulations at 36 CFR part 295governing use of motor vehicles offNational Forest System (NFS) roads arecombined and clarified in this final ruleas part 212, Travel Management,covering the use of motor vehicles onNFS lands. These regulationsimplement Executive Order (E.O.) 11644(February 8, 1972), Use of Off-Road

Vehicles on the Public Lands, asamended by E.O. 11989 (May 24, 1977).These Executive orders direct Federalagencies to ensure that the use of off-road vehicles on public lands will becontrolled and directed so as to protectthe resources of those lands, to promotethe safety of all users of those lands, andto minimize conflicts among the varioususes of those lands.

Nationally, the Forest Servicemanages approximately 300,000 milesof NFS roads open to motor vehicle use,and about 133,000 miles of NFS trails.

Only a portion of the trails are open tomotor vehicles. This transportationsystem ranges from paved roadsdesigned for passenger cars to single-track trails used by dirt bikes. Manyroads designed for high-clearancevehicles (such as log trucks and sportutility vehicles) also allow use by all-terrain vehicles (ATVs) and other off-

highway vehicles (OHVs) not normallyfound on city streets. Almost all NFStrails serve nonmotorized users,including hikers, bicyclists, andequestrians, alone or in combinationwith motorized users. NFS roads oftenaccept nonmotorized use as well.

In addition to this managed system ofroads and trails, many National Forestscontain user-created roads and trails.These routes are concentrated in areaswhere cross-country travel by motorvehicles has been allowed, andsometimes include dense, braidednetworks of criss-crossing trail. There

has been no comprehensive nationalinventory of user-created routes (andcontinuing proliferation of such routeshas made a definitive inventorydifficult), but they are estimated tonumber in the tens of thousands ofmiles.

Wilderness areas are closed to motorvehicles by statute. On some NationalForests, and portions of others, motorvehicles are restricted by order to theestablished system of roads and trails.On other Forests, cross-country travel isnot currently restricted.

Need for Revised Rule

Most National Forest visitors usemotor vehicles to access the NationalForests, whether for recreationalsightseeing; camping and hiking;hunting and fishing; commercialpurposes such as logging, mining, andgrazing; administration of utilities andother land uses; outfitting and guiding;or the many other multiple uses of NFSlands. For many visitors, motor vehiclesalso represent an integral part of theirrecreational experience. People come toNational Forests to ride on roads andtrails in pickup trucks, ATVs,motorcycles, and a variety of other

conveyances. Motor vehicles are alegitimate and appropriate way forpeople to enjoy their National Forestsin the right places, and with propermanagement.

Current regulations at 36 CFR part295, which provide for allowing,restricting, or prohibiting motor vehicletravel, were developed when OHVswere less widely available, lesspowerful, and less capable of cross-country travel than todays models. Thegrowing popularity and capabilities ofOHVs demand new regulations, so that



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68265Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations

the Forest Service can continue toprovide these opportunities whilesustaining the health of NFS lands andresources.

From 1982 to 2000, the number ofpeople driving motor vehicles off roadin the United States increased over 109percent (Outdoor Recreation for 21stCentury America: A Report to the

Nation, The National Survey onRecreation and the Environment, p. 37(H. Cordell, 2004)). Recent decades haveseen like advances in the power, range,and capabilities of OHVs. Whole newclasses of vehicles have been introduced

by manufacturers and are growing inpopularity. From 1997 to 2001, thenumber of ATVs in use increased byalmost 40 percent (statement by Dr.Edward J. Heiden at Consumer ProductsSafety Commission Field Hearing, June5, 2003). These advances expandopportunities for Americans to enjoyFederal lands. However, the magnitude

and intensity of motor vehicle use haveincreased to the point that the intent ofE.O. 11644 and E.O. 11989 cannot bemet while still allowing unrestrictedcross-country travel. Soil erosion, waterquality, and wildlife habitat are affected.Some National Forest visitors report thattheir ability to enjoy quiet recreationalexperiences is affected by visitors usingmotor vehicles. A designated andmanaged system of roads, trails, andareas for motor vehicle use is needed.

Current regulations prohibit trailconstruction ( 261.10(a)) and operationof vehicles in a manner damaging to theland, wildlife, or vegetation

( 261.13(h)). However, theseregulations have not proven sufficient tocontrol proliferation of routes orenvironmental damage. Thisinsufficiency is due in part to the natureof OHV travel. The first vehicle drivingacross a particular meadow may notharm the land. However, by the time 50vehicles have crossed the same path,there may be a user-created trail andlasting environmental impacts.Determining which particular vehiclecaused the damage can sometimesrepresent a challenge to lawenforcement officers.

In addition, the line between highwayvehicles and OHVs has blurred.Vehicles created for specialized off-roaduse, such as military vehicles, are nowmarketed and purchased as family cars.Some States have recently enactedstatutes governing OHV use, includingvehicle registration requirements, limitson operator age, training and licensingrequirements, equipment requirements,sound restrictions, and safetyrequirements.

Current agency policy varies fromState to State and National Forest to

National Forest. Sometimes oneNational Forest restricts motor vehiclesto roads and trails, while an adjoiningNational Forest allows unrestrictedcross-country travel. One State mayprohibit ATVs on public roads, while anadjoining State generally allows suchuse. Revised regulations are needed toprovide national consistency and clarity

on motor vehicle use within the NFS. Atthe same time, the Department believesthat designations of roads, trails, andareas for motor vehicle use should bemade locally. The final rule provides anational framework under whichdesignations are made at the local level.

Americans cherish the NationalForests and National Grasslands for thevalues they provide: opportunities forhealthy recreation and exercise, naturalscenic beauty, important naturalresources, protection of rare species,wilderness, a connection with theirhistory, and opportunities for

unparalleled outdoor adventure. Theagency must strike an appropriatebalance in managing all types ofrecreational activities. To this end, adesignated system of roads, trails, andareas for motor vehicle use, establishedwith public involvement, will enhancepublic enjoyment of the NationalForests while maintaining otherimportant values and uses on NFSlands.

2. Public Comments on Proposed Ruleand Department Responses

Overview

On July 15, 2004, the Forest Servicepublished a proposed rule in theFederal Register (69 FR 135) seekingpublic comment in amendingregulations at 36 CFR parts 212, 251,261, and 295 to clarify policy related tomotor vehicle use on NFS lands,including the use of OHVs. Theproposed regulation would requiredesignation of those roads, trails, andareas that are open to motor vehicle use.Designations would be made by class ofvehicle and, if appropriate, by time ofyear. The proposed rule would prohibitthe use of motor vehicles off the

designated system, as well as use ofmotor vehicles that is not consistentwith the designations.

During the 60-day comment periodthat ended on September 13, 2004, theagency received six requests for anextension of the comment period. Fiveof these were mailed during the last two

business days of the comment period,and were received after the commentperiod closed. Respondents indicatedthat, due to the complexity of theproposed regulations, additional timewas needed. The Forest Service did not

extend the comment period because theagency does not agree that the proposedregulation was complex and because ofthe strong interest expressed in manyother comments to expedite therulemaking.

The proposed rule was postedelectronically on the World Wide Webat the Federal Register site at http://

www.gpoaccess.govand at the FirstGove-rulemaking site at http://www.regulations.gov. The agency alsoposted the proposed rule on its WorldWide Web site for OHVs at http://www.fs.fed.us/recreation/programs/ohv.The Forest Service received 81,563letters or electronic messages inresponse to the proposed rule, of which9,638 contained original text (theremainder were form submissions).More than 80 percent of the commentswere submitted electronically.Responses submitting original textrepresent the following categories:

Academic ........................................... 2Business Association ......................... 11Civic Group ........................................ 1Consultants/Legal Representatives ... 3County Agency/Elected Official ... ... . 16Domestic Livestock Industry/Permit

Holders ........................................... 5Federal Agency/Elected Official ... ... . 2Individual (unaffiliated or uniden-

tifiable) ........................................... 9,310Mechanized Recreation Group (bicy-

cling) ............................................... 2Mining Industry Association ... .. ... .. .. 2Motorized Recreation Group ............. 71Multiple Use/Land Rights Organiza-

tion .................................................. 1Nonmechanized Recreation Group ... 24

Oil, Natural Gas, Coal Industry(leasable) ......................................... 2Other or Unidentified Organization 1Place-Based Group (homeowners as-

sociation) ........................................ 2Preservation/Conservation Organiza-

tion .................................................. 98Private Landowner ... ... .. ... .. ... .. ... ... .. .. 2Recreational/Conservation Organiza-

tion .................................................. 14Recreation Organization (non-spe-

cific) ................................................ 5Special Use Permit Holder .. .. ... .. ... .. .. 2State Agency/Elected Official ........... 21Timber/Wood Products Industry ...... 3Town/City Agency/Elected Official 2Tribal Agency/Elected Official ......... 3

Tribal Member/NongovernmentalOrganization ................................... 3Single Responses Signed by Mul-

tiple Organizations ......................... 29

The respondents represented all 50States, the District of Columbia, PuertoRico, seven foreign countries, and twointernational U.S. Armed Forces bases.The largest number of responsescontaining original text came fromCalifornia (1,308), Washington (565),and Oregon (392).

