Comments on Proposed Rule titled “General Provisions; Electric Bicycles.” – The Coalition To Protect America's National Parks

June 2, 2020

Jay Calhoun, Regulations Program Manager
National Park Service
849 C Street NW, MS-2472
Washington, DC 20240

Subject: Comments on Proposed Rule titled “General Provisions; Electric Bicycles.” RIN 1024-AE61.

Dear Mr. Calhoun:

I am writing to you on behalf of over 1,800 members of the Coalition to Protect America’s National Parks (Coalition), a non-profit organization composed of retired, former, and current employees of the National Park Service (NPS). The Coalition studies, educates, speaks, and acts for the preservation of America’s National Park System. As a group, we collectively represent over 40,000 years of experience managing and protecting America’s most precious and important natural, cultural, and historic resources.

We offer the following comments on the proposed rulemaking for electric bicycles (e-bikes) to supplement our initial comments submitted on April 8, 2020.

GENERAL COMMENTS

The process NPS has followed for authorizing e-bikes within units of the National Park System has been horribly flawed.

For many years, e-bikes have been implicitly prohibited in units of the National Park Systems (“parks”) by virtue of the longstanding NPS definition of bicycle at 36 CFR § 1.4, which is:

Bicycle means every device propelled solely by human power (emphasis added) upon which a person or persons may ride on land, having one, two, or more wheels, except a manual wheelchair.

Based on the plain language of the regulation, e-bikes clearly are not “propelled solely by human power” and therefore have been considered “motor vehicles” as defined in 36 CFR § 1.4, which is:

Motor vehicle means every vehicle that is self-propelled and every vehicle that is propelled by electric power (emphasis added), but not operated on rails or upon water, except a snowmobile and a motorized wheelchair.

In brief, the longstanding prohibition of e-bikes on designated bicycle trails in parks was based directly on NPS regulations, not “policies” or other lesser guidance. However, as described in the preamble to the proposed rule, NPS has recently relied upon “policy,” rather than regulation, to allow, without legal authorization, the use of e-bikes in over 380 parks. Specifically, on August 29, 2019, Secretary of the Interior Bernhardt signed Secretary’s Order (SO) 3376, “Increasing Recreational Opportunities through the use of Electric Bikes.” The Order acknowledged there is “regulatory uncertainty” regarding whether e-bikes should be managed similar to other types of bicycles, or, alternatively, considered motor vehicles; and that “uncertainty” has led to inconsistent management of e-bikes across the Department. In order to address these concerns, the Order directed the NPS and other Department of the Interior agencies to define e-bikes separately from motor vehicles and to allow them where other types of bicycles are allowed.

Apparently recognizing that e-bikes were not authorized under current NPS regulations, SO Section 5 “Implementation,” (sub-section a. iv), instructed the Director, National Park Service (NPS) “to develop a proposed rule to revise 36 CFR § 1.4 and any associated regulations to be consistent with this Order (emphasis added), add a definition for e-bikes consistent with 15 U.S.C. § 2085, and expressly exempt all e-bikes as defined in Sec. 4a [of the SO] from the definition of motor vehicles.” Then Section 6 “Effect of the SO” clearly stated “To the extent there is any inconsistency between the provisions of this Order and any Federal laws or regulations, the laws or regulations will control.” (emphasis added) In plain English, the existing NPS regulations implicitly banning e-bikes in parks should have prevailed over any new “policy.”

Then, on August 30, 2019, the Deputy Director of the NPS, Exercising the Authority of the Director, issued Policy Memorandum 19-01, Electric Bicycles. The Memorandum refers to a three-class system (i.e., Class 1, 2 and 3) of electric bicycles based on the maximum motor-assisted speed of an e-bike. The Memorandum announced a policy (emphasis added, in contrast to a regulation) that e-bikes are to be allowed where traditional bicycles are allowed and that e-bikes are not allowed where traditional bicycles are prohibited. As described in the preamble to the proposed rule, since the issuance of the Policy Memorandum more than 380 units of the National Park System have allowed e-bike use without undertaking the rulemaking necessary to define e-bikes as something other than motor vehicles.

Obviously, NPS’s approach to this process (i.e., allowing a prohibited use before regulations have been amended to make that use legal) is fundamentally flawed. It is neither legal nor appropriate for the NPS to use park compendiums and the superintendent’s discretionary authority under 36 CFR § 1.5 to override existing NPS regulations. Furthermore, as indicated on the “NPS Fundamentals: Law and Policy” website[1] under the heading of “General Hierarchy of Authorities,” Interior Department Policies (such as Secretarial Order 3376) have a lower level of authority than a federal regulation. In plain terms, a “policy” does not and cannot trump a “regulation.”

The NPS “process” is even more flawed when one considers NPS regulations at CFR § 4.30[2] (d) and (e), which require NPS to prepare an environmental assessment (EA) or environmental statement (EIS), not a categorical exclusion, in accordance with the National Environmental Policy Act (NEPA) if/when NPS opens existing trails to bicycles or creates new trails for bicycles. Given the recentness of the NPS e-bike “policy,” it is self-evident that the vast majority of park bicycle EAs and EISs never contemplated or analyzed the use of e-bikes.

In brief, NPS has knowingly and wrongfully implemented a new e-bike “policy” that is in clear conflict with its own existing “regulations.” Now, finally, NPS has undertaken rulemaking designed to define electric bicycle as something other than a motor vehicle, so that e-bike use will actually become legal in parks; yet other obvious shortcomings remain in the Service’s compliance with its own NEPA requirements.

Given the blatant abuse of “process” described above, it is no surprise that there are other significant shortcomings in the NPS proposal, which we will describe below.

Request: On the point of NPS allowing e-bike use in over 380 parks BEFORE conducting the rulemaking necessary to authorize that use, we request that NPS fully explain this decision in the “response to comments” section of the final rule.

The proposed rule conflicts with many state regulations regarding the use of e-bikes on trails and in parks.

