**PUBLIC COMMENT ON RIN 1024-AD72**

The proposed rule will benefit the American public and our national
parks. It should be adopted, but with the changes suggested below.

**I. Preamble**

I agree with the reasoning of most of the preamble. In general, it
presents sound justifications for the rule change, and there is no need
to reiterate them.

I suggest certain changes to make the rule more flexible and its
implementation more feasible:

1\. *Remove the Environmental Assessment Requirement*

The proposed rule addresses two separate subjects: environmental impact
and user conflict. The aspects of the proposed rule touching on
environmental impact should be set aside because bicycles cause no
significant environmental impact. User conflict, which does present a
management issue, will be discussed in item (3) below.

Regarding environmental impact, the rule proposes an Environmental
Assessment under the National Environmental Policy Act before bicycles
may be allowed on an existing trail. I believe that under regulatory
practice implementing the parallel California law, the California
Environmental Quality Act (CEQA) (Cal. Pub. Resources Code, § 21000 et
seq.), allowing bicycle use on an existing trail does not trigger
similar environmental review. This makes sense, as it is settled that
bicycle use imposes no more environmental impact than hiking, and less
so than horseback-riding, using packstock, or riding a motorized
vehicle. (See G. Sprung,
<http://www.americantrails.org/resources/ManageMaintain/SprungImpacts.html>.)

Therefore, I suggest that the Environmental Assessment provision and all
ancillary items dependent on that provision be removed. To the extent
that building a new trail compels an Environmental Assessment,
naturally, bicycle use can be addressed along with all other possible
motorized and nonmotorized uses.

2\. *Do Not Subject New Trails to the Special Regulation Requirement*

The proposed rule, relying on a 1987 National Park Service determination
that bicycle use has the "potential to result in adverse resource
impacts or visitor use conflicts," would continue the "special
regulation" process when bicycle use is proposed for a trail to be
built. On a number of levels, this aspect of the proposed rule will be
counterproductive.

a\. *The Proposed Rule Will Be Unenforceable*

The rule will be unenforceable. A new trail could still be built and
opened only to noncyclists. Once opened, it would be an existing trail
and bicycles could be allowed on it later without invoking the special
regulation.

To be sure, the proposed rule could be rewritten to avoid this problem.
But to do that is to freeze or greatly limit the development of modern
new trails---trails that commonly are designed for nonmotorized
multiuse. It is better to avoid this requirement altogether.

b\. *The Proposed Rule Will Hamstring Park Superintendents*

As the preamble describes, park superintendents have plenary authority
to regulate trail uses. The "special regulation" requirement will add
needless expense and delay, interfering with park superintendents'
ability to operate parklands that presumably they know better than will
authorities at remote locations.

c\. *The Proposed Rule Is Based in Part on a False Factual Premise*

The rule presumes, as did the 1987 National Park Service determination,
that allowing bicycles on a trail has "a much greater potential to
result in adverse resource impacts or visitor use consequences" than
does allowing horses and packstock on that same trail. Twenty-two years'
experience has since proven that to be incorrect in part. Heavy animals
like horses and packstock have a far more profound negative
environmental impact on a trail and surrounding land, including
campsites and water sources, than does a 25-pound bicycle and 150-pound
cyclist. To permit weighty animals (some not even native to North
America) on a trail while disallowing bicycles from the same trail has
no environmental justification and, to that extent, is invalid as
discriminatory even under the rational basis test that presumably would
govern the classification scheme.

3\. *The Question of User Conflict and User Experience in the National
Parks Is Relevant and Important, but the Proposed Rule Adequately
Addresses the Issue*

The proposed rule is certain to attract comments from detractors who
believe that bicycles are incompatible with the values of the national
parks and the experience of visitors to them. Although no amount of
reasoning can deter the more fervent bicycle detractors from their
dogged and dogmatic view on this topic, worldwide experience in recent
decades shows that bicycle-riding will benefit the public and the
national parks.

Mountain bikers are among the foremost champions of wildlands and their
attachment to the national parks will increase as their access does.
Mountain biking is likely to interest younger people in the national
parks in a way that the two traditional means of nonmotorized travel
cannot. Most of the young cannot afford an equestrian lifestyle, and a
number of younger people (and some older ones) in our fast-paced world
find hiking to be unfulfilling. Mountain biking is affordable for most
and often is exhilarating.