A summary report and searchabledatabase of comments are available by

http://www.gpoaccess.gov/http://www.gpoaccess.gov/http://www.gpoaccess.gov/http://www.regulations.gov/http://www.regulations.gov/http://www.regulations.gov/http://www.fs.fed.us/recreation/programs/ohvhttp://www.fs.fed.us/recreation/programs/ohvhttp://www.fs.fed.us/recreation/programs/ohvhttp://www.fs.fed.us/recreation/programs/ohvhttp://www.fs.fed.us/recreation/programs/ohvhttp://www.regulations.gov/http://www.regulations.gov/http://www.gpoaccess.gov/http://www.gpoaccess.gov/


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contacting the Forest Service (see:ADDRESSES). The comments also areavailable for review in hard copy, butarrangements for viewing them should

be made in advance as they arewarehoused off site.

Many comments came fromorganizations and individualsconcerned about impacts of OHVs on

the environment and on nonmotorizeduses. These comments included formletters and standard letters withadditional specific information added

by the commenter.Many comments also came from

organizations and individualsconcerned about potential restrictionson OHV use. These comments includedform letters and standard letters withadditional information added.

Federal, tribal, State, and localagencies and elected officials alsosubmitted comments. The ForestService received comments from 2Federal agencies, 21 State governments,3 Federally recognized tribalgovernments, and 18 county, municipal,and local governments, representing avariety of points of view.

Many respondents offered generalcomments either supporting or notsupporting the proposed rule, orsupporting or opposing OHV use ingeneral. Most also offered specificcomments about sections of theproposed rule that they would like tosee revised. Many respondents offeredsuggestions for implementation,funding, and enforcement of the rule atthe local level. A few respondents

submitted comments on otherrulemaking efforts or existing ForestService policy beyond the scope of thisrulemaking.

General Comments

Comment. Many respondentssupported multiple uses of NFS landsand recreational access for OHVs. Theserespondents believed that closures harmthe public, private landowners,economic interests, and theenvironment by limiting andconcentrating use. These respondentssuggested that the agency support the

public interest, rather than lettingenvironmental and anti-access groupsdrive agency policy. These respondentswere concerned that nonmotorizedinterests have an unfair advantage inpublic involvement due to betterfunding, organization, and access todecisionmaking.

Many other respondents supportedenvironmental protection andnonmotorized recreational uses of NFSlands and suggested confining OHVs tosmall, geographically isolated areasseparated from nonmotorized users.

These respondents believed that OHVsharm the environment, as well as peoplelooking for quiet, peaceful recreationexperiences. They suggested that theagency support the public interest,rather than letting manufacturers anduser groups drive agency policy. Theserespondents were concerned thatmotorized interests have an unfair

advantage in public involvement due tobetter funding, organization, and accessto decisionmaking.

Response. The Department believesthat National Forests should provideaccess for both motorized andnonmotorized users in a manner that isenvironmentally sustainable over thelong term. The NFS is not reserved forthe exclusive use of any one group, normust every use be accommodated onevery acre. It is entirely appropriate fordifferent areas of the National Forests toprovide different opportunities forrecreation. The Department believes

such choices and evaluations are bestmade at the local level, with fullinvolvement of Federal, tribal, State,and local governments, motorized andnonmotorized users, and otherinterested parties, as provided for in thisfinal rule.

Comment. Some respondents statedthat OHVs should not be allowed onNational Forests at all. Theserespondents suggested that NationalForests should be managed primarily forpreservation of natural values, waterquality, wildlife habitat, endangeredspecies, biological diversity, quiet, andspiritual renewal.

Response. The Department disagrees.National Forests are managed by law formultiple use. They are managed notonly for the purposes stated in thesecomments, but for timber, grazing,mining, and outdoor recreation. Theseuses must be balanced, rather than onegiven preference over another.

Comment. Some respondents statedthat Americans have an unrestrictedright to unlimited access to NationalForests with motor vehicles and insistedthat the Forest Service restore this right.

Response. The Department disagreeswith this assertion. National Forests

belong to all Americans, but Americansdo not have a right to unrestricted useof National Forests. Congressestablished the Forest Service to providereasonable regulation of the NationalForests so that future generations cancontinue to enjoy them.

Comment. Some respondentsrequested improved Forest Serviceaccountability, communications, andconsistency in implementing rulesgoverning motor vehicle use.

Response. The final rule is intendedto provide a consistent framework and

consistent terminology for travelmanagement decisions made at the locallevel. For greater clarity in terminology,the final rule adds a definition for off-highway vehicle and changes the termuse map to motor vehicle use map.

Comment. Many respondents askedthat decisions on motor vehicle use be

based on high-quality scientific

information, including review byindependent scientists, and not on

biased data. Some respondentssuggested that motor vehicle use should

be allowed only when it can be clearlyproven to be harmless to theenvironment. Others suggested thatmotor vehicle use should be restrictedonly when it can be clearly proven to beharmful to the environment.

Response. Designations of roads,trails, and areas for motor vehicle useshould be based on accurate, pertinent,unbiased information. The Departmentdoes not believe that it is necessary to

have independent scientists reviewproposed designation decisions. TheDepartment disagrees that motor vehicleuse should be allowed only when it can

be clearly proven to be harmless to theenvironment, and that motor vehicle useshould be restricted only when it can beclearly proven to be harmful to theenvironment. Rather, designationdecisions will be made in accordancewith the criteria in 212.55 of the finalrule.

Comment. Some respondents statedthat access to private inholdings mustnot be restricted by this rule, and that

reciprocal rights-of-way between theForest Service and private landownersshould be allowed.

Response. The final rule requiresresponsible officials to recognize rightsof access in designating roads, trails,and areas ( 212.55(d)). Rights of accessinclude valid existing rights and rightsof use of NFS roads and NFS trailsunder 212.6(b). This final rule doesnot affect reciprocal rights-of-way

between the Forest Service and privatelandowners.

Comment. Some respondents askedthe Forest Service to encourage privatelandowners to open OHV trails andaccommodate use on private lands.

Response. Many private landownersallow recreational use of their lands,including use by OHVs. Some privatelandowners provide managed facilitiesfor OHV enthusiasts. In some cases,trails on private land are part of anetwork including NFS lands. TheForest Service often works with privatelandowners to secure public rights-of-way for trails providing access to theNational Forests. However, theDepartment believes that private



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landowners are the best judges of theproper uses for their land.

Comment. Some respondents askedthe Forest Service to set asidenonmotorized quiet use areas acrossthe NFS.

Response. The final rule requires localagency officials, working with thepublic, to designate which roads, trails,

and areas are available for motor vehicleuse. The final rule prohibits use off thedesignated system. In designating roads,trails, and areas, local agency officialsmust consider minimization of conflictsamong uses of NFS lands ( 212.55(a)).In designating trails and areas, localagency officials must considercompatibility of motor vehicle use withexisting conditions in populated areas,taking into account sound, emissions,and other factors ( 212.55(b)(5)). Asystem of quiet use areas establishedoutside the designation process isunnecessary.

Comment. Some respondentssuggested that all routes closed to motorvehicles should also be closed to horses,

bicycles, and all nonpedestrian access.Response. The Department disagrees.

Some poorly located, unauthorizedroutes causing considerableenvironmental damage may have to beclosed to all uses. However, other routesare better suited to some uses thanothers. In some areas of highconcentrations of use, maintainingseparate trail networks for different usesmay reduce conflict and enhance publicsafety and the recreational experience.