We realize that the e-bike proposed rule stems from the policy initiative of the Secretary of the Department of the Interior (DOI) and the rulemaking is being imposed upon the NPS by virtue of Secretarial Order 3376. Regardless, it is strikingly hypocritical of the Administration to push forward a proposed rule on electric bicycles that conflicts with numerous existing state regulations regarding the use of e-bikes. We say hypocritical because it has been NPS’s longstanding deference in 36 CFR to adopt non-conflicting state regulations. For example, such deference to State laws and regulations applies to a variety of activities including hunting (§ 2.2 (b)(4)), fishing (§ 2.3), boating (§ 3.2(b)), and vehicles and traffic safety (§ 4.1).

We raise this point now because in other recent rulemakings (or agency policy guidance interpreting existing rules), DOI and/or NPS have famously deferred to rather questionable state regulations rather than utilize NPS’s authority to determine and regulate park uses in accordance with the NPS Organic Act. For example, NPS issued policy guidance to national parks in Utah directing them to allow the use of street-legal ATVs, legal under Utah traffic code, on park roads. And, with the stated purpose of improving NPS consistency with state hunting regulations, NPS is in the process of rescinding its 2015 ban on certain state-approved hunting measures targeting prey species in national preserves in Alaska. While justifying bad decisions in these cases under the guise of deferring to State authority, it appears that NPS has now neither considered nor analyzed conflicts between its proposed rule and existing state regulations regarding the use of e-bikes.

See this website for a summary of e-bike regulations by state: https://peopleforbikes.org/our-work/e-bikes/policies-and-laws/. Examples of conflicts between the NPS proposed rule and existing state regulations of e-bikes include the following:

- In Alaska, an e-bike is defined as a “motor-driven cycle.” As such, e-bikes are subject to the some rules of the road that differ from those that apply to traditional bicycles, including e-bike riders must carry an operator’s license.
- Florida defines an e-bike as a “bicycle,” so long as it is capable of being propelled by human power and has a maximum speed of 20 mph (which precludes Class 3 e-bikes).
- Hawaii has explicitly adopted the Consumer Product Safety Act definition of “low speed electric bicycle” whose assisted maximum speed on a paved level surface, when powered solely by such a motor, is less than 20 mph. Electric mountain bikes (eMTBs) are not allowed on natural surface trails.
- The Illinois Department of Natural Resources Parks and Recreation considers e-bikes to be motorized bicycles and does not allow them on trails.
- In New Jersey, only Class 1 and 2 e-bikes may ride on bicycle paths; and local government can further restrict where Class 1 and 2 e-bikes are allowed to ride.
- In New Hampshire, only Class 1 or Class 2 e-bikes may be ridden on bicycle or multi-use paths where bicycles are permitted. Class 3 e-bikes are only allowed on the roadway.
- In New Mexico, e-bikes are defined as “mopeds” and subject to rules of the road that do not apply to conventional bicycles. For example, e-bikes are subject to the licensing and insurance requirements that apply to motor vehicles; and have a minimum user age of 15 years old.
- In New York, only Class 1 and Class 2 e-bikes are regulated like bicycles and subject to the same rules of the road as human-powered bicycles. The New York State Office of Parks, Recreations & Historic Preservation classifies e-bikes as motorized vehicles and allows eMTB access only on motorized trails (not non-motorized trails).
- In Pennsylvania, the Bureau of State Parks allows e-bikes only where other motorized vehicles are permitted. However, (only) Class 1 e-bikes are allowed on trails open to mountain bikes on State Forest property.
- In Tennessee, only Class 1 and 2 e-bikes are allowed and Class 3 e-bikes are generally prohibited on bike paths. Tennessee State Parks do allow e-bikes on Park trails.
- In Texas, you must be 15 or older to operate a Class 3 e-bike. The Texas Parks and Wildlife Department does not currently allow e-bikes on non-motorized trails.
- In (the State of) Washington, Class 1 and 2 e-bikes are allowed on bike paths and improved trails; while class 3 e-bikes are not.
- Many state park systems across the nation restrict e-bikes to park roads and motorized trails. If Class 1and 2 e-bikes are allowed, they are restricted Class 1 and 2 to improved surface bike trails and multi-use paths, while e-bike use is generally prohibited on single-track, unimproved surface trails that are otherwise open to conventional bicycles.
- In general, because of their higher speed capability Class 3 e-bikes are typically allowed only on roads and on-road bike lanes (“curb to curb” infrastructure), but restricted from bike trails and multiuse paths.

We could continue citing many more examples of clear conflicts between the NPS proposed rule and existing state regulations and policies regarding e-bike use. Our point is that by NPS setting a service-wide standard for e-bike use that is contradictory to (and typically less rigorous than) many state e-bike regulations and policies, the NPS rule would allow uses and impacts that are not even permitted in many of the states where the parks are located. Such an approach is likely to be confusing to in-state visitors, as well as create the public perception that all classes of e-bikes are permitted in all parks. We fail to see how such a sweeping approach is consistent with the NPS Organic Act – or common sense.

Recommendation: Similar to its regulatory approach with hunting, fishing, boating and vehicle regulations, NPS should generally adopt applicable State regulations regarding the use of e-bikes in parks. We will propose specific wording for this in our comments below about § 4.30 of the NPS regulations.

NPS has failed to conduct a proper NEPA analysis of foreseeable impacts of the proposed rule. Given that this proposal is a service-wide rule, NPS should prepare a programmatic NEPA review for public comment PRIOR to issuing a final rule.

First and foremost, NPS general regulations at 36 CFR § 4.30[3] governing the use of bicycles on “existing trails” (§ 4.30 (d))and “new trails” (§ 4.30 (e)) REQUIRE that:

The superintendent must complete either an environmental assessment (EA) or an environmental impact statement (EIS) (emphasis added) evaluating the effects of bicycle use in the park and on the specific trail. The superintendent must provide the public with notice of the availability of the EA and at least 30 days to review and comment on an EA completed under this section.