Mountain biking supports a unique constellation of important values:
appreciation for wildlands, self-reliance, quiet recreation, solitude,
and increased physical fitness. A few other activities, like
rock-climbing, provide all of these, but neither hiking nor riding
horses or packstock does. Hiking, though virtuous, normally places less
intense physical demands on its participants and so does not confer the
same high degree of fitness. Horseback and packstock riding may provide
worthwhile exposure to remote areas, particularly for people unable to
hike or ride a bicycle, but do little for personal fitness and often
damage trails, campsites, and riparian areas, all to the detriment of
the environment and the experience of other park visitors.

To be sure, mountain biking, like all human activities, can have
undesirable environmental and social effects. It wears on trails about
the same as does hiking. An inconsiderate mountain biker traveling too
fast on a downhill trail can annoy or jar those seeking contemplative
solitude. But hikers' campsites, campfires, and loud audio devices, and
horses' and packstock's dung, trail damage, and trampling of vegetation
also negatively impact the environment and other park visitors. The rule
recognizes the need to weigh the positive effects of an activity against
the negative, and recognizes that mountain biking shows a positive
balance. The rule makes clear that the superintendents of individual
parks will have full authority to make any needed adjustments to park
management, e.g., limiting access to a trail by permit or dividing uses
by day of the week or some other temporal division.

4\. *There Is No Need to Address Any Wilderness-Related Question*

It is anticipated that some commenters will demand additional regulatory
language to constrain bicycling in Wilderness. This should not be done.
The current language, contained in 36 C.F.R. § 4.30(d)(1) and maintained
in the proposed rule, should be left in place for now. Eventually it may
be reconsidered, but this should be done after a thorough analysis of
applicable law by the National Park Service's legal staff.

Some background on Wilderness may be useful solely for informational
purposes. The preamble states that there is a statutory ban on bicycles
in federal Wilderness areas, including National Park Service Wilderness.
The best and most recent legal analysis, however, is to the contrary.
The legislative history of the Wilderness Act of 1964, principles of
statutory construction, and the plain language of a later statute
strongly suggest that there is no federal statutory ban on mountain
biking in Wilderness areas. (T. Stroll, *Congress's Intent in Banning
Mechanical Transport in the Wilderness Act of 1964* (2004) 12 Penn State
Env. L. Rev. 459.)

Again, the point is that the proposed rule should not change any
language regarding Wilderness.

**II. Proposed Language for 36 C.F.R. 4.30**

I propose to change the proposed language for 36 C.F.R. 4.30, as set
forth in the **Federal Register** of December 18 and December 23, 2008,
as follows (additions [underscored]{.underline}; deletions in
~~strikeout type~~):

**PART 4---VEHICLES AND TRAFFIC SAFETY**

1\. The authority for part 4 continues to read as follows:

**Authority**: 16 U.S.C. 1, 3, 9a, 460(q), 462(k); Sec. 7.96 also issued
under D.C. Code 8-137 (1981) and D.C. Code 40-721 (1981).

2\. Section 4.30 is revised to read as follows:

**§ 4.30 Bicycles**

\(a\) *Park roads*. The use of a bicycle is permitted on park roads and
in parking areas that are otherwise open for motor vehicle use by the
general public.

\(b\) ~~*Existing trails*.~~ Except when rulemaking publication in the
**Federal Register** is required by § 1.5(b) of this Chapter, a ~~hiking
or horse~~ trail ~~that currently exists on the ground and does not
require any construction or significant modification to accommodate
bicycles~~ may be designated for bicycle use ~~only~~ if:

\(1\) The park has or will complete a park planning document addressing
bicycle use ~~on existing trails in the park~~; and

~~(2) The park has completed either an environmental assessment (EA) or
an environmental impact statement (EIS) evaluating bicycle use. In
addition to the requirements otherwise applicable to the preparation of
an EA or EIS, the park will publish[ed]{.underline} a notice in the
**Federal Register** providing the public at least thirty (30) days for
review and comment on an EA issued under this section; and~~

([2]{.underline}~~3~~) A written determination is signed by the
superintendent stating that ~~the addition of~~ bicycle use ~~on
existing hiking or horse trails~~ is consistent with the protection of
the park area's natural, scenic and aesthetic values, safety
considerations and management objectives and will not disturb wildlife
or park resources. The park will publish in the **Federal Register** a
notice of the determination and provide at least thirty (30) days for
public review and comment before implementing ~~that decision for~~
bicycle use.