In other areas, multiple-use trails workwell. The Department believes thesedecisions are best made at the locallevel, with public participation.

Comment. Some respondents askedthe Forest Service to provide access togroups that maintain and improve roadsand trails.

Response. The Department is gratefulto the many groups who providevolunteer assistance in constructing,improving, and maintaining roads andtrails. Without the support of thesegroups, public access and recreationalopportunities would be more limited.Most of these groups help maintaintrails not to get special privileges, but toprovide better access for everyone. TheDepartment supports the generalprinciple of equal public access toFederal lands.

Comment. Some respondentssuggested limits on timber harvestingand grazing, and on road constructionrelated to timber harvesting. Otherrespondents requested increased fueltreatment to protect communities fromwildfire and construction of additionalroads for fuel reduction, fire

suppression, and timber managementneeds.

Response. These comments arebeyond the scope of this rule. Roadconstruction for timber harvesting, fueltreatment, or other purposes must besubjected to site-specific environmentalanalysis, which establishes roadmanagement objectives. Roads

constructed as part of these projectscould be added to the system ofdesignated roads, trails, and areas opento motor vehicles, depending on theresults of these local decisions.

Comment. Some respondentssuggested that the Forest Service retaina right-of-way for public access in allland exchanges, and deny access toprivate landowners who block publicaccess to Federal lands.

Response. This comment is beyondthe scope of this final rule. The ForestService seeks, wherever possible, tosecure or retain public access to Federallands by purchasing or exchangingrights-of-way and reserving rights-of-way in land exchanges.

Comment. Some respondentsrequested additional scientific studies ofthe environmental impacts of motorvehicle use, the social and economicimpacts of restrictions on motor vehicleuse, the impacts of road closures onfirefighting and fuel reduction, thenumbers of visitors using motorvehicles, and other related topics.

Response. In addition to the studiesmentioned in the preamble to theproposed rule, ongoing studies by ForestService researchers and monitoring by

National Forest managers addressseveral of these topics. The Department

believes that these studies support theneed for this final rule. As stated in thepreamble to the proposed rule, theresults of monitoring pursuant to212.57 of the final rule could providethe basis for revision or rescission ofdesignations made pursuant to 212.51,or for a determination of considerableadverse effects for purposes ofimplementing a temporary, emergencyclosure pursuant to 212.52(b)(2).

Comment. One respondent assertedthat the Forest Service must formally

consult with the U.S. Fish and WildlifeService on the effects of this rule onthreatened and endangered species, asrequired by the Endangered Species Act(ESA).

Response. The Department hasdetermined that this final rule will haveno effect on threatened or endangeredspecies. The final rule establishes aprocedural framework for localdecisionmaking and will not have anyeffect until designation of roads, trails,and areas is complete for a particularadministrative unit or Ranger District,

with opportunity for publicinvolvement and coordination withFederal, State, local, and tribalgovernments. Designation decisions atthe local level will be accompanied byappropriate consideration of potentialimpacts to threatened and endangeredspecies. If such decisions may affectthreatened or endangered species, the

Forest Service will consult with the U.S.Fish and Wildlife Service, asappropriate, under Section 7 of the ESA.

Forest Service Directives

Comment. Some respondents askedthe Forest Service to issue proposeddirectives on implementation of thefinal travel management rule andrequested that the agency seek publiccomment on these directives. Onerespondent stated that the final rulemust be consistent with Forest ServiceManual and Forest Service Handbookdirection.

Response. The Forest Serviceprovides internal direction to field unitsthrough its directives system, consistingof the Forest Service Manual (FSM) andForest Service Handbooks (FSH). TheFSM and FSH assist field units inimplementing programs established bystatutes and regulations. The ForestService plans to develop proposeddirectives implementing this final ruleand to publish them in the FederalRegister for public notice and comment.

Comment. Some respondentsrequested that officials responsible forimplementation of this rule be properlyidentified, qualified, and free of conflict

of interest. Others asked the agency toensure that Forest Service officials donot play an active role in State or locallegislation affecting OHVs.

Response. Section 212.51 of the finalrule provides that designations shall bemade by the responsible official onadministrative units or Ranger Districtsof the NFS. Delegations of authority fordesignation decisions will be includedin directives issued for purposes ofimplementing this final rule. TheDepartment expects that designationdecisions will generally be made byForest Supervisors and District Rangers.

Forest Supervisors and District Rangersare selected for their positions based onFederal civil service rules. Federalethics and conduct rules protect thepublic and agency personnel fromconflicts of interest and limit the rolesagency personnel may play in theirofficial capacities in the State or locallegislative process.

Comment. Some respondentsrequested standardized, easily availableuse maps and interagency signage toensure consistent communication andenforcement of route designations.



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Response. The Forest Service plans todevelop a standard national format formotor vehicle use maps issued underthis final rule. In the final rule, theDepartment is changing the term usemap to motor vehicle use map.Motor vehicle use maps will beavailable at local Forest Service officesand, as soon as practicable, on Forest

Service web sites. The Forest Serviceplans to issue additional travelmanagement guidance in its signhandbook to ensure consistent messagesand use of standard interagencysymbols.

Comment. Many respondentssubmitted suggestions on compliancewith the National Environmental PolicyAct (NEPA) in connection withdesignation of routes and areas formotor vehicle use. Some suggestedincluding provisions on this topic in therule itself. Others suggested specificdirection related to the range of

alternatives subject to consideration, thescope of analysis, the starting point foranalysis, and the various environmentaleffects to be considered.

Response. Regulations implementingNEPA are issued by the Council onEnvironmental Quality and are found at40 CFR part 1500. Agency direction onNEPA compliance is found in FSH1909.15. The Department believes thatthe scope, content, and documentationof NEPA analysis associated withdesignating routes and areas for motorvehicle use will ultimately depend onsite-specific factors, including the localhistory of travel planning, public input,

and environmental impacts at the locallevel. Therefore, the Department is notaddressing NEPA compliance in thisfinal rule.

Comment. Many respondentsaddressed the status of user-createdroutes in areas currently managed asopen to cross-country motor vehicle use,especially with regard to NEPAcompliance (FSH 1909.15). Somerespondents asked the Forest Service toacknowledge all such routes as legal,legitimate travel ways, and to requirespecific documentation and analysis toclose them. Other respondents asked the

Forest Service to treat all such routes asillicit and subject to immediate closure.Response. The Department rejects

both of these approaches. User-createdroutes were developed without agencyauthorization, environmental analysis,or public involvement and do not havethe same status as NFS roads and trailsincluded in the forest transportationsystem.

Some user-created routes are well-sited, provide excellent opportunitiesfor outdoor recreation by motorized andnonmotorized users alike, involve less

environmental impact than unrestrictedcross-country motor vehicle use, andwould enhance the system of designatedroutes and areas. Other user-createdroutes are poorly located and causeunacceptable environmental impacts.

The Department believes thatevaluation of user-created routes is besthandled at the local level by officials

with first-hand knowledge of theparticular circumstances, uses, andenvironmental impacts involved,working closely with local governments,users, and other members of the public.

Comment. Some respondentssuggested reviewing and inventoryingall roads, trails, and areas, withoutregard to prior travel managementdecisions and travel plans. Otherrespondents observed that landmanagement plans, travel plans, andother recent agency documents alreadyinclude a variety of decisions related tomotor vehicle use and routedesignation. These respondents askedthe agency to recognize existing plansand decisions in designating roads,trails, and areas for motor vehicle use.

Response. The Department believesthat reviewing and inventorying allroads, trails, and areas without regard toprior travel management decisions andtravel plans would be unproductive,inefficient, counter to the purposes ofthis final rule, and disrespectful ofpublic involvement in pastdecisionmaking. Local responsibleofficials can and should take intoaccount past travel managementdecisions.

Some National Forests have longrestricted motor vehicles to designatedroutes under E.O. 11644, 36 CFR part295, and FSM 2355. Other NationalForests have recently issuedcomprehensive travel managementdecisions that restrict motor vehicle useto designated routes and issued ordersthat prohibit cross-country motorvehicle use. All National Forests have asystem of NFS roads open to motorvehicle use, and many also have asystem of NFS trails managed for motorvehicle use.