Given the recentness of the NPS’s August 2019 Policy Memorandum addressing e-bike use, it is self-evident that few, if any, of the previously prepared individual park environmental assessments (EAs) or environmental impact statements (EISs) contemplated or analyzed the potential impacts of widespread use of electric bicycles wherever conventional bicycles are currently allowed. Yet, according to the preamble, over 380 parks have already allowed e-bikes under the guise of the SO and the NPS Policy Memorandum. While such action was not legal by regulation prior to rulemaking to amend the regulation, we are even more concerned that NPS has made this decision at hundreds of parks without taking a hard look at potential impacts, such as user conflicts and safety concerns, as required under the National Environmental Policy Act (NEPA) and NPS’s own regulations at § 4.30 regarding environmental compliance requirements for allowing bicycles.

Not only has NPS failed to comply with its own regulations, the utter superficiality of NPS’s NEPA “compliance” for e-bike use is deeply concerning. As described in the NEPA section of the preamble:

A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because the rule is covered by a categorical exclusion… Many units of the National Park System already allow the use of e-bikes(emphasis added) where traditional bicycles are allowed [under the respective superintendent’s compendium]…The Policy Memorandum required those units to evaluate the environmental impacts of allowing e-bikes under NEPA…. the impacts potentially caused by the implementation of the Policy Memorandum were limited only to those impacts from e-bikes that differ from the existing impacts of traditional bicycles. As a result, for most units a categorical exclusion (CE) has applied.

We are particularly disturbed by NPS’s contention that since many parks “already allow the use of e-bikes” (again, under the guise of the Policy Memorandum) that it somehow constitutes a pre-existing use that has already had adequate NEPA review of its potential impacts. By relying upon “over 380” individual parks to prepare categorical exclusions, NPS has, in clear violation of NEPA, essentially segmented a service-wide action into literally hundreds of smaller actions with minimal serious analysis of potential impacts.

In reality, given that there had been zero authorized e-bike use in parks prior to the issuance of the Policy Memorandum in August 2019, it would have been prudent of the NPS, before allowing such use, to go through the basic steps of environmental compliance. This should have included conducting a literature review and preparing a thoughtful analysis of potential impacts related to e-bike use. Such a review should have also considered bike trail design and safety guidance, as well as developed a “menu” of (or list of options for) appropriate mitigation measures for superintendents to consider. Given the outright superficiality of the hundreds of park compendium analyses, a proper NEPA review is yet to be done. Now that NPS is undertaking rulemaking to codify e-bike use across the National Park System, it is essential that NPS prepare an appropriate NEPA review before issuing a final rule, rather than treating e-biking as an existing use that has already been adequately studied.

Because the proposed rule would provide the general regulatory structure that paves the way for hundreds of units of the National Park System to allow e-bike use on existing shared use trails, this rulemaking is particularly suited to a “programmatic NEPA review.” As described in Council on Environmental Quality (CEQ) guidance[4], “a programmatic review may be appropriate when…adopting official policy” such as “rulemaking at the national-level…The programmatic analysis for such as decision should include a road map for future agency actions with defined objectives, priorities, rules, or mechanisms to implement objectives.” Lacking a programmatic NEPA review to tier from, it is simply unrealistic of NPS to think that hundreds of parks would have the staff resources and expertise to conduct adequate analyses on their own, which unfortunately has been the case.

A spot check of some of the park compendiums and categorical exclusion documents reveals that few parks, if any, have actually taken a hard look at the clear differences between conventional bicycles and e-bikes. For example, there have been no substantive reviews of the abundant scientific literature related to e-bike use; no systematic analyses of potential user conflicts and safety concerns related to e-bike use in a park setting or on “shared use” (i.e., bicycle/pedestrian) trails; no discussion or analysis of mitigation measures to minimize those impacts; no consideration of widely accepted design safety guidelines (e.g., American Association of State Highway Transportation or “AASHTO” guidelines) for bicycle trails and shared use paths; and no inventory or assessment of park bike trail facilities (or “assets”) to determine which trails, if any, meet recommended design guidelines to safely accommodate additional use by e-bikes.

Last but not least, neither the NPS Policy Memorandum nor the park compendiums we have reviewed include a proper “appropriate use analysis” as described in NPS Management Policies 2006[5].

Recommendation: NPS should prepare a programmatic NEPA review (EA or EIS, as appropriate) in accordance with CEQ guidance for programmatic reviews. The analysis should include the information discussed in comment # 4 below.

The following information should be considered as part of a service-wide programmatic NEPA review:

A. There should be systematic review and analysis of the scientific literature related to e-bike use.

While e-bike use is a relatively new and growing phenomenon in the United States, electric bicycles are already hugely popular and widely used in many other countries. As a result, e-bike use has been much more studied overseas than in North America. Regardless of where the studies were conducted, there are important lessons to be learned from the abundant literature that is available, which document the potential for user conflicts and safety concerns related to e-bike use on bicycle trail.

First, there is ample literature documenting that a rider on an e-bike travels faster than the same rider on a conventional bike. For example, a 2015 Swedish study[6] found that on mixed bicycle/pedestrian trails, the “sites with the highest proportion of electric-assisted bicycles and racer bicycles [road bicycles] also had the highest average speeds.” A 2019 Brigham Young University study of electric mountain bikes (eMTB) found that “the average speed of travel [over a controlled loop course] on the eMTB was 4.1 mph (6.6 km/h) faster than on the conventional mountain bike.” A 2014 Dutch study[7] found that “[i]n simple traffic situations [such as on bike paths, rather than on bike lanes] elderly cyclists rode an average 3.6 km/h [2.2 mph] faster on the e-bike than on the conventional bicycle.”