~~(c) *New Trails*. Trails that do not exist on the ground, and
therefore would require trail construction activities (such as clearing
brush, cutting trees, excavation, or surface treatment), may be
developed and designated for bicycle use only after:~~

~~(1) The park has completed the requirements set forth in paragraphs
(b)(1) and (2) of this section; and~~

~~(2)(i) For new trails located outside of a park's developed areas, as
identified in the relevant park plan, the park has promulgated a special
regulation authorizing bicycle use; or~~

~~(ii) For new trails located within a park's developed areas, as
identified in the relevant park plan, the park has completed the
requirements set forth in paragraph (b)(3) of this section.~~

([c]{.underline}~~d~~) *Administrative roads*. Administrative roads
closed to motor vehicle use by the public, but open to motor vehicles
use for administrative purposes, may be designated for bicycle use by
the superintendent pursuant to the criteria and procedures of §§ 1.5 and
1.7 of this chapter.

([d]{.underline}~~e~~) *Closures*. A superintendent may close any park
roads, parking areas, administrative roads, existing trails, or new
trails to bicycle use pursuant to the criteria and procedures of §§ 1.5
and 1.7 of this chapter.

([e]{.underline}~~f~~) A person operating a bicycle is subject to all
sections of this part that apply to an operator of a motor vehicle,
except §§ 4.4, 4.10, 4.11 and 4.14.

([f]{.underline}~~g~~) The following are prohibited:

\(1\) Possessing a bicycle in a wilderness area established by Federal
statute.

\(2\) Operating a bicycle during periods of low visibility, or while
traveling through a tunnel, or between sunset and sunrise, without
exhibiting on the operator or bicycle a white light or reflector ~~that
is~~ visible from a distance of at least 500 feet to the front and with
a red light or reflector visible from at least 200 feet to the rear.

\(3\) Operating a bicycle abreast of another bicycle except where
authorized by the superintendent.

\(4\) Operating a bicycle while consuming an alcoholic beverage or
carrying in hand an open container of an alcoholic beverage.

With the foregoing changes, the text of 36 C.F.R. § 4.30 would read:

**§ 4.30 Bicycles**

\(a\) *Park roads*. The use of a bicycle is permitted on park roads and
in parking areas that are otherwise open for motor vehicle use by the
general public.

\(b\) Except when rulemaking publication in the **Federal Register** is
required by § 1.5(b) of this Chapter, a trail may be designated for
bicycle use if:

\(1\) The park has or will complete a park planning document addressing
bicycle use; and

\(2\) A written determination is signed by the superintendent stating
that bicycle use is consistent with the protection of the park area's
natural, scenic and aesthetic values, safety considerations and
management objectives and will not disturb wildlife or park resources.
The park will publish in the **Federal Register** a notice of the
determination and provide at least thirty (30) days for public review
and comment before implementing bicycle use.

\(c\) *Administrative roads*. Administrative roads closed to motor
vehicle use by the public, but open to motor vehicles use for
administrative purposes, may be designated for bicycle use by the
superintendent pursuant to the criteria and procedures of §§ 1.5 and 1.7
of this chapter.

\(d\) *Closures*. A superintendent may close any park roads, parking
areas, administrative roads, existing trails, or new trails to bicycle
use pursuant to the criteria and procedures of §§ 1.5 and 1.7 of this
chapter.

\(e\) A person operating a bicycle is subject to all sections of this
part that apply to an operator of a motor vehicle, except §§ 4.4, 4.10,
4.11 and 4.14.

\(f\) The following are prohibited:

\(1\) Possessing a bicycle in a wilderness area established by Federal
statute.

\(2\) Operating a bicycle during periods of low visibility, or while
traveling through a tunnel, or between sunset and sunrise, without
exhibiting on the operator or bicycle a white light or reflector visible
from a distance of at least 500 feet to the front and with a red light
or reflector visible from at least 200 feet to the rear.

\(3\) Operating a bicycle abreast of another bicycle except where
authorized by the superintendent.

\(4\) Operating a bicycle while consuming an alcoholic beverage or
carrying in hand an open container of an alcoholic beverage.

**III. Concluding Items**

The foregoing comment represents my own views and not necessarily those
of any other person or entity.

Respectfully submitted,

Theodore Stroll