Nothing in this final rule requires

reconsideration of any previousadministrative decisions that allow,restrict, or prohibit motor vehicle use onNFS roads and NFS trails or in areas onNFS lands and that were made underother authorities, including decisionsmade in land management plans andtravel plans. The final rule adds a newparagraph (b) to 212.50 to clarify thatthese decisions may be incorporatedinto designations made pursuant to thisfinal rule.

Some National Forests or RangerDistricts have previous administrative

decisions, made under other authoritieswith public involvement, which restrictmotor vehicle use over an entire Forestor District to designated routes andareas. In these cases, the responsibleofficial may, with public notice but nofurther analysis or decisionmaking,establish that decision or thosedecisions as the designation pursuant to

this rule for the National Forest orRanger District, effective uponpublication of a motor vehicle use map.In that situation, the only substantivechange effected by this final rule would

be enforcement of the restrictionspursuant to the prohibition in 261.13,rather than pursuant to an order issuedunder part 261, subpart B. The final ruleincludes additional language in212.52(a) to clarify that no furtherpublic involvement is required in thisspecial case.

Alternatively, responsible officialsmay choose to reconsider past

decisions, with public involvement, asnecessary to achieve the purposes of thefinal rule.

The final rule recognizes thatdesignations of roads, trails, and areasfor motor vehicle use are not permanent.Unforeseen environmental impacts,changes in public demand, routeconstruction, and monitoring conductedunder 212.57 of the final rule may leadresponsible officials to consider revisingdesignations under 212.54 of the finalrule.

Designations must be consistent withthe applicable land management plan. Ifa responsible official proposes a

designation that would be inconsistentwith the applicable land managementplan, a proposed amendment to the planmust be included with the proposeddesignation so that the designationdecision will conform with the landmanagement plan.

Comment. Some respondentsobserved that NFS roads that are opento motor vehicle use are already in effectdesignated and need not be re-evaluated. Other respondents asked theagency to ensure that proposed changesto allowed uses, reconstruction, andchanges in maintenance levels resulting

in changes in type or level of use receiveappropriate site-specific consideration.Response. As recognized in the

preamble to the proposed rule, to acertain degree, NFS roads are in effectalready designated for some classes ofmotor vehicle use. These roads areincluded in a forest transportation atlas,and road management objectives mayestablish the appropriate vehicle classesand uses for each road segment. Inrecent years, the roads analysis processestablished under 36 CFR 212.5 andFSM 7712 has been used to evaluate the



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long-term management objectives for thepassenger car road system in eachNational Forest.

This final rule does not requireresponsible officials to reconsiderdecisions authorizing motor vehicle useon NFS roads and NFS trails. Afterconsulting with the public, responsibleofficials may choose to reconsider past

decisions as necessary to achieve thepurposes of this final rule. In addition,responsible officials may revisedesignations under 212.54 of the finalrule. Revisions of designations,including revisions in the class ofvehicle designated for use, must bemade in accordance with therequirements for public involvement in 212.52 and the criteria in 212.55.Road reconstruction is beyond the scopeof the designation provisions in subpartB of this rule.

Implementation

Comment. Many respondentsrequested a specific, enforceabledeadline (most suggested two years) forcompleting route and area designationand ending cross-country motor vehicleuse. Many other respondents asked theForest Service not to establish a specifictime frame for completing designations,and to allow enough time to completea full and fair evaluation of all potentialroutes.

Response. The Department shares aninterest in completing route and areadesignation as quickly as possible. Theproblems associated with unmanagedmotor vehicle use are important and

deserve immediate attention. The ForestService will make every effort, withinits available resources, to completeroute and area designation as quickly aspossible. However, the Departmentdisagrees with establishing anenforceable deadline for completion ofthe process. Imposing an enforceabledeadline for completing designationswould subject the Forest Service to legalchallenge if, despite its best efforts(perhaps due to the controversyinvolved in the process), the agency isunable to meet the deadline. TheDepartment believes that cooperative

work by responsible officials with State,tribal, county, and municipalgovernments, user groups, and otherinterested parties offers the best hopefor long-term resolution of issuesinvolving recreational use, includinguse of motor vehicles. An inflexibledeadline can make collaborativesolutions more difficult.

Comment. Some respondentsrequested that the Forest Servicecomplete a full inventory of all existingmotor vehicle routes, regardless oforigin, prior to making a designation

decision. Many of these respondentsasked the Forest Service to cooperatewith user groups in conducting thisinventory, but some also insisted thatthe agency take ultimate responsibilityfor including all user-created routes.

Response. The Department disagreesthat a complete inventory of user-created routes is required in order to

complete the designation process. As apractical matter, such an inventory maynever be fully complete, as new routeswill continue to be created during theinventory process. A completeinventory would be very time-consuming and expensive, delayingcompletion of route designation.Advance planning based on publicinvolvement, careful design, and site-specific environmental analysis providethe best hope for a sustainable, managedsystem of motor vehicle routes and areasaddressing user needs and safety with aminimum of environmental impacts.

As stated above, some user-createdroutes would make excellent additionsto the system of designated routes andareas. The Forest Service is committedto working with user groups and othersto identify such routes and considerthem on a site-specific basis.

Comment. Some respondents askedthe Forest Service to include potentialfuture routes in the inventory anddesignation process, and to makeprovision for including additional user-created routes discovered afterdesignation is complete.

Response. Long-term planning may

identify potential corridors suitable forconsideration for future construction.However, the agency does not intend todesignate routes on a motor vehicle usemap until such routes actually exist,have been analyzed and evaluated, andare available for public use. Section212.54 of the final rule provides forrevision of designations as needed tomeet changing conditions. New routesmay be constructed and added to thesystem following public involvementand site-specific environmentalanalysis. Such revisions may alsoinclude closures or changes indesignations.

Comment. Many respondentssupported public involvement in theroute designation process. Somerequested that local residents andprivate landowners receive a greatervoice in decisions affecting their use.Other respondents requested thatcounty governments, State tourismoffices, or other agencies receive formalrecognition as participants in agencydecisionmaking. One respondent askedthat OHV access be subject to a publicvote.

Response. The proposed and finalrules require public involvement in thedesignation process ( 212.52), andcoordination with appropriate Federal,State, county, local, and tribalgovernments in designating roads, trails,and areas for motor vehicle use( 212.53). Designation of a system ofmotor vehicle routes and areas will be

made with public involvement andcoordination with Federal, State, local,and tribal governments. Most NFS roadsare intertwined with networks of Stateand county roads (often crossing NFSlands), and cooperative planning amongaffected agencies is essential. Nothing inthe final rule, however, can relieve theForest Service of the ultimateresponsibility for decisions regardingmanagement of NFS lands.

Comment. Many respondentsrequested that the Forest Serviceallocate sufficient funds formanagement of motor vehicle use on

National Forests, particularly for theprocess of route and area designationenvisioned in the proposed rule. Manyasked the agency to pursue all availablesources of funding, including theRecreational Trails Program andgasoline tax revenues. Somerespondents insisted that inadequatefunding not be used as an excuse toclose routes and restrict motor vehicleaccess. Others stated that the rule waspointless without adequate funding.

Response. The issue regardingfunding is beyond the scope of this finalrule. Forest Service appropriations areauthorized by Congress. The Forest

Service is committed to using whateverfunds it has available to accomplish thepurposes of this final rule in a targeted,efficient manner. The agency makesappropriate use of all other sources ofavailable funding, and has a number ofsuccessful cooperative relationshipswith State governments. Volunteeragreements with user groups and othershave proven successful in extendingagency resources for trail construction,maintenance, monitoring, andmitigation. Regardless of the level offunding available, the Department

believes that the final rule provides a

better framework for management ofmotor vehicle use on National Forestsand National Grasslands. Whileavailability of resources for maintenanceand administration must be consideredin designating routes for motor vehicleuse ( 212.55), cooperative relationshipsand volunteer agreements may beincluded in this consideration.

Comment. Some respondents offeredspecific suggestions for considerationduring route and area designation,including conversion of low-standardroads to motorized trails, provision of



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parking and trailhead facilities,reopening of closed roads, design ofloop and long-distance trail systems tomeet user needs, and integration ofdesignated routes with roads and trailsmanaged by local governments, States,and other Federal agencies.