A simple anecdote reported by a Coalition member illustrates the obvious difference in speed capabilities between e-bikes and conventional bicycles:

My wife and I were riding our bikes on the main park road in Rocky Mountain National Park, starting at the Grand Lake Entrance Station on the west side. As I was peddling uphill, another biker, a man about my age, passed me at a pretty good clip. Since he was also actively peddling, I failed to recognize he was on an e-bike, and I thought to myself, “That guy must be in great shape.” Later in the afternoon, as we were headed back towards Grand Lake on a long flat section, this same guy easily passed me again. But, as he went by this time, apparently recognizing that I was tired, he yelled “You are old enough for an e-bike!”

While this occurred on a park road without incident, change the context to a busy, much narrower paved, shared use bike trail in a park setting. The difference in speed capability between an e-bike and a conventional bicycle clearly creates the potential, perhaps even likelihood, for user conflicts and safety concerns, particularly on popular shared use paths.

Adding to these concerns, other studies indicate that the severity of accidents on e-bikes is more serious than accidents on conventional bicycles. For example, a 2014 Dutch study[8] found that “after controlling for age, gender and amount of bicycle use, electric bicycle users are more likely [than conventional bicycle users] to be involved in a crash that requires treatment at an emergency department due to a crash.” A 2015 Swedish study[9] looked at the relative risks (i.e., the number of “conflicts” or accidents) involving e-bike use compared to conventional bicycle use in both roadside bike lanes as well as on shared use trails. Not surprisingly, the study found “the reason [for more frequent and serious conflicts involving e-bike use] may be the higher speed and lower maneuverability of electric bicycles, which may make any evasive maneuver more challenging.”

Because of their demonstrably higher speed capability, electric bicycles may require wider bicycle lanes with a higher curve radius to facilitate safe interaction with other vulnerable road users. Similarly, other studies suggest that accommodating the growing popularity of e-bike use may require significant bike trail infrastructure improvements (such as trail widening and lane marking) to ensure the safety of mixed-trail users. There is no doubt that the higher speed capability of e-bikes is a key factor in these many safety and infrastructure concerns.

We could go on citing many more studies with similar findings. Suffice it to say that the capability of e-bikes is, in fact, different than that of conventional bicycles. The premise upon which the proposed rule is based, that e-bikes are the functional equivalent of conventional bicycles and can be managed the same, is a logical fallacy that does not withstand scrutiny.

In brief, the potential for user conflicts and safety concerns is well documented in the literature and therefore foreseeable and likely to occur unless e-bike use is properly managed and NPS limits such use to bike trail infrastructure that is designed for such use. Despite such a large volume of literature related to e-bike use, there is no evidence in the NPS Policy Memorandum or the hundreds of park compendiums and categorical exclusions that NPS has actually considered any such studies or developed an appropriate mitigation strategy to minimize these kinds of foreseeable conflicts and impacts.

B. There should be a systematic inventory and evaluation of the adequacy of NPS bicycle trail facility “assets” to ensure they are designed to safely accommodate the proposed e-bike use.

We are particularly concerned about NPS allowing e-bike use on shared use trails apparently without conducting a systematic evaluation of the adequacy of NPS bicycle trail facilities to determine if they are designed to safely accommodate the proposed use. For example, in the various park compendium analyses we’ve seen, there has been no mention of the American Association of State Highway Transportation Officials (AASHTO) Guide for the Development of Bicycle Facilities[10] or the American Trails Shared Use Path Design guidelines[11], both of which recommend that the paved tread on shared use paths should be at least 10 ft wide, with a graded shoulder at least 2 ft wide on either side of the path. On shared use paths with heavy volumes of users, tread width should be increased to a range from 12 ft to 14 ft. In addition, shared use paths should not exceed a grade of 5%. How many NPS bike trails actually meet appropriate safety guidelines?

Example of an AASHTO-compliant shared use path in Brunswick, ME. Photo by Coalition member

Our experience has been that many NPS shared use paths do not meet the widely accepted AASHTO design safety guidelines for shared use paths. Yet there is no indication in any of the park compendium analyses that parks have actually conducted an inventory and evaluation of their existing bicycle facilities. Such an evaluation would determine which shared use paths, if any, currently meet bike trail width and grade design recommendations to identify which trails may be able to safely accommodate e-bikes.

Recommendation: In terms of bicycle trail design characteristics, any class of e-bikes allowed on designated bicycle trails in parks should be restricted to administrative roads and improved-surface bike trails and shared use paths that meet or exceed AASHTO design safety guidelines for width and grade. All classes of e-bikes should be prohibited on single-track trails that are otherwise open to conventional bicycle use.

C. The NEPA review should include an “appropriate use analysis” as required by NPS Management Policies 2006.

Management Policies Section 1.5, Appropriate Use of Parks, states, in part: “When proposed park uses and the protection of park resources and values come into conflict, the protection of resources and values must be predominant. A new form of park use may be allowed within a park only after a determination has been made in the professional judgment of the superintendent that it will not result in unacceptable impacts.”

Section 8.1.2, Process for Determining Appropriate Use, states, in part: “All proposals for park uses will be evaluated for: consistency with applicable laws, executive orders, regulations, and policies; consistency with existing plans for public use and resource management; actual and potential effects on park resources and values; total costs to the Service; and whether the public interest will be served.”

Recommendation: NPS should prepare an “appropriate use analysis” for e-bikes as part of a programmatic NEPA review that is subject to public comment.

COMMENTS ABOUT THE PREAMBLE BY SECTION

Background: Use and Management of Bicycles – In discussing the NPS regulations that “govern the use of bicycles on NPS-administered lands,” this section fails to mention the existing NPS regulatory definition of bicycle provided in 36 CFR § 1.4, which is:

Bicycle means every device propelled solely by human power (emphasis added) upon which a person or persons may ride on land, having one, two, or more wheels, except a manual wheelchair.