Some respondents suggestedconsideration of specific environmental

impacts during route and areadesignation, including introduction ofinvasive species, impacts to culturalactivities of American Indians, qualityof the user experience, and RecreationOpportunity Spectrum (ROS)designations in land management plans.Other respondents suggested specificareas to avoid in route and areadesignation, including high alpineareas, wetlands, riparian areas, androadless areas.

Response. The Department agrees thatmany of these considerations may beimportant in designating routes andareas at the local level. Section 212.55of the final rule enumerates the criteriafor designating roads, trails, and areaspursuant to the final rule. Specificconsiderations (such as geography, userdemands, and environmental impacts)will vary from place to place, and evenroute to route, across the NFS.Responsible officials, working closelywith the public, should consider localcircumstances in applying the criteriafor designating roads, trails, and areaspursuant to the final rule.

Comment. Some respondentssuggested a no-net-loss policy for motorvehicle routes (every route closed must

be replaced by a new route of the samelength and character), a specific goal foravailable routes (such as four miles ofmotor vehicle trail per square mile), ora general policy to develop all accessopportunities close to urban areas.

Response. The Department disagreeswith establishing any of these principlesas national policy. Designationdecisions are best left to local managers,working closely with State, tribal, andlocal governments, users, and othermembers of the public and informed bysite-specific evaluation ofenvironmental impacts.

Comment. Some respondents statedthat regulations are effective only if theyare enforced, and questioned whetherthe agency was capable of enforcingmotor vehicle restrictions due to limitednumbers of law enforcement officers.

Response. Forest Service lawenforcement personnel play a criticalrole in ensuring compliance with lawsand regulations, protecting publicsafety, and protecting National Forestresources. The Forest Service alsomaintains cooperative relationshipswith many State and local law

enforcement agencies that providemutual support across jurisdictional

boundaries. Education and cooperativerelationships with users supportenforcement efforts by promotingvoluntary compliance. The final rulewill not increase the agencys budget orthe number of law enforcement officers.However, the final rule will enhance

enforcement by substituting a regulatoryprohibition for closure orders andproviding for a motor vehicle use mapsupplemented by signage.

Comment. Some respondentsquestioned the use of contractors andvolunteers to map and maintain trails,and to report violations of motor vehicleregulations.

Response. The Forest Service utilizesa mix of agency personnel, contractors,volunteers, and cooperators toaccomplish many elements of itsmission. Without the support ofcooperators and volunteers and theservices of contractors, the agencywould be unable to provide the samelevel of service to the public or care forthe lands entrusted to it within itscurrent budget. Like all law enforcementagencies, the Forest Service depends oncitizen reports of violations as a criticalcomponent of its enforcement program.

Comment. Some respondents askedthe Forest Service to ensurerepresentation of OHV enthusiasts andriders among agency staff responsiblefor OHV management.

Response. The Forest Service usescompetitive civil service procedures toselect the best qualified applicant for

each position, based on the knowledge,skills, and abilities necessary to performthe job. While ability to use governmentequipment may be a selective factor forsome positions, the agency does not hirepersonnel based on their outsiderecreational interests. Nevertheless,there are Forest Service employees whoare OHV riders.

Comment. Some respondents askedthe Forest Service to ensure adequatemaintenance for motor vehicle trails,rather than closing them.

Response. The Forest Servicemaintains NFS roads and NFS trails in

accordance with their managementobjectives and the availability of funds.Volunteers and cooperators maintainmany trails. The agency collects fees foruse of some developed recreationalfacilities, most of which are retainedand spent at the site where they arecollected. Unfortunately, resources arestill limited, and the Forest Service hasa substantial backlog of maintenanceneeds, even before adding many user-created routes to the system. In somecases, an extended lack of maintenancecan lead to deterioration of a road or

trail to the point that it must be closedto address user safety or to preventsevere environmental damage. TheForest Service actively tries to avoidclosures by encouraging volunteeragreements and cooperativerelationships with user groups.

Comment. Some respondentsrequested clarification of the rules

applicable to motor vehicle use whiledesignation is pending. Some asked thatcurrent rules remain in effect. Othersrequested immediate closure of all user-created routes. Some respondentssought to continue using andmaintaining existing trails whiledesignation is pending.

Response. The final rules prohibitionon motor vehicle use off the designatedsystem ( 261.13) goes into effect on anadministrative unit or Ranger Districtonce that unit or District has designatedthose NFS roads, NFS trails, and areason NFS lands that are open to motor

vehicle use and published a motorvehicle use map identifying those roads,trails, and areas ( 212.56). Untildesignations for a unit or District arecomplete and a motor vehicle use mapidentifying those designations ispublished, existing travel managementpolicies, restrictions, and orders remainin effect. Forest Supervisors maycontinue to issue travel managementorders pursuant to part 261, subpart B,and impose temporary, emergencyclosures based on a determination ofconsiderable adverse effects pursuant to 212.52(b)(2) of the final rule. The

Department does not believe thatimmediate closure of all user-createdroutes, without local evaluation andpublic input, is necessary orappropriate. Use and maintenance ofNFS roads and NFS trails consistentwith current travel management policiesand management objectives maycontinue. Construction andmaintenance of roads or trails without apermit are prohibited by existingregulations ( 261.10(a)).

The Department expects that someadministrative units or Ranger Districtswill complete route and area

designation before others and that theprohibition on cross-country motorvehicle use in 261.13 will go intoeffect on different units and RangerDistricts at different times. Thisvariation in travel management mirrorsthe existing situation, in which someunits are open to cross-country motorvehicle use, while others restrict motorvehicles to designated routes and areas.Over the next few years, alladministrative units and RangerDistricts will institute a system ofdesignated routes and areas.



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Comment. Some respondentssuggested that the Forest Service requirevehicle registration, license plates, noiseabatement, and safety equipment for allmotor vehicles using NFS lands. Otherssuggested requiring licensing and safetytraining for all riders.

Response. State traffic laws apply onNFS roads as provided for in 36 CFR

212.5(a)(1). State governments have longtaken the lead in establishingregistration, safety, and licensingrequirements for motor vehicles andmotor vehicle operators, providing aconsistent framework for users withinState boundaries. The Departmentwholeheartedly supports thisframework. The Department believes aseparate registration or licensing processfor operators for the NFS would beconfusing, inefficient, and intrusive.

The Department notes that someStates have no requirements regardingminimum age, safety equipment, and

noise levels for OHVs. Some NationalForests have experienced seriousinjuries and fatal accidents involvingOHVs, some of which involve youngchildren. The Forest Service willcontinue to regulate OHV riders to acertain degree in existing regulations at 261.13, recodified as 261.15 in thefinal rule (for example, by requiring aheadlight and taillight when riding afterdark and by providing for incorporationof State law pertaining to use of motorvehicles off roads). At this time,however, the Department is notprepared to issue or enforce new

national standards for operators orequipment on NFS lands. Asdesignations are completed andmanagement of designated roads, trails,and areas continues, the Departmentmay consider developing some nationalsafety standards for OHVs at a later date.

Noise is a particularly important issueaffecting OHV use nationally. TheForest Service anticipates developing anational standard for OHV noise levelsin a future rulemaking.

Comment. Some respondentssuggested that the Forest Service chargea fee for OHV use on NFS lands andretain the funds for route maintenanceand enforcement. Other respondentsobjected to any fees for public access toFederal land. One respondent suggesteda surcharge on OHV manufacturers.

Response. These comments arebeyond the scope of this final rule,which governs designation of roads,trails, and areas for motor vehicle use.Forest Service authority to charge andretain fees for use of recreationalfacilities and services is contained inthe Federal Lands RecreationEnhancement Act (16 U.S.C. 6801

6814). The agency has no authority totax manufacturers.

Proposed Rule Preamble

Comment. Some respondentsdisagreed with the Forest Servicesrationale for the proposed rule andurged the agency not to adopt a finalrule. These respondents stated that a

prohibition on cross-country motorvehicle use will harm small businesses,recreation users, the tourism industry,local governments, local economies,low-income residents, families withchildren, and people with disabilities,and reduce public access to Federallands. Some respondents stated that anyenvironmental impacts and otherproblems associated with cross-countrymotor vehicle use result from poorForest Service management and should

be addressed by better implementationand enforcement of existing rules, ratherthan additional regulation. Otherscontended that natural forces, such asfire and flood, have far greaterenvironmental impact than OHVs andthat the motor vehicle regulation is notneeded.

Response. The Department disagreeswith these assertions. Unregulatedcross-country motor vehicle use mayhave been appropriate on some NationalForests when these vehicles were lessnumerous, less powerful, and lesscapable of cross-country travel. Today,however, the proliferation of user-created routes is a major challenge onmany National Forests and examples ofsignificant environmental damage,

safety issues, and user conflicts are wellestablished. The Department believesthat a well-planned, well-designedsystem of designated roads, trails, andareas, developed in coordination withFederal, State, local, and tribalgovernments and with publicinvolvement, offers better opportunitiesfor sustainable long-term recreationalmotor vehicle use and better economicopportunities for local residents andcommunities.

Comment. Some respondents statedthat the proposed rule will harm thenonmotorized recreation industry by

encouraging OHV use. Otherrespondents stated that the proposedrule does not do enough to address thethreat of OHVs, unauthorized routes,and continuing damage to theenvironment, and should bestrengthened. Some asked the ForestService to explain how its maintenance

backlog can be reconciled with thestated goal of enhancing opportunitiesfor motorized recreation.

Response. This final rule does notencourage or discourage motor vehicleuse, but rather requires designation of

roads, trails, and areas for motor vehicleuse. The Department believes that awell-designed system of routes andareas designated for motor vehicle usecan reduce maintenance needs andenvironmental damage, whileenhancing the recreational experiencefor all users, both motorized andnonmotorized.

Comment. Some respondents calledfor clear and consistent nationalstandards for motor vehicle use androute and area designation. They statedthat the proposed rule allows too muchdiscretion for local Forest Servicemanagers to make designationdecisions, which may result ininconsistent and ineffectivedecisionmaking. Other respondentsstated that the final rule should retainflexibility in local decisionmaking,rather than establishing a one-size-fits-all national policy.

Response. The final rule provides anational framework for localdecisionmaking. The rule includesdefinitions, procedures, and criteria fordesignation of NFS roads, NFS trails,and areas on NFS lands for motorvehicle use, and a prohibition on motorvehicle use that occurs off thedesignated system or that is inconsistentwith motor vehicle designations. TheDepartment expects the roughly 300,000miles of NFS roads currently open tohighway-legal motor vehicle use to bedesignated for that purpose. However,the rule retains flexibility at the locallevel to determine, with publicinvolvement, appropriate motor vehicle

use on local NFS roads, on NFS trails,and in areas on NFS lands. TheDepartment believes that decisionsabout specific routes and areas are bestmade by local officials with knowledgeof those routes and areas, the localenvironment, and site-specific tradeoffs,with public involvement and incoordination with appropriate Federal,State, local, and tribal governments.

Comment. Some respondents askedthe Forest Service to commit todesignating enough OHV routes toaccommodate current and futuredemand.

Response. Provision of recreationalopportunities and access needs are twoof several criteria the responsibleofficial must consider under 212.55 ofthe final rule in designating routes formotor vehicle use. National Forests arepopular with many Americans for manyuses. It is not possible to accommodateall user demands on all National Forestswhile also protecting water quality,wildlife habitat, and other naturalresources that people come to enjoy.Forest Service managers must balanceuser interests against the other criteria



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wilderness areas, identification ofdesignated routes and areas, monitoring,and over-snow use track E.O. 11644 andE.O. 11989. See the response tocomments on 212.52 and 212.55 forthe relationship between specificsections of the rule and the Executiveorders.

Comment. Some respondents

interpreted the preamble to theproposed rule to imply that everyNational Forest must designate areas formotor vehicle use. Some respondentssupported this idea. Others asked theagency to clarify that there is no suchrequirement.

Response. The proposed rule wasnever intended to require each NationalForest to have areas designated formotor vehicle use. To clarify this point,the summary for the final rule states thatit requires designation of those roads,trails, and areas that are open to motorvehicle use. Some National Forests donot allow motor vehicle use off NFSroads. This final rule does not requirethem to change their policy.

Comment. Several respondentsaddressed the preambles discussion ofuse of OHVs on NFS roads managed atvarious maintenance levels. Somerespondents asked the Forest Service toallow and some asked the agency toprohibit non-highway-legal vehicles onNFS roads at maintenance levels 3, 4,and 5.

Response. Road designation decisionswill determine road managementobjectives and maintenance levels,rather than vice versa. However, in

many cases, existing road managementobjectives and maintenance levels,established through travel planning androads analysis in consultation with Stateand local governments, already establishappropriate motor vehicle use. TheDepartment anticipates the need to mixhighway-legal and non-highway-legaltraffic on some NFS roads atmaintenance levels 3, 4, and 5. Suchdesignation decisions will be advised byprofessional engineering judgment, andwill include design features deemedappropriate by engineering studies.

Comment. Some respondents objected

to the agencys rationale for exemptingsnowmobiles from designations madeunder 212.51 of the proposed rule, onthe grounds that snowmobiles havedocumented impacts on wildlife, skiers,and other resource values. Somerespondents asked the agency to includea noise level limit for snowmobiles andother provisions specific tosnowmobiles. Other respondents askedthe Forest Service to remove provisionsgoverning snowmobiles from the ruleand exclude snowmobiles from thedefinition ofoff-highway vehicle.

Response. Snowmobiles are off-roadvehicles under E.O. 11644 and subjectto the direction to provide foradministrative designation of thespecific areas and trails on public landson which the use of off-road vehiclesmay be permitted, and areas in whichthe use of off-road vehicles may not bepermitted (E.O. 11644, Sec. 3(a)).

Moreover, snowmobiles are motorvehicles under this final rule. Sincethis rule regulates motor vehicle use, therule must address snowmobiles.

However, the Department believesthat cross-country use of snowmobilespresents a different set of managementissues and environmental impacts thancross-country use of other types ofmotor vehicles.

Therefore, the final rule exemptssnowmobiles from the mandatorydesignation scheme provided for under 212.51, but retains a managers abilityto allow, restrict, or prohibitsnowmobile travel, as appropriate, on acase-by-case basis ( 212.81).Restrictions and prohibitions onsnowmobile use will be enforced under 261.14, rather than through issuance ofan order under part 261, subpart B.

The definition ofsnowmobile inthe proposed rule encompassed largevehicles not commonly referred to assnowmobiles, but excluded over-snow vehicles also capable of summertravel. In order to improve clarity andensure equitable treatment of over-snowvehicle use, the final rule replaces theexemption for snowmobiles with anexemption for over-snow vehicles, a

broader term that includessnowmobiles, as well as other vehiclesdesigned for over-snow travel. The finalrule adds language to 212.81(c) toclarify that the designation processapplies to over-snow vehicles onlywhere the local responsible officialproposes to establish restrictions orprohibitions on use of over-snowvehicles under this subpart.

The Department expects thatmanagement of winter recreational usewill continue to be an important issueon many National Forests. Nothing inthis final rule limits the ability of Forest

Service managers to take appropriateaction to regulate snowmobile use, orother winter uses, or precludes theDepartment from promulgatingregulations on snowmobile use at somepoint in the future.

Specific Sections by Part

Part 212Travel Management

Subpart AAdministration of theForest Transportation System

Section 212.1. This section of the ruleincludes the definitions for part 212,

which governs administration of theforest transportation system, designationof roads, trails, and areas for motorvehicle use, and use by over-snowvehicles.

Definition for administrative unit.Comment. Respondents suggested

clarifying that this definition embracesall NFS lands, including National

Recreation Areas and otherCongressionally designated areas.

Response. National Forests andNational Grasslands include manyclassifications, including NationalRecreation Areas and CongressionallyDesignated Areas. The purpose ofincluding a definition for administrativeunit was not to delineate the types ofareas within the NFS, but rather to referto a discrete management unit withinthe NFS for purposes of triggeringdesignation of motor vehicle use underthe final rule. To ensure that thedefinition for administrative unit

encompasses all NFS lands, the finalrule adds purchase units, landutilization projects, and the ColumbiaRiver Gorge National Scenic Area to thelist of administrative units. The finalrule also adds or other comparableunits of the National Forest System tothe definition so that if Congressestablishes new administrative units ofthe NFS, they will be included withinthis definition.

Definition for all-terrain vehicle,considerable adverse effects,motorcycle, and off-highwayvehicle.

Comment. Although not included inthe proposed rule, respondentssuggested including these definitions inthe final rule.