The obvious omission of this definition in the preamble’s “Background” section is disingenuous as well as problematic. Throughout the preamble and within the proposed rule itself NPS is often “shape shifting” on the fundamental issue of whether, for regulatory purposes, an e-bike is actually a bicycle or not. For example, in the proposed rule NPS has chosen to not redefine the term bicycle to include electric bicycle. Instead, e-bikes are defined elsewhere as their own entity, separate and apart from (and therefore different than) bicycles. While this clear distinction makes sense to us – a motorized e-bike is clearly not “propelled solely by human power” – in many other places in the preamble and in the proposed rule itself, NPS uses the two terms interchangeably, as if e-bikes were simply a subset of bicycles for management purposes, with little to no difference. Yet, as described previously, there are well-documented and striking differences in the respective speed capabilities of conventional bicycles and e-bikes. As a result, NPS’s vague rationale for potentially allowing all 3 classes of e-bikes “as if” they were all the same as bicycles is inconsistent at best and, at times, downright arbitrary and capricious. NPS cannot have it both ways.

Regarding NPS defining electric bicycle (or e-bike) as something other than bicycle, we agree with NPS making such a distinction because the two types of vehicles are, in fact, different in capability despite the outward similarities. Because of the notable differences, especially the difference in speed capability, we contend that e-bikes can and should be managed by NPS differently than conventional bicycles; we will address this in the sections below.

Recommendation: In paragraph 2 of the “Background” section, NPS should include the definition of bicycle as stated in in 36 CFR § 1.4.

Background: Introduction of Electric Bicycles – As stated in this section:

…the appearance of electric bicycles, or e-bikes, is a relatively new phenomenon… As they have become more popular…, the NPS has recognized the need to address this emerging form of recreation so that it can exercise clear management authority over e-bikes and provide clarity to visitors and stakeholders… (emphasis added to underlined sections)

In brief, NPS clearly recognizes that e-bikes are a “new phenomenon” and “emerging form of recreation,” which had never been allowed in parks until NPS issued Policy Memorandum 19-01 on August 30, 2019. This reinforces our earlier comment that NPS failed at both the service-wide level, as well as at the park level, to prepare an “appropriate use analysis” as described in NPS Management Policies 2006 Section 8.1.2, Process for Determining Appropriate Uses, which states, in part: “All proposals for park uses will be evaluated for: consistency with applicable laws, executive orders, regulations and policies”(emphasis added). Such an analysis would have quickly confirmed that under existing NPS regulations at 36 CFR §1.4, e-bikes are implicitly prohibited on designated bicycle trails since e-bikes are not “solely propelled by human power.” And e-bike use would NOT have been allowed in over 380 parks until AFTER the appropriate rulemaking had been completed.

Recommendation: As part of the programmatic NEPA review, NPS should prepare an appropriate use analysis in accordance with NPS Management Policies regarding the introduction of any/all classes of e-bikes onto designated bicycle trails within units of the National Park System.

Policy Direction for Managing E-Bikes: Secretary’s Order 3376 – As stated in this section:

In addition, the [Secretary’s] Order acknowledges “there is regulatory uncertainty regarding whether e-bikes should be managed similar to other types of bicycles, or, alternatively, considered motor vehicles. The Order states that this regulatory uncertainty has led to inconsistent management of e-bikes across the Department… In order to address these concerns, the Order directs the NPS and other Department of the Interior agencies to define e-bikes separately from motor vehicles and to allow them where other types of bicycles are allowed.“ (emphasis added)

As stated, this short summary of Secretary’s Order (SO) 3376[12] omits key sections of the SO that should have guided NPS’s handling of this issue to date. For example, Section 5 “Implementation” (sub-section a. iv,) of the SO instructs the Director, National Park Service (NPS) “to develop a proposed rule to revise 36 CFR § 1.4 and any associated regulations to be consistent with this Order.” Then Section 6 “Effect of the Order” clearly states, “To the extent there is any inconsistency between the provisions of this Order and any Federal laws or regulations, the laws or regulations will control.” (emphasis added)

In other words, the clear direction in the SO is that existing regulations, such as the NPS definition of bicycle at 36 CFR § 1.4, shall prevail over the guidance of the SO pending necessary rulemaking. However, NPS has, by its own admission in the preamble, already allowed e-bike use in over 380 parks BEFORE is has undertaken the necessary rulemaking to legally allow such use.

Request: In its response to comments as part of the preamble for the final rule, we ask NPS to explain why it proceeded with allowing e-bike use in over 380 parks in violation of the SO’s directive that “to the extent there is any inconsistency between the provisions of this Order and any Federal laws or regulations, the laws or regulations will control.”

Policy Direction for Managing E-Bikes: NPS Policy Memorandum 19-01[13] – Paragraph 2 of this section confusingly states that the NPS definition of e-bike “is consistent (emphasis added) with the definition of low speed electric bicycle in the Consumer Product Safety Act, 15 U.S.C. 2085.”[14] This statement is followed by NPS describing multiple ways that the proposed NPS definition is NOT actually consistent with the Consumer Product definition. For example, the Act defines only one category of low speed electric bicycle that “may not reach 20 mph on a paved level surface when powered solely by the motor while ridden by an operator who weighs less than 170 pounds.” In contrast, NPS defines three classes of e-bikes (Class 1, 2, 3) and each class is capable of exceeding the “less than 20 mph” speed of a low speed electric bicycle (being able to reach 20, 20, or 28 mph respectively). We understand that “consistent” is often a relative term, but in this case it is quite a stretch to say the NPS definition is “consistent” with the Consumer Product Safety Act (CPSA) definition, since it is actually quite different.

Why does the CPSA definition even matter in this case and how does it relate to the NPS rulemaking? It appears that NPS is pointing to the CPSA definition to attempt to legitimize e-bike use in parks. However, the reality is the CPSA’s definition of low speed electric bicycle is neither controlling nor relevant to NPS management and regulation of motorized electric bicycles on park lands. Taken in its proper context, 15 U.S.C. 2085 merely establishes that a low speed electric bicycle is a “consumer product” subject to Consumer Product Safety Standards[15] – standards that are “determined to be reasonably necessary to prevent or reduce an unreasonable risk of injury associated with such product.” The Consumer Product Safety Commission makes no judgment about whether the use of low speed electric bicycles is safe or appropriate on bike trails within units of the National Park System. In brief, the CPSA definition of low speed electric bicycle does not authorize or legitimize e-bike use in national parks.