Response. The Department agrees thatit would be helpful to add a definitionfor off-highway vehicle, since cross-country travel by OHVs is a majorconcern of this final rule. Therefore, theDepartment is adding a definition foroff-highway vehicle to the final rule.The Department is not adding adefinition for all-terrain vehicle andmotorcycle because they are only twoof many different types of OHVs and

because the final rule does notdistinguish among types of OHVs. TheDepartment also is not adding adefinition for considerable adverseeffects because a determination ofconsiderable adverse effects caused bymotor vehicle use for purposes ofeffecting a temporary, emergencyclosure under 212.52(b)(2) of the finalrule depends on specific factualcircumstances in certain contexts.Specific circumstances may includepublic safety or soil, vegetation,wildlife, wildlife habitat, or cultural



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resources associated with a particularroad, trail, or area.

Definition for area.Comment. Some respondents stated

that the final rule should allow largeareas to be designated for motor vehicleuse and should provide forconsideration of all NFS lands asdesignated areas.

Other respondents stated that the finalrule should not allow designation ofareas for motor vehicle use. If suchdesignation is allowed, theserespondents believed that only areasmuch smaller than a Ranger Districtshould be designated, after site-specificanalysis demonstrating noenvironmental impacts, and no Forestshould be required to have a designatedarea.

Response. Areas designated for motorvehicle use are not intended to be largeor numerous. The Department agreesthat the definition in the proposed rule,a discrete, specifically delineatedspace that is smaller than a RangerDistrict, is too broad to effectuate thisintent. Therefore, the Department hasrevised the definition ofarea in thefinal rule to read, a discrete,specifically delineated space that issmaller, and in most cases muchsmaller, than a Ranger District. Only afew areas currently designated for motorvehicle use, such as the Oregon DunesNational Recreation Area on the SiuslawNational Forest, encompass a significantportion of a Ranger District. Otherdesignated areas are expected to bemuch smaller.

While areas are not intended to belarge or numerous, the Department

believes that it is appropriate todesignate some areas for motor vehicleuse. These areas would have naturalresource characteristics that are suitablefor motor vehicle use, or would be sosignificantly altered by past actions thatmotor vehicle use might be appropriate.Routes and areas under the final rulewill be designated at the local level,

based upon appropriate environmentalanalysis. Federal law does not requirethe Forest Service to demonstrate thatthere are no environmental impacts

from designation of areas.Under the final rule, noadministrative unit or Ranger Districtwill be required to designate an area.

Comment. Some respondents statedthat the final rule should not include apresumption for designation ofpreviously disturbed sites. Instead,these respondents believed the ruleshould provide examples of sites thatwould not be appropriate.

Response. Neither the proposed northe final rule establishes a presumptionfor designation of previously disturbed

sites. Rather, the preamble to theproposed rule generally discussedpossible characteristics of an area. Thecharacteristics of an area are notenumerated in the definition of an areato give the agency the flexibility todesignate areas for motor vehicle use asappropriate, given the variety of naturalfeatures, resources, and uses on NFS

lands.Comment. Some respondents stated

that the final rule should expand thedefinition of area to encompass specificuses, such as grazing, hunting, firewoodgathering, camping, and religious,customary, and cultural practices.

Other respondents asked the agencyto encourage designation of areaswherever there is a high density ofexisting routes, to save time inconducting an inventory of existingroutes.

Response. It is not necessary toexpand the definition of area toencompass specific uses, such asgrazing. The final rule provides fordesignation of NFS roads, NFS trails,and areas on NFS lands for motorvehicle use, and prohibits motor vehicleuse other than in accordance with thosedesignations. Motor vehicle use that isspecifically authorized pursuant to awritten authorization issued underFederal law ( 261.13(h) of the finalrule) is exempted from this prohibition.In addition, in making thesedesignations, the responsible officialmust recognize valid existing rights( 212.55(d) of the final rule).

To address specific local needs for

limited cross-country motor vehicle usefor big game retrieval or dispersedcamping, the Department is adding aparagraph to 212.51 of the final rule.This new paragraph provides that indesignating routes, the responsibleofficial may include in the designationthe limited use of motor vehicles withina specified distance of certaindesignated routes, and if appropriatewithin specified time periods, solely forthe purposes of big game retrieval ordispersed camping.

Some areas of high route density maybe appropriate for designation as areas.

Others will not. The Departmentbelieves that designation decisionsshould be made at the local level, basedon site-specific evaluation of localconditions and public involvement.

Definition for designated road, trail,or area.

Comment. Some respondents statedthat the final rule should not make a usemap a part of the travel managementatlas due to confusion that may result ifthe atlas is not updated. Respondentsfurther commented that thisrequirement is redundant, since the

definition ofuse map already statesthat it is part of a travel managementatlas.

Response. The Department disagreesthat including a use map in a travelmanagement atlas will lead to confusionif the atlas is not updated because in thefinal rule revisions to designations will

be reflected on a motor vehicle use map

( 251.56).The Department agrees that it is

unnecessary to state in the definition fordesignated road, trail, or area that amotor vehicle use map is contained ina travel management atlas because thedefinition for travel management atlasstates that it includes the motor vehicleuse map or maps. Therefore, theDepartment is removing the phrase,contained in a travel managementatlas from the definition for designatedroad, trail, or area. For the same reason,the Department is removing the phrasethat is part of a travel managementatlas from the definition for motorvehicle use map. Similarly, theDepartment is removing the phrasethat is [or are] included in a foresttransportation atlas from thedefinitions for forest road or trail andforest transportation system becausethe definition for forest transportationatlas states that it displays the systemof roads, trails, and airfields of anadministrative unit.

Comment. Some respondentsrequested that the final rule addressdesignation of routes for nonmotorizedas well as motorized uses and statedthat the proposed rule text contradicts

the preamble in this regard.Response. The purpose of this rule is

to provide better and more consistentmanagement of motor vehicle use onNational Forests and NationalGrasslands. Regulation of nonmotorizeduse is beyond the scope of thisrulemaking. The Department agrees thatdiscussion of nonmotorized use in thepreamble may have led to someconfusion in this regard. Formanagement and enforcement purposes,it would be better for the use map to bededicated to motor vehicle uses. Asstated above, in the final rule, the

Department is changing the term usemap to motor vehicle use map. Onlymotor vehicle uses will be reflected onthis map.

The Department wishes to clarify thatdesignation of a road, trail, or area formotor vehicle use does not establishthat use as dominant or exclusive ofother uses of that road, trail, or area.

Comment. Some respondents askedthe final rule to clarify whether OHVuse on designated roads is permissible.

Response. In the final rule,designation decisions, including



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designations by vehicle class, will bemade at the local level. The Departmentanticipates the need to mix highway-legal and non-highway-legal traffic onsome NFS roads. These designationdecisions will be advised by engineeringjudgment or an engineering study, asappropriate.

Definition for forest transportation

atlas.Comment. Some respondents stated

that a forest transportation atlas shouldinclude all open roads and trails, closedroads and trails, user-created roads andtrails, rights-of-way, and public andprivate roads.

Response. The final rule is notsubstantively changing the definition ofa forest transportation atlas. However,the final rule simplifies the definition

by deleting the list of possible forms(such as geospatial and tabular) the datamight take and the reference to thedatas purpose. In the final rule, a forest

transportation atlas is defined as adisplay of the system of roads, trails,and airfields of an administrative unit.

Forest roads and forest trails areincluded in a forest transportation atlas.Forest roads and forest trails are whollyor partly within or adjacent to andserving the NFS that the Forest Servicedetermines are necessary for theprotection, administration, andutilization of the NFS and the use anddevelopment of its resources.

Roads, trails, and areas designated formotor vehicle use under the final rulewill be reflected on a motor vehicle usemap. Under the final rule, motor vehicle

use off designated routes and outsidedesignated areas will be prohibited by 261.13.

A travel management atlas willcontain a forest transportation atlas anda motor vehicle use map or maps.

Definition for motor vehicle.Comment. Some respondents stated

that the final rule should clarify thatboth tracked and wheeled vehicles areincluded in this definition.

Response. The definition for motorvehicle is broad enough to include bothtracked and wheeled vehicles. Thedefinition excludes only vehicles

operated on rails and wheelchairs andmobility devices that meet certaincriteria.

Definitions for new roadconstruction,road reconstruction,and forest transportation facility.

Definitions for new roadconstruction and roadreconstruction were not included inthe proposed rule. However, theDepartment is making a technicalchange to conform these definitions in 212.1 to the definition forconstruction in the Federal Highway

Act, 23 U.S.C. 101(a)(3). Consistent withthat statute, road construction orreconstruction will be defined in 212.1 as supervising, inspecting,actual building, and incurrence of allcosts incidental to the construction orreconstruction of a road. This changeis consistent with other technicalchanges 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 thedefinition for forest transportationfacility to the other definitions in thisfinal rule by replacing the reference toclassified roads with forest roads.In addition, the Department is changingthe term log transfer facilities tomarine access facilities in thisdefinition because these facilities,which connect roads to the PacificOcean, are used for more thantransferring logs. These facilities areused for marine access generally,

including access for recreationalpurposes.

Definition for road.Comment. Some respondents stated

that the final rule should include in thedefinition for a road the phrase,constructed, receiving regularmechanical maintenance, and suitablefor use by a standard passenger car.Other respondents expressed supportfor the flexibility to identify and managea road as a trail.

Response. The definition for a road inpart 212 applies to subpart A,Administration of the Forest

Transportation System, subpart B,Designation of Roads, Trails, and Areasfor Motor Vehicle Use, and subpart C,Use by Over-Snow Vehicles. Given the

broad application of the definition, theDepartment believes it would be undulyrestrictive and inaccurate to add thephrase, constructed, receiving regularmechanical maintenance, and suitablefor use by a standard passenger car, tothe definition for a road. Not all roadson NFS lands are constructed. Not allroads on NFS lands need regularmechanical maintenance, and not allroads on NFS lands are suitable for use

by a passenger car.The definitions for roads and trails

give the agency the flexibility to identifyand manage as a trail routes that arewider than 50 inches. Some trails onNFS lands are wider than 50 inches andmay have the physical characteristics ofa road. Some trails are open to somefull-sized vehicles. Four-wheel-drivetravel ways and trails originallyconstructed as roads or railroad gradesare all part of the Forest Service trailsystem. The current definitions for aroad and trail, which embrace the

diverse array of trail opportunities, areretained in the final rule.

Definition for road or trail underForest Service jurisdiction.

Comment. Some respondentsexpressed concern that this definitionwould unnecessarily limit ForestService authority to enforce traffic lawsand regulate use on valid rights-of-way

and State and county roads. Otherrespondents observed that the ForestService has the authority and a duty toprotect NFS lands underlying theseroutes.

Response. The final rule provides fordesignation of NFS roads, NFS trails,and areas on NFS lands for motorvehicle use. The Department wishes toclarify that this final rule does not inany way affect the Forest Servicesjurisdiction to enforce traffic laws, toprotect NFS lands underlying routes, orto regulate use, including use on validrights-of-way. To simplify thedefinitions in the final rule, theDepartment has moved the phraseother than a road or trail that has beenauthorized by a legally documentedright-of-way held by a State, county, orlocal public road authority from thedefinition for road or trail under ForestService jurisdiction to the definitionsfor National Forest System road andNational Forest System trail, anddeleted the definition for road or trailunder Forest Service jurisdiction.

Motor vehicle use on State, county, ormunicipal roads and trails authorized

by a legally documented right-of-way issubject to the control of that State,

county, or local public road authority.These roads and trails are not subject todesignations made under the final rule,or to the prohibition on motor vehicleuse off designated routes and outsidedesignated areas.

Comment. Some respondents statedthat private rights-of-way should beexcluded from the definition of a roador trail under Forest Servicejurisdiction.

Response. Section 212.55(d) of thefinal rule requires responsible officialsin making designations to recognizevalid existing rights, including valid

outstanding or reserved rights-of-wayfor a road or trail. The Forest Servicemay not regulate uses within the scopeof these rights-of-way if the agency hasnot acquired the right to do so.However, the agency may regulate useon these rights-of-way if it has obtainedthe right to do so. Some private rights-of-way may be forest roads. Others maynot be necessary for the protection,administration, and utilization of theNational Forest System, and are notforest roads. Because there are manydifferent local permutations involving



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different rights, some of which includeForest Service regulation of some uses,the Department does not believe itwould be appropriate to exclude theserights-of-way from the definition of aNFS road or NFS trail.

In the definition ofroad in the finalrule, the Department is removing thesentence, A road may be a forest road,

a temporary road, or an unauthorized orunclassified road, and is making acorresponding change in the definitionoftrail. Some private roads are notforest roads, temporary roads, orunauthorized roads. These roads may beincluded in a forest transportation atlas,

but are not NFS roads and will not besubject to designation under this finalrule.

Comment. Some respondents objectedto proposed language regarding roads ortrails which an authorized officer hasascertained, for administrative purposesand based on available evidence, iswithin a public right-of-way for ahighway, such as a right-of-way for ahighway pursuant to R.S. 2477. Theserespondents asserted that this languagewould violate the Congressionalmoratorium on rulemaking concerningrecognition of these rights-of-way. Otherrespondents requested clear delegationof authority for applying this exclusion,and clarification of the process andcriteria to be used in ascertainingwhether such a right-of-way exists.Some respondents suggested that thefinal rule establish that all routes inexistence before 1976 are R.S. 2477rights-of-way.

Response. The exemption for a roador trail which an authorized officer hasascertained, for administrative purposesand based on available evidence, iswithin a public right-of-way for ahighway, such as a right-of-way for ahighway pursuant to R.S. 2477 has

been removed from the definition for aroad or trail under Forest Servicejurisdiction in the final rule. As statedabove, the remaining text in thatdefinition has been moved to thedefinitions for National Forest Systemroad and National Forest Systemtrail in the final rule. The exemption

for legally documented rights-of-wayheld by State, county, or other localpublic road authorities covers rights-of-way under R.S. 2477 that have beenadjudicated through the Federal courtsystem or otherwise formallyestablished. The Department does notwant to give the appearance ofestablishing the validity of unresolvedR.S. 2477 right-of-way claims indetermining the applicability of thisfinal rule.

Comment. Some respondents statedthat the final rule should address routes

that cross private property or otherwisechange jurisdiction. These respondentsexpressed concern that popular, user-created routes on NFS lands could beclosed under the final rule if they areaccessible only from private land.

Response. Many roads and trails onNFS lands originate on or cross privateproperty. Where the United States holds

a right-of-way across private propertyproviding access to the National Forest,these routes are NFS roads and NFStrails, and subject to possibledesignation under the final rule.

Some user-created roads and trails onNFS lands cross private property. Theagency generally will not consider aroad or trail on NFS lands fordesignation unless there is legal publicaccess to that road or trail. Where accessto NFS lands from private property isneeded, the Forest Service will seekrights-of-way from willing sellers. Ifpublic access cannot be secured, theseroutes generally will be closed to motorvehicles under the final rule.

The Department supports publicaccess to Federal land and supports therights of private landowners to controlaccess to their land. A designatedsystem of motor vehicle routes should

be based on legal public access.Definition for snowmobile.Comment. Some respondents

suggested that the definition forsnowmobile in the proposed rule be

broadened to include other over-snowvehicles, such as tracked ATVs andgrooming machines.

Response. The proposed rule defined

snowmobile as A motor vehicle that isdesigned exclusively for use over snowand that runs on a track or track and/or a ski or skis. This definitionencompassed large vehicles, such assnow cats, not commonly referred to assnowmobiles. However, the proposeddefinition excluded vehicles capable ofconversion to over-snow use, such asATVs with tracks. Since the proposeddefinition refers only to the vehicleitself, and not to its use, the proposedrule could be read to allow use ofsnowmobiles in the absence of snow offroutes and outside areas designated for

motor vehicle use. The Departmentbelieves that over-snow use by trackedvehicles has similar environmentaleffects, regardless of whether the vehicleis designed exclusively for use oversnow.

Consequently, the final rule replacesthe exemption and definition forsnowmobiles with an exemption anddefinition for over-snow vehicles(which would include snowmobiles).The final rule also removes the wordexclusively from the definition, whileadding while in use over snow, so

that the final definition for over-snowvehicle includes motor vehicles that aredesigned for use over snow and that runon a track or track and/or a ski or skis,while in use over snow. Use by over-snow vehicles may be allowe

federal register november 9 2005

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