Request: In its response to comments as part of the preamble for the final rule, we ask that NPS explain the relevance of the Consumer Product Safety Act’s definition of low speed electric bicycle to the NPS action, particularly since there are considerable differences (in classes and speeds) between that definition and the proposed NPS definition NPS of electric bicycle.

Proposed Rule – Again, it is clear from the background information provided in this section that NPS knew and still knows that e–bikes violate the definition of bicycle at 36 CFR § 1.4. For example, paragraph 3 states:

The rule would explicitly exclude e-bikes from the definition of “motor vehicle” found at 36 CFR 1.4…The NPS does not need to change the existing definition of “bicycle” to distinguish them from e-bikes because the definition of bicycle includes only those devices that are “solely human powered.” E-bikes are excluded from this definition because they have an electric motor that helps power the device… Although they will be defined differently, the proposed rule would apply certain regulations that govern the use of bicycles to the use of e-bikes in the same manner as the Policy Memorandum. (emphasis added)

The last paragraph states:

Except on park roads and other locations where the use of motor vehicles by the public is allowed, the rule would prohibit an operator from using the electric motor to move an e-bike without pedaling… It would only affect the use of class 2 e-bikes, which have a motor that may be used exclusively to propel the e-bike. The NPS specifically requests comment on whether this restriction is appropriate or workable. Alternatively, the NPS could allow superintendents to implement this restriction at the park level if necessary in specific locations. (emphasis added)

We offer the following comments regarding the proposed use of Class 2 and Class 3 e-bikes on designated bicycle trails in park:

Class 2 e-bikes: NPS proposes to prohibit an e-bike operator from using the electric motor to “move an e-bike without pedaling,” which would only apply to Class 2 e-bikes. The fact that NPS is even considering such a restriction illustrates the fundamental difference between Class 2 e-bikes, which can be exclusively propelled by the motor without pedaling, and the other classes of e-bikes as well as conventional bikes. As discussed previously, there is abundant literature documenting that a rider on an e-bike will travel faster than the same rider on a conventional bicycle.

Regarding the proposed prohibition on “moving without pedaling,” it is unrealistic to think that people who purchase a Class 2 e-bike for its 100% motor propulsion capability of up to 20 mph and are accustomed to using it would voluntarily not use their bike’s capability simply because they happen to be riding it on a park trail. Effectively enforcing such a rule would be impractical and place an unnecessary burden on park law enforcement staff. For example, it would be difficult, if not impossible, to determine if a non-pedaling rider on a fast moving e-bike is simply coasting (e.g., from momentum) or relying 100% on motor propulsion. For this reason, Class 2 e-bikes should be prohibited on shared use paths and single-track bicycle trails; and permitted only on administrative roads, which tend to be substantially wider than other designated “bike trails.”

Class 3 e-bikes: Although NPS does not specifically ask for comments about Class 3 e-bikes, we offer the following comments. As described on a well-known national outdoor equipment retailer’s website[16]:

Class 3 e-bikes are popular with commuters and errand runners. Compared to Class 1 bikes, they’re faster and more powerful (and cost more). The payoff with added performance is that you can keep up with traffic better. They also climb better and handle heavier loads. The tradeoff is not being able to ride on most bike paths nor mountain bike trail systems. (emphasis added)

In other words, Class 3 e-bikes are preferred by commuters for riding in motor vehicle traffic because of the bicycle’s capability of traveling up to 28 mph with motor assistance. Class 3’s significantly higher speed capability (which is 40% higher than the maximum motor-assisted speed of a Class 1 or 2 e-bike) is widely recognized and frequently factored into e-bike regulatory decisions. For example, our review of applicable State regulations (described under general comment # 2 above) reveals that Class 3 e-bikes are widely prohibited from improved-surface bicycle trails and shared use paths, as well as single-track bicycle trails. Class 3 e-bikes are typically restricted to motorized routes, such as roads and designated bike lanes along roads. This widespread restriction of Class 3 e-bikes is undoubtedly due to their higher speed capability (up to 28 mph before the motor disengages) compared to Class 1 e-bikes (up to 20 mph before the motor disengages). This feature undeniably accounts for the popularity of Class 3 e-bikes among urban commuters; but raises serious concerns about allowing this class of bike with such a high-end speed capability to operate on mixed-use trails open to bicycles and pedestrians in parks.

For these reasons, we oppose the use of Class 3 e-bikes on any park bicycle trails and believe that they should be restricted to use only on park roads and, where applicable, designated off-road vehicle (ORV) routes (i.e., or other “motorized trail” where motor vehicle use by the public is allowed).

Because of the distinctly different capabilities of the three classes of e-bikes, we recommend that NPS use a graduated approach to regulating e-bike use based on their respective differences. Such an approach would be more in keeping with many state e-bike regulations.

Recommendation: We urge NPS to consider a graduated approach to regulating e-bike use in parks, which would include the following:

· Class 1 e-bikes would be permitted on administrative roads and improved surface trails that meet AASHTO guidelines for Shared Use Paths; but would be prohibited on single-track trails open to bicycles.

· Class 2 e-bikes would be prohibited on all designated bicycle trails, except for administrative roads open to bicycle use.

· Class 3 e-bikes should be prohibited on all designated bicycle trails in parks; and permitted only where motor vehicle use by the public is allowed.

Compliance With Other Laws, Executive Orders and Department Policy.

A. National Environmental Policy Act (NEPA)

See previous general comments # 3 and 4 that NPS should prepare a programmatic NEPA review for the service-wide rule that includes allowing public comment on the NEPA review PRIOR to issuing the final rule. For all the reasons previously stated, it is not appropriate for NPS to avoid taking a hard look at foreseeable potential impacts, such as user conflicts and safety concerns caused by the enhanced speed capability of e-bikes. Nor is it acceptable for NPS to segment the action into literally hundreds of smaller actions in order to avoid conducting proper compliance. As stated previously, none of the superficial categorical exclusions we’ve seen that were prepared at the park level have conducted a proper literature review, a bike trail facility inventory, a design safety analysis, an “appropriate use analysis,” or other relevant analyses of those potential impacts

Recommendation: It is incumbent upon NPS to prepare a proper NEPA analysis BEFORE issuing a final rule. As stated previously, we specifically recommend a programmatic NEPA review.

B. Americans with Disabilities Act of 1990 (not currently listed in the preamble)

E-bike proponents and manufacturers often claim that e-bikes serve as a mobility aid or assistive device for people who are mobility impaired (i.e., similar to a motorized wheelchair), implying that e-bikes should officially be considered “mobility devices” for individuals with physical limitations. In contrast, current NPS regulations clearly preclude NPS adoption of suchan interpretation within parks. 36 CFR §1.4 states: “Motorized wheelchair means a self-propelled wheeled device, designed solely for and used by a mobility-impaired person for locomotion, that is both capable of and suitable for use in indoor pedestrian areas.”

The NPS definition is also consistent with that described in 42 U.S.C. Section 12207 (c)(1) (Chapter 126 Equal Opportunity for Individuals with Disabilities), which authorizes “the use of a wheelchair in a wilderness area by an individual whose disability requires use of a wheelchair”; and (c)(2) which states “the term ‘wheelchair’ means a device designed solely for use by a mobility-impaired person for locomotion, that is suitable for use in an indoor pedestrian area.” (emphasis added) In brief, e-bikes are neither designed SOLELY for use for locomotion by a mobility-impaired person nor suitable for use in an INDOOR pedestrian area such as a park visitor center; and, therefore, should not be considered as a mobility device in the same vein as a wheelchair or motorized wheelchair.

That said, U.S. Department of Justice guidance on “Wheelchairs, Mobility Aids, and Other Power-Driven Mobility Devices”[17] (OPDMDs) under the ADA is sufficiently vague and flexible that it would appear that a variety of power-driven devices, such as Segways and golf carts, could under certain circumstances be claimed as and considered legitimate OPDMDs. The guidance establishes general criteria in deciding whether a particular type of OPDMD can be accommodated, which includes being able to ask the person using the device to provide “credible assurance that the device is used because of a disability.” For example, if the person presents a valid, State-issued disability parking placard or card or a State-issued proof of disability, that must be accepted as “credible assurance” on its face.

To minimize potential conflicts in pedestrian areas, DOJ also suggests policies for managing the use of OPDMDs, which includes “requiring the user to operate the device at the speed of pedestrian traffic (emphasis added); and identifying specific locations, terms, or circumstances (if any) where the devices cannot be accommodated.” This guidance (i.e., requiring the user to operate the device at the speed of pedestrian traffic) suggests the clear intent that OPDMDs are to serve as a conveyance for individuals who have difficulty walking (rather than difficulty riding a bicycle fast enough). As a result, it is a huge stretch for e-bike enthusiasts to suggest that “being able to ride faster and farther” on an electric bicycle than on a conventional bicycle somehow makes an e-bike a “mobility device” similar in function and capability as a wheelchair.

Of concern is that none of the guidance or information that DOI or NPS has presented to date (including the SO, the NPS Policy Memorandum, and the numerous park compendiums and CEs) indicate that either DOI or NPS has considered the issue of whether e-bikes can or should be given special accommodation as an OPDMD if/when the user claims that it is and provides “credible assurance that the device is used because of a disability.”

Given how often e-bike supporters claim on the internet that e-bikes can serve as mobility aids for people who cannot otherwise bike or walk a park trail, it is only a matter of time before park visitors make such claims once the rule is finalized and parks fully reopen from COVID-19. We can imagine the difficulty such claims will create for front-line NPS staff in deciding what to do given that the proposed rule and none of the associated DOI or NPS documentation provide any guidance on the issue whatsoever. We can also imagine serious problems occurring if/when visitors want to take their “OPDMD bicycle” wherever people in wheelchairs can use their mobility device (for example, on the extensive geyser basin boardwalks in Yellowstone). Lastly, if e-bikes are deemed OPDMDs by NPS under any circumstances, then it will not be long before people bring their electric scooters and electric skateboards (which are increasingly popular with commuters in urban areas), or their Segways and golf carts to parks and make the same claim. It is a very slippery slope that NPS must fully address now through proper planning and guidance.

Recommendation: As part of the rulemaking, NPS should create a section discussing the Americans with Disabilities Act (ADA) that addresses the issue of “e-bikes as mobility devices” and provides practical guidance to NPS employees regarding potential claims that an individual’s e-bike is an “Other Power-Driven Mobility Device.”

3) As stated previously, NPS should prepare an “appropriate use analysis” as part of a programmatic NEPA review that is subject to public comment – The analysis should follow the guidance provided in NPS Management Policies 2006, Section 8.1.2Process for Determining Appropriate Uses.

Recommendation: (stated previously) NPS should prepare an “appropriate use analysis” as part of a programmatic NEPA review that is subject to public comment.

COMMENTS ON THE PROPOSED RULE BY SECTION

As stated by NPS, the rule will “Amend § 1.4 by adding, in alphabetical order, a definition for “Electric bicycle” and revising the definition for “Motor vehicle.”

The proposed rule then defines three classes of e-bikes. While not entirely consistent with the definition of low speed electric bicycle found in the Consumer Product Safety Act (which has only one category and a slightly lower maximum allowable speed), the proposed NPS definitions of three classes of electric bicycle are generally consistent with some, but not all, state definitions of electric bicycle.

The proposed rules explicitly exempts electric bicycle from the definition of motor vehicle (snowmobiles and motorized wheelchairs are already exempt from that definition). Given that “electric bicycle” will now be accurately defined in § 1.4 as something other than a “bicycle” (which, by definition, is “propelled solely by human power”), exempting e-bikes from the definition of motor vehicle in this section is appropriate.

As stated by NPS, the rule will “Amend § 4.30 by adding paragraph (i) to establish regulations applicable to electric bicycles.”

To implement the changes in the regulation that we recommended earlier in this letter, including a graduated approach to regulating the three classes of e-bikes, the wording of this portion of the proposed rule should be amended as indicated below. (Suggested amended language in all comments below is shown in underlined BOLD italic font.) :

a. Create a new paragraph (i)(1): As discussed in an earlier comment, as an overarching regulatory principle, NPS should follow its longstanding practice of adopting non-conflicting State law(s), in this case regarding the use of e-bikes, to ensure regulatory consistency between jurisdictions. A second reason to do so is to avoid unnecessarily confusing the public by NPS allowing more liberal (i.e., less restrictive) use of e-bikes in parks than is otherwise allowed in the respective state. We therefore recommend that current paragraph (i)(6) (regarding applicable state laws) be moved to the beginning of this section. We also recommend minor amendment in the wording; and then renumber subsequent paragraphs after the new (i)(1) accordingly.:

(1) Except as specified in this section chapter (Comment: change “section” to “chapter” so it includes the definitions in § 1.4), the use of an electric bicycle is governed by State law, which is adopted and made a part of this section. Any act in violation of State law adopted by this paragraph is prohibited.

b. Former Paragraph (i)(1): As discussed earlier, we recommend that NPS implement a graduated approach to regulating e-bike use in parks based on the distinctly different capabilities of the three classes of e-bikes. This would be more in keeping with how various states regulate electric bicycles. To accomplish this, we suggest NPS renumber former paragraph (i)(1) as (i)(2), and amend as follows:

(1)(2)The use of an electric bicycle as defined in section 1.4 may be allowed on park roads, parking areas, and administrative roads and trails that are otherwise open to bicycles, with the following restrictions.

(add) Class 1 electric bicycles may be allowed on improved-surface and shared use paths that are open to bicycles only when such trails meet design guidelines in the AASHTO Guide for the Development of Bicycle Facilities.[18]Class 1 electric bicycles are prohibited on single-track trails that are open to bicycles.

(add) Class 2 electric bicycles may be allowed on administrative roads designated for bicycle use and are prohibited on all other designated bicycle trails.

(add) Class 3 electric bicycles are prohibited on all designated bicycle trails.

The Superintendent will designate the areas open to electric bicycles and notify the public pursuant to 36 CFR 1.7.

c.Former Paragraph (i)(2): Renumber as paragraph (i)(3) and amend as follows: “The use of an electric bicycle is prohibited in locations not designated by the Superintendent under paragraph (i)(1)(2) of this section.”

d. Former Paragraph (i)(3): Strike entire current paragraph, which states:

Except where use of motor vehicles by the public is allowed, using the electric motor to move an electric bicycle without pedaling is prohibited.

As we commented previously, the use of e-bikes capable of traveling 20 mph without pedaling simply is not appropriate on most park bike trails. The proposal to prohibit “moving without pedaling” is impractical to enforce and should be eliminated. For this reason, as amended under (i)(2)above, we recommend prohibiting Class 2 e-bikes on all “improved-surface and shared use trails that are open to bicycles” because of their pedal-free propulsion capability.

e. Paragraph (i)(4): We strongly support this paragraph, which states: “Possessing an electric bicycle in a wilderness area established by Federal statute is prohibited.”

f. Paragraph (i)(5): This paragraph is unnecessarily confusing by referencing which sections under Part 4 regulations that would apply to electric bicycles. The applicable sections include §§4.12, 4.13, 4.20, 4.21, 4.22, 4.23, and 4.30(h)(3)-(5). In contrast, the existing bicycle regulation at § 4.30 (g) identifies which sections of Part 4 that do not apply to bicycle use. The non-applicable sections include §§ 4.4, 4.10, 4.11, 4.14, and 4.15.

This opposing contrast in wording (i.e., applicable vs. non-applicable) makes it difficult for the public as well as NPS staff to understand and remember which sections of part 4 apply to bicycles and which apply to electric bicycles. A careful comparison of the two versions reveals the two regulations are largely similar; however, inexplicable differences exist between the two. For example, why are e-bikes not subject to the current bicycle regulation at § 4.30(h)(1), which is:

(h) Prohibited acts. The following are prohibited: (1) Bicycle riding off of park roads and parking areas, except on administrative roads and trails that have been authorized for bicycle use.

By excluding e-bikes from § (h)(1), it would appear that it is okay to ride e-bikes off of park roads and parking areas. NPS should make the wording in both sections the same regarding which sections of Part 4 are applicable (or non-applicable) to both bicycle and electric bicycle use, unless there truly are intended differences between the two (which should be made more clear).

g. Current paragraph (i)(6): Strike this paragraph, since it has been moved to (i)(1), and renumber subsequent paragraphs accordingly.

h. Current paragraph (i)(7): Renumber as paragraph (i)(6).
CLOSING COMMENT

In closing, the Coalition is open to the idea of NPS allowing a judicious level of e-bike use on designated bicycle trails, such as shared use paths, in parks under appropriate circumstances; but only with effective management controls that will minimize potential user conflicts and ensure the safety of park visitors. However, in making any important management or regulatory decisions, NPS should follow proper procedures as well as the guidance of the Organic Act and applicable NPS regulations and policies. In this case, we are adamantly opposed to NPS proceeding with this rulemaking, as proposed, without conducting the proper planning and NEPA analysis necessary to support a defensible decision.

We appreciate the opportunity to comment on this important issue.

Sincerely,

Phil Francis Signature